Kathleen L. Wilde, OSB No. 971053 
 kwilde@disabilityrightsoregon.org 
 James A. Wrigley, OSB No. 904134 
 j wrigley@disabilityrightsoregon.org 
 Theodore E. Wenk, OSB No. 001239 
 ted@disabilityrightsoregon.org 
 DISABILITY RIGHTS OREGON 
 620 S.W. Fifth Avenue, Suite 500 
 Portland, Oregon 97204 
 Telephone: (503) 243-2081 
 Fax: (503) 243-1738 

Attomeys for Plaintiffs
[ADDITIONAL COUNSEL APPEAR ON SIGNATURE PAGE]

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON PORTLAND DIVISION

PAULA LANE; ANDRES PANIAGUA; ELIZABETH HARRAH; ANGELA KEHLER; 
 GRETCHEN CASON; LORI ROBERTSON; 
 SPARKLE GREEN; and ZAVIER KINVILLE, 

on behalf of themselves and all 
 others similarly situated, and 

UNITED CEREBRAL PALSY ASSOCIATION 
 OF OREGON AND SOUTHWEST 
 WASHINGTON,INC., 

Plaintiffs, v.
JOHN KITZHABER, Govemor ofthe State of 
 Oregon; ERINN KELLEY-SIEL, Director of the 
 Oregon Department of Human Services; MARY . 
 LEE FAY, Administrator ofthe Office of 
 Developmental Disability Services; and 
 STEPHAINE PARRISH TAYLOR, 
 Administrator ofthe Office ofVocational 
 .... Rehabilitation-Senrices, . __ __ .
all in their official capacities, 

Defendants. 


Case No.: _ _ _ __ 

CLASS ACTION ALLEGATION COMPLAINT


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l. INTRODUCTION 1. Plaintiffs Paula Lane, Andres Paniagua, Elizabeth Harrah, Angela Kehler,
Gretchen Cason, Lori Robertson, Sparkle Green, and Zavier Kinville are persons with intellectual or developmental disabilities. Each of these individuals is qualified for and receives employment services fromthe Oregon Department ofHuman Services (DHS). Although each is able and would prefer to work in an integrated employment setting, the plaintiffs remain
(
unnecessarily segregated in sheltered workshops and are denied virtually all contact with nondisabled persons in these workshops, as a result of DHS's administration, management, and funding of its employment service system.
2. Thousands of other similarly-situated individuals in the State of Oregon also are unnecessarily segregated because ofDHS's over-reliance on sheltered workshops, and its failure to timely develop and adequately fund integrated employment services, including supported employment programs.
3. A sheltered workshop is a segregated employment setting that employs people with disabilities or where people with disabilities work separately from others. Sheltered workshops are usually located in a large, institutional facility. Workers with disabilities in these settings have virtually no contact with their non-disabled peers, other than agency staff, and are typically paid sub-minimum wage.
4. By contrast, integrated employment is a real job in a community-based business setting, where employees have an opportunity to work alongside non-disabled co-workers and
ea111 a! Aeast 111ini!llutrl wage. Supported empl~Yl11~nt se!"ic~s are vocat~onal_trainiIlg s~rvice~

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that prepare and allow people with intellectual and developmental disabilities to participate in

integrated employment.

5. DHS current1y funds sorne supported employment services that permit sorne

persons with intellectual and developmental disabilities to work in integrated employment

settings. But thousands of other similarly-situated individuals are unable to obtain such supports

because DHS administers, manages, and funds an outdated employment service system that

primarily relies upon segregated sheltered workshops.

6. DHS and the other defendants have failed to timely develop and adequately fund

supported employment services, despite their demonstrated knowledge ofhow to provide these

services to support people in integrated employment, their acknowledgement of the benefits of

integrated employment, and their repeated public commitment to policies designed to expand

integrated employment.

7. The named plaintiffs and the class they seek to represent are harmed by their

placement in segregated sheltered workshops. Without meaningful supported employment

services, the named plaintiffs and the plaintiff class are stuck in long-term, dead-end, facility-

based sheltered workshops that offer virtually no interaction with non-disabled peers, that do not

provide any real pathway to integrated employment, and that provide compensation'that is well

below minimum wage.

8. The needless segregation ofthe named plaintiffs and the plaintiff class is a

violation oftheir rights under federallaw. The defendants are violating the Americans with

Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA) and the Rehabilitation Act, 29 U.S.C. § 794

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(§ 504), by unnecessarily segregating the named plaintiffs and members ofthe plaintiff class in sheltered workshops.
9. Through this action, the named plaintiffs and the plaintiff class seek injunctive and declaratory relieffor the defendants' ongoing violation ofthe ADA and the Rehabilitation Act. They seek an order from this Court directing the defendants to end their needless segregation in sheltered workshops and to provide them with supported employment services so they can participaté in competitive employment in integrated settings. 11. JURISDICTION AND VENDE
10. This action is brought pursuant to Title II ofthe ADA, 42 U.S.C. §§ 12101 and 12131 et seq., and Section 504 ofthe Rehabilitation Act of 1973,29 U.S.C. § 794. The defendants are aH public entities subject to Title II ofthe ADA and all receive federal funds, thereby subjecting them to Section 504 ofthe Rehabilitation Act.
11. This Court has jurisdiction over the claims pursuant to 28 U.S.C. § 1331, 42 U.S.C. § 12133 (ADA claims) and 29 U.S.C. § 794a (Rehabilitation Act claims).
12. The plaintiffs' request for declaratory reliefis brought pursuant to 28 U.S.C. § 2201 and Rule 57 ofthe Federal Rules ofCivil Procedure. Injunctive reliefis authorized by 28 U.S.C. § 2202 and Rule 65 ofthe Federal Rules of Civil Procedure.
13. Venue is proper in the District ofOregon pursuant to 28 U.S.C. § 1391(b). 111. THE PARTIES
A. The Named Plaintiffs 14. PlaintiffPaula Lane is a 48-year-old woman with inteHectual and developmental disabilities. She resides in Aloha, Oregon.
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15. Plaintiff Amires Paniagua is a 32-year-old man with spina bifida. He lives in

Beaverton, Oregon.

16. PlaintiffElizabeth Harrah is a 32-year-old woman with Down Syndrome, an

intellectual disability, and sorne medical and mental health conditions. She resides in Gladstone,

Oregon.

17. Plaintiff Angela Kehler is a 48-year-old woman with developmental disabilities

inc1uding Down Syndrome. She lives in Portland, Oregon.

18. PlaintiffGretchen Cason is a 27-year-old woman with developmental disabilities

inc1uding Down Syndrome. She resides in Portland, Orégon.

19. PlaintiffLori Robertson is a 51-year-old woman with intellectual4isabilities. She

resides in Portland, Oregon.

20. Plaintiff Sparkle Green is a 28-year-old woman with intellectual disabilities. She

lives in Beaverton, Oregon.

21. Plaintiff Zavier Kinville is a 27-year-old man with developmental disabilities. He

resides in Gresham, Oregon.

B. The Organizational Plaintiff

22. United Cerebral Palsy Association of Oregon and Southwest Washington, Inc.

(UCP) is a statewide, nonprofit organization that serves adults, children and families

experiencing cerebral palsy and intellectual and developmental disabilities.

23. UCP's mission is to advance the indeperidence, productivity, and full citizenship

_ of individuals with intellectual and developmental disabilities. It fulfills that mission by

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promoting and operating various programs, including: supported living; community inclusion;

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support services brokerage; customized and supported employment services to obtain community-based jobs at minimum wage or better; support groups; respite; training for families; outings for children, families and young adults; conferences; advocacy; and information and referral services.
24. UCP, as a statewide advocacy agency, has long monitored and attempted to influence the actions of the defendants in order to ensure that persons with intellectual and developmental disabilities receive the employment services to which they are entitled. UCP has expended, and continues to expend, considerable resources attempting to transform Oregon' s employment service systemby increasing supported employment programs and decreasing its reliance on sheltered workshops. As a result, UCP's resources have been diverted, and it has been hindered in its ability to serve its clients and to expand the organization's capacity to provide supported employment services.
25. UCP has been directly harmed by the defendants' failure to implement, fund, ánd administer employment services in integrated employment settings. It brings this action on its own behalf.
C. The Defendants 26. Defendant John Kitzhaber is the Govemor ofthe State ofOregon. He is responsible for directing, supervising, and controlling the executive departments of state government as well as for seeking and expending funds from the legislature to implement the programs and to deliver the services of those executive agencies. He is responsible for deve!opi~g a bi-annual budget propo~al, and f?r approvin~ a final budget and budget modifications that include funding for DHS and the employment service system administered by
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DHS. He also has the authority to require executive agencies like DHS to reallocate 
 appropriated funds to address pressing needs or other legal requirements. 

27. Defendant Kitzhaber appoints the Director ofDHS, and approves the appointment ofthe Administrator ofthe Office ofDevelopmental Disability Services (ODDS) and the Administrator ofthe Office ofVocational Rehabilitation Services (OVRS). He has authority to issue proclamations and executive orders regarding employment services for individuals with disabilities and has issued several proclamations and orders directly related to employment services for persons with disabilities. He is responsible for ensuring that DHS fully implements the Govemor' s policies conceming integrated employment for individuals with disabilities. He is sued in his official capacity.
28. Defendant Erinn Kelley-Siel is the Director ofDHS. DHS is the state agency ultimately responsible for the operation of Oregon' s programs for people with developmental disabilities, including its employment services for persons with intellectual and developmental disabilities and its vocational rehabilitation services. DHS is a public entity subject to Title II of the ADA and Section 504 ofthe Rehabilitation Act. DHS receives federal funds for the administration of its programs.
29. Erinn Kelley-Siel is directly responsible for ensuring that the state programs administered by her office, including the program for Seniors and People with Disabilities, ODDS, and OVRS, are operated in compliance with federallaw. Defendant Kelley-Siel is responsible for the oversight, supervision, and control ofDHS, including requesting and managing all funds for the employment services system for people with intellectual and developmental disabilities that is funded and operated through the Home and Community-Based
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Services (HCBS) Waiver programo She is responsible for administering, managing, and

determining how available funding will be used by DHS, inc1uding the amount offunds

alldcated to sheltered workshops and supported employment programs. As Director ofDHS,

defendant Kelley-Siel also oversees the licensing and monitoring of employment services

providers, inc1uding sheltered workshops. Defendant Kelley-Siel is sued in her official capacity.

30. Defendant Mary Lee Fay is the Administrator ofthe Office ofDevelopmental

Disability Services within DHS, and is directly responsible for ensuring that that program is

operated in compliance with federallaw. ODDS is the primary state agency serving persons

with intellectual and developmental disabilities. Defendant Fay is responsible for the

development, implementation, and oversight of the employment services system for people with

intellectual and developmental disabilities, including the development and implementation of

priorities, plans, policies, and procedures concerning employment services. She establishes the

goals and priorities for the employment services system and collects data on the outcomes of that

system. She also is responsible for designíng, implementing, and overseeing the development

and implementation ofIndividual Service Plans (ISPs) for individuals with intellectual and

developmental disabilities, and for ensuring that employrnent services are provided consistent

with ISPs. She is .sued in her official capacity.

31. Defendant Stephaine Parrish Taylor is the Adminístrator of the Office of

Vocational Rehabilitation Services within DHS, and is directly responsible for ensuring that the

state's vocational services are operated in compliance with federallaw. Defendant Parrish

Taylor is responsible for implementing and overseeing policies and procedures concerning

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vocational rehabilitation services for individuals with developmental disabilities. She is

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responsible for development, implementation, and oversight of a system of vocatiomil rehabilitation services for individuals with intellectual and developmental disabilities and for ensuring that this system provides employment services that are consistent with each person' s Individualized Plan for Employment. She is sued in her official capacity. IV. CLASS ACTION ALLEGATIONS
32. Pursuant to Rule 23(a) and (b)(2) ofthe Federal Rules ofCivil Procedure, the plaintiffs bring this action on behalf ofthemselves and other individuals with intellectual or developmental disabilities who are in, or who have been referred to, sheltered workshops. The plaintiffs seek injunctive and declaratory relief individually and on behalf of the class to remedy and prevent their needless segregation in sheltered workshops.
33. The plaintiff class is so numerous that joinder of all members is impracticable. The class consists of several thousand individuals with intellectual and developmental disabilities who are qualified for integrated employment and supported employment services. Over 2,300 individuals are segregated in sheltered workshops in Oregon at any given time, most ofwhom could and would prefer to work in an integrated employment setting. Each year, many more such persons are referred to sheltered workshops, including youth with developmental disabilities who graduate from, or otherwise leave, special education programs.
34. There are common questions of law, including inter alia: a. whether the defendants are violating the ADA and Rehabilitation Act by planning, administering, funding and operating an employment setvices systenl that Uilllec~ssarilyreliesupon segregated sheltered wo~kshops and
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that denies the named plaintiffs and members ofthe plaintiff class supported employment services in integrated employment settings; b. whether the defendants are violating the ADA and Rehabilitation Act by failing to provide the named plaintiffs and members of the plaintiff class with supported employment services in integrated settings, consistent with their needs; and c. whether the defendants are violating the ADA and Rehabilitation Act by administering the employment services system in a manner that discriminates against the named plaintiffs and members ofthe plaintiff class by providing them employment services in segregated settings and by failing to provide them supported employment services necessary to allow them to engage in competitive employment in integrated settings. 35. There are questions offact common to the class, including inter afia: a. whether the named plaintiffs and members ofthe plaintiff class are unnecessarily relegated to segregated settings in order to receive employment services, as a result ofthe defendants' actions and inactions in planning, administering, and funding their employment service system for persons with developmental disabilities; b. whether the named plaintiffs and members ofthe plaintiff class are denied the opportunity to work with non-disabled peers, as a result of the defendants' actions and inactions in planning, administering, and funding
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their employment service system for persons with developmental disabilities; c. whether the named plaintiffs and members ofthe plaintiff c1ass are given , vocational training in segregated work settings that bears little or no connection to their skills, abilities, or interests and that rarely leads to integrated employment at competitive wages, as a result ofthe defendants' actions and inactions in planning, administering, and funding their employment service system for persons with developmental disabilities; and d. whether the defendants have a comprehensive and effectively working plan for serving the named plaintiffs and members of the plaintiff c1ass in integrated employment settings. 36. The named plaintiffs' injuries and c1aims are typical ofthe c1ass in that aH c1ass members are or will be segregated in sheltered workshops and are being denied supported employment services, as a result of the defendants' actions and inactions in planning, administering, and funding their employment service system for persons with developmental disabilities. The named plaintiffs adequately and fair1y represent the interest of aH c1ass members, will fully and vigorously prosecute this action, and are represented by attomeys experienced in federal c1ass action litigation and disability law. Absent certification, individual members of the c1ass would have difficulty pursuing their own c1aims or remedying systemic violations on their own.
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37. The defendants administer, operate, fund, and oversee Oregon's employment services system in a way that discriminates against persons with intellectual and developmental disabilities by failing to provide supported employment services that would enable the named plaintiffs and members of the plaintiff class to work in integrated employment settings. Therefore, the defendants have acted or refused to act on grounds generally applicable to the entire plaintiff class through their planning, administration, and operation oftheir employment system, as well as through the policies, practices, and funding decisions that guide that system, thereby making appropriate injunctive or declaratory relief appropriate with respect to the class as a whole. As a result, the plaintiffs seek certification pursuant to Fed. R. Civ. P. 23(b)(2). V. STATEMENT OF FACTS
Ao Statutory Framework (1) The Requirements ofthe Americans with Disabilities Act and the Rehabilitation Acto
380 On July 12, 1990, Congress enacted the ADA, 42 UoSoCo § 12101 et seq., establishing the most important civil rights laws for persons with disabilities in our nation's historyo
39. Congress stated in its findings that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U.S.C. § 12101(a)(2).
40. Congress found that "discrimination against individuals with disabilities persists in. o.access to Pllblic services." -4:2 UoSoCo §12101(a)(3).Córigress foundthaf"individuáls with disabilities continually encounter various forms of discrimination, including outright
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intentional exc1usion ... , segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities." 42 U.S.C. § 12101(a)(5).
41. Congress further conc1uded that "[i]ndividuals with disabilities ... have been faced with restrictions and limitations, subjected to a history ofpurposeful unequal treatment, and relegated to a position ofpolitical powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society." 42 U.S.C. § 12101(a)(7).
42. A major purpose ofthe ADA is to provide a c1ear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities, and to provide clear, strong, consistent and enforceable standards addressing discrimination against individuals with disabilities. 42 U.S.C. § 12101(b)(1)&(2).
43. The ADA was intended to promote the full integration ofpersons with disabilities in the civic, educational, and commercial mainstream of society. In enacting the ADA, Congress made c1ear that it sought to ensure meaningful access and full participation of persons with disabilities in all community activities, inc1uding employment.
44. The regulations implementing Title II ofthe ADA require 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) (the "integration mandate").
45. The "most integrated setting" means one that "enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible..." 28 C.F.R.
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§ Pt. 35, App. A (2010). See also, Statement ofthe Department of Justice on Enforcement ofthe
Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L. c.,

available at http://www.ada.gov/olmsteadlq&a_olmstead.htm ("DOJ Olmstead Guidance").

46. Discrimination on the basis of disability also is prohibited by Section 504 ofthe

Rehabilitation Act, 29 U.S.C. § 794(a). Section 504's implementing regulations provide that

recipients of federal funds "shall administer programs and activities in the most integrated setting

appropriate to the needs of qualified handicapped persons." 28 C.F.R. § 41.51 (d).

47, Discrimination based on disability inc1udes discrimination based on the severity

or complexity ofa person's disability. See 28 C.F.R. §§ 35.130(b)(3), 41.51(b)(3); 45 C.F.R.

§ 84.4(b)(4). The ADA and § 504 regulations prohibit the differential treatment of individuals

with disabilities or any c1ass of individuals with disabilities, such as those with more severe or

complex disabilities, with respect to their opportunity to participate in or access the full range of

aids, benefits or services in any program operated by a public entity. See 28 C.F.R.

§§35.130(b)(I)(ii) and (b)(1)(iv), 41.51 (b)(I)(ii) and (b)(I)(iv); 45 C.F.R; §§ 84.4(b)(1)(ii) and

(b)(1)(iv). 48.

-,
The ADA and § 504 regulations similarly prohibit public entities from utilizing

"criteria or methods of administration" that have the effect of subjecting qualified individuals

with disabilities to discrimination or "that have the purpose or effect of substantially impairing

accomplishment ofthe objectives ofthe public entity's program with respect to individuals with

disabilities." The Title II regulations prec1ude public entities from using methods of
I I
administration that discriminate against persons with disabilities or that subj ect such persons to

unjustified segregation. 28 C.F.R. § 35.130(b)(3).

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49. The ADA regulations further specify that "[a] public entity shall not impose or

apply eligibility criteria that screen out or tend to screen out an individual with a disability or any

class of individuals with disabilities from fully and equally enjoying any service program or

activity unless such criteria can be shown to be necessary for the provision ofthe service,

program, or activity being offered." 28 C.F.R. § 35.130(b)(8).

50'. Both the ADA and § 504 also require that public entities must make reasonable

modifications in their policies, practices or procedures when necessary to avoid discrimination

on the basis of disability, including avoiding the unnecessary segregation or institutionalization

of such individuals, unless the public entity can demonstrate that such modifications would

fundamentally alter the nature ofthe service, program or activity. 42 U.S.C. §§ 12131, 12132;

29 U.S.C. § 794; 28 C.F.R. § 35.130(b)(7).

(2) Olmstead v. L. C.

51. The Supreme Court has interpreted the ADA's integration mandate and held that
Title II prohibits unjustified segregation of people with disabilities. Olmstead v. L. c., 527 U. S.

581,600 (1999). In so holding, the Court emphasized that unjustified isolation ofindividuals

with disabilities "perpetuates unwarranted assumptions that persons so isolated are incapable or

unworthy of participating in community life" and that it "severely diminishes the everyday life

activities of individuals including family relations, social contacts, work options, economic

independence, educational advancement and cultural enrichment" Id at 600-601. The Court

concluded that Title II requires public entities to offer services in the most integrated setting

possible, including shifting programs and services from segregated to integrated settings, unless

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such a shift would result in a fundamental alteration oftheir service system. Id at 607.

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52. The United States Department of Justice has issued interpretive guidance on enforcement of Title II and Olmstead in which it explains that a "public entity may violate the ADA's integration mandate when it: (1) directly or indirectly operates facilities and/or programs that segregate individuals with disabilities; (2) finances the segregation of individuals with disabilities in private facilities andlor (3) through its planning, service system design, funding choices, or service implementation practices, promotes or relies upon the segregation of individuals with disabilities in private facilities or programs." See DOJ Olmstead Guidance at 3, Question 2. The Department of Justice has further explained that ADA' s integration mandate and Olmstead apply to employment services and that segregated settings include sheltered workshops and segregated day programs. Id at 7, Question 12.
53. On September 16,2011, the Center for Medicare and Medicaid Services (CMS) issued guidance in an Informational Bulletin, entitled "Updates to the § 1915(c) Waiver Instructions and Technical Guide, regarding employment and employment-related services." The Bulletin discusses limitations on federal funding for sheltered workshops and strongly endorses the use of federal Medicaid funding for supported employment services. The Bulletin explicitly recognizes that: "Although this is guidance with respect to the 1915(c) Waiver program, we note that states have obligations pursuant to the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the Supreme Court' s Olmstead decision interpreting the integration regulations ofthose statutes. Consistent with the Olmstead decision and with person-centered planning principies, an individual's plan of care regarding employment services should be constructed in a manner that reflects individual choice and goals relating to employment and ensures provision of services in the most integrated setting appropriate." (Available at https://www. cms. gov/CMCSBulletins/downloads/CIB-9-16-11.pd(.)
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B. People with Intellectual and Developmental Disabilities Have the Desire and Ability to Work.
54. In Title I ofthe Rehabilitation Act, Congress found that disability is a natural part ofthe human experience that in no way diminishes the right ofindividuals to live independently, enjoy self-determination, make choices, contribute to society,pursue meaningful careers, and enjoy full inclusion and integration in the economic, political, social, cultural, and educational mainstream ofsociety. 29 U.S.C. § 70l(a) (emphasis added).
55. Congress further recognized that work is a valued activity for both individuals and society, and that work fulfills the need of an individual to be productive, promotes independence, enhances self-esteem, and allows for participation in the mainstream oflife. 29 U.S.C. § 720(a). Title I ofthe Rehabilitation Act is based upon 'Congress's recognition that individuals with disabilities, even individuals with the most significant disabilities, have the ability to achieve gainful employment in integrated settings if appropriate services and supports are provided. 29 U.S.C. § 720(a)(1)(C). Indeed, at the heart ofTitle I ofthe Rehabilitation Act is the principIe that even "individuals with the most significant disabilities are presumed to be capable of engaging in gainful employment and that the provision of individualized vocational rehabilitation services can improve their ability to become gainfully employed. 29 U.S.C. § 720(a)(3)(A).
56. In spite ofthe demonstrated ability and desire ofpeople with disabilities to work, Congress recognized that significant numbers of individuals with disabilities are not able to work at levels commensurate with their capabilities for reasons that include, among others, discrlmination. arrd lack oIeaucaiiori~ trairiing, arid supports tomeet j ób qualificationstaridatds necessary to secure, retain, regain or advance in employment. 29 U.S.C. § 720(a)(1)(D).
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57. To address its finding that even people with significant disabilities can work and to ensure that all individuals with disabilities have access to meaningful employment, Congress included in Title I of the Rehabilitation Act the presumption all individuals can benefit from vocational rehabilitation services unless a state can demonstrate by c1ear and convincing evidence that an individual is incapable ofworking due to the severity ofthe individual's disability. 29 U.S.C. § 722(a)(2)(A).
58. Oregon has long endorsed and promoted the principIes that everyone with a disability can work, that there is a job for everyone, and that people are healthier, safer and happiest with meaningful w'ork. A guiding tenet of Oregon's Employment First policy is "a fundamental beliefthat employrnent is the key to full citizenship." See Community Leadership for Employment First in Oregon (2010), available at http://www.dhs.state.or.us/dd/supp_emp/docs/wise.pdf.at 9 (hereafter ODDS' "Call to Action Report''). ODDS has left no doubt that "[i]t is the position of ODDS and the Employment First Outreach Proj ect that all people with intellectual and developmental disabilities should be provided the opportunity to work ...to not live in the shadow as marginalized citizens, but to be fully embraced by their cornmunity." Id. (emphasis added.)
C. Segregation ofPeople with Intellectual and Developmen.tal Disabilities in Sheltered Workshops Constitutes Discrimination Under the ADA.
59. Sheltered workshops are an outdated service model which is based upon the stereotype that people with disabilities cannot engage in competitive employment and are not capable of succeeding at real work. For many years, disability professionals have considered sheltered workshops the last resort, or a hopeless end. point, for people with disabilities. Halderman v. Pennhurst State School & Hosp., 154 F.R.D. 594, 601 (E.D. Pa. 1994) ("In the
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workshop setting, c1ass members eam a fraction of what is available through cornmunity employment and they have very little opportunity to interact with nondisabled persons. Accordingly, these mentally retarded plaintiffs are being unnecessarily segregated from the cornmunity."); Homeward Bound, ¡ne. v. Hissom Memorial Center, 1987 WL 27104 (N.D. Ok1a., July 24, 1987).
60. Sheltered workshops, similar to the segregated institutions which once characterized Oregon's residential service system but have now been shuttered, routinely relegate people with intellectual and developmental disabilities to segregated settings that offer little or no contact with non-disabled peers. Indeed, sheltered workshops are ofien operated in conjunction with other segregated facilities.
61. Sheltered workshop employees are usually paid less, and ofien far less, than minimum wage,perpetuating the stereotype that people with intellectual and developmental disabilities are incapable of performing productively in a competitive work environment. Compensation at sheltered workshops ofien bears no reliable correlation to a person's abilities.
62. Sheltered workshops are funded primarily by State or local govemments, and depend upon this public funding, together with income from sub-contracts for the production of goods, to sustain the workshops.
63. Historically, sheltered workshops were intendedas training programs to prepare individuals for work in competitive employment. But the intended purpose of sheltered workshops -- to prepare individuals for real work -- is rarely re~lized. Instead sheltered workshop employeesare relegated to separate and unequal jobs, and hardly ever transition to
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competitive employment. In fact, nationally, fewer than 5% of individuals in sheltered workshops move to integrated employment.
64. The work performed at sheltered workshops is typically low-skilled, nonchallenging manual labor. This work does not provide training for competitive employment in integrated settings.
65. Individuals with intellectual and developmental disabilities frequently spend their days at sheltered workshops performing tasks that do not reflect, and ófien are not relevant to, their individual skills, interests or prior work experience. Moreover, these tasks ofien bear little resemblance to work performed in most competitive employment settings.
66. For many employees of sheltered workshops, the unchanging daily routine of performing mundane work causes their social skills to atrophy, leading to an even lower likelihood that they will ever transition to work in the community. It also leads to lower self­ esteem and lowered expectations ofthemselves, similar to the "learned helplessness" described in DA/v. Paterson, 653 F. Supp. 2d 184, 214 (E.D. N.Y. 2009) (DAI 11) ("When individuals are treated as ifthey are helpless, the helplessness becomes a learned phenomenon").
67. The lowered expectations and skill-set that sheltered workshops engender pervade the public consciousness as well, reinforcing and perpetuating negative stereotypes about people with intellectual and developmental disabilities.
68. Oregon has concluded, and research has shown, that sheltered workshops are more expensive per person than supported employment services and that most individuals never "graduate" from sheltered y¡orkshops to r~al employment.
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D. Supported Employment Provides the Most Integrated Work Servíceslor Individuals wíth Intellectual and Developmental Disabilitíes.
69. VirtuaHy aH persons with disabilities in sheltered workshops are capable of working in integrated employment settings. Supported employment services are a critical component to helping persons with inteHectual and developmental disabilities transition to competitive employment in integrated settings.
70. Supported employment services in integrated settings, unlike segregated sheltered workshops, foster community integration by providing regular contact and interaction with nondisabled peers.
71. By providing opportunities for individuals with intellectual and developmental disabilities to work alongside non-disabled peers, supported employment is consistent with the ADA and its implementing regulations.
72. Supported employment is defined by the Rehabilitation Act Amendments of 1986 as "competitive work in integrated work settings, or employment in integrated work settings in which individuals are working toward competitive work, consistent with the strengths, resources, priorities, concems, abilities, capabilities, interests, and informed choice of the individuals, for individuals with the most significant disabilities." 29 U.S.C. § 705(35); 39 C.F.R. § 361.5(b).
73. Supported employment generaHy includes four key elements: integration, paid work at or aboye the minimum wage, individualized services, and ongoing supports.
74. Unlike sheltered workshops which tend to use a "one size fits aH" approach to employment by assigning individuals with a wide range of abilities and interests to identical tasks, supported employment utilizes·a person-centered phinriing model that assesseseacn individual's unique skills, needs and preferences.
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75. Supported employment providers match the strengths and needs ofindividual clients to specific jobs, in contrast to sheltered workshops that fill job slots based upon the demands of its contracts or creating "make work" when insufficient contract work is available.
76. Supported employment promotes economic independence by compensating individuals with disabilities at prevailing wages and always at the state minimum wage or aboye. Studies have shown that supported employees regularly out-earn sheltered employees.
77. For over three decades, the national trend in the provision ofpublicly-funded employment services for persons with mental disabilities has been away from the sheltered workshop model and toward supported employment. Today, professionals in the field of developmental disabilities strongly favor supported employment services.
78. In 2001, the federal agency which oversees the State Vocational Rehabilitation Services Program eliminated all funding for the permanent placement ofpersons with disabilities in sheltered workshops. The federal agency endorses and funds supported employment services for clients of state vocational rehabilitation programs.
79. Research also demonstrates that the cumulative and per person cost of supportedc/ employment to the state and specifically to its developmental disabilities and vocational rehabilitation agencies is less, over time, than sheltered workshops, as individuals hecome more independent and competent in performing their job duties.
E. Oregon Administers and Funds a System ofEmployment Services that Unnecessarily Relies Upon Segregated Sheltered Workshops. (1) Oregon's Employment Services System
80. The cl.efendants admimster, fUnd, manage, license, and oversee the employment
servi,ce system for individuals with intellectual and developmental disabilities in Oregon.
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81. Specifically, DHS plans, funds, and oversees all developmental disability services and vocational rehabilitation services, including the employment service system, for persons with intellectual and developmental disabilities in Oregon. It determines the amount and allocation of funding for these services and that system, incl~ding the range of employment services, the licensing of employment providers, and the level of funding for sheltered workshops versus supported employment programs. The current employrnent service system, which relegates over 2,000 persons with disabilities to sheltered workshops and allocates far more than half of all employrnent funding to segregated workshops, is the direct result of decisions, actions, and inactions ofDHS.
82. ODDS plans, administers, and directly manages the long-term employment service system for persons with developmental disabilities, including all sheltered workshops and supported employment services. Specifically, ODDS has the primary responsibility for developing, implementing, and overseeing all employment programs for persons with intellectual and developmental disabilities. It sets goals, establishes priorities, creates plans, adopts policies and procedures, determines reimbursement rates, collects data, and takes actioIis with respect to the statewide employment service system.
83. On an individuallevel, ODDS is responsible for overseeing the development and implementation of ISPs for individuals with intellectual and developmental disabilities, which must include professionally-appropriate assessments for employment services. ODDS also is responsible for ensuring that employment services are provided consistent with each individual's needs, interests, an~ abilities.
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84. ODDS has developed, adopted and promoted an Employment First Policy based on the premise that integrated employment has better outcomes than segregated employment and that through a person-centered planning process people with disabilities can and do succeed at integrated employment.
85. ODDS has not taken effective action to implement its Employment First Policy, to ensure that its ISP system requires consideration ofEmployment First, to implement the integrated employment goals of persons with intellectual and developmental disabilities, and most importantly, to ensure there is a sufficient capacity of supported employment services to allow persons with intellectual and developmental disabilities to work in integrated settings. As a result, the current employment service system, and specifically its excessive reliance on segregated workshops, is the direct result ofthe actions and inactions ofODDS.
86. OVRS is responsible for completing a comprehensive vocational assessment and determining the employment needs and potential of individuals with intellectual and developmental disabilities. OVRS must prioritize individuals with severe disabilities in that process. OVRS identifiesjobs, contracts with supported employment agencies, and,providesjob training, job coaching and support for up to 18 months. Pursuant to various provisions of the Rehabilitation Act, OVRS should be both the entry point and the initial provider of supported employment services for persons with intellectual and developmental disabilities, inc1uding those with the most severe disabilities.
87. The defendants administer two community service waiver programs, approved by CMS and funded pursuant to Section 1915(c) ofthe Social Security Act. A waiver allows a state to provide a variety of services with Medicaid funds, such as employment services, without
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having to meet certain Medicaid statutory requirements. Oregon's Comprehensive Waiver and its Support Services Waiver both fund employment services, inc1uding many sheltered 
 workshops and some supported employment services. 

88. According to ODDS data, Oregon invests a total of approximately $30 million in sheltered workshops annually, which segregates 2,300 ofpeople with intellectual and developmental disabilities in facilities, at a cost of roughly $2,500,000 per month.
89. Oregon has recognized that sheltered workshops cost substantially more than integrated employment, at least over the long termo In its Call to Action Report, ODDS endorsed research studies which find that "the cumulative costs generated by sheltered employees may be as much as three times higher than the cumulative costs generated by supported employees ­
$19,388 versus $6,618". See Call to Action Report at 10.
90. Over 1,500 persons, or more than 42% ofpersons receiving services through the Comprehensive Waiver, are relegated to segregated sheltered workshops. Only 7% ofthe persons in this waiver program participate in individualized, integrated employment.
91. In the Support Services Waiver, over 900 persons, or 37% ofthose in this program, are segregated in sheltered workshops, while approximately 450 persons, or 19%, participate in integrated employment.
92. Today there are over 2,300 Oregonians with intelIectual and developmental disabilities in segregated employment. Each year, many more are referred for admission to sheltered workshops, inc1uding youth graduating or otherwise leaving special education programs who have the ability and interest to work in integrated employment settings. Many youth in transition from special education already have actual work experience from placements
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in integrated employment, but have no post-graduation employment option other than sheltered workshops.
(2) Oregon' s Initial Commitment to Provide Integrated Employment. 93. Oregon was once a leader in recommending and promoting integrated employment, such as supported employment services, for individuals with developmental disabilities. 94. The federally-funded Specialized Training Program at the University of Oregon served as a national Research and Training Center on Employment, providing leadership, models, data, research, and technical assistance to other States on the potential of supported employment to transform day services for people with developmental disabilities, to increase their productivity and income, and to facilitate their integration into the community. 95. For almost two decades, Oregon also sought to transform its own services system for persons with developmental disabilities by dramatically decreasing its reliance on sheltered workshops, and concomitantly expanding its capacity to provide supported employment. 96. Through the 1980s and early 1990s, Oregon's community employment initiatives gained momentum. Oregon was awarded three federal Systems Change grants to support the development of supported employment and high school transition services. See Jane Steveley, Supported Employmentfor Oregonians with Developmental Disabilities: Recommendations for Action (2005), available at http://www.oregon.gov/DHS/vr/eep/se_dd_stevely.doc (hereafter "the White Paper"). These projects focused primarily on: (1) converting sheltered employment programs to supported_ employment; (2) developing new programs that provided supported
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employment services; and (3) focusing on client choice and control ofboth funding and the job search process.
97. Unfortunately, since the mid-1990s Oregon has reversed course, increasing its reliance on segregated workshops while simultaneously decreasing its development and use of supported employment services. The raw number and percentage of people served in sheltered workshops has more than doubled, while the number and percentage served in supported employment has decreased by half. For example, in 1988, 50% ofthe 2,300 people served in the Comprehensive Waiver were in supported employment. By 2010, that number had dropped to approximately 23%, and to only 7% in individualized employment.
98. Since the early 1990s, Oregon's disability agencies have made little effort to expand supported employment services or to restore Oregon' s commitment to providing integrated employment opportunities for individuals with intellectual and developmental disabilities.
99. In 2005, a collection of stakeholders including the Oregon Council on Developmental Disabilities (DD Council) and representatives of ODDS issued the White Paper, a comprehensive assessment ofthe DHS employment service system. The White Paper found: (1) a significant decline in the number ofindividuals who have access to supported employment; and (2) the 10ss ofthe state's focus and training efforts on supported employment.
100. The White Paper called upon state officials to expand supported employment. Among other recommendations, the White Paper emphasized the need to examine the policies of other states that had successfully implemented supported employment programs for individuals
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with developmental disabilities, as well as the need to build provider capacity to deliver 
 supported employment services. 

101. In response to one ofthe recommendations ofthe White Paper, Oregon adopted its Employment First policy in 2008. The policy requires employment in integrated work settings to be the first priority option that is explored in the service planning process for adults with developmental disabilities. In adopting its Employment First policy, DHS declared that "[b]ehind the Employment First policy is a fundamental belief that employment is the key to full citizenship."
102. The Employment First Policy is based upon the principIes that: (1) integrated employment has better outcomes than non-employment, segregated employment, facility-based employment, or day habilitation in terms of employment outcomes; (2) employment services should be considered and provided using person-centered planning concepts, based on informed choice, and consistent with the philosophy of self-determination; and (3) minimum wage and competitive wages shall be the goal of integrated employment.
103. Five years afier the DD Council's White Paper and two years afier the Employment First Policy were issued, the Oregon Employment First Outreach Project, comprised ofrepresentatives from ODDS, OVRS, and the DD Council, acknowledged, once again, that the state had failed to make supported employment available to thousands of individuals who remained needlessly segregated in sheltered workshops. Call to Action Report, at 6.
104. In 2009, Oregon received a Medicaid Infrastructure Grant from the federal Center for Medicare and Medicaid Services (CMS), which it used to fund the Competitive Employment
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Project administered by OVRS for individuals with a wide range of disabilities. A portion ofthe Competitive Employment Project funds are allocated to Employment First activities for 
 individuals with intellectual and developmental disabilities, but these funds are primarily 
 targeted toward training for providers. None ofthe Medicaid Infrastructure Grant funds are 
 specifical1y targeted toward reducing Oregon's reliance on sheltered workshop programs. 

105. The Call to Action Report contained numerous recommendations for effectuating Employment First's mission, but DHS and ODDS havenot implemented most ofthose recommendations. Thus, despite acknowledgement of their failure to reduce segregated employment and its recognition that supported employment offers better outcomes and greater . integration and independence, Oregon, and particularly ODDS, has continued to segregate thousands of individuals with intellectual or developmental disabilities in sheltered workshops, rather than offering them supported employment services in integrated settings.
106. Furthermore, ODDS' Employment First does n<;>t prióritize individuals in sheltered workshops for transition to supported employment or otherwise focus on reducing segregated employment.
107. OVRS is required by federallaw to provide vocational assessments and time­ limited employment services to people with disabilities, and particularIy persons with severe disabilities. However, OVRS does not use available resources to provide vocational assessments and supported employment services to all qualified individuals with intellectual and developmental disabilities. In addition, OVRS ofien employs methods for administering its federal funds that favor individuals with less severe disabilities and disfavor those with more severe intellectual or developmental disabilities. ODDS funds services for people with
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intellectual and developmental disabilities in sheltered workshops, and administers its vocational services so that persons with intellectual and developmental disabilities ofien are required to obtain segregated employment through sheltered workshops, even when they desire and are capable of performing integrated employment.
108. As a result ofthe defendants' policies and practices, thousands ofpeople with intellectual and developmental disabilities are denied the opportunity to participate in meaningful work, and are, instead, relegated to a lifetime of segregation in sheltered workshops. They are harmed by having virtually no opportunity to work with non-disabled peers, the inability to eam competitive wages, the diminishment of self-esteem, and the loss of learned skills.
109. Each year, several hundred young people with intellectual and developmental disabilities graduate, age out or otherwise leave special education vocational training programs. Despite their prior training, a significant number of those young people are referred to sheltered workshops, even though they have the ability to succeed in integrated employment.
110. As a result ofthe defendants' policies and practices, youth with intellectual and developmental disabilities are harmed by being relegated to segregated employment in sheltered workshops, despite their training, talents, interests and ambitions.
111. As demonstrated by Oregon's own experience, its professed policies, and professional research, supported employment services in integrated settings are the most effective method for assisting persons with intellectual and developmental disabilities to participate in integrated employment in the community. Oregon's experience and professional research demonstrate that supported employment services are more cost-effective than sheltered workshops, and thus would, over time, result in cost savings to the defendants.
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F Impact on the Named Plaintiffs (1) Paula Lane
112. Paula Lane is 48 years old and has an intellectual disability, autism, and an 
 anxiety disorder. She has a Social Security representative payee, but is competent to make her 
 own decisions. She lives in an apartment with staff support. 

113. Ms. Lane attends a sheltered workshop in Beaverton, Oregon. She began working at the sheltered workshop in March 2000, when she moved from Oklahoma to Oregon. Ms. Lane has never had the opportunity to work in competitive employment. She only has worked in segregated sheltered workshops in Oklahoma and now Oregon.
114. The sheltered workshop that Ms. Lane now attends has a total of 138 participants, 129 ofwhom work in one large room on various assembly lines doing rote tasks. The vocational agency describes its business as "packaging fulfillment," meaning that the various tasks are all related to packaging. The worksite is segregated, crowded, and distracting. Workshop participants have little or no contact with people without disabilities, other than paid staff.
115. Ms. Lane's employment records indicate that from March 2010 through February 2011, the highest amount that she earned was $53.66 for 81 hours in September 2010; the lowest was $26.82 for 66 hours in March 2010, or approximately $.40 per hour. She presently works putting parts into boxes, putting bits into slots in a tool holder, folding UPS bags, packaging gloves, and similar tasks.
116. Ms. Lane has consistently asked the vocational agency to help her find competitive employment. In a 2001 survey by the workshop, Ms. Lane said that she would like them "to find me an outside job." She said that she would like to work in a daycare center.
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Despite repeated requests for a realjob, there has been only one effort in 2007-2008 to identify a cornmunity position for Ms. Lane, which was unsuccessful. Ms. Lane's 2009 ISP said that the program would "explore cornmunity-based job opportunities," but this was not mentioned in later ISPs. Ms. Lane continues to express an interest in being competitively employed.
117. Ms. Lane's 2011 ISP has no goals or action plans related to employment. Her work record from March 2010 through February 2011 notes that she received top scores of 5
!
regarding working continuously without prompting, independently producing acceptable quality and quantity of work or product, and following one step and multiple step directions willingly and correctly.
118. Ms. Lane is very social. Her most recent ISP indicates that she spends money on pizza parties and goes out for dinner. The ISP also states that she wanted to attend a country music concert through a travel agency and to go to an Upward Bound campo However, given her lack of income despite working many hours each week, she cannot afford to participate in as many cornmunity activities, as she would prefer. Ms. Lane believes that she can work competitively and would like the opportunity to do so.
119. Neither Ms. Lane's case manager nor the sheltered workshop provider has taken the actions necessary to assist Ms. Lane in obtaining supported employment. Similarly, DHS and OVRS have not offered supported employment services that would allow Ms. Lane to work in an integrated environment, as she prefers.
(2) Andres Paniagua 120. Andres Paniagua is 32 years old and lives with his mother in Beaverton, Oregon. He has spina bifida, memory challenges, and several health-related conditions. He uses a large
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wheelchair and requires seating accornmodations. Because ofhis short-term memory loss, he frequentIy needs to have directions repeated, but is capable, willing, and determined to work in a real jobo Mr. Paniagua has a Social Security representative payee, but is competent to make his own decisions.
121. Mr. Paniagua was placed in his current sheltered workshop in September 2008. Previously, he was segregated in other sheltered workshops in Oregon. In fact, he was first placed in a sheltered workshop as part ofhis transition from high school, and has never been offered the opportunity to work in a real job, despite his interest, ability, and repeated requests to do so. His support services survey, dated August 22,2011, states that it is important to Mr. Paniagua "to have enough money so that he can live on his own" and that he "is incredibly motivated to work and earn a living."
122. Mr. Paniagua has to cornmute as much as two hours each way to his workshop by
\
bus. He works with approximately 70 people in the vocational program's sheltered workshop. He works in a segregated and noisy setting that cuts steel and does packaging and assembly under contract. He has little choice in the tasks he performs because available work is dependent upon contracts chosen by the sheltered workshop provider. Workshop participants have little or no contact with individuals without disabilities, other than paid staff.
123. At his current sheltered workshop, he has demonstrated many work skills. As a result, according to a monthly progress report by his vocational provider, "[h]e works in every department from the machine shop to the front oflice." Among other responsibilities, he assembles linebackers, a type offishing equipment that requires multi-step assembly. His productivity is high, as demonstrated by his September 2011 wages of $341.99 for 59.98 hours
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or work; October 2011 wages of$290.55 for 43.7 hours ofwork; and November 2011 wages of $309.39 for 46.28 hours ofwork. Because he is allotted a fixed amount ofmoney per year through the support services waiver, he is only able to attend the workshop for a total of 200 days.
124. In spite ofthe fact that these wages are consi~ered "high" for a sheltered workshop employee, Mr. Paniagua still does not earn anywhere near as much as he would ifhe received minimum wage, which he c1early is capable of doing. Mr. Paniagua is very interested in working competitive1y. The vocational program's progress notes say that he is a very good worker, with good attention to detail, and is well-liked.
125. Mr. Paniagua has expressed many times that he would like to work for at least minimum wage in an integrated employment environment. In spite ofhis expressed preference to work in competitive employment and his demonstrated ability to work in integrated settings, he remains in a sheltered workshop. '
126. Mr. Paniagua's current ISP does not explain why Mr. Paniagua is not a candidate for competitive employment, or even mention this option. Nor do earlier ISPs. The goal is simply for him "[t]o continue to have opportunities for employment in a workshop setting and opportunities for activities and socialization with other people with disabilities."
127. Mr. Paniagua is frustrated by the fact that he has never had the opportunity to work competitively in the community. He would like to be integrated into the community work life and make at least minimum wage. He is c1early capable of doing so. He would also like to make more money so he can live independently and have a more active sociallife like other young people his age.
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128. Mr. Paniagua's brokerage personal agent, who is ultimately overseen by DHS, has failed to ensure that Mr. Paniagua's ISP includes supports and services that will reasonably allow him to attain his goal of community employment. Additionally, DHS and OVRS have not provided supported employment services available to meet the integrated employment goals contained in his ISP.
(3) Elizabeth Harrah 129. Elizabeth Harrah is 32 years old and has Down Syndrome and an intellectual disability, as well as sorne medical and mental health conditions. She is competent to make her own decisions, but has a Social Security representative payee. She lives in an adult foster home. 130. Ms. Harrah has attended a sheltered workshop in Gresham, Oregon since November 2004, where she works five days a week on various rote tasks for sub-minimum wage. The workshop that Ms. Harrah attends is a large, institutional setting where Ms. Harrah and other individuals with disabilities are assigned tasks based upon work chosen by the sheltered workshop provider. Ms. Harrah has little choice in the tasks she pe,r­forms at the sheltered workshop and has little opportunity to interact with non-disabled individuals, other than paid staff. 131. In December 2011, she earned $112.76 for 27.43 hours ofwork; in November 2011, she earned $63.90 for 15.07 hours ofwork, and in October 2011, she earned $106.16 for 20.28 hours ofwork. 132. Ms. Harrah has several years of experience working in competitive employment with supports. She worked for approximately two years at McDonald's performingjanitorial tasks. She also worked for approximately two years as a stock clerk at Safeway. Ms. Harrah
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enj oyed working in integrated settings in the community and suffered distress when she lost this opportunity. She also was employed at a car wash earning sub-minimum wages, but her vocational program c10sed this enclave. Ms. Harrah is very interested in returning to competitive employment, but has not been given the opportunity or supports to allow her to do so.
133. Ms. Harrah's current vocational ISP states that she works on an average of six tasks per month at the sheltered workshop. However, the ISP does not include goals or supports that would allow Ms. Harrah to return to competitive employment, despite her prior work history and her demonstrated ability to participate in competitive employment.
134. In spite ofMs. Harrah's expressed desire to return to competitive employment, her case manager has failed to take the actions necessary to assist Ms. Harrah in attaining her employment goal. Similarly, DHS, which ultimately oversees both the case manager and sheltered workshop provider, and OVRS have not created or made available sufficient supported employrnent services to allow Ms. Harrah to return to an integrated work environment.
(4) Angela Kehler 135. Angela Kehler is 48 years old, and has Down Syndrome and an intellectual disability. She also has a number ofmedical problems, inc1uding complications of diabetes and asthma. She is competent to make her own decisions, but has a Social Security representative payee. She lives in a group home with other residents with disabilities. 136. Ms. Kehler participates in a sheltered work program in Gresham, Oregon. Shehas been stuck in this program for over two decades. Ms. Kehler is current1y working in a silk screen shop operated by the vocational provider. The screen shop has a sales area and a work area where c10thes are decorated with si1k screens. Approximate1y ten people with
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I

developmental disabilities work in this program, where Ms. Kehler rarely interacts with people without disabilities, aside from paid staff.
137. According to her ISP, Ms. Kehler folds shirts and does janitorial tasks at the screen shop. In September 2011, she received $24.28 for 19.33 hours ofwork; in October 2011, she eamed $19.53 for 8.83 hours; and in November 2011, she was paid $27.23 for 13.9 hours.
138. Ms. Kehler was competitively employed at a large drugstore from October 2009 to July 2010, when she was laid off In this job she organized merchandise on display shelves, and returned unwanted merchandise to its proper location. She received instruction and support from the store manager, when necessary. Ms. Kehler initially worked in the drugstore twice per week, two hours each day, but her schedule later was increased to three days a week, four hours a day. A1though her 2010 ISP included a cornmitment that Ms. Kehler would have staff supports if she faced obstacles in her job performance at the drugstore, these were never provided.
139. Ms. Kehler is able to use the bus, transferring without assistance. She has also worked in enclaves that washed cars and cleaned a movie theater, but was only paid sub­ minimum wages. These enclaves have been discontinued.
140. Ms. Kehler's current ISP indicates that she has told staffthat she would like to be competitively employed in the cornmunity in a craft or food store. The ISP concludes that she is employable, but little has been done to achieve her employment goals, reflect her work interests, or assist her in obtaining a real job in the cornmunity.
141. Ms. Kehler' s current ISP concedes that her vocational program no longer has a job developer, so there is no one to assist in her obtaining competitive employment and supporting her in a realjob. The ISP says that "Angela and her supervisor will continue to
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discuss cornmunity jobs; should the economy improve and a Job Developer is available community employment will be developed."
142. In spite ofMs. Kehler's expressed desire to work in competitive employment, neither her case manager nor the sheltered workshop provider has taken the necessary actions to assist Ms. Kehler in obtaining supported employment. Similarly, DHS and OVRS have not provided supported employment services that would allow Ms. Kehler to work in an integrated environment, as she prefers.
143. Ms. Kehler likes going out on dates. At sorne point, she would like to live independently. She also likes to travel. Receiving sub-minimum wages makes it virtually .impossible to fulfill her ambitions and to enjoy her most treasured experiences. Ms. Kehler relished the opportunity to make a competitive wage at the drugstore and to be in an integrated employment setting. Absent assistance in locating and support in maintaining integrated employment, Ms. Kehler will remain segregated at her current workshop, earning less than $2.00/hour.
(5) Gretchen Cason 144. Gretchen Cason is a 27 year old woman with Down Syndrome. She is competent to make her own decisions. She lives with her parents in Portland, Oregon. 145. Ms. Cason had several integrated, cornmunity work experiences during her high school transition programo She volunteered in the cafeteria of a hospital and at a small retail chain store straightening magazines and other displays. She volunteered once a week from fall 2002 through graduation spring 2005.
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146. Afier her high school transition program ended and she graduated from school, Ms. Cason was referred to a sheltered workshop. She worked in this segregated program for three years. It purported to provide employment services, but primarily provided crafi activities. Between 2005-2008, she worked 1 to 2 hours per week on a computer in this segregated programo Most her time at this sheltered workshop was spent watching TV or coloring in books.
147. Ms. Cason then attended a sheltered work program in Portland, Oregon, from July 2008 through April2010. In this segregated setting, there were about 50 individuals with development disabilities. Ms. Cason had virtually nó interaction with individuals without disabilities, other than staff. Her workshop hours were supposed to be from 8:30 a.m. to 2:00 p.m., two days per week, but typically Ms. Cason only worked for 1 to 2 hours per week sorting donated goods. Her largest monthly paycheck was $20.
148. Ms. Cason was then transferred to a retaillocation with the same provider, where she sorted clothes and straightened displays on the store floor from April through December 2010. At the store location she worked 3 days per week and earned up to $100 per month. She was then transferred back to the sheltered workshop location in December 2010, where she only worked for a few more weeks. The transfers were implemented unilaterally by the provider, without input from Ms. Cason and without holding a meeting ofher ISP team.
149. Ms. Cason's most recent ISP include~ seeking services fromOVRS. Ms. Cason has received little support from her current support brokerage and personal agent in attaining her goal ofsupported employment through OVRS.
150. Ms. Cason applied for OVRS services in February2011 and was determined eligible for services. In Apri12011, she was given a ten-day work evaluation as a donation
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attendant at William Temple House. The evaluation report concluded: "We believe that Gretchen is a good candidate for supported employment or alternatives to employment program, through her brokerage." In May 2011, OVRS sent Ms. Cason a letter c10sing her file "because the Community Based Work Assessment showed you need more skills to get competitive work."
151. Ms. Cason expresses a strong interest in working in the community at a competitive wage. She would like to work with music, such as at a music store. Alternatively, she would like to work with food, but in a smaller environment such as an ice cream parlor. Primarily however, she wants "ajob that isn't boring."
152. Neither Ms. Cason's brokerage personal agent nor her previous employment provider provided the services and supports necessary to help. Ms. Cason fulfill her desire to work in the community at competitive employment. DHS and OVRS failed to adequately oversee the brokerage personal agent and employment provider in the development and implementation of an appropriate ISP for Ms. Cason. Additionally, DHS and OVRS have not provided supported employment services to allow Ms. Cason to work in the community.
153. Ms. Cason enjoys social interaction in the community and would benefit from a work opportunity with other individuals, including individuals without disabilities. She has expressed very clearly that she has been uninterested in and unchallenged by her workshop placements. Yet, in spite ofher expressed preferences, Ms. Cason has not been offered or provided any services to assist her in obtaining integrated employment.
(6) Lori Robertson 154. Lori Robertson is 51 years old. She has an intellectual disability. She is competent to make her own decisions. She lives in a group home in Portland, Oregon.
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155. Ms. Robertson has attended a sheltered workshop in Gresham, Oregon since 1981. She has been in this program for over three decades, yet has never had the opportunity to work in competitive employment.
156. The segregated sheltered workshop Ms. Robertson attends is large, segregated, 
 and crowded with approximately 70 individuals with disabilities performing mostly rote tasks. 

157. A recent Personal Focus Worksheet in Ms. Robertson's ISP indicates that she performs an average often different tasks per month at the workshop. In December 2011, she earned $126.15 for 53.9 hours work; in November 2011, she eamed $102.87 for 41.4 hours work; and in October 2011, she earned $128.43 for 52.5 hours work.
158. Ms. Robertson was referred to her current segregated workshop after graduating from school. From 2004-2008, she participated in an enclave that performedjanitorial work at the Department of Motor Vehicles. She also was part of another enclave that washed cars for the City of Portland. Both enclaves paid sub-minimum wages and were discontinued by the vocational agency. Since then, Ms. Robertson has had no other employment options other than the segregated sheltered workshop.
159. Ms. Robertson would like to earn at least minimum wage in an integrated environment in the community. Ms. Robertson enjoys many social activities in the community, including bowling, horseback riding, attending movies, and going out for meals. She also likes going on dates with her boyfriend and shopping. A Personal Focus Worksheet in her ISP states that she has very little money left after paying her bills. Ms. Robertson would clearly benefit from earning at least minimum wage and spending her day in the community, working at a real jobo
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160. Ms. Robertson's current ISP sets a workshop production goal so she can earn more money for recreational activities. The ISP states that the vocational program's supported employment department will reopen when more funding is available.
161. Despite the inclusion of a supported employment goal in her ISP and Ms. Robertson's express preference to work in the community, neither her case manager nor the employment provider has taken any actions to assist Ms. Robertson in attaining her goal of working in supported employment. Similarly, DHS and OVRS have failed to provide supported employment services to allow Ms. Robertson to achieve her employment goals and work in a real job in the community.
(7) Sparkle Green 162. Sparkle Green is 28 years old and has an intellectual disability, obesity, asthma and depression. She is competent to make her own decisions, although her mother is her Social Security representative payee. She lives in an adult foster home in Beaverton, Oregon. 163. Ms. Green has attended a sheltered workshop located in Beaverton, Oregon since December 2009. The workshop Ms. Green attends is a segregated, institution-like setting where individuals with disabilities have few opportunities to interact with non-disabled peers and little choice in determining which tasks they perform each day. 164. Her work record indicates her tasks at the sheltered workshop are mainly bagging, packaging and assembling items. Her Work/Activity Participation Records for December 2009 through November 2010 indicated that she was a good worker with almost perfect performance scores. Nevertheless, her pay records for December 2010 through October 2011 show that she is making very little money. For example, in August 2011, she eamed $26.59 for 58 hours work
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(less than 46 cents per hour); in September, $28.01 for 71 hours (39 cents per hour); and in 
 October, $9.90 for 34 hours (29 cents per hour). 

165. Ms. Green had experience with various integrated, volunteer work placements in her high school transition program, inc1uding stocking shelves in a drugstore, and boxing and stacking items at the Oregon Food Bank. Nevertheless, she was referred to a segregated sheltered workshop after transitioning from high school. She has never had the opportunity to work in competitive employment.
166. Ms. Green would very much like to work in an integratedjob in the community that pays at least minimum wage. In the most recent ISP, Ms. Green states in the section about what is most important to her: "1 would like a community jobo .." Her work records reflect that on April 5, 2011, she expressed frustration concerning her low wages and the workshop manager told her that although she was a very good worker, jobs in the community were not available at that time. No one has offered Ms. Green supported employment services or discussed integrated employment options.
167. Ms. Green's 2010 ISP inc1udes as an employment goal that Ms. Green remain at the sheltered workshop as a production worker. Ms. Green's 2011 ISP also contains the same goal, but states that ''job developer will consider Sparkle for appropriate jobs being developed as opportunitiesarise." However, the 2011 ISP contains no measurable action items, timelines, or responsibilities for achieving this goal, other than a mere notation that being a greeter would be a good job fit for Ms. Green.
168. Ms. Green's case manager, who is ultimately overseen by DHS, has failed to take any actions to meaningfully address, either through the ISP process or otherwise, Ms. Green' s
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desire to work in integrated employment in the community. DHS and OVRS have not provided sufficient supported employment services that would allow Ms. Green to work in an integrated environment.
169. Ms. Green is frustrated that she is being paid such little money for performing unstimulating and unrewarding tasks at the segregated sheltered workshop. She enjoys shopping, going to movies, and other activities that require financial resources that she would be better able to earn in a competitive employment setting.
(8) Zavier Kinville 170. Zavier Kinville is 27 years old and has an intellectual disability and glaucoma. He is competent to make his own decisions. He lives with his father in Gresham, Oregon. 171. Mr. Kinville started attending a segregated sheltered workshop in Gresham, Oregon in June, 2011. The sheltered workshop that Mr. Kinville attends has approximately 70 participants with disabilities, most ofwhom work together in two segregated, noisy rooms performing primarily rote tasks. Participants have little choice about the jobs they work on and have little or no contact with individuals without disabilities, other than paid staff. 172. Mr. Kinville's most recent earnings at the workshop were $223.06 for 44.87 hours in December 2011; $136.88 for 27.07 hours in November 2011; and $ 278.89 for 40 hours in October 2011. 173. Before coming to the workshop, Mr. Kinville was engaged in a number of volunteer activities in the community. His favorite job was being a volunteer reading to children for a semester.
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174. Mr. Kinville would like to be in competitive employment with more challenges and the opportunity to earn at least minimum wage.
175. Mr. Kinville' s 2010 ISP stated that he had worked with OVRS for several months but then his vocational training was terminated. Bis 2011 ISP contains a goal to attend a facility­ based employment program to learnjob skills, earn money, and participate in socialized activities and supervised activities with his peers. Although his ISPs state that he wants to find a program that will prepare him for a community job, the ISP contains no specific tasks, time frames, or benchmarks for beginning a search for integrated community employment. ' Mr. Kinville has proven himselfto be a motivated, productive worker, but there are no supports or opportunities available that would allow him to move from the segregated sheltered workshop to integrated employment.
176. Mr. Kinville's brokerage personal agent, who is ultimately overseen by DHS, has failed to ensure that Mr. Kinville's ISP inc1udes supports and services to reasonably allow Mr. Kinville to attain his goal of community employment. DHS and OVRS have not offered Mr. Kinville supported employment services that would allow him to meet his integrated employment goals.
(9) United Cerebral Palsy CUCP) 177. A core portion ofUCP's mission, and a central aspect ofits organization's activities, is to expand integrated employment for persons with intellectual and developmental disabilities. UCP, like several other organizations that assist and serve persons with intellectual and developmental disabilities, have devoted countless hours attempting - mostly unsuccessfully
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- to reducing DHS' excessive reliance on sheltered workshops and to expanding its provision of supported employment services.
178. VCP participates on several ODDS and OVRS task forces and cornmittees concerning employment, in an effort to enhance integrated employment. It has attended numerous meetings with representatives of ODDS, OVRS, and other state and local entities; testified at legislative hearings and in other forums; identified state-created barriers to integrated employment; helped draft reports and papers on improving access to competitive employment; and, together with other organizations, issued findings and formulated recornmendations for reducing segregated workshops and expanding supported employment services. None ofthese efforts have subst~tially reduced OpDS' reliance on sheltered workshops nor resulted in a substantial increase in supported employment services.
179. As a result, VCP is substantially limited in its ability to provide supported employment services to individuals with disabilities whom it serves. These individuals are then denied the employment supports they need to obtain and maintain competitive employment in integrated settings. VI. LEGAL CLAIMS
FIRST CLAIM FOR RELIEF 
 (The Americans with Disabilities Act) 
 180. The plaintiffs reallege paragraphs 1 through 179 as though fully set forth herein. 181. The named plaintiffs and the members of the plaintiff class, due to their intellectual and developmental disabilities, are individuals with disabilities within the meaning of
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the ADA. 42 U.S.C. § 12131(2). Plaintiffs and c1ass members are substantially limited in major life activities such as learning, working, and brain function.
182. The defendants, acting in their official capacities, are public entities within the meaning ofthe ADA.
183. The named plaintiffs and the plaintiff c1ass are qualified to participate in Oregon' s system of employment services for individuals with intellectual and developmental disabilities.
184. The defendants are violating Title II ofthe ADA and its implementing regulations by administering, funding, and operating its employment services system in a manner that unduly relies on segregated sheltered workshops and that fails to offer an adequate array of integrated employment and supported employment services to qualified persons with disabilities.
185. The defendants are'violating Title II ofthe ADA and its implementing regulations by unnecessarily segregating the named plaintiffs and members of the plaintiff class in sheltered workshops and by failing to provide them with supported employment services that would enable them to work in integrated employment settings.
186. The defendants are violating Title II ofthe ADA and its implementing regulations by discriminating against the named plaintiffs and members ofthe plaintiff c1ass on the basis of the severity of their disabilities, through their eligibility criteria, funding, and administration of supported employment services.
187. It would not fundamentally alter fue defendants' employment service system to provide the named plaintiffs and members of the plaintiff class with integrated employment and supported employment services that they need to avoid segregation in sheltered workshops.
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188. The defendants lack a comprehensive and effectively working plan of serving 
 persons with intellectual and developmental disabilities in integrated settings rather than 
 segregated workshops. 

SECOND CLAIM FOR RELIEF (Section 504 of the Rehabilitation Act) 189. The plaintiffs reallege paragraphs 1 through 188 as though fully set forth herein. 190. The named plaintiffs and the members ofthe plaintiff c1ass are qualified individuals with disabilities under Section 504 ofthe Rehabilitation Act. 29 U.S.C. § 794a. They are capable of working in integrated employment settings. 191. The defendants receive federal financial assistance for their programs and 
 activities. 
 192. The defendants are violating Section 504 ofthe Rehabilitation Act and its implementing regulations by administering, funding, and operating its employment services system in a manner that unduly relies on segregated sheltered workshops and that fails to offer an adequate array of integrated employment and supported employment services to qualified persons with disabilities. 193. The defendants are violating Section 504 and its regulations by subjecting the named plaintiffs and members of the plaintiff c1ass to unnecessary segregation at sheltered workshops and by failing to provide them with supported employment services that would enable them to work in integrated employrnent settings. 194. The defendants are violating Section 504 and its implementing regulations by discriminating against the named plaintiffs and members of the plaintiff c1ass on the basis of the
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severity oftheir disabilities, through their eligibility criteria, funding, and administration of supported employment services.
195. It would not fundamentally alter the defendants' employment service system to provide the named plaintiffs and members of the plaintiff c1ass with integrated employment and supported employment services that they need to avoid segregation in sheltered workshops.
196. The defendants lack a comprehensive and effectively working plan of serving persons with intellectual and developmental disabilities in integrated settings rather than segregated workshops. VII. PRAYERS FOR RELIEF
WHEREFORE, the named plaintiffs respectfully request that this Court: 1. Certify this case as a c1ass action pursuant to Fed. R. Civ. P. 23; 2. Issue a dec1aratory judgment that the defendants are violating the ADA and the Rehabilitation Act by needlessly segregating the named plaintiffs and members ofthe plaintiff c1ass in sheltered workshops and failing to provide them with supported employment programs in integrated settings. 3. Issue preliminary and permanent injunctions requiring the defendants:
a. To administer, fund, and operate its employment services system in a manner which does not relegate persons with intellectual and developmental disabilities to segregated workshops and which inc1udes an adequate array of integrated employment and supported employment services, as to avoid unnecessary segregation;
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b. To provide supported employment programs in integrated employment settings for all qualified c1ass members, consistent with their individual needs;
c. To develop and implement an Implementation Plan, approved by the Court, that describes each ofthe activities that must be undertaken to modify the defendants' employrnent service system, inc1uding infrastructure modifications, service definitions, provider development, staff training, family education, and interagency coordination.
4. Award the plaintiffs their reasonable attomeys' fees and costs pursuant to 42 US.C. § 12205 and 29 U.S.C. § 794a; and
5. Grant any other reliefwhich is necessary and proper to protect the federal rights of the named plaintiffs and the c1ass they represent.
DATED this 25th day of January, 2012. 
 Respectfully submitted, 

Káthleen L. Wilde, OSB No. 971053 E-mail: kwilde@disabilityrightsoregon.org James A. Wrigley, OSB No. 904134 E-mail: jwrigley@disabilityrightsoregon.org Theodore E. Wenk, OSB No. 001239 E-mail: ted@disabilityrightsoregon.org 620 S.W. Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 243-2081 Fax: (503) 243-1738
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ÑllL~a~ 

Bruce A. Rubin, OSB No. 763185 
 E-mail: bruce.rubin@millemash.com 
 Justin C. Sawyer, OSB No. 014057 
 E-mail: justin.sawyer@millemash.com 
 Jennifer J. Roof, OSB No. 001586 
 E-mail: jennifer.roof@millemash.com 
 111 S.W. Fifth Avenue, Suite 3400 
 Portland, Oregon 97204 
 Telephone: (503) 224-5858 
 Fax> (503) 224-0155 

P~---
Stephen F. English, OSB No. 730843 . E-mail:senglish@perkinscoie.com
Lawrence H. Reichman, OSB No. 860836 E-mail: lreichman@perkinscoie.com Nathan R. Christensen, OSB No. 093129 E-mail: nchristensen@perkinscoie.com 1120 N.W. Couch Street, Tenth Floor Portland, Oregon 97209 Telephone: (503) 727-2000 Fax: (503) 727-2222
CENTER FOR PUBLIC REPRESENTATION Steven J. Schwartz (pro hac vice application pending) E-mail: sschwartz@cpr-ma.org Cathy E. Costanzo (pro hac vice application pending) E-mail: ccostanzo@cpr-ma.org Bettina Toner (pro hac vice application pending) E-mail: btoner@cpr-ma.org 22 Green Street Northampton, Massachusetts 01060 Telephone: (413) 586-6024 Fax: (413) 586-5711
Attarneyslar Plaintiffs
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 </s> Case 3:12-cv-00138-ST Document 34 Filed 04/20/12 Page 1 of 19 Page ID#: 329
THOMAS E. PEREZ Assistant Attorney General EVE HILL Senior Counselor to the Assistant Attorney General ALISON BARKOFF Special Counsel for Olmstead Enforcement ALLISON J. NICHOL Chief SHEILA FORAN Special Legal Counsel ANNE RAISH Deputy Chief MAX LAPERTOSA Trial Attorney Max.Lapertosa@usdoj.gov Civil Rights Division, Disability Rights Section U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 Telephone: (202) 305-1077 Facsimile: (202) 514-1116
S. AMANDA MARSHALL, OSB #95347 United States Attorney District of Oregon ADRIAN L. BROWN, OSB #05020 adrian.brown@usdoj.gov Assistant United States Attorney United States Attorney’s Office District of Oregon 100 SW Third Avenue, Suite 600 Portland, Oregon 97204-2902 Telephone: (503) 727-1003 Facsimile: (503) 727-1117
Attorneys for the United States of America

Case 3:12-cv-00138-ST Document 34 Filed 04/20/12 Page 2 of 19 Page ID#: 330

UNITED STATES DISTRICT COURT DISTRICT OF OREGON

PAULA LANE, et al, Plaintiffs,
v. JOHN KITZHABER, in his official capacity as the Governor of Oregon, et al.,
Defendants.

Case No. 3:12-cv-00138-ST
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA IN SUPPORT OF PLAINTIFFS REGARDING DEFENDANTS’ MOTION TO DISMISS

I. INTRODUCTION

The United States respectfully submits this Statement of Interest pursuant to 28 U.S.C. § 5171 regarding Defendants’ Motion to Dismiss (ECF Nos. 29-30), in order to clarify to the Court

the proper scope and application of the integration regulation of Title II of the Americans with

Disabilities Act (ADA), 42 U.S.C. § 12132, to Plaintiffs’ claims of unnecessary segregation in

sheltered workshops by Defendants. The integration regulation provides 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).2 The “most

integrated setting,” in turn, means one that “enables individuals with disabilities to interact with

1 Under 28 U.S.C. § 517, “[t]he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.”
2 Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, contains an identical regulation issued by the Attorney General. 28 C.F.R. § 41.51(d). These regulations have been read in tandem to provide similar protections to persons with disabilities. See Olmstead v. L.C., 527 U.S. 581, 591 (1999).

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nondisabled persons to the fullest extent possible …” 28 C.F.R. Pt. 35, App. B at 673. Based on

these regulations, the Supreme Court has held that the “unjustified isolation” of persons with

disabilities by States constitutes discrimination under Title II. Olmstead v. L.C., 527 U.S. 581,

600 (1999).

As authorized by Congress, see 42 U.S.C. § 12134, the U.S. Department of Justice

enacted these regulations to implement the ADA’s broad mandate to end the pervasive

segregation of persons with disabilities in all facets of life, including employment, public

accommodations, and services, programs and activities of state and local governments. See

42 U.S.C. § 12101(a)(2) (“[H]istorically, society has tended to isolate and segregate individuals

with disabilities, and, despite some improvements, such forms of discrimination against

individuals with disabilities continue to be a serious and pervasive social problem.”). Consistent

with this mandate, the integration regulation, by its own terms, applies to all “services, programs

and activities” of a public entity, including segregated, non-residential employment and

vocational programs such as sheltered workshops. See 28 C.F.R. § 35.130(d). Accordingly, the

Department has interpreted the integration regulation to prohibit the unnecessary provision of

such services to persons with disabilities in segregated sheltered workshops, in which persons

with disabilities have little to no opportunity to interact with non-disabled persons. See, e.g.,

“Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of

the Americans with Disabilities Act and Olmstead v. L.C.” at 3 (June 22, 2011), available at:

http://www.ada.gov/olmstead/q&a_olmstead.htm.

As the agency charged by Congress with enforcing and implementing regulations under

Title II, the Department’s interpretation of both Title II and the integration regulation has been

accorded substantial deference. See Olmstead, 527 U.S. at 597-98; M.R. v. Dreyfus, 663 F.3d

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1100, 1117 (9th Cir. 2011). The Department’s interpretation of the integration regulation must be upheld “unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997). Accordingly, the United States believes that its views will be of interest to the Court in resolving Defendants’ Motion to Dismiss. Furthermore, the United States has an interest in ensuring the appropriate and consistent interpretation of Title II and the integration regulation. See M.R., 663 F.3d at 1117-18 (“DOJ’s interpretation is not only reasonable; it also better effectuates the purpose of the ADA ‘to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.’”) (quoting 42 U.S.C. § 12101(b)(2)). The United States additionally requests that, should the Court hear oral argument on Defendants’ Motion, the United States be permitted to participate.3
II. BACKGROUND AND SUMMARY OF ARGUMENT Plaintiffs in the instant suit are alleged to be persons with intellectual or developmental
disabilities who receive, or will receive, employment and vocational services from Defendants. (Compl. ¶¶ 1-2, 32, ECF No. 1) Their Complaint asserts that they want to and are capable of working in integrated employment settings with appropriate supports and services, known generally as “supported employment” services, but have instead been placed in sheltered workshops, in which they have little or no opportunity to interact with non-disabled workers or learn valuable skills that would assist them in working in competitive employment. (Id. ¶¶ 1-4) Plaintiffs allege that this segregation is attributable to Defendants’ systematic failure to provide, fund or make available sufficient, integrated supported employment services, in violation of Title II of the ADA and Section 504 of the Rehabilitation Act. (Id. ¶¶ 6, 8)

3 A hearing on Defendants’ Motion is currently scheduled for May 10, 2012. (See ECF No. 28.)

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The facts alleged in Plaintiffs’ Complaint properly state a claim under Title II of the ADA and the integration regulation.4 The ADA was enacted to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,” 42 U.S.C. § 12101(b)(1), including, specifically, “segregation” and actions that prevent persons with disabilities from “fully participat[ing] in all aspects of society.” Id. § 12101(a)(1) & (5). Furthermore, Congress found that “the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.” Id. § 12101(a)(7). The integration regulation was designed to implement this national mandate against segregation by prohibiting State and local governments from unnecessarily segregating persons with disabilities in all programs and services they provide, including employment and vocational services. The integration regulation is, therefore, not limited to residential services.
In addition, Plaintiffs’ Complaint seeks to have Defendants provide or make available those vocational and employment services Defendants already provide in segregated sheltered workshops in integrated community settings. Such services would typically take the form of supported employment services designed to help persons with disabilities find and maintain competitive employment. The Court may properly award such relief if it finds that Defendants violated the integration regulation by unnecessarily segregating Plaintiffs in sheltered workshops. As a modified form of the vocational services already provided in sheltered
4 To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).

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workshops, supported employment services constitute appropriate relief for violations of the

integration regulation. See Townsend v. Quasim, 328 F.3d 511, 517 (9th Cir. 2003);

Radaszewski v. Maram, 383 F.3d 599, 611 (7th Cir. 2004). Furthermore, Defendants already

provide supported employment services to some persons with developmental or intellectual

disabilities, though not to the extent necessary to ensure that all persons with disabilities are not

unnecessarily segregated in sheltered workshops. (See Compl. ¶ 5)

III. ARGUMENT

A. Title II and the Integration Regulation Apply to All “Services, Programs and Activities” of a Public Entity, and Not Solely to Residential Services_

1. The Broad Remedial Language of Title II

Title II of the Americans with Disabilities Act states as follows:

[N]o 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.

42 U.S.C. § 12132. “Quite simply, the ADA’s broad language brings within its scope ‘anything

a public entity does.’” Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001) (quoting

Pa. Dep’t of Corr. v. Yeskey, 118 F.3d 168, 171 & n.5 (3d Cir. 1997), aff’d, 524 U.S. 206

(1998)). “Courts must construe the language of the ADA broadly in order to effectively

implement the ADA's fundamental purpose of ‘providing a clear and comprehensive national

mandate for the elimination of discrimination against individuals with disabilities.’” Hason v.

Med. Bd., 279 F.3d 1167, 1172 (9th Cir. 2002) (quoting Arnold v. United Parcel Serv., 136 F.3d

854, 861 (1st Cir. 1998)). Accordingly, both the Supreme Court and the Ninth Circuit have

applied Title II to a wide range of public services, programs and activities, including

courthouses, see Tennesee v. Lane, 541 U.S. 509, 527 (2004), prisons, see Yeskey, 524 U.S. at

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209, parole hearings, see Thompson v. Davis, 282 F.3d 780, 786-87 (9th Cir. 2002), zoning, see Bay Area Addiction, Research and Treatment v. City of Antioch, 179 F. 3d 725, 731 (9th Cir. 1999), health care, see Rodde v. Bonta, 357 F.3d 988, 995 (9th Cir. 2004), and public sidewalks, see Barden v. City of Sacramento, 292 F.3d 1073, 1074 (9th Cir. 2002). See also McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (enforcement of nuisance abatement ordinance); Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th Cir. 1996) (“Congress intended to prohibit outright discrimination, as well as those forms of discrimination which deny disabled persons public services disproportionately due to their disability.”)
Title II forms part of the ADA’s clear and comprehensive national mandate to end the segregation of persons with disabilities in virtually all aspects of American life, including employment, public accommodations, and transportation. As Congress found, “[i]ntegration is fundamental to the purposes of the ADA. Provision of segregated accommodations and services relegate persons with disabilities to second-class citizen status.” See H.R. Rep. No. 485, at 26 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 449; see also 28 C.F.R. Pt. 35, App. B (same).5 Accordingly, the ADA prohibits employers from “segregating” job applicants or employees based on their disability, 42 U.S.C. § 12112(b)(1), and similarly prohibits private places of

5 Upon signing the ADA in 1990, President George H.W. Bush compared the event to the recent fall of the Berlin Wall and remarked that the ADA “takes a sledgehammer to another wall, one which has for too many generations separated Americans with disabilities from the freedom they could glimpse, but not grasp.” He further stated that persons with disabilities “want to work, and they can work, and this is a tremendous pool of people … who will bring to jobs diversity, loyalty, proven low turnover rate, and only one request: the chance to prove themselves.” He predicted that the ADA would allow persons with disabilities to “move proudly into the economic mainstream of American life, and that's what this legislation is all about.” Remarks of President George H.W. Bush at the Signing of the Americans with Disabilities Act (Jul. 26, 1990), available at: http://www.eeoc.gov/eeoc/history/35th/videos/ada_signing_text.html.

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public accommodation from providing “separate” benefits, services or facilities, except when doing so is “necessary” to provide equally effective services. Id. § 12182(b)(1)(A)(iii).6 Additionally, public accommodations must affirmatively “take steps to ensure” that persons with disabilities are not “segregated or otherwise treated differently” from non-disabled individuals due to “the absence of auxiliary aids and services”. Id. § 12182(b)(2)(A)(iii).
2. The U.S. Department of Justice Has Interpreted the Integration Regulation to Applies to All Segregated Services, Programs and Activities, Including Non-Residential Programs______________
Congress’ findings in enacting the ADA make clear that the ADA was intended to remedy and reverse all types of segregation facing persons with disabilities, not just in where they lived. For example, Congress found that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2). Congress further found that “individuals with disabilities continually encounter various forms of discrimination, including … segregation[] and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities …” Id. § 12101(a)(5) (emphasis added).
The Department of Justice has long interpreted the integration regulation to apply to all programs, services and activities of public entities. For example, the Department’s 1993 Technical Assistance Manual for Title II states that “[a] primary goal of the ADA is the equal participation of individuals with disabilities in the ‘mainstream’ of American society,” meaning that “[i]ndividuals with disabilities must be integrated to the maximum extent appropriate” and

6 Public entities are subject to the same employment discrimination provisions as private employers under these provisions. See 28 C.F.R. § 35.140.

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“cannot be excluded from the regular program, or required to accept special services or benefits” unless necessary to afford them equal opportunity. ADA Title II Technical Assistance Manual § II-3.4000 (1993), available at: http://www.ada.gov/taman2.html. The Technical Assistance Manual further provides numerous examples of public services, programs and activities where the integration regulation applies, including museums, schools, recreational activities, and state motor vehicle departments. Id. §§ II-3.4100 – 3.4400.
In confirming that the integration regulation also applies to residential and health services, the Supreme Court noted that the “unjustified isolation” of persons with disabilities “is properly regarded as discrimination based on disability”. Olmstead, 527 U.S. at 600.7 This reflects “two evident judgments”: “First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Id. at 600. “Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 601.
Olmstead was brought by, and thus decided in the context of, two women with developmental disabilities who were challenging their unnecessary segregation in a residential institution owned and operated by the State. Id. at 593. Nevertheless, neither the principles of the decision nor the integration regulation is limited to the decision’s particular facts. Thus,

7 As a result, “[t]he Supreme Court has … foreclosed the … ‘comparative’ approach to determining whether an individual was discriminated against because of his disability.” McGary, 386 F.3d at 1266 (citing Olmstead, 527 U.S. at 598); see also Henrietta D. v. Bloomberg, 331 F.3d 261, 276 (2d Cir. 2003) (Olmstead “appeared to reject the suggestion that every ADA claim must necessarily include proof of disparate impact”).

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courts have applied the Olmstead Court’s analysis to numerous other facts and circumstances involving the unjustified isolation of persons with disabilities, including claims by persons with physical or non-mental disabilities, see, e.g., M.R., 663 F.3d at 1102, claims to prohibit unnecessary segregation in private segregated facilities funded under the state’s disability services system, see, e.g., Voss v. Rolland, 592 F.3d 242, 246-47 (1st Cir. 2010), and claims to prohibit cuts to community services that would place persons at risk of unnecessary institutionalization. See, e.g., M.R., 663 F.3d at 1118; Radaszewski, 383 F.3d at 601; Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1182 (10th Cir. 2003).
Just as the text of Title II and the integration regulation is not restricted to persons with mental disabilities, to state-owned facilities, or to persons already institutionalized, so too is this statutory and regulatory text not limited solely to residential settings. Accordingly, the U.S. Department of Justice has continued to make clear that the integration regulation prohibits the unnecessary segregation of persons with disabilities by public entities in non-residential settings, including segregated sheltered workshops. The Department affirmed this position in an interpretive statement issued on June 22, 2011. Under Question 1, “What is the most integrated setting under the ADA and Olmstead,” the Department wrote:
Integrated services are those that provide individuals with disabilities opportunities to live, work, and receive services in the greater community, like individuals without disabilities. Integrated settings are located in mainstream society; offer access to community 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. … Segregated settings include, but are not limited to, … settings that provide for daytime activities primarily with other individuals with disabilities. “Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C.” 3 (June 22, 2011) (emphasis Page - 10 STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA
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added), available at: www.ada.gov/olmstead/q&a_olmstead.htm.8 The Department further wrote that a “comprehensive, effectively working plan” written pursuant to Olmstead9 must
“include commitments for each group of persons who are unnecessarily segregated,” including
“individuals spending their days in sheltered workshops or segregated day programs.” Id. at 7.
Finally, the Department wrote that appropriate remedies under the integration mandate include “supported employment.” Id. at 8.10 The Department has also sought integrated supported
employment services as a remedy in cases brought to enforce the integration regulation. See,
e.g., United States v. Virginia, No. 3:12-CV-059, ECF No. 2-2 (E.D. Va., settlement agreement
filed Jan. 26, 2012); United States v. Delaware, No. 11-CV-591, ECF Nos. 6-7, (D. Del.,
settlement agreement entered Jul 18, 2011); United States v. Georgia, No. 1:10-CV-249-CAP,
ECF Nos. 112, 115 (N.D. Ga., settlement agreement entered as modified Nov. 1, 2010).
8 See also Community-Based Alternatives for Individuals with Disabilities, Exec. Order No. 13217, 66 Fed. Reg. 33,155 (Jun. 21, 2001) (“The Federal Government must assist States and localities to implement swiftly the Olmstead decision, so as to help ensure that all Americans have the opportunity to live close to their families and friends, to live more independently, to engage in productive employment, and to participate in community life.”) (emphasis added).
9 See 527 U.S. at 605-06 (“If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated, the reasonable-modifications standard [of the ADA] would be met.”).
10 The Centers for Medicare and Medicaid Services (CMS), which oversees Medicaid, has also recognized Olmstead’s application to non-residential employment and vocational services provided under Medicaid. CMS has stated that States “have obligations pursuant to … the Supreme Court’s Olmstead decision” requiring that “an individual’s plan of care regarding employment services should be constructed in a manner that … ensures provision of services in the most setting appropriate.” CMCS Informational Bulletin 5 (Sept. 16, 2011) (emphasis added), available at: www.cms.gov/CMCSBulletins/download/CIB-9-16-11.pdf.
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3. Judicial Deference Afforded to the Department of Justice Regarding the Integration Regulation________________
As the agency directed by Congress with issuing regulations under Title II, the Department of Justice’s regulations are “entitled to deference.” Bragdon v. Abbott, 524 U.S. 624, 646 (1998); see also Olmstead, 527 U.S. at 597-98 (“Because the Department is the agency directed by Congress to issue regulations implementing Title II … its views warrant respect.”). An agency’s interpretation of its own regulation is “controlling unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997); Barden, 292 F.3d at 1077.
The Ninth Circuit recently affirmed this principle in M.R. v. Dreyfus by strongly deferring to the Department of Justice’s interpretation of the integration regulation as stated in a Statement of Interest brief filed with the district court, holding that “[w]e afford DOJ’s view considerable respect. … We also defer to an agency’s reasonable interpretation of its own statutorily authorized regulations.” 663 F.3d at 1117 (citations omitted).11
4. The Department of Justice’s Interpretation of the Integration Regulation is Reasonable and Should be Upheld___________
The Department’s position that the integration regulation includes both residential and non-residential segregated settings is clearly reasonable and not “plainly erroneous or inconsistent with the regulation.” See Auer, 519 U.S. at 461. First, the plain language of both the integration regulation and Title II contains nothing that would even suggest, let alone expressly state, that the mandate of public entities to provide services in the “most integrated
11 Defendants have cited M.R. as authoritative and controlling. (See Defs.’ Mem. of Law in Supp. Mot. to Dismiss (“Defs.’ Mem. of Law”) at 5-10, ECF No. 30.)
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setting” is limited to residential services only. Indeed, the terms “residential” or “institution” appear nowhere in the integration regulation. See 28 C.F.R. § 35.130(d). The Department’s interpretation is also consistent with Congress’ findings in enacting the ADA to address the “isolation” and “segregation” of persons with disabilities without limitation to residential settings or placements. See 42 U.S.C. §§ 12101(a)(2), 12101(a)(5).
Additionally, the same reasoning underlying Olmstead’s analysis of residential settings applies to sheltered workshops. Just as “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life,” see 527 U.S. at 600, the unwarranted placement of persons with disabilities in sheltered workshops similarly perpetuates “unwarranted assumptions” that such persons are “incapable or unworthy” of working in competitive employment or interacting with non-disabled co-workers or customers. Likewise, placement in sheltered workshops “severely diminishes everyday life activities” for persons with disabilities, in particular their “social contacts, work options, [and] economic independence ...” See id. at 601. Cf. Halderman v. Pennhurst State Sch. & Hosp., 154 F.R.D. 594, 601 (E.D. Pa. 1994) (finding that class members with developmental disabilities “remain in sheltered workshops where they earn a fraction of what they could earn in the community.”); Homeward Bound, Inc. v. Hissom Mem. Ctr., No. 85-C-437-E, 1987 U.S. Dist. LEXIS 16866, *43 (N.D. Okla. Jul. 24, 1987) (“Whereas sheltered workshops and work activity centers were previously considered the only possible place in which to employ people with disabling conditions, now many professionals consider these places the last resort when every other employment option has failed.”). The Department’s interpretation is therefore supported by the Congressional findings, the plain language, and the underlying reasoning of the integration regulation. Page - 13 STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA
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5. Application of the Integration Regulation Does Not Depend Upon the Length of Time in Which Persons with Disabilities Are Unnecessarily Segregated__________________________________
Defendants appear to argue that they do not segregate Plaintiffs for long enough periods of time to violate the integration regulation. (See Defs.’ Mem. of Law at 11) However, just as the broad language of Title II and the integration regulation covers all services, programs and activities of a public entity, so too does it cover all segregated programs and activities regardless of their duration or the amount of time spent in them by persons with disabilities. The issue, rather, is whether persons with disabilities are interacting with non-disabled persons “to the fullest extent possible.” See 28 C.F.R. Pt. 35, App. B at 673. Thus, the placement of persons with disabilities in segregated sheltered workshops on even a part-time basis, when they could be spending these hours working in the community with appropriate supports and services, is sufficient to state a claim under Title II and the integration regulation.
In K.M. v. Hyde, 381 F. Supp. 2d 343 (S.D.N.Y. 2005), the court applied the integration regulation and Olmstead to the segregation of a student with disabilities during his lunch hour, finding as follows:
[U]nnecessary social isolation has been considered a form of actionable discrimination. … Plaintiff’s claims related to the lunchtime isolation appear to be such a claim. Admittedly, eating lunch is not the same thing as institutionalization. However, the comments of the Olmstead Court about the effects of needlessly relinquishing participation in community life apply here. Eating lunch with other students could be considered an integral part of the public school experience, one in which D.G. would be entitled to participate if a reasonable accommodation for his disability would make it possible. Id. at 360; see also 28 C.F.R. Pt. 35, App. B (“For example, it would be a violation of [the integration regulation] to require persons with disabilities to eat in the back room of a
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government cafeteria or to refuse to allow a person with a disability the full use of recreation or exercise facilities because of stereotypes about the person's ability to participate.”).
In this case, the discriminatory impact of this segregation is heightened by the fact that, according to the Complaint, sheltered workshops are the only opportunity Plaintiffs have to access employment of any type.12 (See Compl. ¶¶ 119, 127, 132, 142, 153, 155, 165, 176) Defendants have likewise not argued that they provide Plaintiffs with some integrated and some segregated programs. Rather, all employment services provided to Plaintiffs are segregated, thus creating a completely segregated program for Plaintiffs.
B. Supported Employment Services Are Not a “New” Service and Are Already Provided by Defendants______________________________
In their Complaint, Plaintiffs allege that Defendants have “fail[ed] to provide them with supported employment services that would enable them to work in integrated employment settings.” (Compl. ¶ 185) Likewise, under their Prayers for Relief, Plaintiffs request that the Court order Defendants “[t]o provide supported employment programs in integrated community settings for all qualified class members, consistent with their individual needs …” (Compl. § VII, ¶ 3b) Thus, Plaintiffs have not sought “a job in the community,” as Defendants assert (see Defs.’ Mem. of Law at 12) but, rather, the supports and services necessary to provide them the opportunity to find and keep such a job. This is appropriate relief for a violation of the integration regulation.
12 Plaintiffs are therefore not “at risk” of being segregated, but are already receiving employment and vocational services in a segregated setting, namely sheltered workshops. Accordingly, Defendants’ discussion of whether Plaintiffs are “at risk” of residential institutionalization under Dykes v. Dudek, No. 4:11cv116/RS-WCS, 2011 U.S. Dist. LEXIS 119249, **13-15 (N.D. Fla. Oct. 14, 2011) is inapposite. (See Defs.’ Mem. of Law at 10) In addition, Dykes concerned a motion for class certification and not a motion to dismiss. Page - 15 STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA
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Defendants already provide employment and vocational services to Plaintiffs in
segregated sheltered workshops. Plaintiffs have simply requested that these supports and
services be provided instead in integrated community settings, where they would take the
modified form of supported employment services. Such modifications do not preclude the
availability of these services as a remedy. In Townsend v. Quasim, 328 F.3d 511 (9th Cir.
2003), the Ninth Circuit rejected the contention that the provision of in-home nursing services, as
opposed to care in a nursing home, constituted a “new” service that the State need not provide:
Characterizing community-based provision of services as a new program of services not currently provided by the state fails to account for the fact that the state is already providing those very same services. If services were determined to constitute distinct programs based solely on the location in which they were provided, Olmstead and the integration regulation would be effectively gutted. States could avoid compliance with the ADA simply by characterizing services offered in one isolated location as a program distinct from the provision of the same services in an integrated location.
Id. at 517.
Similarly, in Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004), the Seventh Circuit
refused to find that the provision of a 24-hour private duty nurse in the plaintiff’s home
constituted a “new” service based on the State’s contention that it would not provide such a
service even in a nursing home:
Nothing in the regulations promulgated under the ADA or the Rehabilitation Act or in the Court's decision in Olmstead conditions the viability of a Title II or section 504 claim on proof that the services a plaintiff wishes to receive in a community-integrated setting already exist in exactly the same form in the institutional setting. Although a State is not obligated to create entirely new services or otherwise alter the substance of the care that it provides to Medicaid recipients in order to accommodate an individual’s desire to be cared for at home, the integration mandate may well require the State to make reasonable modifications to the form of existing services in order to adopt them to community-based settings. … If variations in the way services are delivered in different settings were enough to defeat a demand for more community-integrated
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care, then the integration mandate of the ADA and the Rehabilitation Act would mean very little.
Id. at 611.
The reasoning of the Ninth Circuit in Townsend and the Seventh Circuit in Radaszewski
also applies to Plaintiffs’ claims here. While supported employment services in the community
may take a different form from those provided in sheltered workshops, the services provided in
both settings are in essence the same: employment and vocational services designed to assist
persons with disabilities in finding employment. For purposes of a claim under the integration
regulation, the only material difference is “in what location these services will be provided.”
Townsend, 328 F.3d at 517. Accordingly, supported employment services are an appropriate
remedy to Plaintiffs’ claims under the integration regulation.13
Finally, it bears noting that Plaintiffs have alleged – and Defendants have not contested –
that Defendants already provide supported employment services to some persons with
disabilities, albeit in insufficient numbers to serve all who might need them. (See Compl. ¶ 5)
Indeed, according to Plaintiffs, Oregon “was once a leader in recommending and promoting
13 Defendants’ final contention that Plaintiffs’ claims should be dismissed because they “are ultimately based upon allegations that the defendants are not meeting their [Plaintiffs’] preferred standard of care with respect to employment services” (see Defs.’ Mem. of Law at 1314) also misunderstands Plaintiffs’ claims. The factual allegations Defendants have cited from Plaintiffs’ Complaint pertain not to the “standard of care” Defendants have provided, but rather to those methods of administering employment services that operate to deny Plaintiffs supported employment services in the community. These allegations thereby support Plaintiffs’ requested relief that Defendants “administer, fund and operate its employment services system in a manner which does not relegate persons with intellectual and developmental disabilities to segregated workshops …” (Compl. § VII, ¶ 3a) See Conn. Office of Prot. and Advocacy v. Connecticut, 706 F. Supp. 2d 266, 276 (D. Conn. 2010) (“[T]he plaintiffs do not request … that the individual Plaintiffs receive a certain level of care, but rather that the defendants cease using methods of administration that subject individuals with disabilities to discrimination and, instead, administer their programs and services in a manner that leads to the most integrated setting appropriate for each putative class member’s needs.”). Page - 17 STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA
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Case 3:12-cv-00138-ST Document 34 Filed 04/20/12 Page 18 of 19 Page ID#: 346 integrated employment, such as supported employment services, for individuals with developmental disabilities.” (Id. ¶ 98) Plaintiffs have further alleged that, under three Systems Change grants in the 1980s and 1990s, Oregon developed new supported employment programs and converted some segregated work programs to supported employment programs. (Id. ¶ 96) These allegations are sufficient at this stage to show that Defendants are aware of, and are capable of providing, the modifications to their employment services program to allow persons with disabilities to transition from segregated sheltered workshops to community employment settings.
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IV. CONCLUSION

For the reasons stated above, the United States respectfully requests that this Court deny

Defendants’ Motion to Dismiss and find that Plaintiffs have stated a valid cause of action.

Dated: April 20, 2012

RESPECTFULLY SUBMITTED,

AMANDA MARSHALL United States Attorney

THOMAS E. PEREZ Assistant Attorney General EVE HILL Senior Counselor to the Assistant Attorney General ALISON BARKOFF Special Counsel for Olmstead Enforcement Civil Rights Division

s/ Adrian Brown ADRIAN BROWN Assistant United States Attorney 1000 SW Third Avenue Suite 600 Portland, OR 97204 Tel: (503) 727-1000

s/ Max Lapertosa ALLISON J. NICHOL Chief SHEILA FORAN Special Legal Counsel ANNE RAISH Deputy Chief MAX LAPERTOSA Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 Tel: (202) 305-1077 Fax: (202) 514-1116 E-mail: Max.Lapertosa@usdoj.gov

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 </s> UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

PAULA LANE; ANDRES PANIAGUA; ELIZABETH HARRAH; ANGELA KEHLER; GRETCHEN CASON; LORI ROBERTSON; SPARKLE GREEN; and ZAVIER KINVILLE, on behalf of themselves and all other similarly situated, and UNITED CEREBRAL PALSY ASSOCIATION OF OREGON AND SOUTHWEST WASHINGTON, INC.,
Plaintiffs,
v.
JOHN KITZHABER, Governor of the State of Oregon; ERINN KELLEY-SIEL, Director of the Oregon Department of Human Services; MARY LEE FAY, Administrator of the Office of Developmental Disability Services; and STEPHAINE PARRISH TAYLOR, Administrator of the Office of Vocational Rehabilitation Services,
Defendants.

3:12-cv-00138 -ST OPINION AND ORDER

STEWART, Magistrate Judge: INTRODUCTION
Plaintiffs filed this class action alleging violations of Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 USC §§ 12131-34 (“First Claim”) and Section 504 of the

1 – OPINION AND ORDER

Rehabilitation Act of 1973, 29 USC § 794(a) (“Second Claim”) against the Oregon Department of Human Services (“DHS”) and various state officials including Oregon’s governor (John Kitzhaber), the Director of DHS (Erinn Kelley-Siel), the Administrator of the Office of Developmental Disability Services (“ODDS”) (Mary Lee Fay), and the Administrator of the Office of Vocational Rehabilitation Services (“OVRS”) (Stephaine Parrish Taylor).
Plaintiffs are eight individuals with intellectual or developmental disabilities, each of whom qualifies for and receives employment services from DHS. Each plaintiff is able and would prefer to work in an integrated employment setting. Plaintiffs allege that, despite their preference to work in such a setting, they and thousands of similarly situated individuals remain unnecessarily segregated in sheltered workshops and are denied virtually all contact with nondisabled persons in these workshops as a result of DHS’s administration, management, and funding of its employment service system.
Defendants have now filed a Motion to Dismiss (docket #29). All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c) (docket #38). For the reasons that follow, defendants’ motion is GRANTED and plaintiffs’ claims are DISMISSED WITH LEAVE TO AMEND.
DISCUSSION I. Legislative and Regulatory Scheme
The ADA and the Rehabilitation Act impose virtually identical obligations on public entities or programs receiving federal financial assistance. Both prohibit discrimination, mandate the administration of services in the most integrated setting appropriate, and relieve affected entities of that obligation only where the modifications would fundamentally alter the nature of the service (ADA) or impose an undue hardship (Rehabilitation Act).
2 – OPINION AND ORDER

Title II of the ADA prohibits discrimination against disabled persons by any public entity: “[N]o 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.” 42 USC § 12132. A “qualified individual with a disability” is one 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.” 42 USC § 12131(2). The term “public entity” is defined to include “any State or local government,” as well as “any department, agency, special purpose district or other instrumentality of a State . . . or local government.” 42 USC § 12131(1)(a)(A), (B).
Pursuant to Title II of the ADA, the Attorney General has promulgated a regulation providing 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 CFR § 35.130(d) (Complaint, ¶ 44). The “most integrated setting appropriate” is defined as “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 CFR Pt. 35, App. A (2010) (Complaint, ¶ 45). However, this so-called “integration mandate” is not unqualified. A public entity must make “reasonable modifications” to avoid unduly segregating the disabled, but is relieved of that obligation if it can show “that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 CFR § 35.130(b)(7) (Complaint, ¶ 50).
The Rehabilitation Act, which applies to programs receiving federal financial assistance, contains a similar anti-discrimination provision, 29 USC § 794(a), and a parallel regulation
3 – OPINION AND ORDER

requiring that an agency administer its programs and activities “in the most integrated setting appropriate to the needs of qualified handicapped persons.” 28 CFR § 41.51(d) (Complaint, ¶ 46). Consistent with the ADA’s regulatory scheme, the integration mandate of the Rehabilitation Act is limited by regulatory provisions indicating that a recipient of federal funding need not accommodate a disabled person when the proposed accommodation would impose an “undue hardship” on the recipient. 28 CFR §§ 41.53, 42.511(c); 45 CFR § 84.12(c). II. Allegations
The eight individual plaintiffs are intellectually or developmentally disabled persons who reside in the community. Complaint, ¶¶ 112 (Paula Lane lives in an apartment with staff support), 120 (Andres Paniagua lives with his mother), 129 (Elizabeth Harrah lives in an adult foster home), 135 (Angela Kehler lives in a group home with other disabled individuals), 144 (Gretchen Cason lives with her parents), 154 (Lori Robertson lives in a group home), 162 (Sparkle Green lives in an adult foster home), 170 (Zavier Kinville lives with his father). Plaintiffs do not allege that defendants’ alleged actions or inactions have created a risk that any of them will be forced to live in an institution.
Seven of the eight plaintiffs work in sheltered workshops. Id, ¶¶ 113, 121, 130, 136, 155, 163, 171. Ms. Cason, worked at a sheltered workshop in and prior to December 2010. Id, ¶¶ 146-48. Sheltered workshops are segregated employment settings that employ people with disabilities or where people with disabilities work separately from others. Id, ¶ 3. Plaintiffs prefer to receive supported employment services1 which would prepare and allow them to work in an “integrated employment setting,” which they define as a “real job in a community-based
1 Plaintiffs define supported employment services as “vocational training services that prepare and allow people with intellectual and developmental disabilities to participate in integrated employment.” Complaint, ¶ 4.
4 – OPINION AND ORDER

business setting, where employees have an opportunity to work alongside non-disabled coworkers and earn at least minimum wage.” Id, ¶¶ 2, 4, 119, 125-28, 132-34, 140-43, 151-53, 159-61, 166-68, 174-76.
DHS has developed, adopted, and promoted an “Employment First Policy” premised on data indicating that integrated employment has better outcomes than segregated employment and that through a person-centered planning process, individuals with disabilities can and do succeed at integrated employment. Id, ¶ 84. It is actively pursuing goals to expand access to supported employment services for intellectually and developmentally disabled Oregonians. Id, ¶¶ 84, 96, 101-02. As part of that effort, DHS commissioned the preparation of the “Call to Action” report in order to help develop strategies for implementing its “Employment First” policy at the community level. Id, ¶ 89; see Community Leadership for Employment First in Oregon (2010), http://www.dhs.state.or.us/dd/supp_emp/docs/wise.pdf, p. 12 (last accessed May 17, 2012). III. Motion to Dismiss
Defendants seek dismissal of plaintiffs’ claims because: (1) employment claims are not cognizable under Title II of the ADA; (2) even if plaintiffs get past that hurdle, the integration mandate does not apply because the denial of employment services does not place any plaintiff at risk of institutionalization; (3) plaintiffs’ claims improperly seek to require defendants to provide a service that the state does not and cannot provide, namely integrated employment in a community business; and (4) plaintiffs’ claims improperly seek to impose a certain standard of care on the state’s provision of employment services. /// /// ///
5 – OPINION AND ORDER

A. Employment Claims Under Title II In their Reply, defendants seek dismissal of the ADA claim on the basis that plaintiffs are raising an “employment claim” not cognizable under Title II of the ADA. Plaintiffs rely on Zimmerman v. Oregon Dept. of Justice, 170 F3d 1169, 1176 (9th Cir), reh’g en banc denied, 183 F3d 1161 (1999), cert denied, 531 US 1189 (2001), which upheld dismissal of a Title II claim premised upon an allegation that the state refused to accommodate his visual impairment and then terminated him. Based on a contextual reading of the structure of the ADA, the Ninth Circuit concluded that Congress had “unambiguously expressed its intent that Title II not apply to employment” and granted “no weight” to the Attorney General’s implementing regulation which found that Title II applied to employment. Id at 1172-73, citing 28 CFR § 35.140(a) (1998). Defendants contend that Zimmerman mandates dismissal of plaintiffs’ ADA claim because it similarly involves employment, employment training, and employment services. However, contrary to defendants’ argument, this case does not involve “employment,” but instead involves the state’s provision (or failure to provide) “integrated employment services, including supported employment programs.” Complaint, ¶¶ 2, 6 (emphasis added). Even a cursory review of the “inputs” versus “outputs” analysis cited in Zimmerman reveals that the integrated employment services sought by plaintiffs are “services, programs, and activities” offered by defendants, not merely the “means to deliver the services, programs, and activities.” Zimmerman, 170 F3d at 1174, citing Decker v. Univ. of Houston, 970 F Supp 575, 578 (SD Tex 1997), affirmed, 159 F3d 1355 (5th Cir 1998). Plaintiffs simply do not seek to become state employees or contend that the state discriminates against them in employing them. Instead, they contend that the state has failed to provide services to them which would make it possible for them to become and remain competitively employed in the community.
6 – OPINION AND ORDER

Thus, this court concludes that Zimmerman is no barrier to plaintiffs’ claim under Title II
of the ADA.
B. Applicability of Integration Mandate to Employment-Related Services
Defendants also contend that the integration mandate does not apply to the provision of
employment-related services. They raise several arguments to support this contention.
First, defendants contend that the court should give no deference to the Department of
Justice’s recent interpretation of the integration mandate which prohibits the unnecessary
provision of services to persons with disabilities in non-residential settings, including segregated
sheltered workshops. “Statement of the Department of Justice on Enforcement of the Integration
Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C.,” p. 3 (June 22,
2011) (“2011 DOJ Statement”), available at: http://www.ada.gov/olmstead/q&a_olmstead.htm
(last accessed May 17, 2012). The reference to “Olmstead v. L.C.” is to a 1999 decision by the
Supreme Court holding that under the ADA:
States are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.
Olmstead v. L.C. ex rel. Zimring, 527 US 581, 607 (1999).
In the 2011 DOJ Statement under Question 1, “What is the most integrated setting under
the ADA and Olmstead,” the Department of Justice states:
Integrated services are those that provide individuals with disabilities opportunities to live, work, and receive services in the greater community, like individuals without disabilities. Integrated settings are located in mainstream society; offer access to community activities and opportunities at times, frequencies and with persons of an individual’s choosing; afford individuals choice
7 – OPINION AND ORDER

in their daily life activities; and provide individuals with disabilities the opportunity to interact with non-disabled persons to the fullest extent possible. … Segregated settings include, but are not limited to, … settings that provide for daytime activities primarily with other individuals with disabilities. 2011 DOJ Statement, p. 3. The Department of Justice further states that a “comprehensive, effectively working plan” written pursuant to Olmstead must “include commitments for each group of persons who are unnecessarily segregated,” including “individuals spending their days in sheltered workshops or segregated day programs.” Id at 7. Finally, the Department of Justice states that appropriate remedies under the integration mandate include “supported employment.” Id at 8. Although the Ninth Circuit recently accorded deference to another portion of the 2011 DOJ Statement in M.R. v. Dreyfus, 663 F3d 1100, 1117 (9th Cir 2011), defendants argue that it should be given no weight here because it is inconsistent with the Department of Justice’s earlier proclamation in 1991 when the integration mandate regulation was promulgated. The 1991 commentary to the publication of the proposed regulation stated that: “These provisions should not be construed to jeopardize in any way the continued viability of separate schools providing education for particular categories of children with disabilities, sheltered workshops, special recreational programs, and other similar programs.” Nondiscrimination on the Basis of Disability in State and Local Government Services, 56 Fed Reg 8538-01, 8543 (proposed Feb 28, 1991), 1991 WL 311707 (emphasis added). Defendants contend that this language means that the Department of Justice did not consider sheltered workshops to violate the proposed integration mandate regulation. However, that contention plainly is at odds with the next two paragraphs of the 1991 commentary which unequivocally demonstrate that the Department of Justice also did not consider it appropriate to strip disabled individuals of the opportunity to
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choose participation in integrated activities over participation in special programs such as sheltered workshops:
At the same time, individuals with disabilities cannot be denied the opportunity to participate in programs that are not separate or different. This is an important and overarching principle of the Americans with Disabilities Act. Separate, special, or different programs that are designed to provide a benefit to persons with disabilities cannot be used to restrict the participation of persons with disabilities in general, integrated activities. For example, a person who is blind may wish to decline participating in a special museum tour that allows persons to touch sculptures in an exhibit and instead tour the exhibit at his or her own pace with the museum's recorded tour. It is not the intent of this section to require the person who is blind to avail himself or herself of the special tour. Modified participation for persons with disabilities must be a choice, not a requirement. Id (emphasis added). As in these examples, plaintiffs contend that sheltered workshops – ostensibly “designed to provide a benefit to persons with disabilities” – cannot be used to restrict the participation of persons with disabilities in general, integrated employment. Plaintiffs do not argue that sheltered workshops must be eliminated because they are per se illegal, but instead argue that, in most instances, a more integrated setting is appropriate and, therefore, required by the integration mandate. Complaint, ¶ 33 (“most” of the members of the plaintiff class could and would prefer to work in an integrated employment setting). Accordingly, participation for persons with disabilities in sheltered workshops “must be a choice, not a requirement.” No meaningful conflict exists between the 1991 commentary by the Department of Justice on the integration mandate and the recent 2011 DOJ Statement on its enforcement following Olmstead. ///
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Next, citing Dreyfus, defendants contend that the integration mandate does not apply to plaintiffs’ claims. In Dreyfus, the Ninth Circuit granted a preliminary injunction to Medicaid beneficiaries with severe mental and physical disabilities on their ADA claims against the state for reducing the available amount of in-home personal care services which placed them at serious risk of institutionalization. Applying Olmstead, the Ninth Circuit held that in order to state a violation of the integration mandate, “a plaintiff need only show that the challenged state action creates a serious risk of institutionalization.” Dreyfus, 663 F3d at 1116 Because plaintiffs in this case do not allege that they are at risk for institutionalization, defendants contend that the integration mandate simply does not cover their claims.
In addition to Dreyfus, defendants cite a host of other cases which they contend demonstrate that a violation of Title II of the ADA requires a showing that the policies, activities, or programs plaintiffs challenge have resulted in their institutionalization or create a risk of institutionalization.2 Because those cases were premised upon state action creating a risk of residential institutionalization, that risk naturally was discussed. However, the cases do not otherwise suggest that such a risk is the sine qua non of a Title II claim.
As defendants correctly note, no other case has applied the integration mandate in a context other than one in which the state’s action places plaintiffs at risk for institutionalization. However, that dearth of authority does not lead inexorably to the conclusion that the integration
2 See Radaszewski v. Maram, 383 F3d 599 (7th Cir 2004) (at-home private-duty nursing services); Fisher v. Oklahoma Health Care Auth., 335 F3d 1175 (10th Cir 2003) (cessation of unlimited medically-necessary prescription benefits); Helen L. v. DiDario, 46 F3d 325 (3rd Cir), cert denied, 516 US 813 (1995) (requiring basic and ancillary services to be provided only in nursing home, rather than in recipient’s home); Hiltbran v. Levy, 793 F Supp2d 1108 (WD Mo 2011) (risk of forcing institutionalization in order to obtain Medicaid coverage of medically necessary incontinence briefs); Peter B. v. Sanford, 2010 WL 5912259 (Report and Recommendation, Nov 24, 2010), adopted, 2011 WL 824584 (D SC Mar 7, 2011) (risk of forcing institutionalization due to reduction or termination of medical and personal-care services); Pitts v. Greenstein, 2011 WL 2193398 (MD La June 6, 2011) (reduction in maximum number of home and community-based health service hours); Cruz v. Dudek, 2010 WL 4284955 (SD Fla Oct 12, 2010) (risk of forcing institutionalization of quadriplegics due to inadequate in-home health services); Brantley v. Maxwell-Jolly, 656 F Supp 2d 1161 (ND Cal 2009) (funding cuts in adult health day-care program); Mental Disability Law Clinic v. Hogan, 2008 WL 4104460 (ED NY 2008) (requiring hospitalization for receipt of outpatient mental health services).
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mandate is inapplicable to plaintiffs’ claims. To the contrary, the broad language and remedial purposes of the ADA,3 the corresponding lack of any limiting language in either the ADA or the
integration mandate itself, and the lack of any case law restricting the reach of the integration
mandate suggest just the opposite conclusion. It is particularly noteworthy that the Supreme
Court levied the following criticisms against institutionalization in Olmstead: Recognition that unjustified institutional isolation of persons with disabilities is a form of discrimination reflects two evident judgments. First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life. Second, confinement in an institution severely diminishes the everyday life activities of individual, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.
Olmstead, 527 US at 600-01 (citations omitted). Those same criticisms apply equally to offering no choice of employment services other
than working in a sheltered workshop. This case is notably different than any prior case,
including Dreyfus, because it does not involve a claim to restore services in order to prevent confinement in a residential institution. Instead, it seeks to ensure the provision of available
employment-related services in order to prevent unnecessary segregation in employment.
Although the means and settings differ, the end goal is the same, namely to prevent the
“unjustified institutional isolation of persons with disabilities.” Thus, this court concludes that
3 See Lee v. City of Los Angeles, 250 F3d 668, 691 (9th Cir 2001), quoting Yeskey v. Pa. Dep’t of Corr., 118 F3d 168, 171 & n5 (3rd Cir 1997), aff’d, 524 US 206 (1998) (“Quite simply, the ADA’s broad language brings within its scope ‘anything a public entity does.’”); Hason v. Med. Bd. of Cal., 279 F3d 1167, 1172 (9th Cir 2002), quoting Arnold v. United Parcel Serv., Inc., 136 F3d 854, 861 (1st Cir 1998) (“Courts must construe the language of the ADA broadly in order to effectively implement the ADA’s fundamental purpose of ‘providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’”).
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the risk of institutionalization addressed in both Olmstead and Dreyfus includes segregation in the employment setting.
Defendants also argue that the integration mandate is inapplicable in this context because plaintiffs do not allege that they are working against their will, unlike the plaintiffs in other cases who faced involuntary institutionalization by the state’s action. They also argue that several of the plaintiffs work as little as a couple of hours per week, which they contend does not qualify as “institutionalization.” This argument improperly attempts to shift the focus of the inquiry toward plaintiffs’ choices and away from the issue of defendants’ actions relative to the services provided. Defendants’ obligation is to administer their services and programs “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 CFR §§ 35.130(d), 41.51(d). Plaintiffs allege that they are “unnecessarily segregated” – i.e. forced to work in a segregated setting if they are to work at all − due to defendants’ overreliance on sheltered workshops and corresponding “failure to timely develop and adequately fund integrated employment services, including supported employment programs.” Complaint, ¶¶ 2, 5-6, 34-37, 81, 88-92, 97-98, 107. Those allegations sufficiently assert that defendants have failed to meet their obligation under the integration mandate.
In sum, this court discerns no statutory or regulatory basis for concluding that the integration mandate to provide services in the most integrated setting appropriate applies only where the plaintiff faces a risk of institutionalization in a residential setting. /// /// /// ///
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C. Imposition of a Standard of Care or Demand for Level of Benefits The central theme of plaintiffs’ claims is that defendants are violating the antidiscrimination laws by dedicating a disproportionate amount of their resources to fund sheltered workshops at the expense of supported employment services.4 Complaint, ¶¶ 2, 5-6, 34-37, 81, 85 (describing problem as a “capacity” issue), 88-92, 97-99, 107. Nevertheless, defendants contend that plaintiffs’ ultimate goal is to obtain two forms of impermissible relief. First, defendants argue that the ultimate goal of “integrated employment,” as that term is defined by plaintiffs, is not a “service” that the state does or can provide. They point out that some allegations − read literally and collectively − seek the ultimate goal of a “real job in a community-based business setting” for all plaintiffs and class members. See Complaint, ¶ 4 (defining “integrated employment” as a “real job in a community-based business setting”); Prayer, ¶ 2 (“failing to provide [plaintiffs] with supported employment programs in integrated settings”); Prayer, ¶ 3(b) (seeking “supported employment programs in integrated employment settings for all qualified class members”). Second, defendants contend that plaintiffs seek either to impose a standard of care on the services defendants provide or seek to obtain a particular level of benefits, neither of which is a permissible form of relief. Again, some of the allegations in the pleadings support this argument. Id, ¶¶ 184 (failing to “offer an adequate array of integrated employment and supported employment services to qualified persons with disabilities”) (emphasis added), 192 (same), and Prayer, ¶ 3(a) (same).
4 Plaintiffs also allege that OVRS administers its federal funds in a manner that favors individuals with less severe disabilities and disfavors those with more severe disabilities and “does not use available resources to provide vocational assessments and supported employment services to all qualified individuals with intellectual and developmental disabilities.” Complaint, ¶¶ 86, 107. It is unclear whether or to what extent plaintiffs base their claims on the contention that defendants favor less severely disabled individuals, as opposed to failing to offer a meaningful opportunity to obtain supported employment services to any qualified disabled individual.
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As defendants acknowledge, Olmstead admonishes that a disability discrimination claim may not be premised upon allegations that defendants failed to meet a particular standard of care with regard to the services provided or upon a request for a particular level of benefits:
We do not in this opinion hold that the ADA imposes on the States a “standard of care” for whatever medical services they render, or that the ADA requires States to “provide a certain level of benefits to individuals with disabilities.” . . . We do hold, however, that States must adhere to the ADA's nondiscrimination requirement with regard to the services they in fact provide. Olmstead, 527 US at 603 n14. Thus, a claim survives only if it truly alleges a “discriminatory denial of services” and must be dismissed if it instead concerns the “adequacy” of the services provided. See Buchanan v. Maine, 469 F3d 158, 174-75 (1st Cir 2006) (discussing Olmstead and its progeny). Accordingly, claims by qualified individuals who both meet the eligibility requirements for a particular program and are willing participants may properly allege a claim for a denial of the services provided by a program, but not a claim for providing inadequate services. At oral argument, plaintiffs clarified that they are not seeking a guarantee that the employment services they desire will result in community-based or competitive employment. Instead, they seek the provision of employment services that would allow them the opportunity to work in an integrated setting. Id, ¶¶ 4 (defining “[s]upported employment services” as those “vocational training services that prepare and allow people with intellectual and developmental disabilities to participate in integrated employment”) (emphasis added), 85 (alleging that ODDS has failed “to ensure there is a sufficient capacity of supported employment services to allow persons with intellectual and developmental disabilities to work in integrated settings”) (emphasis added), 119 (Lane not offered supported employment services that would allow her to work in an integrated environment), 128 (Peniagua), 132-34 (Harrah), 142 (Kehler), 152
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(Cason), 161 (Robertson), 168 (Green), 175-76 (Kinville). In particular, plaintiffs seek to have defendants reallocate their available resources in a way that does not unjustifiably favor segregated employment in sheltered workshops at the expense of providing supported employment services to qualified individuals. Accordingly, they seek a court order mandating: (1) a treatment planning process that properly and fairly assesses the individuals’ ability and interest in supported employment;5 (2) provision of supported employment services to those individuals who qualify for and are interested in them; and (3) a supported employment program that complies with CMS and other national accrediting standards.
However, some of allegations in the Complaint go beyond the clarification offered by plaintiffs at the hearing and seek the forbidden remedy of requiring defendants to provide an adequate level of employment services to enable plaintiffs to obtain a competitive job. In particular, plaintiffs allege that defendants are violating Title II of the ADA and the Rehabilitation Act by failing “to offer an adequate array of integrated employment and supported employment services” (Complaint, ¶¶ 184, 192) (emphasis added) and “to provide them with supporting employment services that would enable them to work in integrated employment settings” (id, ¶¶ 185, 193) (emphasis added). These allegations are subject to dismissal because they demand that defendants provide a competitive job in the community and a certain standard of care or level of benefits. Instead, to comply with the scope of plaintiffs’ claims as described at the hearing, these allegations (and other related allegations) must be
5 Plaintiffs contend that defendants already have an assessment process in place to determine whether an individual qualifies for supported employment services. Complaint, ¶ 83. They also allege that they qualify for and receive such services. Id, ¶ 1. Several of the plaintiffs previously worked or volunteered in integrated settings. Id, ¶¶ 132 (Harrah), 138 (Kehler), 145 (Cason), 165 (Green), and 173 (Kinville). Others have entries in one or more of their annual Individual Support Plans that indicate they qualify for community or competitive employment. Id, ¶¶ 116 (Lane), 140-41 (Kehler), 150 (Cason), 160-61 (Robertson), 167 (Green), 175 (Kinville). The sole remaining plaintiff, Mr. Paniagua, has a favorable work history in sheltered settings (id, ¶¶123), the ability to successfully navigate the public transportation system (id, ¶ 122), and work skills which he contends demonstrate he is capable of working in an integrated setting (id, ¶ 123-25). Despite those skills and his oft-expressed interest in working competitively, he has never been offered the opportunity to work outside the sheltered workshop and his ISPs do not mention the option of competitive employment. Id, ¶¶ 121, 126.
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amended to clarify that defendants are violating Title II of the ADA and the Rehabilitation Act by denying employment services to plaintiffs for which they are eligible with the result of unnecessarily segregating them in sheltered workshops.
ORDER For the reasons stated above, defendants’ Motion to Dismiss (docket #29) is GRANTED. Plaintiffs’ claims are dismissed WITHOUT PREJUDICE and WITH LEAVE TO AMEND. Plaintiffs shall file their First Amended Complaint to cure the problems identified in this Opinion and Order on or before May 29, 2012. DATED May 17, 2012.
s/ Janice M. Stewart Janice M. Stewart United States Magistrate Judge
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 </s> Case 3:12-cv-00138-ST Document 30 Filed 04/03/12 Page 1 of 15 Page ID#: 287

JOHN R. KROGER Attorney General JOHN J. DUNBAR #842100 CHRISTINA L. BEATTY-WALTERS #981634 Assistant Attorneys General Department of Justice 1515 SW Fifth Ave, Suite 410 Portland, OR 97201 Telephone: (971) 673-1880 Fax: (971) 673-5000 Email: John.Dunbar@doj.state.or.us
Tina.BeattyWalters@doj.state.or.us
Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

PAULA LANE, et al., Plaintiffs,
v. JOHN KITZHABER, et al.,
Defendants.

Case No. 3:12-cv-00138-ST
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

I. Introduction

This is a case in which plaintiffs are testing a novel legal theory. Under the

Rehabilitation Act (“RA”) and the Americans with Disability Act’s (“ADA’s”) “integration

mandate,” courts have required public entities to provide certain services to disabled persons

when to deny the services would likely require the person to reside in an institution. To prove a

violation of the integration mandate, courts—including the Ninth Circuit—have required

evidence of actual institutionalization or of a risk of institutionalization. Here, plaintiffs do not

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allege that they may be institutionalized if they are denied the services they seek. Plaintiffs reportedly reside in the community and do not suggest that they may be forced to do otherwise.
Plaintiffs have sued Governor John Kitzhaber, Erinn Kelley-Siel, who heads Oregon’s Department of Human Services (“DHS”), and Mary Lee Fay and Stephanie Parrish Taylor, the chiefs of the DHS divisions that serve the developmentally disabled and that provide vocational rehabilitation services (collectively, “defendants” or “DHS”). Plaintiffs contend that the RA and ADA’s integration mandate should be expanded to require defendants to provide a particular type of employment service and to cease providing another type of employment service to intellectually and developmentally disabled people. These people all reside in the community, not institutions. Recognizing this new cause of action would be contrary to Ninth Circuit precedent and to established caselaw around the country. Plaintiffs’ Complaint should be dismissed because they have failed to state a recognized cause of action.
Plaintiff’s Complaint should be dismissed for several other reasons as well. First, plaintiffs ultimately seek to require the state to provide a service that it does not and cannot provide—integrated employment in a community business. Defendants cannot provide plaintiffs with a community job. Whether or not they achieve that goal depends upon many factors— including the availability of jobs—that are outside the defendants’ control. Second, plaintiffs’ Complaint alleges that the defendants have failed to properly oversee employment providers, case managers or brokerage agents in assisting the plaintiffs to develop and pursue their employment goals. Plaintiffs essentially claim that DHS is not meeting a certain standard of care in their provision of employment services. Neither the ADA nor the RA imposes a standard of care upon public agencies providing services to disabled persons. For these additional, independent reasons, plaintiffs’ Complaint should be dismissed. II. Facts Alleged in the Complaint
The following allegations are stated in the Complaint. The individual plaintiffs are eight intellectually or developmentally disabled persons who reside in the community. (Complaint, ¶¶

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112, 120, 129, 135, 144, 154, 162, 170 (Lane, apartment; Paniagua, family home; Harrah, adult foster home; Kehler, group home; Cason, family home; Robertson, group home; Green, adult foster home; Kinville, family home)). Seven of the eight plaintiffs work in sheltered workshops. (Complaint ¶¶ 113, 121, 130, 136, 155, 163, 171). The eighth, Ms. Cason, worked at a sheltered workshop in and prior to December 2010. (Complaint, ¶ 146-48). Sheltered workshops, as alleged, are segregated employment settings that employ people with disabilities or where people with disabilities work separately from others. (Complaint, ¶ 3). The individual plaintiffs allege that they would prefer to work in various types of “integrated employment” and receive supported employment services. (Complaint, ¶¶ 119, 124-28, 132-34, 140-43, 151-53, 159-61, 166-68, 174-76). Plaintiffs define integrated employment as “a real job in a community-based business setting, where employees have an opportunity to work alongside non-disabled coworkers and earn at least minimum wage1.” (Complaint, ¶ 4). Plaintiffs define supported employment services as “vocational training services that prepare and allow people with intellectual and developmental disabilities to participate in integrated employment.”
Not stated in the Complaint is any allegation that defendants’ alleged actions or failures to act have created a risk that any one of the plaintiffs will be forced to live in an institution.
Plaintiffs have, however, alleged that DHS is actively pursuing goals to expand access to supported employment services for intellectually and developmentally disabled Oregonians. (Complaint, ¶¶ 84, 96, 101-02). In fact, DHS commissioned the preparation of the “Call to Action” report cited in the Complaint in order to help it develop strategies for implementing its “Employment First” policy at the community level. See Community Leadership for Employment

1 Plaintiffs’ allegations relating to the minimum wage fail to mention the standards that govern wages here. Under the Fair Labor Standards Act, employers are entitled to request authority from the U.S. Department of Labor to pay disabled workers less than minimum or prevailing wages for their work, whether those employers operate sheltered workshops or employ disabled persons in integrated settings. 29 U.S.C. § 214(c); 29 C.F.R. part 525. The wages that must be paid are those wages comparable to wages paid to nondisabled persons performing the same work, reduced to reflect the disabled workers’ relative productivity. Id. Plaintiffs fail to allege any violation of these laws.

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First in Oregon (2010) (available at http://www.dhs.state.or.us/dd/supp_emp/docs/wise.pdf, at 12). But Oregon’s commitment to improving services to the developmentally disabled does not mean that plaintiffs have a right under the RA and ADA to obtain a court order directing such

improvements. III. Argument
A. The Standards Applicable to Rule 12(b)(6) Motions When considering a motion under Fed. R. Civ. P. 12(b)(6), courts construe the complaint in favor of the plaintiff and take the factual allegations as true. Garcia v. Fannie Mae, 794 F.Supp. 2d 1155, 1161 (D. Or. 2011). For a complaint to survive a motion to dismiss, the “nonconclusory factual content and reasonable inferences from that content must be plausibly

suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). Although courts are to credit the complaint’s factual assertions, they are not required to credit legal conclusions. Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949-50 (2009)). Further, a complaint must allege facts that plausibly (as opposed to merely conceivably) entitle the plaintiff to relief. Maya, 658 F.3d at 1067-68 (citing Iqbal, 129 S. Ct. at 1950-51). To state a facially plausible

claim, a complaint must provide “factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. The

complaint must be dismissed if the factual allegations demonstrate only “a sheer possibility that

the defendant has acted unlawfully.” Id.

B. The Standards Applicable to RA and ADA Claims

Title II of the ADA prohibits governmental entities from discriminating against the

disabled:

[N]o 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.

42 U.S.C. § 12132. Similarly, § 504 of the Rehabilitation Act provides,

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No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

29 U.S.C. § 794. The Ninth Circuit has described these provisions of the ADA and Rehabilitation Act as “coextensive.” M.R. v. Dreyfus, 663 F.3d 1100, 1115 (9th Cir. 2011) (“Because the applicable provisions of the ADA and the Rehabilitation Act are ‘co-extensive’, we discuss both claims together, focusing on the ADA”); Zukle v. Regents of the Univ. of Calif., 166 F.3d 1041, 1045 n. 11 (9th Cir. 1999) (“There is no significant difference in the analysis of the rights and obligations created by the ADA and the Rehabilitation Act”).
The United States Department of Justice has promulgated implementing regulations under the ADA. One such regulation provides, “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). The “most integrated setting” is defined in an Appendix to the federal regulations as “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. pt. 35, App. A. A regulation implementing § 504 of the RA also requires that recipients of federal funds administer programs “in the most integrated setting appropriate to the needs of qualified handicapped persons.” 28 C.F.R. § 41.51(d). ADA regulations, however, provide that the obligations of public entities are not unlimited:
A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. 28 C.F.R. § 35.130(b)(7). The Supreme Court addressed the scope of the ADA and its implementing regulations in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S. Ct. 2176 (1999). In Olmstead, the two plaintiffs were mentally disabled women who were both voluntarily admitted to Georgia

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Regional Hospital’s psychiatric unit. Once their conditions stabilized, their treatment providers
found that the plaintiffs’ needs could be met in one of the state-supported community-based
treatment programs. However, both women remained institutionalized and filed suit against
Georgia officials; they argued that their continued confinement to an institution violated the
ADA. Id. at 593. The Supreme Court held that “unjustified institutional isolation of persons
with disabilities is a form of discrimination.” Id. at 600. The Court found that this holding
reflects two judgments:
First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life. Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment. Id. at 600-01 (citations omitted). Accordingly, the Court concluded that states are obligated to
provide community-based treatment for mentally disabled individuals when (1) the State’s
treatment professionals conclude that community placement is appropriate; (2) the individuals do
not object to community placement; and (3) placement in the community can be reasonably
accommodated, given the resources of the state and needs of other intellectually disabled
individuals. Id. at 607.
Following Olmstead, courts have held that, in order to demonstrate a violation of Title II
of the ADA, plaintiffs must prove that the policies, activities, or programs they are challenging
have resulted in their institutionalization or create a risk of institutionalization. See, e.g., M.R.,
663 F.3d at 1116; Brantley v. Maxwell-Jolly, 656 F.Supp. 2d 1161, 1170-71 (N.D. Cal. 2009).
Significantly, it is the risk of forced living in an institution that gives rise to liability. The Ninth
Circuit has held that “a plaintiff need only show that the challenged state action creates a serious
risk of institutionalization.” M.R., 663 F.3d at 1116 (reversing the district court’s denial of a
preliminary injunction and holding that Washington’s reduction of personal care services places

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the plaintiffs at a “serious risk of institutionalization”). Ninth Circuit law on this point is
consistent with the law of courts outside the Ninth Circuit.2
A few examples will illustrate courts’ application of the so-called “integration mandate”
under Title II of the ADA. In M.R., the plaintiffs were severely mentally and physically disabled
people who challenged a regulation that uniformly cut in-home personal care services. 663 F.3d
at 1102. The plaintiffs contended that the reduction in services would violate the
antidiscrimination provisions of the ADA and RA because “the reduction in hours will
substantially increase the risk that they will be institutionalized in order to receive care adequate
to maintain their mental and physical health.” Id. One of the plaintiffs, M.R., suffered from
severe mental disabilities, daily seizures, scoliosis, cerebral palsy, hypothyroidism, and mood
disorder. She lived with her mother who provided her care. When M.R.’s mother learned that
2 See Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (10th Cir. 2003) (noting that “the only alternative for Plaintiffs presently is institutionalization if they seek treatment under the statute” and holding that the risk of institutionalization is sufficient to prove a violation of the ADA and the integration mandate); Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) (reversing the district court’s order granting the defendant’s motion for judgment on the pleadings where the plaintiff alleged violation of the ADA by the State’s failure to fund at-home full-time nursing and the pleadings provided that the plaintiff “is at risk of placement in an institutional health care facility”); Helen L, v. DiDario, 46 F.3d 325 (3rd Cir.), cert. den 516 U.S. 813 (1995) (reversing the entry of summary judgment in the defendant’s favor, directing the entry of summary judgment in the plaintiff’s favor, and holding that the defendant violated the ADA by requiring that she receive necessary services in a nursing home rather than her own home); Mental Disability Law Clinic v. Hogan, 2008 WL 4104460 (E.D.N.Y. 2008) (denying a motion to dismiss for failure to state a claim for violation of the ADA’s integration mandate on behalf of plaintiffs who were required to submit to hospitalization before being able to access needed outpatient mental health services); Hiltbran v. Levy, 793 F.Supp. 2d 1108 (W.D. Mo. 2011) (granting plaintiff’s motion for summary judgment for violation of the ADA’s integration mandate because the evidence showed that plaintiffs would be forced into institutions in order to obtain Medicaid coverage for medically necessary supplies); Peter B. v. Sanford, 2010 WL 5912259 (D.S.C. 2010) (recommending entry of preliminary injunction and holding that the risk of institutionalization is sufficient to establish a violation of the ADA’s integration mandate); Pitts v. Greenstein, 2011 WL 2193398 (M.D.La. 2011) (noting that integration mandate prohibits a state from increasing an individual’s risk of institutionalization); Cruz v. Dudek, 2010 WL 4284955 (S.D. Fla. 2010) (recommending that a motion for preliminary injunction be granted where the plaintiffs proved that they are at risk of being forced to enter a nursing home because available in-home services are not being provided). Page 7 - MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS
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M.R.’s paid personal care services were to be reduced to 215 hours per month from 236 hours per month, she testified that she already had insufficient funds to keep her household functioning and that reductions in paid personal care service hours would force her to seek work outside her home. Having to work outside the home would necessitate having to move her daughter into an institutional facility. Id. at 1109. The Ninth Circuit reversed the denial of a motion for preliminary injunction, holding that the ADA legal standard requires plaintiff to prove “that the challenged state action creates a serious risk of institutionalization.” Id. at 1116. The plaintiffs met that standard.
In Hiltibran v. Levy, 793 F. Supp. 2d 1108 (W.D. Mo. 2011), the plaintiffs were lowincome disabled adults living in the community who were incontinent due to their disabilities. The plaintiffs sought an injunction requiring the defendants to pay for their incontinence supplies, which would have been covered had plaintiffs been living in an institution. Id. at 1111. Their physicians determined that incontinence briefs were “medically necessary for Plaintiffs to prevent skin deterioration and infections and to maintain Plaintiffs’ ability to live in the community.” Id. The defendant argued only that its waiver program was sufficient to “prevent forced institutionalization,” but the court found that the waiver program was not “a viable alternative to institutionalization” given that three of the four plaintiffs requested but were denied coverage under the waiver. Id. at 1116. Accordingly, the court entered an order permanently enjoining defendants from applying their unlawful policies and requiring defendants to establish a process whereby Medicaid recipients could obtain needed incontinence supplies. Id. at 1116-17.
In Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161 (N.D. Cal. 2009), the plaintiffs were elderly and disabled individuals who resided in the community and participated in an “organized day care” program at one of the many centers located in the state. Id. at 1164. The plaintiffs were entitled to and did receive services, including personal care services, social services, physical therapy services, occupational therapy services, and ongoing therapeutic activities, for

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up to four hours per day five days per week in the centers. Id. at 1164, 1165, 1166. However, the California legislature enacted a cost-cutting statute that would temporarily reduce plaintiffs’ maximum benefit to three days of services per week. Id. at 1167. The plaintiffs presented evidence that if their services were reduced from five to three days per week, they would be forced to live in institutions. Id. at 1171-73. The court found that the plaintiffs demonstrated a “serious risk of institutionalization” and preliminarily enjoined the state from enforcing the costcutting statute. Id. at 1171, 1178.
C. The Court Should not Recognize a New Cause of Action under the RA or ADA This case is nothing like Olmstead or the opinions following it, all of which apply the integration mandate. No allegation in the Complaint supports the contention that plaintiffs are threatened with institutionalization. In fact, the allegations suggest just the opposite. The plaintiffs are all apparently living in community settings and doing well in those settings. Ms. Lane, for example, lives in an apartment with staff support, is “very social” and “spends money on pizza parties and goes out for dinner.” (Complaint, ¶¶ 112, 118). Ms. Robertson “enjoys many social activities in the community, including bowling, horseback riding, attending movies, and going out for meals. She also likes going on dates with her boyfriend and shopping.” (Complaint, ¶ 159). Ms. Kehler likes “going out on dates” and “likes to travel.” Complaint, ¶ 143. Ms. Cason “enjoys social interaction in the community.” (Complaint, ¶ 153). Ms. Green “enjoys shopping” and “going to movies.” (Complaint, ¶ 169). As explained above, to prevail on a Title II claim, plaintiffs must allege that they are at risk of being forced to live in an institution. M.R., 663 F.2d at 1116; See also Sanchez v. Johnson, 416 F.3d 1051, 1063 (9th Cir. 2005) (“In Olmstead, the Supreme Court interpreted Title II of the ADA as forbidding the arbitrary segregation of the disabled in large state institutions”). They have not done so. Plaintiffs have failed to allege facts that would plausibly entitle them to relief on their ADA and RA claims. See Maya, 658 F.3d at 1067-68 (citing Iqbal, 129 S. Ct. at 1950-51). Accordingly, their Complaint should be dismissed.

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Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000

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In an apparent attempt to meet the Ninth Circuit standard for proving a violation of Title
II, plaintiffs attempt to equate sheltered workshops with the sort of residential institutions about
which the Olmstead Court was concerned. (Complaint, ¶ 60). However, the two settings are not
equivalent. In M.R., the Ninth Circuit clearly referred to forced institutional living. 663 F.3d at
1116-17. In fact, nearly every page of the majority opinion by Judges Reinhardt and Fletcher
speaks in terms of “institutionalization” in such a setting. Id. at 1102, 1104, 1106, 1107, 1108,
1109, 1110, 1111, 1112, 1113, 1114, 1115, 1116, 1117, 1118, 1119, 1120, 1121. Here, plaintiffs
seek to go well beyond whether plaintiffs face any such risk. This Court would be required to
depart from Ninth Circuit precedent and make new law in order to find in favor of plaintiffs in
this case.
In fact, we could find no opinion in which any court has addressed whether or not
Olmstead and the integration mandate should be extended beyond the issue of where an
individual resides. One court suggested that a state’s denial of community-based services for
those living in the community and not at risk of institutionalization may not be able to prove a
violation of the ADA’s integration mandate. In Dykes v. Dudek, 2011 WL 4904407 (N.D. Fla
2011), the plaintiffs sought to certify two subclasses. One subclass consisted of persons who
were institutionalized and the other consisted of persons living in the community. Both groups
sought services under a Medicaid waiver program. The District Court found that the plaintiffs in
the community failed to show that they are at risk of institutionalization. As a result, the Court
found that the differences in the established ADA law between the two groups precluded the two
subclasses’ ability to co-prosecute a class action:
Most problematic is that the law treats institutional and community plaintiffs differently. That is, undue institutionalization qualifies as discrimination. But, it is unclear whether exclusion from community based programs qualifies as discrimination. Thus, the institutionalized plaintiffs articulate a recognized cause of action. But the community plaintiffs will have more difficulty arguing their case. Answering the uncertainty in the community plaintiffs’ ADA claim will be central to their case, but inconsequential to the institutional plaintiffs. This difference in established law is fatal to creating a class which contains both groups. Page 10 - MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS
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Id. at *3 (citation omitted). Like the claim of the proposed subclass in Dykes, plaintiffs’ cause of action has not been recognized. Plaintiffs’ claim should be dismissed.
That the law would draw a legal distinction between the residential Olmstead context and the employment context makes sense. In Olmstead and the cases following Olmstead, the actual or threatened institutionalization was or would have been against the will of the plaintiffs. Here, there is no suggestion in the Complaint that the plaintiffs are working against their will. To work or not work is a choice that each plaintiff may exercise as he or she wishes. The plaintiffs may desire to work in another setting, but that is not equivalent to being forced to live in an institution. That is particularly true where, as here, several of the plaintiffs have identified continuing to work in their sheltered workshops as employment goals. (Complaint, ¶¶ 126 (identifying goal to continue to be employed in workshop setting); 160 (setting workshop production goal); 167 (identifying goal of remaining at sheltered workshop); 175 (identifying goal of attending facility-based employment program)).
Moreover, several of the plaintiffs in this case work as little as a couple of hours per week. (Complaint, ¶ 137 (alleging that Ms. Kehler worked 19.33 hours in September 2011, 8.83 hours in October 2011, and 13.9 hours in November 2011); ¶ 147 (alleging that Ms. Cason worked 1-2 hours per week in a workshop)). The most that plaintiffs allege that any of them worked in one month was 81 hours, and that number was unusually high compared with the other alleged monthly hours worked. (Complaint, ¶ 115; cf. Complaint, ¶¶ 123, 131, 137, 157, 164, 172). Working as few as one or two hours per week in a segregated employment situation hardly qualifies as the sort of “institutionalization” with which the courts have been concerned under the integration mandate. Plaintiffs’ allegations are insufficient to plausibly state a claim under the ADA or RA. Therefore, plaintiff’s claims should be dismissed.
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D. Plaintiffs’ Claims Must Fail Because DHS Cannot Provide them with Integrated Employment in the Community
Plaintiffs’ claims should also be dismissed because DHS does not provide the “service” of integrated employment in the community. In their complaint, plaintiffs make it clear that they “would prefer to work in an integrated employment setting.” (See, e.g., Complaint, ¶ 33). Their claims allege that defendants failed “to provide the named plaintiffs and members of the plaintiff class with integrated employment.” (Complaint, ¶ 187; See also Complaint, ¶¶ 184, 185, 188, 192, 193, 195). The problem with plaintiffs’ claims, however, is that defendants cannot provide plaintiffs with integrated employment. Integrated employment in the community is not a service that defendants provide. Nor is it a service that defendants can provide. In other words, DHS cannot assure that anyone will secure a job in the community.
The integration mandate regulation requires that “services” be provided in “the most integrated setting appropriate to the needs” of the disabled. 28 C.F.R. § 35.130(d). But integrated employment in the community is, by plaintiffs’ own definition, a job in a “community-based business setting.” (Complaint, ¶ 4). Defendants cannot provide plaintiffs with a community job. Whether or not community jobs are available to plaintiffs is a function of the economy, job competition, and other factors. Because defendants cannot and do not provide the service plaintiffs seek, plaintiffs’ Complaint should be dismissed. See Olmstead, 119 S. Ct. at 2188 n. 14 (noting that States must only “adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide”).
As in the recent Rule 16 conference, plaintiffs may argue that a recent statement issued by the U.S. Department of Justice on the application of the integration mandate provides support for the recognition of their claim. Apparently sometime after mid-2011, the U.S. Department of Justice issued a document it calls a “Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C.” See http://www.ada.gov/olmstead /q&a_olmstead.htm (noting in the preamble that the Statement was issued “as we commemorate the 12th anniversary of the Olmstead decision,” which was Page 12 - MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS
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issued in June 1999.) In the Statement, the U.S. Department of Justice makes brief references to working in integrated settings and to sheltered workshops.3 There are a number of problems with using this Statement to support plaintiffs’ legal claim. First and most obviously, as explained above, no court has recognized such a claim. Second, the Statement fails in any way to address a key issue here: that the ultimate goal of integrated employment in community-based businesses is not a service that States can or do provide. Because the State does not and cannot provide the plaintiffs with the relief they ultimately seek—integrated employment—plaintiffs’ Complaint should be dismissed.
E. Plaintiffs’ Complaint Fails to State a Claim Because Neither the RA nor the ADA Imposes a Standard of Care Requirement
Plaintiffs’ claims fail for another reason as well. Plaintiffs’ claims are ultimately based upon allegations that the defendants are not meeting their preferred standard of care with respect to the provision of employment services. However, the Court in Olmstead made it clear that the ADA and RA do not impose a standard of care for services provided: “We do not in this opinion hold that the ADA imposes on the States a ‘standard of care’ for whatever medical services they render, or that the ADA requires States to ‘provide a certain level of benefits to individuals with disabilities.’” Olmstead, 119 S. Ct. at 2188 n. 14. Another District Court faced with such a claim rejected it, recognizing that “the ADA does not impose on the States a standard of care for whatever services they provide to the disabled nor does it require the States to ‘provide a certain level of benefits to individuals with disabilities.’” M.K. v. Sergi, 554 F. Supp. 2d 175, 197-98 (D. Conn. 2008) (holding that the plaintiffs’ Title II ADA and RA claims failed because a claim challenging the level of benefits provided is not cognizable under the ADA or RA).
3 For example, the Statement states that “[i]ntegrated settings are those that provide individuals with disabilities opportunities to live, work, and receive services in the greater community.” Statement of the Department of Justice, response to question 1. Page 13 - MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS
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Plaintiffs’ claims here appear to be based in a challenge to the level of services provided to them. Plaintiffs repeatedly take issue with the quality of the services provided to them, and apparently ask the Court to mandate that the State provide additional services to them.
 As for plaintiff Lane, the Complaint alleges that “there has been only one effort in 200708 to identify a community position for Ms. Lane, which was unsuccessful. Ms. Lane’s 2009 ISP said that the program would ‘explore community-based job opportunities’ but this was not mentioned in later ISPs.” (Complaint, ¶ 116). Further, the Complaint alleges that “Ms. Lane’s 2011 ISP has no goals or action plans related to employment” and that “[n]either Ms. Lane’s case manager nor the sheltered workshop provider has taken the actions necessary to assist Ms. Lane in obtaining supported employment.” (Complaint, ¶ 117, 119).
 With respect to Ms. Cason, the Complaint alleges that she applied for services with Oregon Vocational Rehabilitation Services (“OVRS”) and was determined eligible. She was given an evaluation, which concluded that she “’is a good candidate for supported employment or alternatives to employment program, through her brokerage.’” However, OVRS allegedly closed her file because “’the Community Based Work Assessment showed you need more skills to get competitive work.’” The Complaint alleges, “Neither Ms. Cason’s brokerage personal agent nor her previous employment provider provided the services and supports necessary to help Ms. Cason fulfill her desire to work in the community at competitive employment. DHS and OVRS failed to adequately oversee the brokerage personal agent and employment provider in the development and implementation of an appropriate ISP for Ms. Cason.” Complaint, ¶¶ 150, 152.
 The allegations with respect to the other individual plaintiffs are similar. (See Complaint, ¶¶ 124, 126, 128, 133-34, 140-42, 160-61, 166-68, 175-76). Plaintiffs’ claims are based on an alleged failure to deliver a certain level of services or to
meet a certain standard of care for the provision of employment services. Such a claim is not
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cognizable under the ADA or the RA. For this reason as well, plaintiffs’ claims should be dismissed. IV. Conclusion
For the reasons stated above, the defendants respectfully request that their motion to dismiss be granted and that the Complaint be dismissed.
DATED April 3rd , 2012. Respectfully submitted, JOHN R. KROGER Attorney General
s/ Christina L.Beatty-Walters CHRISTINA L. BEATTY-WALTERS #981634 JOHN J. DUNBAR #842100 Assistant Attorneys General Trial Attorneys Tel (971) 673-1880 Fax (971) 673-5000 Tina.BeattyWalters@doj.state.or.us John.Dunbar@doj.state.or.us Of Attorneys for Defendants
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 </s> Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 1 of 40 Page ID#: 348

Kathleen L. Wilde, OSB No. 971053 kwilde@droregon.org James A. Wrigley, OSB No. 904134 jwrigley@droregon.org Theodore E. Wenk, OSB No. 001239 ted@droregon.org DISABILITY RIGHTS OREGON 610 SW Broadway, Suite 200 Portland, Oregon 97205 Telephone: (503) 243-2081 Fax: (503) 243-1738 Attorneys for Plaintiffs [ADDITIONAL COUNSEL APPEAR ON SIGNATURE PAGE]

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

PAULA LANE, et al., Plaintiffs,
v. JOHN KITZHABER, et al.
Defendants.

Case No.: 3:12-cv-00138-ST PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS

i- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 2 of 40 Page ID#: 349

TABLE OF CONTENTS

Page

I. INTRODUCTION ............................................................................................................. 1

II. THE UNNECESSARY SEGREGATION OF PERSONS WITH DISABILITIES IN SHELTERED WORKSHOPS VIOLATES TITLE II OF THE ADA......................... 3

A. The ADA Prohibits Discrimination in Employment and EmploymentRelated Services on the Basis of Disability. .......................................................... 3

1. The Legislative Background of the ADA. ................................................. 3

2. The ADA's Findings Specifically Address Employment and Recognize the Legacy of Segregation........................................................ 4

3. Courts Have Applied Title II Broadly to Cover All Forms of Services, Programs, and Activities Provided by a Public Entity. .............. 4

4. Title II of the ADA Prohibits Discrimination in Employment Services. ..................................................................................................... 7

B. Title II Regulations Require Public Entities to Administer and Fund All of Their Services, Programs, and Activities in the Most Integrated Setting Possible. ................................................................................................................. 9

1. Unjustified Segregation of People with Disabilities Constitutes Discrimination Under the Title II of the ADA........................................... 9

2. Employment Services are a Form of "Services, Programs, or Activities" Covered Under Title II of the ADA That Must Be Provided in the Most Integrated Setting Possible. ................................... 13

C. Title II's Integration Mandate Is Not Limited to Residential Services or Institutions............................................................................................................ 13

D. Oregon's Administration, Funding, and Provision of Segregated Employment Services Through Sheltered Workshops States a Claim Under Title II of the ADA. .................................................................................. 16

III. OVERVIEW OF EMPLOYMENT SERVICES FOR PERSONS WITH DISABILITIES ................................................................................................................ 17

A. Sheltered Workshops Are Segregated Employment Programs ........................... 18

1. Sheltered Workshops Are Segregated Settings Where Persons with Disabilities Have No Opportunity to Interact with Non-Disabled Peers......................................................................................................... 18

2. Sheltered Workshops Have a Number of Attributes in Common with Segregated Institutions..................................................................... 19

3. Sheltered Workshops Do Not Lead to Integrated Work Opportunities............................................................................................ 20

B. Supported Employment Are Integrated Employment Programs ......................... 22

1. Supported Employment Is Provided in Integrated Settings..................... 22

2. Supported Employment Has Been Proven to Be Both Clinically-

Effective and Cost Effective. ................................................................... 23

ii- PLAINTIFFS' OPPOSITION TO DEFENDANTS'

Perkins Coie LLP

MOTION TO DISMISS
78295-0001/LEGAL23423473.1

1120 N.W. Couch Street, Tenth Floor Portland, OR 97209-4128 Phone: 503.727.2000

Fax: 503.727.2222

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TABLE OF CONTENTS (continued)

Page

3. Supported Employment Maximizes the Productivity, Independence, and Personal Dignity of Persons with Disabilities. ......... 26
IV. THE COMPLAINT STATES A CLAIM FOR INTEGRATED SUPPORTED EMPLOYMENT SERVICES.......................................................................................... 26 A. The Complaint Seeks Supported Employment Services As a Means to Achieve Competitive Employment...................................................................... 26 B. Oregon Already Provides Supported Employment Services to Some Persons with Disabilities...................................................................................... 27 1. ODDS and OVRS Fund and Provide Supported Employment Services. ................................................................................................... 27 2. ODDS and OVRS Recognize that Supported Employment Services Are a Necessary and Effective Means to Achieve Their Goals of Competitive Employment. ....................................................................... 28
V. THE COMPLAINT DOES NOT SEEK ANY PARTICULAR STANDARD OF CARE............................................................................................................................... 29 A. Oregon Uses Various Entities and Processes to Plan, Administer, and Deliver Employment Services to Persons with Disabilities. ............................... 29 B. Oregon Is Responsible for Ensuring That the Entities Which It Funds, Coordinates, and Relies Upon to Provide Employment Services to Persons with Disabilities Do So in Compliance with Title II of the ADA. ...................... 30
VI. CONCLUSION................................................................................................................ 31

iii- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

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TABLE OF AUTHORITIES

Page

Cases Arc of Washington State, Inc. v. Braddock, 427 F. 3d 615 (9th Cir. 2005) ..................................... 9 Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001), cert den. 537 U.S. 812 (2002) ........................ 7 Armstrong v. Schwarzenegger, 622 F.3d 1058 (9th Cir. 2010) ............................................. 6, 7, 11 Armstrong v. Wilson, 124 F. 3d 1019 (9th Cir. 1997) ..................................................................... 7

Arnold v. United Parcel Serv., Inc., 136 F.3d 854 (1st Cir. 1998) .................................................. 5

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................... 16 Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir. 2002) .............................................. 5, 6, 10

Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F. 3d 725 (9th Cir. 1999) .................................................................................................................................... 6

Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001) ......................... 3

Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161 (N.D. Cal. 2009)......................................... 6, 14

Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984) ........................... 10 Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996)....................................................................... 6

Day v. District of Columbia, 2012 WL 456491 (D.D.C. Feb. 14, 2012)..................................... 12

Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184 (E.D.N.Y. 2009), rev'd on other grounds sub nom, DAI v. New York Coalition for Quality Assisted Living, 2012 WL 1143588 (2d Cir. April 6, 2012) ............................................................................ 12, 13, 15
Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996)................................................................................ 7

Frederick L. v. Department of Public Welfare of Pennsylvania, 422 F.3d 151 (3d Cir. 2005) ......................................................................................................................................... 12

Halderman v. Pennhurst State School & Hosp., 154 F.R.D. 594 (E.D. Pa. 1994)....................... 17 Hanson v. Med. Board, 279 F. 3d 1167 (9th Cir. 2002) .................................................................. 5

Homeward Bound v. Hissom Memorial Center, 1987 WL 27104 (N.D. Okl., July 24, 1987) ................................................................................................................................... 10, 17

Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997, rev'd on other grounds by Zervos v. Verizon New York, 252 F.3d 163 (2d Cir. 2001) ............................ 6

iv- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

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TABLE OF AUTHORITIES (continued)

Page

Johnson v. California, 543 U.S. 499 (2005) ................................................................................... 7

Kerrigan v. Philadelphia Bd. of Election, 2008 WL 3562521 (E.D. Pa. Aug. 14, 2008)6, 12, 14, 15 Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001)................................................................ 7

Lovely H. v. Eggleston, 235 F.R.D. 248 (S.D.N.Y. 2006)................................................ 13, 14, 15

M.K. v. Sergi, 554 F. Supp. 2d 175 (D. Conn. 2008).............................................................. 30, 31

M.R. v. Dreyfus, 663 F.3d 1100 (9th Cir. 2011) ...................................................................... 11, 12 McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004) ......................................................... 10

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).................................................................. 2

Oster v. Lightbourne, 2012 WL 691833 (N.D. Cal. Mar. 2, 2012) ............................................. 14

Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998) .............................. 5, 13

Tennessee v. Lane, 541 U.S. 509, 524 (2004)................................................................................. 5

V.L. v. Wagner, 669 F. Supp. 2d 1106 (N.D. Cal. 2009) .......................................................... 6, 14

Statutes

29 U.S.C. § 720(a)(1)(D) .............................................................................................................. 17

29 U.S.C. § 720(a)(3)(A) .............................................................................................................. 22

29 U.S.C. § 794a ............................................................................................................................. 1

42 U.S.C. § 12101........................................................................................................................... 1

42 U.S.C. § 12101(7) .................................................................................................................... 24

42 U.S.C. § 12101(8) .................................................................................................................... 25

42 U.S.C. § 12101(a) ...................................................................................................................... 4

42 U.S.C. § 12101(a)(3)................................................................................................................ 17

42 U.S.C. § 12101(a)(7).................................................................................................................. 3

42 U.S.C. § 12101(b)(1) ................................................................................................................. 3

42 U.S.C. § 12101(b)(2) ............................................................................................................... 12

v- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

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TABLE OF AUTHORITIES (continued)

Page

42 U.S.C. § 12131........................................................................................................................... 1

42 U.S.C. § 12132..................................................................................................................... 5, 13

Regulations and Rules

28 C.F.R 35.130(d) ......................................................................................................................... 1

28 C.F.R. § 35.130(b)(1)............................................................................................................... 13

28 C.F.R. § 35.130(b)(3)............................................................................................................... 13

28 C.F.R. § 35.130(b)(6)........................................................................................................... 8, 13

28 C.F.R. § 35.130(d) ..................................................................................................................... 9

28 C.F.R. § 35.140 .......................................................................................................................... 8

28 C.F.R. § 41.51(d) ....................................................................................................................... 8

28 C.F.R. § 41.52 ............................................................................................................................ 8

28 C.F.R. Pt. 35, App. A. Doc. 1 ................................................................................................... 1

28 C.F.R. Pt. 35, App. B. ................................................................................................................ 9

Other Authorities

Aaron Gottlieb, William N. Myhill, Peter Blanck, Employment of People with Disabilities, International Encyclopedia of Rehabilitation ........................................... 23, 24, 26

Albert Migliore, David Mank, Teresa Grossi, & Patricia Rogan, Integrated Employment or Sheltered Workshops: Preferences of Adults with Intellectual Disabilities, Their Families, and Staff, 26 J. Vocational Rehabilitation 5, 6 (2007)........................................ 19, 26

Community Leadership for Employment First in Oregon (2010)................................. 1, 17, 25, 28

David Mank, Alderbrook 2007, 29 J. Vocational Rehabilitation 53 (2008)................................. 22

Employment First Strategic Planning: Stakeholder Planning Group Meeting (Jan. 27, 2012) ........................................................................................................................... 1, 2, 19, 25

Federal Publications, Paper 209................................................................................................... 21

Grant Revell, John Kregel, Paul Wehman, and Gary R. Bond, Cost Effectiveness of Supported Employment Programs: What We Need To Do To Improve Employment Outcomes, 14 J. Vocational Rehabilitation 173 (2000) ............................................................ 24

vi- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

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TABLE OF AUTHORITIES (continued)

Page

H. REP. NO. 101-485(I) at 52 (1990)............................................................................................... 8 H.R. Rep No. 485(II), 101st Cong., 2d Sess. 47 (1990) .................................................................. 3

Jacobus tenBroek, The Character and Function of Sheltered Workshops, National Federation for the Blind (1995) ................................................................................................ 20

Jane Steveley, Supported Employment for Oregonians with Developmental Disabilities: Recommendations for Action (2005) .................................................................................. 28, 29

Michael Gill, The Myth of Transition, Contractualizing Disability in the Sheltered Workshop, 20 Disability & Soc'y 613 (2005) ........................................................................... 21

Michelle Morris, Heather Ritchie, & Lisa Clay, SECTION 14C OF THE FAIR LABOR STANDARDS ACT: FRAMING POLICY ISSUES, National Center on Workforce and Disability, Institute for Community Inclusion (2002) .............................................................. 18

Paul Wehman, W. Grant Revell, and Valerie Brooke, Competitive Employment: Has It Become the "First Choice" Yet?, 14 J. Disability Pol'y Stud. 163 (2003)............................... 22

Peter Blanck, Helen A. Schartz, & Kevin M. Schartz, Labor Force Participation and Income of Individuals with Disabilities in Sheltered and Competitive Employment: Cross-Sectional and Longitudinal Analyses of Seven States During the 1980s and 1990s, 44 Wm. & Mary L. Rev. 1029, 1088 (2003)................................................................. 24

Robert Evert Cimera, Supported Versus Sheltered Employment: Cumulative Costs, Hours Worked, and Wages Earned, 35 J. Vocational Rehabilitation 85, 90 (2011) ................ 25

Robert Evert Cimera, The Cost Trends of Supported Employment Versus Sheltered Employment, 28 J. Vocational Rehabilitation 15 (2008) .......................................................... 25

S.Rep. No. 116, 101st Cong, 1st Sess. 18 (1989) ............................................................................. 3

S.Rep. No. 116, 20; H.R.Rep. No. 485(II), 50................................................................................ 4

Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act........................................................................... 2

Susan Stefan, Beyond Residential Segregation: The Application of Olmstead to Segregated Employment Settings, 26 Ga. St. U. L. Rev. 875 (2010) ....................................... 22

Testimony of Senator Michael Enzi, Opportunities Too Few? Oversight of Federal Employment Programs for Persons with Disabilities, Hearing Before S. Comm. On Health, Education, Labor, and Pensions, 109th Cong. 3 (2005) .............................................. 21

vii- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

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TABLE OF AUTHORITIES (continued)

Page

Thomas Simmons & Robert Flexer, Business and Rehabilitation Factors in the Development of Supported Employment Programs for Adults with Disabilities, J. Rehabilitation (Jan-Mar. 1992)..................................................................................... 21, 22, 23

Whittaker, William G., "Treatment of Workers with Disabilities Under Section 14(c) of the Fair Labor Standards Act" (2005)....................................................................................... 21

Zana Marie Lutfiyya, Pat Rogan, & Bonnie Shoultz, Center on Human Policy, Supported Employment: A Conceptual Overview (1988) .............................................................. 19, 22, 23

viii- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 9 of 40 Page ID#: 356

I. Introduction This case challenges the pervasive segregation of persons with developmental disabilities
in sheltered workshops, in violation of the integration mandate of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, 12131 et seq. and the Rehabilitation Act, 29 U.S.C. § 794a, as well as the implementing regulations of the Department of Justice. 28 C.F.R 35.130(d), 28 C.F.R. Pt. 35, App. A. Doc. 1, Compl., ¶¶ 1-2, 8. As a direct result of the defendants' actions and inactions administering their employment system,1 which unnecessarily and excessively relies upon segregated employment settings, over 2,500 persons with disabilities remain in sheltered workshops, even though they are qualified and prefer to work in integrated employment settings, with the assistance of supported employment services.2
The defendants do not dispute that that they have placed thousands of persons with disabilities in sheltered workshops, and that sheltered workshops are segregated settings. See Community Leadership for Employment First in Oregon (2010) at 5, available at http://www.dhs.state.or.us/dd/supp_emp/docs/wise.pdf (hereafter "Call to Action Report"), attached as Exhibit 2 to the Plaintiffs' Motion for Class Certification (Doc. 13-1); Employment First Strategic Planning: Stakeholder Planning Group Meeting, Slide 3 (Jan. 27, 2012) (hereafter "PowerPoint Presentation"), attached as Exhibit 6 to the Plaintiffs' Motion for Class Certification (Doc. 13-4). Memorandum in Support of Defendants' Motion to Dismiss at 3 (hereafter "MTD"). Yet the defendants seek to dismiss the Complaint on the theory that Title II of the ADA applies only to residential institutions and has no relevance to segregated

1 The defendants include the Governor, and the directors of three public entities responsible for funding, administering, coordinating, licensing, monitoring, and overseeing employment services to persons with developmental disabilities: the Department of Human Services (DHS), the Office of Developmental Disability Services (ODDS), and the Office of Vocational Rehabilitation Services (OVRS).
2 An overview of employment services for persons with developmental disabilities, and specifically the nature, purpose, and consequences of sheltered workshops and supported employment, is set forth in Section III, infra.

1- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 10 of 40 Page ID#: 357

employment settings. Id. at 6-11. That position is inconsistent with the Department of Justice's Title II regulations, and directly contrary to the Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C., available at http://www.ada.gov/olmstead/q&a_olmstead.htm ("DOJ Olmstead Guidance"), attached as Exhibit 1. Because Title II clearly applies to all services provided by a public entity, including employment services, and because the integration mandate of Title II requires that public entities ensure that all of their services are provided in the most integrated setting possible – which sheltered workshops plainly are not – the plaintiffs have stated a legal claim under the ADA and the Rehabilitation Act. See Section II, infra.
The defendants cannot contest that they fund and provide supported employment services to some persons with developmental disabilities. See Powerpoint Presentation, Slide 10. Supported employment services are the program that the plaintiffs seek, that they are qualified for, and that would allow them to participate in an integrated employment setting. The defendants misread the Complaint and mischaracterize the remedy by claiming that the plaintiffs assert a right to competitive employment, which the defendants claim that they do not provide. MTD at 12-13. Rather, because the plaintiffs are seeking a service (supported employment) which the defendants undeniably do provide to some persons with developmental disabilities, and because this service is the vehicle by which the plaintiffs can participate in integrated employment settings, they have stated a claim under Title II of the ADA. See Section IV, infra.
Finally, the defendants claim that the plaintiffs are merely challenging the quality of the defendants' employment services, and that debates about the "standard of care" do not state a claim under the ADA. MTD at 13-14. Because the plaintiffs challenge the defendants' actions that perpetuate segregation through their maintenance of segregated workshops, not the quality of care of employment services, this argument is misplaced. See Section V, infra.
Therefore, because the plaintiffs have stated a claim under Title II of the ADA and Section 504 of the Rehabilitation Act, the defendants' Motion should be denied.

2- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 11 of 40 Page ID#: 358

II. The Unnecessary Segregation of Persons With Disabilities in Sheltered Workshops Violates Title II of the ADA.
A. The ADA Prohibits Discrimination in Employment and Employment-Related Services on the Basis of Disability.
In 1990, the United States Congress enacted the ADA "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). As the legislative history, express Findings, and specific mandates of Title II of the Act demonstrate, the ADA prohibits discrimination in both employment and employment services.3
1. The Legislative Background of the ADA. The ADA's legislative history evidences Congress's specific intent to ensure that people with disabilities receive equal opportunities to participate in gainful employment, including the right to participate in, and benefit equally from, employment services like job training and supported employment that often are necessary to participate in competitive employment. As to employment, Congress found that "[t]wo-thirds of all disabled Americans between the age of 16 and 64 [were] not working at all," even though a large majority wanted to, and were able to, work productively. S.Rep. No. 101–116, at 9. And Congress found that this discrimination flowed in significant part from "stereotypic assumptions" as well as "purposeful unequal treatment." 42 U.S.C. § 12101(a)(7). Garrett, 531 U.S. at 378 (Breyer, J., dissenting). In enacting the ADA, both branches of Congress concluded: [T]here is a compelling need to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with

3 The ADA was by no means Congress's first attempt to proscribe discrimination in employment against persons with disabilities. Indeed, in an appendix to his dissenting opinion in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), Justice Breyer catalogued a series of congressional acts intended to serve people with disabilities dating back to 1948. Id. at 390 App. B (Breyer, J., dissenting). Despite the existence of these laws, both the Senate and the House of Representatives determined that existing laws did not adequately address "the pervasive problems of discrimination that people with disabilities are facing." S.Rep. No. 116, 101st Cong, 1st Sess. 18 (1989); H.R. Rep No. 485(II), 101st Cong., 2d Sess. 47 (1990).

3- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 12 of 40 Page ID#: 359

disabilities and for the integration of persons with disabilities into the economic and social mainstream of American life. S.Rep. No. 116, 20; H.R.Rep. No. 485(II), 50 (emphasis added).
2. The ADA's Findings Specifically Address Employment and Recognize the Legacy of Segregation.
In the Findings and Purpose section of the ADA, Congress demonstrated its concern for the employment and economic self-sufficiency that comes with employment of people with disabilities:
(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication . . . and access to public services. . . . (7) the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals. 42 U.S.C. § 12101(a) (emphasis added). Just as the Findings reflected a particular congressional concern about employment and economic independence, they also addressed Congress's special concern that people with disabilities are improperly segregated in our society. Specifically, the Act states: (2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem . . . (5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities 42 U.S.C. § 12101(a) (emphasis added).
3. Courts Have Applied Title II Broadly to Cover All Forms of Services, Programs, and Activities Provided by a Public Entity.
In Title II of the ADA, Congress set forth a straightforward prohibition on discrimination:

4- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 13 of 40 Page ID#: 360
Subject to the provisions of this subchapter, 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. 42 U.S.C. § 12132 (emphasis added). The plain words of the statute provide that States are prohibited from discriminating or excluding persons with disabilities from any of their "services, programs, and activities." Moreover, as a remedial statute, the ADA must be broadly construed to effectuate its purposes. Barden v. City of Sacramento, 292 F.3d 1073, 1077 (9th Cir. 2002), quoting Hanson v. Med. Board, 279 F. 3d 1167, 1172 (9th Cir. 2002) (quoting Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 861 (1st Cir. 1998)(alteration in the original) ("Courts must construe the language of the ADA broadly in order to effectively implement the ADA's fundamental purpose of 'provid[ing] a clear and comprehensive mandate for the elimination of discrimination against individuals with disabilities'"). The Supreme Court has interpreted Title II to apply to a wide range of public services. Tennessee v. Lane, 541 U.S. 509, 524 (2004) (Title II of the ADA was enacted to remediate a wide range of disability discrimination including unjustified civil commitment, abuse and neglect of institutionalized individuals with disabilities, and discriminatory zoning laws.). In Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998), the Supreme Court, after deciding that a prison was a public entity for the purposes of Title II, rejected the defendants' argument that prisons do not provide any service, programs, or activities as defined by Title II, noting, "Modern prisons provide inmates with many recreational 'activities,' medical 'services,' and educational and vocational 'programs,' all of which at least theoretically 'benefit' the prisoners (and any of which disabled prisoners could be 'excluded from participation in')." Id. at 210.

5- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 14 of 40 Page ID#: 361

Other courts have applied Title II to all forms of services, programs, and activities of a public entity or an entity related to the public entity by a contract, license, or certification.4 As the Ninth Circuit has stated:

Attempting to distinguish which public functions are services, programs, or activities, and which are not, would disintegrate into needless hair-splitting arguments. The focus of the inquiry, therefore, is not so much on whether a particular public function can technically be characterized as a service, program, or activity, but whether it is a normal function of a governmental entity. Barden, 292 F.3d at 1076. Similarly, the Ninth Circuit, has applied Title II to include "all operations of a qualifying local government[.]" Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F. 3d 725, 731 (9th Cir. 1999) (emphasis added). In Bay Area, the court, in holding that zoning laws were covered by Title II of the ADA, noted that the sweeping language of the ADA "strongly suggests that § 12132 should not be construed to allow the creation of spheres in which public entities may discriminate on the basis of disability…" Id. at 731. It concluded that "Congress specifically rejected an approach that could have left room for exceptions to §12132's prohibition on discrimination by public entities." Id. See also Barden, 292 F.3d at 1077 (finding that sidewalk accessibility was covered under Title II and the Rehabilitation Act, based upon the legislative history of the statutes); Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th Cir. 1996) ("Congress intended to prohibit outright discrimination, as well as those forms of discrimination which deny disabled persons services disproportionately due to their disability"). The Ninth Circuit, in broadly interpreting Title II, has acknowledged that Congress intended to end the segregation of people with disabilities when it passed the ADA:

4 In keeping with this expansive interpretation of the scope of Title II and its integration mandate, courts have recognized a variety of services, programs, and activities as subject to Title II, including, among others, voting in public elections, Kerrigan v. Philadelphia Bd. of Election, 2008 WL 3562521 (E.D. Pa. Aug. 14, 2008); adult day health care, Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161 (N.D. Cal. 2009); in-home supportive service benefits, V.L. v. Wagner, 669 F. Supp. 2d 1106 (N.D. Cal. 2009); a state prison's grievance system and program for tracking the needs of disabled prisoners, Armstrong v. Schwarzenegger, 622 F.3d 1058 (9th Cir. 2010); and zoning, Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 45 (2d Cir. 1997, rev'd on other grounds by Zervos v. Verizon New York, 252 F.3d 163, 171 n.7 (2d Cir. 2001).

6- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 15 of 40 Page ID#: 362

[i]n enacting the RA and ADA, Congress intended to eliminate discrimination against individuals with disabilities, just as it had earlier passed legislation mandating equal treatment of African-Americans. "If a prison may not exclude blacks from the prison dining hall and force them to eat in their cells, and if Congress thinks that discriminating against a blind person is like discriminating against a black person," the prison may not exclude the blind person from the dining hall unless allowing him access would unduly burden prison administration. Armstrong v. Wilson, 124 F. 3d 1019, 1021-22 (9th Cir. 1997) (holding that California violated Title II by failing to provide accessible safety evacuation plans and an equal range of vocational and educational programs for prisoners with disabilities as compared to those provided to individuals without disabilities). The Ninth Circuit has also applied Title II to a variety of other programs and services. See Armstrong v. Schwarzenegger, 622 F.3d 1058 (9th Cir. 2010) (applying Title II to a state's prison grievance system and program for tracking the needs of prisoners with disabilities); Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001) (applying Title II to arrests and noting its applicability to prisoners); Armstrong v. Davis, 275 F.3d 849, 856 (9th Cir. 2001), cert den. 537 U.S. 812 (2002), abrogated on other grounds by Johnson v. California, 543 U.S. 499, 504-505 (2005) ("Armstrong II") (applying Title II to parole hearings and related programs); Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996) (applying Title II to prison disciplinary proceedings). Thus, this long line of cases demonstrates that the prohibition of discrimination applies with equal force to all services, programs, and activities of public entities like DHS, ODDS, and OVRS. Under any reasonable construction of Title II, state-operated, state-funded, or statelicensed employment services are plainly covered.
4. Title II of the ADA Prohibits Discrimination in Employment Services. Although Title II of the ADA does not specifically reference employment or employment-related services,5 both the legislative history and the regulations implementing

5 However, as noted at p. 4 above, the Findings and Purpose section of the ADA specifically states that the ADA covers employment.

7- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 16 of 40 Page ID#: 363

Title II reveal that the behavior prohibited of private employers under Title I, which is directed entirely to employment, employment training, and employment services, is similarly prohibited of public entities under Title II. A House of Representatives Report notes:
Unlike the other titles of this Act, title II does not list all of the forms of discrimination that the title is intended to prohibit. Thus, the purpose of this section is to direct the Attorney General to issue regulations setting forth the forms of discrimination prohibited. The Committee intends that the regulations under title II incorporate interpretations of the term discrimination set forth in titles I and III of the ADA to the extent that they do not conflict with the Section 504 regulations. H. REP. NO. 101-485(I) at 52 (1990), reprinted in 1990 U.S.C.C.A.N. at 475. Accordingly, a Title II regulation, 28 C.F.R. § 35.140, prohibits employment discrimination to the same extent that it is prohibited by the EEOC regulations implementing Title I, and, for those public entities that do not meet the criteria of Title I, prohibits employment discrimination to the same extent that it is prohibited by Section 504 of the Rehabilitation Act. Like the Title I regulations, the Rehabilitation Act regulations prohibit discrimination on the basis of disability in "[s]election and financial support for [employment] training," 28 C.F.R. § 41.52, and mandates that all federally-funded services, including employment services, be provided in the most integrated setting appropriate to the individual. 28 C.F.R. § 41.51(d). The Title II regulations also make all forms of discrimination that are illegal if conducted by a public entity similarly illegal if they are conducted by a private entity with which the public entity contracts, licenses, or certifies, as do DHS, OHHS, and OVRS with sheltered workshops. 28 C.F.R. § 35.130(b)(6). For instance, if a private entity discriminates against someone in the provision of job training, a public entity that licenses the private entity is liable for a violation of Title II of the ADA. Thus, discrimination and unnecessary segregation in job training programs may violate Title II regardless of whether a public entity provides the program directly or contracts with, funds, licenses, or certifies a private entity, such as a sheltered workshop.

8- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 17 of 40 Page ID#: 364

B. Title II Regulations Require Public Entities to Administer and Fund All of Their Services, Programs, and Activities in the Most Integrated Setting Possible.
As directed by Congress, the Attorney General promulgated regulations necessary to implement Title II, including its integration mandate: "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). Courts have interpreted both the integration mandate and the scope of Title II's coverage expansively.
Title II's integration mandate reflects the recognition that "[i]ntegration is fundamental to the purposes of the Americans with Disabilities Act. Provision of segregated accommodations and services relegates persons with disabilities to second-class status." 28 C.F.R. Pt. 35, App. B. The regulations implementing Title II define the "most integrated setting appropriate to the needs of qualified individuals" as "a setting that enables individuals with disabilities to interact with non-disabled persons to fullest extent possible." Id.
1. Unjustified Segregation of People with Disabilities Constitutes Discrimination Under the Title II of the ADA.
The integration mandate of Title II is explicitly focused on ending segregation and isolation of individuals with disabilities in all aspects of public services, benefits and programs. Olmstead, v. L.C., 527 U.S. 581 (1999); Arc of Washington State, Inc. v. Braddock, 427 F. 3d 615, 618 (9th Cir. 2005) (citations omitted) (describing Title II's integration mandate as "serv[ing] one of the principal purposes of Title II of the ADA: ending the isolation and segregation of disabled persons. To comply with the integration mandate, states are required to make "reasonable modifications in policies, practices, or procedures" that are "necessary to avoid discrimination on the basis of disability."); see also 28 C.F.R. § 35.130(d).6

6 The Department of Justice's interpretation of the integration mandate and other regulations must be afforded "great weight" and "substantial deference." Olmstead, 527 U.S. at 598 ("the well reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for

9- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 18 of 40 Page ID#: 365

Courts regularly rely on the integration mandate and the language of Title II itself in determining whether a public entity's conduct constitutes unlawful discrimination and/or segregation. In Olmstead, the Supreme Court, after reciting the integration regulation and the Attorney General's authority to promulgate it, plainly stated, "Unjustified isolation . . . is properly regarded as discrimination based on disability."7 The Supreme Court reviewed the harm of segregation, declaring that it "perpetuates unwarranted assumptions that persons so isolated are incapable or trustworthy of participating in community life" and that it "severely diminishes the everyday life activities of individuals including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment."8 Id. at 600–01. The Court held that Title II requires States to provide services in the most integrated setting possible, including shifting programs and services from segregated to integrated settings, unless such a shift would result in a fundamental alteration to their service systems. Id. at 607.
Courts have afforded the Department of Justice's integration mandate regulations considerable deference, both because Congress specifically directed the Attorney General to promulgate regulations implementing Title II in the text of the ADA itself and because under Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984), "Department of Justice regulations interpreting Title II should be given controlling weight unless they are 'arbitrary, capricious, or manifestly contrary to the statute.'" McGary v. City of Portland, 386 F.3d 1259, 1269 n. 6 (9th Cir. 2004)(quoting Chevron, 467 U.S. at 844). See also Armstrong v.

guidance." (internal quotations omitted); see also Barden, 292 F.3d at 1077 (deferring to DOJ's interpretation of sidewalk accessibility regulations promulgated under Title II of the ADA).
7 Even before Olmstead, the Third Circuit Court of Appeals stated, "[T]he ADA and its attendant regulations clearly define unnecessary segregation as a form of illegal discrimination against the disabled. Accordingly, the district court erred in holding that the applicable provisions of the ADA "may not be invoked unless there is first a finding of discrimination." Helen L. v. DiDario, 46 F.3d 325, 333 (3d Cir. 1995) (footnote omitted).
8 In another pre-Olmstead case, a court similarly described a key harm of segregation: "People are harmed educationally if they are kept in an unnecessarily segregated environment. Segregation is harmful to retarded persons; it leads to reduced learning, reduced freedom and reduced growth." Homeward Bound v. Hissom Memorial Center, 1987 WL 27104, at *13 (N.D. Okl., July 24, 1987).

10- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 19 of 40 Page ID#: 366

Schwarzenegger, 622 F.3d at 1065 (discussing the deference owed to a regulation implementing a different section of Title II).
More recently, the Department of Justice has issued its Olmstead Guidance. See Ex. 1. The Guidance is designed to announce the Department's official understanding and regulatory application of the Supreme Court's decision in Olmstead. The Guidance is designed "to assist state and local governments in complying with the ADA." Guidance at 1.
The Guidance describes the Supreme Court's Olmstead decision as prohibiting "the unjustified segregation of individuals with disabilities." It repeatedly refers to the prohibition on segregation throughout its six pages. Significantly, prohibited segregation is not limited to institutions or residential settings. Rather, the Guidance defines segregated settings as those that have "qualities of an institutional nature." It then identifies segregated settings as including:
(1) congregate settings populated exclusively or primarily with individuals with disabilities; (2) congregate settings characterized by regimentation in daily activities, lack of privacy or autonomy, policies limiting visitors, or limits on individuals' ability to engage freely in community activities and to manage their own activities of daily living; or (3) settings that provide for daytime activities primarily with other individuals with disabilities. Id. at 2 (emphasis added). In describing the characteristics of an Olmstead plan, the Guidance explicitly states that public entities have an obligation to provide opportunities to work in integrated settings, and then specifically mentions that individuals with disabilities can be unnecessarily segregated in sheltered workshops. Id. at 4. The Ninth Circuit has afforded the Department's regulations and even its legal position set forth in its amici briefs "considerable respect." See M.R. v. Dreyfus, 663 F.3d 1100, 1117 (9th Cir. 2011). In Dreyfus, the Court acknowledged the unique position of DOJ in interpreting and applying its own regulations, and specifically, the integration mandate regulation. Id. The plaintiffs in Dreyfus, like those in this case, all live in the community. Although the plaintiffs in Dreyfus challenged service reductions that placed them at risk of institutionalization, the Ninth Circuit's decision, which the defendants here repeatedly cite, see MTD at 5, 6, 7, 8, 9, 10, applies

11- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 20 of 40 Page ID#: 367

with equal force to all forms of prohibited segregation and reflects similar "respect" to DOJ's Guidance.9 See also Day v. District of Columbia, 2012 WL 456491 **4, 19 (D.D.C. Feb. 14, 2012) (citing with approval the Department's interpretation of the integration mandate set forth in its Guidance).
Other courts have given the integration regulation an expansive interpretation. In Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 187 (E.D.N.Y. 2009) [hereinafter DAI II], rev'd on other grounds sub nom, DAI v. New York Coalition for Quality Assisted Living, 2012 WL 1143588 (2d Cir. April 6, 2012), the court, referring to its earlier summary judgment decision (DAI I), noted:
In DAI I, the court resolved the parties' dispute regarding the meaning of the federal regulations and concluded that the proper inquiry is whether the individuals at issue "are in the 'most integrated setting appropriate to their needs,' defined as 'enabl[ing] individuals with disabilities to interact with nondisabled persons to the fullest extent possible.' " See DAI I, 598 F. Supp. 2d at 321 (citing 28 C.F.R. § 35.130(d), App. A and concluding that "the federal regulations mean what they say"). See also, e.g., Frederick L. v. Department of Public Welfare of Pennsylvania, 422 F.3d 151, 157 (3d Cir. 2005); Kerrigan v. Philadelphia Bd. of Election, 2008 WL 3562521 at *18-19 (assessing whether the integration mandate had been met with regard to "the program of voting," which "includes the opportunity to vote in one's local, assigned, polling place, where the voter can take advantage of the opportunities to meet election judges, see their neighbors, and obtain information from candidates' representatives," instead of looking only at the act of casting a ballot).

9 The defendants attempt to denigrate the importance of the Guidance, claiming that no court has relied upon it and it "fails in any way to address a key issue here…." In fact, the contrary is true. The Ninth Circuit's lengthy discussion of the deference due to the Department of Justice's interpretation of its own regulations was based upon its amici brief as well as the Guidance itself, both of which were filed and considered by the Court in Dreyfus, 663 F.3d at 1117 (finding DOJ's interpretation of its integration mandate regulation to be "not only reasonable; its also better effectuates the purpose of the ADA 'to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.' 42 U.S.C. § 12101(b)(2)." Id. at 1117-18.

12- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 21 of 40 Page ID#: 368

2. Employment Services are a Form of "Services, Programs, or Activities" Covered Under Title II of the ADA That Must Be Provided in the Most Integrated Setting Possible.
While it is true that most – but not all – cases concerning the integration mandate have typically focused on institutionalized persons who are subjected to residential segregation, the definition of "services, programs, and activities" as used in 42 U.S.C. § 12132 is not so limited and encompasses vastly more settings and contexts in which a person with a disability could be unlawfully segregated under Title II than an institution. As one court has held:
Under the applicable standard set forth in the regulations for what constitutes the 'most integrated setting,' a plaintiff need not prove that the setting at issue is an 'institution' to establish a violation of the integration mandate. Rather, a plaintiff must show that the setting does not 'enable interactions with nondisabled persons to the fullest extent possible.'" DAI II, 653 F. Supp. 2d at 223. Given the expansive interpretation of "services, programs, or activities" in judicial opinions and Title II's implementing regulations, the provision, funding, or administration of vocational services by a public entity clearly is covered under Title II and, accordingly, subject to its integration mandate. See, e.g., Yeskey, 524 U.S. at 210 (listing vocational services offered by some prisons as among those programs subject to the provisions of Title II). It is irrelevant whether the public entity itself delivers the vocational services and programs, so long as they have contracted with, certified, or licensed the entities that actually provide the services. See 28 C.F.R. §§ 35.130(b)(1); 35.130 (b)(3); 35.130 (b)(6).
C. Title II's Integration Mandate Is Not Limited to Residential Services or Institutions.
Contrary to the defendants' assertions, courts in other jurisdictions have also broadly applied Title II, including its integration mandate, beyond residential services. See Lovely H. v. Eggleston, 235 F.R.D. 248, 261 (S.D.N.Y. 2006) (applying the integration mandate to welfare benefits). In Lovely H., a sub-class of individuals with psychiatric disabilities sued the City of New York, alleging violation of their rights under Title II of the ADA for forcing them to go to

13- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 22 of 40 Page ID#: 369

one of three "hub" centers in NYC, while individuals without disabilities were permitted to go to numerous centers much more accessible to their homes. The district court granted the plaintiffs preliminary injunctive relief based upon on Olmstead and Title II's integration mandate, concluding that the City's policy of relegating them to three hub centers because of their disabilities violated the ADA because it fostered unjustified segregation and, therefore, was discriminatory. Id. at 261. Specifically, the court held that:
The ADA both requires all public entities to refrain from discrimination, see [42 U.S.C.A.] § 12132, and specifically identifies unjustified 'segregation' of persons with disabilities as a 'for[m] of discrimination,' see §§ [42 U.S.C.A.] 12101(a)(2), 12101(a)(5)." Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 583 (1999). Segregation under the ADA is permitted only in the specific and narrow circumstance where an agency establishes that such segregation is "necessary to provide qualified individuals with disabilities with aids, benefits or services that are as effective as those provided to others." 28 C.F.R. § 35.130(d). Even then, individuals with disabilities must be granted "the opportunity to participate in services, programs or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities." 28 C.F.R. § 35.130(b)(2). The current WeCARE program clearly violates the mandate that persons with disabilities be given the opportunity to participate in mainstream service delivery mechanisms…. Id. at 261 (footnotes omitted). Court have applied Title II's integration mandate to apply to a variety of public services beyond institutions and residential services, including accessible polling places, Kerrigan, 2008 WL 3562521 at *18-19; adult day health care, Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161; and in-home supportive services, V.L. v. Wagner, 669 F. Supp. 2d 1106 (N.D. Cal. 2009) and Oster v. Lightbourne, 2012 WL 691833 *15-16 (N.D. Cal. Mar. 2, 2012). Moreover, the Department of Justice has interpreted its own regulations broadly, and never suggested that the integration mandate is limited to residential services. To the contrary, its recent Olmstead Guidance shows that the integration regulation applies to a wide range of services and activities, including work, and that segregation settings include those that provide solely for "daytime activities primarily with other individuals with disabilities." Ex. 1 at 2.

14- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 23 of 40 Page ID#: 370
Finally, the Guidance specifically states that a sheltered workshop is a segregated setting for which an Olmstead plan is appropriate. Id. at 4.
The defendants' reliance on cases applying the integration mandate in the context of institutionalization or risk of institutionalization to support their unjustifiably narrow interpretation of the ADA is contradicted by other cases like Kerrigan, Lovely H., and DAI. Because the cases cited in the MTD at 6-11 were brought on behalf of individuals with disabilities who either were confined in large institutions or were at risk of such confinement, it is not surprising that these decisions focused on the segregation inherent in institutionalization. But, as evidenced by the plain words of Title II, the broad reach of the Department of Justice's regulations, and the plain words of the Department's Olmstead Guidance, public entities must ensure that all of their services, programs, and activities – not just their residential ones – are provided in the most integrated setting. Conversely, there is nothing in the statute, the regulations, or the Department's interpretation of their regulations which suggests that prohibited segregation only applies to institutions and does not extend to all services, programs, and activities provided by the public entity.10
Title II and its integration mandate apply well beyond residential services. The defendants' overly narrow interpretation is inconsistent with the well established law of this Circuit and other courts, the DOJ regulations, and basic principles of statutory construction requiring the broad interpretation of the ADA and the Rehabilitation Act. Therefore, to the extent that the Defendants' Motion is based upon this novel and restrictive view of the ADA, it should be denied.

10 Not surprisingly, the defendants do not point to any authority that limits the application of Title II's integration mandate to such cases.

15- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 24 of 40 Page ID#: 371

D. Oregon's Administration, Funding, and Provision of Segregated Employment Services Through Sheltered Workshops States a Claim Under Title II of the ADA.
DHS, through its ODDS and OVRS, plan, administer, fund, coordinate, and oversee Oregon's employment service system for persons with developmental disabilities. Compl., ¶¶ 80-83. That system places, maintains, and retains over 2,500 persons with developmental disabilities in sheltered workshops which, as explained in more detail in Section III(A), infra, undeniably are segregated settings. Id., ¶¶ 84-92. These same state agencies, all of which are public entities within the meaning of Title II of the ADA, have long recognized that sheltered workshops are segregated, facility-based settings, that sheltered workshops offer their clients virtually no contact with their non-disabled peers, that sheltered workshops often pay their workers less than $1.00 per hour, and that persons in sheltered workshops often spend years, if not decades in this setting, with no real hope of obtaining integrated employment. Id., ¶¶ 59-68. Similarly, these same public entities fund and provide supported employment services designed to allow individuals with developmental disabilities to work in integrated settings, have regular contact with non-disabled persons, earn at least the minimum wage, and reap considerable economic and other personal benefits. Id., ¶¶ 69-79. Despite providing supported employment to some persons with developmental disabilities, the defendants have planned, funded, and organized their employment services system in a manner that denies this service to most persons with developmental disabilities who are qualified for, would benefit from, and prefer to participate in supported employment. Id., ¶¶ 108-111. Therefore, the plaintiffs have established a cause of action under Title II to receive employment services in the most integrated setting.11

11 Because the facts in the Complaint are drawn heavily from the defendants' own reports, data, and service descriptions, these allegations include sufficient "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

16- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 25 of 40 Page ID#: 372

III. Overview of Employment Services for Persons With Disabilities In spite of the demonstrated ability and desire of people with disabilities to work,
Congress recognized that significant numbers of individuals with disabilities are not able to work at levels commensurate with their capabilities. Congress identified several reasons for this disproportionate unemployment of persons with disabilities including discrimination and a lack of training and supports necessary to secure, retain, regain or advance in employment. See, e.g., 29 U.S.C. § 720(a)(1)(D); 42 U.S.C. § 12101(a)(3), Compl., ¶ 56. Even the defendants have acknowledged that there is "a growing frustration experienced by advocates and individuals with intellectual and developmental disabilities due to continuing unacceptable rates of unemployment among Oregonians with disabilities." See Call to Action Report at 5.
Historically, sheltered workshops existed as the primary option for individuals with intellectual and developmental disabilities to pursue employment. A sheltered workshop, as evident by its name, is a service model based upon the stereotype that people with disabilities are not capable of succeeding in competitive employment, must be protected from the outside world, and can only work at menial tasks paying far less than the minimum wage. Compl., ¶ 59.
For many years, however, courts and disability professionals have regarded sheltered workshops as the last resort – a hopeless end point – for people with disabilities. Halderman v. Pennhurst State School & Hosp., 154 F.R.D. 594, 601 (E.D. Pa. 1994); Homeward Bound, Inc. v. Hissom Memorial Center, 1987 WL 27104 (N.D. Okla., July 24, 1987); Compl., ¶ 59. As a result, over the last several decades, the professional literature, research and consensus in the provision of publicly-funded employment services for persons with developmental disabilities have been that sheltered workshops are segregated, ineffective, and expensive programs that offer persons with disabilities no realistic opportunity to enter the workplace and to participate in meaningful economic activity with non-disabled peers. Instead, the same research has documented that supported employment is more successful in assisting persons with

17- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 26 of 40 Page ID#: 373

developmental disabilities to work in integrated settings, more preferred by persons with disabilities, and more cost-effective for public entities. Compl., ¶ 77.
A. Sheltered Workshops Are Segregated Employment Programs
1. Sheltered Workshops Are Segregated Settings Where Persons with Disabilities Have No Opportunity to Interact with Non-Disabled Peers.
One of the most salient features of sheltered workshops is the segregation and congregation of persons with disabilities in a setting that is divorced from all contact with real workplaces and persons without disabilities.12 In a typical sheltered workshop, individuals with disabilities work in congregate settings, often demarcated in practice, if not by official policy, from other program areas or settings.13 Michelle Morris, Heather Ritchie, & Lisa Clay, SECTION 14C OF THE FAIR LABOR STANDARDS ACT: FRAMING POLICY ISSUES, National Center on Workforce and Disability, Institute for Community Inclusion (2002) at 14, available at http://bbi.syr.edu/publications/morris/Policy_Report_042002.doc.
Most publicly funded sheltered workshops, where workers with developmental disabilities perform their duties in congregate settings alongside other people with disabilities and where their only opportunity for interaction with non-disabled individuals is in their interaction with their fully-compensated managers or supervisors, do not meet the ADA's integration regulation.14 See Albert Migliore, David Mank, Teresa Grossi, & Patricia Rogan,

12 The defendants have repeatedly acknowledged that sheltered workshops are segregated settings. Their most comprehensive employment report notes that, as of 2008, "71% of Oregonians with disabilities were in facility-based programs, supporting the claim that a majority of working age adults with significant disabilities are supported today in programs that offer segregation and long-term dependency regardless of cost." Call to Action Report at 6.
13 Prior to the 1986 amendments to the Fair Labor Standards Act, two different types of certificates were issued: one for work activities centers (WAC) and one for regular work programs (RWP). The regular work program applied to workers with disabilities who could earn at least 50% of the minimum wage, whereas the work activity centers served individuals with the most severe disabilities who could not meet the 50% compensation threshold. Participants in the two programs had to be physically segregated from each other.
14 These supervisory and program staff regularly receive minimum wage or better, while the disabled workers frequently are "paid" less than one dollar per hour. The contrast in

18- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 27 of 40 Page ID#: 374

Integrated Employment or Sheltered Workshops: Preferences of Adults with Intellectual Disabilities, Their Families, and Staff, 26 J. Vocational Rehabilitation 5, 6 (2007) [hereinafter Migliore, Mank, Grossi, & Rogan]; see also Zana Marie Lutfiyya, Pat Rogan, & Bonnie Shoultz, Center on Human Policy, Supported Employment: A Conceptual Overview (1988), available at http://thechp.syr.edu/workovw.htm [hereinafter Lutfiyya, Rogan, & Shoultz]. As the defendants recently acknowledged: sheltered employment "typically take place in settings such as sheltered workshops in which there is little or no contact with other workers without disabilities." PowerPoint Presentation, Slide 3.
By separating persons with developmental disabilities from their non-disabled persons, sheltered workshops engage in what Justice Ginsburg explained as one of the most pernicious consequences of segregation:
Second, [segregation] severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment. Olmstead, 527 U.S. at 601. When persons with disabilities are denied the opportunity to interact with citizens without disabilities – as they invariably are in most state-funded and licensed sheltered workshops – the very purpose of the ADA is thwarted.
2. Sheltered Workshops Have a Number of Attributes in Common with Segregated Institutions.
While a finding that sheltered workshops do not provide the maximum opportunity possible for interaction with non-disabled peers is sufficient to label it a segregated setting and to demonstrate a violation of Title II of the ADA, it is also significant that sheltered workshops share a number of additional attributes with the residential institutions that have been discredited and emptied in recent decades and the large adult homes that have more recently been criticized,

compensation, conditions of employment, and regulation is manifestly unequal, yet genuine differences in ability or even productivity may be minimal or non-existent.

19- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 28 of 40 Page ID#: 375

despite their physical location in communities. These attributes are precisely what the DOJ Guidance notes distinguishes segregated settings from integrated ones. Guidance at 2 (Ex. 1).
Many of the indices of institutionalization and segregation found applicable to residential institutions find ready parallels in the sheltered workshop context. In both institutions and sheltered workshops, large numbers of persons are congregated in separate settings where only persons with disabilities live or work. Both settings are usually large, often noisy, and quite unlike ordinary residential or commercial establishments. In both residential institutions and sheltered workshops, activities are highly regimented, with fixed schedules dictated by staff or supervisors, often for the convenience of staff or supervisors. Individualization in routines, activities, preferred patterns, or leisure time is noticeably absent. People spend their entire time living or working in the sheltered setting, with virtually no opportunity for contact with other residential or employment settings or local resources. They do not learn or gain independence, but instead, practice dependency and "learned helplessness." There are few opportunities to engage in other community activities or experiences. The training that is provided is not designed to, and clearly does not have the effect of, allowing persons with disabilities to learn skills that can be used in integrated settings. Not surprisingly, few individuals in residential institutions or sheltered workshops actually transition to more integrated settings.

3. Sheltered Workshops Do Not Lead to Integrated Work Opportunities. The alleged purpose of this segregation – to train persons with disabilities and prepare them for real jobs in real work settings – is illusory. To the contrary, sheltered workshops are, in almost all States and all programs, a permanent relegation to a separate and unequal job. By any measure, they are dead-end programs which employees rarely, if ever, leave. See, e.g., Jacobus tenBroek, The Character and Function of Sheltered Workshops, National Federation for the Blind (1995) (discussing conflicting purposes of sheltered workshops: to provide transitional services on a path toward competitive employment or to offer an indefinite opportunity for paid work to people with disabilities), available at http://www.blind.net/resources/employment/the-

20- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 29 of 40 Page ID#: 376

character-and-function-of-sheltered-workshops.html; Thomas Simmons & Robert Flexer, Business and Rehabilitation Factors in the Development of Supported Employment Programs for Adults with Disabilities, J. Rehabilitation (Jan-Mar. 1992), available at 1992 WLNR 4695411 [hereinafter Simmons & Flexer]; Lutfiyya, Rogan, & Shoultz.
Research demonstrates that no more than 5% of individuals in sheltered workshops ever transition into integrated employment. See Testimony of Senator Michael Enzi, Opportunities Too Few? Oversight of Federal Employment Programs for Persons with Disabilities, Hearing Before S. Comm. On Health, Education, Labor, and Pensions, 109th Cong. 3 (2005), available at http://www.gpo.gov/fdsys/pkg/CHRG-109shrg24480/html/CHRG-109shrg24480.htm (noting that fewer than 5% of participants in the federal Javits-Wagner-O'Day program move into supported or competitive employment in a given year); Michael Gill, The Myth of Transition, Contractualizing Disability in the Sheltered Workshop, 20 Disability & Soc'y 613 (2005) (citing a 2003 study which found that only 3.5% of sheltered workshop employees in the United States transitioned into community-based settings per year).
The "work" done under the typical subcontracts fulfilled by sheltered workshops is lowskilled, non-challenging manual labor. See Simmons & Flexer. This work does not provide training for integrated employment, largely because technology has made most of the manual labor that individuals in workshops perform obsolete in the "real world" job market. See Whittaker, William G., "Treatment of Workers with Disabilities Under Section 14(c) of the Fair Labor Standards Act" (2005), Federal Publications, Paper 209, at 18, available at http://digitalcommons.ilr.cornell.edu/key_workplace/209. Indeed, for many employees of sheltered workshops, the endless, daily routine of performing such mundane work causes both their vocational and social skills to atrophy, leading to an even lower likelihood that they will ever find work in the community as well as lowered expectations of themselves. See Simmons & Flexer.

21- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 30 of 40 Page ID#: 377

B. Supported Employment Are Integrated Employment Programs 1. Supported Employment Is Provided in Integrated Settings.
There is general agreement that a supported employment program should include four key elements: integration, paid work, individualized services, and ongoing supports, if needed. See Lutfiyya, Rogan, & Shoultz. There appears to be universal agreement among disability professionals that supported employment can and must serve individuals with disabilities of all levels of severity. See, e.g., David Mank, Alderbrook 2007, 29 J. Vocational Rehabilitation 53 (2008) [hereinafter Mank, Alderbrook 2007];15 Paul Wehman, W. Grant Revell, and Valerie Brooke, Competitive Employment: Has It Become the "First Choice" Yet?, 14 J. Disability Pol'y Stud. 163 (2003) [hereinafter Wehman, Revell, & Brooke];16 Lutfiyya, Rogan, & Shoultz.17 Similarly, Title I of the Rehabilitation Act reflects Congress's recognition that even individuals with the most significant disabilities have the ability to achieve gainful employment in integrated settings if appropriate services and supports are provided. 29 U.S.C. § 720(a)(3)(A); Compl. ¶ 55.
Because research has demonstrated that people learn best in real world situations, see Lutfiyya, Rogan, & Shoultz, many programs use a "place, then train" model of vocational instruction, providing initial training at the actual job site. See Simmons & Flexer. However, quality supported employment services rarely begin with immediate job placement or training. Rather, they first engage in person-centered planning with the individual, sometimes enlisting

15 As David Mank has noted, there is "well documented research that has emerged across the last forty years establishing that people with nearly any sort of disability label can, in fact, work productively, when provided the environment, training, technology, or other supports tailored to the person." Mank, Alderbrook 2007.
16 According to the authors, "Supported employment was never intended to serve the typical vocational rehabilitation customer: It was created for those people with truly significant disabilities who traditionally were not able to obtain competitive employment through typical VR services."
17 For a comprehensive review of the literature on supported employment from the perspective of the ADA, see Susan Stefan, Beyond Residential Segregation: The Application of Olmstead to Segregated Employment Settings, 26 Ga. St. U. L. Rev. 875 (2010).

22- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 31 of 40 Page ID#: 378

friends and family along with any legal guardian in a strengths-based assessment that considers the client's personal skills, needs, and preferences. See generally Simmons & Flexer; see also Aaron Gottlieb, William N. Myhill, Peter Blanck, Employment of People with Disabilities, International Encyclopedia of Rehabilitation, available at http://cirrie.buffalo.edu/encyclopedia/em/article/123 [hereinafter Gottlieb, Myhill, & Blanck] Only after this process is completed does a "job coach" begin identifying potential job placements, using information gathered during the individualized assessment as a guide. See Simmons & Flexer; see also Section IV(B) infra (describing Oregon's supported employment services).
Whereas a sheltered workshop looks for individuals to fill existing job slots based solely on the demands of its contracts, supported employment providers engage in the reverse process: they seek jobs that match the strengths and needs of their individual workers. Id. Moreover, they consider how jobs might be tailored to the needs of individuals with disabilities, identifying potential natural supports and negotiating with employers for reasonable accommodations as necessary. Supported employment providers only consider and place workers in integrated, competitive jobs that pay minimum-or-above wages. Once a person has been placed and initial on-the-job training completed, the job coach remains available to provide ongoing supports tailored to the individual's needs, which may well fluctuate over time. See Lutfiyya, Rogan, & Shoultz.
2. Supported Employment Has Been Proven to Be Both ClinicallyEffective and Cost Effective.
There is a large and ever-increasing body of research which indicates that supported employment provides significant benefits to people with developmental disabilities, particularly as compared to their peers in sheltered workshops.
One obvious benefit is enhanced income. A review of data from seven States on labor force participation and wages among people who had moved from institutional to community

23- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 32 of 40 Page ID#: 379

settings and who initially had worked in sheltered workshops found: "For those relatively few individuals who transitioned to integrated employment settings, employment in integrated settings resulted in substantial gains in earned income." Peter Blanck, Helen A. Schartz, & Kevin M. Schartz, Labor Force Participation and Income of Individuals with Disabilities in Sheltered and Competitive Employment: Cross-Sectional and Longitudinal Analyses of Seven States During the 1980s and 1990s, 44 Wm. & Mary L. Rev. 1029, 1088 (2003). Another study concluded that wages and hours worked in integrated employment settings are significantly higher, on average, than for individuals in sheltered workshops, while a survey in Maryland found that individuals in customized or supported employment earn 3.5 times more than those in sheltered employment. Gottlieb, Myhill, & Blanck.
The benefits that flow from integration within the community are another key aspect of supported employment. As one article explains, the gains from supported employment can be more significant than a simple increase in spending money for individuals with developmental disabilities. They may well provide the means to "greater independence and mobility in the community at large," creating opportunities for interaction with non-disabled persons above and beyond the integrated work site itself. See Grant Revell, John Kregel, Paul Wehman, and Gary R. Bond, Cost Effectiveness of Supported Employment Programs: What We Need To Do To Improve Employment Outcomes, 14 J. Vocational Rehabilitation 173 (2000) [hereinafter Revell et al.] see also Aaron Gottlieb, William N. Myhill, Peter Blanck, Employment of People with Disabilities, International Encyclopedia of Rehabilitation, available at http://cirrie.buffalo.edu/encyclopedia/em/article/123 [hereinafter Gottlieb, Myhill, & Blanck].
These benefits, and particularly those of integration, are especially consistent with the goals of the ADA and specifically its Finding on equal opportunity, full participation, and economic sufficiency. 42 U.S.C. § 12101(7). Supported employment has allowed individuals with disabilities "to pursue those opportunities for which our free society is justifiably famous,"

24- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 33 of 40 Page ID#: 380

and reduce the cost to the nation of "unnecessary expenses resulting from dependency and nonproductivity." 42 U.S.C. § 12101(8).
The defendants have recognized this key aspect of integration by defining integrated employment as "offering opportunities to interact with non disabled co-workers or the general public." PowerPoint Presentation, Slide 7. Furthermore, ODDS has directed that "employment opportunities in fully integrated work settings shall be the first and priority option explored in the service planning for working age adults with developmental disabilities. Call to Action Report at 32; DHS Employment First Website, http://www.dhs.state.or.us/dd/supp_emp/initiative.html, (last visited April 10, 2012).
These benefits also are consistent with the defendants' programmatic goals, which include:
a fundamental belief that employment is the key to full citizenship. A job can dramatically change the dynamics of an individual's life—providing structure to the day, a paycheck that can be used for purchasing goods and services, an identity as a contributing member of the community, an increase in personal self-esteem, expanded choices, and opportunities to develop friends and relationships. In short, employment is an avenue to a richer, fuller life. Employment is the key to becoming a valued member of society. Call to Action Report at 9. Research has demonstrated that the cumulative and per person cost of supported employment to the State is less, over time, than sheltered workshops. See Robert Evert Cimera, Supported Versus Sheltered Employment: Cumulative Costs, Hours Worked, and Wages Earned, 35 J. Vocational Rehabilitation 85, 90 (2011); Compl., ¶ 79. The defendants have acknowledged this cost differential, noting that "the cumulative costs generated by sheltered employees may be as much as three times higher than the cumulative costs generated by supported employees." Call to Action Report at 10, citing Robert Evert Cimera, The Cost Trends of Supported Employment Versus Sheltered Employment, 28 J. Vocational Rehabilitation 15 (2008).

25- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 34 of 40 Page ID#: 381

3. Supported Employment Maximizes the Productivity, Independence, and Personal Dignity of Persons with Disabilities.
Individualization is a core tenet of supported employment. Indeed, the defendants acknowledge the widely-accepted premise that "integrated employment is more valued than nonemployment, facility-based employment, or day habilitation in terms of employment outcomes." Call to Action Report at 7. For an individual who previously was segregated in a sheltered workshop, working at a job that is matched to her needs and preferences is an opportunity to personally experience the "paradigm shift from fitting people into programs to adapting services to people's needs." Migliore, Mank, Grossi, & Rogan. A job that reflects personal preferences, skills, and strengths, and that includes the individually-tailored supports necessary to perform the job well "may diminish stigma associated with having a disability because [it] emphasize[s] the person's abilities and productivity." Gottlieb, Myhill, & Blanck. Supported employment, like most gainful employment, promotes the individual's self worth and the community's perception of the individual's worth, allowing persons with disabilities to develop relationships, to participate as valued members of the community, and ultimately, to become less dependent on state services and more economically independent.
IV. The Complaint States a Claim for Integrated Supported Employment Services. A. The Complaint Seeks Supported Employment Services As a Means to Achieve Competitive Employment. The plaintiffs' Complaint alleges that the defendants have violated the ADA and the
Rehabilitation Act by excessively relying on segregated employment settings like sheltered workshops and failing to offer qualified persons with disabilities supported employment services. Compl. ¶¶ 184-186; 192-194. These services are necessary to allow persons with developmental disabilities to participate in integrated employment. Id. Since the defendants undeniably provide supported employment services, albeit in such limited supply as to force over 2,500 persons to

26- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 35 of 40 Page ID#: 382

remain in segregated workshops, the Complaint simply seeks to require the defendants to expand a program and services that they already provide.
The defendants mischaracterize the relief that the plaintiffs seek in their Complaint as "community-based jobs," and then attempt to support this mischaracterization with selective citations to the Complaint. Throughout their Complaint, however, the plaintiffs assert that defendants are in violation of Title II of the ADA and its implementing regulations by unnecessarily segregating the named plaintiffs and members of the plaintiff class in sheltered workshops and by failing to provide them supported employment services that would enable them to work in integrated employment settings. See Compl., ¶¶ 185-187, 192-195 (emphasis added). In their Prayers for Relief, the plaintiffs seek, among other requests, preliminary and permanent injunctions requiring the defendants to "administer, fund and operate its employment services system in a manner which does not relegate persons with intellectual and developmental disabilities to segregated workshops and which includes an adequate array of integrated employment and supported employment services, as to avoid segregation." Compl., § VII.3 (emphasis added). In essence, the crux of the relief that the plaintiffs are seeking is an increase in the amount and array of supported employment services that the defendants already provide.
B. Oregon Already Provides Supported Employment Services to Some Persons with Disabilities. 1. ODDS and OVRS Fund and Provide Supported Employment Services.
ODDS and OVRS are familiar with supported employment and currently provide such services to a small percentage of individuals with disabilities. For example, the defendants recently claimed that 423 persons participate in individual supported employment as part of the Comprehensive Waiver that serves a total of over 4,000 individuals with intellectual and developmental disabilities. PowerPoint Presentation, Slide 9. Furthermore, ODDS has indicated

27- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 36 of 40 Page ID#: 383

its hope to increase the number of individuals in "integrated employment." Call to Action Report at 8.
In spite of the meager numbers of individuals currently receiving supported employment services, the defendants have acknowledged that in the early 1990's, approximately 50% of individuals receiving employment services in the Comprehensive Waiver were working in supported employment situations. Call to Action Report at 5. The dramatic decrease in the percentage of waiver recipients participating in supported employment over the past two decades is not related to a decline in interest or qualifications for supported employment services, but instead, to a reduction in provider capacity, system capability, and training opportunities offered by the defendants. Thus, the defendants know how to provide – and do provide a limited amount of – supported employment services. In fact, Oregon was once a national leader in supported employment. Jane Steveley, Supported Employment for Oregonians with Developmental Disabilities: Recommendations for Action (2005), available at http://www.oregon.gov/DHS/vr/eep/se_dd_stevely.doc, at 17 ("the White Paper"), attached as Ex. 3 to the Plaintiffs' Motion for Class Certification (Doc. 13-2). To suggest now, as they do in their MTD, that "the defendants cannot and do not provide the service plaintiffs seek" is disingenuous.
2. ODDS and OVRS Recognize that Supported Employment Services Are a Necessary and Effective Means to Achieve Their Goals of Competitive Employment.
The defendants allegedly are committed to the principle that "employment opportunities in fully integrated work settings shall be the first and priority option explored in service planning for working age adults with disabilities." Call to Action Report at 32. The defendants have recognized that supported employment services are a necessary component to achieving that goal. As described in the defendants' own report, "[s]upported employment [is] a strategy for

28- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 37 of 40 Page ID#: 384

assisting individuals with disabilities to obtain and maintain employment by providing needed support to ensure success." White Paper at 3.
Because the defendants know how to provide supported employment services and have provided those services, at varying levels, for decades, the plaintiffs have stated a claim under Title II of the ADA for supported employment services necessary to allow them to participate in integrated employment settings. V. The Complaint Does Not Seek Any Particular Standard of Care.
The defendants incorrectly assert that the plaintiffs' challenge to segregated employment programs constitutes no more than a demand for a certain standard of care. MTD at 13-15. This both mischaracterizes the Complaint and ignores the defendants' own characterization of sheltered workshops as segregated settings and supported employment as an integrated program. To the extent that Oregon plans, administers and delivers employment services to persons with disabilities, those services must comply with the ADA. Olmstead v. L.C., 527 U.S. at 603 n. 14 ("States must adhere to the ADA's non-discrimination requirement with regard to the services they in fact provide."). The Complaint plainly states a claim that Oregon fails to ensure that the entities that it funds, coordinates, and relies upon to provide employment services do so in compliance with Title II of the ADA. Compl., ¶ 184-186.
A. Oregon Uses Various Entities and Processes to Plan, Administer, and Deliver Employment Services to Persons with Disabilities.
As described in greater detail in the plaintiffs' Complaint, DHS plans, funds, and oversees all developmental disability services and vocational rehabilitation services, including the employment service system, for persons with intellectual and developmental disabilities in Oregon. Compl., ¶ 81. DHS determines the amount and allocation of funding for these services and that system, including the range of employment services, the licensing of employment providers, and the level of funding for sheltered workshops versus supported employment programs. Compl., ¶ 81.

29- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 38 of 40 Page ID#: 385

ODDS plans, administers, and directly manages the long-term employment service system for persons with developmental disabilities, including all sheltered workshops and supported employment services. Compl., ¶ 82. Specifically, ODDS has the primary responsibility for developing, implementing, and overseeing all employment programs for persons with developmental disabilities. Compl., ¶ 82. ODDS sets goals, establishes priorities, creates plans, adopts policies and procedures, determines reimbursement rates, collects data, and takes actions with respect to the statewide employment service system. Compl., ¶ 82. On an individual level, ODDS is responsible for overseeing the development and implementation of Individual Service Plans for individuals with developmental disabilities, which are supposed to include professionally-appropriate assessments for employment services. Compl., ¶ 83.
OVRS is responsible for completing a comprehensive vocational assessment and determining the employment needs and potential of individuals with intellectual and developmental disabilities. Compl., ¶ 86. OVRS identifies jobs, contracts with supported employment agencies, and provides job training, job coaching and support. Compl. ¶ 86.
B. Oregon Is Responsible for Ensuring That the Entities Which It Funds, Coordinates, and Relies Upon to Provide Employment Services to Persons with Disabilities Do So in Compliance with Title II of the ADA.
The defendants, relying on M.K. v. Sergi, 554 F. Supp. 2d 175 (D. Conn. 2008), argue that the plaintiffs are merely challenging the quality or level of the defendants' employment services.18 However, a plain reading of the Complaint shows that the plaintiffs are challenging the defendants' actions in perpetuating segregation through their reliance upon sheltered workshops, not the quality of employment services.19

18 In Sergi, the district court held that time limits imposed by Connecticut's Department of Children and Families on the amount of child protective services offered in the community, when no limits existed on the level of institutional services, did not state a claim for discrimination under the ADA because the plaintiffs were effectively challenging the standard of care or level of benefits. Id. at 197.
19 Sergi is instructive, however, because the district court in that case emphasized Olmstead's holding, which requires that States must adhere to the ADA's non-discrimination

30- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 39 of 40 Page ID#: 386

Moreover, the district court's reasoning in M.K. was rejected by the Ninth Circuit in M.R. v. Dreyfus, 663 F.3d 1100 (9th Cir. 2011). In that case, the Court held that the plaintiffs were entitled to a preliminary injunction barring the enforcement of a state regulation that reduced the level of in-home personal care services, because the regulation violated the integration mandate of the ADA. Thus, at least in this circuit, a reduction in the level or amount of integrated services, when that reduction results in segregated services, can constitute a valid claim under the ADA. Here, the Complaint challenges the defendants' discriminatory actions which result in the plaintiffs' current segregation in sheltered workshops, and in no way contests the level or quality of care in employment services. Therefore, the failure to provide integrated employment services, through supported employment services, presents a claim under the integration mandate of the ADA. VI. Conclusion
For the reasons set forth above, the Court should deny the Defendants' Motion to Dismiss.
DATED this 20th day of April, 2012.
Respectfully submitted, PERKINS COIE LLP /s/ Lawrence H. Reichman Stephen F. English, OSB No. 730843 E-mail: senglish@perkinscoie.com Lawrence H. Reichman, OSB No. 860836 E-mail: lreichman@perkinscoie.com Nathan R. Christensen, OSB No. 093129 E-mail: nchristensen@perkinscoie.com 1120 N.W. Couch Street, Tenth Floor Portland, Oregon 97209 Telephone: (503) 727-2000 Fax: (503) 727-2222

requirement with regard to the services they do, in fact, provide. Id; citing, Olmstead v. L.C., 527 U.S. 581, 603, n. 14 (1999).

31- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

Case 3:12-cv-00138-ST Document 35 Filed 04/20/12 Page 40 of 40 Page ID#: 387
CENTER FOR PUBLIC REPRESENTATION Steven J. Schwartz (admitted pro hac vice) E-mail: sschwartz@cpr-ma.org Cathy E. Costanzo (admitted pro hac vice) E-mail: ccostanzo@cpr-ma.org Bettina Toner (admitted pro hac vice) E-mail: btoner@cpr-ma.org 22 Green Street Northampton, Massachusetts 01060 Telephone: (413) 586-6024 Fax: (413) 586-5711 DISABILITY RIGHTS OREGON Kathleen L. Wilde, OSB No. 971053 E-mail: kwilde@droregon.org James A. Wrigley, OSB No. 904134 E-mail: jwrigley@droregon.org Theodore E. Wenk, OSB No. 001239 E-mail: ted@droregon.org 610 S.W. Broadway, Suite 200 Portland, Oregon 97205 Telephone: (503) 243-2081 Fax: (503) 243-1738 MILLER NASH LLP Bruce A. Rubin, OSB No. 763185 E-mail: bruce.rubin@millernash.com Justin C. Sawyer, OSB No. 014057 E-mail: justin.sawyer@millernash.com Jennifer J. Roof, OSB No. 001586 E-mail: jennifer.roof@millernash.com 111 S.W. Fifth Avenue, Suite 3400 Portland, Oregon 97204 Telephone: (503) 224-5858 Fax: (503) 224-0155 Attorneys for Plaintiffs

32- PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
78295-0001/LEGAL23423473.1

Perkins Coie LLP 1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128 Phone: 503.727.2000
Fax: 503.727.2222

 </s> Case 3:12-cv-00138-ST Document 42 Filed 05/24/12 Page 1 of 8 Page ID#: 443

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

PAULA LANE, et a!., Plaintiffs,
v.
JOHN KITZHABER, et aI., Defendants.

Case No.: 3:12-cv-00138-ST PROTECTIVE ORDER

This action concerns individuals with intellectual and/or developmental disabilities who are in or who have been refell'ed to sheltered workshops. The parties will be requesting and producing documents and information that one party contends or both patties contend contain confidential information and that are subject to protection under Federal Rule of Civil Procedure 26(c). This includes documents and information relating to the fuJI actual names and photographs and videotapes that depict the faces of the individual plaintiffs, members of the plaintiff class or their families, or other personally identifiable information about the plaintiffs,
Page 1 - Protective Order

Case 3:12-cv-00138-ST Document 42 Filed 05/24/12 Page 2 of 8 Page ID#: 444
class members or family members, other persons with intellectual andlor developmental disabilities who receive or have received services from defendants, their contractors, or their agents, and persons who have been or may be referred for services from defendants, including students transitioning from high schools. This information also includes protected health care information ("PHI") as described in the Health Insurance Portability and Acconntability Act of 1996 ("HIPAA") and its implementing regulations, 45 c.P.R. 164.512. The parties contend that good canse exists to protect the confidential nature of the information contained in docnments, interrogatory responses, responses to reqnests for admission, and deposition testimony, and that a protective order is needed to protect against disclosure of such documents and information.
The Court has reviewed the reasons offered in support of entry of this Protective Order, and finds that there is good cause to protect the confidential nature of certain information. Accordingly, the Court hereby ORDERS as follows:
I. All documents, testimony and other materials identified above produced by the parties or any third party or entity in this case, other than PHI, shall be labeled "Confidential." All documents and other materials that contain PHI, as defined above, are automatically deemed Confidential and need not be further labeled.
2. Use of any information or documents labeled "Confidential" or PHI and subject to this Protective Order, including all information derived therefrom, shall be restricted solely to the litigation of this case and shall not be used by any party for any other purpose, with the following two exceptions: (I), the State of Oregon may use or disclose information or documents for legitimate law enforcement purposes; or (2) information or documents may be used if the person who is the subject of such confidential material, or that person's legal guardian, authorizes its use for any other purpose. This Protective Order, however, does not restrict the disclosure or use of any information or documents lawfully obtained by the receiving party through means or sources outside of this litigation. Should a dispute arise as to any
Page 2 - Protective Order

Case 3:12-cv-00138-ST Document 42 Filed 05/24/12 Page 3 of 8 Page ID#: 445
specific information or document, the burden shall be on the party claiming that such information or document was lawfully obtained through means and sources outside of this litigation.
3. The parties, and third parties snbpoenaed by one of the parties, may designate as "Confidential" documents, testimony, written responses, or other materials produced in this case if they contain information that the producing party has a good faith basis for asserting is confidential under the applicable legal standards. The party shall designate each page of the document with a stamp identifying it as "Confidential," if practical to do so. All documents and other materials that contain PHI, as defined above, are automatically deemed Confidential and need not be further designated.
4. If portions of documents or other materials deemed "Confidential" or any papers containing or making reference to such materials are filed with the Court, other than PHI, they shall be filed nnder seal and marked as follows or in substantially similar form:
CONFIDENTIAL IN ACCORDANCE WITH A PROTECTIVE ORDER, THE ENCLOSURE(S) SHALL BE TREATED AS CONFIDENTIAL AND SHALL NOT BE SHOWN TO ANY PERSON OTHER THAN THOSE PERSONS DESIGNATED IN PARAGRAPH 7 OF THE PROTECTIVE ORDER. If a party is filing a document that it has itself designated as "Confidential," that pmty shall reference this Protective Order in submitting the documents it proposes to maintain nnder seal. If a non-designating party is filing a document that another party has designated as "Confidential," then the non-designating party shall file the document under seal. If the non-designating party makes a request in writing to have the document unsealed and the designating party does not file, within ten calendar days, a motion that shows good cause to maintain the document under seal, then the Court shall unseal the document. Before seeking to
Page 3 - Protective Order

Case 3:12-cv-00138-ST Document 42 Filed 05/24/12 Page 4 of 8 Page ID#: 446
maintain the protection of documents filed with the Court, a party must assess whether redaction is a viable alternative to complete nondisclosure.
5. Within 30 days after receipt of the final transcript of the deposition of any party or witness in this case, a party or the witness may designate as "Confidential" any portion of the transcript that the party or witness contends discloses confidential information. If a transcript containing any such material is filed with the Court, it shall be filed under seal and marked in the manner described in paragraph 4. Unless otherwise agreed, all deposition transcripts shall be treated as "Confidential" until the expiration of the 30-day period.
6. "Confidential" information and documents subject to this Protective Order, other than PHI shall not be filed with the Court or included in whole or in part in pleadings, motions, briefs, etc., filed in this case, except when any portiones) of such pleadings, motions, briefs, etc., have been filed under seal by counsel and marked in the same manner as described in paragraph 4 above. Such sealed portiones) of pleadings, motions, briefs, documents, etc., shall be opened only by the Court or by personnel authorized to do so by the Court.
7. At the time either party decides to file PHI, it shall determine whether the material remains confidential and protected, and if so, how the PHI and the identity of the person to whom it pertains shall be protected. A patty may file PHI and references to PHI using initials, to protect the identity of the person, or the material may be redacted or filed under seal.
8. Use of any information, docnments, or portions of documents marked "Confidential," including PHI and including all information derived therefrom, shall be restricted solely to the following persons, who agree to be bound by the terms of this Protective Order, unless additional persons are stipulated by counselor authorized by the Court:
a. counsel of record for the parties, and the administrative staff of counsel's firms;
Page 4 - Protective Order

Case 3:12-cv-00138-ST Document 42 Filed 05/24/12 Page 5 of 8 Page ID#: 447
b. any party to this action who is an individnal" every employee or agent of every administrative office andlor agency that the individual defendants administer, and every employee, director, officer, or manager of any party to this action who is not an individual, but only to the extent necessary to further the interest of the parties in this litigation;
c. independent consultants or expert witnesses (including partners, associates, employees and assistants under the control of such an expert or consultant) retained by a party or its attorneys for purposes of this litigation, whether or not such expert is paid directly by a party, but only to the extent necessary to further the interest of the parties in this litigation.
d. any deposition or trial witness;
e. any person who authorized or received the particular confidential material sought to be disclosed to that person;
f. the Court and its personnel, including, but not limited to, stenographic reporters regularly employed by the Court and stenographic reporters not regularly employed by the Court who are engaged by the Court or the parties during the litigation of this action;
g. any court reporter or videographer reporting a deposition;
h. employees of copy services, microfilming or database services, trial support firms andlor translators who are engaged by the parties during the litigation of this action.
9. Prior to being shown any documents produced by another party marked "Confidential," other than PHI, any person listed under paragraph 7(b), 7(c), and 7(d) shall agree to be bonnd by the terms of this Order by signing the agreement attached as Exhibit A.
10. Whenever information designated as "Confidential" pursuant to this Protective Order is to be discussed by a party or disclosed in a deposition, hearing, or pre-trial proceeding, the designating party may exclude from the room any person, other than persons designated in paragraph 7, as appropriate, for that portion of the deposition, hearing or pre-trial proceeding.
Page 5 - Protective Order

Case 3:12-cv-00138-ST Document 42 Filed 05/24/12 Page 6 of 8 Page ID#: 448
11. Each party reserves the right to dispute the confidential or PHI status claimed by any other party or subpoenaed party in accordance with this Protective Order. If a party believes that any documents or materials have been inappropriately designated by another party or subpoenaed party, that party shall confer with counsel for the designating party. As part of that conferral, the designating party must assess whether redaction is a viable alternative to complete non-disclosure. If the parties are unable to resolve the matter informally, the party objecting to the confidential or PHI status of a document may file an appropriate motion before the Court. In response to a motion brought pursuant to this paragraph, the designating party must show good cause to maintain the Protective Order as to the document in dispute. A party who disagrees with another party's designation mnst nevertheless abide by that designation until the matter is resolved by agreement of the parties or by order of the Court.
12. The inadvertent failure to designate a document, testimony, or other material as "Confidential" prior to disclosure shall not operate as a waiver of the party's right to later designate the document, testimony, or other material as "Confidential." The receiving party or its counsel shall not be held liable, however, for disclosure of such documents or materials if that party or counsel did not know or should not reasonably have known that a claim of confidentiality would be made by the producing party. Promptly after receiving notice from the producing party of a claim of confidentiality, the receiving party or its counsel shall inform the producing party of all pertinent facts that are not protected from disclosure by the attorney-client privilege, work-product doctrine, or the Federal Rules of Civil Procedure relating to the timing of disclosure of expert witnesses relating to the prior disclosure of the newly-designated documents or materials, and shall make reasonable efforts to retrieve such documents and materials and to prevent further disclosure.
13. Designation by either party of information or documents as "Confidential," or failure to so designate, will not constitute an admission that infOl'mation or
Page 6 - Protective Order

Case 3:12-cv-00138-ST Document 42 Filed 05/24/12 Page 7 of 8 Page ID#: 449

documents are or are not confidential. Neither party may introduce into evidence in any

proceeding between the parties the fact that the other party designated or failed to designate

information or documents as "Confidential."

14. Within 30 days after the entry of a final judgment no longer snbject to

appeal on the merits of this case, or the execntion of any agreement between the parties to

resolve amicably and settle this case, protected health information snbject to HIPAA, including

all copies, must either be returned to the providing party or destroyed at that time, as provided in

45 C.F.R. 164.512(e)(l)(v). Counsel for a party may retain archival copies of confidential

documents, other than protected health information.

15. This Protective Order shall not constitute a waiver of any party's or

non-party's right to oppose any discovery request or object to the admissibility of any document,

testimony or other information.

16. Nothing in this Protective Order shall prejudice any party from seeking

amendments to expand or restrict the rights of access to and use of confidential information, or

other modifications, subject to order by the Court.

17. The restrictions on disclosure and use of confidential information shall

survive the conclusion of this action and this Court shall retain jurisdiction of this action after its

conclusion for the purpose of enforcing the terms of this Protective Order.

IT IS SO ORDER

DATED:

uV ,::YJ: ,_)0lee·)

(

Janice Stewart, u.s. District Court Magistrate Judge

Page 7 - Protective Order

Case 3:12-cv-00138-ST Document 42 Filed 05/24/12 Page 8 of 8 Page ID#: 450

EXHIBIT A

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

PAULA LANE, et al., Plaintiffs,
v.
JOHN KITZHABER, et al., Defendants.

Case No.: 3:12-cv-00138-ST

I, _ _ _ _ _ _ _ _ _ _ _, have been advised by counsel of record for _ _ _ _ _ _ _ _ _ _ _ _ in the above-captioned case of the protective order governing the delivery, publication, and disclosure of confidential documents and information produced in this litigation. I have read a copy of the protective order and agree to abide by its terms.

Signed Printed Name Date

Page I - Exhibit A to Protective Order

PDXDOCS:1962145.1

 </s> Case 3:12-cv-00138-ST Document 43 Filed 05/29/12 Page 1 of 53 Page ID#: 451

Kathleen L. Wilde, OSB No. 971053 kwilde@dro.org James A. Wrigley, OSB No. 904134 jwrigley@dro.org Theodore E. Wenk, OSB No. 001239 ted@dro.org DISABILITY RIGHTS OREGON 610 S.W. Broadway, Suite 200 Portland, Oregon 97205 Telephone: (503) 243-2081 Fax: (503) 243-1738
Attorneys for Plaintiffs
[ADDITIONAL COUNSEL APPEAR ON SIGNATURE PAGE]
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

PAULA LANE, ANDRES PANIAGUA, ELIZABETH HARRAH, ANGELA KEHLER, GRETCHEN CASON, LORI ROBERTSON, SPARKLE GREEN, AND ZAVIER KINVILLE,
on behalf of themselves and all others similarly situated, and
UNITED CEREBRAL PALSY OF OREGON AND S.W. WASHINGTON,
Plaintiffs, v.
JOHN KITZHABER, Governor of the State of Oregon; ERINN KELLEY-SIEL, Director of the Oregon Department of Human Services; MARY LEE FAY, Administrator of the Office of Developmental Disability Services; STEPHAINE PARRISH TAYLOR, Administrator of the Office of Vocational Rehabilitation Services,
all in their official capacities,
Defendants.

Case No.: 3:12-cv-00138-ST
CLASS ACTION ALLEGATION FIRST AMENDED COMPLAINT

Page 1 - Class Action First Amended Complaint

Case 3:12-cv-00138-ST Document 43 Filed 05/29/12 Page 2 of 53 Page ID#: 452
I. INTRODUCTION 1. Plaintiffs Paula Lane, Andres Paniagua, Elizabeth Harrah, Angela Kehler,
Gretchen Cason, Lori Robertson, Sparkle Green, and Zavier Kinville are persons with intellectual or developmental disabilities. Each of these individuals is qualified for and receives employment services from the Oregon Department of Human Services (DHS). Although each is qualified and would prefer to work in an integrated employment setting, the plaintiffs remain unnecessarily segregated in sheltered workshops and are denied virtually all contact with nondisabled persons in these workshops, as a result of DHS's administration, management, and funding of its employment service system.
2. Thousands of other similarly-situated individuals in the State of Oregon also are unnecessarily segregated because of DHS's over-reliance on sheltered workshops, and its failure to timely develop and adequately fund integrated employment services, including supported employment programs.
3. A sheltered workshop is a segregated employment setting that employs people with disabilities or where people with disabilities work separately from others. Sheltered workshops are usually located in a large, institutional facility. Workers with disabilities in these settings have virtually no contact with their non-disabled peers, other than agency staff, and are typically paid sub-minimum wage.
4. By contrast, integrated employment is a real job in a community-based business setting, where employees have an opportunity to work alongside non-disabled co-workers and earn at least minimum wage. Supported employment services are vocational training services
Page 2 - Class Action First Amended Complaint

Case 3:12-cv-00138-ST Document 43 Filed 05/29/12 Page 3 of 53 Page ID#: 453
that prepare and allow people with intellectual and developmental disabilities to participate in integrated employment.
5. DHS currently funds some supported employment services that permit some persons with intellectual and developmental disabilities to work in integrated employment settings. But thousands of other similarly-situated individuals are unable to obtain such supports because DHS administers, manages, and funds an outdated employment service system that primarily relies upon segregated sheltered workshops.
6. DHS and the other defendants have failed to timely develop and adequately fund supported employment services, despite their demonstrated knowledge of how to provide these services to support people in integrated employment, their acknowledgement of the benefits of integrated employment, and their repeated public commitment to policies designed to expand integrated employment.
7. The named plaintiffs and the class they seek to represent are harmed by their placement in segregated sheltered workshops. Without meaningful supported employment services, the named plaintiffs and the plaintiff class are stuck in long-term, dead-end, facilitybased sheltered workshops that offer virtually no interaction with non-disabled peers, that do not provide any real pathway to integrated employment, and that provide compensation that is well below minimum wage.
8. The needless segregation of the named plaintiffs and the plaintiff class is a violation of their rights under federal law. The defendants are violating the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA) and the Rehabilitation Act, 29 U.S.C. § 794 (§
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504), by unnecessarily segregating the named plaintiffs and members of the plaintiff class in sheltered workshops.
9. Through this action, the named plaintiffs and the plaintiff class seek injunctive and declaratory relief for the defendants’ ongoing violation of the ADA and the Rehabilitation Act. They seek an order from this Court directing the defendants to end their needless segregation in sheltered workshops and to provide them with supported employment services for which they are eligible and that would prepare, support and allow them to participate in competitive employment in integrated settings. II. JURISDICTION AND VENUE
10. This action is brought pursuant to Title II of the ADA, 42 U.S.C. §§ 12101 and 12131 et seq. and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The defendants are all public entities subject to Title II of the ADA and all receive federal funds, thereby subjecting them to Section 504 of the Rehabilitation Act.
11. This Court has jurisdiction over the claims pursuant to 28 U.S.C. § 1331, 42 U.S.C. § 12133 (ADA claims) and 29 U.S.C. § 794a (Rehabilitation Act claims).
12. The plaintiffs’ request for declaratory relief is brought pursuant to 28 U.S.C. § 2201 and Rule 57 of the Federal Rules of Civil Procedure. Injunctive relief is authorized by 28 U.S.C. § 2202 and Rule 65 of the Federal Rules of Civil Procedure.
13. Venue is proper in the District of Oregon pursuant to 28 U.S.C. 1391(b).
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III. THE PARTIES A. The Named Plaintiffs 14. Plaintiff Paula Lane is a 48-year-old woman with intellectual and developmental
disabilities. She resides in Aloha, Oregon. 15. Plaintiff Andres Paniagua is a 32-year-old man with spina bifida. He lives in
Beaverton, Oregon. 16. Plaintiff Elizabeth Harrah is a 32-year-old woman with Down Syndrome, an
intellectual disability, and some medical and mental health conditions. She resides in Gladstone, Oregon.
17. Plaintiff Angela Kehler is a 48-year-old woman with developmental disabilities including Down Syndrome. She lives in Portland, Oregon.
18. Plaintiff Gretchen Cason is a 27-year-old woman with developmental disabilities including Down Syndrome. She resides in Portland, Oregon.
19. Plaintiff Lori Robertson is a 51-year-old woman with intellectual disabilities. She resides in Portland, Oregon.
20. Plaintiff Sparkle Green is a 28-year-old woman with intellectual disabilities. She lives in Beaverton, Oregon.
21. Plaintiff Zavier Kinville is a 27-year-old man with developmental disabilities. He resides in Gresham, Oregon.
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B. The Organizational Plaintiff 22. United Cerebral Palsy of Oregon and Southwest Washington (UCP) is a statewide, nonprofit organization that serves adults, children and families experiencing cerebral palsy and intellectual and developmental disabilities. 23. UCP’s mission is to advance the independence, productivity and full citizenship of individuals with intellectual and developmental disabilities. It fulfills that mission by promoting and operating various programs, including: supported living; community inclusion; support services brokerage; customized and supported employment services to obtain community-based jobs at minimum wage or better; support groups; respite; training for families; outings for children, families and young adults; conferences; advocacy; and information and referral services. 24. UCP, as a statewide advocacy agency, has long monitored and attempted to influence the actions of the defendants in order to ensure that persons with intellectual and developmental disabilities receive the employment services to which they are entitled. UCP has expended, and continues to expend, considerable resources attempting to transform Oregon's employment service system by increasing supported employment programs and decreasing its reliance on sheltered workshops. As a result, UCP’s resources have been diverted, and it has been hindered in its ability to serve its clients and to expand the organization’s capacity to provide supported employment services. 25. UCP has been directly harmed by the defendants' failure to implement, fund, and administer employment services in integrated employment settings. It brings this action on its own behalf.
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C. The Defendants 26. Defendant John Kitzhaber is the Governor of the State of Oregon. He is responsible for directing, supervising and controlling the executive departments of state government as well as for seeking and expending funds from the legislature to implement the programs and to deliver the services of those executive agencies. He is responsible for developing a bi-annual budget proposal, and for approving a final budget and budget modifications that include funding for the Department of Human Services (DHS) and the employment service system administered by DHS. He also has the authority to require executive agencies like DHS to reallocate appropriated funds to address pressing needs or other legal requirements. 27. Defendant Kitzhaber appoints the Director of DHS, and approves the appointment of the Administrator of the Office of Developmental Disability Services (ODDS) and the Administrator of the Office of Vocational Rehabilitation Services (OVRS). He has authority to issue proclamations and executive orders regarding employment services for individuals with disabilities and has issued several proclamations and orders directly related to employment services for persons with disabilities. He is responsible for ensuring that DHS fully implements the Governor’s policies concerning integrated employment for individuals with disabilities. He is sued in his official capacity. 28. Defendant Erinn Kelley-Siel is the Director of DHS. DHS is the state agency ultimately responsible for the operation of Oregon’s programs for people with developmental disabilities, including its employment services for persons with intellectual and developmental disabilities and its vocational rehabilitation services. DHS is a public entity subject to Title II of
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the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. DHS receives federal funds for the administration of its programs.
29. Erinn Kelley-Siel is directly responsible for ensuring that the state programs administered by her office, including the program for Seniors and People with Disabilities, ODDS, and OVRS, are operated in compliance with federal law. Defendant Kelley-Siel is responsible for the oversight, supervision and control of DHS, including requesting and managing all funds for the employment services system for people with intellectual and developmental disabilities that is funded and operated through the Home and Community-Based Services (HCBS) Waiver program. She is responsible for administering, managing, and determining how available funding will be used by DHS, including the amount of funds allocated to sheltered workshops and supported employment programs. As Director of DHS, defendant Kelley-Siel also oversees the licensing and monitoring of employment services providers, including sheltered workshops. Defendant Kelley-Siel is sued in her official capacity.
30. Defendant Mary Lee Fay is the Administrator of the Office of Developmental Disability Services within DHS, and is directly responsible for ensuring that that program is operated in compliance with federal law. ODDS is the primary state agency serving persons with intellectual and developmental disabilities. Defendant Fay is responsible for the development, implementation and oversight of the employment services system for people with intellectual and developmental disabilities, including the development and implementation of priorities, plans, policies, and procedures concerning employment services. She establishes the goals and priorities for the employment services system and collects data on the outcomes of that system. She also is responsible for designing, implementing, and overseeing the development
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and implementation of Individual Service Plans (ISPs) for individuals with intellectual and developmental disabilities, and for ensuring that employment services are provided consistent with ISPs. She is sued in her official capacity.
31. Defendant Stephaine Parrish Taylor is the Administrator of the Office of Vocational Rehabilitation Services within DHS, and is directly responsible for ensuring that the state’s vocational services are operated in compliance with federal law. Defendant Parrish Taylor is responsible for implementing and overseeing policies and procedures concerning vocational rehabilitation services for individuals with developmental disabilities. She is responsible for development, implementation, and oversight of a system of vocational rehabilitation services for individuals with intellectual and developmental disabilities and for ensuring that this system provides employment services that are consistent with each person's Individualized Plan for Employment. She is sued in her official capacity. IV. CLASS ACTION ALLEGATIONS
32. Pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, the plaintiffs bring this action on behalf of themselves and other individuals with intellectual or developmental disabilities who are in, or who have been referred to, sheltered workshops. The plaintiffs seek injunctive and declaratory relief individually and on behalf of the class to remedy and prevent their needless segregation in sheltered workshops.
33. The plaintiff class is so numerous that joinder of all members is impracticable. The class consists of several thousand individuals with intellectual and developmental disabilities who are qualified for supported employment services. Over 2,300 individuals are segregated in sheltered workshops in Oregon at any given time, most of whom could and would
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prefer to work in an integrated employment setting. Each year, many more such persons are referred to sheltered workshops, including youth with developmental disabilities who graduate from, or otherwise leave, special education programs.
34. There are common questions of law, including inter alia: a. whether the defendants are violating the ADA and Rehabilitation Act by planning, administering, funding and operating an employment services system that unnecessarily relies upon segregated sheltered workshops and that denies the named plaintiffs and members of the plaintiff class supported employment services that would allow them the opportunity to work in integrated employment settings; b. whether the defendants are violating the ADA and Rehabilitation Act by failing to provide the named plaintiffs and members of the plaintiff class with supported employment services that would allow them the opportunity to work in integrated employment settings, consistent with their needs; and c. whether the defendants are violating the ADA and Rehabilitation Act by administering the employment services system in a manner that discriminates against the named plaintiffs and members of the plaintiff class by providing them employment services in segregated settings and by failing to provide them supported employment services that would allow them to work in integrated employment settings.
35. There are questions of fact common to the class, including inter alia:
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a. whether the named plaintiffs and members of the plaintiff class are unnecessarily relegated to segregated settings in order to receive employment services, as a result of the defendants’ actions and inactions in planning, administering, and funding their employment service system for persons with developmental disabilities; b. whether the named plaintiffs and members of the plaintiff class are denied the opportunity to work with non-disabled peers, as a result of the defendants’ actions and inactions in planning, administering, and funding their employment service system for persons with developmental disabilities; c. whether the named plaintiffs and members of the plaintiff class are given vocational training in segregated work settings that bears little or no connection to their skills, abilities, or interests and that rarely leads to integrated employment at competitive wages, as a result of the defendants’ actions and inactions in planning, administering, and funding their employment service system for persons with developmental disabilities; and d. whether the defendants have a comprehensive and effectively working plan for serving the named plaintiffs and members of the plaintiff class in integrated employment settings. 36. The named plaintiffs’ injuries and claims are typical of the class in that all class members are or will be segregated in sheltered workshops and are being denied supported employment services for which they are eligible, as a result of the defendants’ actions and inactions in planning, administering, and funding their employment service system for persons
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with developmental disabilities. The named plaintiffs adequately and fairly represent the interest of all class members, will fully and vigorously prosecute this action, and are represented by attorneys experienced in federal class action litigation and disability law. Absent certification, individual members of the class would have difficulty pursuing their own claims or remedying systemic violations on their own.
37. The defendants administer, operate, fund, and oversee Oregon’s employment services system in a way that discriminates against persons with intellectual and developmental disabilities by failing to provide supported employment services to the named plaintiffs and members of the plaintiff class in order to allow them the opportunity to work in integrated employment settings and to avoid unnecessary segregation in sheltered workshops. Therefore, the defendants have acted or refused to act on grounds generally applicable to entire the plaintiff class through their planning, administration, and operation of their employment system, as well as through the policies, practices, and funding decisions that guide that system, thereby making appropriate injunctive or declaratory relief appropriate with respect to the class as a whole. As a result, the plaintiffs seek certification pursuant to Fed. R. Civ. P. 23(b)(2). V. STATEMENT OF FACTS
A. Statutory Framework (1) The Requirements of the Americans with Disabilities Act and the Rehabilitation Act
38. On July 12, 1990, Congress enacted the ADA, 42 U.S.C. § 12101 et seq., establishing the most important civil rights laws for persons with disabilities in our nation’s history.
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39. Congress stated in its findings that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2).
40. Congress found that “discrimination against individuals with disabilities persists in . . . access to public services.” 42 U.S.C. § 12101(a)(3). Congress found that “individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion . . . , segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities.” 42 U.S.C. § 12101(a)(5).
41. Congress further concluded that “[i]ndividuals with disabilities . . . have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.” 42 U.S.C. § 12101(a)(7).
42. A major purpose of the ADA is to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities, and to provide clear, strong, consistent and enforceable standards addressing discrimination against individuals with disabilities. 42 U.S.C. § 12101(b)(1)&(2).
43. The ADA was intended to promote the full integration of persons with disabilities in the civic, educational, and commercial mainstream of society. In enacting the ADA, Congress
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made clear that it sought to ensure meaningful access and full participation of persons with disabilities in all community activities, including employment.
44. The regulations implementing Title II of the ADA require 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)(the “integration mandate”).
45. The “most integrated setting” means one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible. . .” 28 C.F.R. § Pt. 35, App. A (2010). See also, Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C., available at http://www.ada.gov/olmstead/q&a_olmstead.htm (“DOJ Olmstead Guidance”).
46. Discrimination on the basis of disability also is prohibited by Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). Section 504’s implementing regulations provide that recipients of federal funds “shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.” 28 C.F.R. § 41.51(d).
47. Discrimination based on disability includes discrimination based on the severity or complexity of a person’s disability. See 28 C.F.R. §§ 35.130(b)(3), 41.51(b)(3); 45 C.F.R. § 84.4(b)(4). The ADA and § 504 regulations prohibit the differential treatment of individuals with disabilities or any class of individuals with disabilities, such as those with more severe or complex disabilities, with respect to their opportunity to participate in or access the full range of aids, benefits or services in any program operated by a public entity. See 28 C.F.R. §§
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35.130(b)(1)(ii) & (b)(1)(iv), 41.51(b)(1)(ii) & (b)(1)(iv); 45 C.F.R. §§ 84.4(b)(1)(ii) & (b)(1)(iv).
48. The ADA and § 504 regulations similarly prohibit public entities from utilizing “criteria or methods of administration” that have the effect of subjecting qualified individuals with disabilities to discrimination or “that have the purpose or effect of substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities.” The Title II regulations preclude public entities from using methods of administration that discriminate against persons with disabilities or that subject such persons to unjustified segregation. 28 C.F.R. § 35.130(b)(3).
49. The ADA regulations further specify that “[a] public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities 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 offered.” 28 C.F.R. § 35.130(b)(8).
50. Both the ADA and § 504 also require that public entities must make reasonable modifications in their policies, practices or procedures when necessary to avoid discrimination on the basis of disability, including avoiding the unnecessary segregation or institutionalization of such individuals, unless the public entity can demonstrate that such modifications would fundamentally alter the nature of the service, program or activity. 42 U.S.C. §§ 12131, 12132; 29 U.S.C. § 794; 28 C.F.R. § 35.130(b)(7).
(2) Olmstead v. L.C.
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51. The Supreme Court has interpreted the ADA's integration mandate and held that Title II prohibits unjustified segregation of people with disabilities. Olmstead v. L.C., 527 U.S. 581, 600 (1999). In so holding, the Court emphasized that unjustified isolation of individuals with disabilities “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life” and that it “severely diminishes the everyday life activities of individuals including family relations, social contacts, work options, economic independence, educational advancement and cultural enrichment” Id. at 600-601. The Court concluded that Title II requires public entities to offer services in the most integrated setting possible, including shifting programs and services from segregated to integrated settings, unless such a shift would result in a fundamental alteration of their service system. Id. at 607.
52. The United States Department of Justice has issued interpretive guidance on enforcement of Title II and Olmstead in which it explains that a “public entity may violate the ADA’s integration mandate when it: (1) directly or indirectly operates facilities and/or programs that segregate individuals with disabilities; (2) finances the segregation of individuals with disabilities in private facilities and/or (3) through its planning, service system design, funding choices, or service implementation practices, promotes or relies upon the segregation of individuals with disabilities in private facilities or programs.” See DOJ Olmstead Guidance at 3, Question 2. The Department of Justice has further explained that ADA’s integration mandate and Olmstead apply to employment services and that segregated settings include sheltered workshops and segregated day programs. Id. at 7, Question 12.
53. On September 16, 2011, the Center for Medicare and Medicaid Services (CMS) issued guidance in an Informational Bulletin, entitled “Updates to the § 1915(c) Waiver
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Instructions and Technical Guide, regarding employment and employment-related services.” The Bulletin discusses limitations on federal funding for sheltered workshops and strongly endorses the use of federal Medicaid funding for supported employment services. The Bulletin explicitly recognizes that: “Although this is guidance with respect to the 1915(c) Waiver program, we note that states have obligations pursuant to the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the Supreme Court’s Olmstead decision interpreting the integration regulations of those statutes. Consistent with the Olmstead decision and with person-centered planning principles, an individual’s plan of care regarding employment services should be constructed in a manner that reflects individual choice and goals relating to employment and ensures provision of services in the most integrated setting appropriate.” (Available at https://www.cms.gov/CMCSBulletins/downloads/CIB-9-16-11.pdf.)
B. People with Intellectual and Developmental Disabilities Have the Desire and Ability to Work.
54. In Title I of the Rehabilitation Act, Congress found that disability is a natural part of the human experience that in no way diminishes the right of individuals to live independently, enjoy self-determination, make choices, contribute to society, pursue meaningful careers, and enjoy full inclusion and integration in the economic, political, social, cultural, and educational mainstream of society. 29 U.S.C. § 701(a) (emphasis added).
55. Congress further recognized that work is a valued activity for both individuals and society, and that work fulfills the need of an individual to be productive, promotes independence, enhances self-esteem, and allows for participation in the mainstream of life. 29 U.S.C.A. § 720(a). Title I of the Rehabilitation Act is based upon Congress’s recognition that individuals with disabilities, even individuals with the most significant disabilities, have the ability to
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achieve gainful employment in integrated settings if appropriate services and supports are provided. 29 U.S.C. § 720(a)(1)(C). Indeed, at the heart of Title I of the Rehabilitation Act is the principle that even “individuals with the most significant disabilities are presumed to be capable of engaging in gainful employment and that the provision of individualized vocational rehabilitation services can improve their ability to become gainfully employed. 29 U.S.C. § 720(a)(3)(A).
56. In spite of the demonstrated ability and desire of people with disabilities to work, Congress recognized that significant numbers of individuals with disabilities are not able to work at levels commensurate with their capabilities for reasons that include, among others, discrimination and lack of education, training, and supports to meet job qualification standards necessary to secure, retain, regain or advance in employment. 29 U.S.C. § 720(a)(1)(D).
57. To address its finding that even people with significant disabilities can work and to ensure that all individuals with disabilities have access to meaningful employment, Congress included in Title I of the Rehabilitation Act the presumption all individuals can benefit from vocational rehabilitation services unless a State can demonstrate by clear and convincing evidence that an individual is incapable of working due to the severity of the individual’s disability. 29 U.S.C. § 722(a)(2)(A).
58. Oregon has long endorsed and promoted the principles that everyone with a disability can work, that there is a job for everyone, and that people are healthier, safer and happiest with meaningful work. A guiding tenet of Oregon’s Employment First policy is “a fundamental belief that employment is the key to full citizenship.” See Community Leadership for Employment First in Oregon (2010), available at
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http://www.dhs.state.or.us/dd/supp_emp/docs/wise.pdf, at 9 (hereafter ODDS' “Call to Action Report”). ODDS has left no doubt that “[i]t is the position of ODDS and the Employment First Outreach Project that all people with intellectual and developmental disabilities should be provided the opportunity to work . . .to not live in the shadow as marginalized citizens, but to be fully embraced by their community.” Id. (emphasis added.)
C. Segregation of People with Intellectual and Developmental Disabilities in Sheltered Workshops Constitutes Discrimination Under the ADA.
59. Sheltered workshops are an outdated service model which is based upon the stereotype that people with disabilities cannot engage in competitive employment and are not capable of succeeding at real work. For many years, disability professionals have considered sheltered workshops the last resort, or a hopeless end point, for people with disabilities. Halderman v. Pennhurst State School & Hosp., 154 F.R.D. 594, 601 (E.D. Pa. 1994) ("In the workshop setting, class members earn a fraction of what is available through community employment and they have very little opportunity to interact with nondisabled persons. Accordingly, these mentally retarded plaintiffs are being unnecessarily segregated from the community."); Homeward Bound, Inc. v. Hissom Memorial Center, 1987 WL 27104 (N.D. Okla., July 241987).
60. Sheltered workshops, similar to the segregated institutions which once characterized Oregon's residential service system but have now been shuttered, routinely relegate people with intellectual and developmental disabilities to segregated settings that offer little or no contact with non-disabled peers. Indeed, sheltered workshops are often operated in conjunction with other segregated facilities.
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61. Sheltered workshop employees are usually paid less, and often far less, than minimum wage, perpetuating the stereotype that people with intellectual and developmental disabilities are incapable of performing productively in a competitive work environment. Compensation at sheltered workshops often bears no reliable correlation to a person’s abilities.
62. Sheltered workshops are funded primarily by State or local governments, and depend upon this public funding, together with income from sub-contracts for the production of goods, to sustain the workshops.
63. Historically, sheltered workshops were intended as training programs to prepare individuals for work in competitive employment. But the intended purpose of sheltered workshops -- to prepare individuals for real work -- is rarely realized. Instead sheltered workshop employees are relegated to separate and unequal jobs, and hardly ever transition to competitive employment. In fact, nationally, fewer than 5% of individuals in sheltered workshops move to integrated employment.
64. The work performed at sheltered workshops is typically low-skilled, nonchallenging manual labor. This work does not provide training for competitive employment in integrated settings.
65. Individuals with intellectual and developmental disabilities frequently spend their days at sheltered workshops performing tasks that do not reflect, and often are not relevant to, their individual skills, interests or prior work experience. Moreover, these tasks often bear little resemblance to work performed in most competitive employment settings.
66. For many employees of sheltered workshops, the unchanging daily routine of performing mundane work causes their social skills to atrophy, leading to an even lower
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likelihood that they will ever transition to work in the community. It also leads to lower selfesteem and lowered expectations of themselves, similar to the “learned helplessness” described in DAI v. Paterson, 653 F. Supp. 2d 184, 214 (E.D. N.Y. 2009) (DAI II)(“When individuals are treated as if they are helpless, the helplessness becomes a learned phenomenon”).
67. The lowered expectations and skill-set that sheltered workshops engender pervade the public consciousness as well, reinforcing and perpetuating negative stereotypes about people with intellectual and developmental disabilities.
68. Oregon has concluded, and research has shown, that sheltered workshops are more expensive per person than supported employment services and that most individuals never “graduate” from sheltered workshops to real employment.
D. Supported Employment Provides the Most Integrated Work Services for Individuals with Intellectual and Developmental Disabilities.
69. Virtually all persons with disabilities in sheltered workshops are capable of working in integrated employment settings. Supported employment services are a critical component to helping persons with intellectual and developmental disabilities transition to competitive employment in integrated settings.
70. Supported employment services in integrated settings, unlike segregated sheltered workshops, foster community integration by providing regular contact and interaction with nondisabled peers.
71. By providing opportunities for individuals with intellectual and developmental disabilities to work alongside non-disabled peers, supported employment services are consistent with the ADA and its implementing regulations.
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72. Supported employment is defined by the Rehabilitation Act Amendments of 1986 as "competitive work in integrated work settings, or employment in integrated work settings in which individuals are working toward competitive work, consistent with the strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of the individuals, for individuals with the most significant disabilities." 29 U.S.C. § 705(35); 39 C.F.R. § 361.5(b).
73. Supported employment services generally include four key elements: integration, paid work at or above the minimum wage, individualized services, and ongoing supports.
74. Unlike sheltered workshops which tend to use a “one size fits all” approach to employment by assigning individuals with a wide range of abilities and interests to identical tasks, supported employment services utilize a person-centered planning model that assesses each individual's unique skills, needs and preferences.
75. Supported employment service providers match the strengths and needs of individual clients to specific jobs, in contrast to sheltered workshops that fill job slots based upon the demands of its contracts or creating “make work” when insufficient contract work is available.
76. Supported employment services promote economic independence by compensating individuals with disabilities at prevailing wages and always at the state minimum wage or above. Studies have shown that supported employees regularly out-earn sheltered employees.
77. For over three decades, the national trend in the provision of publicly-funded employment services for persons with mental disabilities has been away from the sheltered workshop model and toward supported employment. Today, professionals in the field of
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developmental disabilities strongly favor supported employment services. 78. In 2001, the federal agency which oversees the State Vocational Rehabilitation
Services Program eliminated all funding for the permanent placement of persons with disabilities in sheltered workshops. The federal agency endorses and funds supported employment services for clients of state vocational rehabilitation programs.
79. Research also demonstrates that the cumulative and per person cost of supported employment services to the state and specifically to its developmental disabilities and vocational rehabilitation agencies are less, over time, than sheltered workshops, as individuals become more independent and competent in performing their job duties.
E. Oregon Administers and Funds a System of Employment Services that Unnecessarily Relies Upon Segregated Sheltered Workshops. (1) Oregon’s Employment Services System
80. The defendants administer, fund, manage, license, and oversee the employment service system for individuals with intellectual and developmental disabilities in Oregon.
81. Specifically, DHS plans, funds, and oversees all developmental disability services and vocational rehabilitation services, including the employment service system, for persons with intellectual and developmental disabilities in Oregon. It determines the amount and allocation of funding for these services and that system, including the range of employment services, the licensing of employment providers, and the level of funding for sheltered workshops versus supported employment programs. The current employment service system, which relegates over 2,000 persons with disabilities to sheltered workshops and allocates far more than half of all employment funding to segregated workshops, is the direct result of decisions, actions, and inactions of DHS.
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82. ODDS plans, administers, and directly manages the long-term employment service system for persons with developmental disabilities, including all sheltered workshops and supported employment services. Specifically, ODDS has the primary responsibility for developing, implementing, and overseeing all employment programs for persons with intellectual and developmental disabilities. It sets goals, establishes priorities, creates plans, adopts policies and procedures, determines reimbursement rates, collects data, and takes actions with respect to the statewide employment service system.
83. On an individual level, ODDS is responsible for overseeing the development and implementation of ISPs for individuals with intellectual and developmental disabilities, which must include professionally-appropriate assessments for employment services. ODDS also is responsible for ensuring that employment services are provided consistent with each individual's needs, interests, and abilities.
84. ODDS has developed, adopted and promoted an Employment First Policy based on the premise that integrated employment has better outcomes than segregated employment and that through a person-centered planning process people with disabilities can and do succeed at integrated employment.
85. ODDS has not taken effective action to implement its Employment First Policy, to ensure that its ISP system requires consideration of Employment First, to implement the integrated employment goals of persons with intellectual and developmental disabilities, and most importantly, to ensure there is a sufficient capacity of supported employment services to allow persons with intellectual and developmental disabilities to work in integrated settings. As
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a result, the current employment service system, and specifically its excessive reliance on segregated workshops, is the direct result of the actions and inactions of ODDS.
86. OVRS is responsible for completing a comprehensive vocational assessment and determining the employment needs and potential of individuals with intellectual and developmental disabilities. OVRS must prioritize individuals with severe disabilities in that process. OVRS identifies jobs, contracts with supported employment agencies, and provides job training, job coaching and support for up to eighteen months. Pursuant to various provisions of the Rehabilitation Act, OVRS should be both the entry point and the initial provider of supported employment services for persons with intellectual and developmental disabilities, including those with the most severe disabilities.
87. The defendants administer two community service waiver programs, approved by CMS and funded pursuant to Section 1915(c) of the Social Security Act. A waiver allows a state to provide a variety of services with Medicaid funds, such as employment services, without having to meet certain Medicaid statutory requirements. Oregon's Comprehensive Waiver and its Support Services Waiver both fund employment services, including many sheltered workshops and some supported employment services.
88. According to ODDS data, Oregon invests a total of approximately $30 million in sheltered workshops annually, which segregates 2,300 of people with intellectual and developmental disabilities in facilities, at a cost of roughly $2,500,000 per month.
89. Oregon has recognized that sheltered workshops cost substantially more than integrated employment, at least over the long term. In its Call to Action Report, ODDS endorsed research studies which find that “the cumulative costs generated by sheltered employees may be
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as much as three times higher than the cumulative costs generated by supported employees – $19,388 versus $6,618”. See Call to Action Report at 10.
90. Over 1,500 persons, or more than 42% of persons receiving services through the Comprehensive Waiver, are relegated to segregated sheltered workshops. Only 7% of the persons in this waiver program participate in individualized, integrated employment.
91. In the Support Services Waiver, over 900 persons, or 37% of those in this program, are segregated in sheltered workshops, while approximately 450 persons, or 19%, participate in integrated employment.
92. Today there are over 2,300 Oregonians with intellectual and developmental disabilities in segregated employment. Each year, many more are referred for admission to sheltered workshops, including youth graduating or otherwise leaving special education programs who have the ability and interest to work in integrated employment settings. Many youth in transition from special education already have actual work experience from placements in integrated employment, but have no post-graduation employment option other than sheltered workshops.
(2) Oregon’s Initial Commitment to Provide Integrated Employment. 93. Oregon was once a leader in recommending and promoting integrated employment through supported employment services for individuals with developmental disabilities. 94. The federally-funded Specialized Training Program at the University of Oregon served as a national Research and Training Center on Employment, providing leadership, models, data, research, and technical assistance to other States on the potential of supported
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employment to transform day services for people with developmental disabilities, to increase their productivity and income, and to facilitate their integration into the community.
95. For almost two decades, Oregon also sought to transform its own services system for persons with developmental disabilities by dramatically decreasing its reliance on sheltered workshops, and concomitantly expanding its capacity to provide supported employment services.
96. Through the 1980’s and early 1990’s, Oregon’s community employment initiatives gained momentum. Oregon was awarded three federal Systems Change grants to support the development of supported employment and high school transition services. See Jane Steveley, Supported Employment for Oregonians with Developmental Disabilities: Recommendations for Action (2005), available at http://www.oregon.gov/DHS/vr/eep/se_dd_stevely.doc (hereafter "the White Paper”). These projects focused primarily on: (1) converting sheltered employment programs to supported employment; (2) developing new programs that provide supported employment services; and (3) focusing on client choice and control of both funding and the job search process.
97. Unfortunately, since the mid-1990’s Oregon has reversed course, increasing its reliance on segregated workshops while simultaneously decreasing its development and use of supported employment services. The raw number and percentage of people served in sheltered workshops has more than doubled, while the number and percentage served in supported employment has decreased by half. For example, in 1988, 50% of the 2,300 people served in the Comprehensive Waiver were in supported employment. By 2010, that number had dropped to approximately 23%, and to only 7% in individualized employment.
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98. Since the early 1990’s, Oregon's disability agencies have made little effort to expand supported employment services or to restore Oregon’s commitment to providing integrated employment opportunities for individuals with intellectual and developmental disabilities.
99. In 2005, a collection of stakeholders including the Oregon Council on Developmental Disabilities (DD Council) and representatives of ODDS issued the White Paper, a comprehensive assessment of the DHS' employment service system. The White Paper found: (1) a significant decline in the number of individuals who have access to supported employment; and (2) the loss of the state’s focus and training efforts on supported employment.
100. The White Paper called upon state officials to expand supported employment. Among other recommendations, the White Paper emphasized the need to examine the policies of other states that had successfully implemented supported employment programs for individuals with developmental disabilities, as well as the need to build provider capacity to deliver supported employment services.
101. In response to one of the recommendations of the White Paper, Oregon adopted its Employment First policy in 2008. The policy requires employment in integrated work settings to be the first priority option that is explored in the service planning process for adults with developmental disabilities. In adopting its Employment First policy, DHS declared that “[b]ehind the Employment First policy is a fundamental belief that employment is the key to full citizenship.”
102. The Employment First policy is based upon the principles that: (1) integrated employment has better outcomes than non-employment, segregated employment, facility-based
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employment, or day habilitation in terms of employment outcomes; (2) employment services should be considered and provided using person-centered planning concepts, based on informed choice, and consistent with the philosophy of self-determination; and (3) minimum wage and competitive wages shall be the goal of integrated employment.
103. Five years after the DD Council’s White Paper and two years after the Employment First Policy were issued, the Oregon Employment First Outreach Project, comprised of representatives from ODDS, OVRS, and the DD Council, acknowledged, once again, that the state had failed to make supported employment available to thousands of individuals who remained needlessly segregated in sheltered workshops. Call to Action Report, at 6.
104. In 2009, Oregon received a Medicaid Infrastructure Grant from the federal Centers for Medicare and Medicaid Services (CMS), which it used to fund the Competitive Employment Project administered by OVRS for individuals with a wide range of disabilities. A portion of the Competitive Employment Project funds are allocated to Employment First activities for individuals with intellectual and developmental disabilities, but these funds are primarily targeted toward training for providers. None of the Medicaid Infrastructure Grant funds are specifically targeted toward reducing Oregon’s reliance on sheltered workshop programs.
105. The Call to Action Report contained numerous recommendations for effectuating Employment First’s mission, but DHS and ODDS have not implemented most of those recommendations. Thus, despite acknowledgement of their failure to reduce segregated employment and its recognition that supported employment offers better outcomes and greater
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integration and independence, Oregon, and particularly ODDS, has continued to segregate thousands of individuals with intellectual or developmental disabilities in sheltered workshops, rather than offering them supported employment services in order to allow them to participate in integrated employment settings.
106. Furthermore, ODDS’ Employment First does not prioritize individuals in sheltered workshops for transition to supported employment or otherwise focus on reducing segregated employment.
107. OVRS is required by federal law to provide vocational assessments and timelimited employment services to people with disabilities, and particularly persons with severe disabilities. However, OVRS does not use available resources to provide vocational assessments and supported employment services to all qualified individuals with intellectual and developmental disabilities. In addition, OVRS often employs methods for administering its federal funds that favor individuals with less severe disabilities and disfavor those with more severe intellectual or developmental disabilities. ODDS funds services for people with intellectual and developmental disabilities in sheltered workshops, and administers its vocational services so that persons with intellectual and developmental disabilities often are required to obtain segregated employment through sheltered workshops, even when they desire and are qualified for supported employment servies that would allow them the opportunity to participate in integrated employment.
108. As a result of the defendants’ policies and practices, thousands of people with intellectual and developmental disabilities are denied the opportunity to participate in meaningful work, and are, instead, relegated to a lifetime of segregation in sheltered workshops. They are
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harmed by having virtually no opportunity to work with non-disabled peers, the inability to earn competitive wages, the diminishment of self-esteem, and the loss of learned skills.
109. Each year, several hundred young people with intellectual and developmental disabilities graduate, age out or otherwise leave special education vocational training programs. Despite their prior training, a significant number of those young people are referred to sheltered workshops, even though they have the ability to succeed in integrated employment.
110. As a result of the defendants’ policies and practices, youth with intellectual and developmental disabilities are harmed by being relegated to segregated employment in sheltered workshops, despite their training, talents, interests and ambitions.
111. As demonstrated by Oregon's own experience, its professed policies, and professional research, supported employment services in integrated settings are the most effective method for assisting persons with intellectual and developmental disabilities to participate in integrated employment in the community. Oregon's experience and professional research demonstrate that supported employment services are more cost-effective than sheltered workshops, and thus would, over time, result in cost savings to the defendants.
F. Impact on the Named Plaintiffs (1) Paula Lane 112. Paula Lane is 48 years old and has an intellectual disability, autism, and an anxiety disorder. She has a Social Security representative payee, but is competent to make her own decisions. She lives in an apartment with staff support. 113. Ms. Lane attends a sheltered workshop in Beaverton, Oregon. She began working at the sheltered workshop in March 2000, when she moved from Oklahoma to Oregon. Ms.
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Lane has never had the opportunity to work in competitive employment. She only has worked in segregated sheltered workshops in Oklahoma and now Oregon. Ms. Lane has been denied supported employment services for which she is eligible, resulting in her unnecessary segregation in a sheltered workshop.
114. The sheltered workshop that Ms. Lane now attends has a total of 138 participants, 129 of whom work in one large room on various assembly lines doing rote tasks. The vocational agency describes its business as "packaging fulfillment," meaning that the various tasks are all related to packaging. The worksite is segregated, crowded, and distracting. Workshop participants have little or no contact with people without disabilities, other than paid staff.
115. Ms. Lane's employment records indicate that from March 2010 through February 2011, the highest amount that she earned was $53.66 for 81 hours in September, 2010; the lowest was $26.82 for 66 hours in March, 2010, or approximately $.40 per hour. She presently works putting parts into boxes, putting bits into slots in a tool holder, folding UPS bags, packaging gloves, and similar tasks.
116. Ms. Lane has consistently asked the vocational agency to help her find integrated employment. In a 2001 survey by the workshop, Ms. Lane said that she would like them “to find me an outside job.” She said that she would like to work in a daycare center. Despite repeated requests for a real job, there has been only one effort in 2007-2008 to identify a community position for Ms. Lane, which was unsuccessful. Ms. Lane’s 2009 ISP said that the program would “explore community-based job opportunities,” but this was not mentioned in later ISPs. Ms. Lane continues to express an interest in receiving supported employment services in order to allow her to work in the community.
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117. Ms. Lane’s 2011 ISP has no goals or action plans related to employment. Her work record from March 2010 through February 2011 notes that she received top scores of 5 regarding working continuously without prompting, independently producing acceptable quality and quantity of work or product, and following one step and multiple step directions willingly and correctly.
118. Ms. Lane is very social. Her most recent ISP indicates that she spends money on pizza parties and goes out for dinner. The ISP also states that she wanted to attend a country music concert through a travel agency and to go to an Upward Bound camp. However, given her lack of income despite working many hours each week, she cannot afford to participate in as many community activities, as she would prefer. Ms. Lane believes that she can work in an integrated setting and would like the opportunity to do so.
119. Neither Ms. Lane’s case manager nor the sheltered workshop provider has taken the actions necessary to assist Ms. Lane in seeking supported employment services. Similarly, DHS and OVRS have not offered supported employment services that would allow Ms. Lane the opportunity to work in an integrated setting, as she prefers.
(2) Andres Paniagua 120. Andres Paniagua is 32 years old and lives with his mother in Beaverton, Oregon. He has spina bifida, memory challenges, and several health-related conditions. He uses a large wheelchair and requires seating accommodations. Because of his short-term memory loss, he frequently needs to have directions repeated, but is capable, willing, and determined to work in a real job. Mr. Paniagua has a Social Security representative payee, but is competent to make his own decisions.
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121. Mr. Paniagua was placed in his current sheltered workshop in September, 2008. Previously, he was segregated in other sheltered workshops in Oregon. In fact, he was first placed in a sheltered workshop as part of his transition from high school, and has never been offered the opportunity to work in a real job, despite his interest, ability, and repeated requests to do so. His support services survey, dated August 22, 2011, states that it is important to Mr. Paniagua "to have enough money so that he can live on his own" and that he "is incredibly motivated to work and earn a living." Mr. Paniagua has been denied supported employment services for which he is eligible, resulting in his unnecessary segregation in a sheltered workshop.
122. Mr. Paniagua has to commute as much as two hours each way to his workshop by bus. He works with approximately 70 people in the vocational program’s sheltered workshop. He works in a segregated and noisy setting that cuts steel and does packaging and assembly under contract. He has little choice in the tasks he performs because available work is dependent upon contracts chosen by the sheltered workshop provider. Workshop participants have little or no contact with individuals without disabilities, other than paid staff.
123. At his current sheltered workshop, he has demonstrated many work skills. As a result, according to a monthly progress report by his vocational provider, “[h]e works in every department from the machine shop to the front office.” Among other responsibilities, he assembles linebackers, a type of fishing equipment that requires multi-step assembly. His productivity is high, as demonstrated by his September 2011 wages of $341.99 for 59.98 hours or work; October 2011 wages of $290.55 for 43.7 hours of work; and November 2011 wages of $309.39 for 46.28 hours of work. Because he is allotted a fixed amount of money per year
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through the support services waiver, he is only able to attend the workshop for a total of 200 days.
124. In spite of the fact that these wages are considered “high” for a sheltered workshop employee, Mr. Paniagua still does not earn anywhere near as much as he would if he received minimum wage, which he clearly is capable of doing. Mr. Paniagua is very interested in obtaining supported employment services, in order to allow him to work in an integrated setting. The vocational program’s progress notes say that he is a very good worker, with good attention to detail, and is well-liked.
125. Mr. Paniagua has expressed many times that he would like to work for at least minimum wage in an integrated employment setting. In spite of his expressed preference and his demonstrated ability to work in integrated settings, he remains in a sheltered workshop.
126. Mr. Paniagua’s current ISP does not explain why Mr. Paniagua is not a candidate for supportive employment services, or even mention this option. Nor do earlier ISPs. The goal is simply for him “[t]o continue to have opportunities for employment in a workshop setting and opportunities for activities and socialization with other people with disabilities.”
127. Mr. Paniagua is frustrated by the fact that he has never had the opportunity to work in the community. He would like to be integrated into the community work life and make at least minimum wage. He is clearly capable of doing so. He would also like to make more money so he can live independently and have a more active social life like other young people his age.
128. Mr. Paniagua’s brokerage personal agent, who is ultimately overseen by DHS, has failed to ensure that Mr. Paniagua’s ISP includes supports and services that will reasonably allow
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him to seek his goal of community employment. Additionally, DHS and OVRS have not provided the supported employment services to assist Mr. Paniagua to pursue his integrated employment goals.
(3) Elizabeth Harrah 129. Elizabeth Harrah is 32 years old and has Down Syndrome and an intellectual disability, as well as some medical and mental health conditions. She is competent to make her own decisions, but has a Social Security representative payee. She lives in an adult foster home. 130. Ms. Harrah has attended a sheltered workshop in Gresham, Oregon since November 2004, where she works five days a week on various rote tasks for sub-minimum wage. The workshop that Ms. Harrah attends is a large, institutional setting where Ms. Harrah and other individuals with disabilities are assigned tasks based upon work chosen by the sheltered workshop provider. Ms. Harrah has little choice in the tasks she performs at the sheltered workshop and has little opportunity to interact with non-disabled individuals, other than paid staff. Ms. Harrah has been denied supported employment services for which she is eligible, resulting in her unnecessary segregation in a sheltered workshop.. 131. In December 2011, she earned $112.76 for 27.43 hours of work; in November 2011, she earned $63.90 for 15.07 hours of work, and in October 2011, she earned $106.16 for 20.28 hours of work. 132. Ms. Harrah has several years of experience working in integrated employment with supports. She worked for approximately two years at McDonald’s performing janitorial tasks. She also worked for approximately two years as a stock clerk at Safeway. Ms. Harrah enjoyed working in integrated settings in the community and suffered distress when she lost this
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opportunity. She also was employed at a car wash earning sub-minimum wages, but her vocational program closed this enclave. Ms. Harrah is very interested in returning to integrated employment, but has not been given the opportunity or supports to allow her to do so.
133. Ms. Harrah’s current vocational ISP states that she works on an average of six tasks per month at the sheltered workshop. However, the ISP does not include goals or supports that would allow Ms. Harrah to return to an integrated employment setting, despite her prior work history and her demonstrated ability to participate in integrated employment.
134. In spite of Ms. Harrah’s expressed desire to return to competitive employment, her case manager has failed to take the actions necessary to assist Ms. Harrah in pursuing her employment goal. Similarly, DHS, which ultimately oversees both the case manager and sheltered workshop provider, and OVRS have not created or made available sufficient supported employment services to prepare and allow Ms. Harrah to seek her goal of returning to an integrated employment setting.
(4) Angela Kehler 135. Angela Kehler is 48 years old, and has Down Syndrome and an intellectual disability. She also has a number of medical problems, including complications of diabetes and asthma. She is competent to make her own decisions but has a Social Security representative payee. She lives in a group home with other residents with disabilities. 136. Ms. Kehler participates in a sheltered work program in Gresham, Oregon. She has been stuck in this program for over two decades. Ms. Kehler is currently working in a silk screen shop operated by the vocational provider. The screen shop has a sales area and a work area where clothes are decorated with silk screens. Approximately ten people with
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developmental disabilities work in this program, where Ms. Kehler rarely interacts with people without disabilities, aside from paid staff. Ms. Kehler has been denied supported employment services for which she is eligible, resulting in her unnecessary segregation in a sheltered workshop.
137. According to her ISP, Ms. Kehler folds shirts and does janitorial tasks at the screen shop. In September 2011, she received $24.28 for 19.33 hours of work; in October 2011, she earned $19.53 for 8.83 hours; and in November 2011, she was paid $27.23 for 13.9 hours.
138. Ms. Kehler was competitively employed at a large drugstore from October 2009 to July 2010, when she was laid off. In this job she organized merchandise on display shelves, and returned unwanted merchandise to its proper location. She received instruction and support from the store manager, when necessary. Ms. Kehler initially worked in the drugstore twice per week, two hours each day, but her schedule later was increased to three days a week, four hours a day. Although her 2010 ISP included a commitment that Ms. Kehler would have staff supports if she faced obstacles in her job performance at the drugstore, these were never provided.
139. Ms. Kehler is able to use the bus, transferring without assistance. She has also worked in enclaves that washed cars and cleaned a movie theater, but was only paid subminimum wages. These enclaves have been discontinued.
140. Ms. Kehler’s current ISP indicates that she has told staff that she would like to be employed in the community in a craft or food store. The ISP concludes that she is employable, but little has been done to achieve her employment goals, reflect her work interests, or assist her in obtaining supported employment services that would allow her to seek a real job in the community.
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141. Ms. Kehler’s current ISP concedes that her vocational program no longer has a job developer, so there is no one to assist in her obtaining competitive employment and supporting her in a real job. The ISP says that “Angela and her supervisor will continue to discuss community jobs; should the economy improve and a Job Developer is available community employment will be developed.”
142. In spite of Ms. Kehler’s expressed desire to work in integrated employment, neither her case manager nor the sheltered workshop provider has taken the necessary actions to assist Ms. Kehler in obtaining supported employment services. Similarly, DHS and OVRS have not provided supported employment services that would prepare and allow Ms. Kehler to pursue work in an integrated environment, as she prefers.
143. Ms. Kehler likes going out on dates. At some point, she would like to live independently. She also likes to travel. Receiving sub-minimum wages makes it virtually impossible to fulfill her ambitions and to enjoy her most treasured experiences. Ms. Kehler relished the opportunity to make a competitive wage at the drugstore and to be in an integrated employment setting. Absent assistance in locating and support in maintaining integrated employment, Ms. Kehler will remain segregated at her current workshop, earning less than $2.00/hour.
(5) Gretchen Cason 144. Gretchen Cason is a 27 year old woman with Down Syndrome. She is competent to make her own decisions. She lives with her parents in Portland, Oregon. 145. Ms. Cason had several integrated, community work experiences during her high school transition program. She volunteered in the cafeteria of a hospital and at a small retail
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chain store straightening magazines and other displays. She volunteered once a week from fall 2002 through graduation spring 2005.
146. After her high school transition program ended and she graduated from school, Ms. Cason was referred to a sheltered workshop. She worked in this segregated program for three years. It purported to provide employment services, but primarily provided craft activities. Between 2005-2008, she worked 1 to 2 hours per week on a computer in this segregated program. Most her time at this sheltered workshop was spent watching TV or coloring in books.
147. Ms. Cason then attended a sheltered work program in Portland, Oregon, from July 2008 through April 2010. In this segregated setting, there were about 50 individuals with development disabilities. Ms. Cason had virtually no interaction with individuals without disabilities, other than staff. Her workshop hours were supposed to be from 8:30 a.m. to 2:00 p.m., two days per week, but typically, Ms. Cason only worked for 1 to 2 hours per week sorting donated goods. Most of her time was spend not working at all, but instead activities such as coloring books or reading. Her largest monthly paycheck was $20.
148. Ms. Cason was then transferred to a retail location with the same provider, where she sorted clothes and straightened displays on the store floor At the store location she worked 3 days per week and earned up to $100 per month. Eventually, and without input from Ms. Cason or holding a meeting of her ISP team, the provider unilaterally order her to transfer back to the sheltered workshop. Ms. Cason’s last day of work at the retail location was in February 2011.
149. Ms. Cason’s most recent ISP includes seeking services from OVRS. Ms. Cason has received little support from her current support brokerage and personal agent in attaining her goal of obtaining supported employment services through OVRS.
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150. Ms. Cason applied for OVRS services in February 2011 and was determined eligible for services. In April 2011, she was given a ten-day work evaluation as a donation attendant at William Temple House. The evaluation report concluded: “We believe that Gretchen is a good candidate for supported employment or alternatives to employment program, through her brokerage.” In May 2011, OVRS sent Ms. Cason a letter closing her file “because the Community Based Work Assessment showed you need more skills to get competitive work.”
151. Ms. Cason expresses a strong interest in working in the community. She would like to work in a music store, grocery store, or ice cream parlor. Primarily however, she wants “a job that isn’t boring.”
152. Neither Ms. Cason’s brokerage personal agent nor her previous employment provider provided the services and supports necessary to help Ms. Cason fulfill her desire to seek work in the community at competitive employment. DHS and OVRS failed to adequately oversee the brokerage personal agent and employment provider in the development and implementation of an appropriate ISP for Ms. Cason. Additionally, DHS and OVRS have not provided supported employment services to allow Ms. Cason to seek work in the community.
153. Ms. Cason enjoys social interaction in the community and would benefit from a work opportunity with other individuals, including individuals without disabilities. She has expressed very clearly that she has been uninterested in and unchallenged by her workshop placements. Yet, in spite of her expressed preferences, Ms. Cason has not been offered or provided any services to prepare and allow her to seek integrated employment. Ms. Cason has been denied supported employment services for which she is eligible, resulting in her unnecessary segregation in a sheltered workshop.
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(6) Lori Robertson 154. Lori Robertson is 51 years old. She has an intellectual disability. She is competent to make her own decisions. She lives in a group home in Portland, Oregon. 155. Ms. Robertson has attended a sheltered workshop in Gresham, Oregon since 1981. She has been in this program for over three decades, yet has never had the opportunity to work in competitive employment. Ms. Robertson has been denied supported employment services for which she is eligible, resulting in her unnecessary segregation in a sheltered workshop. 156. The segregated sheltered workshop Ms. Robertson attends is large, segregated, and crowded with approximately 70 individuals with disabilities performing mostly rote tasks. 157. A recent Personal Focus Worksheet in Ms. Robertson’s ISP indicates that she performs an average of ten different tasks per month at the workshop. In December 2011, she earned $126.15 for 53.9 hours work; in November 2011, she earned $102.87 for 41.4 hours work; and in October 2011, she earned $128.43 for 52.5 hours work. 158. Ms. Robertson was referred to her current segregated workshop after graduating from school. From 2004-2008, she participated in an enclave that performed janitorial work at the Department of Motor Vehicles. She also was part of another enclave that washed cars for the City of Portland. Both enclaves paid sub-minimum wages and were discontinued by the vocational agency. Since then, Ms. Robertson has had no other employment options other than the segregated sheltered workshop. 159. Ms. Robertson would like to earn at least minimum wage in an integrated environment in the community. Ms. Robertson enjoys many social activities in the community,
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including bowling, horseback riding, attending movies, and going out for meals. She also likes going on dates with her boyfriend and shopping. A Personal Focus Worksheet in her ISP states that she has very little money left after paying her bills. Ms. Robertson would clearly benefit from earning at least minimum wage and spending her day in the community, working at a real job.
160. Ms. Robertson’s current ISP sets a workshop production goal so she can earn more money for recreational activities. The ISP states that the vocational program’s supported employment department will reopen when more funding is available.
161. Despite the inclusion of a supported employment goal in her ISP and Ms. Robertson’s express preference to work in the community, neither her case manager nor the employment provider has taken any actions to assist Ms. Robertson in pursuing her goal of working in supported employment. Similarly, DHS and OVRS have failed to provide supported employment services to prepare and allow Ms. Robertson to seek work at a real job in the community.
(7) Sparkle Green 162. Sparkle Green is 28 years old and has an intellectual disability, obesity, asthma and depression. She is competent to make her own decisions, although her mother is her Social Security representative payee. She lives in an adult foster home in Beaverton, Oregon. 163. Ms. Green has attended a sheltered workshop located in Beaverton, Oregon since December 2009. The workshop Ms. Green attends is a segregated, institution-like setting where individuals with disabilities have few opportunities to interact with non-disabled peers and little choice in determining which tasks they perform each day. Ms. Green has been denied supported
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employment services for which she is eligible, resulting in her unnecessary segregation in a sheltered workshop.
164. Her work record indicates her tasks at the sheltered workshop are mainly bagging, packaging and assembling items. Her Work/Activity Participation Records for December 2009 through November 2010 indicated that she was a good worker with almost perfect performance scores. Nevertheless, her pay records for December 2010 through October 2011 show that she is making very little money. For example, in August 2011, she earned $26.59 for 58 hours work (less than 46 cents per hour); in September, $28.01 for 71 hours (39 cents per hour); and in October, $9.90 for 34 hours (29 cents per hour).
165. Ms. Green had experience with various integrated, volunteer work placements in her high school transition program, including stocking shelves in a drugstore, and boxing and stacking items at the Oregon Food Bank. Nevertheless, she was referred to a segregated sheltered workshop after transitioning from high school. She has never had the opportunity to work in competitive employment.
166. Ms. Green would very much like to work in an integrated employment setting that pays at least minimum wage. In the most recent ISP, Ms. Green states in the section about what is most important to her: “I would like a community job. . .” Her work records reflect that on April 5, 2011, she expressed frustration concerning her low wages and the workshop manager told her that although she was a very good worker, jobs in the community were not available at that time. No one has offered Ms. Green supported employment services or discussed integrated employment options.
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167. Ms. Green’s 2010 ISP includes as an employment goal that Ms. Green remain at the sheltered workshop as a production worker. Ms. Green’s 2011 ISP also contains the same goal, but states that “job developer will consider Sparkle for appropriate jobs being developed as opportunities arise.” However, the 2011 ISP contains no measurable action items, timelines, or responsibilities for achieving this goal, other than a mere notation that being a greeter would be a good job fit for Ms. Green.
168. Ms. Green’s case manager, who is ultimately overseen by DHS, has failed to take any actions to meaningfully address, either through the ISP process or otherwise, Ms. Green’s desire to work in integrated employment in the community. DHS and OVRS have not provided sufficient supported employment services that would allow Ms. Green to allow her to seek work in an integrated employment setting.
169. Ms. Green is frustrated that she is being paid such little money for performing unstimulating and unrewarding tasks at the segregated sheltered workshop. She enjoys shopping, going to movies, and other activities that require financial resources that she would be better able to earn in a competitive employment setting.
(8) Zavier Kinville 170. Zavier Kinville is 27 years old and has an intellectual disability and glaucoma. He is competent to make his own decisions. He lives with his father in Gresham, Oregon. 171. Mr. Kinville started attending a segregated sheltered workshop in Gresham, Oregon in June, 2011. The sheltered workshop that Mr. Kinville attends has approximately 70 participants with disabilities, most of whom work together in two segregated, noisy rooms performing primarily rote tasks. Participants have little choice about the jobs they work on and
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have little or no contact with individuals without disabilities, other than paid staff. Mr. Kinville has been denied supported employment services for which he is eligible, resulting in his unnecessary segregation in a sheltered workshop.
172. Mr. Kinville's most recent earnings at the workshop were $223.06 for 44.87 hours in December 2011; $136.88 for 27.07 hours in November 2011; and $ 278.89 for 40 hours in October 2011.
173. Before coming to the workshop, Mr. Kinville was engaged in a number of volunteer activities in the community. His favorite job was being a volunteer reading to children for a semester.
174. Mr. Kinville would like to be in an integrated employment setting with more challenges and the opportunity to earn at least minimum wage.
175. Mr. Kinville’s 2010 ISP stated that he had worked with OVRS for several months but then his vocational training was terminated. His 2011 ISP contains a goal to attend a facilitybased employment program to learn job skills, earn money, and participate in socialized activities and supervised activities with his peers. Although his ISPs state that he wants to find a program that will prepare him for a community job, the ISP contains no specific tasks, time frames, or benchmarks for beginning a search for integrated employment. Mr. Kinville has proven himself to be a motivated, productive worker, but there are no supports or opportunities available that would allow him to move from the segregated sheltered workshop to integrated employment.
176. Mr. Kinville’s brokerage personal agent, who is ultimately overseen by DHS, has failed to ensure that Mr. Kinville’s ISP includes supports and services to reasonably allow Mr.
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Kinville to pursue his goal of integrated employment. DHS and OVRS have not offered Mr. Kinville supported employment services that would allow him to seek integrated employment.
(9) United Cerebral Palsy (UCP) 177. A core portion of UCP's mission, and a central aspect of its organization's activities, is to expand integrated employment for persons with intellectual and developmental disabilities. UCP, like several other organizations that assist and serve persons with intellectual and developmental disabilities, have devoted countless hours attempting – mostly unsuccessfully – to reducing DHS' excessive reliance on sheltered workshops and to expanding its provision of supported employment services. 178. UCP participates on several ODDS and OVRS task forces and committees concerning employment, in an effort to enhance integrated employment. It has attended numerous meetings with representatives of ODDS, OVRS, and other state and local entities; testified at legislative hearings and in other forums; identified state-created barriers to integrated employment; helped draft reports and papers on improving access to competitive employment; and, together with other organizations, issued findings and formulated recommendations for reducing segregated workshops and expanding supported employment services. None of these efforts have substantially reduced ODDS' reliance on sheltered workshops nor resulted in a substantial increase in supported employment services. 179. As a result, UCP is substantially limited in its ability to provide supported employment services to individuals with disabilities whom it serves. These individuals are then denied the employment supports they need to obtain and maintain competitive employment in integrated settings.
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VI. LEGAL CLAIMS First Claim for Relief
The Americans with Disabilities Act 180. The plaintiffs reallege paragraphs 1 through 179 as though fully set forth herein. 181. The named plaintiffs and the members of the plaintiff class, due to their intellectual and developmental disabilities, are individuals with disabilities within the meaning of the ADA. 42 U.S.C. § 12131(2). Plaintiffs and class members are substantially limited in major life activities such as learning, working, and brain function. 182. The defendants, acting in their official capacities, are public entities within the meaning of the ADA. 183. The named plaintiffs and the plaintiff class are qualified to participate in Oregon’s system of employment services for individuals with intellectual and developmental disabilities. 184. The defendants are violating Title II of the ADA and its implementing regulations by administering, funding, and operating its employment services system in a manner that unduly relies on segregated sheltered workshops and that fails to offer supported employment services to qualified persons with disabilities. 185. The defendants are violating Title II of the ADA and its implementing regulations by unnecessarily segregating the named plaintiffs and members of the plaintiff class in sheltered workshops and by failing to provide them with supported employment services for which they are eligible, in order to prepare and allow them to seek work in integrated employment settings. 186. The defendants are violating Title II of the ADA and its implementing regulations by discriminating against the named plaintiffs and members of the plaintiff class on the basis of
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the severity of their disabilities, through their eligibility criteria, funding, and administration of supported employment services.
187. It would not fundamentally alter the defendants' employment service system to provide the named plaintiffs and members of the plaintiff class with supported employment services that they need and for which they are eligible to avoid segregation in sheltered workshops.
188. The defendants lack a comprehensive and effectively working plan of serving persons with intellectual and developmental disabilities in integrated settings rather than segregated workshops.
Second Claim for Relief Section 504 of the Rehabilitation Act 189. The plaintiffs reallege paragraphs 1 through 188 as though fully set forth herein. 190. The named plaintiffs and the members of the plaintiff class are qualified individuals with disabilities under Section 504 of the Rehabilitation Act. 29 U.S.C. § 794a. They are capable of working in integrated employment settings. 191. The defendants receive federal financial assistance for their programs and activities. 192. The defendants are violating Section 504 of the Rehabilitation Act and its implementing regulations by administering, funding, and operating its employment services system in a manner that unduly relies on segregated sheltered workshops and that fails to offer supported employment services to qualified persons with disabilities.
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193. The defendants are violating § 504 and its regulations by subjecting the named plaintiffs and members of the plaintiff class to unnecessary segregation at sheltered workshops and by failing to provide them with supported employment services for which they are eligible, in order to prepare and allow them to seek work in integrated employment settings.
194. The defendants are violating § 504 and its implementing regulations by discriminating against the named plaintiffs and members of the plaintiff class on the basis of the severity of their disabilities, through their eligibility criteria, funding, and administration of supported employment services.
195. It would not fundamentally alter the defendants' employment service system to provide the named plaintiffs and members of the plaintiff class with integrated employment and supported employment services that they need to avoid segregation in sheltered workshops.
196. The defendants lack a comprehensive and effectively working plan of serving persons with intellectual and developmental disabilities in integrated settings rather than segregated workshops. VII. PRAYERS FOR RELIEF WHEREFORE, the named plaintiffs respectfully request that this Court:
1. Certify this case as a class action pursuant to Fed. R. Civ. P. 23; 2. Issue a declaratory judgment that the defendants are violating the ADA and the Rehabilitation Act by needlessly segregating the named plaintiffs and members of the plaintiff class in sheltered workshops and failing to provide them with supported employment services for which they are eligible. 3. Issue preliminary and permanent injunctions requiring the defendants:
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a. To administer, fund, and operate its employment services system in a manner which does not relegate persons with intellectual and developmental disabilities to segregated workshops and which includes supported employment services that allow persons with disabilities the opportunity to work in integrated settings;
b. To provide supported employment services to all qualified class members, consistent with their individual needs;
c. To develop and implement an Implementation Plan, approved by the Court, that describes each of the activities that must be undertaken to modify the defendants' employment service system, including infrastructure modifications, service definitions, provider development, staff training, family education, and interagency coordination.
4. Award the plaintiffs their reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 12205 and 29 U.S.C. § 794a; and
5. Grant any other relief which is necessary and proper to protect the federal rights of the named plaintiffs and the class they represent.
Dated this 29th day of May 2012.
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Respectfully submitted,
CENTER FOR PUBLIC REPRESENTATION
/s/ Steven J. Schwartz Steven J. Schwartz (admitted pro hac vice) E-mail: sschwartz@cpr-ma.org Cathy E. Costanzo (admitted pro hac vice) E-mail: ccostanzo@cpr-ma.org Bettina Toner (admitted pro hac vice) E-mail: btoner@cpr-ma.org 22 Green Street Northampton, Massachusetts 01060 Telephone: (413) 586-6024 Fax: (413) 586-5711
DISABILITY RIGHTS OREGON
Kathleen L. Wilde, OSB No. 971053 E-mail: kwilde@dro.org James A. Wrigley, OSB No. 904134 E-mail: jwrigley@dro.org Theodore E. Wenk, OSB No. 001239 E-mail: ted@dro.org 610 S.W. Broadway, Suite 200 Portland, Oregon 97205 Telephone: (503) 243-2081 Fax: (503) 243-1738
MILLER NASH LLP
Bruce A. Rubin, OSB No. 763185 E-mail: bruce.rubin@millernash.com Justin C. Sawyer, OSB No. 014057 E-mail: justin.sawyer@millernash.com Jennifer J. Roof, OSB No. 001586 E-mail: jennifer.roof@millernash.com 111 S.W. Fifth Avenue, Suite 3400 Portland, Oregon 97204 Telephone: (503) 224-5858 Fax: (503) 224-0155
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PERKINS COIE LLP Stephen F. English, OSB No. 730843 E-mail: senglish@perkinscoie.com Lawrence H. Reichman, OSB No. 860836 E-mail: lreichman@perkinscoie.com Nathan R. Christensen, OSB No. 093129 E-mail: nchristensen@perkinscoie.com 1120 N.W. Couch Street, Tenth Floor Portland, Oregon 97209 Telephone: (503) 727-2000 Fax: (503) 727-2222 Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

PAULA LANE; ANDRES PANIAGUA; ELIZABETH HARRAH; ANGELA KEHLER; GRETCHEN CASON; LORI ROBERTSON; SPARKLE GREEN; and ZAVIER KINVILLE, on behalf of themselves and all other similarly situated, and UNITED CEREBRAL PALSY OF OREGON AND SOUTHWEST WASHINGTON, INC.,
Plaintiffs,
v.
JOHN KITZHABER, Governor of the State of Oregon; ERINN KELLEY-SIEL, Director of the Oregon Department of Human Services; MARY LEE FAY, Administrator of the Office of Developmental Disability Services; and STEPHAINE PARRISH TAYLOR, Administrator of the Office of Vocational Rehabilitation Services,
Defendants.

Case No. 3:12-cv-00138 -ST OPINION AND ORDER

STEWART, Magistrate Judge:

INTRODUCTION

Pursuant to FRCP 23(a) and (b)(2), eight individuals and an institution, United Cerebral

Palsy of Oregon and Southwest Washington (“UCP”), have filed a Motion for Class Certification

(docket #11) to certify a class defined as “all individuals in Oregon with intellectual or

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developmental disabilities who are in, or who have been referred to, sheltered workshops” and “who are qualified for supported employment services.” First Amended Complaint, ¶¶ 32-33.
Plaintiffs seek injunctive relief based on alleged violations of Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 USC §§ 12131-34 (“First Claim”), and Section 504 of the Rehabilitation Act of 1973, 29 USC § 794(a) (“Second Claim”). The named defendants are various state officials, including the Governor (John Kitzhaber), the Director of the Oregon Department of Human Services (“DHS”) (Erinn Kelley-Siel), the Administrator of the Office of Developmental Disability Services (“ODDS”) (Mary Lee Fay), and the Administrator of the Office of Vocational Rehabilitation Services (“OVRS”) (Stephaine Parrish Taylor).
Defendants oppose class certification due to the lack of commonality and typicality, as well as the unavailability of classwide injunctive relief.
For the reasons that follow, the Motion for Class Certification is granted. BACKGROUND
I. Legislative Scheme The ADA and the Rehabilitation Act impose virtually identical obligations on public
entities or programs receiving federal financial assistance. Both prohibit discrimination, mandate the administration of services in the most integrated setting appropriate, and relieve affected entities of that obligation only where the modifications would fundamentally alter the nature of the service (ADA) or impose an undue hardship (Rehabilitation Act).
Title II of the ADA prohibits discrimination against disabled persons by any public entity. 42 USC § 12132 (“[N]o 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
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“qualified individual with a disability” is one 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.” 42 USC § 12131(2). The definition of “public entity” includes “any State or local government,” as well as “any department, agency, special purpose district or other instrumentality of a State . . . or local government.” 42 USC § 12131(1)(a)(A) & (B).
Pursuant to Title II of the ADA, the Attorney General has promulgated a regulation providing 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 CFR § 35.130(d); First Amended Complaint, ¶ 44. The “most integrated setting appropriate” is defined as “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C., available at http://www.ada.gov/olmstead/ q&a_olmstead.htm, citing 28 CFR Pt. 35, App. A (2010); First Amended Complaint, ¶ 45. However, this so-called “integration mandate” is not unqualified. A public entity must make “reasonable modifications” to avoid unduly segregating the disabled, but is relieved of that obligation if it can show “that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 CFR § 35.130(b)(7); First Amended Complaint, ¶ 50.
The Rehabilitation Act, which applies to programs receiving federal financial assistance, contains a similar anti-discrimination provision, 29 USC § 794(a), and a parallel regulation requiring that an agency administer its programs and activities “in the most integrated setting appropriate to the needs of qualified handicapped persons.” 28 CFR § 41.51(d); First Amended
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Complaint, ¶ 46. Consistent with the ADA’s regulatory scheme, the integration mandate of the Rehabilitation Act is limited by regulatory provisions indicating that a recipient of federal funding need not accommodate a disabled person when the proposed accommodation would impose an “undue hardship” on the recipient. 28 CFR §§ 41.53, 42.511(c); 45 CFR § 84.12(c). II. Named Plaintiffs
The eight individual plaintiffs are persons with intellectual or developmental disabilities (“I/DD”) who either reside in group homes or in the community. First Amended Complaint, ¶¶ 112 (Paula Lane lives in an apartment with staff support), 120 (Andres Paniagua lives with his mother), 129 (Elizabeth Harrah lives in an adult foster home), 135 (Angela Kehler lives in a group home with other disabled individuals), 144 (Gretchen Cason lives with her parents), 154 (Lori Robertson lives in a group home), 162 (Sparkle Green lives in an adult foster home), 170 (Zavier Kinville lives with his father). Each is qualified for employment services from DHS.
Seven of the eight plaintiffs currently work in sheltered workshops. Id, ¶¶ 113, 121, 130, 136, 155, 163, 171. One plaintiff (Gretchen Cason) worked at a sheltered workshop prior to December 2010 and is currently unemployed. Id, ¶¶ 146-48. A sheltered workshop is a segregated employment setting, usually located in a large, institutional facility, that employs people with disabilities or where people with disabilities work separately from others. Id, ¶ 3. Workers in sheltered workshops have virtually no contact with their non-disabled peers, other than agency staff, and are typically paid sub-minimum wage. Id.
In contrast, integrated employment involves a “real job in a community-based business setting where employees have an opportunity to work alongside non-disabled co-workers and earn at least minimum wage.” Id, ¶ 4. To prepare and allow people with I/DD to participate in integrated employment, DHS “funds some supported employment services” which are in the
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nature of “vocational training services.” Id, ¶¶ 4-5. Supported employment services generally include integration, paid work at or above the minimum wage, individualized services and ongoing supports. Id, ¶ 73. Such services include helping an individual apply for a job and oneon-one coaching by assigned staff at the work site. Norman Depo., pp. 18, 84, 89. Unlike a sheltered workshop which assigns individuals with varying abilities and interests to identical tasks, supported employment services “utilize a person-centered planning model that assesses each individual’s unique skills, needs and preferences.” First Amended Complaint, ¶ 74. Supported employment service providers match the strengths and needs of individuals to specific jobs, in contrast to sheltered workshops that fill job slots based upon the demands of its contracts or create “make work” when insufficient contract work is available. Id, ¶ 75. Supported employment services promote economic independence by paying prevailing wages at or above the state minimum wage. Id, ¶¶ 76, 79. The national trend has been moving away from the sheltered workshop model and toward supported employment. Id, ¶ 77.
Plaintiffs prefer to receive supported employment services which would prepare and allow them to work at a “real job in a community-based business setting where employees have an opportunity to work alongside non-disabled co-workers and earn at least minimum wage.” Id, ¶¶ 2, 4, 119, 125-28, 132-34, 140-43, 151-53, 159-61, 166-68, 174-76. However, as a direct result of DHS’s administration, management and funding of its employment service system, they and similarly situated individuals remain unnecessarily segregated in sheltered workshops and are denied virtually all contact with non-disabled persons, “any real pathway to integrated employment,” and a minimum wage that would lead to economic independence. Id, ¶¶ 1-2, 5-7; Coffey Decl., ¶¶ 5, 6.
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The organizational plaintiff, UCP, is a statewide, nonprofit organization that serves adults, children and families experiencing cerebral palsy and I/DD. First Amended Complaint, ¶ 22. It has monitored and attempted to influence defendants in order to ensure that persons with I/DD receive the employment services to which they are entitled. Id, ¶ 23. That effort has diverted its resources and hindered its ability to serve its clients and expand its capacity to provide supported employment services. Id, ¶ 24. III. Oregon’s Employment Services System
DHS plans, funds and oversees all developmental disability services and vocational rehabilitation services for adults with I/DD in Oregon. Id, ¶¶ 28, 81. It determines the amount and allocation of funding, including the range of employment services and the level of funding for sheltered workshops versus supported employment programs. Id, ¶ 81. It receives federal funds for the administration of its programs. Id, ¶¶ 28, 29.
ODDS (part of DHS) plans, administers, and directly manages the long-term employment service systems for adults with I/DD, including all sheltered workshops and supported employment services. Id, ¶¶ 30, 82. It has the primary responsibility for developing, implementing, and overseeing all employment programs for persons with I/DD. Id, ¶ 82. ODDS has developed, adopted and promoted an Employment First Policy directing that integrated employment is the first and priority option to be explored in planning for day services. Id, ¶ 84. However, it has not taken effective action to implement the Employment First Policy, resulting in excessive reliance on segregated workshops. Id, ¶ 85.
OVRS (also part of DHS) is responsible for completing a comprehensive vocational assessment and determining the employment needs and potential of adults with I/DD. Id, ¶¶ 31,
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86. It identifies jobs, contracts with supported employment agencies, and provides job training, job coaching, and support for up to 18 months. Id, ¶ 86.
Defendants administer two Medicaid waivers approved by the Center for Medicare and Medicaid Services (“CMS”) and funded pursuant to § 1915(c) of the Social Security Act. Id, ¶¶ 53, 87. A waiver allows a state to provide a variety of services with Medicaid funds, such as employment services, without having to meet certain Medicaid requirements. Id, ¶ 87. Oregon’s Medicaid waivers fund employment services, including many sheltered workshops and some supported employment services. Id.
Oregon serves adults with I/DD under two Medicaid Home and Community Based Services (“HCBS”) waiver programs. Fay Decl., ¶ 5. The Comprehensive Waiver provides persons with funds for 24-hour care in both residential programs and non-residential day services. Id. These persons are assigned a case manager who is employed by a Community Development Disability Program (“CDDP”). Id. CDDPs are typically run by the county. Id. The CDDPs establish and confirm the rates for individuals’ service needs. Id. Case managers are tasked with helping individuals determine the goals and outcomes of their services and drafting an Individual Support Plan (“ISP”) consistent with the Employment First Policy. Id. Case managers are also responsible for referring clients to service providers. Id.
In contrast, the Support Services Waiver provides funds for individuals living on their own or with their families. Id, ¶ 6. Each person served by the Support Services Waiver is enrolled in a brokerage, which is an independent entity certified by Oregon. Id. Brokerages employ personal agents. Id. Each person under this waiver is assigned a personal agent who is charged with helping the person develop an annual ISP that identifies support needs and goals for the year. Id. Each person receives a set amount of Medicaid funds for the month and has a
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choice from a menu of available options as to how to spend those funds. Id. Personal agents are responsible for helping their clients select services and providers that will best meet their clients’ goals and needs. Id. Personal agents, like case managers, are subject to the Employment First policy. Id, ¶ 6.
Sheltered workshops are facilities controlled by certified services providers where individuals with I/DD perform contract work. Id, ¶ 10. They are available to any Oregonian served by one of the waivers at any time. Id. An enclave is a small group of up to eight individuals with I/DD who are employed by a provider agency and who work in a community business worksite with staff of the provider agency. Id. Provider agencies provide employment or alternatives to employment services for persons under the comprehensive waiver at a rate assigned to each person in accordance with the Oregon Administrative Rules and the person’s ISP. Id, ¶ 11. ODDS does not make a separate payment to providers who operate sheltered workshops. Id, ¶ 12. According to ODDS data, Oregon invests a total of approximately $30 million in sheltered workshops annually. First Amended Complaint, ¶ 88.
Oregon is one of only three states with no state-run or private institutions housing individuals with I/DD. Fay Decl., ¶ 4. In the mid-1980s and mid-1990s, a greater percentage of Oregonians with I/DD worked in supported employment. Id, ¶ 7. However, Oregon closed the last state-run institution in 2009. Id, ¶ 4. As a result, the number of adults with I/DD served in the community increased from less than 3,000 in 1989 to over 12,000 today. Id, ¶ 7. In addition, the population now served by ODDS has a greater level of disabilities, which makes finding employment for each person more challenging. Id.
Among states, Oregon is considered a leader in the provision of supported employment
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services for individuals with I/DD. Id, ¶ 8. It was one of three states that developed an early Employment First Policy in 2008. Id, ¶¶ 8-9. Oregon was also one of the 13 states to join the Supported Employment Learning Network, a group formed to use collective experience to determine the best policies and strategies for increasing employment outcomes. Id, ¶ 8. In Oregon, based on data collected in March 2012, of the more than 10,000 adults receiving some form of day services, 2,469 persons work in sheltered workshops and 2,273 persons work in integrated employment settings. Id, ¶ 20.
Despite the Employment First Policy, Oregon has increased its reliance on segregated workshops and decreased its development and use of supported employment services. First Amended Complaint, ¶ 97. According to the Call to Action Report issued in 2010 by the Oregon Employment First Outreach Project of the relevant Oregon state agencies, Oregon lost its momentum by 2010 for supported employment with 42% of persons under the Comprehensive Waiver in sheltered employment and 12.3% of persons under the Support Services Waiver in sheltered employment. Wenk Decl., Ex. 2 (“Community Leadership for Employment First in Oregon”), p. 6. At that time, an estimated 60% of those under the Support Services Waiver were not in a job and not receiving employment-related support services. Id. That report made numerous recommendations (id, pp. 13-24), most of which have not been implemented. First Amended Complaint, ¶ 105.
STANDARDS FOR CLASS CERTIFICATION Plaintiffs seeking to represent a class must satisfy the threshold requirements of FRCP 23(a), as well as the requirements under one of the subsections of FRCP 23(b). Pursuant to FRCP 23(a), a case is appropriate for certification as a class action if: (1) the class is so numerous that joinder of all members is impracticable;
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(2) questions of law or fact are common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Plaintiffs seek class certification under FRCP 23(b)(2), which requires that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Plaintiffs bear the burden of demonstrating that each element of FRCP 23 is satisfied. See Gen. Tel. Co. of the Sw. v. Falcon, 457 US 147, 158-61 (1982); Hanon v. Dataproducts Corp., 976 F2d 497, 508 (9th Cir 1992). While the primary focus is not on the merits of the plaintiff’s claims, courts “must perform ‘a rigorous analysis [to ensure] that the prerequisites of Rule 23(a) have been satisfied.’” Ellis v. Costco Wholesale Corp., 657 F3d 970, 980 (9th Cir 2011), quoting Wal-Mart Stores, Inc. v. Dukes, 131 S Ct 2541, 2551 (2011). As the Supreme Court has stressed, “Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart, 131 S Ct at 2551. In addition, the court’s “rigorous analysis” under FRCP 23 frequently “will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped.” Id. To determine whether class certification is proper, the court may consider material beyond the pleadings and require supplemental evidentiary submissions by the parties. Blackie v. Barrack, 524 F2d 891, 901 n17 (9th Cir 1975).
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ANALYSIS Plaintiffs seek certification of a class in Oregon for claims arising under the ADA and the Rehabilitation Act. The proposed class definition is: “Individuals with intellectual or developmental disabilities who are in, or who have been referred to, sheltered workshops” and “who are qualified for supported employment services.” First Amended Complaint, ¶¶ 32-33. I. FRCP 23(a) Defendants do not contest that plaintiffs satisfy the requirements of FRCP 23(a) as to numerosity and adequate representation by counsel. Instead, they argue that commonality is lacking and that the class representatives are not typical and, thus, do not adequately represent the proposed members of the class. A. Commonality
1. Legal Standard FRCP 23(a)(2) requires the existence of “questions of law or fact common to the class.” This standard is not strictly construed, but “has been construed permissively. All questions of fact and law need not be common to satisfy the rule. The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.” Hanlon v. Chrysler Corp., 150 F3d 1011, 1019 (9th Cir 1998). The Supreme Court has recently clarified the commonality requirement, at least in employment discrimination cases, by requiring “the plaintiff to demonstrate that the class members ‘have suffered the same injury.’” Wal–Mart, 131 S Ct at 2551 (quotation omitted). “This does not mean merely that they have all suffered a violation of the same provision of law,” but instead that their claims “depend upon a common contention . . . of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will
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resolve an issue that is central to the validity of each one of the claims in one stroke.” Id.
Although “[e]ven a single [common] question will do,” id at 2556 (internal citation and
quotation marks omitted), “[w]hat matters to class certification is not the raising of common
‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate
common answers apt to drive the resolution of the litigation.” Id at 2551 (emphasis omitted).
2. Parties’ Arguments
Plaintiffs contend that this case is a quintessential civil rights action appropriate for class
certification because it challenges defendants’ system-wide policies, practices, and failures
which have allegedly damaged all class members by unnecessarily segregating them in sheltered
workshops. Plaintiffs allege four common questions of fact1 and three common questions of
law2 and argue that the evidence needed to resolve these common questions is the same for all
class members.
1 Those common questions of fact are: 1. whether the named plaintiffs and class members are unnecessarily relegated to segregated settings in order to receive employment services, as a result of defendants’ actions and inactions in planning, administering, and funding their employment service system for persons with I/DD; 2. whether the named plaintiffs and class members are denied the opportunity to work with non-disabled peers, as a result of defendants’ actions and inactions in planning, administering, and funding their employment service system for persons with I/DD; 3. whether the named plaintiffs and class members are given vocational training in segregated work settings that bears little or no connection to their skills, abilities, or interests and that rarely leads to integrated employment at competitive wages, as a result of defendants’ actions and inactions in planning, administering, and funding their employment service system for persons with I/DD; and 4. whether defendants have a comprehensive and effectively working plan for serving the named plaintiffs and class members in integrated employment settings. First Amended Complaint, ¶ 35. 2 Those common questions of law are whether defendants are violating the ADA and Rehabilitation Act by: 1. planning, administering, funding and operating an employment services system that unnecessarily relies upon segregated sheltered workshops and that denies the named plaintiffs and class members supported employment services in integrated employment settings; 2. failing to provide the named plaintiffs and class members supported employment services in integrated settings, consistent with their needs; and 3. administering the employment services system in a manner that discriminates against the named plaintiffs and class members by providing them employment services in segregated settings and by failing to provide them supported employment services necessary to allow them to engage in competitive employment in integrated settings. First Amended Complaint, ¶ 34.
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Primarily relying on Wal-Mart, defendants respond that no common questions of law or fact exist and that resolution of this case will necessitate numerous fact-intensive, individualized inquiries in light of the differing types of disabilities and differing needs for employment services for each class member.
As discussed below, this court concludes that a class of disabled individuals seeking reasonable accommodation may be certified without the need for an individualized assessment of each class member’s disability or the type of accommodation needed. On balance plaintiffs have met their burden of satisfying commonality for purposes of class certification.
3. Impact of Wal-Mart Prior to Wal–Mart, commonality in disability discrimination suits was generally satisfied “where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members.” Armstrong v. Davis, 275 F3d 849, 868 (9th Cir 2001), cert denied, 537 US 812 (2002) (commonality met for a class of individuals with different types of disabilities “all of whom suffer from the Board’s failure to accommodate their disabilities”), citing LaDuke v. Nelson, 762 F2d 1318, 1332 (9th Cir 1985) (commonality met where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members), and Baby Neal ex rel. Kanter v. Casey, 43 F3d 48, 56 (3rd Cir 1994) (commonality not precluded by individual factual differences). As plaintiffs note, in almost every case involving a challenge under Title II of the ADA and/or Section 504 of the Rehabilitation Act to discriminatory governmental policies and practices, courts have certified a class. See, e.g., 7 NEWBERG ON CLASS ACTIONS § 23:10 (4th ed. 2011). This is particularly true with respect to cases alleging a violation of the integration mandate of the ADA. See List of Selected ADA Class Action Cases, attached as Appendix to Plaintiffs’ Memorandum in Support of Their Motion for Class Certification (docket # 12-2).
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Defendants contend that Wal-Mart has changed the landscape by tightening the standard for proving commonality under FRCP 23(a)(2). Wal-Mart emphasized that a common contention is not sufficient if its resolution may be impeded by “[d]issimilarities within the proposed class.” Wal-Mart, 131 S Ct at 2551. The claims of every class member must “depend upon a common contention . . . of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the [class member’s] claims in one stroke.” Id.
Unlike this case, Wal-Mart was a Title VII gender discrimination case in which the plaintiffs sought damages. The Supreme Court found that the evidence was insufficient to support commonality by failing to show a common reason for the alleged disparate treatment of female employees. Instead, the evidence showed significant localized discretionary decisionmaking among thousands of stores nationwide potentially impacting a class of approximately 1.5 million women. In contrast, the Rehabilitation Act claims alleged in this case do not require proof of the intent behind the alleged discrimination, but instead rely on a denial of benefits to disabled persons. Thus, the Title VII analysis in Wal-Mart is not closely on point. Moreover, plaintiffs in this case point to a common policy and practice of unnecessary segregation by DHS and its programs which is capable of classwide resolution.
Nonetheless, to support a heightened standard of proof, defendants point to two post-WalMart appellate opinions, M.D. ex rel Stukenberg v. Perry, 675 F3d 832 (5th Cir 2012), and Jamie S. v. Milwaukee Pub. Sch., 668 F3d 481 (7th Cir 2012), which refused to certify class actions challenging systemic deficiencies. Neither opinion supports defendants’ position.
In M.D., the proposed class of children in long-term foster care sought declaratory and injunctive relief to redress classwide injuries caused by systemic deficiencies in the
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administration of Texas’s child welfare system. Although the Fifth Circuit stated that Wal-Mart “has heightened the standards for establishing commonality under Rule 23(a)(2),” it made that statement in the context of finding that the district court failed to perform a sufficient analysis. M.D., 675 F3d at 839. The Fifth Circuit did not conclude that the common questions were insufficient, as in Wal-Mart, but held only that the district court “failed to perform the ‘rigorous analysis’ required” to explain how the numerous systemic deficiencies gave rise to a common solution for the three differing constitutional claims of all class members. Id at 844. In fact, it acknowledged that “the class claims could conceivably be based on an allegation that the State engages in a pattern or practice of agency action or inaction – including a failure to correct a structural deficiency within the agency, such as insufficient staffing . . .” Id at 847. In contrast here, plaintiffs allege that defendants are engaging in a pattern or practice of inaction, including a failure to correct several structural deficiencies which the Fifth Circuit expressly recognized as a viable class claim.
Jamie S. involved a proposed class of special education students in Milwaukie, Wisconsin, alleging a violation of the school district’s Child Find obligations under the Individuals with Disabilities Education Act (“IDEA”) and seeking structural reform in the manner of providing special education services. The Seventh Circuit denied certification based on two factors not present here. First, the IDEA requires individualized determinations of each child’s educational needs and precludes judicial relief without first exhausting all administrative remedies. The plaintiffs sought to circumvent that requirement by challenging a systemic deficiency. The Seventh Circuit found that the class definition was too indefinite and could not be invoked to accomplish such circumvention. Jamie S., 668 F3d at 493-96. Neither the ADA nor the Rehabilitation Act at issue in this case impose such an exhaustion requirement or demand
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such individualized determinations. Second, and perhaps more importantly, the elaborate courtmonitored remedial scheme established an individualized child review process that resulted in separate injunctive orders for each child. Such separate injunctions did not generate a common answer that applied to the class as a whole. Id at 498-99. No such remedial scheme exists – or is being sought – in this case.
Based on Wal-Mart, no court has yet declined to certify an ADA Title II case. To the contrary, after Wal-Mart, several courts have certified class actions in ADA or Rehabilitation Act cases. In Oster v. Lightbourne, 2012 WL 685808, at *6 (ND Cal March 2, 2012), alleging claims for violations of the ADA, the Rehabilitation Act, and the Medicaid Act, the court certified a class of persons whose state in-home support services would be “limited, cut, or terminated” by 20% under a new law. Given the lack of discretion in the reduction, the court found that the case was “readily distinguishable” from Wal-Mart. Id at *5. Similarly, the court in Pashby v. Cansler, 279 FRD 347 (ED NC Dec. 8, 2011), certified a class of eligible adult Medicaid recipients challenging the legality of a new rule that would terminate eligibility for inhome care. Unlike Wal-Mart, the court concluded that plaintiffs “sufficiently alleged commonality of their claims” because a determination that the rule “is valid or invalid on its face will resolve the claims of all potential plaintiffs, irrespective of their particular factual circumstances.” Id at 353.
As defendants point out, those cases, as in other pre-Wal-Mart cases, are distinguishable on the basis that they challenged reductions according to some formula. In contrast, plaintiffs in this case do not challenge the legality of a law or rule to reduce services by a set amount to every eligible recipient. However, two other cases post-Wal-Mart have certified classes in situations similar to this case.
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In Gray v. Golden Gate Nat’l Recreation Area, 279 FRD 501 (ND Cal 2011), reconsideration denied in part, No. C 08-00722 EDL, 2011 WL 5573466 (ND Cal Nov. 15, 2011), the court thoroughly analyzed Wal-Mart before certifying a class of persons with mobility and/or vision disabilities challenging the barriers at a national recreation area under the Rehabilitation Act. It concluded that the commonality requirement was met by the general policies and practices of failing to address access barriers despite the differing types and levels of disabilities of the class members. In doing so, it relied on Armstrong which affirmed the certification of a class of life-with-parole prisoners with differing disabilities who claimed that the Board of Parole’s policies and practices for parole hearings violated the ADA and Rehabilitation Act. Upon reconsideration after the Ninth Circuit’s decision in Ellis v. Costco Wholesale Corp., 657 F3d 970 (9th Cir 2011) (declining to certify a class action alleging gender discrimination in violation of Title VII), the court refused to de-certify the class.
In D.L. v. Dist. of Columbia, 277 FRD 38 (D DC Nov 16, 2011), after analyzing WalMart, the court refused to decertify a class of preschool-aged children eligible for, but not identified to receive, special education and related services in violation of the IDEA and the Rehabilitation Act.3 The court concluded that “plaintiffs have amply demonstrated” commonality because “[a]ll of the class members have suffered the same injury: denial of their statutory right to a free appropriate public education.” Id at 45. It characterized the multiple allegations of violations of various laws as “only represent[ing] the differing ways in which defendants have caused class members’ common injury.” Id. It also found that “unlike in WalMart, this common question of whether class members received a [Free Appropriate Public Education] is susceptible to classwide proof – e.g., statistical evidence indicating that, compared
3 As in Jamie S., decided later, plaintiffs alleged a violation of the Child Find obligations under the IDEA.
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to similar jurisdictions, the District of Columbia is underserving its population of disabled children.” Id. Also, unlike Wal-Mart, the court pointed out that liability “does not hinge on [defendants’] state of mind when they denied disabled children a FAPE, or on any particular cause.” Id at 46 (emphasis in original; citation omitted). Finally, it concluded that “plaintiffs have presented significant proof or ‘glue’ binding together the various reasons why individual class members were denied a FAPE – namely, ‘systemic failures’ within defendants’ education system.” Id at 46.
Defendants do not contend, nor can they, that Wal-Mart overruled all prior cases and now bars certifying class actions by persons with differing disabilities for violations of the ADA and Rehabilitation Act. Instead, as was the situation before Wal-Mart, despite the individual dissimilarities among class members, “commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members.” Armstrong, 275 F3d at 868.
4. Analysis Defendants assert that a single answer cannot be given to any of the four allegedly common questions of fact, pointing to differences among the named plaintiffs. For example, not all of the named plaintiffs work in sheltered workshops4; some have worked in5 (or declined the opportunity to work in6) integrated settings; and appropriate vocational training will differ for each individual. However, commonality only requires a single common question of law or fact. A common question of law posed in this case is whether defendants have failed to plan,
4 Ms. Cason is not currently employed and does not want to return to a sheltered workshop which is the only employment she has been offered. Ms. Kehler works in an enclave (a segregated setting which offers no regular contact with non-disabled peers). 5 Ms. Robertson, Ms. Cason and Ms. Harrah have worked in integrated settings. 6 Ms. Robertson declined a night janitorial position, the only community job then available, due to logistical difficulties working at night.
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administer, operate and fund a system that provides employment services that allow persons with disabilities to work in the most integrated setting. As in other cases certifying class actions under the ADA and Rehabilitation Act, commonality exists even where class members are not identically situated.
As defendants correctly note, some plaintiffs or putative class members may need more or different employment services than others. However, all plaintiffs are qualified for, but not receiving the full benefit of, supported employment services; all lack regular contact with nondisabled peers (other than paid staff); and all want to work, but are not working, in an integrated setting. As a result, they and all similarly situated persons suffer the same injury of unnecessary segregation in the employment setting. It is not necessary, as defendants contend, for plaintiffs to prove at this stage that they and all putative class members are unnecessarily segregated and would benefit from employment services. That is, in effect, the answer to the common question and not the common question of whether they are being denied supported employment services for which they are qualified.
Under defendants’ interpretation, differences with respect to the needs and preferences of persons with disabilities would always preclude the certification of a class in virtually all ADA Title II cases. This court rejects that interpretation and concludes that plaintiffs satisfy the commonality requirement of FRCP 23(a). ///
B. Typicality FRCP 23(a)(3) further requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Typicality is similar to the commonality requirement. “Under the rule’s permissive standards, representative claims are ‘typical’ if they
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Case 3:12-cv-00138-ST Document 78 Filed 08/06/12 Page 20 of 29 Page ID#: 1609
are reasonably coextensive with those of absent class members; they need not be substantially identical.” Hanlon, 150 F3d at 1020. Because the alleged cause of plaintiffs’ injury is a discriminatory policy and practice, the “typicality inquiry involves comparing the injury asserted in the claims raised by the named plaintiffs with those of the rest of the class.” Armstrong, 275 F3d at 869. Although the claims of the class representative need not be identical to the claims of other class members, the class representative “must be part of the class and possess the same interest and suffer the same injury as the class members.” Falcon, 457 US at 156 (internal quotation marks and citation omitted).
Plaintiffs argue that they are typical of the proposed class (qualified persons with I/DD who are in, or who have been referred to, sheltered workshops) because they have I/DD, require employment services, are currently working in (or referred to) a segregated setting, have no contact with non-disabled peers other than paid staff, want to work in an integrated setting, are not working in an integrated setting, are qualified for supported employment services, and, as a result, are suffering unnecessary segregation. In sum, they all have suffered the same type and manner of injury (segregated employment) stemming from the same discriminatory practice (systemic failure to provide supported employment services).
Defendants do not dispute that two plaintiffs (Paula Lane and Sparkle Green) work in a sheltered workshop (Edwards Center in Beaverton, Oregon), want to be in an integrated setting, and are not receiving any form of supported employment. However, they challenge whether the six remaining plaintiffs are typical of the putative class members. They argue that some of the named plaintiffs have not been denied supported employment services or do not want such services and, thus, have suffered no injury. They also contend that plaintiffs have submitted no
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Case 3:12-cv-00138-ST Document 78 Filed 08/06/12 Page 21 of 29 Page ID#: 1610
evidence that they are capable of working in an integrated setting. These arguments are premised, in part, on inaccurate, incomplete or misleading information.
Defendants misconstrue the deposition testimony of Andres Paniagua to suggest that he does not want to work in a community job. He testified that he wants a job in the community in order to make more money and has requested help for the past four years to obtain a community job without success. Paniagua Depo., pp. 12, 18, 80; Toner Depo., Ex. 14.
Plaintiffs concede that five of them working at Eastco’s sheltered workshop may have received some supported employment services, but only after Eastco hired a new job developer in April 2012 after this lawsuit was filed. Eastco had to lay off its previous job developer in July 2010 due to budget cuts. Norman Depo. (docket #75-2), pp. 21, 101. The newly hired job developer is only able to provide services to 14 of 57 qualified individuals. Id, pp. 105-06. Typicality is not defeated by the fact that representative plaintiffs have had some limited mitigation of their damages. Wolin v. Jaguar Land Rover N. Am, LLC, 617 F3d 1168 (9th Cir 2010) (typicality not defeated by two class representatives who had already received some discounts and free services for faulty tires). Moreover, Eastco had no job developer at the time this lawsuit was filed. A plaintiff does not lose standing to seek injunctive relief when the unlawful conduct ceases after a lawsuit is filed. Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., 528 US 167, 185 (2000). In any event, these five named plaintiffs continue to be segregated at Eastco’s sheltered workshop. As defendants correctly point out, Ms. Cason is currently unemployed. She previously worked in a community job, but now is being offered only work in a sheltered workshop. She alleges that she is not receiving the supported employment services through OVRS that would enable her to return to a community job.
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Therefore, she is typical of those putative class members who have been referred to work in a sheltered workshop.
Some of the named plaintiffs are clearly capable of working in an integrated setting based on their past work experience in community jobs (Ms. Cason, Ms. Kehler, Ms. Robertson, and Ms. Harrah). The others may or may not be capable of working in an integrated setting, but that is not the issue. The issue is whether they are typical of the class because they are qualified for supported employment services that would allow them the opportunity to work in integrated employment settings. All of them have expressed the desire for such services. Whether those services will ultimately place them in an integrated setting cannot be known until the services are provided in a nondiscriminatory manner.
Defendants also presume that sheltered workshops employing both disabled and nondisabled persons are integrated settings. Fay Decl., ¶ 14. Plaintiffs disagree with the terminology used by defendants. They concede that some enclaves (workshops with eight or fewer persons) are integrated settings, such as a factory that employs many non-disabled persons and pays at least minimum wage. However, some enclaves are segregated settings with no contact with non-disabled peers and with payment of sub-minimum wages. Norman Depo., pp. 47-48, 90-91. For example, Ms. Kehler works in Eastco’s screen printing shop. Kehler Depo., p. 14. Although it is an enclave, plaintiffs have submitted evidence that it is a segregated setting similar to a sheltered workshop because, with the exception of the manager and screener, it employs only disabled workers. Norman Depo., pp. 15-17, 93-94. Based on the evidence submitted by plaintiffs, all of the named plaintiffs fall within the proposed class definition.
Defendants also argue that the class definition is fatally overbroad to the extent that it includes individuals who: (1) work in sheltered workshops that are actually integrated; (2) also
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Case 3:12-cv-00138-ST Document 78 Filed 08/06/12 Page 23 of 29 Page ID#: 1612
work in an integrated setting; or (3) do not wish to leave the sheltered workshop. That argument is rejected. With respect to the first category, as discussed above, plaintiffs’ evidence supports their allegation that no sheltered workshop is truly integrated. With respect to the second category, the proposed class definition may well include some individuals who work in both a sheltered workshop and an integrated setting. However, according to plaintiffs’ allegations and evidence, any work in a sheltered workshop, even if part-time, is unnecessary segregation. With respect to the third category, plaintiffs do not seek to close all sheltered workshops or force people to leave the workshop if that is not their preference. They simply seek the opportunity to leave a sheltered workshop by receiving those services. Due to their disability, many individuals with I/DD may not ask for supported employment services because they are not aware of them or because they are not aware that they have any choices as to services that they are entitled to receive. See Disability Advocates, Inc. v. Patterson, 653 F Supp2d 184, 254 (EDNY 2009), vacated on other grounds, 675 F3d 149 (2nd Cir 2012) (rejecting the need for adult home residents to be “qualified” for supported housing unless they submit an application because they “lack a meaningful opportunity to submit an application to HRA for the housing of their choice.”)
Defendants correctly note that due to the two different Medicaid Waivers, the plaintiffs and putative class members have differing abilities to access employment services. Case managers develop the ISP and monitor its implementation with the providers for those under the Comprehensive Waiver, while personal agents provide assistance to those under the Support Services Waiver to develop the ISP and select the necessary services and providers. However, under both waivers, the employment services provided through Medicaid funds are allegedly failing to satisfy the integration mandate. The issue is the menu of employment services and
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providers available under either waiver. If the providers are only offering employment in a segregated setting, then it makes little difference whether the choice of provider and service is made by a case manager for the person with I/DD or by the person with I/DD with the assistance of a personal agent.
Thus, this court concludes that plaintiffs satisfy the typicality requirement of FRCP 23(a). C. Adequacy of Representation The final FRCP 23(a) prerequisite, adequacy of representation, is satisfied if “the representative parties will fairly and adequately protect the interests of the class.” The satisfaction of constitutional due process concerns requires that absent class members be afforded adequate representation prior to an entry of judgment, which binds them. Hanlon, 150 F3d at 1020. Determining the adequacy of representation requires consideration of two questions: “(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Id (citation omitted). The adequacy of representation is satisfied as long as one of the plaintiffs is an adequate class representative. Local Joint Executive Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F3d 1152, 1162 (9th Cir), cert denied, 534 US 973 (2001). Defendants argue that the named plaintiffs cannot adequately represent class members in other parts of Oregon because they all reside in the Portland area. However, they cite no case law to support the need for adequate class representatives to be geographically diverse. Instead, they simply offer evidence that the opportunities for employment for individuals with I/DD in rural areas are significantly fewer than in the Portland metropolitan area. Fay Decl., ¶ 16. But they fail to explain how any particular named plaintiff from the Portland metropolitan area would
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Case 3:12-cv-00138-ST Document 78 Filed 08/06/12 Page 25 of 29 Page ID#: 1614
have antagonistic interests to class members from elsewhere in Oregon. All want the same thing, namely an integrated employment setting.
The named plaintiffs have the same interests as the putative class members. In addition, there is no apparent conflict of interest between the named plaintiffs’ claims and those of the other class members, particularly because they have no separate and individual claims apart from the class. Thus, this court concludes that the named plaintiffs are adequate representatives of the proposed class. II. FRCP 23(b)
Defendants contend that class certification is not appropriate under FRCP 23(b)(2) because a single injunction cannot possibly provide final relief to each member of the class due to the need to make individual determinations. They view this class action as a vehicle to mandate a process that will necessarily involve individualized determinations as to what level of employment services must be provided to each plaintiff and class member in order to comply with the integration mandate.
Unlike other class actions in ADA and Rehabilitation Act cases, defendants have adopted the Employment First Policy that plaintiffs fully support and do provide some supported employment services in order to implement that policy. The problem, according to plaintiffs, is that despite their acknowledgment of deficiencies in that policy, defendants are not remedying those deficiencies, such that not all qualified persons are able to access integrated employment settings. Unlike M.D., and Jamie S., which explicitly sought or resulted in a judicial process that used court-created expert panels or a hybrid IEP system to determine a separate injunctive order for each class member, plaintiffs seek to enforce the Employment First Policy by ordering defendants to take specific classwide operational actions to comply with the integration mandate.
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This issue harkens back to defendants’ prior motion to dismiss which contended that plaintiffs seek to impose an impermissible “standard of care” or to “provide a certain level of benefits” which the ADA does not require. Olmstead v. L.C. ex rel. Zimring, 527 US 581, 603 n14 (1999). Plaintiffs steadfastly deny that the “level” of supported employment services provided by defendants is at issue. Instead, they seek to modify the planning, administration, operation and funding of DHS’s employment service program to ensure that all class members have access to integrated employment. They emphasize that the specific “level” of supported employment services needed to accomplish that goal for each class member is determined not by the court, but by treatment professionals through the existing ISP process. See OAR 411-3411300.
Unlike many other cases, this case does not involve a wholesale denial, or even an across-the-board reduction, of benefits to every qualified recipient. Instead, defendants are providing some supported employment services to some qualified recipients. However, plaintiffs contend that because the services provided are inadequate based on structural deficiencies in the program, they and others similarly situated remain unnecessarily segregated in employment which is a form of discrimination on the basis of disability. The adequacy of such services can be measured, at least in part, by the level of such services provided. After all, more supported employment services will presumably provide more access to employment in integrated settings. However, a claim for more services is not necessarily the same as requiring “a certain level of benefits” which Olmstead expressly disavows.
Townsend v. Quasim, 328 F3d 511 (9th Cir 2003), is instructive in this regard. In that case, plaintiffs alleged that Washington’s Medicaid program violated the ADA by providing long-term care services only to disabled recipients living in nursing homes (due to lower income
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Case 3:12-cv-00138-ST Document 78 Filed 08/06/12 Page 27 of 29 Page ID#: 1616
levels) and not to those living in integrated community-based settings. Distinguishing Olmstead, the district court relied on Rodriguez v. City of New York, 197 F3d 611 (2nd Cir 1999), cert denied, 531 US 864 (2000), which held that New York did not violate the ADA by failing to provide safety monitoring services as part of its Medicaid program because “the plaintiff class was demanding a separate service, one not already provided by the City.” Townsend, 328 F3d at 517. The Ninth Circuit found the district court’s reliance on Rodriguez to be “misplaced,” explaining that “where the issue is the location of services, not whether services will be provided, Olmstead controls.” Id (emphasis in original). Since Washington was already providing the services, the court held that it violated the ADA by failing to provide them in a different location, namely an integrated setting. Id at 518. Because Washington claimed that providing community-based services would present a fiscal burden, the Ninth Circuit remanded the case to evaluate this fundamental alteration defense.
Similar to Townsend, plaintiffs are not demanding new services, but seek the provision of existing supported employment services to qualified individuals not only in segregated settings, but also in integrated employment settings. The supported employment services at issue include one-on-one job coaching to the individual, as well as support to the employer, which is provided only in the integrated employment setting. In essence, plaintiffs allege that through their management of employment services, defendants are dedicating a disproportionate amount of their resources in favor of segregated employment settings over integrated employment settings. That claim involves not only what employment services are provided, but how, when and where they are provided. This is a permissible claim under Olmstead. Also see Disability Advocates, Inc., 653 F Supp2d at 218-19 (defendants violated ADA by not providing services to mentally disabled individuals living in community-based supported housing, as well as in adult care
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Case 3:12-cv-00138-ST Document 78 Filed 08/06/12 Page 28 of 29 Page ID#: 1617
facilities). Plaintiffs seek to have defendants administer their employment services to persons with I/DD in order to place them in the most integrated setting appropriate to their needs. While Olmstead does not impose a “ ‘standard of care’ for whatever medical services [states] render,” it requires states to “adhere to the ADA's nondiscrimination requirement with regard to the services they in fact provide” in the most integrated setting appropriate to their needs. 527 US at 603 n14.
As required by Wal-Mart, this class action can be resolved “in one stroke” with an appropriate injunction applicable to all class members. As outlined in the Prayer to the First Amended Complaint, that injunction would require defendants to “administer, fund and operate its employment services system in a manner that does not relegate persons with [I/DD] to segregated workshops and which includes supported employment services that allow persons with disabilities the opportunity to work in integrated settings.” That does not mean that defendants must provide a community job to every qualified individual who wants one, but only that it must “provide supported employment services to all qualified class members, consistent with their individual needs.” As in Olmstead, whether a class member is qualified for the services he or she seeks is determined by the reasonable judgments of professionals. But those judgments must actually be reasonable and based on professional assessments, rather than simply the exigencies of available services or providers. Plaintiffs seek a court-approved Implementation Plan “that describes each of the activities that must be undertaken to modify the defendants’ employment service system, including infrastructure modifications, service definitions, provider development, staff training, family education, and interagency coordination.” This type of injunctive relief focuses on defendants’ conduct, not on the treatment needs of each class member. It is aimed at providing classwide alternatives to
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Case 3:12-cv-00138-ST Document 78 Filed 08/06/12 Page 29 of 29 Page ID#: 1618 segregated employment, regardless of a person’s individualized support needs, by modifying the way defendants fund, plan, and administer the existing employment service system. ORDER For the reasons stated above, Motion for Class Certification (docket #11) to certify a class defined as “all individuals in Oregon with intellectual or developmental disabilities who are in, or who have been referred to, sheltered workshops” and “who are qualified for supported employment services” is GRANTED. DATED August 6, 2012. s/ Janice M. Stewart Janice M. Stewart United States Magistrate Judge
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 </s> Case 3:12-cv-00138-ST Document 83 Filed 03/27/13 Page 1 of 15 Page ID#: 1656
THOMAS E. PEREZ Assistant Attorney General EVE L. HILL Senior Counselor to the Assistant Attorney General ALISON BARKOFF Special Counsel for Olmstead Enforcement REBECCA B. BOND Chief SHEILA M. FORAN Special Legal Counsel ANNE RAISH Deputy Chief MAX LAPERTOSA REGINA KLINE H. JUSTIN PARK Trial Attorneys Max.Lapertosa@usdoj.gov Civil Rights Division, Disability Rights Section U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 Telephone: (202) 305-1077 Facsimile: (202) 514-1116
S. AMANDA MARSHALL, OSB #95347 United States Attorney District of Oregon ADRIAN L. BROWN, OSB #05020 adrian.brown@usdoj.gov Assistant United States Attorney United States Attorney’s Office District of Oregon 100 SW Third Avenue, Suite 600 Portland, Oregon 97204-2902 Telephone: (503) 727-1003 Facsimile: (503) 727-1117
Attorneys for the United States of America

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UNITED STATES’ MEMORANDUM IN SUPPORT OF MOTION TO INTERVENE Lane v. Kitzhaber, 3:12-cv-00138-ST

Case 3:12-cv-00138-ST Document 83 Filed 03/27/13 Page 2 of 15 Page ID#: 1657

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

PAULA LANE, et al., Plaintiffs,

Case No. 3:12-cv-00138-ST

THE UNITED STATES OF AMERICA’S

MEMORANDUM IN SUPPORT OF ITS

v.

MOTION TO INTERVENE

JOHN KITZHABER, in his official capacity as the Governor of Oregon, et al.,
Defendants.

The United States respectfully moves to intervene in this action in order to remedy violations of the State of Oregon’s obligations under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134, and Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794 et seq.1 As explained below, intervention should be granted as of right — or in the alternative, by permission — because the United States has significant interests in this matter that may, as a practical matter, be impeded by disposition of this case, its motion is timely, and the other parties cannot adequately represent the United States’ interests.

1 Title II and Section 504 both prevent the unnecessary segregation of persons with disabilities. See Olmstead v. L.C., 527 U.S. 581, 591 (1999).

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BACKGROUND The United States’ proposed Complaint in Intervention2 alleges that the State of Oregon unnecessarily segregates individuals with intellectual and developmental disabilities in sheltered workshops, where they have little to no interaction with the general population, by failing to provide or make available supported employment services that would allow for their integration into the community. Congress enacted the ADA in 1990 “to provide a clear and comprehensive mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). In enacting the ADA, Congress found that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” Id. § 12101(a)(2). For these reasons, Congress prohibited discrimination against individuals with disabilities by public entities, including discrimination in the form of unnecessary segregation and isolation. Olmstead, 527 U.S. at 588-89, 596. Congress furthermore sought “clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities,” 42 U.S.C. § 12101(b)(2), and expressly stated that one of the purposes of the ADA was “to ensure that the Federal Government plays a central role in enforcing the standards established in [the Act] on behalf of individuals with disabilities . . . .” Id. § 12101(b)(3). Accordingly, the Attorney General is authorized to bring legal action to prevent discrimination that is prohibited by the ADA. See id. § 12133 (incorporating 42 U.S.C. § 2000d-1).

2 Attached as Ex. 1.

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The United States thus has a unique role in enforcing and interpreting Title II and its implementing regulations on behalf of the broad public interest. This case directly implicates the United States’ interest in enforcing the integration mandate of Title II of the ADA as interpreted by Olmstead. The United States also has a substantial interest in ensuring that recipients of federal financial assistance, such as the State of Oregon, do not violate Section 504 of the Rehabilitation Act’s similar prohibition against disability discrimination, including unnecessary segregation.
The private named plaintiffs commenced this lawsuit on January 25, 2012, and filed an amended complaint on May 29, 2012. On August 6, 2012, this Court certified a class of “all individuals in Oregon with intellectual or developmental disabilities who are in, or who have been referred to, sheltered workshops and who are qualified for supported employment services.” Lane v. Kitzhaber, 283 F.R.D. 587, 602 (D. Or. 2012) (internal quotation marks omitted).
On October 11, 2011, the United States began an investigation into the State’s system of providing employment and vocational services to persons with intellectual and developmental disabilities. (Letter from Max Lapertosa to John Dunbar, Oct. 11, 2011, attached as Ex. 2) On June 29, 2012, following its investigation, the United States issued a letter of findings that notified the State of its failure to comply with the ADA and the minimum steps the State would need to take to meet its obligations under the law. (United States’ Letter of Findings, Jun. 29, 2012, attached as Ex. 3) Following this letter, the United States and the Plaintiffs commenced settlement negotiations with the State in an effort to reach an amicable resolution. During these negotiations, the parties did not take oral discovery and engaged in only limited written

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discovery.3 On March 7, 2013, the United States notified the State that it had determined that voluntary compliance was not possible and that it would be initiating legal action. (Letter from Eve Hill to John Dunbar, Mar. 7, 2013, attached as Ex. 4)
ARGUMENT Rule 24 of the Federal Rules of Civil Procedure provides for two means by which an applicant may intervene in an action: intervention of right, governed by subsection (a), and permissive intervention, governed by subsection (b). As discussed below, the United States satisfies both standards. I. Intervention As of Right Rule 24(a)(2) provides that, upon timely application, anyone shall be permitted to intervene in an action who: claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest. As construed by the Ninth Circuit, an applicant is entitled to intervention as of right when: (1) it has a significant protectable interest relating to the property or transaction that is the subject of the action; (2) the disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest; (3) the application is timely; and (4) the existing parties may not adequately represent the applicant’s interest. United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004) (quoting United States v. City of Los Angeles, 288 F.3d 391, 397 (9th Cir. 2002)); see also Zelpro Assembly Solutions,

3 Under the Court’s April 3, 2012 scheduling order, the deadline for joining parties and completing fact discovery is April 1, 2013. (ECF No. 28) On March 15, 2013, Plaintiffs filed a motion to extend these and other case deadlines. (See Pl.’s Mot. Amend Case Sch. and Extend Deadlines, ECF No. 79) A telephonic hearing on this motion is scheduled for April 16, 2013. (See ECF No. 81)

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LLC v. Stingl Prods., LLC, No. CV-11-519-ST, 2011 U.S. Dist. LEXIS 98960, at *6 (D. Or. Aug. 5, 2011).
In determining whether to grant intervention, “[c]ourts are to take all well-pleaded, nonconclusory allegations in the motion to intervene, the proposed complaint or answer in intervention, and declarations supporting the motion as true absent sham, frivolity or other objections.” Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001). Moreover, courts must be “guided primarily by practical and equitable considerations, and the requirements for intervention are broadly interpreted in favor of intervention.” Alisal Water, 370 F.3d at 919; see also Yorkshire v. IRS, 26 F.3d 942, 944 (9th Cir.), cert. denied, 513 U.S. 989 (1994). As shown below, the United States satisfies each of the requirements for intervention as of right under Rule 24(a).
A. The United States Has a Significant Protectable Interest in This Litigation “The requirement of a significantly protectable interest is generally satisfied when the interest is protectable under some law, and there is a relationship between the legally protected interest and the claims at issue.” City of Emeryville v. Robinson, 621 F.3d 1251, 1259 (9th Cir. 2010) (quotation and alteration marks omitted). “Whether an applicant for intervention as of right demonstrates sufficient interest in an action is a practical, threshold inquiry, and no specific legal or equitable interest need be established.” Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2011) (quotation and alteration marks omitted). In granting intervention as of right, Ninth Circuit courts have recognized that government agencies have significant protectable interests in cases involving the application of statutes the agency is tasked with enforcing. See, e.g., Smith v. Pangilinan, 651 F.2d 1320, 1324-25 (9th Cir. 1981) (United States Attorney General “is charged with administration and enforcement of the

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laws relating to immigration” and therefore had interest of sufficient magnitude to warrant inclusion in the action in case involving interpretation of territorial laws permitting holders of territorial certificates to enter United States without restriction); Dep’t of Fair Empl. & Hous. v. Law Sch. Admission Council Inc., No. C-12-1830-EMC, 2012 U.S. Dist. LEXIS 150413, at *3 (N.D. Cal. Oct. 18, 2012) (granting United States’ motion to intervene in “suit directly implicat[ing] the United States’ interest in enforcing Titles III and V of the ADA, and its ability to craft clear, strong, consistent, enforceable standards in implementing the statute and its regulations as directed by Congress”) (internal quotation marks omitted);4 Alturas Indian Rancheria v. Cal. Gambling Control Comm’n, No. Civ. S-11-2070 LKK/EFB, 2011 U.S. Dist. LEXIS 124611, at *6-7 (E.D. Cal. Oct. 26, 2011) (granting United States’ motion to intervene where it had “protectable interest in protecting the orderly system Congress has established for challenging the assessment or collection of federal taxes”).
The United States has a significant, protectable interest in this litigation. As the federal agency with primary regulatory and enforcement responsibilities under Title II of the ADA, the Department of Justice has been charged by Congress with drafting regulations implementing the act, including the integration regulation upon which Olmstead was decided. The Department therefore has a substantial interest in enforcing and interpreting Title II and ensuring that its integration mandate is consistently met. Olmstead, 527 U.S. at 597-98 (“Because the Department is the agency directed by Congress to issue regulations implementing Title II, its views warrant respect.”) (citation omitted); see also M.R. v. Dreyfus, 663 F.3d 1100, 1117-18 (9th Cir. 2011). Accordingly, courts have allowed the United States to intervene in actions to

4 The decision further states: “A governmental agency has a significant protectable interest . . . in ensuring that the interpretation of the statutes and regulations it is charged with enforcing are accurately presented to the Court in the course of litigation.” Id.

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enforce Olmstead,5 and the United States has also brought or participated in numerous other such actions across the country.6
In enacting the ADA, Congress sought “clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities,” 42 U.S.C. § 12101(b)(2), and explicitly stated that one of the purposes of the ADA was “to ensure that the Federal Government plays a central role in enforcing the standards established [in the Act] on behalf of individuals with disabilities . . . .” Id. § 12101(b)(3).7 The central issues of this case are critical to the Department of Justice’s efforts to advance national goals of community integration and enforce the civil rights of persons with disabilities as required by the ADA. Thus, the United States meets this requirement for intervention as of right under Rule 24(a).
B. Disposition of this Case May Impede the United States’ Interests The United States’ ability to protect its substantial legal interest would, as a practical matter, be impaired absent intervention. Federal decisions interpreting and applying the provisions of the Act are an important enforcement tool. The outcome of this case, including the potential for appeals by existing parties, implicates stare decisis concerns that warrant the United States’ intervention. See Day v. Apolonia, 505 F.3d 963, 965 (9th Cir. 2007) (intervention was necessary to protect state intervenor’s interest where case might “have a precedential impact

5 See Steward, et al. v. Perry, et al., No. 5:10-CV-1025 (W.D. Tex. Sept. 20, 2012); Lynn E. v. Lynch, No. 1:12-CV-53-LM (D.N.H. March 27, 2012).
6 E.g., United States v. North Carolina, No. 5:12-cv-557 (E.D.N.C. filed Aug. 23, 2012); United States v. Virginia, No. 3:12CV059 (E.D. Va. filed Jan. 26, 2012); United States v. Delaware, No. 11-CV-591 (D. Del. filed July 6, 2011); United States v. Georgia, No. 10-CV-249 (N.D. Ga. filed Jan. 28, 2010).

7 Similarly, the Department has the authority to coordinate the implementation and enforcement of Section 504 of the Rehabilitation Act. Exec. Order No. 12,250, Leadership and Coordination of Implementation and Enforcement of Nondiscrimination Laws, 3 C.F.R. 298 (1980), reprinted in 42 U.S.C. § 2000d-1, note.

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regarding the availability of an enforceable right of action”); City of Los Angeles, 288 F.3d at 400 (amicus curiae status may be insufficient to protect rights of applicant for intervention “because such status does not allow [applicant] to raise issues or arguments formally and gives [applicant] no right of appeal”); Smith, 651 F.2d at 1325 (“In appropriate circumstances, . . . stare decisis may supply the requisite practical impairment warranting intervention of right.”). As such, intervention is necessary to protect the United States’ substantial interest in this litigation.
C. The Application for Intervention Is Timely In the Ninth Circuit, three factors are weighed in determining whether a motion for intervention is timely: “(1) the stage of the proceeding in which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay.” County of Orange v. Air California, 799 F.2d 535, 537 (9th Cir. 1986) (citing United States v. Oregon, 745 F.2d 550, 552 (9th Cir. 1984)). “Mere lapse of time alone is not determinative.” Id. Rather, as the Supreme Court has emphasized, “[t]imeliness is to be determined from all the circumstances.” NAACP v. New York, 413 U.S. 345, 366 (1973); see also Day, 505 F.3d at 966 (granting state intervenor’s motion where it could not “be said that the state ignored the litigation or held back from participation to gain tactical advantage[,]” and noting that “all the circumstances of the case must be considered in ascertaining whether or not a motion to intervene is timely[.]”) (quoting Legal Aid Soc’y of Alameda County v. Dunlop, 618 F.2d 48, 50 (9th Cir. 1980)). In this case, all three prongs of the timeliness analysis weigh in favor of granting the United States’ intervention motion. First, this motion is being filed at a sufficiently early stage of the proceeding because the district court has not yet “substantively — and substantially —

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engaged the issues in [the] case.” League of United Latin Am. Citizens v. Wilson (LULAC), 131 F.3d 1297, 1303 (9th Cir. 1997). Here, the Court granted a motion by Defendants to dismiss, but it did so with leave to amend, which Plaintiffs did, and the issues briefed in connection with that motion are now moot. Discovery has not progressed extensively due to the settlement negotiations between the United States and the parties, which did not reach impasse until earlier this month. Thus far, there has been only one set of written discovery requests served by Plaintiffs, and no depositions or other discovery beyond the class certification stage. See Vosk Int’l Co. v. Zao Gruppa Predpriyatij OST, Case No. C11-1488RSL, 2012 U.S. Dist. LEXIS 151685, at *4-5 (W.D. Wash. Oct. 19, 2012) (intervention granted “in the midst of the discovery stage,” one year after commencement of case) (citing LULAC, 131 F.3d at 1303). Accordingly, on March 15, 2013, private Plaintiffs filed a motion to extend the current April 1, 2013 discovery deadline by another year. (ECF Nos. 79, 80.) The case has not reached the dispositive motions stage,8 let alone trial, and “the real substance of this litigation has not been engaged . . . .” Nikon Corp. v. ASM Lithography B.V., 222 F.R.D. 647, 651 (N.D. Cal. 2004).
Second, the existing parties in this case will not be prejudiced if the United States’ motion is granted. “Prejudice can . . . be shown where there will be a loss of evidence, a loss of settlement offers in expectation of no further claims being made, or a need to revisit previously adjudicated matters.” S. Yuba River Citizens League v. Nat’l Marine Fisheries Serv., No. Civ. S06-2845 LKK/JFM, 2007 U.S. Dist. LEXIS 81636, at *35 (E.D. Cal. Oct. 16, 2007). Here, none of these factors is present: there is no loss of evidence, no loss of settlement offers (indeed, the
8 Unlike in the instant case, courts have typically found intervention to be untimely when it is sought after the filing of dispositive motions. See LULAC, 131 F.3d at 1303 (intervention motion untimely when filed after district court had already ruled on motion for preliminary injunction and motion for summary judgment); Smith v. Marsh, 194 F.3d 1045, 1050 (9th Cir. 1999) (intervention motion untimely when filed after district court had already ruled on motions for summary judgment and motion to bifurcate trial). Page - 10 UNITED STATES’ MEMORANDUM IN SUPPORT OF MOTION TO
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parties have already made an extensive attempt to settle) and no need to revisit previously adjudicated matters. Although the United States’ intervention would not delay adjudication of this case, delay alone would not cause prejudice, but is instead an ordinary consequence of intervention. See id. (“A mere delay in the proceedings does not suffice to show that intervention will prejudice the parties.”); see also LULAC, 131 F.3d at 1304 (“We recognize, of course, that additional delay is not alone decisive (otherwise every intervention motion would be denied out of hand because it carried with it, almost by definition, the prospect of prolonging the litigation).”) (emphasis in original).9
Third, the United States has compelling reasons for filing this motion at this time, rather than immediately after the initiation of Plaintiffs’ lawsuit. For the past nine months, the United States has engaged in good faith settlement negotiations with the parties in an effort to reach an amicable pre-suit resolution of the United States’ and Plaintiffs’ claims. These settlement negotiations began after the United States completed its investigation of the State’s system of providing employment services to persons with intellectual and developmental disabilities. The negotiations did not reach impasse until earlier this month.10
Accordingly, this Court should find that the United States’ motion to intervene is timely. D. The United States’ Interest is Inadequately Represented by Existing Parties The final requirement for intervention as of right is that the proposed intervenor’s interest is not adequately represented by the existing parties to the case. “The [proposed intervenor’s]
9 In fact, the Department’s involvement will benefit the effective resolution of this case due to the Department’s extensive experience with issues involving Olmstead enforcement. Furthermore, by avoiding multiple lawsuits and coordinating discovery, intervention will lend efficiency to the proceedings.
10 As a result of these efforts as well as the United States’ June 29, 2012 letter of findings (Ex. 3), Defendants are substantially aware of the United States’ claims in intervention, thus further demonstrating the lack of prejudice to Defendants. Page - 11 UNITED STATES’ MEMORANDUM IN SUPPORT OF MOTION TO
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burden of showing inadequacy of representation is ‘minimal’ and satisfied if the applicant can demonstrate that representation of its interests ‘may be’ inadequate.” Citizens for Balanced Use, 647 F.3d at 898 (quoting Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003)). Three factors are relevant: “(1) whether the interest of a present party is such that it will undoubtedly make all of a proposed intervenor’s arguments; (2) whether the present party is capable and willing to make such arguments; and (3) whether a proposed intervenor would offer any necessary elements to the proceeding that other parties would neglect.” Arakaki, 324 F.3d at 1086 (citing California v. Tahoe Reg’l Planning Agency, 792 F.2d 775, 778 (9th Cir. 1986)).
The existing parties cannot adequately represent the United States’ interests. The United States Attorney General is charged by Congress with the duty to enforce Title II of the ADA. 42 U.S.C. §§ 12133-34 (incorporating 42 U.S.C. § 200d-1). No private party may adequately represent the United States’ sovereign interest in enforcing federal civil rights laws. “[T]he United States has an interest in enforcing federal law that is independent of any claims of private citizens.” United States v. E. Baton Rouge Sch. Dist., 594 F.2d 56, 58 (5th Cir. 1979); see also EEOC v. Pemco Aeroplex, 383 F.3d 1280, 1291 (11th Cir. 2004) (“Quite simply, it is so unusual to find privity between a governmental agency and private plaintiffs because governmental agencies have statutory duties, responsibilities, and interests that are far broader than the discrete interests of a private party.”), cert. denied, 546 U.S. 811 (2005). Furthermore, the United States seeks to vindicate the rights of individuals, including youth, who are at risk of placement in segregated sheltered workshops. (See, e.g., Ex. 1 at ¶¶ 70-75); M.R., 663 F.3d at 1116, 1118. Without intervention, the United States’ interest in protecting these individuals’ rights would not be adequately represented. Accordingly, the United States meets this requirement for intervention.
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II. Permissive Intervention In the alternative, the United States should be permitted to intervene under Fed. R. Civ. P.
24(b), which provides that the Court may permit a federal officer or agency to intervene if an existing party’s claim or defense is based upon “a statute or executive order administered by the officer or agency; or . . . any regulation, order, requirement or agreement issued or made under the statute or executive order.” Fed. R. Civ. P. 24(b)(2). As the agency charged with enforcing Title II of the ADA, the United States’ intervention falls squarely within the language of Rule 24(b)(2). Disability Advocates, Inc. v. Paterson, No. 03-CV-3209, 2009 U.S. Dist LEXIS 109394, *6-7 (E.D.N.Y. Nov. 23, 2009) (“claims [that] are based on the ‘integration mandate’ found in the Attorney General’s regulations implementing Title II” are “the exact situation specifically contemplated by Rule 24(b)(2)…”), vacated sub nom. on other grounds, Disability Advocates, Inc. v. N.Y. Coal. for Quality Assisted Living, 675 F.3d 149 (2d Cir. 2012).
Second, Rule 24(b)(1)(B) states, in relevant part, that “[o]n timely motion, the court may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). Here, as discussed above, the United States’ application for intervention is timely. Furthermore, there are common questions of law and fact between the United States’ claims in intervention and Plaintiffs’ existing claims, in that both contend that the State unnecessarily segregates individuals with developmental disabilities in sheltered workshops. Although Rule 24(b)(3) instructs courts to “consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights[,]” as discussed above, the United States’ participation would not cause undue delay or prejudice.
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CONCLUSION For the foregoing reasons, the United States respectfully requests that this Court grant its Motion to Intervene (a) as a matter of right pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure or, in the alternative, (b) permissively pursuant to Rule 24(b) of the Federal Rules of Civil Procedure.

Dated: March 27, 2013
S. AMANDA MARSHALL United States Attorney District of Oregon
s/ Adrian Brown ADRIAN BROWN Assistant United States Attorney 1000 SW Third Avenue Suite 600 Portland, OR 97204 Tel: (503) 727-1000

RESPECTFULLY SUBMITTED,
THOMAS E. PEREZ Assistant Attorney General EVE L. HILL Senior Counselor to the Assistant Attorney General ALISON BARKOFF Special Counsel for Olmstead Enforcement Civil Rights Division
s/ Max Lapertosa REBECCA B. BOND Chief SHEILA M. FORAN Special Legal Counsel ANNE RAISH Deputy Chief MAX LAPERTOSA REGINA KLINE H. JUSTIN PARK Trial Attorneys Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 Tel: (202) 305-1077 Fax: (202) 514-1116 E-mail: Max.Lapertosa@usdoj.gov
Attorneys for Proposed Plaintiff-Intervenor United States of America

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I certify that on March 27, 2013, I filed the foregoing document, including all attachments, via the Court’s CM/ECF system, which shall send notice to all counsel of record via electronic mail.
s/ Max Lapertosa
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THOMAS E. PEREZ Assistant Attorney General EVE L. HILL Senior Counselor to the Assistant Attorney General ALISON BARKOFF Special Counsel for Olmstead Enforcement REBECCA B. BOND Chief SHEILA M. FORAN Special Legal Counsel ANNE RAISH Deputy Chief MAX LAPERTOSA REGINA KLINE H. JUSTIN PARK Trial Attorneys Max.Lapertosa@usdoj.gov Civil Rights Division, Disability Rights Section U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 Telephone: (202) 305-1077 Facsimile: (202) 514-1116
S. AMANDA MARSHALL, OSB #95347 United States Attorney District of Oregon ADRIAN L. BROWN, OSB #05020 adrian.brown@usdoj.gov Assistant United States Attorney United States Attorney’s Office District of Oregon 100 SW Third Avenue, Suite 600 Portland, Oregon 97204-2902 Telephone: (503) 727-1003 Facsimile: (503) 727-1117
Attorneys for the United States of America

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UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

PAULA LANE, ANDRES PANIAGUA, ELIZABETH HARRAH, ANGELA KEHLER, GRETCHEN CASON, LORI ROBERTSON, SPARKLE GREEN, and ZAVIER KINVILLE, on behalf of themselves and all others similarly situated,

Case No. 3:12-cv-00138-ST

UNITED CEREBRAL PALSY OF OREGON AND SOUTHWEST WASHINGTON,

Plaintiffs,

v.

JOHN KITZHABER, Governor of the State of Oregon, ERINN KELLEY-SIEL, Director of the Oregon Department of Human Services, MIKE MALEY, Interim Administrator of the Oregon Office of Developmental Disability Services, STEPHAINE PARRISH TAYLOR, Administrator of the Oregon Office of Vocational Rehabilitation Services, all in their official capacities,

Defendants.

UNITED STATES OF AMERICA,

Plaintiff-Intervenor, v.

COMPLAINT IN INTERVENTION OF THE UNITED STATES OF AMERICA

THE STATE OF OREGON,

Defendant.

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INTRODUCTION 1. The United States alleges that Defendant, the State of Oregon (“State”), discriminates against individuals with intellectual or developmental disabilities (“I/DD”) by unnecessarily segregating them in sheltered workshops and by placing them at risk of such segregation, in violation of Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12131-12134, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Rehabilitation Act”). 2. A sheltered workshop is a segregated facility that exclusively or primarily employs persons with I/DD. Sheltered workshops are usually large, institutional facilities in which persons with I/DD have little to no contact with non-disabled persons besides paid staff. Persons with I/DD typically earn wages that are well below minimum wage. 3. For example, one sheltered workshop in Oregon includes approximately 150 people with I/DD, where some individuals hand-sort and process hospital trash off a conveyor belt, and other individuals hand-sort and clean garbage bins. People are segregated within the workshop by the severity of their disabilities, with the most severely disabled working together. A handful of nondisabled staff members supervise the workspace, which is a large warehouse. No private spaces are provided for the workers. The site is located in a commercial area without easy access to retail businesses. The workers with I/DD on the Comprehensive Waiver earn an average of $3.35 per hour, with some individuals earning as little as 44 cents per hour, and individuals often work at the workshop for decades at a time. Oregon’s system has so ingrained the expectation that all individuals with I/DD will work in such sheltered workshops, that students from local high schools receive scholarships/stipends to participate in the workshop
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provider’s programs while still in school. Some other high schools’ “life skills” programs operate sheltered workshops in school or have students with I/DD perform workshop tasks.
4. Supported employment services, by contrast, allow persons with I/DD to work in integrated employment settings at competitive wages. Such services include job discovery, vocational assessment, job coaching, and job training that enable individuals to access jobs in typical work settings in the community where they interact with non-disabled coworkers, customers, and peers. For example, some individuals with I/DD receiving supported employment services in Oregon work in clerical positions performing tasks like scanning, copying, or shredding in a typical office setting, and receive occasional job coaching and job training from employment specialists. These individuals often have their own desks and workspaces, and regularly interact with nondisabled coworkers. Many of these individuals receive support in adjusting to ongoing workplace demands and in learning new skills on the job, for instance, through the training provided by job coaches. Such individuals earn competitive wages, sometimes receive retirement benefits and health insurance, and can often live independently in their own apartments.
5. Title II of the ADA prohibits the unnecessary segregation of persons with disabilities. 42 U.S.C. § 12132; Olmstead v. L.C., 527 U.S. 581, 600 (1999). It requires states and other public entities to “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); see also 29 U.S.C. § 794(a); 28 C.F.R. § 41.51(d).
6. The State has discriminated against individuals with I/DD by planning, administering, and funding its employment service system in a manner that relies heavily upon segregated sheltered workshops. The State has correspondingly failed to provide persons with
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I/DD with meaningful access to adequate and effective supported employment services that would allow them to work in integrated employment settings. Because the State does not make available adequate and effective supported employment services for people with I/DD who qualify for and do not oppose such services, such persons are at risk of entering into sheltered workshops and are required to remain in sheltered workshops in order to receive employment services. Oregon provides supported employment services to a limited number of persons with I/DD. For many of these persons, supported employment services have been successful in allowing them to work in integrated work settings, where they earn competitive wages and benefits that have allowed them a measure of economic self-sufficiency. Such persons, however, are far outnumbered by the thousands of individuals with I/DD who are unable to obtain supported employment services and are, accordingly, confined to segregated sheltered workshops.
7. The unnecessary segregation of people with I/DD in sheltered workshops contravenes one of the primary purposes of the ADA: to end the isolation and segregation of individuals with disabilities. As Congress stated in the findings and purpose section of the ADA: “[H]istorically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2).
8. On January 25, 2012, eight named Plaintiffs and one organizational Plaintiff filed a class action complaint on behalf of themselves and other individuals with I/DD who are in Oregon sheltered workshops “or who have been referred to[] sheltered workshops.” Compl. ¶ 32, ECF No. 1. The suit alleges violations of the ADA and the Rehabilitation Act and seeks declaratory and injunctive relief. Plaintiffs filed an amended complaint on May 29, 2012. Am.
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Compl., ECF No. 43. The Court certified the Plaintiff class on August 6, 2012. Lane v. Kitzhaber, 283 F.R.D. 587, 602 (D. Or. 2012).
9. On June 29, 2012, the United States issued a findings letter to Oregon’s Attorney General notifying the State that it was failing to comply with federal law by unnecessarily segregating individuals with I/DD in sheltered workshops and by placing other individuals with I/DD, including but not limited to youth in transition from Oregon secondary schools, at risk of segregation in sheltered workshops. The letter reported in detail the findings of the United States’ nine-month investigation, provided the State notice of its failure to comply with the ADA and the Rehabilitation Act, and outlined the steps necessary for the State to meet its obligations pursuant to federal law.
10. The letter of findings identified numerous remedial measures the State could take to comply with federal law, and further advised the State that, in the event that a resolution could not be reached voluntarily, the United States Attorney General may initiate a lawsuit pursuant to the ADA.
11. Following the issuance of the letter of findings, the United States met multiple times with State officials, including staff from the Oregon Department of Justice, both by telephone and in person in Portland, Oregon, and, at the State’s request, offered comprehensive, substantive proposals in an attempt to reach agreement on remedial measures to address the deficiencies identified in the United States’ letter of findings and Plaintiffs’ claims. Despite these good faith efforts, the United States determined that voluntary compliance with the ADA and the Rehabilitation Act could not be reached.
12. Through this intervention, the United States seeks to remedy the violations of law identified in the United States’ letter of findings and to vindicate the rights of thousands of
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individuals with I/DD in or at risk of placement in sheltered workshops so that they may receive employment services in the most integrated settings appropriate to their needs.
JURISDICTION AND VENUE 13. This Court has jurisdiction of this action under Title II of the ADA, 42 U.S.C. §§ 12131-12133, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and 28 U.S.C. §§ 1331 and 1345. The Court may grant the relief sought in this action pursuant to 28 U.S.C. §§ 2201(a) and 2202. 14. Venue is proper under 28 U.S.C. § 1391 because a substantial part of the acts and omissions giving rise to this action occurred in the District of Oregon. 28 U.S.C. § 1391(b).
PARTIES 15. Plaintiff-Intervenor is the United States of America. 16. Plaintiffs Paula Lane, Andres Paniagua, Elizabeth Harrah, Angela Kehler, Gretchen Cason, Lori Robertson, Sparkle Green, and Zavier Kinville are individuals with disabilities within the meaning of the ADA and the Rehabilitation Act (specifically, I/DD), who are segregated in sheltered workshops or are at risk of such segregation. Each named Plaintiff wants to work in integrated supported employment and is capable of doing so. See Am. Compl. ¶¶ 112-176, ECF No. 43. 17. The individual Plaintiffs named above represent a class of “all individuals in Oregon with intellectual or developmental disabilities who are in, or who have been referred to, sheltered workshops [and] who are qualified for supported employment services.” 283 F.R.D. at 602.
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18. Plaintiff United Cerebral Palsy of Oregon and Southwest Washington (“UCP”) is a statewide, nonprofit organization that serves adults, children, and families with cerebral palsy and I/DD. Am. Compl. ¶¶ 22-24, ECF No. 43.
19. Defendant State of Oregon is a public entity within the meaning of the ADA, 42 U.S.C. § 12131(1), and is therefore subject to Title II of the ADA, 42 U.S.C. § 12131 et seq., and its implementing regulations, 28 C.F.R. Part 35.
20. Defendant State of Oregon is and has been a recipient of “[f]ederal financial assistance,” and is therefore subject to the Rehabilitation Act, 29 U.S.C. § 794.
21. Defendant funds, administers and delivers vocational, employment, and rehabilitation services for persons with I/DD in Oregon via various agencies and departments, described below.
PROCEDURAL HISTORY 22. Plaintiffs filed this action on January 25, 2012. 23. On April 3, 2012, Defendants moved to dismiss this action, claiming, inter alia, that the ADA’s integration regulation did not extend to non-residential programs or activities. See Def.’s Mem. in Supp. Mot. to Dismiss 9-11, ECF No. 30. Plaintiffs opposed this motion. Pl.’s Opp’n to Def.’s Mot. to Dismiss, ECF No. 35. The United States also filed a Statement of Interest with the Court, which stated that Title II and its integration regulation applied to all services, programs, and activities provided by a public entity, including employment services. Statement of Interest of the United States in Supp. Pls. Regarding Def.’s Mot. to Dismiss, ECF No. 34. 24. On May 17, 2012, the Court ruled on Defendants’ Motion to Dismiss. The Court agreed with Plaintiffs and the United States that the ADA’s integration regulation extends to
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employment services. Lane v. Kitzhaber, 841 F. Supp. 2d 1199, 1205-06 (D. Or. 2012). However, the Court dismissed Plaintiffs’ complaint with leave to re-file in order to revise certain language that suggested that Plaintiffs were asking the State to provide them with employment. Id. at 1208.
25. On May 29, 2012, Plaintiffs filed their Amended Complaint. Am. Compl., ECF No. 43.
26. On August 6, 2012, following discovery, briefing, and a hearing, the Court granted Plaintiffs’ motion for class certification. Lane v. Kitzhaber, 283 F.R.D. 587, 602 (D. Or. 2012). The United States also filed a Statement of Interest with regard to class certification. Statement of Interest of the United States in Supp. Pls.’ Mot. Class Certification, ECF No. 60.
STATUTORY AND REGULATORY BACKGROUND A. The Americans with Disabilities Act and the Rehabilitation Act
27. The ADA provides 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.” 42 U.S.C. § 12132. The Rehabilitation Act similarly prohibits discrimination against persons with disabilities by entities that receive federal financial assistance. 29 U.S.C. § 794(a).
28. Congress enacted the ADA in 1990 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Among the specific issues the ADA addresses are “segregation” and actions that prevent persons with disabilities from “fully participat[ing] in all aspects of society.” Id. §§ 12101(a)(1), (5).
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29. In enacting the ADA, Congress found that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” Id. § 12101(a)(2). Congress also found that “people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally; [and] the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.” Id. §§ 12101(a)(6)-(7).
30. The ADA was also intended to enable individuals with disabilities to gain economic independence and to “move proudly into the economic mainstream of American life.” President George H.W. Bush, Remarks at the Signing of the Americans with Disabilities Act (July 26, 1990), available at http://www.eeoc.gov/eeoc/history/35th/videos/ada_signing_text.html.
31. Title II of the ADA prohibits discrimination on the basis of disability by public entities. 42 U.S.C. § 12132. A “public entity” is any State or local government and any department, agency, or other instrumentality of a State or local government, and covers all services, programs, and activities provided or made available by public entities, including through contractual, licensing, or other arrangements. See id. §§ 12131(1), 12132; 28 C.F.R. § 35.130. Accordingly, Title II’s coverage extends to the State of Oregon, its agencies, and its employment services system.
32. Congress directed the Attorney General to issue regulations implementing Title II of the ADA. 42 U.S.C. § 12134.
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33. The Title II regulations require public entities to “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). The Rehabilitation Act contains a similar requirement. Id. § 41.51(d). “The most integrated setting” means a setting that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible . . . .” See id. pt. 35, app. B at 673.
34. Title II’s regulations further prohibit public entities from utilizing “criteria or methods of administration” that have the effect of subjecting qualified individuals with disabilities to discrimination, including unnecessary segregation, or “that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities . . . .” Id. § 35.130(b)(3); see also 45 C.F.R. § 84.4(b)(4) (Rehabilitation Act).
35. The Supreme Court has held that Title II prohibits the unjustified segregation of individuals with disabilities. Olmstead v. L.C., 527 U.S. 581, 597 (1999).
36. The Supreme Court’s holding in Olmstead “reflects two evident judgments.” Id. at 600. “First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Id. “Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 601.
37. Under Olmstead, public entities are required to provide community-based services when (a) such services are appropriate, (b) the affected persons do not oppose community-based
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treatment, and (c) community-based services can be reasonably accommodated, taking into
account the resources available to the entity and the needs of other persons with disabilities. Id.
at 607.
B. Other Statutes, Regulations, and Guidance Pertaining to Sheltered Employment
38. Since Olmstead, numerous federal agencies that oversee employment,
rehabilitation, and vocational services for persons with disabilities have advised states of their
obligation to provide such services in the most integrated setting appropriate to the needs of
persons with disabilities.
39. For example, on September 16, 2011, the Centers for Medicare and Medicaid
Services (“CMS”), which oversees Medicaid, issued an Informational Bulletin entitled “Updates
to the § 1915(c) Waiver Instructions and Technical Guide regarding employment and
employment-related services,” which states that Medicaid community services funding:
is not available for the provision of vocational services delivered in facility based or sheltered work settings, where individuals are supervised for the primary purpose of producing goods or performing services. . . . Prevocational services should be designed to create a path to integrated community based employment for which an individual is compensated at or above the minimum wage, but not less than the customary wage and level of benefits paid by the employer for the same or similar work performed by individuals without disabilities. . . . Consistent with the Olmstead decision and with person centered planning principles, an individual’s plan of care regarding employment services should be constructed in a manner that reflects individual choice and goals relating to employment and ensures provision of services in the most integrated setting appropriate.
U.S. Department of Health & Human Services, Centers for Medicare & Medicaid Services,
Informational Bulletin, available at https://www.cms.gov/CMCSBulletins/downloads/CIB-9-16-
11.pdf.
40. Additionally, since January 22, 2001, the Rehabilitation Services Administration,
which oversees federally-funded vocational rehabilitation services, has defined “employment
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outcome” to exclude work in sheltered workshops and other segregated settings. Instead,
vocational rehabilitation services must result in:
competitive employment . . . in the integrated labor market, supported employment, or any other type of employment in an integrated setting, including self-employment, telecommuting, or business ownership, that is consistent with an individual’s strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.
34 C.F.R. § 361.5(b)(16); see also 29 U.S.C. §§ 720(a)(1), (a)(3)(B) (Title I of the Rehabilitation
Act) (“Individuals with disabilities must be provided the opportunities to obtain gainful
employment in integrated settings.”); U.S. Department of Education, Office of Special Education
and Rehabilitative Services, Rehabilitation Services Administration, Technical Assistance
Circular, 06-01 (Nov. 21, 2005), available at http://www2.ed.gov/policy/speced/guid/rsa/tac-06-
01.doc.
41. Pursuant to the Least Restrictive Environment (“LRE”) provisions of Part B of the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1412(a)(5), both State
Education Agencies (“SEAs”) and Local Education Agencies (“LEAs”) have obligations under
the law and are eligible for federal assistance:
if the State submits a plan that provides assurances to the Secretary [of Education] that the State has in effect policies and procedures to ensure that the State meets each of the following conditions: [inter alia] To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
42. On June 22, 2012, the United States Department of Education, Office of Special
Education and Rehabilitative Services (OSERS), issued guidance in a Policy Letter in which it
stated that the Least Restrictive Environment requirements of Part B of the IDEA, see 34 CFR §§
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300.114 - .118, apply to transition planning, and specifically to work placements for youth. The letter stated that, while the IDEA would not prohibit placement in a segregated employment setting, the LRE provisions of IDEA “would apply equally to the employment portion of the student’s program and placement.” Department of Education, OSERS, Letter to Spitzer-Resnick, Swedeen, and Pugh, available at http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/062212workplacelre2q2012.pdf. The letter explained that before a student could be placed in a segregated work setting, as part of their transition services, the Individualized Education Program (“IEP”) Team must consider whether “supplementary aids and services” could be provided that would enable an individual to work in an integrated work setting. Id.
FACTUAL ALLEGATIONS A. Oregon’s System for Providing Employment, Rehabilitation, and Vocational Services to
Persons with I/DD 43. The State, through its Department of Human Services (“DHS”), plans, funds, and oversees all developmental disability services and vocational rehabilitation services for persons with I/DD in Oregon. It determines the amount and allocation of funding for these services, including the range of employment services, the licensing of employment providers, and the level of funding for sheltered workshops versus supported employment programs. DHS performs these duties via two divisions: the Office of Developmental Disabilities (“ODDS”) and the Office of Vocational Rehabilitation (“OVRS”). DHS is responsible for management of the State’s Medicaid program, which includes coverage of developmental disability services and other services to Medicaid-eligible individuals. 44. In addition, the State, through its Department of Education (“ODE”), ODDS, and OVRS, provides transition services for students with I/DD in secondary schools to prepare Page 14 – UNITED STATES’ COMPLAINT IN INTERVENTION
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students with I/DD to leave school and enter the workforce or postsecondary education. Transition services are “designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the student to facilitate the student’s movement from school to post school activities, including postsecondary education, vocational education, integrated employment (including supported employment) . . . or community participation[.]” Or. Admin. R. 581-015-2000(39).
45. The State plans, administers, and manages the long-term service system for persons with I/DD, including supported employment services and sheltered workshops. Specifically, ODDS is responsible for developing, implementing, and overseeing the ongoing services and supports for persons with I/DD. ODDS also determines reimbursement rates for employment services and collects data with respect to the statewide employment service system.
46. ODDS oversees the development and implementation of Individual Support Plans (“ISPs”) for individuals with I/DD, which are used to assess individuals’ needs for employment services. See, e.g., Or. Admin. R. 411-340-0020(47) & 411-341-1330 to 411-341-1340.
47. The State administers two home and community-based service Medicaid waiver programs, funded under Section 1915(c) of the Social Security Act. See 42 U.S.C. § 1396n(c)(1). A waiver allows a state to provide a variety of services, like employment services, with Medicaid funds, while being able to waive certain Medicaid statutory requirements. Id. §1396n(b). Oregon's Comprehensive Waiver and its Support Services Waiver both permit funding for employment services, including supported employment services.
48. The State has adopted an Employment First Policy, which states that “integrated employment is more valued than non-employment, segregated employment, facility-based employment, or day habilitation in terms of employment outcomes for individuals with
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developmental disabilities,” and that through a person-centered planning process, people with I/DD can work in integrated employment. Under this policy, employment in an integrated setting should be the first and priority service option when planning employment for persons with I/DD. See Office of Developmental Disability Services, State Policy On: Employment for Working Age Individuals (2008), available at: http://www.dhs.state.or.us/dd/supp_emp/docs/policy.pdf.
49. Nevertheless, the State has failed to implement effectively its Employment First Policy and to ensure the prioritization of integrated employment in employment planning for persons with I/DD. The State has also failed to provide sufficient supported employment services for individuals with I/DD across Oregon.
50. The State, through OVRS, is responsible for completing vocational assessments and determining the employment needs and potential of individuals with I/DD. Pursuant to the Rehabilitation Act, OVRS serves as the entry point to the State’s employment service system. A vocational assessment determines eligibility for services and is used by vocational rehabilitation counselors to formulate an Individual Plan for Employment (“IPE”) with identified goals for an individual’s vocational and employment services. Or. Admin. R. 582-001-0010(53). In addition to providing a vocational assessment, OVRS services include identifying jobs, contracting with employment agencies, and providing job training, job coaching, and employment services and support for up to eighteen months.
51. For many individuals with I/DD, OVRS has failed to serve as the point of entry into the employment service system, and specifically into integrated employment, because it administers a system of vocational assessments that is largely inappropriate for individuals with I/DD and is based on job readiness criteria—such as an individual’s ability verbally to express
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his or her motivation to work—which has the effect of screening out many individuals with I/DD from eligibility for supported employment services.
52. OVRS frequently plans, funds, and/ or administers vocational assessments in segregated sheltered workshops, which often results in individuals’ permanent placement at the workshop. Conversely, OVRS assessments are often not conducted in integrated employment settings, where OVRS could evaluate a person’s ability to work in an integrated setting as well as determine the services such a person would need to work in an integrated setting.
53. The State has failed to establish the presence and availability of vocational rehabilitation counselors or other supports in Oregon’s secondary school system necessary to assist youth in transition with the formulation of career-related goals that include integrated employment.
54. As a direct result of the actions and inactions of the State, the current employment service, education, and Medicaid systems are excessively and unnecessarily reliant on segregated sheltered workshops.
B. Oregon Unnecessarily Serves Individuals with I/DD in Segregated Settings 55. Oregon has an employment service system through which it delivers services,
programs, and activities to persons with I/DD. The State plans, administers, funds, licenses, manages, and oversees the employment services system by, among other things, determining what employment services to provide, what rates are to be paid for services, who will provide them, in what settings to provide them, and how to allocate funds among various services and settings.
56. Oregon’s employment services system for people with I/DD includes sheltered workshops, group employment, and individual supported employment.
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57. A sheltered workshop is a facility-based employment setting that employs primarily people with disabilities in settings where such individuals have limited contact with non-disabled people, other than agency staff, and where individuals are often paid sub-minimum wages.
58. Group or “enclave” employment typically consists of up to eight individuals with I/DD who work as a group in the community and are supervised by staff from a service provider. Individuals in group employment may work in “crews” such as cleaning or janitorial crews for a local business or office. While such individuals’ work is physically located in the community, the individuals generally lack non-disabled co-workers, work only with other members of the group, are typically not employees of the businesses or entities where they work, and often earn below minimum wage.
59. Individual supported employment, by contrast, consists of individualized services and supports that allow persons with I/DD to work in jobs in the community, to work alongside and interact with non-disabled co-workers, to earn competitive wages, and to receive ongoing supports to maintain their jobs. Supported employment services include job development, job coaching, job shadowing, and benefits counseling.
60. In Oregon, approximately 2,600 persons with I/DD receive employment services in sheltered workshops. After placement, individuals with I/DD tend to remain in sheltered workshops for an average of between eleven and twelve years, according to data from ODDS, and some remain for as long as 30 years. Approximately 1,160 persons with I/DD receive employment services in group employment. Many of these persons are capable of working in individual supported employment and would be interested in doing so if offered a meaningful
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opportunity. Only a small number of people work in individual supported employment in jobs that pay competitive wages.
61. Oregon provides some integrated and appropriate alternatives to sheltered workshops, though not in sufficient numbers to serve all those who qualify for and want such services. As a result, persons with I/DD are unnecessarily forced to obtain employment services in segregated sheltered workshops and group employment and are placed at risk of segregation in sheltered workshops, even though they could be appropriately served in integrated employment settings.
62. The vast majority of individuals in sheltered workshops are paid far below the minimum wage. According to ODDS, the average hourly wage for sheltered workshop participants is $3.72. Over 52% of participants earn less than $3.00 per hour, and some earn only a few cents per hour. The low wages paid to individuals with I/DD by sheltered workshops perpetuate the stereotype that individuals with I/DD are not capable of performing at the same level as their non-disabled peers.
63. As of March 2012, according to State data, of the individuals with I/DD receiving employment services from Oregon’s employment service system, at least 61% received at least some of those services in segregated sheltered workshops, while only 16% received any services in individual supported employment.
64. Further, of the total number of hours that individuals with I/DD expended in various employment settings, 57% were in segregated sheltered workshops, while only 10% were spent receiving employment services in integrated employment settings.
65. According to statewide employment outcomes for adults covered under the Comprehensive and Support Services Waiver, the number of people in sheltered workshops in
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Oregon has been rising from 2,546 in September 2011 to 2,591 in March 2012 and 2,619 in September 2012. See Oregon Department of Human Services, Statewide Oregon Employment Outcomes, available at: https://spdweb.hr.state.or.us/EOS/ORAll.aspx.
66. The State has long been aware of the lack of supported employment services and the unnecessary and prolonged segregation of individuals in sheltered workshops in its employment service system. A 2005 report by the Oregon Council on Developmental Disabilities (“DD Council”) and ODDS noted a significant decline in the number of individuals with access to supported employment, as well as the loss of the State’s focus and training efforts on supported employment. The report noted a “renewed interest in, and demand for, supported employment services,” and found that “[t]o respond to this demand, the state must reestablish expectations and capacity for supported employment for persons with developmental disabilities.” Oregon Council on Developmental Disabilities, Supported Employment for Oregonians with Developmental Disabilities: Recommendations for Action at 2 (Nov. 2005), available at http://www.oregon.gov/dhs/vr/cep/se_dd_stevely.doc.
67. Similarly, a 2010 report commissioned by the State found that in 2008, “71% of Oregonians with disabilities were in facility-based programs, supporting the claim that a majority of working age adults with significant disabilities are supported today in programs that offer segregation and long-term dependency regardless of cost.” See Washington Initiative for Supported Employment, Community Leadership for Employment First in Oregon: A Call to Action 6 (2010), available at http://www.dhs.state.or.us/dd/supp_emp/docs/wise.pdf.
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C. Individuals with I/DD in Sheltered Workshops or at Risk of Placement in Sheltered Workshops Are Qualified to Receive Services in More Integrated Settings and Would Not Object to Receiving Integrated Services 68. Individuals who are in or are at risk of placement in sheltered workshops are
similar to individuals with I/DD who receive supported employment services in integrated employment settings. They have similar diagnoses and support needs as individuals who work successfully in integrated employment settings, with the types of services and supports that currently exist in Oregon’s employment service system.
69. Numerous individuals have expressed their desire to receive the supported employment services that would allow them to work in integrated employment settings. Upon information and belief, thousands of individuals with I/DD in Oregon sheltered workshops would not oppose receiving supported employment services if such services were available and if these individuals had fully-informed choices and realistic opportunities to receive such services.
D. The State Places Individuals with I/DD at Risk of Unnecessary Segregation in Sheltered Workshops 70. The State has failed to ensure that students with I/DD are provided with
meaningful choices and preparation for work in integrated settings as well as ensuring that such students are provided information and access to appropriate services and supports that would allow them to choose and work in integrated settings. As a direct consequence of these acts and omissions by the State, students with I/DD are at risk of unnecessary placement in segregated sheltered workshops.
71. Each year, hundreds of youth with I/DD are referred for admission to sheltered workshops, including students graduating or otherwise exiting Oregon secondary schools. Many
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of these youth are able to work in integrated employment settings and are not opposed to doing so.
72. In Oregon, many youth with I/DD are not offered timely and adequate services to allow them to make informed choices about transitioning to work in integrated settings after graduating from or exiting secondary school. The State also frequently fails to ensure that transition-age youth with I/DD are informed of alternatives to working in segregated sheltered workshops.
73. Some Oregon students are placed in sheltered workshops for the purpose of employment planning. This often results in these individuals’ de facto permanent placement in a sheltered workshop.
74. The State’s failure to prepare youth with I/DD to make an informed choice about postsecondary work in integrated settings is exemplified by the fact that some schools directly operate sheltered workshops on school premises for students with I/DD or have students perform activities that are similar to those performed in sheltered workshops, instead of exposing them to, or preparing them for, typical jobs in the community. The State’s failure to prepare students with I/DD for integrated employment results in these students’ acculturation and training in segregated sheltered workshops, and often leads to permanent placement in segregated sheltered workshops.
75. Further, many adults and youth with I/DD are placed at risk of sheltered workshop placement as a result of the State’s system of performing OVRS eligibility assessments, which tends to screen out persons with I/DD due to exclusionary standards and criteria.
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E. The State Can Provide Employment Services in Integrated Settings By Reasonably Modifying Its Employment Service System 76. The State can, through reasonable modifications to its employment services
system, provide services in integrated employment settings to individuals with I/DD who are currently in sheltered workshops and to individuals with I/DD at risk of entry to sheltered workshops.
77. The types of services needed to support individuals with I/DD in integrated employment settings, including services to prepare transition-age youth for integrated employment, already exist in Oregon’s employment service system, including but not limited to discovery, vocational assessment, job coaching, job training, job oversight and supervision, and transportation. However, none of these services is currently provided in sufficient supply to meet the needs of individuals who are unnecessarily segregated in sheltered workshops. These supported employment services do exist for some individuals in Oregon’s employment service system, and Oregon’s employment service system has allowed those particular individuals to work in integrated employment settings. However, for thousands of other individuals with similar diagnoses and needs, Oregon’s employment service system has left them with no choice but to enter sheltered workshops to receive employment services.
78. Individual supported employment is a cost-effective alternative to sheltered workshops. The Call to Action Report commissioned by the State found that “the cumulative costs generated by sheltered employees may be as much as three times higher than the cumulative costs generated by supported employees—$19,388 versus $6,618[.]” See A Call to Action Report, supra ¶ 67, at 10.
79. Furthermore, it is often less costly to transition persons with I/DD directly from secondary schools into supported employment than it is to transition persons from sheltered Page 23 – UNITED STATES’ COMPLAINT IN INTERVENTION
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workshops to supported employment because youth who receive transition services in integrated employment settings typically generate fewer costs. See Robert Evert Cimera, The Economics of Supported Employment: What New Data Tell Us, 37 J. Vocational Rehab. 109, 113 (2012) (citing two studies showing that students with disabilities who were placed in community-based transition programs while in high school generated 32.4% fewer costs and kept their jobs 3.4 months longer than supported employees with only in-school transition services).
80. The actions needed to remedy Oregon’s employment service system could be achieved through the redirection, reallocation, expansion, and coordination of existing resources.
COUNT I VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT
42 U.S.C. §§ 12131 et seq. 81. Paragraphs 1 through 80 of this Complaint-in-Intervention are re-alleged and incorporated by reference. 82. Defendant State of Oregon is a public entity subject to Title II of the ADA, 42 U.S.C. § 12131(1). 83. Plaintiffs and the members of the Plaintiff class, as well as individuals with I/DD who are at risk of placement in sheltered workshops, are persons with a disability covered by Title II of the ADA, and qualify for receiving or participating in vocational, rehabilitation, and employment services, programs, or activities provided by Defendant. 42 U.S.C. §§ 12102, 12131(2). 84. Defendant has violated and continues to violate the ADA by (a) administering the State’s employment, rehabilitation, vocational, and education service system in a manner that unnecessarily causes qualified individuals with disabilities to be denied the benefits of the State’s
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vocational and employment services, programs, or activities in the most integrated setting appropriate to their needs; and (b) failing reasonably to modify the State’s employment service system to avoid discrimination against, and unnecessary segregation of, Plaintiffs. 42 U.S.C. § 12132.
85. The State’s actions constitute discrimination in violation of Title II of the ADA, 42 U.S.C. § 12132, and its implementing regulations at 28 C.F.R. pt. 35.
86. Providing services to persons with I/DD who are in or are at risk of entering segregated employment settings can be reasonably accommodated.
COUNT II VIOLATION OF SECTION 504 OF THE REHABILITATION ACT
29 U.S.C. § 794 87. Paragraphs 1 through 80 of this Complaint-in-Intervention are hereby re-alleged and incorporated by reference. 88. Defendant receives or administers entities that receive federal financial assistance and is accordingly subject to the Rehabilitation Act. 29 U.S.C. § 794. 89. Plaintiffs and the members of the Plaintiff class, as well as individuals with I/DD who are at risk of placement in sheltered workshops, are persons with a disability covered by the Rehabilitation Act and qualify for receiving or participating in vocational, rehabilitation, and employment services, programs, or activities provided by Defendant. 90. Defendant has violated and continues to violate the Rehabilitation Act by discriminating against qualified individuals with a disability within the meaning of the Rehabilitation Act by administering employment services, programs, and activities receiving federal financial assistance in a manner that denies these individuals the benefits of such
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Case 3:12-cv-00138-ST Document 106 Filed 05/24/13 Page 26 of 28
programs or activities in the most integrated setting appropriate to their needs and by failing to reasonably modify the State’s employment service system to avoid discrimination against, and unnecessary segregation of, Plaintiffs. 29 U.S.C. § 794(a).
91. Defendant’s actions constitute discrimination in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and its implementing regulations at 28 C.F.R. § 41.51(d); see also 45 C.F.R. § 84.4.
92. Providing services to the persons with I/DD who are in or are at risk of entering segregated employment settings can be reasonably accommodated.
PRAYER FOR RELIEF WHEREFORE, the United States of America prays that the Court: A. Grant judgment in favor of the United States on its Complaint-in-Intervention and declare that Defendant has violated Title II of the ADA, 42 U.S.C. §§ 12131 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; B. Enjoin Defendant to: 1. provide appropriate, integrated community employment services, programs, or
activities for Plaintiffs and the members of the Plaintiff class who are unnecessarily placed in segregated employment settings, as well as individuals with I/DD who are at risk of unnecessary placement in segregated employment settings, consistent with their individual needs; and 2. cease discriminating against individuals with I/DD who are in or are at risk of placement in segregated employment settings by providing employment services, programs, or activities in the most integrated setting appropriate to their needs; and
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3. provide individuals with I/DD who are in or are at risk of placement in segregated employment settings with services, programs, or activities that are designed to allow individuals with I/DD to secure, maintain, and succeed in integrated employment settings.
C. Issue a declaratory judgment declaring that Defendant has violated Title II of the ADA and Section 504 of the Rehabilitation Act by failing to make reasonable modifications to services, programs, or activities for persons with I/DD to enable Plaintiffs and the members of the Plaintiff class, as well as individuals with I/DD who are at risk of placement in segregated employment settings, to obtain the services, programs, and activities they require to receive employment services in the most integrated setting appropriate to their needs; and
D. Order such other appropriate relief as the interests of justice may require.
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Case 3:12-cv-00138-ST Document 106 Filed 05/24/13 Page 28 of 28

Dated: May 24, 2013
S. AMANDA MARSHALL United States Attorney District of Oregon
s/ Adrian Brown ADRIAN BROWN Assistant United States Attorney 1000 SW Third Avenue Suite 600 Portland, OR 97204 Tel: (503) 727-1000

RESPECTFULLY SUBMITTED,
s/ Thomas E. Perez THOMAS E. PEREZ Assistant Attorney General
EVE L. HILL Senior Counselor to the Assistant Attorney General
ALISON BARKOFF Special Counsel for Olmstead Enforcement Civil Rights Division
s/ Max Lapertosa REBECCA B. BOND Chief SHEILA M. FORAN Special Legal Counsel ANNE RAISH Deputy Chief MAX LAPERTOSA REGINA KLINE H. JUSTIN PARK Trial Attorneys Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 Tel: (202) 305-1077 Fax: (202) 514-1116 E-mail: Max.Lapertosa@usdoj.gov
Attorneys for Plaintiff-Intervenor United States of America

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 </s> UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

PAULA LANE, et al., on behalf of themselves and all others similarly situated; and
UNITED CEREBRAL PALSY OF OREGON AND SOUTHWEST WASHINGTON, INC.,
Plaintiffs,
v.
JOHN KITZHABER, Governor of the State of Oregon, et al,
Defendants.

Case No. 3:12-cv-00138-ST OPINION AND ORDER

UNITED STATES OF AMERICA, Plaintiff-Intervenor,
v. THE STATE OF OREGON,
Intervenor-Defendant.

STEWART, Magistrate Judge: Seven individuals with intellectual and developmental disabilities (I/DD) who are being
served in sheltered workshops in Oregon have filed a Motion to Intervene (docket #200) as defendants in this case as of right under FRCP 24(a) or permissively under FRCP 24(b) for the
1 –OPINION AND ORDER

limited purposes of decertifying the class, actively participating in any settlement proceedings, or such further relief as they may seek. Plaintiffs and the United States oppose the proposed Intervenors while defendants support them. For the following reasons, the motion is denied.
BACKGROUND Plaintiffs are eight individuals in Oregon with I/DD who filed their initial Complaint on January 25, 2012 (docket #1), followed by their First Amended Complaint on May 29, 2012 (docket #42). On behalf of over 2,300 similarly situated individuals, they allege that the Governor of the State of Oregon and other state officials fail to “provide supported employment services to the named plaintiffs and members of the plaintiff class in order to allow them the opportunity to work in integrated employment settings and to avoid unnecessary segregation in sheltered workshops.” First Amended Complaint, ¶ 37. They seek both injunctive and declaratory relief to remedy defendants’ ongoing violations of Title II of the ADA, 42 USC §§ 12101 & 12131, et seq, and Section 504 of the Rehabilitation Act of 1973, 29 USC § 794. On August 6, 2012, this court certified the class defined as “all individuals in Oregon with intellectual or developmental disabilities who are in, or who have been referred to, sheltered workshops” and “who are qualified for supported employment services.” Lane v. Kitzhaber, 283 FRD 587, 602 (D Or 2012). The proposed Intervenors are members of the certified class, but believe that persons with I/DD should be allowed to work in an environment that best meets their abilities and choice, either in integrated or sheltered employment. On May 22, 2013, the United States was allowed to permissively intervene as plaintiffs to also seek injunctive and declaratory relief under the ADA and Rehabilitation Act in order to “ensure the prioritization of integrated employment” and “to provide sufficient supported employment services for individuals with I/DD.” Complaint in Intervention (docket #106), ¶ 49.
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In April 2013, Governor Kitzhaber issued Executive Order 13-04 (“Executive Order”) which mandates the expansion of supported employment services. The Executive Order directs state agencies to improve the delivery of employment services aimed at integrated employment, “including a significant reduction over time of state support of sheltered work and an increased investment in employment services.” Dunbar Decl. (docket #208), Ex. 1, pp. 1-2. For example, the Executive Order directs state agencies to: (1) cease funding of vocational assessments in sheltered workshop settings as of July 1, 2014; (2) cease funding of new placements in sheltered workshop settings as of July 1, 2015; (3) provide employment services designed to help at least 2,000 I/DD individuals choose, get, learn, and keep jobs in integrated settings on a nine-year schedule; (4) pass rule changes that will prohibit local education agencies from contracting for employment services in sheltered workshops; and (5) improve transition services in the schools through several different measures, such as the hiring of specialists to help ensure that students will be prepared to transition to integrated work experiences. Id at 5-6, 11.
On January 17, 2014, defendants filed a status report on the progress of implementing the Executive Order. On April 21, 2014, this motion was filed.
DISCUSSION I. Intervention as of Right
An applicant must satisfy four criteria to intervene as of right under FRCP 24(a)(2): (1) the applicant must timely move to intervene; (2) the applicant must have a significantly protectable interest relating to the property or transaction that is the subject of the action; (3) the applicant must be situated such that the disposition of the action may impair or impede the party’s ability to protect that interest; and (4) the applicant’s interest must not be adequately represented by existing parties.
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Perry v. Proposition 8 Official Proponents, 587 F3d 947, 950 (9th Cir 2009) (citations omitted). The applicant bears the burden of proving that all four requirements for intervention are
met. United States v. Alisal Water Corp., 370 F3d 915, 919 (9th Cir 2004) (citation omitted). “In determining whether intervention is appropriate, courts are guided primarily by practical and equitable considerations, and the requirements for intervention are broadly interpreted in favor of intervention.” Id (citation omitted). However, a “[f]ailure to satisfy any one of the requirements is fatal to the application, and [the court] need not reach the remaining elements if one of the elements is not satisfied.” Perry, 587 F3d at 950 (citation omitted).
Even assuming that the proposed Intervenors’ motion is timely, which plaintiffs and the United States dispute, this court finds that none of the other three elements for intervention as of right are satisfied.
A. No Significant Protectable Interest “To demonstrate a significant protectable interest, an applicant must establish that the interest is protectable under some law and that there is a relationship between the legally protected interest and the claims at issue.” Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F3d 893, 897 (9th Cir 2011), citing Northwest Forest Res. Council v. Glickman, 82 F3d 825, 836 (9th Cir 1996). To justify intervention as of right under the first prong of this two-part test, the legally protectable interest must be “direct” and “non-contingent.” Dilks v. Aloha Airlines, 642 F2d 1155, 1156-57 (9th Cir 1981) (per curiam), cited with approval in Cal. ex rel. Lockyer v. United States, 450 F3d 436, 441 (9th Cir 2006). The second “relationship” prong of the test is met “only if the resolution of the plaintiff’s claims actually will affect the applicant.” Donnelly v. Glickman, 159 F3d 405, 410 (9th Cir 1998) (citation omitted).
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The proposed Intervenors assert that they have a significant protectable interest in: (1) the prioritization, distribution, and management of government funds of which they are the ultimate beneficiaries; and (2) their ability to choose sheltered employment. Neither of those interests satisfy either prong of this test.
The first alleged interest concerns how Oregon allocates its two Medicaid waiver programs which service over 11,000 persons with I/DD in Oregon. This interest in the State’s allocation of its resources is shared by all of Oregon citizens and, thus, is too general to be protected under the law. Courts have routinely held that citizens have no legally protected interest in a state’s decision to appropriate, allocate, or prioritize its resources. Benjamin ex rel. Yock v. Dep’t of Pub. Welfare of Pa., 432 Fed App’x 94 (3rd Cir 2011) (“Benjamin I”) (rejecting claim that potential reallocation of institutional resources to expand community services in an integrated setting gives rise to a protectable interest under FRCP 24(a)). As concluded by the Third Circuit:
In virtually every suit successfully prosecuted against a governmental entity, the judgment will occasion some reallocation of limited public resources. Every competitor for those limited resources has an interest that potentially may be adversely affected by that reallocation. We have found no case, however, suggesting that the interest of such a competitor justifies intervention in litigation addressing issues in which he or she has no other interest. If such a competitor believes that he or she has an enforceable right for the services of the public entity, he or she may bring his or her own suit. Id at 99. Similarly here, the alleged interest of the proposed Intervenors in the general allocation of limited public resources is simply too tenuous to rise to the level of a significant protectable right.
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The proposed Intervenors also lack a significant legally protectable interest under the ADA or other federal law in continuing to receive sheltered workshop services. The Executive Order may well limit access to sheltered workshops. However, neither the ADA nor the Rehabilitation Act creates a right to remain in the program or facility of one’s choosing. Under Olmstead v. L.C. ex rel. Zimring, 527 US 581 (1999), “it is a violation of the [ADA and Rehabilitation Act] and their implementing regulations to force developmentally disabled patients to reside in institutions when they are able and willing to live” in more integrated community settings. Benjamin I, 432 Fed App’x at 95. However, numerous federal courts have rejected the “obverse Olmstead” argument that a premature discharge into the community violates the ADA or Rehabilitation Act. “There is no ADA provision that providing community placement is a discrimination. It may be a bad medical decision, or poor policy, but it is not discrimination based on disability.” Richard S. v. Dep’t of Developmental Servs. of Cal., No. SA CV 97- 219-GLT(ANx), 2000 WL 35944246, at *3 (CD Cal Mar. 27, 2000). See also Sciarrillo ex rel. St. Amand v. Christie, No. 13- 03478 (SRC), 2013 WL 6586569, at *3-4 (D NJ Dec. 13, 2013) (no ADA or Rehabilitation Act claim arising from involuntary transfer due to closure of state-run residential care facilities for the developmentally disabled); Ill. League of Advocates for Developmentally Disabled v. Quinn, No. 13 C 1300, 2013 WL 3168758, at *5 (ND Ill June 20, 2013); Richard C. ex rel. Kathy B. v. Houstoun, 196 FRD 288, 292 (WD Pa 1999).
The proposed Intervenors have no significant legally protectable interest in the State’s decision to allocate funds generally or in the State’s decision whether to continue to operate the same number of sheltered workshop placements. Therefore, the first requirement for intervention as of right is not satisfied. ///
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B. No Impairment of Interest If allowed to proceed as a class action, the proposed Intervenors assert that plaintiffs’ claims will impair their right to sheltered employment by eliminating their choice to remain in sheltered employment and forcing them into integrated employment. Assuming that the proposed Intervenors have a legally protectable interest in remaining in sheltered workshops, that interest is not impaired by this litigation. Contrary to the characterization by the proposed Intervenors, neither plaintiffs nor the United States seek to limit choice, eliminate service options, or compel persons with I/DD to participate in integrated employment. Instead, plaintiffs and the United States have repeatedly affirmed that they are not asking the court to close sheltered workshop or to force anyone to leave a segregated setting through this litigation. As alleged in their Prayer, plaintiffs seek to require the defendants to modify their practices to make integrated employment services available in order to “allow persons with disabilities the opportunity to work in integrated settings” and “provide supported employment services to all qualified class members.” This court recognized and relied upon this limitation in denying defendant’s Motion to Dismiss. Citing multiple allegations by plaintiffs, this court concluded that this case focuses on “the provision of supported employment services to those individuals who qualify for and are interested in them.” Lane v. Kitzhaber, 841 F Supp2d 1199, 1207-08 (D Or 2012). It further noted that “participation for persons with disabilities in sheltered workshops ‘must be a choice, not a requirement.’” Id at 1204 (citation omitted). Similarly, the United States explicitly addresses the facts and claims of “individuals who qualify for and do not oppose [supported employment] services.” Complaint in Intervention, ¶ 6. Its claims also focus on “qualified individuals with disabilities” and, thus, are limited to persons
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who meet the eligibility criteria for Oregon’s employment services system and do not oppose receiving services in an integrated setting. Id, ¶¶ 83-84, 89-90. Similarly, the United States seeks relief only as to individuals “who are unnecessarily placed in segregated settings, as well as individuals with I/DD who are at risk of unnecessary placement in segregated settings, consistent with their individual needs.” Id, Prayer, ¶ B(1).
One key practice challenged by plaintiffs is the process for assessing individuals’ experience, abilities, needs, and preferences to determine who will receive supported employment services. Through this process, plaintiffs seek to give individuals in sheltered workshops information about and an opportunity to choose supported employment services. However, they do not seek to compel anyone to leave a sheltered workshop against his or her will after being given an informed choice, to close sheltered workshops, or to prevent admission to sheltered workshop.
In certifying the class, this court explicitly incorporated into the class definition the requirement that class members must be qualified for supported employment services, meaning that they must be eligible for and desire these services. Moreover, based upon the express representations of plaintiffs’ counsel, this court found that “plaintiffs do not seek to close all sheltered workshops or force people to leave the workshop if that is not their preference.” Lane, 283 FRD at 600. In their briefs and at the hearing opposing intervention, plaintiffs and the United States confirmed that they seek relief solely for “qualified persons with disabilities” who, after being provided meaningful information and the opportunity to learn about integrated employment, do not oppose leaving their segregated workshop.
Moreover, there is no evidence that modifying Oregon’s employment services system by expanding integrated employment opportunities would deny sheltered workshop services to class
8 –OPINION AND ORDER

members who wish to remain in these settings. Rather, according to defendants at the June 21, 2012 hearing, funding for employment services is attached to the individual and moves with the individual. Thus, each individual in a sheltered workshop who chooses to remain will continue to have his or her waiver funding allocated for sheltered workshop services, even if other individuals elect to allocate their funding for integrated employment services. Thus, the proposed Intervenors’ interest in segregated employment will not be impaired by plaintiffs’ claim for integrated employment options. As a result, they have no legally protectable interest in sheltered workshops that will be impaired by funding for integrated employment services.
Despite plaintiffs’ allegations and public statements, the proposed Intervenors suspect that their undisclosed goal is to close all sheltered workshops. Conceding that no notice to class members is required for this FRCP 23(b)(2) class action, they complain about receiving incomplete and inaccurate information concerning this litigation and a cloak of secrecy surrounding the parties’ prior settlement negotiations. Plaintiffs and the United States respond that these complaints are unfounded, pointing to public forums they have held about this case, blaming misinformation on sheltered workshop providers and their trade association, chastising defendants for not seeking input from the proposed Intervenors when formulating the Executive Order, and relying on the attorney-client privilege surrounding the settlement negotiations. Regardless of what has been said or done by the parties outside of court, this case is governed by the parties’ allegations and this court’s understanding of the claims and defenses at issue.
In similar situations, other courts have denied intervention in the liability phase of Olmstead cases to individuals alleging that the legal claims and relief sought would deny them the choice to remain in an institution. Benjamin I, 432 Fed App’x at 99 (holding that in the absence of evidence that individuals will be forcibly removed from an institution, potential
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reallocation of resources is too speculative to give rise to a right to intervene); Ligas ex rel. Roster v. Maram, 478 F3d 771, 774 (7th Cir 2007) (complaint, on its face and as interpreted by district court, did not foreclose choice to remain in institution). Given that the parties have been unable to settle this case and are litigating it aggressively, there is no need for the proposed Intervenors to participate as parties in the liability phase. Because they intend to revisit the issue of class certification, intervention will further complicate an already complicated process. Should they wish an opportunity to be heard at any stage, they may seek to submit amicus briefs.
Although the proposed Intervenors lack an interest in the liability phase of this action, they may be able to intervene in the remedial phase. Forest Conservation Council v. United States Forest Serv., 66 F3d 1489, 1499 & n11 (9th Cir 1995) (The applicants “are entitled to intervene as of right under Fed.R.Civ.P. 24(a)(2) in the portion of the proceedings addressing the injunctive relief sought by plaintiffs . . . [even though they] cannot claim any interest that relates to the issue of the [defendant’s] liability.”). In fact, the cases cited by the proposed Intervenors all address situations where courts allowed intervention by non-class members to challenge proposed settlement agreements that adversely affected them. Although denying intervention at the liability phase, the Third Circuit allowed intervention post-settlement specifically because the proposed settlement – unlike the complaint and class certification – actually threatened a significant, legally protectable interest. Benjamin ex rel. Yock v. Dep’t of Pub. Welfare of Pa., 701 F3d 938, 942 (3rd Cir 2012). Even then, other courts have denied intervention postsettlement and instead allowed interested persons to comment on the proposed settlement at the fairness hearing. See Rolland v. Patrick, No. 98-30208-KPN, 2008 WL 4104488 (D Mass Aug. 19, 2008) (denying intervention and decertification to parents and guardians of certain class members in nursing facilities who opposed settlement agreement, but carefully considering
10 –OPINION AND ORDER

objections to agreement); Brown ex rel. O’Neil v. Bush, 194 Fed App’x 879, 880-81 (11th Cir 2006) (denying intervention to non-class members as untimely, but allowing them to testify at the fairness hearing regarding closure of residential facility for mentally retarded individual).
Although the proposed Intervenors liken the Executive Order to a settlement agreement, they are not comparable. The Executive Order is an independent policy “implementing new guidelines and goals” of the Governor. It does not reflect the relief requested by plaintiffs or the United States, does not constitute a change in defendants’ legal position, and does not and cannot constitute enforceable relief requested of, or eventually ordered by, this court.
C. Adequate Representation To establish inadequacy of representation, the Ninth Circuit considers the following factors:
(1) whether the interest of a present party is such that it will undoubtedly make all of the proposed intervenors’ arguments; (2) whether the present party is capable and willing to make such arguments; and (3) whether a proposed intervenor would offer any necessary elements to the proceeding that other parties would neglect. Arakaki v. Cayetano, 324 F3d 1078, 1086 (9th Cir 2003) (citation omitted). “The ‘most important factor’ to determine whether a proposed intervenor is adequately represented by a present party to the action is ‘how the [intervenor’s] interest compares with the interests of existing parties.’” Id (citations omitted). The burden on the proposed intervenor is minimal since it merely needs to show that the representation of its interest by the existing parties may be inadequate. Id (citation omitted). However, “[w]here the party and the proposed intervenor share the same ‘ultimate objective,’ a presumption of adequacy of representation applies, and the intervenor can rebut that presumption only with a ‘compelling showing’ to the contrary.” Perry, 587 F3d at 951 (citation omitted). Moreover, a presumption of adequate
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representation exists “when the government is acting on behalf of a constituency that it represents,” as here. United States v. City of L.A., Cal., 288 F3d 391, 401 (9th Cir 2002).
The proposed Intervenors raise no distinct interests or claims not already advocated by the existing parties, including decertification of the class. Nonetheless, through the implementation and execution of the Executive Order, they argue that defendants appear to align their interest with plaintiffs and, thus, do not adequately represent the proposed Intervenors’ interest.
Unlike the “ultimate objective” of the proposed Intervenors to maintain the option of sheltered workshops, defendants support the Executive Order which seeks to “close the front door” to sheltered workshops by ending new admissions. However, as noted above, the Executive Order is a unilateral action by Oregon’s Governor and does not in any way bind plaintiffs, the United States, or the court in this case. The proposed Intervenors may not agree with defendants on every provision in the Executive Order, but they have articulated no reason why defendants, as a result of the Executive Order, would be likely to abandon defense of this lawsuit. Indeed, the defendants are using the Executive Order to support their affirmative defenses and defeat plaintiffs’ claims which is the same “ultimate objective” shared by the proposed Intervenors.
The proposed Intervenors offer no compelling reason as to why plaintiffs and the United States on one hand and the State of Oregon on the other hand will not adequately represent their interests in this litigation. Therefore, they have failed to rebut the presumption of adequate representation. /// ///
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II. Permissive Intervention For permissive intervention under FRCP 24(b), the applicant must demonstrate that:
(1) his claim or defense shares a common question of law or fact with those of the parties; (2) there is independent jurisdiction over the claim or defense; and (3) the application is timely. League of United Latin Am. Citizens v. Wilson, 131 F3d 1297, 1308 (9th Cir 1997). Even where all three prerequisites for permissive intervention are met, the court has considerable discretion in denying a motion for permissive intervention. In re Benny, 791 F2d 712, 721 (9th Cir 1986). Courts must consider whether intervention will unduly delay or prejudice the adjudication of the original parties’ rights and also may consider whether the intervenor’s interests are represented by other parties. Perry, 587 F3d at 955 (citation omitted); United States ex rel. Richards v. De Leon Guerrero, 4 F3d 749, 756 (9th Cir 1993) (denying permissive intervention where the government party to the case made the same arguments as the proposed intervenors and would adequately represent their interests).
Even assuming that the proposed Intervenors’ motion is timely, it fails to assert a claim or defense that shares a common question of law or fact with those of the parties. First, whether a case proceeds as a class action is plainly not sufficient, in and of itself, to justify intervention. It is only the underlying legal claim or defense, not the procedural mechanism of the class action, that may justify intervention. Second, the parties have made no claim or assertion that integrated employment is appropriate for all class members. Rather, the plaintiffs and the United States only seek integrated employment services for individuals who qualify for them. Third, the parties have asserted no claim or defense that integrated employment is desired by all class members. Those who oppose integrated employment will not be required, pressured, or forced to accept it. Fourth, as discussed above, there is no right to, or even a legitimate legal interest in,
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compelling the expenditure of public funds consistent with the beneficiaries’ needs and choices. Fifth, neither plaintiffs nor the United States are seeking to impose unwanted relief on the class. Because none of the proposed intervenors’ identified questions of law and fact arise from the parties’ claims or defenses, permissive intervention is inappropriate. See Sierra Club v. U.S. Envtl. Prot. Agency, Case No. 13-cv-2809-YGR, 2013 WL 5568253, at *5 (ND Cal., Oct. 9, 2013) (denying permissive intervention where proposed intervenors failed to demonstrate common questions of law or fact and finding that “opening the door to [proposed intervenor’s] additional contentions would only serve to confuse the matters at issue in the complaint and to delay the proceedings unnecessarily”).
Given the explicit focus of this lawsuit on expanded choice for employment services, the participation on both sides of two governmental entities, the complexity and stage of the litigation, and the stated goal of the proposed Intervenors to re-litigate class certification, permissive intervention is not warranted at this stage.
ORDER For these reasons, the Motion to Intervene (docket #200) is DENIED. DATED June 20, 2014.
s/ Janice M. Stewart Janice M. Stewart United States Magistrate Judge
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 </s> LANE, et al. v. BROWN, et al. PROPOSED SETTLEMENT AGREEMENT United States District Court Case No. 3:12-cv-00138-ST
Fact Sheet I. INTRODUCTION 1 The parties wish to settle Lane, et al., v. Brown, et al. (“the
Action”). Plaintiffs include the class certified by the Court, United Cerebral Palsy of Oregon and Southwest Washington (“UCP”), and plaintiff-intervenor the United States of America (“United States”). In this Agreement, unless otherwise specified, the class, UCP, and the United States are referred to as “plaintiffs.” Defendants are the State of Oregon, as well as state officials named in their official capacity, the Governor of the State of Oregon, currently Kate Brown, the director of the Oregon Department of Human Services (“DHS”), currently Erinn Kelley-Siel, director of the DHS Office of Developmental Disabilities Services (“ODDS”), currently Lilia Teninty, and the director of the DHS Office of Vocational Rehabilitation Services (“VR”), currently Trina Lee. Discovery in this Action has substantially completed and trial is scheduled for December 2015. 2 This Agreement is made to resolve all claims and allegations in the Action under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act of 1973 (“Rehabilitation Act”), and the Supreme Court’s decision in Olmstead v. L.C. Accordingly, through this Agreement, the Parties intend to promote and further the goal of community integration. 3 Defendants dispute plaintiffs’ allegations. This Agreement is not an admission of liability, and Oregon denies that it is in violation of the ADA, the Rehabilitation Act, or any other laws or regulations. 4 The parties agree that Oregon has made substantial progress in providing employment services to and improving employment outcomes for individuals with intellectual and

developmental disabilities (“I/DD”) since passage of Oregon Executive Orders 13-04 and 15-01, including reducing the census of individuals with I/DD working in sheltered workshops during Fiscal Year 2015 from 2713 to approximately 1926 individuals with intellectual and developmental disabilities. The requirements of this Agreement reflect and take into account this substantial progress. 5 The Parties represent and acknowledge that this Agreement is the result of extensive, thorough and good faith negotiations. The Parties further represent and acknowledge that the terms of this Agreement have been voluntarily accepted, after consultation with counsel, for the purpose of making a full and final compromise and settlement of any and all claims or allegations set forth in the Amended Complaint in the Action and the United States’ Complaint in Intervention. 6 The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331; 28 U.S.C. § 1345; and 42 U.S.C. §§ 12131-12132. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b). 7 This Agreement shall be interpreted in accordance with federal law and the laws of the State of Oregon. The venue for all legal actions concerning this Agreement shall be in the United States District Court for the District of Oregon, Portland Division (the “Court”). II. DEFINITIONS For the purposes of this Agreement only, the following terms have the following meanings: 1 A "Career Development Plan" ("CDP") is part of an Individual Support Plan (“ISP”) or Annual Plan regarding ODDS services. A "Career Development Plan" identifies the individual's employment goals and objectives, the services and supports needed to achieve those goals and objectives, the persons, agencies, and providers assigned to assist the

person to attain those goals, the obstacles to the individual

working in Competitive Integrated Employment in an

Integrated Employment Setting, and the services and

supports necessary to overcome those obstacles. Career

Development Plans shall be based on person-centered

planning principles.

2 "Competitive Integrated Employment," consistent with the

federal Workforce Innovation and Opportunity Act

("WIOA"), means work that is performed on a full-time or

part-time basis (including self-employment) for which an

individual:

a Is compensated at a rate that:

1

Meets or exceeds state or local minimum wage

requirements, whichever is higher; and

2

Is not less than the customary rate paid by the

employer for the same or similar work performed

by other employees who are not individuals with

disabilities, and who are similarly situated in

similar occupations by the same employer and

who have similar training, experience, and skills;

or

3

In the case of an individual who is self-employed,

yields an income that is comparable to the income

received by other individuals who are not

individuals with disabilities, and who are self-

employed in similar occupations or on similar

tasks and who have similar training experience,

and skills; and

b Is eligible for the level of benefits provided to other

employees; and

c Is at a location where the employee interacts with other

persons who are not individuals with disabilities (not

including supervisory personnel or individuals who are

providing services to such employee) to the same extent

that individuals who are not individuals with disabilities

and who are in comparable positions interact with other persons; and d As appropriate, presents opportunities for advancement that are similar to those for other employees who are not individuals with disabilities and who have similar positions. 3 Individuals with "I/DD" are persons who have an "Intellectual Disability," as defined in Oregon Administrative Rule ("OAR") chapter 411, division 320, or a "Developmental Disability," as defined in OAR chapter 411, division 320. 4 “Individual Supported Employment”, as defined in OAR Chapter 411, division 345, means an individual job in a competitive integrated employment setting in the general workforce that is compensated at or above the State minimum wage, including customized or self-employment. 5 An “Integrated Employment Setting”, as defined in OAR Chapter 411, division 345, is: a An employment setting that satisfies the requirements for Competitive Integrated Employment, as defined above; or b At a location where the employee interacts with other persons who are not individuals with disabilities (not including supervisory personnel or individuals who are providing services to such employee) to the same extent that individuals who are not individuals with disabilities and who are in comparable positions interact with other persons; and that, as appropriate, presents opportunities for advancement that are similar to those for other employees who are not individuals with disabilities and who have similar positions. 6 Employment in an Integrated Employment Setting cannot be facility-based work in a Sheltered Workshop, and cannot be non-work activities such as day support activities. Employment in an Integrated Employment Setting will compensate individuals with I/DD at or above the minimum

wage.

7 "Mock sheltered workshop activities" are prevocational training

activities (for example, folding, sorting, shredding,

packaging, and labeling activities) that are:

a Conducted during the school day;

b Performed only by students with disabilities;

c Closely resemble the vocational work tasks performed by

adults with I/DD in Sheltered Workshops, including by

being activities:

1

designed to fulfill the demands of a contractor,

business, charitable organization, school or school

district, retail store, or other entity; and

2

performed by individuals without compensation or in

exchange for subminimum wages; and

d Not part of an instructional sequence, such as teaching

generalization of skills. Instructional sequence does not

include instruction that consists solely of the activities

described in all of (a), (b), and (c) above.

8 “Oregon” or “The State” means the State of Oregon, including

ODDS and VR, as administered through DHS, and the

Oregon Department of Education (“ODE”).

9 "Related Employment Services" are services which are provided

by ODDS or VR in conjunction with or after the completion

of needed Supported Employment Services in order to enable

an individual to maintain or advance in Competitive

Integrated Employment. Services may include, but are not

necessarily limited to, benefits counseling, transportation

support, personal care supports (such as Activities of Daily

Living, or ADL), environmental accessibility adaptations,

behavioral supports, assistive technology, time management

training, and social skills training as they relate to continued

participation in Competitive Integrated Employment.

10 "Self-Employment" is an option for achieving Competitive

Integrated Employment and is recognized as a viable means

of promoting independence and economic self-sufficiency.

Self-Employment generally refers to one person owning and controlling the operations and management of an enterprise that reflects the owner's skills, interests, and preferred work environment. An individual in Self-Employment may or may not receive ongoing supports. Self-Employment yields an income that is comparable to the income received by other individuals who are not individuals with disabilities, who are self-employed in similar occupations or on similar tasks, and who have similar training, experience, and skills. 11 A "Sheltered Workshop" is a facility in which individuals with I/DD are congregated for the purpose of receiving employment services and performing work tasks for pay at the facility. A Sheltered Workshop primarily employs individuals with I/DD and other disabilities, with the exception of service support staff. A Sheltered Workshop is a fixed site that is owned, operated, or controlled by a provider, where an individual has few or no opportunities to interact with non- disabled individuals, except paid support staff. A Sheltered Workshop is not Small Group Employment in an Integrated Employment Setting, and is not otherwise an Integrated Employment Setting. 12 "Small Group Employment" refers to work performed in regular business, industry, and community settings by groups of two to eight individuals with I/DD. It is not Competitive Integrated Employment, which is the much-preferred and optimal form of employment for Oregonians with I/DD, but it can have value as a way to offer additional opportunities for integration and employment. Small Group Employment support is provided in an Integrated Employment Setting and in a manner that promotes integration into the workplace and interaction between participants and people without disabilities. Small Group Employment must allow an individual to interact with non-disabled persons in a manner typical to the employment setting. The wage paid to the supported individual must meet or exceed State and local

minimum wage requirements as specified in Competitive Integrated Employment, and the individual must maintain goals to pursue Competitive Integrated Employment opportunities 13 "Supported Employment Services" provided or funded by ODDS or VR are individualized services that assist a person with I/DD to obtain and maintain work in an Integrated Employment Setting. Supported Employment Services are provided in a manner that allows a person with I/DD to work the maximum number of hours consistent with their interests and abilities in an Integrated Employment Setting and are individually planned, based on person-centered planning principles and evidence-based practices. Supported Employment Services may include post-secondary education and/or training to the extent they are reinforced in an individual's Individual Support Plan or Individual Plan for Employment services. Such services include: a Discovery, job development, job-finding, job carving, job
coaching, job training, job shadowing, co-worker and peer supports, and re-employment support. b For transition-age youth with I/DD under the age of 16 or between the ages of 16 and 18 and not otherwise eligible for VR services, transitional services and supports, including: instruction, community experiences, the development of employment and other post school adult living objectives; school-based preparatory experiences; career preparation, and integrated work-based learning experiences such as site visits, job shadowing, soft skill and job skill development, internships, part-time employment, summer employment; youth development and leadership, including training in self-advocacy, selfdetermination and conflict resolution skills, peer and adult mentoring, and, where appropriate, daily living skills; connecting activities, including exposure to post-

school educational and community services,

transportation, benefits planning, and assistive

technology.

14 "Working-Age Individuals" are adults with I/DD who are 21

or older and who are no longer receiving public school

services, and those with I/DD who are age 60 or older who

choose to continue employment.

III. TARGET POPULATION

1 The ODDS/VR Target Population includes:

a Sheltered workshop workers. Working-Age Individuals

with I/DD found eligible for ODDS employment

services and who can reasonably be determined to have

worked in Sheltered Workshops on or after January 25,

2012 (“Sheltered Workshop Target Population”); and

b Transition-age individuals. Individuals with I/DD who at

any time on or after January 25, 2012 until July 1, 2022

meet the below definition of transition-age, and who are

found eligible for ODDS employment services as

described in OAR chapter 411, division 345, or who are

found eligible for ODDS and VR services (“Transition

Age Target Population”).

c For the purpose of Section III(1)(b), "transition-age"

means:

1

Not older than 24 years of age.

2

Not younger than 14 years of age. With respect to

VR, persons who are under 16 years of age may

receive employment services with DHS approval.

With respect to ODDS, persons who are under 18

years of age may receive employment services

with DHS approval.

IV. SHELTERED WORKSHOPS

1 By July 1, 2015, Oregon will no longer purchase or fund

Sheltered Workshop placements for:

a Transition-age youth with I/DD;

b Any working age adult with I/DD who is newly eligible for

ODDS or VR services; and c Any working age adult with I/DD who is already utilizing
ODDS or VR services who is not already working in a Sheltered Workshop. 2 By June 30, 2017, Oregon will reduce the current number of individuals with I/DD in Sheltered Workshops from a census of approximately 1,926 individuals as of March 2015, using the counting methodology set forth in the July 2015 Employment First Data Report, to no more than 1,530 individuals, as set forth in Metric No. 9 of the Integrated Employment Plan, dated July 6, 2015. By June 30, 2017, Oregon will decrease the number of hours adults with developmental disabilities receiving ODDS employment services are reported as receiving sheltered workshop services from approximately 93,530 hours in March 2015, as set forth in the July 2015 Employment First Data Report, to no more than 66,100 hours, as set forth in Integrated Employment Plan Metric No. 10. The numbers of individuals with I/DD in Sheltered Workshops for the purposes of Integrated Employment Plan Metric No. 9 and hours for the purposes Integrated Employment Plan Metric No. 10 as of June 30, 2017 shall be calculated as set forth in the Integrated Employment Plan and the July 2015 Employment First Data Report. Any enforcement proceeding under this Section IV(2) shall be subject to Section XVI of this Agreement. V. EXECUTIVE ORDER AND INTEGRATED EMPLOYMENT PLAN A Executive Order 1 Oregon shall substantially implement and maintain the terms and systemic improvements of Executive Order 15-01 (the “Executive Order”). Oregon shall have reasonable discretion and flexibility in devising and modifying the means to accomplish these systemic improvements. “Substantially implement and

maintain” does not require strict compliance with all

terms nor preclude minor deviations from these

provisions of the Executive Order. Rather, deviations

or modifications from the terms of the Executive Order

may occur, provided any such deviations or

modifications do not substantially defeat the stated

purpose of the Executive Order to “improve Oregon’s

delivery of employment services, with the goal of

achieving competitive integrated employment for

individuals with intellectual and developmental

disabilities, consistent with their abilities and choices,”

or the general purpose of each Section of the Executive

Order. After consultation with the parties and the

Independent Reviewer, the State may, in its discretion,

modify or revise the Executive Order.

BExecutive Order Service Outcomes and Integrated Employment

Plan Metrics

1 Oregon shall achieve the Service Outcomes as set forth in

Section IV.3 on page 9 of Executive Order 15-01 and

Outcomes and Metrics Nos. 9 through 11 as set forth at

pages 76-77 of the Integrated Employment Plan dated

July 6, 2015. The State shall report the Executive

Order Service Outcomes and Outcomes and Metrics

Nos. 9 through 11 in the Integrated Employment Plan

achieved annually.

a

By June 30, 2016, the State will provide or continue

to provide Supported Employment Services and

Related Services, as set forth in Section IV.3 of

Executive Order 15-01, to all of the named

plaintiffs who currently are in Sheltered

Workshops or who desire and request Supported

Employment Services. Such services are

designed to allow individuals to work in

Competitive Integrated Employment but are not a

guarantee of employment.

2 Metric No. 11 applies to newly obtained job placements in which employment has been retained for at least 90 days, regardless of whether a person subsequently loses his or her job.
3 Plaintiffs may not bring an enforcement proceeding based on the State’s failure to achieve any of Executive Order Service Outcomes or Integrated Employment Plan Outcomes and Metrics Nos. 9 through 11 for any State Fiscal Year (“SFY”) until the end of the three years starting with the SFY in which the annual outcome was not achieved. If, at the end of a three-year period, the State has complied with this Section by achieving the cumulative outcomes required as of the end of the three-year period, plaintiffs may not bring any enforcement proceeding based on the State’s failure to achieve an annual outcome in Sections V(B) and VI(3) for the first year. If the State fails to achieve an annual outcome, the parties and the Independent Reviewer shall confer by telephone within 60 days of receiving notice of the failure to determine the reasons for the failure to achieve the annual outcome and potential actions that could be taken to remedy these factors. For example, under Metric No. 11, the State would be required to achieve 130 additional job placements in SFY 2016, 160 additional job placements in SFY 2017, and 170 additional job placements in SFY 2018, for a total of 460 additional jobs during the three-year period. If 120 were obtained in SFY 2016, 160 in SFY 2017, and 180 in SFY 2018, for a total of 460 jobs, there would be no violation regarding SFY 2016. Similarly, if 120 jobs were obtained in SFY 2016 and 150 jobs were obtained in SFY 2017, but 190 were obtained in SFY 2018, there would be no violation regarding SFY 2016. If the State exceeds any of the annual performance outcomes in a given SFY, the

excess amount shall be added to the total of newly obtained jobs in the following SFY, and will count towards satisfaction of the overall goal of 1,115 newly obtained jobs. Notwithstanding the above, if compliance with the annual outcomes falls below 50% of the annual outcomes in two consecutive years, plaintiffs may bring an enforcement proceeding without further delay. 4 Any enforcement proceeding allowed under this Section shall be brought in Court, and the parties shall initially ask the Court to hear the matter by telephone on an expedited basis. Such dispute shall be submitted by letter submission, unless the Court allows otherwise. The conferral requirement and time allotted for responses and replies in the local rules for motions shall apply to any noncompliance letter. The Court shall determine the scope and means of discovery, if any, in enforcement proceedings, but the parties agree that the scope and means of discovery shall be as narrow and cost-effective as possible in all instances, and consistent with an expedited hearing schedule. The Court shall determine whether or not the hearing shall take place by telephone, and whether testimony is needed. 5 The State may, in its discretion, modify or revise the Integrated Employment Plan (other than Outcomes and Metrics Nos. 9 through 11 as set forth in the Integrated Employment Plan dated July 6, 2015) without any prior consultation with the parties or the Independent Reviewer. VI. SUPPORTED EMPLOYMENT, RELATED SERVICES, AND COMPETITIVE INTEGRATED EMPLOYMENT 1 ODDS and VR will establish and implement a policy that Supported Employment Services provided under this Agreement shall be individualized, evidence-based, flexible,

offered in an Integrated Employment Setting, and available as needed and desired, but shall not be mandated as a condition of working or receiving services in an integrated employment setting. 2 Supported Employment Services provided under this Agreement shall be based on an individual's capabilities, choices, and strengths and shall be individually tailored to each person. All persons who receive Supported Employment Services in an integrated employment setting under this Agreement will have a goal of working the maximum number of hours consistent with their abilities and preferences, without regard to the availability of employment opportunities. 3 Consistent with DHS' Integrated Employment Plan and the State's VR data, ODDS and VR will provide Supported Employment Services and Related Employment Services so that 1,115 Working-Age Individuals in the Sheltered Workshop Target Population as described in Section III(1)(a) will obtain Competitive Integrated Employment, in accordance with the following schedule: a By June 30, 2015, the State provided Supported
Employment Services and Related Employment Services so that 105 individuals receiving sheltered workshop services newly obtained Competitive Integrated Employment. b By June 30, 2016, the State will provide Supported Employment Services and Related Employment Services, so that 130 additional individuals receiving sheltered workshop services newly obtain Competitive Integrated Employment. c By June 30, 2017, the State will provide Supported Employment Services and Related Employment Services so that 160 additional individuals receiving sheltered workshop services newly obtain Competitive Integrated Employment.

d By June 30, 2018, the State will provide Supported Employment Services and Related Employment Services so that 170 additional individuals receiving sheltered workshop services newly obtain Competitive Integrated Employment.
e By June 30, 2019, the State will provide Supported Employment Services and Related Employment Services so that 170 additional individuals receiving sheltered workshop services newly obtain Competitive Integrated Employment.
f By June 30, 2020, the State will provide Supported Employment Services and Related Employment Services so that 150 additional individuals receiving sheltered workshop services newly obtain Competitive Integrated Employment.
g By June 30, 2021, the State will provide Supported Employment Services and Related Employment Services so that 130 additional individuals receiving sheltered workshop services newly obtain Competitive Integrated Employment. \
h By June 30, 2022, the State will provide Supported Employment Services and Related Employment Services so that 100 additional individuals receiving sheltered workshop services newly obtain Competitive Integrated Employment.
4 If the State exceeds an annual target in Section VI(3) for a given year, the excess number of individuals who obtain Competitive Integrated Employment in that year shall be added to the total of individuals who obtain Competitive Integrated Employment in the following year, and shall count towards satisfaction of the overall 1,115 individuals.
5 For the Transition Age Target Population described in Section III(1)(b) of this Agreement, by July 1, 2022, Oregon will ensure that at least 4,900 individuals provided Employment Services pursuant to Section IV.3 of the Executive Order are

transition-age individuals. a At least 50% of the individuals in the Transition-Age
Target Population who receive Employment Services under Section IV.3 of the Executive Order and who apply and are found eligible for VR services shall receive, at a minimum, an Individual Plan for Employment with VR. 6 The State will encourage and help facilitate Oregon school districts to continue and expand model(s) of evidence-based transition practices (e.g., the Seamless Transition Model, Project Search, Youth Transition Program) for the purpose of promoting and expanding transition services for the Transition Age Target Population and assisting in the achievement of competitive integrated employment for this population. 7 Any individual in a Sheltered Workshop who states as part of the CDP process that he or she desires a job in an Integrated Employment Setting will receive Supported Employment Services and Related Employment Services that allow the individual an opportunity to obtain such a job. An opportunity is not a guarantee of employment. 8 If an individual in the certified class is qualified for Competitive Integrated Employment and either services are not yet available or the individual is not able to obtain Competitive Integrated Employment, the individual will remain eligible for services to obtain Competitive Integrated Employment when such services are available. 9 DHS shall adopt a rule requiring community developmental disabilities programs (“CDDPs”) and support services brokerages to encourage individuals in the Sheltered Workshop Target Population to choose options other than sheltered employment. a If appropriate for the individual, these options shall include non-facility-based employment and integrated day options and community inclusion services, provided in

settings other than Sheltered Workshops. b Integrated day options include, but are not limited to,
services that include regular opportunities for community-based recreational, social, educational, cultural, and athletic activities, including community volunteer activities and training activities, as well as other regularly occurring non-facility based activities of a person's choosing that are provided in settings which allow individuals with disabilities to interact with individuals without disabilities in a community setting to the fullest extent possible for the individual. c Any enforcement proceeding brought under Section VI(9) is limited to whether DHS has adopted a rule as set forth in Section VI(9). VII. ENHANCING EMPLOYMENT OUTCOMES 1 In order to maximize the integration of competitive employment opportunities, by no later than June 30, 2016, DHS will take the following actions: a DHS will establish and promote a goal that all persons with I/DD who want to work in the community will be afforded an opportunity to pursue competitive employment that allows them to work the maximum number of hours consistent with their abilities and preferences. DHS will issue guidance to VR counselors, ODDS staff, CDDPs, and brokerages that the recommended standard for planning and implementing Supported Employment Services will be the opportunity to work at least 20 hours per week. This guidance will recognize that based on individual choice, preferences, and circumstances, some people may choose to work at that level while others may not. b DHS will develop and seek approval by Centers for Medicare & Medicaid Services ("CMS") for reimbursement rates for supported employment services for outcome payments or other financial incentives to

providers for individuals with I/DD who obtain Competitive Integrated Employment at a monthly average of at least 20 hours per week. c Subject to Section XI of this Agreement, DHS will continue to include in its Sheltered Workshop provider transformation grants a goal that individuals with I/DD obtain Competitive Integrated Employment and work the maximum number of hours consistent with their abilities and preferences. These DHS grants will continue to provide one-time performance-based payments to providers for each individual with I/DD who obtains Competitive Integrated Employment at least 20 hours per week. d DHS will issue guidance that the technical assistance provider(s) set forth in Section X(1) of this Agreement train employment professionals and job developers to assist individuals in finding, obtaining, and keeping jobs in Competitive Integrated Employment that the recommended standard for planning and implementing Supported Employment Services will be the opportunity to work at least 20 hours per week. This guidance will recognize that based on individual choice, preferences, and circumstances, some people may choose to work at that level while others may not. 2 As set forth in Section XIII(a)(8) of this Agreement, starting July 1, 2016, and semi-annually (twice a year) thereafter, the State shall collect and report the percentage of individuals with I/DD who receive Supported Employment Services under this Agreement and who are working in an Integrated Employment Setting at least 20 hours per week. If the data reported by the State does not indicate that this percentage has increased by the percentage adopted by the Executive Order's Policy Group, the State and the Independent Reviewer will meet in good faith to discuss additional actions that may be taken to enhance the employment outcomes

under this Agreement. The State shall not be required to take any actions recommended by the Independent Reviewer. 3 Any enforcement proceeding under this Section VII shall be limited solely to whether DHS has taken the steps required by Section VII. VIII. CAREER DEVELOPMENT PLANNING 1 Consistent with ODDS policy and administrative rules, all individuals in the Executive Order 15-01's ODDS/VR Target Population Section II(1)(a) shall have received a CDP by July 1, 2015. DHS shall determine whether all such CDPs have been developed and shall utilize performance-based contracting metrics to impose financial penalties on responsible entities that fail to develop a CDP for any person in Target Population III(1)(a) of the Agreement, after receiving notice and an opportunity to cure. Individuals in ODDS/VR Target Population Section III(1)(b) of the Agreement will receive a CDP prior to their expected exit from the school district. If an individual in ODDS/VR Target Population Section III(1)(b) leaves school prior to his or her expected exit, he or she will receive a CDP within one year of the unexpected exit. The provision of Employment Services will not be delayed or denied due to a lack of a CDP. IX. TRANSITION PLANNING FOR YOUTH 1 Consistent with ODE's authority under Oregon law, including, inter alia, Or. Rev. Stat. §§ 326.051 and 329.095, as well as Division 22 of the Oregon Administrative Rules, including, inter alia, Or. Admin. R. 581-022-1020, the ODE shall require that: (1) the transition planning process may begin as young as age 14, if deemed appropriate by the student's Individualized Education Plan team (including the student's parent(s)), and must begin not later than the start of the oneyear period of a student's Individualized Education Plan during which the student reaches 16 years of age; (2) the transition planning process shall include information about,

and provide opportunities to experience, Supported Employment Services in Integrated Employment Settings; (3) local educational agencies may not include Sheltered Workshops in the continuum of alternative placements and supplementary aids and services provided to students; and (4) school instructional curriculum shall not include mock sheltered workshop activities. 2 The State will develop a broad-based professional development plan for transition services that includes targeted technical assistance provided to agency personnel, school district personnel, and other practitioners. In determining whether a broad-based professional development plan is adequate, the Court's determination shall be limited to whether or not the plan represents a substantial departure from widely accepted professional judgment. X. TRAINING 1 Oregon shall, subject to the availability of sufficient funding, maintain until at least June 30, 2019, a technical assistance provider(s) to offer competency-based training, ongoing assistance, and support for evidence-based practices to agencies that offer Supported Employment Services. DHS shall make diligent efforts to secure sufficient funds for the obligations set forth in Section X. XI. PROVIDER CAPACITY 1 Oregon shall, subject to the availability of sufficient funding, maintain until at least June 30, 2019, grants for the transformation of existing sheltered workshop providers or the development of new Supported Employment Services providers or the expansion of existing providers that will assist individuals obtaining Competitive Integrated Employment and working in Integrated Employment Settings. DHS shall make diligent efforts to secure sufficient funds for the obligations set forth in Section XI. XII. FUNDING 1 The parties understand and agree that any agreement by the State,

including any agreement on numerical performance

outcomes, is contingent upon the receipt of funding,

appropriations, limitations, or other expenditure authority

from the Oregon Legislative Assembly.

2 Nothing in this Agreement will be construed as permitting any

violation of Article XI, Section 7 of the Oregon Constitution

or any other law regulating liabilities or monetary obligations

of the State of Oregon. The State will make diligent efforts to

obtain necessary funding, appropriations, limitations,

allotments, or other expenditure authority. If Oregon fails to

attain necessary funding, appropriations, limitations,

allotments, or other expenditure authority to comply with this

Agreement, plaintiffs retain all rights, including the right to

enter into enforcement proceedings, or to withdraw consent

to this Agreement, and revive any claims otherwise barred by

operation of this Agreement. In the event claims are revived,

defendants shall retain all rights, and all defenses shall be

revived.

XIII. DATA COLLECTION AND REPORTING

1 In place of Section XIII.2 of Executive Order 15-01, the State

shall implement a data collection provision that includes:

a Starting January 1, 2016, and semi-annually (twice a year)

thereafter, ODDS and VR shall collect data and report

to the Supported Employment Coordinator, the

following additional data for individuals with I/DD in

the ODDS/VR Target Populations, separated by Target

Population, as defined in the Executive Order:

1

The number of individuals receiving Supported

Employment Services in an integrated setting;

2

The number of individuals achieving Competitive

Integrated Employment;

3

The number of individuals achieving Individual

Supported Employment;

4

The number of new individuals who received

Supported Employment Services in an integrated

setting in the current State fiscal year;

5

The number of new individuals who achieved

Competitive Integrated Employment in the current

State fiscal year; (

6

The number of new individuals receiving Individual

Supported Employment;

7

The number of individuals working in the following

settings: Competitive Integrated Employment,

Individual Supported Employment, Self-

Employment, Sheltered Workshop, and Small

Group Employment;

8

The number of hours worked per week, and hourly

wages paid to those individuals, including the

percentage of individuals with I/DD who receive

Supported Employment Services under this

Agreement and who are working in an Integrated

Employment Setting at least 20 hours per week;

9

The length of time each individual works in

Competitive Integrated Employment and in other

Supported Employment;

10

The performance of employment professionals,

providers, and job developers with respect to the

number of hours worked in all new job

placements; and

11

The number and percentage of persons served under

Section IV(3) of the Executive Order who are

transition-age individuals, and the number of

individuals in the Transition-Age Target

Population served under Section VI(5) of this

Agreement.

b Starting July 1, 2016, VR and ODDS will be responsible

for annually reporting on the measurable progress made

on the outcomes required under this Agreement to the

Supported Employment Coordinator, as well as:

1

The number of supported employment providers and

the number of clients served by each provider;

2

The number of providers providing employment

services, including job coaches, job developers,

employment specialists and benefits counselors;

and

3

The number of vocational rehabilitation counselors

who assess and assist persons with I/DD for

supported employment services.

c Beginning with the Post School Outcomes survey that will

be conducted from July 2016 to September 2016, and in

each Post School Outcomes survey thereafter until the

termination of this Agreement, ODE will conduct its

Post School Outcomes survey in a way that will allow

ODE to collect and analyze data about the number of

youth who are enrolled in ODDS services who exited

secondary school during the year in question, the

number who exited with a job during that year, the

number who received post-secondary educational

services after exiting, and, where applicable, the types

of employment individuals obtained after exiting (for

example, Competitive Integrated Employment, Small

Group Employment, and Self Employment). The Post

School Outcomes survey will collect information for all

school leavers for the year in question, and not a

sampling.

XIV. INDEPENDENT REVIEWER

1 A neutral Independent Reviewer shall be selected to act as a

subject matter expert and to assess compliance as specifically

authorized by the terms of this Agreement, or as required by

the Court. The Independent Reviewer should have prior

experience administering a state government program that

includes providing employment services to individuals with

I/DD. The parties agree that the Independent Reviewer must

not have served as an expert, consultant, monitor, or

independent reviewer for any of the parties or their counsel in

connection with this action. The Independent Reviewer shall be selected as follows: a The parties shall attempt to jointly select an Independent
Reviewer. b If the parties are unable to agree on an Independent
Reviewer, each party shall submit to the Court a list of up to three nominees, and the Court shall select an Independent Reviewer from those lists pursuant to Fed. R. Evid. 706(a). c With respect to any Independent Reviewer proposed or nominated by any party in connection with Sections XIV(1)(a) and (1)(b), the nominating party must identify and describe each nominee's qualifications and experience, including listing and describing each instance in which the nominee has served as an expert, consultant, monitor, or independent reviewer in any action involving the parties. d A similar process will apply to the replacement of the Independent Reviewer, as necessary. 2 At defendants' request, the Independent Reviewer will be available to assist the defendants in implementing the provisions of the Agreement, including, at defendants' request, providing training and technical assistance. Such assistance may include recommendations to facilitate compliance; and identifying any obstacles to compliance and strategies to address such obstacles. 3 Other than the assistance available at defendants' request under Section XIV.2 of this Agreement, the Independent Reviewer shall assess the defendants' progress in achieving substantial compliance through the following: a Conducting an annual review of the State's compliance with Sections IV(2), V(B)(1),and VI(3) of this Agreement; b Conducting a review of the State's compliance with Section VI(5) of this Agreement as of July 1, 2022; c Conducting an annual review of the State's substantial

compliance on a systemic basis with the other terms of this Agreement and the Executive Order; d To the extent reasonably necessary, conducting reviews for individuals in the Sheltered Workshop Target Population in order to determine any systemic patterns or practices concerning the Supported Employment Services provided to those individuals; and e Issuing annual written reports reflecting the findings in this Section. 4 The Independent Reviewer will afford the parties 45 days to comment on a draft report prepared pursuant to Section XIV(3)(e) above prior to submitting the report with the Court. 5 The Independent Reviewer, and any hired staff or consultants may have periodic meetings and ex parte communications with, and make recommendations to, the Court and the parties; speak with stakeholders with such stakeholders' consent, on a confidential basis; and testify in this case regarding any matter relating to the implementation of this Agreement and the performance of his or her duties under this Agreement, including the Independent Reviewer's observations and findings. 6 The Independent Reviewer, along with any staff hired by the Independent Reviewer for the purpose of assisting the Independent Reviewer with his or her responsibilities under this Agreement, shall be reimbursed up to a maximum of $250,000 per year by the State. XV. EVENTS AFFECTING IMPLEMENTATION 1 In connection with any enforcement proceeding brought under this Agreement, the State may demonstrate an Event Affecting Implementation by showing the occurrence of an event that was not initiated, created, caused, or substantially contributed to by DHS or ODE and that substantially impaired or impeded the State from satisfying any of the requirements of this Agreement. A non-inclusive, illustrative

list of examples of events that could substantially impair or impede the State from satisfying requirements in this Agreement, and thus constitute Events Affecting Implementation, includes a significant economic downturn or significant increase in the unemployment rate; changes in the number of available qualified individuals in the Sheltered Workshop Target Population; a significant decrease in State revenue or federal funding; or other reasonable factors, which need not be of the same character or degree as the preceding examples. In connection with Sections IV, V, and VI of this Agreement, defendants are not required to overcome an Event Affecting Implementation by increasing hiring individuals with I/DD for State employment. 2 In any enforcement proceeding under this Agreement, after exhaustion of the dispute resolution process in Section XVI(A), plaintiffs shall bear the initial burden of proving a violation of a provision of the Agreement. The State shall then bear the burden of showing that an Event Affecting Implementation, if any, has occurred and substantially impaired or impeded the State from satisfying that provision of the Agreement. 3 In addition to demonstrating an Event Affecting Implementation as a complete defense in an enforcement proceeding brought by plaintiffs under this Agreement, the State may, after exhaustion of the dispute resolution process in Section XVI(A), at any time and in its discretion, seek a declaration from the Court that an Event Affecting Implementation has occurred that substantially impaired or impeded the State from satisfying a specific provision of the Agreement, along with such other relief that is deemed proper by the Court. In any such proceeding seeking declaratory relief, the State shall bear the burden of showing that an Event Affecting Implementation has occurred and that it substantially impairs or impedes the State from satisfying a specific provision of the Agreement.

XVI. ENFORCEMENT, MODIFICATION, AND

TERMINATION

A Dispute Resolution Process

1 If the United States and/or the plaintiffs believe that the

State has failed to fulfill any obligation under this

Agreement, the United States and/or the plaintiffs shall,

prior to initiating any court proceeding to remedy such

failure, give written notice to the State which sets forth

with specificity the details of the alleged

noncompliance.

a

The State shall have 45 days from the date of such

written notice to respond in writing by denying

that noncompliance has occurred, or by accepting

(without necessarily admitting) the allegation of

noncompliance and proposing steps that the State

will take, and by when, to cure the alleged

noncompliance.

b

If the State fails to respond within 45 days or denies

that noncompliance has occurred, and after the

parties confer in good faith, plaintiffs may seek an

appropriate judicial remedy other than contempt.

2 If the State agrees to cure the alleged deficiency, the State

shall have an additional 90 days to cure or demonstrate

that an Event Affecting Implementation has caused the

State's failure at issue, unless a longer period is agreed

to by the parties, which agreement will not be

unreasonably withheld. The State may seek additional

time from the Court if appropriate. If the Parties fail to

reach agreement on a plan for curative action, plaintiffs

may seek an appropriate judicial remedy.

3 If the State intends to file a motion or submit a letter to the

Court requesting any judicial action, prior to initiating

such request, the State shall give written notice to

plaintiffs which sets forth with specificity the details of

the proposed motion or letter.

a

Plaintiffs shall have 30 days from the date of such

written notice to respond to the State in writing

stating their views and any proposed alternatives,

to the State's request.

b

The parties shall confer by telephone to discuss the

response.

c

If plaintiffs fail to respond within 30 days, the State

may submit the motion or letter to the Court.

B Enforcement

1 Provided the State has substantially complied with and

maintained substantial compliance with the terms of

this Agreement, the Agreement shall terminate no later

than July 1, 2022. The Court shall retain jurisdiction

over this matter during the effective period of this

Agreement. For purposes of this Section, "substantial

compliance" means something less than strict and literal

compliance with every provision of this Agreement.

Rather, deviations from the terms of the Agreement

may occur, provided any such deviations are

unintentional and so minor as not to substantially defeat

the object which the parties intend to accomplish, or to

impair the structure of the Agreement as a whole.

2 If, after exhausting the dispute resolution process in Section

XVI, plaintiffs maintain that the State remains in

violation of the obligation or requirement in question

and that an Event Affecting Implementation does not

excuse the alleged deficiency, any party shall then have

30 days to request a conference with the Court

concerning the dispute, and the parties shall initially ask

the Court to hear the matter by telephone on an

expedited basis. Plaintiffs shall submit such dispute by

letter submission, unless the Court allows otherwise.

The conferral requirement and time allotted for

responses and replies in the local rules for motions shall

apply to any noncompliance letter.

3 The Court shall determine the scope and means of

discovery, if any, in enforcement proceedings, but the

parties agree that the scope and means of discovery

shall be as narrow and cost-effective as possible in all

instances, and consistent with an expedited hearing

schedule. The Court shall determine whether or not the

hearing shall take place by telephone, and whether

testimony is needed.

4 In any enforcement proceeding allowed under this

Agreement, plaintiffs shall bear the burden of proving a

violation. In determining whether a violation of any

provision in this Agreement has occurred, to the extent

plaintiffs support any alleged violation with evidence

regarding professional judgment or standards, the

Court's determination shall be limited to whether the

activity at issue represents a significant departure from

that professional judgment or standard. Defendants

shall have a complete defense if they can demonstrate

to the Court that an Event Affecting Implementation

excuses the State's failure to satisfy any obligation or

requirement set forth in this Agreement.

5 Plaintiffs may not bring any enforcement proceeding, under

this Agreement in the Court before January 1, 2017.

Plaintiffs agree that any enforcement action brought

under this Agreement shall not be based upon actions or

inactions that allegedly occurred prior to entry of this

Agreement, including any alleged violations of the

Executive Order.

6 The State contends that it is in substantial compliance with

the Executive Order as of the entry of this Agreement.

a

For the purposes of this Agreement, plaintiffs shall

not challenge this contention or the State's

implementation of the Executive Order as of the

date of the Agreement, thereby precluding any

enforcement proceedings based on practices that

precede the entry of this Agreement.

b

After execution of this Agreement by the parties, but

prior to the fairness hearing and entry of this

Agreement, plaintiffs will provide defendants

with a list setting forth each instance in which

plaintiffs allege that the State is in systemic

breach of this Agreement or the Executive Order

causing the State not to be in substantial

compliance with this Agreement and the

Executive Order at such time. Nothing in this

Section is intended to establish that defendants

agree that any of the instances listed by plaintiffs

constitutes a systemic breach of this Agreement or

the Executive Order causing the State not to be in

compliance with this Agreement or the Executive

Order, or to limit the ability of defendants to

argue that the State is in substantial compliance

with this Agreement and the Executive Order.

7 Plaintiffs may not seek contempt in the first instance for

any violation of this Agreement. Any contempt action

will be governed by the applicable standard in the

District of Oregon.

8 Any enforcement proceedings shall relate solely to actions

or inactions of the State that involve members of the

Target Populations under this Agreement.

9 Enforcement proceedings shall be limited to systemic

violations of the Agreement that cause the State not to

be in substantial compliance with this Agreement or the

Executive Order. Moreover, unless expressly set forth

in this Agreement, the State shall not be required to

provide a particular level of benefits, and plaintiffs will

not bring enforcement proceedings that seek to impose

a particular standard of care.

10 Any monitoring or enforcement proceedings related to

alleged actions or inactions by the State regarding

members of the Target Populations who are not members of the certified class shall be conducted or brought solely by the United States. Any monitoring or enforcement proceedings by counsel for the class and UCP shall be limited to the claims of the certified class corresponding to the relief sought in the Amended Complaint, and the corresponding rights under this Agreement of the certified class. As a result, any monitoring or enforcement proceedings related to alleged actions or inactions by ODE shall be brought solely by the United States. CSuspensions or Modifications 1 A suspension or excuse from compliance with any provision pursuant to an Event Affecting Implementation shall be subject to the standard imposed by Section XV of this Agreement. 2 The Court may modify this Agreement consistent with Fed. R. Civ. P. 60 for reasons other than an Event Affecting Implementation. 3 Any agreed-to modification of this Agreement shall be executed in writing by the parties, shall be filed with the Court, and shall not be effective until the Court enters the modified agreement and retains jurisdiction to enforce it. XVII. GENERAL PROVISIONS 1 The parties agree jointly to file this Agreement with the United States District Court for the District of Oregon, Portland Division and jointly request approval of the Agreement after a hearing conducted pursuant to Fed. R. Civ. P. 23(f). If approved, the Court shall enter the Agreement as an order of the Court, and retain jurisdiction over the Agreement. The Parties agree to cooperate in presenting the Agreement to the Court and urging its approval as fair and reasonable. The Effective Date of the Agreement shall be the date of entry by the Court.

2 This Agreement is binding upon the parties, by and through their officials, employees, and successors for the term of this Agreement. If DHS or ODE enter into written contracts with outside providers for any of the services provided in this Agreement, DHS or ODE shall incorporate the provisions of this Agreement that directly relate to those services in such contracts. Plaintiffs shall not be third party beneficiaries of any such contracts.
3 No person or entity is intended to be a third party beneficiary of the provisions of this Agreement for purposes of any civil, criminal, or administrative action, and, accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreement in any civil, criminal, or administrative action.
4 This Agreement is not intended to enforce the Individuals with Disabilities Education Act ("IDEA") or any implementing regulation or guidance, the Workforce Innovation and Opportunities Act ("WIOA") or any implementing regulation or guidance, or any regulation issued by CMS, or the State's obtaining approval of or performance of its CMS Transition Plan.
5 Failure by any party to enforce this entire Agreement or any provision thereof with respect to any deadline or any other provision herein shall not be construed as a waiver, including of the party's right to enforce other deadlines and provisions of this Agreement.
6 The parties shall promptly notify each other of any court or administrative challenge to this Agreement or any portion thereof, and shall defend against any challenge to the Agreement.
7 Except as provided in this Agreement, during the pendency of the Agreement, plaintiffs shall not file suit under the ADA or Section 504 of the Rehabilitation Act for any claim or allegation set forth in the Amended Complaint or the Complaint in Intervention.

8 After notice to all class members, the Court will conduct a fairness hearing pursuant to Fed. R. Civ. P. 23(f) to decide whether the Agreement is a fair, adequate and reasonable resolution of the claims of the plaintiff class. Should the Court approve this Agreement, the Agreement shall preclude the Named Plaintiffs and the class from asserting any claims that are based on or arise out of the facts and practices alleged in the Amended Complaint.
9 UCP releases and discharges the defendants named in the Amended Complaint from all potential liability, known or unknown, suspected or unsuspected, which exist or may have existed for all claims that have been or might have been asserted by UCP based on, related to, or arising out of the facts and practices described in the Amended Complaint, to the extent such facts or practices existed or may have existed prior to the effective date of the Agreement. This release shall not preclude or affect any right of UCP to assess defendants' compliance with the terms and provisions of this Agreement subject to this Section XVII and Section XVI(10) of this Agreement, or to enforce this Agreement subject to the terms and provisions of Sections XV and XVI of this Agreement.
10 The U.S. Department of Justice ("USDOJ"), releases and discharges the State of Oregon from all potential liability, known or unknown, suspected or unsuspected, for all ADA and Section 504 claims of the United States Attorney General that have been or might have been asserted by the United States Attorney General based on, related to, or arising out of the practices described in the Amended Complaint and the Complaint in Intervention, to the extent such practices existed or may have existed prior to the effective date of the Agreement. This release shall not preclude or affect any right of the USDOJ to assess defendants' compliance with the terms and provisions of this Agreement subject to this Section XVII and Section XVI(10) of this Agreement, or to

enforce this Agreement subject to the terms and provisions of Sections XV and XVI of this Agreement. USDOJ represents that it has authority to deliver this release on behalf of plaintiff-intervenor and that this release shall be effective. 11 This Agreement, and any conclusions or determinations made by the Independent Reviewer pursuant to this Agreement, shall not be subject to the Federal Arbitration Act, 9 U.S.C. § 1 et seq. 12 Nothing in this Agreement requires Oregon to take actions inconsistent with federal law or federal funding requirements. 13 Neither the ADA, Section 504 of the Rehabilitation Act, nor their implementing regulations require Oregon to make Sheltered Workshops available. 14 Plaintiffs' counsel shall have reasonable access to documents, records, and materials that are within the control and custody of the State and are necessary to assess the State's substantial compliance with this Agreement. Plaintiffs' counsel may also seek access to third-party programs that are funded by or through the State, including the programs' employees, facilities, services, documents, records, and materials. a The State will not interfere with plaintiffs' access to third-
party programs under this Section. b Any access under this Section may continue until this case
is dismissed, but shall be limited to the extent necessary to minimize undue burden and cost to the State. c Counsel for plaintiffs may not initiate any communications with State employees concerning the terms, implementation, or enforcement of this Agreement without prior permission of counsel for the State, unless plaintiffs obtain a Court order permitting such communications. Nothing in this provision is intended to inhibit the ability of the United States to carry out its law enforcement authority by conducting investigations, provided such investigations are not related to the claims in the Amended Complaint or

Complaint in Intervention, or based on the monitoring or enforcement of this Agreement. Further, nothing in Section XVII(14) shall affect the release provided by plaintiff-intervenor in Section XVII(10) of this Agreement. d The Protective Order in this Action shall remain in place until the termination of this Agreement, and any documents, records, and materials made available to plaintiffs under this Section may be produced as confidential pursuant to the Protective Order. 15 The United States and the State shall bear their own costs and attorney's fees. Counsel for the class may seek an award of reasonable attorney's fees and costs incurred in the prosecution of the claims in the Amended Complaint. The parties and the Court shall apply the reasonableness standard contained in Hensley v. Eckhart, 461 U.S. 424, 435 (1983). a The parties agree to work in good faith to agree on the amount of the reasonable fees and costs that will be paid to counsel for the class pursuant to this Section. b In the event the parties do not reach agreement on the amount of the reasonable fees and costs that will be paid to counsel for the class pursuant to this Section by October 1, 2015, this Agreement shall remain in force, including the provisions of this Section, and counsel for the class shall submit a fee petition in this Action to Judge Janice M. Stewart for the recovery of fees and costs under this Section after the Court enters an order approving the Agreement. Defendants shall be entitled to present any and all objections to any fee petition submitted by counsel for the class. The Court's determination shall be based upon the applicable standard in the District of Oregon. c Plaintiffs' fee petition shall be subject to the procedures, rules, and substantive law applicable to fee petitions in the United States District Court for the District of

Oregon. Rates will be based on a percentile of the rates stated in the Oregon State Bar Economic Survey. Plaintiffs may not seek any fees for time beyond that actually spent or costs beyond those actually incurred, and they shall not seek any fee multiplier or other enhancement. d The parties agree that Judge Stewart's decision on reasonable fees and costs shall be binding, and that no party will have any right to appeal her decision. The waiver in Section XVII(15) shall be limited to a decision by Judge Stewart on the reasonable fees and costs recoverable by plaintiffs under Section XVII(15), and shall not extend to any other decision concerning any other fees or costs issued by any other judge. 16 The United States and the State shall bear their own costs and attorney's fees for any post-judgment monitoring. Subject to Section XVI(10) of this Agreement, counsel for the class may seek an award of no more than $90,000 per year for reasonable and necessary attorney's fees and costs incurred in the monitoring of the Agreement. a The parties agree that counsel for the class may not recover fees or costs for monitoring activities that are duplicative of the duties of the Independent Reviewer, as set forth at Section XIV of this Agreement. b The parties agree to work in good faith to agree on the amount of the reasonable and necessary monitoring fees and costs that may be paid to counsel for the class pursuant to this Section. c In the event the parties do not reach agreement on the amount of reasonable and necessary monitoring fees and costs recoverable under Section XVII(16), the class counsel may submit a fee petition to the Court for monitoring fees and costs. d For the purposes of Section XVII(16), monitoring shall not include activities undertaken in connection with

enforcement proceedings brought by plaintiffs in order to enforce this Agreement. In the event plaintiffs bring such enforcement proceedings, they may seek an award of reasonable and necessary fees and costs incurred in bringing such enforcement proceedings (“enforcement fees”). In no event shall plaintiffs be entitled to recover under Section XVII(16)(d) any fees or costs for activities undertaken prior to the delivery by plaintiffs of written notice to defendants pursuant to Section XVI(A)(1) of this Agreement and the conclusion of defendants’ time to respond and cure pursuant to Section XVI(A)(1)-(2) of this Agreement. e Any fee petition submitted by plaintiffs pursuant to Section XVII(16) shall be subject to the procedures, rules, and substantive law applicable to fee petitions in the United States District Court for the District of Oregon. Rates will be based on a percentile of the rates stated in the Oregon State Bar Economic Survey. Plaintiffs may not seek any fees for time beyond that actually spent or costs not actually incurred, and they shall not seek any fee multiplier or other enhancement. Defendants shall be entitled to present any and all objections to any fee petition submitted by plaintiffs. f Only Disability Rights Oregon and the Center for Public Representation may seek an award of post-judgment monitoring fees and costs pursuant to Section XVII(16). 17 After the Court approves this Agreement, any discovery pursuant to the Federal Rules of Civil Procedure, including depositions, subpoenas, or requests for production of documents, may only be propounded after an order by the Court authorizing the discovery. The parties agree that the Court may enter such other protective orders as the Court deems appropriate. 18 The signatures below of officials and attorneys representing

the United States, the class plaintiffs, and the State signify that these parties have given their final approval to this Agreement. Each party to this Agreement represents and warrants that the person who has signed this Agreement on behalf of his or her entity or clients is duly authorized to enter into this Agreement and to bind that party to the terms and conditions of this Agreement. 19 This Agreement and any documents incorporated by reference constitute the entire integrated Agreement of the parties. No prior or contemporaneous communications, oral or written, or prior drafts shall be relevant or admissible for purposes of determining the meaning of any provisions herein in any litigation or any other proceeding. 20 This Agreement may be executed in counterparts, each of which shall be deemed an original, and the counterparts shall together constitute one and the same Agreement, notwithstanding that each party is not a signatory to the original or the same counterpart. All references to signature or execution of the Agreement shall be calculated from the date on which the last party executed the Agreement. 21 The parties agree that, as of the date the Court approves and enters this Agreement as an order of the Court, for purposes of the parties’ preservation obligations pursuant to Federal Rule of Civil Procedure 26, litigation is not “reasonably foreseeable” concerning the matters described in the Findings Letter issued to the State by the United States. To the extent that any party previously implemented a litigation hold to preserve documents, electronically stored information, or things related to the matters described in the Findings Letter issued to the State, the party is no longer required to maintain such a litigation hold. Nothing in this paragraph relieves any party of any other obligations imposed by this Agreement. 22 “Notice” under this Agreement shall be provided to the following or their successors: Chief of the Disability Rights Section United States Department of Justice Civil Rights

Division 1425 New York Avenue NW Washington, DC 20005 United States Attorney’s Office 1000 S.W. 3rd Ave. Suite 600 Portland, OR 97204 Attorney General Oregon Department of Justice 1162 Court Street NE Salem, OR 97301-4096 General Counsel Oregon Department of Justice 1162 Court Street NE Salem, OR 97301-4096 Director of the Department of Human Services Oregon Department of Human Services 500 Summer St. NE Salem, OR 97301 Deputy Superintendent Oregon Department of Education 255 Capitol St. NE Salem, OR 97310 Center for Public Representation 22 Green Street Northampton, MA 01060 Disability Rights Oregon 610 S.W. Broadway, Suite 200 Portland, OR 97205 Miller Nash Graham & Dunn, LLP 111 S.W. Fifth Avenue, Suite 3400 Portland, OR 97204 Perkins Coie, LLP 1120 N.W. Couch Street, Tenth Floor Portland, OR 97209
CENTER FOR PUBLIC REPRESENTATION /s/ Steven J. Schwartz Steven J. Schwartz Cathy Costanzo Bettina Toner Anna Krieger 22 Green Street Northampton, Massachusetts 01060 Telephone: (413) 586-6024 Fax: (413) 586-5711 DISABILITY RIGHTS OREGON /s/ Robert C. Joondeph Robert C. Joondeph Kathleen L. Wilde Ted Wenk 610 S.W. Broadway, Suite 200 Portland, Oregon 97205

Telephone: (503) 243-2081 Fax: (503) 243-1738 MILLER NASH GRAHAM & DUNN LLP /s/ Bruce A. Rubin Bruce A. Rubin 111 S.W. Fifth Avenue, Suite 3400 Portland, Oregon 97204 Telephone: (503) 224-5858 Fax: (503) 224-0155 PERKINS COIE LLP /s/ Thomas R. Johnson Thomas R. Johnson Joanna Perini 1120 N.W. Couch Street, Tenth Floor Portland, Oregon 97209 Telephone: (503) 727-2000 Fax: (503) 727-2222
Attorneys for Plaintiffs BILLY J. WILLIAMS Acting United States Attorney District of Oregon /s/ Adrian Brown ADRIAN BROWN Assistant United States Attorney 1000 SW Third Avenue, Suite 600 Portland, OR 97204 /s/ Vanita Gupta VANITA GUPTA Principal Deputy Assistant Attorney General EVE L. HILL Deputy Assistant Attorney General REBECCA B. BOND Chief SHEILA M. FORAN

Special Legal Counsel ANNE RAISH Deputy Chief MAX LAPERTOSA REGINA KLINE H. JUSTIN PARK NICHOLAS C. LEE Trial Attorneys Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530
Attorneys for Plaintiff-Intervenor, United States of America State of Oregon, and the following State officials, named in their official capacity: Governor Kate Brown; Erinn Kelley-Siel, Director of the Oregon Department of Human Services; Lilia Teninty, Director of the Oregon Office of Developmental Disabilities Services; Trina Lee, Director of the Oregon Office of Vocational Rehabilitation Services /s/ Frederick M. Boss By: Frederick M. Boss Deputy Attorney General Oregon Department of Justice 1162 Court Street, NE Salem, OR 97301 MARKOWITZ HERBOLD PC By: /s/ John J. Dunbar John J. Dunbar, OSB #842100 JohnDunbar@MarkowitzHerbold.com David B. Markowitz, OSB #742046 David Markowitz@MarkowitzHerbold.com Keith McIntire, OSB #126210 Keith McIntire@MarkowitzHerbold.com

Lauren Blaesing, OSB #113305 Lauren Blaesing@MarkowitzHerbold.com 1211 SW Fifth Avenue, Suite 3000 Portland, OR 97204 Telephone (503) 295-3085 Special Assistant Attorneys General
DEPARTMENT OF JUSTICE By: /s/ Christina L. Beatty-Walters Christina L. Beatty-Walters, OSB #981634 Tina.BeattyWalters@doj.state.or.us 1515 SW Fifth Avenue, Suite 410 Portland, OR 97201 Telephone (972) 673-1880 Senior Assistant Attorney General, Trial Division, Special Litigation Unit
	
  

 </s> Case 3:12-cv-00138-ST Document 357 Filed 11/16/15 Page 1 of 34

ELLEN ROSENBLUM, ATTORNEY GENERAL FOR THE STATE OF OREGON John J. Dunbar, OSB #842100 JohnDunbar@MarkowitzHerbold.com Keith McIntire, OSB #126210 KeithMcIntire@MarkowitzHerbold.com Lauren Blaesing, OSB #113305 LaurenBlaesing@MarkowitzHerbold.com MARKOWITZ HERBOLD PC 3000 Pacwest Center 1211 SW Fifth Avenue Portland, OR 97204-3730 Telephone: (503) 295-3085 Fax: (503) 323-9105 Special Assistant Attorneys General
Christina L. Beatty-Walters, OSB #981634 Tina.BeattyWalters@doj.state.or.us DEPARTMENT OF JUSTICE 1515 SW Fifth Avenue, Suite 410 Portland, OR 97201 Telephone (971) 673-1880 Fax: (972) 673-5000 Senior Assistant Attorney General
Attorneys for Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

PAULA LANE; ANDRES PANIAGUA; ELIZABETH HARRAH; ANGELA KEHLER; GRETCHEN CASON; LORI ROBERTSON; SPARKLE GREEN; and ZAVIER KINVILLE, on behalf of themselves and all others similarly situated, and UNITED CEREBRAL PALSY ASSOCIATION OF OREGON AND SOUTHWEST WASHINGTON, INC.,

Case No. 3:12-cv-00138-ST
DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION TO APPROVE
CLASS ACTION SETTLEMENT

Plaintiffs,

vs.

KATE BROWN, in her official capacity as the Governor of the State of Oregon; ERINN KELLEY-SIEL, Director of the Oregon

MARKOWITZ HERBOLD PC
SUITE 3000 PACWEST CENTER 1211 SW FIFTH AVENUE
PORTLAND, OREGON 97204-3730 (503) 295-3085
Fax: (503) 323-9105

Case 3:12-cv-00138-ST Document 357 Filed 11/16/15 Page 2 of 34
Department of Human Services; MARY LEE FAY, Administrator of the Office of Developmental Disability Services; and STEPHAINE PARRISH TAYLOR, Administrator of the Office of Vocational Rehabilitation Services, all in their official capacities,
Defendants. UNITED STATES OF AMERICA,
Plaintiff-Intervenor, vs. THE STATE OF OREGON,
Defendant.
MARKOWITZ HERBOLD PC
SUITE 3000 PACWEST CENTER 1211 SW FIFTH AVENUE
PORTLAND, OREGON 97204-3730 (503) 295-3085
Fax: (503) 323-9105

Case 3:12-cv-00138-ST Document 357 Filed 11/16/15 Page 3 of 34
TABLE OF CONTENTS
I. Introduction............................................................................................................. 1 II. Standards................................................................................................................. 1 III. Background ............................................................................................................. 2
A. Procedural Background............................................................................... 3 1. Motion to Dismiss Granted in Part, Denied in Part ........................ 3 2. Class Certified................................................................................. 3 3. USDOJ Intervenes .......................................................................... 3 4. Class Member Intervention Denied, Class Definition Modified.......................................................................................... 3 5. Mediation ........................................................................................ 4
B. Factual Background .................................................................................... 4 1. Key Players in Oregon .................................................................... 4 2. Community Services in Oregon...................................................... 5 a. National Leadership in Residential Services ...................... 5 b. After Addressing Deinstitutionalization, Oregon Moves to Employment Services ......................................... 6 3. Executive Orders............................................................................. 7 4. Contributions by the Oregon Legislature........................................ 7 5. Implementation of the State Policies .............................................. 8 6. Waiver amendments Submitted to CMS....................................... 10
C. Settlement. ................................................................................................ 10 IV. The Settlement Agreement is Fair. ....................................................................... 12
A. The Risk was substantial to both sides. .................................................... 13 1. Olmstead Issues. ........................................................................... 13 2. Federal support for workshops...................................................... 17 a. The FLSA.......................................................................... 17 b. JWOD. .............................................................................. 18 c. The ADA........................................................................... 19 d. Medicaid. .......................................................................... 19 i

Case 3:12-cv-00138-ST Document 357 Filed 11/16/15 Page 4 of 34
3. The changes in federal policy regarding sheltered workshops. .................................................................................... 20 a. RSA “Counting” Rule....................................................... 20 b. USDOJ Statement ............................................................. 21 c. CMS Bulletin .................................................................... 22 d. CMS “HCBS” rule. ........................................................... 22 e. WIOA................................................................................ 23 f. Why does the legal history matter?................................... 24
B. Expense, complexity, and likely duration of further litigation ................. 24 C. Experience and views of counsel. ............................................................. 25 D. Presence of Governmental Participants. ................................................... 25 E. Reaction of the class members to the proposed settlement....................... 25
1. The “Closing the Front Door” Feature is Fair and Reasonable. ................................................................................... 25
2. The Reductions in Workshop Numbers are Fair........................... 26 3. The jobs guarantee is fair to plaintiffs. ......................................... 26 V. Conclusion ............................................................................................................ 27
ii

Case 3:12-cv-00138-ST Document 357 Filed 11/16/15 Page 5 of 34
TABLE OF AUTHORITIES
Cases
Arc of Washington State v. Braddock 427 F.3d 615 (9th Cir. 2005) ................................................................................ 14
Buchanan v. Maine 469 F.3d 158 (1st Cir. 2006) ................................................................................. 15
Buren v. Colvin No. 6:12-CV-01502-SI, 2013 WL 4782171 (D. Or. Sept. 5, 2013) ..................................................................................................................... 21
Christensen v. Harris Cnty. 529 U.S. 576 (2000).............................................................................................. 21
Churchill Village, LLC. v. Gen. Elec. 361 F.3d 566 (9th Cir.2004) ................................................................................... 1
Class Plaintiffs v. City of Seattle 955 F.2d 1268 (9th Cir.1992) ................................................................................. 1
Frew v. Hawkins 540 U.S.431 (2003)............................................................................................... 15
Gilmore v. People of the State of California, 220 F.3d 987 (9th Cir. 2000) ................................................................................ 17
Gomez v. Vernon 255 F.3d 1118 (9th Cir. 2001) .............................................................................. 16
Hanlon v. Chrysler Corp. 150 F.3d 1011 (9th Cir.1998) ................................................................................. 1
In re Google Referrer Header Privacy Litigation 87 F.3d 1122 (2015)................................................................................................ 1
Jeff D. v. Andrus 899 F.2d 753 (9th Cir. 1989) .................................................................................. 2
Lane v. Facebook, Inc. 696 F.3d 811 (9th Cir. 2012), cert. denied, 134 S. Ct. 8 (2013) ...................................................................................................................... 2
Lane v. Kitzhaber 283 F.R.D. 587, 602 (D. Or. 2012) ......................................................................... 3
Lane v. Kitzhaber 841 F. Supp. 2d 1199, 1207 (D. Or. 2012) ........................................................... 15
Midgett v. Tri-Cnty. Metro. Transp. Dist. of Oregon 254 F.3d 846 (9th Cir. 2001) ................................................................................ 16
iii

Case 3:12-cv-00138-ST Document 357 Filed 11/16/15 Page 6 of 34
O’Shea v. Littleton 414 U.S. 488 (1974).............................................................................................. 16
Olmstead v. L.C. ex rel. Zimring 527 U.S. 581, 119 S. Ct. 2176 (1999)............................................................. 13, 14
Perez v. Mortgage Bankers Association 135 S. Ct. 1199 (2014) .......................................................................................... 21
Staley v. Kitzhaber No. CV00-0078-ST (D. Or.) ................................................................................... 6
United States v. Mead Corp. 533 U.S. 218 (2001).............................................................................................. 21
Statutes 5 U.S.C. § 553................................................................................................................... 21 29 U.S.C. § 214................................................................................................................. 17 41 U.S.C. §§ 8501-8506 ................................................................................................... 18 42 U.S.C. § 1915............................................................................................................... 20 O.R.S. § 326.051................................................................................................................. 5 O.R.S. § 326.111................................................................................................................. 5 O.R.S. § 326.300................................................................................................................. 5 O.R.S. § 326.310................................................................................................................. 5 O.R.S. § 332.072................................................................................................................. 5 O.R.S. § 334.005................................................................................................................. 5 O.R.S. § 427.007................................................................................................................. 8 Other Authorities Manual for Complex Litigation, Fourth, § 21.61 ............................................................... 2 Regulations 34 C.F.R. § 361.81 ............................................................................................................ 20 34 C.F.R. § 361.88 ............................................................................................................ 20 41 C.F.R. § 51.1-3............................................................................................................. 18 41 C.F.R. § 51-1.1............................................................................................................. 18 42 C.F.R. § 441.710 .......................................................................................................... 22
iv

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I. Introduction The overall settlement is fair to the class. Both sides made significant
compromises to reach a settlement. Even if plaintiffs had been very successful at trial despite the substantial risks they faced, it is doubtful that the Court would have ordered relief beyond what would be ordered under the proposed settlement. The settlement is also fair to those who want to maintain the status quo, because the status quo would not be maintained with or without the settlement. II. Standards
Federal Rule of Civil Procedure 23(e) provides that “[i]f the proposal would bind class members, the Court may approve it only after a hearing and on finding that it is fair, reasonable and adequate.” Fed. R. Civ. P. 23(e). Approval under Rule 23(e) involves a two-step process in which the Court first determines whether a proposed class action settlement deserves preliminary approval and then, after notice is given to class members, whether final approval is warranted.” In re Google Referrer Header Privacy Litigation, 87 F.3d 1122, 1127 (2015) (citations and quotations omitted). At the final approval stage, the primary inquiry is whether the proposed settlement “is fundamentally fair, adequate, and reasonable.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir.1998). Having already completed a preliminary examination of the agreement, the Court reviews it again, mindful that the law favors the compromise and settlement of class action suits. See, e.g., Churchill Village, LLC. v. Gen. Elec., 361 F.3d 566, 576 (9th Cir.2004); Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir.1992). Ultimately, “the decision to approve or reject a settlement is committed to the sound

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discretion of the trial judge because he is exposed to the litigants and their strategies, positions, and proof.”
In the Ninth Circuit, the so-called “Hanlon factors” guide the district court in making the settlement fairness determination, including the strength of the plaintiffs' case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement, the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement.’ See also Lane v. Facebook, Inc., 696 F.3d 811, 819 (9th Cir. 2012), cert. denied, 134 S. Ct. 8 (2013) (quotations omitted).
Courts are careful not to substitute their own judgment for that of the settling parties. Newberg on Class Actions, § 13.46 (5th ed. 2015). The “judicial role in reviewing a proposed settlement is … limited to approving the proposed settlement, disapproving it, or imposing conditions on it. The judge cannot rewrite the agreement.” Manual for Complex Litigation, Fourth, § 21.61 (citing Hanlon, 150 F.3d at 1026 (9th Cir. 1998)). As the Ninth Circuit has held, a court may not “delete, modify or substitute certain provisions” of the settlement; rather, “[t]he settlement must stand or fall in its entirety.” Hanlon, 150 F.3d at 1026 (district court approval reflected the “proper deference to the private consensual decision of the parties”). See also Jeff D. v. Andrus, 899 F.2d 753, 758 (9th Cir. 1989) (“[C]ourts are not permitted to modify settlement terms or in any manner to rewrite agreements reached by parties.”). III. Background
The settlement occurred after litigation of a number of issues.

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A. Procedural Background 1. Motion to Dismiss Granted in Part, Denied in Part
Plaintiffs filed their complaint in January 2012, pursuant to Title II of the ADA and the Rehabilitation Act. Defendants moved to dismiss the complaint for failure to state a claim. The Court granted the motion in part, with leave to amend, holding that plaintiffs could not “seek the forbidden remedy of requiring defendants to provide an adequate level of services to enable plaintiffs to obtain a competitive job.” Lane v. Kitzhaber, 841 F.Supp.2d 1199, 1208 (D. Or. 2012).
2. Class Certified In August 2012, the Court certified a class of “all individuals in Oregon with intellectual or developmental disabilities who are in, or who have been referred to, sheltered workshops” and “who are qualified for supported employment services.” Lane v. Kitzhaber, 283 F.R.D. 587, 602 (D. Or. 2012).
3. USDOJ Intervenes In May 2013, the United States sought leave to file a Complaint-in-Intervention. The Complaint-in-Intervention supports the class action allegations, and adds a new focus: the allegation that transition-aged youth with I/DD were “at risk” of being “placed in sheltered workshops.” (Complaint in Intervention at ¶¶ 44, 77, 79, ECF No. 106). The Court granted intervention, but added that it would “take a very careful look at any expansion of the claims or issues due to the intervention. (5/22/13, Tr. 23-24, ECF No. 113).
4. Class Member Intervention Denied, Class Definition Modified In April 2014, a group of class members moved to intervene as defendants. The Court denied the motion. Lane v. Kitzhaber, No. 3:12-cv-00138-ST, 2014 WL 2807701,

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at *1, 6 (D. Or. 2014). Regarding the class definition, the Court stated that in “certifying the class, this court explicitly incorporated into the class definition the requirement that class members must be qualified for supported employment services, meaning that they must be eligible for and desire those services.” (Id. at 8).
5. Mediation In July and August 2015, counsel for the parties attended several lengthy mediation sessions with a settlement judge, Magistrate Judge John Acosta. The settlement agreement resulted. B. Factual Background
1. Key Players in Oregon The class plaintiffs brought official capacity claims against the head of the Oregon Department of Human Services (DHS) and the heads of two DHS subagencies, the Office of Vocational Rehabilitation Services (“OVRS”) and the Office of Developmental Disability Services (ODDS). OVRS provides employment services for persons with a broad range of disabilities including I/DD. OVRS typically helps people get jobs and hold them. OVRS services are time limited. ODDS provides longer term employment services – and many other services – to persons with I/DD.1 The United States’ action is against the State of Oregon, and it added educationrelated issues to the case. The Oregon Department of Education (ODE) provides direction and support to Oregon public schools. The Oregon Department of Education functions under the direction and control of the State Board of Education. O.R.S. §§ 326.111, 326.300, 326.310. The State Board of Education sets policy for the

1 The actual services purchased by both DHS agencies are typically provided by provider agencies.

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administration and operation of the schools, O.R.S. § 326.011, as well as standards for public elementary and secondary schools, through administrative rules. O.R.S. § 326.051. School districts, however, are responsible for educating children. There are 197 school districts in Oregon, and 19 educational service districts. District boards control the schools in each district and are responsible for educating the children. O.R.S. § 332.072. Education service districts provide regional educational services to component school districts, O.R.S. § 334.005, including certain special education services.
2. Community Services in Oregon a. National Leadership in Residential Services
This matter also should be viewed in light of Oregon’s history of national leadership in providing services to persons with I/DD. Oregon was the first state in the country to empty its residential institutions for those with I/DD. While faulting Oregon’s employment services, even USDOJ said that Oregon “is one of a handful of states that no longer has any state-operated institutions for people with intellectual and developmental disabilities, and is one of an even smaller number of states with no state-funded, privately-operated institutions for this population.” (June 2015 Findings letter, at 2 (linked at http://www.ada.gov/olmstead/olmstead_cases_list2.htm)). Further, “Oregon has set an example for other states by demonstrating its express commitment to the benefits of transitioning individuals with intellectual and developmental disabilities into integrated, community residential settings.” Id. USDOJ also acknowledged that Oregon is a leader in “in-home” support services like home care worker and personal support

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worker programs, which enable individuals with I/DD to live in their own or their families’ homes. Id.
b. After Addressing Deinstitutionalization, Oregon Moves to Employment Services
The changes in residential services did not occur overnight. During the 1990s, Oregon intensified its efforts to close residential institutions. The Fairview Training Center facility closed in 2000, and a small facility in Eastern Oregon closed in 2006. Beginning in 2000, Oregon also engaged in a sustained effort to reduce the waiting list for a long list of community services, under a settlement of the Staley case.2 That effort was completed in 2011.
In the years before this case was filed, the focus on employment resumed, but at a difficult time. In 2008, just as the worst recession in decades began, Oregon became one of the first states to adopt an “Employment First” policy. Under the policy, “employment opportunities in fully integrated work settings shall be the first and priority option explored in the service planning for working age adults with developmental disabilities.” During the recession, of course, it was tough for anyone to find a job, regardless of disability. DHS, ODE, and Oregon public schools were also hit with steep budget cuts. Yet despite those cuts, in 2010, well before suit was filed in 2012, Oregon contracted with a Washington state consulting and advocacy group, the Washington Initiative for Supported Employment (“WiSE”), to analyze Oregon’s progress and help Oregon improve its integrated employment efforts. WiSE concluded that “both nationally and at a state level, there has been a huge loss of momentum from previous employment

2 Staley v. Kitzhaber, No. CV00-0078-ST (D. Or.)
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efforts.” Oregon made the report public, and has taken many steps since then to remedy the issues noted in the report.
3. Executive Orders In April 2013, as part of the State’s efforts, Governor Kitzhaber issued Executive Order 13-04 (“EO”), directing DHS to reduce funding for sheltered workshops and increase the provision of employment services to achieve integrated employment. In January 2015, Governor Kitzhaber issued Executive Order 15-01, which added several new terms, effectively modifying the original Executive Order. The Executive Orders have required the State to: (1) as of July 1, 2014, cease funding of vocational assessments in sheltered workshop settings; (2) as of July 1, 2015, cease funding of new placements in sheltered workshop settings; (3) on a schedule starting in 2014 and ending in 2022, provide employment services designed to help thousands of persons with I/DD to choose, get, learn, and keep jobs in integrated settings; and (4) make many changes to DHS and ODE policies, practices, and procedures to help decrease the State’s reliance on sheltered workshop services and improving the provision of employment services designed to achieve integrated employment. Executive Order 13-04 (April 2013) (http://www.oregon.gov/dhs/employment/employment-first/Documents/Executive-OrderEmployment-First.pdf). Executive Order 15-01 (July 2015) (http://www.oregon.gov/dhs/employment/employmentfirst/Documents/Executive%20Order%2015-01.pdf).
4. Contributions by the Oregon Legislature. In 2013 and 2015, the Oregon Legislature committed many millions of dollars to carry out the Executive Orders. In 2013, the Legislature took further steps to cement the

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policies in the Executive Orders, requiring DHS to prioritize integrated employment, and
codifying the Employment First policy:
The employment of individuals with developmental disabilities in fully integrated work settings is the highest priority over unemployment, segregated employment, facility-based employment or day habilitation.
O.R.S. § 427.007(b); see also O.R.S. § 427.007(a).
5. Implementation of the State Policies
The State has taken numerous steps to implement the Executive Orders and state
policy, including:
• Providing several million dollars in transformation grants, as well as technical assistance from consultants, to help sheltered workshop providers transform their business model to supporting integrated employment. Another $750,000 in grants were awarded to providers who already provided supported employment services, to help them to increase capacity;
• Adopting policies and procedures for career development planning for individuals with I/DD;
• Conducting numerous training sessions across the State for educators, VR counselors, providers, and others, designed to further the goal of supported employment;
• Establishing an Employment First unit in the Department of Human Services, in order to better coordinate the activities of three state agencies, OVRS, ODDS, and ODE, and hiring five employees to staff that unit;
• Adding eight VR counselors who specialized in helping persons with I/DD;
• Financing the hiring of an education transition network of eight specialists to help schools to assist supported employment expectations;
• Improving the collection and analysis of data regarding supported employment;
• Establishing numeric targets for the delivery of employment services to 7000 persons with I/DD;

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• Extensive rulemaking by ODDS, OVRS, and ODE and policy revisions to align each agency’s policies and practices with the goals of the Executive Order. DHS promulgated new rules and service definitions to the same end. OAR Chapter 407, Division 25. ODE adopted changes to OAR 581-015-2245, and OAR 581-015-2000, and added new OAR 581-0152930.3
These efforts are bearing fruit. The number of individuals with I/DD is declining. In the most recently reported period, the number of persons in sheltered workshops decreased from about 2713 persons in March 2014 to about 2190 or 1925 individuals received employment services in sheltered workshops, depending on the counting methodology used. (July 2015 Employment First Report, at 12, 17). (http://www.oregon.gov/dhs/employment/employment-first/Pages/data-reports.aspx). The number of persons obtaining integrated jobs is going up. In the most recent one-year period, ending July 2015, the Employment First Office reported that more than 400 persons with I/DD had obtained competitive integrated employment through OVRS, an annual increase over the previous of about 40%. (July 2015 Employment First Report, at 2). About 105 persons working in workshops also obtained integrated employment in that time frame. (Integrated Employment Plan (July 2015), at 77 (reporting baseline experience in the previous year of 105 jobs) (http://www.oregon.gov/dhs/employment/employment-first/Documents/7-615%20Integrated%20Employment%20Plan.pdf)). There also were significant upticks in the number of persons with I/DD seeking VR employment services.

3 The State will provide testimony by declaration or at the hearing to support the factual statements in this memorandum.

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6. Waiver amendments Submitted to CMS. To achieve the EO’s fundamental goals, Oregon has also sought and obtained

federal approval to change the terms of its waivers from Centers for Medicaid and

Medicare Services (“CMS”). Under a Medicaid waiver, the State receives federal

funding to provide employment-related services and receives permission to deviate from

certain federal requirements. To implement the EO and to satisfy other CMS

expectations, DHS received approval from CMS for the necessary waiver changes.

Approval occurred on September 8, 2015. (Dunbar Decl., Exs. 2, 3).

C. Settlement. On August 26, 2015, after a lengthy mediation, the parties finally reached a

settlement of plaintiffs’ claims. Key terms are:

1. “Substantial Progress:” The Agreement acknowledges that “Oregon has made substantial progress in providing employment services to and improving employment outcomes” for persons with intellectual and developmental disabilities (I/DD). The Agreement is intended to “reflect and take into account this substantial progress.” (Agreement, § I.4).

2. Continue Existing State Reforms: The settlement is built largely around what the State already set out to do. The State will continue to carry out a broad range of system reforms instituted under a State Executive Order. These reforms include “closing the front door” – ending new entries to sheltered workshops training, certifying service providers, coordinating more closely with the schools, and increasing services designed to achieve integrated employment. E.g., Executive Order 15-01, at secs. III, IV, VI, X, XI (http://www.oregon.gov/dhs/employment/employmentfirst/Documents/Executive%20Order%2015-01.pdf).

Under the Order, the State will provide employment services to 7,000 persons with I/DD, including persons in workshops and transitionaged youth. (Id. § IV). Executive Order 15-01 built upon an earlier Executive Order, EO 13-04).

3. Competitive Integrated Employment: The State will help 1,115 persons who have worked in workshops (out of about 4000 persons
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who have worked in workshops since 2012) to obtain community jobs at a competitive wage. (Id. § V.3). The 1115 job number was taken directly from a State planning document, the State’s Integrated Employment Plan. Integrated Employment Plan, at 77 metric 11 (http://www.oregon.gov/dhs/employment/employmentfirst/Documents/7-6-15%20Integrated%20Employment%20Plan.pdf). The State is agreeing to carry out the commitment that it made in its own Plan.
4. Guidance regarding 20 hours of work per week: The State will issue “guidance” that the recommended standard for services is the “opportunity” to work at least 20 hours per week, if that is what the individual wants. (Agreement, § VII.1). The State will take other such measures, but the State does not agree with some of the Statements made by plaintiffs about these provisions. 4 The Agreement controls.

4 For example, plaintiffs incorrectly state that “all jobs should include the opportunity to work 20 hours per week.” The Agreement does not use this language, and plaintiffs’ statement is incorrect. Instead, the Agreement requires that the State provide “guidance” to certain persons that the recommended standard for implementing services be “the opportunity to work at least 20 hours per week.” Not all jobs will provide this opportunity, and the Agreement does not forbid jobs that do not provide this opportunity. Moreover, the Agreement notes that this guidance will recognize “that based on individual choice, preferences, and circumstances, some people may choose to work at that level while others may not.” No persons are guaranteed a job for any specific amount of hours. The Agreement simply requires that “DHS will establish and promote a goal that all persons with I/DD who want to work in the community will be afforded an opportunity to pursue competitive employment that allows them to work the maximum number of hours consistent with their abilities and preferences.” (Id.; see also id. at § VII.3).
Plaintiffs also argue in their memorandum that plaintiffs had previously refused hours commitments in settlement discussions (Pls. Mem. In Support of Joint Motion for Final Approval, at 14). In fact, the State already had adopted regulations on hours. See OAR 411-345-0160(4)(e) (career development plans shall “[b]e completed with the goal of maximizing the number of hours spent working consistent with the interests, abilities, and choices of the individual;” see also OAR 407-025-0050(3). The State also had adopted targets in its Integrated Employment Plan on hours. See Integrated Employment Plan (2015 version), at 74, 75 (http://www.oregon.gov/dhs/employment/employmentfirst/Documents/7-6-15%20Integrated%20Employment%20Plan.pdf); Integrated Employment Plan (2013 version), at 59-60 (http://www.oregon.gov/dhs/employment/employmentfirst/Documents/Integrated%20Employment%20Plan-2013.pdf).
What the State had declined in settlement discussion was the demand by plaintiffs that the State must guarantee that a particular percentage of persons with I/DD must obtain employment averaging at least 20 hours per week. The State reserves the right to correct other issues in the papers filed on this motion.

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5. Reduce Workshop Numbers: In the next two years, the State will carry out its plan to reduce the number of persons with I/DD in sheltered workshops (from 1,926 to 1,530) and reduce the hours they work each month (from 93,530 hours to 66,100 hours). (Agreement, § IV.2). These goals are also generally drawn from the State’s Integrated Employment Plan. (Integrated Employment Plan, at 76-77, metrics 9-10 (http://www.oregon.gov/dhs/employment/employmentfirst/Documents/7-6-15%20Integrated%20Employment%20Plan.pdf)).
6. Close the Front Door. As of July 1, 2015, OVRS and ODDS may not fund new entrants into sheltered workshops. (Agreement, § IV.1).
7. Flexibility. Subject to the terms of the Agreement, the State is given flexibility to revise its Executive Order and can seek relief from the requirements in the Agreement, like the one requiring 1,115 community jobs, in the event of an economic downturn or other events. (E.g. Agreement, §§V.A.1, XV.1).
IV. The Settlement Agreement is Fair. The proposed settlement is fair to the class and should be approved. The
settlement occurred after vigorous litigation, extensive discovery, and a lengthy
mediation that led to a lengthy, complex settlement that will be carried out over the next
several years. The litigation involved substantial risk to both sides, and averted
substantial further costs. Several government participants actively participated in the
litigation and in the settlement. The objections made are few in number.
In this case, as a result of the intervention of the United States, a second target
population has been added to this settlement: persons of transition age who are not
working in a sheltered workshop. (Agreement, § III.1.b; see also Executive Order 15-01,
§ II.1.b.). Many of these persons never have worked in a sheltered workshop. Though
the settlement is fair to this group, in reviewing the settlement here, the Court should
examine the fairness of the settlement to the certified class.

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A. The Risk was substantial to both sides. Plaintiffs base their case on the ADA and on the Supreme Court’s decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S. Ct. 2176 (1999). Defendants based their defense on Olmstead. There was risk to both sides in this first of its kind case.
1. Olmstead Issues. In Olmstead, two mentally disabled plaintiffs were patients confined in the psychiatric unit of a Georgia state hospital. Once their conditions stabilized, their treatment providers found that the plaintiffs’ needs could be met in a community-based treatment. They sued, arguing that their continued confinement violated the ADA. Id. at 593. The Supreme Court held that “unjustified institutional isolation of persons with disabilities is a form of discrimination.” Id. at 600. The Court concluded that states should release patients to community-based treatment when (1) the State’s treatment professionals conclude that community placement is appropriate; (2) the individuals do not object to community placement; and (3) placement in the community can be reasonably accommodated, given the resources of the state and needs of other intellectually disabled individuals. Id. at 607. The Supreme Court limited its holding, in two basic ways. First, the Court ratified the fundamental alteration defense, making clear that a state’s responsibility to provide community based treatment “is not boundless.” Id. at 603. The Court of Appeals in Olmstead had incorrectly permitted a cost-based defense “only in the most limited of circumstances. The Supreme Court rejected this individual approach, holding that this construction was “unacceptable for it would leave the State virtually defenseless once it

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is shown that the plaintiff is qualified for the service or program she seeks.” Id. Instead, more “leeway” was due to state officials. Id.
The Court identified two ways for a state to prove a fundamental alteration defense. Id. at 605, 605-606. One, a state may show that “in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.” Olmstead, 527 U.S. at 604. Two, a state may also “demonstrate that it ha[s] a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that move[s] at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated [ ].” Id. at 605-606.
As the Ninth Circuit has confirmed, Olmstead instructs courts “to be sympathetic to fundamental alteration defenses, and to give states ‘leeway’ in administering services for the disabled.” Arc of Washington State v. Braddock, 427 F.3d 615, 620-22 (9th Cir. 2005) (rejecting challenge to cap limiting the number of persons receiving home and community based services under Medicaid program) (citations omitted). Thus, “despite the integration mandate . . . , we have held that we normally ‘will not tinker with’ comprehensive, effective state programs for providing care to the disabled.” Id. This is consistent with principles of federalism. For example, in ruling on the enforceability of consent decrees, the Supreme Court has stated that when a decree “mandates the State, through its named officials, to administer a significant federal program, principles of federalism require that state officials with front-line responsibility for administering the program be given latitude and substantial discretion.” Frew v. Hawkins, 540 U.S.431,

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442 (2003) (Eleventh Amendment did not bar enforcement of decree). Further, “[a]s public servants, the officials of the State must be presumed to have a high degree of competence in deciding how best to discharge their governmental responsibilities.” (Id.).
Second, the Court in Olmstead limited its holding in another significant way, explaining that it was not imposing a “standard of care” on states, and that claims challenging “the level of benefits” provided by states are not cognizable under the ADA:
We do not in this opinion hold that the ADA imposes on the States a “standard of care” for whatever medical services they render, or that the ADA requires States to “provide a certain level of benefits to individuals with disabilities.” We do hold, however, that States must adhere to the ADA's nondiscrimination requirement with regard to the services they in fact provide. Id. at 603 n.14 (internal citations omitted). As this Court has recognized, “Olmstead admonishes that a disability discrimination claim may not be premised upon allegations that defendants failed to meet a particular standard of care with regard to the services provided or upon a request for a particular level of benefits .... Thus, a claim survives only if it truly alleges a ‘discriminatory denial of services' and must be dismissed if it instead concerns the ‘adequacy’ of the services provided.” Lane v. Kitzhaber, 841 F. Supp. 2d 1199, 1207 (D. Or. 2012). “Accordingly, claims by qualified individuals who both meet the eligibility requirements for a particular program and are willing participants may properly allege a claim for a denial of the services provided by a program, but not a claim for providing inadequate services.” Id., citing Buchanan v. Maine, 469 F.3d 158, 174-75 (1st Cir. 2006). In determining whether the settlement is sufficient, the Court should consider these limits that the Supreme Court placed on the plaintiffs’ case and the deference that should be afforded the State.

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In this case, Oregon’s Olmstead plan was stated in two executive orders, a State integrated employment plan, and other documents. The State took many actions to carry out its plan and to address plaintiffs’ complaints, including the adoption of numerous regulations, hiring more than 15 employees whose jobs were devoted to helping coordinate or provide supported employment services, training, and millions of dollars of additional funding, including state grants to sheltered workshop providers to help them transform their business model to support higher levels of community employment. The commitment was a serious one, adding to the litigation risk faced by plaintiffs.
Though plaintiff and their experts criticized the progress by the State, they frequently ignored the fact that Oregon launched its Employment First policy in 2008, a very bad time to launch a jobs program. Recent employment figures show that Oregon’s employment efforts are bearing fruit, posing further risk to plaintiffs.
In considering risk, the Court should also consider the standard for any injunction that would have issued in this case. That standard is heightened because class plaintiffs seek to enjoin state officials. Plaintiffs therefore must “contend with the well-established rule that the Government has traditionally been granted the widest latitude in the dispatch of its own internal affairs.” Midgett v. Tri-Cnty. Metro. Transp. Dist. of Oregon, 254 F.3d 846, 851 (9th Cir. 2001). “This ‘well-established rule’ bars federal courts from interfering with non-federal government operations in the absence of facts showing an immediate threat of substantial injury.” Id. “Any injunctive relief awarded must avoid unnecessary disruption to the state agency’s ‘normal course of proceedings.”’ Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir. 2001) (citing O’Shea v. Littleton, 414 U.S. 488, 501 (1974)). If an injunction issues against the state, the Court must “heel close to the

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identified violation and respect the interests of state and local authorities in managing their own affairs, consistent with the Constitution.” Gilmore v. People of the State of California, 220 F.3d 987, 1005 (9th Cir. 2000).
2. Federal support for workshops. The reasonableness of the State’s efforts, and the risk to the parties, should also be viewed in light of the fast changing federal policy on workshops. Federal law and policy has long supported workshops. Though federal policy has turned against workshops in the past few years, Oregon has moved quickly to deal with that change.
a. The FLSA. Sheltered workshops are permitted by a federal law, the Fair Labor Standards Act. Section 14(c) of the FLSA allows exemptions from the federal minimum wage for workers whose productivity is impaired by disability. 29 U.S.C. § 214 (c). Under Section 14(c), “to the extent necessary to prevent curtailment of opportunities for employment,” the Secretary of Labor may permit payment of wages lower than the otherwise applicable federal minimum to persons “whose earning or productive capacity is impaired by age, physical or mental deficiency, or injury.” Id. The Secretary does so by issuing issues certificates to employers – sheltered workshop operators -- under which wages are set at a level commensurate with their productivity and reflective of rates found to be prevailing in the locality for essentially “the same type, quality, and quantity of work.” 29 U.S.C. § 214 (c)(1)(B); see also 29 C.F.R. Part 525. The U.S. Department of Labor reports that its “Solicitor's Office has reviewed the ADA and its legislative history and has concluded that the ADA does not nullify the provisions of section 14(c). The ADA affords protection to individuals who, with or without reasonable

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accommodation, can perform the essential functions of the job. An employer is not required to lower quality or production standards to make an accommodation.”5
b. JWOD. A 1971 law, the Javits-Wagner-O’Day Act (JWOD), even provides for federal financial support for sheltered workshops, by encouraging federal agencies to purchase goods and services from them. 41 U.S.C. §§ 8501-8506; 41 C.F.R. Part 51. The JWOD Act provides for the purchase by federal agencies of goods and services from nonprofit agencies that employ persons who have severe disabilities. 41 U.S.C. § 8504. Regulations confirm that it “is the policy of the Government to increase employment and training opportunities for persons who are blind or have other severe disabilities through the purchase of commodities and services from qualified nonprofit agencies employing persons who are blind or have other severe disabilities.” 41 C.F.R. § 51-1.1. A qualified non-profit agency is one that “employs persons with severe disabilities (including the blind) for not less than 75 percent of the work-hours of direct labor required to furnish such commodities or services.” 41 C.F.R. § 51.1-3. A federal agency, known as AbilityOne, carries out the JWOD. In 2014, AbilityOne agreed with a report that said the AbilityOne program is “lagging behind the national policy of full integration and community inclusion.” In 2015, several workshops

5 U.S. Department of Labor Wage and Hour Division Field Operations Handbook, Chapter 64: Employment of Workers with Disabilities at Special Wages under Section 14(c), at Section 64a02: Impact of the Americans with Disabilities Act on Section 14(c), http://www.dol.gov/whd/FOH/ch64/64a02.htm.

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in Oregon are listed on AbilityOne’s website as qualified nonprofit agencies that can

receive federal support.6

c.

The ADA.

The passage of the ADA in 1989 was not intended to end sheltered workshops.

The legislative history makes this clear. For example, a Senate Report on the ADA

states: "[T]his legislation in no way is intended to diminish the continued viability of

sheltered workshops and programs implementing the Javits-Wagner[-]O'Day Act."

Sen. Rep. No. 101-116, at 30 (1989). The legislative history also notes, however, that if

persons wish integrated opportunities, states should provide them.

d. Medicaid. For decades, another source of federal support of workshops has come in the form

of Medicaid payments for services at the workshops. The National Disability Rights

Network, a parent association of agencies, including Disability Rights Oregon and similar

organizations, complained in 2012 that “states are still able to access money to facilitate

the continuation of sheltered settings for individuals with disabilities….”.7 NDRN also

complained that the current Social Security law does not promote employment

opportunities that are integrated and in community settings:

The funding for segregated employment options continues partially because § 1915(c)(5)(b) of the Social Security Act provides that states may request funding for prevocational services and supported employment. However, there is absolutely nothing in the federal rules and
6 AbilityOne Network of Nonprofit Agencies, available at http://www.abilityone.gov/ abilityone_network/documents/AbilityOne_nonprofit_agencies_2013.pdf.
7 Nat'l Disability Rts. Network, Beyond Segregated and Exploited: Update on the Employment of People with Disabilities (2012), at 16, available at http://www.ndrn.org/images/Documents/Resources/Publications/Reports/Beyond_ Segregated_and_Exploited.pdf [hereinafter Beyond Segregated and Exploited].

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regulations that require prevocational services or supported employment be provided in community-based or integrated settings. In fact, the sole limit is that such services cannot otherwise be available to the person seeking services under a different statutory scheme like the Rehabilitation Act of 1973, as amended or the Individuals with Disabilities Education Act (IDEA).8
3. The changes in federal policy regarding sheltered workshops. Though federal policy change was slow to come, it has picked up speed in the
past few years, as evidenced by this first of its kind suit. a. RSA “Counting” Rule
In 2001, the Rehabilitation Services Administration, which supervises state
vocational rehabilitation agencies, issued new regulations for measuring whether a
placement by a state vocational rehabilitation facility would be counted as a successful
placement. Under the new regulations, the placement would need to be in an integrated
setting or other approved setting. 34 C.F.R. §§ 361.81, 361.88. These settings did not
include sheltered workshops. As a result, state VR agencies could not count such a
placement towards their placement quotas. This rule did not, however, prohibit
placements in workshops, and it only applied to state VR agencies, not to other state
agencies that provided employment services to persons with I/DD. In fact, RSA explained at the time that this change would not close down workshops,9 and that
“[e]mployment in a sheltered setting is a legitimate and valuable employment option for individuals with disabilities.”10 In fact, while RSA regulations do not allow placements

8 Id. at 16-17, citing 42 U.S.C. § 1915 (c)(5)(b). The Social Security Act contains the laws regulating Medicaid.
9 34 C.F.R., Appendix A to Part 361—Questions and Answers, http://www.ecfr.gov/cgi-bin/text-idx?rgn=div6&node=34:2.1.1.1.7.5
10 Id.

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in workshops to count towards quotas, the RSA regulations still permit “extended employment,” meaning placement in a sheltered workshop. Id.
b. USDOJ Statement The next significant announcement occurred ten years later. In June 2011, USDOJ issued its “Statement on the Enforcement of the Integration Mandate” (“USDOJ Statement”), which took the position that Olmstead and the ADA applied to sheltered workshops.11

11 http://www.ada.gov/olmstead/q&a_olmstead.htm. The Statement is farranging, and expresses opinions on whether sheltered workshops are integrated, whether States may consider budget problems, and even how the Supreme Court’s Olmstead decision should be interpreted. To the extent the Court needs to consider the Statement in these proceedings, the Court should give little deference to it. An agency’s interpretation of a statute receives varying levels of deference depending, in part, on the form the interpretation takes. United States v. Mead Corp., 533 U.S. 218, 229 (2001). If the agency’s opinion is embodied in a “legislative rule”—that is, a formal rule promulgated after opportunities for notice and comment—it is likely entitled to so-called Chevron deference. Id.; Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000). An agency may also offer its opinion in myriad forms apart from legislative rules, such as “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. § 553(b)(A). Such rules do not require any formal comment-andnotice process. Perez v. Mortgage Bankers Association, 135 S. Ct. 1199, 1200-01 (2014). “But that convenience comes at a price: Interpretive rules ‘do not have the force and effect of law and are not accorded that weight in the adjudicatory process.’” Id. The Statement at issue here, an informal “Q&A” type document, is an interpretive rule. As far as defendants are aware, it underwent no formal rule-making procedures and was not the result of a notice-and-comment process. Moreover, there is absolutely no indication that the Statement was intended to have the force of law. The Statement is inconsistent with some aspects of Olmstead and Ninth Circuit precedent. See Buren v. Colvin, No. 6:12-CV-01502-SI, 2013 WL 4782171, at *5 (D. Or. Sept. 5, 2013) (in another setting, noting that “this court is bound by Ninth Circuit precedent” even where an agency advances a different interpretation). The Statement should also be considered less persuasive because its timing and content suggest that it was issued in anticipation of litigation.

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c. CMS Bulletin In September 2011, just after plaintiffs’ counsel had written their demand letter to Oregon, the Centers for Medicare and Medicaid Services (“CMS”) issued a bulletin that addressed sheltered workshops and integrated employment. CMS provides much of the federal support for sheltered workshops through the Medicaid program. The CMS bulletin stated that CMS would not allow Medicaid funds to be used for “vocational services” delivered in sheltered settings. However, CMS continued to permit the use of “pre-vocational” services in sheltered settings “for the purpose of furthering habilitation goals such as attendance, task completion, problem solving, interpersonal relations and safety.” (Id. (emphasis in original).) “Updates to the §1915 (c) Waiver Instructions and Technical Guide regarding employment and employment related services” (September 2011), (https://downloads.cms.gov/cmsgov/archiveddownloads/CMCSBulletins/downloads/CIB-9-16-11.pdf).
d. CMS “HCBS” rule. In January 2014, two years after this action was filed, CMS issued a regulation that will directly impact sheltered workshops, the home and community based settings (“HCBS”) rule. Proposed versions of the rule had only addressed residential settings. The final rule, issued in January 2014, changed course by also including non-residential settings, including employment. The HCBS rule requires that employment settings must be in an “integrated” setting and requires states to submit transition plans “to achieve compliance with this section.” 42 C.F.R. § 441.710 (a)(1)(i), (2), (3). States were given until 2019 to comply. According to CMS, “[w]hile our expectation is that states would transition to compliance with this final rule in as brief a

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period as possible, we will allow states to propose a transition plan that encompasses a period up to five years after the effective date of the regulation if the state can support the need for such a period of time. States are expected to demonstrate substantial progress toward compliance throughout any transition period.” Fed. Reg. Vol. 79, No. 11, at 2948, 2980, available at http://www.gpo.gov/fdsys/pkg/FR-2014-01-16/pdf/201400487.pdf.
Services to those with I/DD are costly, and the cost of those services is already growing faster than the overall state budget growth. Oregon has already closed the front door to sheltered workshops as of July 1, 2015, and Oregon expects that the CMS rule will further impact the ability of sheltered workshops to continue to exist unless they choose to transform and provide other, Medicaid-fundable services.
e. WIOA. Yet another change in federal law occurred in 2014, two and-a-half years after this action was filed. On July 22, 2014, President Obama signed the Workforce Innovation and Opportunity Act, H.R. 803, Pub. L. 113-128 (“WIOA” or the “workforce law”). WIOA includes numerous provisions regarding vocational rehabilitation (“VR”) services, sheltered workshops, supported employment, informed choice, youth transition services, integrated employment, and performance metrics. WIOA permits the payment to youth of subminimum wages, which occurs at many workshops, provided that a long list of informed choice requirements are met. WIOA § 458(a). WIOA also imposes another set of informed choice obligations for any individual paid a subminimum, “regardless of age . . . .” WIOA § 458(a).

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Plaintiffs did not allege any violation of WIOA. The United States also did not allege a WIOA violation. The Settlement Agreement does not give any right to enforce WIOA. (Agreement, § XVII.4). Nevertheless, WIOA is yet another indication of the rapid change in federal policy, which Oregon seeks to follow.
f. Why does the legal history matter? Federal support and the changes on federal policy makes added risk to this case. Sheltered workshops are a creation of federal law. They were regarded by many as important to the effort to move individuals out of residential institutions. The federal thinking has changed dramatically. Federal law and policy can change quickly, but it is difficult for states to implement those changes right away. The settlement is a reasonable compromise that seeks to accommodate many competing needs, including budget limitations. B. Expense, complexity, and likely duration of further litigation These factors also favor settlement approval. Trial was set for a month. Completing trial in a month would have been difficult – plaintiffs had named 20 expert witnesses and defendants had named about half that many, and many state employees were also prepared to provide opinion testimony. The cost to the State was particularly acute given the expansion of the case after intervention by the United States. The class plaintiffs had complained about DHS and had named DHS officials, but the United States added issues involving the Oregon Department of Education. And no matter who won at trial, an appeal was likely, adding further costs.

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C. Experience and views of counsel. Lead counsel for the parties are experienced lawyers who believe the settlement is

a fair and reasonable compromise and is fair to the class.

D. Presence of Governmental Participants. The presence of a governmental participant favors settlement. In this case, there

were several, including the U.S. Department of Justice, the Oregon Department of

Justice, and several state agencies, all of who participated in and attended the settlement

discussions.

E. Reaction of the class members to the proposed settlement. Thus far, less than one percent of the class have sent written objections. The class

has about 4000 persons in it, and less than 40 persons have sent objections. The

objections focus primarily on two areas, which are addressed below.

1. The “Closing the Front Door” Feature is Fair and Reasonable. Some objections express concern about the requirement in the settlement that,

beginning July 1, 2015, bars DHS from paying for services at a sheltered workshop for

newcomers. (Agreement, § IV.1). This requirement has been a feature of both Executive

Orders and has never been a point of controversy in the parties’ discussions. Other states

have taken similar steps, including Vermont, Massachusetts, and Washington. CMS

recently issued policy guidance that permits states to take this step. CMS states that

“using their transition plan, a state may establish that certain settings currently in use in a

home and community-based services waiver may continue within the waiver, as long as

they will be able to meet the minimum standard set in the rule on or before the end of the

transition period, but the state may suspend admission to the setting or suspend new

provider approval or authorizations for those settings.” (Dunbar Decl., Ex. 4 at 11

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(emphasis added).). This term is a fair one, particularly given the changes in federal
policy discussed above.
2. The Reductions in Workshop Numbers are Fair.
Some objections also express concern about metrics in the agreement that require
that the total number of hours worked and persons with I/DD working in sheltered
workshops be reduced. These terms also help accommodate the conflicting demands
placed on the state by changing federal laws and policies.
3. The jobs guarantee is fair to plaintiffs.
Though the Court need not reach the issue, by requiring 1,115 job placements, the
settlement goes beyond what the law requires. This further supports settlement.
In the Court’s May 2012 opinion on defendants’ motion to dismiss, the Court
denied the motion to dismiss the ADA claims in this case, but did dismiss claims that the
State was required to provide jobs. The Court noted that “some of the allegations in the
Complaint go beyond the clarification offered by plaintiffs at the hearing, that they were
not seeking a guarantee of jobs.” As the Court pointed out, those further allegations:
“seek the forbidden remedy of requiring defendants to provide an adequate level of employment services to enable plaintiffs to obtain a competitive job. In particular, plaintiffs allege that defendants are violating Title II of the ADA and the Rehabilitation Act by failing “to offer an adequate array of integrated employment and supported employment services” *** and “to provide them with supporting employment services that would enable them to work in integrated employment settings” ***. These allegations are subject to dismissal because they demand that defendants provide a competitive job in the community and a certain standard of care or level of benefits. Instead, to comply with the scope of plaintiffs’ claims as described at the hearing, these allegations (and other related allegations) must be amended to clarify that defendants are violating Title II of the ADA and the Rehabilitation Act by denying employment services to plaintiffs for which they are eligible with the result of unnecessarily segregating them in sheltered workshops.”

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Lane v. Kitzhaber, 841 F.Supp.2d 1199, 1208 (emphasis added).
In a later ruling, the Court noted that that plaintiffs had not said they were seeking
percentage outcomes, and that if defendants lost at trial, any issue over job outcomes
might arise if there was a dispute over defendants’ compliance with any injunction. Lane
v. Kitzhaber, No. 3:12–cv–00138–ST, 2013 WL 6798470 at *2 (D. Or. 2013) (denying
motion for leave to file amended answer). The Court said that outcomes might be used to
measure the success of the services offered, noting that the Executive Order requires
DHS to “collect and report data” similar to the criteria proposed by plaintiffs. The Court
added that if it found a violation and if there was a dispute over compliance with the
injunction, there could be a dispute over whether services are consistent with “integration
criteria,” such as job placement outcomes.
“The specific parameters of any injunctive relief ordered by the court will be determined by the scope of violations established at trial. Accordingly, whether the appropriate form of relief ever becomes an issue will depend upon the evidence admitted at trial, the Court’s findings of fact, and whether there is a dispute over defendants' compliance with the injunction. If plaintiffs and the United States prevail, a dispute could conceivably arise over whether the supported employment services being provided are, in fact, allowing individuals to receive services in the most integrated setting appropriate to their needs. Then — and only then — would the court need to consider whether, and to what extent, supported employment services provided under the injunction are consistent with certain integration criteria. Those integration criteria may or may not include job placement outcomes. At this juncture, however, there is no immediate, concrete dispute over this issue.” Id.
By providing 1,115 jobs, the settlement is fair to the class.
V. Conclusion
The proposed settlement is fair to the class and should be approved. Plaintiffs
made significant compromises in the settlement of the case, but the settlement as a whole
remains fair to the class. Even if the case went to a full trial, it is unlikely that plaintiffs

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would achieve a result that mandated the placement of 1,115 class members into
integrated jobs. The settlement is also fair to those who want to maintain the status quo
because, as a result of federal regulations, the status quo would not be maintained with or
without the settlement.
Dated this 16th day of November, 2015.
ELLEN ROSENBLUM, ATTORNEY GENERAL FOR THE STATE OF OREGON
MARKOWITZ HERBOLD PC
By: s/ John J. Dunbar John J. Dunbar, OSB #842100 JohnDunbar@MarkowitzHerbold.com Keith McIntire, OSB #126210 KeithMcIntire@MarkowitzHerbold.com Lauren Blaesing, OSB #113305 LaurenBlaesing@MarkowitzHerbold.com Telephone (503) 295-3085 Special Assistant Attorneys General DEPARTMENT OF JUSTICE Christina L. Beatty-Walters, OSB #981634 Tina.BeattyWalters@doj.state.or.us Telephone (972) 673-1880 Senior Assistant Attorney General Trial Attorney Of Attorneys for Defendants
490684

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 </s> Case 3:12-cv-00138-AC Document 382 Filed 01/27/16 Page 1 of 17

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

PAULA LANE, et al, on behalf of themselves and all others similarly situated, and
UNITED CEREBRAL PALSY OF OREGON AND S.W. WASHINGTON,
Plaintiffs,
v.
KATE BROWN, Governor of the State of Oregon, et al,
Defendants.

Case No. 3:12-cv-00138 -ST
AMENDED ORDER APPROVING CLASS ACTION SETTLEMENT

UNITED STATES OF AMERICA, Plaintiff-Intervenor,
v. STATE OF OREGON,
Defendant. STEWART, Magistrate Judge:
Plaintiffs, eight individuals with intellectual and developmental disabilities (“I/DD”) and one institution, filed this action on January 25, 2012, to challenge the State of Oregon’s overreliance on segregated sheltered workshops for employment services based on Title II of the

1 – AMENDED ORDER

Case 3:12-cv-00138-AC Document 382 Filed 01/27/16 Page 2 of 17
Americans with Disabilities Act of 1990 (“ADA”), 42 USC §§ 12131-34, Section 504 of the Rehabilitation Act of 1973, 29 USC § 794(a), and Olmstead v. L.C. ex rel. Zimring, 527 US 581 (1999). On August 6, 2012, the court certified a class of “all individuals with intellectual and developmental disabilities in Oregon who are in, or have been referred to, sheltered workshops,” and who are “qualified for supported employment services, meaning that they must be eligible for and desire those services.” See Lane v. Kitzhaber, No. 3:12-cv-00138-ST, 2014 WL 2807701, at *8 (D Or June 20, 2014). On May 24, 2013, the United States filed its Complaint in Intervention adding a second target population of transition-aged youth with I/DD who were “at risk” of being “placed in sheltered workshops.”
After almost four years of litigation, extensive fact and expert discovery, and prior unsuccessful efforts to resolve the dispute, the parties engaged in lengthy settlement negotiations a few months before trial and signed a Proposed Settlement Agreement (“Agreement”). On September 17, 2015, the court preliminarily approved the Agreement and set a date for a fairness hearing. Pursuant to the court’s Order, the parties gave notice to plaintiff class members and provided extensive outreach and education about the Agreement to class members and families throughout the state. Before the fairness hearing, 32 persons, not all of whom are class members, filed objections to or comments on the Agreement.
On November 13, 2015, the parties filed a Joint Motion for Final Approval of Proposed Settlement Agreement (docket #352). At the fairness hearing held on December 7, 2015, the court heard argument from the parties and received testimony from 12 witnesses (four experts, seven persons with I/DD (including two plaintiffs) and one parent of a person with I/DD) and two dissidents.1 For the following reasons, the Joint Motion is granted. ///
1 Based on the parties’ objections, the court has not considered objections received after the fairness hearing.
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BACKGROUND Prior to entering into the Agreement, the parties fought a number of battles in this Court while dealing with several regulatory changes. Defendants initially moved to dismiss the Complaint on multiple grounds, including the argument that Title II’s integration mandate and Olmstead did not apply to sheltered workshops or other nonresidential services. The Court disagreed and held that the ADA’s integration mandate applied to nonresidential employment services, that “employment claims” were cognizable under Title II of the ADA, and that claims for “integrated employment services” properly fell within Title II. Lane v. Kitzhaber, 841 F Supp2d 1199, 1202, 1205 (D Or 2012). Defendants also claimed that the Complaint impermissibly sought to ensure a “level of benefits.” The court held that plaintiffs’ overall claims did not seek a specific level of benefits, but instead sought “to have defendants reallocate their available resources in a way that does not unjustifiably favor segregated employment in sheltered workshops” in lieu of integrated employment services. Id at 1207. However, the court dismissed the Complaint with leave to re-file because a few allegations could be read as seeking an impermissible “level of benefits.” Id at 1208. Plaintiffs then filed their First Amended Complaint on May 29, 2012. After the court certified a class, the United States notified the State that it was in violation of Title II’s integration mandate with regard to employment services for persons with I/DD in sheltered workshops, as well as for youth and other individuals at risk of sheltered workshop placement, and had authorized a lawsuit to redress this discrimination. The United States and plaintiffs met with defendants for approximately six months to attempt to resolve their respective claims. When those attempts were ultimately unsuccessful, the United States obtained permission from the Court to intervene in this action.
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On April 10, 2013, Governor Kitzhaber issued Executive Order 13-04 to prohibit funding for sheltered workshop placements after July 1, 2015 (“closing the front door”), as well as funding for vocational assessments within sheltered workshops after July 1, 2014, and to increase the provision of employment services to achieve integrated employment. Although the Order proposed various actions to expand employment services, it did not include any commitment to expand jobs in integrated settings, but explicitly noted that:
Nothing in this Order is intended to or does create enforceable rights that do not already exist under current state of federal law. The terms of this Order do not provide a right to any person to individually claim that he or she has not received services under a state or federal statute or regulation. Executive Order 13-04, p. 15. Over the next two years, the State developed numerous additional planning documents, including two versions of a lengthy Integrated Employment Plan (“IEP”),2 a Quality Assurance Plan, a Capacity Building and Training and Technical Assistance Strategic Plan, an Outreach and Awareness Strategic Plan, various policy transmittals and procedures, statements, regulations, and initiatives – all of which the State designated as part of this plan. The parties held a brief mediation in July 2013 which was unsuccessful. On June 20, 2014, the court denied intervention by seven individuals and their families who sought, with the State’s support, to decertify the class. On September 5, 2014, defendants moved to stay the trial and all other case deadlines for one year, citing their need to comply with the federal Workforce Innovation and Opportunity Act (“WIOA”) and new regulations by the Centers for Medicare and Medicaid Services (“CMS”). These provisions placed new requirements and restrictions on a state’s ability to fund segregated
2 Oregon Dep’t of Human Servs., Integrated Employment Plan Individuals with Intellectual and Developmental Disabilities (July 6, 2015), available at http://www.oregon.gov/dhs/employment/employment-first/Documents/7-615%20Integrated%20Employment%20Plan.pdf.
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Case 3:12-cv-00138-AC Document 382 Filed 01/27/16 Page 5 of 17
services under Medicaid home and community-based services waivers. The court extended most deadlines by four months and reset the trial for December 1, 2015.
On February 2, 2015, Governor Kitzhaber issued Executive Order 15-013 which superseded the previous Executive Order 13-04 and expanded some of its goals, including increasing the number of people who would receive “employment services” from 2,000 to 7,000 by 2022.
From late 2013 to early 2015, the parties engaged in extensive fact discovery which involved taking over 45 fact depositions and producing and reviewing millions of pages of documents from plaintiffs, the United States Department of Justice, three other federal agencies, other States, and non-profit agencies across the United States in the field of supported employment. Disputes over discovery and document production were the subject of over a dozen in-person and telephonic hearings before the court. The parties also exchanged initial and rebuttal reports from approximately 43 experts – 21 from plaintiffs and the United States and 22 from defendants.
Following expert disclosures, the parties engaged in settlement talks before Magistrate Judge John Acosta over 14 days in June, July, and August 2015, resulting in the Agreement.
SUMMARY OF AGREEMENT The Agreement converts all of the structural reforms to Oregon’s employment service system identified in Executive Order 15-01 into binding and enforceable legal obligations, and significantly expands on those requirements by establishing new systemic requirements, firm implementation dates, and integration criteria for the provision of supported employment services. The key terms are as follows:
3 State of Or., Office of the Governor, Executive Order No. 15-01 (Feb. 2, 2015), available at http://www.oregon.gov/dhs/employment/employment-first/Documents/Executive%20Order%2015-01.pdf.
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1. The Agreement acknowledges that “Oregon has made substantial progress in providing employment services to and improving employment outcomes” for persons with I/DD. The Agreement is intended to “reflect and take into account this substantial progress.” Agreement, § I.4.
2. The settlement is built largely around what the State already set out to do. The State will continue to carry out a broad range of system reforms instituted under Executive Orders 13-04 and 15-01. These reforms include “closing the front door” (ending new entries) to sheltered workshops, training, certifying service providers, coordinating more closely with the schools, and increasing services designed to achieve integrated employment. Under Executive Order 15-01, the State will provide employment services to 7,000 persons with I/DD, including persons in workshops and transition-aged youth.
3. The State will help 1,115 persons who have worked in sheltered workshops (out of about 4,000 persons who have worked in sheltered workshops since 2012) to obtain community jobs at a competitive wage. Agreement, § V.3. That number was taken directly from the State’s existing IEP.
4. The State will issue “guidance” that the recommended standard for services is the “opportunity” to work at least 20 hours per week, if that is what the individual wants. Agreement, § VII.1
5. In the next two years, the State will carry out its plan to reduce the number of persons with I/DD in sheltered workshops (from 1,926 to 1,530) and reduce the hours they work each month (from 93,530 hours to 66,100 hours). Agreement, § IV.2. These goals are also generally drawn from the State’s existing IEP.
6. As of July 1, 2015, the Office of Vocational Rehabilitation Services and Office of Developmental Disabilities Services may not fund new entrants into sheltered workshops. Agreement, § IV.1.
7. Subject to the terms of the Agreement, the State is given flexibility to revise Executive Order 15-01 and can seek relief from the requirements in the Agreement, such as the one requiring 1,115 community jobs, in the event of an economic downturn or other events. E.g., Agreement, §§ V.A.1, XV.1.
///
///
///
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LEGAL STANDARD Unlike the settlement of most private civil actions, a class action settlement requires approval by the district court. FRCP 23(e). “The primary concern of this subsection is the protection of those class members, including the named plaintiffs, whose rights may not have been given due regard by the negotiating parties.” Officers for Justice v. Civil Serv. Comm’n of the City and Cnty. of San Francisco, 688 F2d 615, 624 (9th Cir 1982). “[T]here is a strong judicial policy that favors settlements, particularly where complex class action litigation is concerned.” In re Syncor ERISA Litig., 516 F3d 1095, 1101 (9th Cir 2008) (citations omitted); see also Officers for Justice, 688 F2d at 625 (“voluntary conciliation and settlement are the preferred means of dispute resolution”). However, before granting final approval to a class action settlement, the court must find that it is “fundamentally fair, adequate, and reasonable.” Hanlon v. Chrysler Corp., 150 F3d 1011, 1026 (9th Cir 1998), citing Class Plaintiffs v. City of Seattle, 955 F2d 1268, 1276 (9th Cir 1992). “It is the settlement taken as a whole, rather than the individual component parts, that must be examined for overall fairness.” Id, citing Officers for Justice, 688 F2d at 628. The assessment of fairness includes the balancing of several factors, including but not limited to:
the strength of plaintiffs’ case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement. Id (citations omitted). Not all factors will apply to every class action settlement, and certain factors may predominate depending on the nature of the case. Torrisi v. Tucson Elec. Power Co., 8 F3d 1370, 1376 (9th Cir 1993). “The degree of importance attached to each factor is determined by
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Case 3:12-cv-00138-AC Document 382 Filed 01/27/16 Page 8 of 17
the nature of the claim, the type of relief sought and the facts and circumstances of each case.” Davis v. City & Cnty. of San Francisco, 890 F2d 1438, 1444-45 (9th Cir 1989).
ANALYSIS The Agreement in this case meets the legal standard for final court approval. As discussed at length in the parties’ memoranda, each factor of the fairness analysis favors settlement on the terms negotiated by the parties. I. Strength of Plaintiffs’ Case A key factor in considering the reasonableness of a settlement “is the strength of the plaintiffs’ case on the merits balanced against the amount offered in the settlement.” Nat’l Rural Telecomms. Coop. v. DIRECTV, Inc., 221 FRD 523, 526 (CD Cal 2004) (internal quotation marks and citation omitted). However, the court’s role is not “to reach any ultimate conclusions on the contested issues of fact and law which underlie the merits of the dispute, for it is the very uncertainty of outcome in litigation and avoidance of wasteful and expensive litigation that induce consensual settlements.” Officers for Justice, 688 F2d at 625. Plaintiffs seek injunctive relief based on alleged violations of Title II of the ADA and Section 504 of the Rehabilitation Act. Plaintiffs had a reasonable likelihood of prevailing on those claims at trial, given the integration mandate of Olmstead applicable to non-residential settings and the State’s undue reliance on segregated employment in the past. Although the State had promulgated two Executive Orders and new rules in response to this case and changing federal law and policy, plaintiffs’ experts concluded that there were still significant deficiencies in the State’s employment service system for persons with I/DD in sheltered workshops. Thus, this factor favors approval. ///
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II. Risk and Expense of Further Litigation If they did not settle, the parties faced a four week trial scheduled to begin on
December 1, 2015. Although they had already incurred significant litigation expenses, the cost of preparing for and handling the trial with a number of expert witnesses on both sides would have been enormous. And no matter who won at trial, an appeal was likely, adding further costs.
Furthermore, despite the strength of their case, plaintiffs faced an uncertain outcome, given the State’s “fundamental alteration defense” and its implementation of Executive Orders designed to comply with Olmstead with revisions occurring up to the eve of trial. Even if plaintiffs prevailed, it would likely take several months before the court issued a judgment. In addition, the precise nature and scope of relief ordered by the court may not have been as comprehensive or detailed as contained in the Agreement and could have taken potentially many more years to implement. Thus, this factor strongly favors approval. III. Risk of Maintaining Class Action Status Through Trial
After the court denied intervention to some family members and repudiated any challenge to the class definition or its certification order, defendants did not renew their efforts to decertify the class. However, the State could have raised the issue in the future. The Agreement avoids any such risk and immunizes the class certification order from attack by defendants. On balance, this factor favors approval. IV. Amount and Benefits of the Agreement
“[T]he critical component of any settlement is the amount of relief obtained by the class.” Bayat v. Bank of the West, No. C-13-2376 EMC, 2015 WL 1744342, at *4 (ND Cal April 15, 2015) (citations omitted). The Agreement is comprehensive and substantial, requiring the State to: (1) create and implement a number of policies and practices to facilitate compliance with the
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Case 3:12-cv-00138-AC Document 382 Filed 01/27/16 Page 10 of 17
ADA; (2) reduce the State’s reliance on sheltered workshop settings; (3) ensure that a significant portion of class members obtain jobs in Competitive Integrated Employment; (4) take a number of measures intended to encourage individuals to work at least 20 hours per week; and (5) implement a number of additional systemic reforms to Oregon’s employment service system necessary to ensure that the Agreement’s outcomes will be achieved. It also includes a monitoring and enforcement scheme to ensure that these promises will become a reality for the class members.
To the extent that defendants’ efforts, and specifically the Executive Orders, embraced the employment services path and were designed to comply with Olmstead (and, therefore, created a risk to plaintiffs’ case), the Agreement incorporates all improvements and systemic reforms that defendants voluntarily undertook, making them all binding and enforceable. It also goes beyond Executive Order 15-01 in several key areas, including a reduction in the sheltered workshop census, a new payment structure, continuation of provider transformation grants at current levels, interagency collaboration, continuation of important training, technical assistance, and an expectation of reasonable outcomes (integrated, paid jobs in the community). Mank Decl. (docket #353-1), ¶¶ 7-8, 10. The Agreement was based in large part on the advice of plaintiffs’ experts, all of whom believe the Agreement is significant, meaningful, and reasonable. Id, ¶ 21; Asai Decl. (docket #353-2), ¶¶ 20-22; Morningstar Decl. (docket #353-3), ¶ 26.
In sum, the Agreement ensures that at least 1,115 adults with I/DD will obtain Competitive Integrated Employment and that at least 4,900 youth in transition will receive employment services. It is difficult to quantify that remedy. However, the State’s own fiscal expert projected that the cost of providing the integrated employment and other benefits to class members required by Executive Order 15-01 – which is only a portion of defendants’ obligation
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Case 3:12-cv-00138-AC Document 382 Filed 01/27/16 Page 11 of 17
under the Agreement – at $173,000,000. Toner Decl. (docket #354), Ex. 1 (Report of Ralph Amador), p. 2. That is a very substantial benefit to the class.
Of course, the potential cost of the Agreement raises the specter as to whether, given the budget crises often facing governmental agencies, the State will be able to pay for it. The Agreement requires the State to “make diligent efforts to obtain necessary funding, appropriations, limitations, allotments, or other expenditure authority.” Agreement, § XII.1. If the State fails to do so, then plaintiffs may enter into enforcement proceedings or rescind the Agreement. Id, § XII.2. However, the Agreement lists “a significant decrease in State revenue or federal funding” as an “Event Affecting Implementation” which is a complete defense to any enforcement proceedings brought by plaintiffs. Id, § XV. In other words, the State is not required to do the impossible based on lack of funding. Instead, it promises to use available funding in the manner required by the Agreement for the benefit of the class.
Because the relief obtained by plaintiffs in the Agreement is valuable and substantial, this factor weighs heavily in favor of final approval of the settlement. V. Extent of Discovery and State of Proceedings
The extent of discovery completed and the state of the proceedings at the time of settlement is a strong indicator of whether the parties have sufficient understanding of each other’s cases to make an informed judgment about their likelihood of prevailing. Typically, “[a] court is more likely to approve a settlement if most of the discovery is completed because it suggests that the parties arrived at a compromise based on a full understanding of the legal and factual issues surrounding the case.” Nat’l Rural Telecomm. Coop., 221 FRD at 527 (internal quotation marks and citation omitted). For that reason, “[a] settlement following sufficient discovery and genuine arms-length negotiation is presumed fair.” Id at 528.
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The parties reached the Agreement after completing extensive discovery and after the evidentiary cut-off of July 6, 2015. By that late stage of the litigation, both sides had a strong understanding of the strengths and weaknesses of each other’s case. Thus, this factor strongly favors approval. VI. Experience and View of Counsel
“Parties represented by competent counsel are better positioned than courts to produce a settlement that fairly reflects each party’s expected outcome in litigation.” In re Pac. Enters. Sec. Litig., 47 F3d 373, 378 (9th Cir 1995). The recommendations of counsel are, therefore, given a presumption of reasonableness. Boyd v. Bechtel Corp., 485 F Supp 610, 622 (ND Cal 1979) (citations omitted).
Lead counsel for all of the parties are experienced lawyers. Some have extensive backgrounds in disability law and others are experienced litigators in class action cases. All are unanimous in recommending approval. Thus, this factor strongly favors approval. VII. Presence of a Governmental Participant
The United States Department of Justice, Oregon Department of Justice, and several state agencies participated in the litigation and also attended the settlement discussions. Thus, this factor weighs heavily in favor of approval. VIII. Reaction of Class Members to Proposed Settlement
The number of class members who object to a proposed settlement “is a factor to be considered when approving a settlement.” Mandujano v. Basic Vegetable Prods. Inc., 541 F2d 832, 837 (9th Cir 1976) (citations omitted). The absence of significant numbers of objectors weighs in favor of finding the settlement to be fair, reasonable and adequate. Couser v.
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Case 3:12-cv-00138-AC Document 382 Filed 01/27/16 Page 13 of 17
Comenity Bank, No. 12cv2484-MMA-BGS, 2015 WL 5117082, at *7 (SD Cal May 27, 2015) (citations omitted).
At the time of the fairness hearing, the class was estimated to include about 4,000 persons. Due to the State’s implementation of the Executive Orders, the present sheltered workshop census declined by the time of the fairness hearing to around 2,000.4 In addition to mailing the notice of the Agreement to each class member, plaintiffs undertook affirmative efforts to disseminate information widely online and through email and social media, as well as through five open community forums held across the state which were attended by almost 100 persons. Yet only 32 written objections were received prior to the fairness hearing. Wilde Decl. (docket #355), Exs. 2 & 3. Of those objections, 25 were from family members and/or guardians; five were from class members; two were from individuals who were not family members or class member, one of which was from a Wisconsin resident whose daughter is not a class member and also resides in Wisconsin (id, Ex. 3, pp. 1-9); and one was from a home care worker expressing concern about unnamed sheltered workshop employees with whom she worked in the community (id, pp. 71-72). Two persons also presented objections orally at the fairness hearing, but they were family members who had previously filed written objections.
Almost none of the objections raised concerns about the employment services that would be provided under the Agreement.5 Instead, they objected to the effect that the Agreement would have on class members who want to continue working in a sheltered workshop. Three
4 The number of persons in sheltered workshops decreased from about 2,713 persons in March 2014 to about 2,190 or 1,926, depending on the counting methodology used. Oregon Dep’t of Human Servs., Employment First Report (July 2015), available at http://www.oregon.gov/dhs/employment/employment-first/DataReports/ Data%20Report%20Executive%20Order%20July%202015.pdf, pp. 12, 17. 5 Two objectors were worried about the pace of placement in community jobs and system capacity (Wilde Decl., Ex. 3, pp. 21, 82), and another had doubts about the steps involved in the process of moving from a sheltered workshop into the community (id, p. 66). A few objectors questioned the effectiveness of services from the Office of Vocational Rehabilitation Services. See, e.g., id, pp. 15, 31.
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Case 3:12-cv-00138-AC Document 382 Filed 01/27/16 Page 14 of 17
class members worked in the same sheltered workshop that had already closed and preferred to continue working at that setting. Id, pp. 88-90. One of them had since found a new job with the assistance of the former workshop, but worked fewer hours than at the workshop. Id, p. 88. Most of the family members filing objections stated that they did not believe that their son or daughter could work in an integrated community setting and speculated the same would be true for others. E.g., id, pp. 12-13. Most of these objectors had positive views about the services provided in sheltered workshops.
This court shares the objectors’ concerns that not all persons with I/DD may, even if they wish, be able to work in an integrated employment setting due to the nature of their disabilities. The persons with I/DD who testified at the fairness hearing are wonderful role models who epitomize the benefits of Competitive Integrated Employment over segregated employment. However, many of them are fairly high functioning individuals who can work in an integrated setting without a full-time job coach and without disrupting the workplace. Other persons with I/DD may not be as fortunate.
However, these objections reflect a mistaken belief that the Agreement requires closure of some or all of the sheltered workshops in Oregon. In fact, the closure of sheltered workshops has been a policy of the State since issuance of Executive Order 13-04 in April 2013 and reiterated with the issuance of Executive Order 15-01 in January 2015, both of which ceased funding of new placements in sheltered workshops after July 1, 2015. In addition, the July 2015 revised IEP reduces the sheltered workshop census to 1,530 by 2017. Other states have taken similar steps, including Vermont, Massachusetts and Washington. CMS recently issued policy guidance that permits states to take this step. Dunbar Decl., Ex. 4, p. 11.
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This policy of the State reflects a change in federal policy in recent years to reduce support for sheltered workshops. In June 2011, the United States Department of Justice issued its “Statement on the Enforcement of the Integration Mandate”6 which took the position that Olmstead and the ADA applied to sheltered workshops. In September 2011, CMS issued a bulletin stating that it would not allow Medicaid funds to be used for “vocational services” delivered in sheltered settings.7 In January 2014, CMS issued a regulation that requires employment settings to be “integrated” and requires states to submit transition plans “to achieve compliance with this section” by 2019 42 CFR § 441.710(a)(1)(i), (2), (3). In July 2014, the WIOA passed which included numerous provisions regarding vocational rehabilitation services, sheltered workshops, supported employment, informed choice, youth transition services, and integrated employment and performance metrics.
To comply with this change in federal policy disfavoring sheltered workshops, the State has taken steps to encourage sheltered workshops to expand supported employment services, train their staff to provide these services, and convert their business models from segregated to integrated employment services. In November 2014, the State awarded “transformation grants,” totaling almost $2.2 million, to approximately 20 sheltered workshops for that purpose. Several of the grantees promised to phase down or close their workshops, including some whether objectors or their family members worked. Krieger Decl. (docket #356), ¶¶ 5-6. That helps explain why many of the objectors are concerned about closure.
6 United States Dep’t of Justice, Civil Rights Div., Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. (June 22, 2011), available at http://www.ada.gov/olmstead/q&a_olmstead.htm. 7 Centers for Medicare and Medicaid Servs., CMCS Informational Bulletin, Updates to the § 1915(c) Waiver Instructions and Technical Guide Regarding Employment and Employment Related Services (Sept. 16, 2011), available at http://downloads.cms.gov/cmsgov/archived-downloads/CMCSBulletins/downloads/CIB-9-16-11.pdf.
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However, the Agreement does not require any individual working in a sheltered workshop to leave if he or she wishes to stay. To the contrary, by only mandating a reduction to 1,530 of the number of persons with I/DD who are served in sheltered workshops, the Agreement permits the continued existence of sheltered workshops throughout its term. According to the State’s recent policy transmittal, persons currently in sheltered workshops can remain in that workshop, can return to that workshop within one year of leaving, or can transfer to another workshop.8 Although class members have the option of transferring to another sheltered workshop, some may be unable to do so due to transportation or other logistical difficulties. However, plaintiffs are hopeful that when presented with fully informed choices through the individualized process mandated by the Agreement, all class members will realize the benefits of, and obtain the employment services necessary, to obtain jobs in an integrated setting at a competitive wage.
The Agreement is designed to achieve a system-wide change over seven years by bringing many parties together and building on the State’s infrastructure. Whether it succeeds is yet to be seen. However, if it does succeed, it will achieve a substantial benefit for the class as a whole. The best interests of the class as a whole must remain the court’s paramount consideration even though some class members believe that they will not receive all the individual relief to which they believe they are entitled. Because the vast majority of the class supports and will benefit from the Agreement, this factor also favors approval of the settlement. /// ///
8 Oregon Dep’t of Human Servs., Office of Developmental Disability Servs., Entry to Sheltered Workshops: Policy Changes for July 1, 2015 (June 23, 2015), available at http://www.oregon.gov/dhs/employment/ employmentfirst/Documents/FAQ-ShelteredWorkshops-Providers.pdf, pp. 3-4. See also Oregon Department of Human Services Developmental Disabilities Services, Policy Transmittal APD-PT-15-022 (June 29, 2015), https://www.dhs.state.or.us/policy/spd/transmit/pt/2015/pt15022.pdf.
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Case 3:12-cv-00138-AC Document 382 Filed 01/27/16 Page 17 of 17 AMENDED ORDER
For the reasons stated above, the Parties’ Joint Motion for Final Approval of Proposed Settlement Agreement (docket #352) is GRANTED effective December 29, 2015.
DATED January 27, 2016. s/ Janice M. Stewart
Janice M. Stewart United States Magistrate Judge
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 </s> UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

PAULA LANE, et al, on behalf of themselves and all others similarly situated, and
UNITED CEREBRAL PALSY OF OREGON AND S.W. WASHINGTON,
Plaintiffs,
v.
KATE BROWN, Governor of the State of Oregon, et al,
Defendants.

Case No. 3:12-cv-00138 -ST OPINION AND ORDER

UNITED STATES OF AMERICA, Plaintiff-Intervenor,
v. STATE OF OREGON,
Defendant. STEWART, Magistrate Judge:
Plaintiffs, eight individuals with intellectual and developmental disabilities (“I/DD”) and one institution, filed this action on January 25, 2012, to challenge the State of Oregon’s overreliance on segregated sheltered workshops for employment services based on Title II of the

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Americans with Disabilities Act of 1990 (“ADA”), 42 USC §§ 12131-34, Section 504 of the Rehabilitation Act of 1973, 29 USC § 794(a), and Olmstead v. L.C. ex rel. Zimring, 527 US 581 (1999). On August 6, 2012, the court certified a class of “all individuals with intellectual and developmental disabilities in Oregon who are in, or have been referred to, sheltered workshops,” and who are “qualified for supported employment services, meaning that they must be eligible for and desire those services.” See Lane v. Kitzhaber, No. 3:12-cv-00138-ST, 2014 WL 2807701, at *8 (D Or June 20, 2014). On May 24, 2013, the United States filed its Complaint in Intervention adding a second target population of transition-aged youth with I/DD who were “at risk” of being “placed in sheltered workshops.”
After almost four years of litigation, extensive fact and expert discovery, and prior unsuccessful efforts to resolve the dispute, the parties engaged in lengthy settlement negotiations a few months before trial and signed a Proposed Settlement Agreement (“Agreement”). This court preliminarily approved the Agreement (docket #346), held a fairness hearing (docket #364), granted the Joint Motion for Final Approval of Proposed Settlement Agreement (docket #366), and entered a Judgment on January 27, 2016 (docket #384).
Pursuant to Section XVII(15) of the Agreement, the United States and the State of Oregon agreed to bear their own attorney fees and costs and to permit class counsel to seek an award of reasonable attorney fees and costs. In addition, the parties agree to “work in good faith to agree on the amount of the reasonable fees and costs” to be paid to class counsel. As a result of intensive negotiations, the parties reached a settlement of plaintiffs’ attorney fees and costs incurred since this case was filed (February 1, 2011) through the conclusion of the mediation (August 31, 2015) in the sum of $5,250,000 ($4,991,225 in attorney fees and $258,775 in costs).1
1 The parties have agreed to separately negotiate attorney fees and costs from September 1, 2015, through resolution of this motion.
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Plaintiffs have now filed a Motion for Attorney Fees and Costs (docket #379) in that amount. For the following reasons, that motion is granted.
LEGAL STANDARD In a class action, FRCP 23(h) authorizes this court to award reasonable attorney fees and costs “that are authorized by law or by the parties’ agreement.” An award to class counsel in this case is authorized by law. Having obtained substantial relief, plaintiffs are the prevailing party and entitled to recover their attorney fees and costs under the ADA. 42 USC § 12205; Molski v. M.J. Cable, Inc., 481 F3d 724, 730 (9th Cir 2007) (the ADA gives courts discretion to award attorney fees to the prevailing party). A plaintiff is considered to prevail “when he or she enters into a legally enforceable settlement agreement against the defendant,” as in this case. Barrios v. Cal. Interscholastic Fed’n, 277 F3d 1128, 1134 (9th Cir 2002). However, to obtain an award of attorney fees and costs, a party must file a motion with notice to class members who may object to the motion. FRCP 23(h)(1)-(2). That notice was provided in this case by means of the notice to class members of the terms of the Agreement, which included the provision regarding attorney fees and costs, prior to the fairness hearing. In accordance with FRCP 23(c)(2), the court should guard against abusive practices and ensure that all settlement terms, including the amount of attorney fees and costs, are fair and reasonable.
DISCUSSION I. Attorney Fees
The starting point for establishing a reasonable attorney fee is the lodestar which consists of the reasonable number of hours expended multiplied by the reasonable hourly rate. Hensley v. Eckerhart, 461 US 424, 433 (1983); Cunningham v. Cnty. of Los Angeles, 879 F2d 481, 484 (9th Cir 1988) (establishing the use of lodestar approach to calculate fee awards in § 1988 case);
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Jordan v. Multnomah Cnty., 815 F2d 1258, 1262 (9th Cir 1987) (finding lodestar is most useful starting point for determining attorney fee awards).
Plaintiffs calculate their lodestar as $6,638,907. Applying a voluntary 10% reduction in the lodestar, plaintiffs submit that $5,975,016 is a reasonable lodestar for this case. Based on a review of the 30 exhibits submitted by plaintiffs in support of their motion, this court agrees.
A. Number of Hours A court may award attorney fees only for the number of hours it concludes were reasonably expended on the litigation. Hensley, 461 US at 434 (“Counsel . . . should make a good faith effort to exclude . . . hours that are excessive, redundant, or otherwise unnecessary”). “Those hours may be reduced by the court where the documentation of the hours is inadequate; if the case was overstaffed and hours are duplicated; if the hours expended are deemed excessive or otherwise unnecessary.” Chalmers v. City of L.A., 796 F2d 1205, 1210 (9th Cir 1986), amended in part on denial of reh’g en banc, 808 F2d 1373 (1987), citing Hensley, 461 US at 433–34. Plaintiffs were represented by numerous attorneys, paralegals and support staff at the Center for Public Representation (“CPR”) in Northampton, Massachusetts, Disability Rights Oregon (“DRO”) in Portland, Oregon, and two private law firms in Portland, Oregon (Miller Nash Graham & Dunn LLP and Perkins Coie LLP). However, this large legal team is justified by the nature of this case which was complex and presented unique challenges, required extensive resources, and demanded exceptional legal skills. Fortunately, considerable effort was expended throughout the litigation to ensure efficiency, avoid duplication and facilitate communication through the organizational efforts of lead counsel at CPR. Schwartz Decl. (docket #379, Ex. 6), ¶¶ 24-44; Rubin Decl. (docket #379, Ex. 10), ¶ 3.
4 – OPINION AND ORDER

In addition, each of the attorneys, paralegals and staff maintained detailed time records and has deleted or reduced any entry that was duplicative, excessive or otherwise not of the type ordinarily billed to a paying client. Schwartz Decl., ¶¶ 16-20; Costanzo Decl. (docket #379, Ex. 7), ¶¶ 20-23; Toner Decl. (docket #379, Ex. 8), ¶¶ 9-13; Wilde Decl. (docket #379, Ex. 9), ¶¶ 1215; Rubin Decl., ¶ 4; Reichman Decl. (docket #379, Ex. 11), ¶¶ 34-37. Altogether, plaintiffs voluntarily have reduced their number of hours by almost 1,050 hours (docket #379, Exs. 2-5). Furthermore, each firm has eliminated over 1,140 hours incurred by 14 lawyers and 17 paralegals/support staff who worked on this case (docket #379, Exs. 2, 4-5).
Although this court has not reviewed each and every time entry in the voluminous billing records submitted by plaintiffs, the representations made as to the number of hours incurred and reduced in this case leads this court to conclude that the end result is reasonable.
B. Hourly Rates The next step in the lodestar analysis requires the court to determine a reasonable hourly rate for the services provided. The established standard when determining a reasonable hourly rate is the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation. Camacho v. Bridgeport Fin., Inc., 523 F3d 973, 979 (9th Cir 2008). “Generally, when determining a reasonable hourly rate, the relevant community is the forum in which the district court sits.” Id, citing Barjon v. Dalton, 132 F3d 496, 500 (9th Cir 1997). The “relevant community” for this case is Portland, Oregon, where this court sits. Pursuant to Section XVII(15)(c) of the Agreement, the requested hourly rates are based upon the 2012 Oregon State Bar Economic Survey. That survey is the best evidence of the prevailing rate in Oregon. Atl. Recording Corp. v. Andersen, No. CV 05-933-AC, 2008 WL
5 – OPINION AND ORDER

2536834, at *14 (D Or June 24, 2008), citing Roberts v. Interstate Distrib. Co., 242 F Supp2d 850, 857 (D Or 2002) (remaining citations omitted); also see U.S. Dist. Court., Dist. of Or., Message from the Court Regarding Fee Petitions, https://www.ord.uscourts.gov/index.php/ court-info/court-policies/fee-petitions (last updated Feb. 6, 2013) (“Oregon Dist. Ct. Message”).
Plaintiffs draw on the hourly rates in that survey for the All Attorney Scale for Portland, Oregon, and select those rates that reflect the respective years of experience of each attorney, ranging from the 75th percentile for most attorneys, the 80th percentile for two senior attorneys from DRO and CPR, and the 85th percentile for the two lead counsel from CPR and Miller Nash. Plaintiffs are not seeking any increase in those rates adjusted for inflation.
The requested rates for the CPR attorneys are consistent with fee awards in other cases. Schwartz Decl. ¶¶ 48-9, 51-6; Costanzo Decl. ¶¶ 33, 35-40; Toner Decl. ¶¶ 22-3, 25. These rates are less than the market rates of their counterparts in private Portland law firms and are consistent with approved rates by this court, given each attorney’s experience and skills. Rubin Decl. ¶ 3. The rates for DRO attorneys are similarly consistent with prior fee awards and reflect the skills and experience of their attorneys. Wilde Decl. ¶¶ 8-10; Reichman Decl. ¶¶ 54-60. The rates of each attorney and paralegal at Miller Nash and Perkins Coie are significantly less than their market rates. Rubin Decl. ¶¶ 4(c), 5(d), 6(b), 7(c), 8(c), 9(c); Reichman Decl. ¶¶ 39-48.
As a result, the hourly rates sought by class counsel are reasonable. C. Conclusion To avoid any question of duplication or unnecessary time, plaintiffs’ fee request includes a further reduction of the lodestar by an additional 10%, resulting in a final lodestar of
6 – OPINION AND ORDER

$5, 250,000. Both plaintiffs’ and defendants’ attorney fee expert consultants agree that the reduced lodestar is reasonable. Markowitz Decl. (docket #279, Ex. 12), ¶ 4; Skerritt Decl. (docket #279, Ex. 13), ¶ 6.
Moreover, the Agreement includes a negotiated cap, determined with the assistance of the mediator (Magistrate Judge Acosta) on future attorney fees for monitoring the implementation of the Agreement. Class counsel have an ethical duty to ensure that defendants achieve substantial compliance with any remedial order, and all reasonable time spent on ordinary monitoring traditionally is fully compensable. Prison Legal News v. Schwarzenegger, 608 F3d 446, 451 (9th Cir 2010) (holding that fees for monitoring of settlement agreement may be awarded pursuant to § 1988). This fee cap represents a significant concession by the plaintiffs and adds to the reasonableness of their request.
The settlement amount is approximately 27% less than the lodestar total calculated by plaintiffs and about 20% less than the reduced lodestar amount. According to the parties’ attorney fee expert consultants who participated in the fee negotiations, the settlement amount resulted from arms’ length, good faith, and vigorous negotiations between the parties and yielded an overall result that is reasonable. Markowitz Decl., ¶ 5; Skerritt Decl., 6. Thus, this court concludes that the settlement amount is fair and reasonable. II. Costs
Plaintiffs seek costs of $258,775, consisting of approximately $86,000 in expert expenses incurred by DRO, approximately $73,000 in litigation costs (experts, transcripts, subpoenas, and third party document management) incurred by Miller Nash and Perkins Coie, and $98,000 in litigation costs and travel related expenses for four attorneys from CPR over the four years since the inception of this case (docket #379, Exs. 1, 27-30). According to plaintiffs, these costs are
7 – OPINION AND ORDER

considerably less than the actual costs incurred in this case, the vast portion of which were borne by the United States. This court has no basis to question the reasonableness of this request.
ORDER Plaintiffs’ Motion for Attorney Fees and Costs (docket #379) is GRANTED in the sum of $5,250,000. DATED February11, 2016.
s/ Janice M. Stewart Janice M. Stewart United States Magistrate Judge
8 – OPINION AND ORDER

 </s> UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

PAULA LANE, et al, Plaintiffs,
v. JOHN KITZHABER, Governor of the State of Oregon, et al,
Defendants.

Case No. 3:12-cv-00138 -ST ORDER

STEWART, Magistrate Judge: In connection with the pending Motion to Certify the Class, defendants filed a Motion to
Strike New Evidence Submitted With Plaintiffs’ Reply in Support of Their Motion for Class Certification (docket # 68). Defendants argue that this new evidence is inappropriately proffered with plaintiffs’ reply brief, denying them the opportunity to respond. See e.g., Provenz v. Miller, 102 F3d 1478, 1483 (9th Cir 1996), cert denied, 522 US 808 (1997). Plaintiffs counter that this evidence is not new, but is properly submitted in order to rebut arguments made in defendants’ opposition to the motion to certify. See e.g., Terrell v. Contra Costa County, 232 Fed Appx 626, 629 n2 (9th Cir 2007).
After plaintiffs filed their Motion to Certify the Class with supporting exhibits, defendants conducted discovery, taking eight depositions and requesting client records. They
1 – OPINION AND ORDER

used this discovery to support their opposition to class certification, attaching excerpts from depositions, client records, and a declaration from Joshua Leslie, the personal agent for one of the plaintiffs, Gretchen Cason. They also submitted two declarations attesting to hearsay evidence from Susan Norman at Eastco Diversified Services (“Eastco”) which has been stricken (dockets # 51 & # 73) and superseded by the subsequent deposition testimony of Ms. Norman (dockets # 74 & # 75).
The issue is whether the evidence submitted with plaintiffs’ reply is permissible rebuttal evidence or impermissible new evidence. Defendants’ motion to strike is GRANTED IN PART and DENIED IN PART as follows: I. Declaration of Paul Kinville
Paul Kinville is the father of one of the plaintiffs, Zavier Kinville. His declaration confirms that Zavier Kinville would like a community job, particularly one that involves working with children, has not received the services he needs to help him obtain a community job, and any contradictory statements in his deposition are due to the stressful, unfamiliar environment of a deposition.
Had defendants submitted excerpts from the deposition of Zavier Kinville, then his father’s declaration would be permissible rebuttal evidence. However, they did not. Instead, they argued only that he received employment services at Eastco which they supported with Ms. Norman’s testimony. Since all parties are relying on Ms. Norman’s deposition testimony which more fully describes the scope of employment services provided to Zavier Kinville by Eastco, Paul Kinville’s declaration is both “new” and unnecessary evidence and, therefore , is stricken. /// /// 2 – OPINION AND ORDER

II. Declaration of Kathleen Cason Kathleen Cason is the mother of plaintiff Gretchen Cason. Her declaration contradicts
several statements made in the declaration by Joshua Leslie, her daughter’s personal agent, which defendants submitted in opposition to class certification. Therefore, it is permissible rebuttal evidence.
If this declaration is not stricken, defendants request the opportunity to take a deposition of Kathleen Cason in order to respond to her declaration. However, Kathleen Cason’s declaration simply responds to statements made by Joshua Leslie. No further discovery in this regard is necessary or useful to the court and, thus, will not be permitted. III. Declaration of Bettina Toner
The Declaration of Bettina Toner attaches 20 exhibits, consisting of excerpts from depositions of the eight plaintiffs, as well as various client records. To the extent that plaintiffs are merely rebutting deposition excerpts and client records submitted by defendants’ in opposition to class certification, these exhibits are permissible. However, some of plaintiffs’ exhibits exceed the scope of permissible rebuttal evidence.
In their opposition, defendants submitted excerpts of depositions of only four plaintiffs: Angela Kehler, Gretchen Cason, Elizabeth Harrah, and Andres Paniagua. Beatty-Walters Decl., Exs. 1, 5-8. They also submitted client records for plaintiffs Angela Kehler and Lori Robertson. Id, Exs. 2-4. Defendants’ opposition memorandum discusses the employment situation of these four plaintiffs and also asserts that three of them (Angela Kehler, Elizabeth Harrah, and Andres Paniagua), plus two others (Zavier Kinville and Lori Robertson), work with a job developer at Eastco. The evidence concerning the five plaintiffs who work at Eastco is further supported by the deposition testimony of Ms. Norman.
3 – OPINION AND ORDER

Defendants’ opposition to class certification does not refer at all to either plaintiff Paula Lane or Sparkle Green. Thus, the evidence submitted by plaintiffs with their reply brief concerning Paula Lane and Sparkle Green (Toner Decl., Exs. 1, 2, 10-13) is outside the scope of permissible rebuttal evidence and stricken.
The remaining deposition excerpts and client records submitted by plaintiffs address the same issues referenced in defendants’ opposition through deposition excerpts or Ms. Norman’s testimony. Admittedly, defendants’ opposition centers primarily on the employment situation of plaintiffs Angela Kehler and Gretchen Cason and only briefly mentions the other four plaintiffs. However, given defendants’ assertion that all of these plaintiffs are receiving employment services, plaintiffs are entitled to respond with evidence contesting the accuracy of that assertion. Accordingly, the motion to strike is denied as to those exhibits (id, Exs. 3-9, 14-20).
DATED June 26, 2012.
s/ Janice M. Stewart Janice M. Stewart United States Magistrate Judge
4 – OPINION AND ORDER

 </s> UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

PAULA LANE, et al, Plaintiffs,
v. JOHN KITZHABER, Governor of the State of Oregon, et al,
Defendants.

Case No. 3:12-cv-00138 -ST OPINION AND ORDER

STEWART, Magistrate Judge: INTRODUCTION
On May 17, 2012, this Court granted defendants’ motion to dismiss the original Complaint in part because some allegations sought “the forbidden remedy or requiring defendants to provide an adequate level of employment services to enable plaintiffs to obtain a competitive job.” Opinion and Order (docket # 40, p. 15). Accordingly, plaintiffs filed their First Amended Complaint on May 29, 2012 (docket # 43), followed on May 24, 2013, by the United States filing its Complaint in Intervention (docket # 106). Defendants filed their Answers on June 15, 2012 (docket # 53), and June 26, 2013 (docket # 110), respectively.

1 – OPINION AND ORDER

Based on plaintiffs’ responses to their interrogatories concerning the particular remedial measures being sought and other statements made by plaintiffs and the United States, defendants became concerned that the “integration criteria” sought by plaintiffs constitutes impermissible relief. Defendants considered filing a motion for partial summary judgment on this legal issue, but plaintiffs and the United States argued that such a motion was not appropriate. Although defendants disagree, they have elected to avoid any procedural issue by instead filing the pending Motion for Leave to File First Amended Answer with Counterclaim (docket # 127). The proposed counterclaim seeks a declaratory judgment that plaintiffs and the United States “are not entitled to injunctive relief against Oregon that includes any requirement related to job placement outcomes.” Should the amendment be allowed, defendants intend to move for partial summary judgment on the counterclaim in order to narrow the scope of issues at trial.
DISCUSSION Under FRCP 15, leave to amend should be granted with “extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F3d 1048, 1051 (9th Cir 2003). In exercising its discretion to allow amendment, a court may consider “factors such as bad faith, undue delay prejudice to the opposing party, futility of amendment, and whether leave to amend has previously been granted.” In re Morris, 363 F3d 891, 894 (9th Cir 2004). Defendants’ proposed amendment does not involve any bad faith, undue delay, or prejudice to plaintiffs. However, defendants argue that it is futile, and this court agrees. The primary problem is defendants’ mischaracterization of the relief sought by plaintiffs and the United States. Plaintiffs’ First Amended Complaint seeks an injunction requiring defendants to administer their employment services program in a manner that “includes supported employment services that allows persons with disabilities the opportunity to work in
2 – OPINION AND ORDER

integrated settings.” Amended Complaint, p. 51 (emphasis added). As explained by this court when certifying the class, that request “does not mean that defendants must provide a community job to every qualified individual who wants one, but only that it must ‘provide supported employment services to all qualified class members, consistent with their individual needs.’” Lane v. Kitzhaber, 283 FRD 587, 602 (D Or 2012). The United States’ Complaint in Intervention similarly seeks to enjoin defendants to “provide individuals with I/DD who are in or are at risk of placement in segregated employment settings with services, programs, or activities that are designed to allow individuals with I/DD to secure, maintain, and succeed in integrated employment settings.” Complaint, p. 27. Nothing in those pleadings suggests that plaintiffs and the United States are seeking an impermissible remedy.
Similarly, nothing in the discovery responses by plaintiffs and the United States requests any new relief beyond their pleadings. Defendants asked plaintiffs and the United States to admit that they “will ask the Court to issue injunctive relief requiring Defendants to ensure that” class members (or, for the United States, a “target population”) “achieve certain employment outcomes.” Scott Decl., Exs. 4 & 5. Plaintiffs and the United States denied these admissions, in part because they “do not anticipate asking the Court to issue injunctive relief that requires the Defendants to ensure that all members of the certified class achieve certain employment outcomes.” Id. They further answered that in order to evaluate whether individuals are being served in the most integrated setting appropriate to their needs, the court:
should consider integration criteria such as: whether and to what extent support employment services have resulted in integrated employment for persons who are or have been segregated in sheltered workshops; the average length of time spent by class members in integrated employment as opposed to segregated employment; and whether persons are compensated at levels commensurate with non-disabled persons performing the same or similar work. Id, Ex. 5, p. 3
3 – OPINION AND ORDER

Defendants contend that the “integration criteria” will measure Oregon’s provision of employment services by using job placement outcomes and, thus, are nothing more than a euphemism for guaranteeing employment. However, these discovery responses simply track the Supreme Court’s holding in Olmstead v. L.C. ex rel. Zimring, 527 US 581 (1999), or the ADA’s integration regulation, 28 CFR § 35.130(d), and are not tantamount to an impermissible “level of benefits” claim. Plaintiffs and the United States do not ask the court to order defendants to achieve a particular employment outcome for any given person or to guarantee any person a job. Instead, they are offering a way to measure the success of the employment services offered. In fact, beginning January 1, 2014, Executive Order 13-04 requires ODDS and OVRS to collect and report data similar to the “integration criteria” proposed by plaintiffs and the United States.
Moreover, defendants’ proposed counterclaim is not ripe and does not yet present a justiciable controversy. The specific parameters of any injunctive relief ordered by the court will be determined by the scope of violations established at trial. Accordingly, whether the appropriate form of relief ever becomes an issue will depend upon the evidence admitted at trial, the court’s findings of fact, and whether there is a dispute over defendants’ compliance with the injunction. If plaintiffs and the United States prevail, a dispute could conceivably arise over whether the supported employment services being provided are, in fact, allowing individuals to receive services in the most integrated setting appropriate to their needs. Then – and only then – would the court need to consider whether, and to what extent, supported employment services provided under the injunction are consistent with certain integration criteria. Those integration criteria may or may not include job placement outcomes. At this juncture, however, there is no immediate, concrete dispute over this issue. The dispute is simply too hypothetical to be a ripe controversy, i.e., “where the existence of the dispute itself hangs on future contingencies that
4 – OPINION AND ORDER

may or may not occur.” Clinton v. Acequia, Inc., 94 F3d 568, 572 (9th Cir 1996); see also Portland Police Ass’n v. City of Portland ex rel. Bureau of Police, 658 F2d 1272, 1274 (9th Cir 1981).
In any event, the proposed counterclaim against the United States is futile as barred by sovereign immunity. United States ex rel. Westrick v. Second Chance Body Armor, Inc., 893 F Supp2d 258, 262 (DDC 2012) (“Because the counterclaim is barred by sovereign immunity, leave to add the counterclaim will be denied . . .”). The United States cannot be sued, even by another State and even for declaratory relief only, absent the consent of Congress. People of the State of California ex rel. California Dep’t of Fish and Game v. Quechan Tribe, 595 F2d 1153, 1155 (9th Cir 1979); see also Santa Clara Pueblo v. Martinez, 436 US 49, 58-59 (1978) (barring suit for declaratory and injunctive relief based on sovereign immunity). Sovereign immunity applies to “a suit, whether couched as an original claim or as a counter claim.” United States v. $277,000 U.S. Currency, 69 F3d 1491, 1493 (9th Cir 1995). Title II of the ADA, upon which defendants’ proposed counterclaim is based, contains no waiver of sovereign immunity.
Defendants contend that a counterclaim for declaratory relief about the scope of that relief is not barred by sovereign immunity, citing United States v. Agnew, 423 F2d 513 (9th Cir 1970). However, that case merely allowed he assertion of a counterclaim against a sovereign “by way of set off or recoupment to defeat or diminish the sovereign’s recovery.” Id at 514. This is an example of a “narrow exception” to the principle of sovereign immunity for counterclaims seeking to recoup or offset the amount of a monetary judgment sought by the Government. United States v. Park Place Assocs. Ltd., 563 F3d 907, 932 n 16 (9th Cir 2009). This recoupment exception does not apply to defendants’ proposed counterclaim which does not attempt to recoup or offset the amount of a recovery. Instead, it seeks to limit the scope of
5 – OPINION AND ORDER

injunctive relief. Although this may be a distinction without a substantive difference, this court is reluctant to expand a narrow exception to sovereign immunity. In any event, even without a counterclaim, defendants retain the ability to argue that the court should deny all or any part of the relief requested by plaintiffs and the United States.
ORDER Defendants’ Motion for Leave to File First Amended Answers with Counterclaim (docket #127) is DENIED. DATED December 19, 2013.
s/ Janice M. Stewart Janice M. Stewart United States Magistrate Judge
6 – OPINION AND ORDER

 </s> Case 4:09-cv-05796-CW Document 970 Filed 02/06/18 Page 1 of 5

United States District Court Northern District of California

1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 TODD ASHKER, et al.,

9

Plaintiffs,

10

v.

11 GOVERNOR OF THE STATE OF CALIFORNIA, et al.,
12 Defendants.
13

No. 09-cv-05796-CW
ORDER REGARDING PLAINTIFFS' MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE REGARDING PRODUCTION OF DOCUMENTS REQUIRED BY SETTLEMENT AGREEMENT

14

(Dkt No. 793)

15 Before the Court is Plaintiffs’ motion for de novo
16 determination of dispositive matters referred to the magistrate
17 judge regarding the production of documents pursuant to the
18 parties’ Settlement Agreement. Defendants filed an opposition to
19 the motion and Plaintiffs filed a reply. Having considered the
20 papers, the Court GRANTS the motion.
21
FACTUAL BACKGROUND 22
On June 9, 2017, Plaintiffs moved to compel the production 23
of documents pursuant to paragraph 37(h) of the Settlement 24
Agreement. Docket No. 702. On August 30, 2017, Judge Vadas 25
denied Plaintiffs’ motion. Docket No. 785. Judge Vadas held 26
that paragraph 37(h) “concerned gang validated inmates.” Id. at 27
3. In particular, Judge Vadas based his decision on the fact 28

Case 4:09-cv-05796-CW Document 970 Filed 02/06/18 Page 2 of 5

United States District Court Northern District of California

1 that paragraph 37(h) states that “the documents to be produced

2 must be related to the inmate’s validation ‘and’ the senior

3 hearing officer’s final disciplinary decision.” Id.

4

Plaintiffs then brought the instant motion to challenge

5 Judge Vadas’ order, which is subject to review under 28 U.S.C.

6 § 636(b)(1)(B). See Settlement Agreement ¶ 53.

7

LEGAL STANDARD

8

This Court reviews de novo Judge Vadas’ decision. Docket

9 No. 486-3, Settlement Agreement ¶ 53 (“An order issued by

10 Magistrate Judge Vadas under this Paragraph is subject to review

11 under 28 U.S.C. § 636(b)(1)(B).”). “A judge of the court may

12 accept, reject, or modify, in whole or in part, the findings or

13 recommendations made by the magistrate judge. The judge may also

14 receive further evidence or recommit the matter to the magistrate

15 judge with instructions.” 28 U.S.C. § 636(b)(1).

16

DISCUSSION

17

Paragraph 37(h) of the Settlement Agreement states:

18

The following documents shall be produced on a

quarterly basis regarding all inmates found guilty of a

19

SHU-eligible offense with a nexus to an STG: (i) STG

Unit Classification Committee validation

20

determinations; and (ii) the decision of the hearing

officer to find the inmate guilty of a SHU-eligible

21

offense. Defendants also shall produce on a quarterly

basis a randomly chosen representative sample of the

22

documents relied upon for the validation determinations

and RVR decisions for these inmates, including redacted

23

confidential information. [ . . . ]

24

The fundamental rules of contract interpretation are based

25 on the premise that the interpretation of a contract must give

26 effect to the “mutual intention” of the parties. Waller v. Truck

27 Ins. Exch., Inc., 11 Cal. 4th 1, 18 (1995), as modified on denial

28 of reh’g (Oct. 26, 1995). Contractual terms are “understood in

2

Case 4:09-cv-05796-CW Document 970 Filed 02/06/18 Page 3 of 5

United States District Court Northern District of California

1 their ordinary and popular sense, rather than according to their

2 strict legal meaning, unless used by the parties in a technical

3 sense, or unless a special meaning is given to them by usage.”

4 Cal. Civ. Code § 1644; see also Waller, 11 Cal. 4th at 18.

5

A plain reading of paragraph 37(h) reveals that, for “all

6 inmates found guilty of a SHU-eligible offense with a nexus to an

7 STG,” Defendants must produce two categories of documents, to the

8 extent that they exist. The fact that paragraph 37(h) requires

9 Defendants to produce documents related to validation does not

10 define or limit the group of inmates whose documents are subject

11 to production. If the contracting parties wished to limit the

12 group of inmates whose documents are subject to product to only

13 gang-validated inmates, they would have done so explicitly. The

14 Settlement Agreement uses the term “validated inmates” elsewhere,

15 such as paragraphs six, seven, and twenty-five. The contract

16 should be interpreted to give that term a different meaning.

17 Foothill Properties v. Lyon/Copley Corona Assocs., 46 Cal. App.

18 4th 1542, 1550 (1996) (“The whole of a contract is to be taken

19 together, so as to give effect to every part, if reasonably

20 practicable, each clause helping to interpret the other.”); see

21 also United States ex rel. Welch v. My Left Foot Children's

22 Therapy, LLC, 871 F.3d 791, 797 (9th Cir. 2017) (in contract

23 interpretation, “if possible, every word and every provision is

24 to be given effect”).

25

Defendants contend the settlement and the certified class

26 are limited to gang-validated inmates. Not so. Paragraph five

27 of the Settlement Agreement characterizes the certified class as

28 “(i) all inmates assigned to an indeterminate term at Pelican

3

Case 4:09-cv-05796-CW Document 970 Filed 02/06/18 Page 4 of 5

United States District Court Northern District of California

1 Bay’s SHU on the basis of gang validation, under CDCR’s policies

2 and procedures, as of September 10, 2012; and (ii) all inmates

3 who are now, or will be in the future, assigned to Pelican Bay’s

4 SHU for ten or more continuous years.” Subpart (ii) of the

5 definition of the certified class does not require inmates to be

6 gang-validated. Moreover, nothing in the Settlement Agreement

7 limits the documents to be produced to the certified class. See

8 generally Settlement Agreement ¶ 37. Indeed, Defendants have

9 produced documents pursuant to the Settlement Agreement for non-

10 validated inmates. See Declaration of Carmen F. Bremer (Bremer

11 Decl.) in Support of Reply Brief ¶ 3.

12

The impact of this decision is that Defendants will have to

13 produce documents for inmates who have been found guilty of a

14 SHU-eligible offense with a nexus to an STG, but who have not

15 been gang-validated. This interpretation of paragraph 37(h) is

16 not likely to unduly burden Defendants. As Plaintiffs noted,

17 Defendants have only produced documents regarding approximately

18 thirty STG-validated prisoners who have been found guilty of a

19 SHU-eligible offense with an STG nexus during the monitoring

20 period. Bremer Decl. in Support of Motion ¶ 2. The number of

21 inmates found guilty of a SHU-eligible offense with a nexus to an

22 STG, but not yet gang-validated, is likely to be similar.

23 Defendants have not presented any evidence to the contrary.

24

CONCLUSION

25

Plaintiffs’ motion for de novo determination of dispositive

26 matter referred to magistrate judge regarding production of

27 documents required Settlement Agreement (Docket No. 793) is

28 GRANTED. Defendants shall produce all documents required by the

4

Case 4:09-cv-05796-CW Document 970 Filed 02/06/18 Page 5 of 5

United States District Court Northern District of California

1 Court’s interpretation of paragraph 37(h) of the Settlement

2 Agreement within 15 days of the date of this order.

3

IT IS SO ORDERED.

4 Dated: February 6, 2018 5 6

CLAUDIA WILKEN United States District Judge

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 </s> Lane et al. v. Brown et al.
Civil Action No. 3:12-cv-00138-ST
2016 Report to the Court
Prepared by: Cathy Ficker Terrill, M.S. Independent Reviewer January 1, 2016 - December 31, 2016

Introduction

The Independent Reviewer issues this first annual report on Oregon’s progress in implementing the Settlement Agreement in Lane v. Brown. The Settlement Agreement went into effect on January 27, 2016. If the State substantially complies with its obligations, the Settlement Agreement will end no later than July 1, 2022.
This report covers the State’s implementation efforts from January 1, 2016 through December 31, 2016. Because the Settlement Agreement is still in its early stages of implementation, this report is a preliminary assessment of steps the State has begun taking in the past year. The Independent Reviewer began employment in June of 2016.
The Independent Reviewer considered various sources in preparing this report, including information the parties provided at quarterly meetings, the State’s amended October 2016 Employment First Report, state policies and administrative rules, other State documents, and information reported by the State. The Independent Reviewer has not audited or otherwise verified the State’s reported data. The Independent Reviewer also informally visited a small number of school district transition programs in one region of the State.
In 2017, the Independent Reviewer will conduct formal program and client reviews to assess the State’s implementation of the Settlement Agreement. The State will also provide additional reports and information on certain Settlement Agreement provisions. That information will provide a fuller picture of implementation and will be analyzed in the next annual report.
Based on the preliminary assessment in this report, the State is making good progress in implementing several sections of the Settlement Agreement. The report also notes areas where the State should concentrate its efforts in the upcoming year.

Background and Overview of the Settlement Agreement

On January 25, 2012, eight individual “named plaintiffs” with intellectual or developmental disabilities (I/DD) and an organization, United Cerebral Palsy of Oregon and Southwest Washington, filed a class action Complaint on behalf of themselves and others similarly situated. The lawsuit was filed in the United States District Court for the District of Oregon. The lawsuit alleged that Oregon unnecessarily segregated individuals with I/DD in sheltered workshops, in violation of the rights of these individuals under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
x On August 6, 2012, the Court certified a class comprised of: “all individuals in Oregon with intellectual or developmental disabilities who are in, or who have been referred to, sheltered workshops” and “who are qualified for supported employment services, meaning that they must be eligible for and desire those services.” See Lane v. Kitzhaber, No. 3:12-cv-00138-ST, 2014 WL 2807701, at *8 (D. Or. June 20, 2014).

Independent Reviewer – Lane v. Brown: 2016 Report to the Court

1

x On March 27, 2013, the United States moved to intervene in the matter as plaintiffintervenor, and the Court granted this request on May 22, 2013. The United States alleged that Oregon unnecessarily segregated individuals with I/DD in sheltered workshops and put individuals with I/DD, including transition-age youth, at risk of segregation in sheltered workshops.

x On April 10, 2013, Governor Kitzhaber issued Executive Order 13-04 to prohibit funding for sheltered workshop placements after July 1, 2015 (“closing the front door”), as well as funding for vocational assessments within sheltered workshops after July 1, 2014, and to increase the provision of employment services to achieve integrated employment. Available at https://www.oregon.gov/gov/Documents/executive_orders/eo_13-04.pdf.

x On February 2, 2015, Governor Kitzhaber issued Executive Order 15-01, which superseded the previous Executive Order 13-04 and expanded some of its goals, including increasing the number of people who would receive “employment services” from 2,000 to 7,000 by 2022. Available at https://www.oregon.gov/gov/Documents/executive_orders/eo_15_01.pdf.

x After negotiations overseen by United States Magistrate Judge John V. Acosta, the Parties reached a comprehensive Settlement Agreement, approved by the District Court on December 29, 2015. The Court entered a Final Judgment entering the Settlement Agreement as a court order on January 27, 2016. The Settlement Agreement is available at https://www.oregon.gov/DHS/EMPLOYMENT/EMPLOYMENTFIRST/Documents/Lane%20v%20Brown%20Proposed%20Settlement.pdf.

Under the Settlement Agreement, Oregon agreed to continue its policy of decreasing the State’s support of sheltered workshops for people with I/DD in Oregon, and expanding the availability of supported employment services that allow individuals with I/DD the opportunity to work in competitive integrated employment settings. The Settlement Agreement provides relief to two target populations – (1) adults with I/DD who are 21 years old or older and worked in a sheltered workshop on or after January 25, 2012 (sheltered workshop target population), and (2) transition-age youth with I/DD between the ages of 14 and 24 who are found eligible for services from the State’s Office of Developmental Disability Services (ODDS) (transition-age target population).

x The Settlement Agreement requires that any individual with I/DD working in a sheltered workshop who wants a job in an integrated employment setting and is eligible for ODDS services can ask in the CDP process for and receive supported employment services.

x The Settlement Agreement requires that the State substantially implement and maintain the terms and systemic improvements of Oregon’s Executive Order 15-01. Specifically, over the next seven years, the State must provide 7,000 individuals with employment services. Of this number, 4,900 will be transition-aged youth (14 to 24

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years old). The Agreement requires that at least half of the transition-aged youth who receive employment services, and who apply and are found eligible for Vocational Rehabilitation Services, will receive an Individual Plan for Employment. The state will also provide supported employment and related services so that 1,115 working-age adults (at least 21 years old) who are included in the sheltered workshop target population, obtain Competitive Integrated Employment between July 1, 2014 and June 30, 2022. This is consistent with metric 11 measuring placements in Competitive Integrated Employment (CIE) in the State’s July 6, 2015 Integrated Employment Plan. CIE is work where an individual is paid at least Oregon’s minimum wage and not less than the customary rate paid to non-disabled individuals for the same or similar work. CIE allows people with I/DD to interact with others who do not have disabilities to the same extent that individuals without disabilities in comparable positions interact with other people, and to receive the same benefits provided to other employees.
x The Settlement Agreement requires that ODDS establish and promote a goal that all persons with I/DD who want to work in the community will be afforded an opportunity to pursue competitive employment that allows them to work the maximum number of hours consistent with their abilities and preferences. ODDS has issued guidance that the recommended standard for Supported Employment Services is the opportunity to work at least 20 hours per week, if consistent with individual choice and other factors. ODDS is continuing to work on creating financial incentives for providers to obtain Competitive Integrated Employment at the recommended standard of 20 hours per week.
x All individuals in the Executive Order 15-01’s ODDS/VR Target Population II(1)(a) (the sheltered workshop target population) should have received a Career Development Plan by July 1, 2015. All transition-aged youth with I/DD in Executive Order 15-01’s ODDS/VR Target Population II(1)(b) (the transition-age target population must also receive a Career Development Plan. Using person-centered planning principles, a Career Development Plan identifies the individual’s employment goals and objectives, obstacles to achieving competitive integrated employment, and the services and supports necessary to overcome those obstacles.
x The Settlement Agreement also requires the State to achieve two metrics in its July 6, 2015 Integrated Employment Plan measuring the State’s decreased support of sheltered workshops. From July 1, 2016 to June 30, 2017, the State must reduce the number of individuals with I/DD working in sheltered workshops from 1,926 to 1,530. During this period, the State must also reduce the number of hours individuals spend working in sheltered workshops from 93,530 hours per month to 66,100 hours per month.
x The Settlement Agreement includes provisions covering transition services for youth with I/DD, training, system capacity to provide employment services, funding, data collection, and reporting.

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The Settlement Agreement provides that a neutral Independent Reviewer will evaluate the State’s compliance and issue annual written reports on implementation of the Agreement. The Court retains jurisdiction of this matter while substantial compliance is achieved. The Settlement Agreement includes a dispute resolution process and enforcement procedures by the federal court. The State may defend against an enforcement proceeding by proving an event which substantially impairs or impedes compliance and which was not initiated, created, caused, or substantially contributed to by ODDS or ODE.
The State’s responsibilities under this Settlement Agreement are subject to funding by the Legislature. The State is required to make diligent efforts to obtain funding necessary to comply with the Settlement Agreement. If Oregon fails to attain funding necessary to comply with the Settlement Agreement, the Settlement Agreement may become void and litigation may resume.
Guidelines for Meetings of the Parties
Guidelines outlining the purpose and principles of joint meetings were established to assist the independent reviewer’s work with both parties. These guidelines are listed below:
Purpose of the Meetings of Parties in Lane v. Brown:
x Ongoing communication;
x Status updates;
x Clarification of information;
x Dispute resolution;
x Collaboration to identify obstacles to success within the implementation plan; and
x Opportunity to brainstorm strategies to overcome obstacles.

Guiding Principles for the Joint Meetings in Lane v. Brown:
x Treat others with dignity and respect. x The primary purpose of the meetings is to review the Settlement Agreement to assure it
enhances individual opportunities and systems change for employment outcomes. x The Settlement Agreement is the result of extensive, thorough, and good faith
negotiations.
x The terms of the Settlement Agreement have been voluntarily accepted.

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x The court has jurisdiction over this Settlement Agreement.
x All parties will have access to the same information specific to the Settlement Agreement.
x Meeting agendas will be available two weeks in advance of the meeting to both parties. Both parties will provide input to the agenda three weeks in advance of the next meeting.
x Meetings will be quarterly in 2017 but parties may meet more frequently in 2016, if needed.
x The Independent Reviewer, in consultation with the Judge (if needed), shall determine the status of Settlement Agreement. Either party retains the right to disagree.
x Summary notes on key decision points will be maintained by the Independent Reviewer for each meeting. These will be shared with both parties with an opportunity to review, comment and request changes. Both parties retain the right to maintain their own notes.
x Disability Rights Oregon will communicate on a regular basis with named plaintiffs and solicit their input in language that they understand. If an individually named plaintiff or the organizational plaintiff wishes to provide input at a meeting of both parties, they would be welcome to do so at the beginning of the meeting.
x Both parties can suggest agenda items to the Independent Reviewer no later than three weeks before each meeting.
x Plaintiffs will request data and information from defendants no later than 30 days before each meeting. The defendants will provide the data and information no later than two weeks before each meeting. Data requests must be reasonable and follow the Settlement Agreement. The Independent Reviewer will decide if data requests are too cumbersome or outside the scope of the Settlement Agreement.

Meetings of the Parties for 2016 and 2017
Parties have met (or will meet) to discuss the State of Oregon’s progress on meeting the terms of the Lane v. Brown Settlement Agreement on the following dates:
x June 17, 2016 x September 8 and 9, 2016

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x December 5 and 6, 2016
*The agendas can be found in the Appendix A of this report.
The scheduled dates for the meetings of the parties in 2017 are as follows:
x March 30 and 31, 2017
x July 11 and 12, 2017
x September 27 and 28, 2017
x December 4 and 5, 2017
Summary of the State’s Reported Data for Lane v. Brown for SFY 2016
SA IV.1 - Sheltered Workshops
Settlement Agreement IV.1: By July 1, 2015, Oregon will no longer purchase or fund sheltered workshop placements for: a) transition age youth with I/DD; b) adults with I/DD who are newly eligible for ODDS or VR services; and c) existing adults with I/DD using ODDS or VR services.
Status:
On February 25, 2015 (prior to the Settlement Agreement), ODDS issued policy transmittal APDPT-15-006 and distributed it statewide. Available at https://www.dhs.state.or.us/policy/spd/transmit/pt/2015/pt15006.pdf. The policy transmittal provides that “effective July 1, 2015, ODDS will no longer fund services in Sheltered Workshop settings for individuals who are newly eligible for services, or individuals already using services but not in a Sheltered Workshop setting. Only individuals already using services in Sheltered Workshop settings as of June 30, 2015, may continue to do so after July 1, 2015.” The policy is still in place today.
The State is tracking any new admissions to sheltered workshops, that any admission of a newly eligible adult requires a formal ODDS hearing, and that individuals in sheltered workshops who leave may return within one year of leaving. The State will be providing the plaintiffs and the independent reviewer with an annual report for any first-time admissions to sheltered workshops; a report if any individual class member has left the sheltered workshop for more than one year and requests readmission; and a report of any transition-age youth with I/DD who seeks admission to a sheltered workshop. In addition, the State has agreed to provide notice to plaintiffs and the independent reviewer whenever a new admission is allowed. The Independent Reviewer will review these reports to ensure that any new admissions are

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consistent with the Settlement Agreement. Please see Appendix E for the Policy Transmittal by ODDS on No new services in sheltered workshop settings.
Settlement Agreement IV.2: By June 30, 2017, the State will reduce the number of individuals with I/DD working in sheltered workshops and the number of hours that individuals with I/DD work in sheltered workshops.
Status:
The State will report on this data in the upcoming year and the Independent Reviewer will determine whether the reported information meets the Settlement Agreement’s requirement. To date, the State has made progress in reducing the number of individuals with I/DD working in sheltered workshops and the number of hours that individuals with I/DD work in sheltered workshops consistent with the metrics in the State’s Integrated Employment Plan.
SA IV.2 - Sheltered Workshops
Reduce sheltered workshop census and decrease hours worked in sheltered workshops.
Status:
In the October 2016 Employment First Report, the State reported the following data:
IEP Metric 9
For SFY 2016, the census in Oregon sheltered workshops is to decrease to no more than 1,860 persons.
The State reports that, by March 31, 2016 (3 months prior to the end of SFY 2016), the census in Oregon’s sheltered workshops was 1,405 persons. The State’s October 2016 Employment First Report included the following chart about sheltered employment trends:

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[Source: Oregon DHS Employment First Report, Amended Report, October 2016, at p. 11.]
IEP Metric 10
Decrease hours worked in sheltered workshops in SFY 16 to 80,350 in 2016.
x The State reports that hours worked in sheltered workshops decreased to 73,019, as calculated in the March 2016 EOS Census data (3 months prior to the end of SFY 16).
Based on the State’s reported data, the State has achieved IEP Metrics 9-11 for SFY 2016.
SA V.B - Executive Order Service Outcomes and IEP Metrics
Settlement Agreement V.B.1: Provide Employment Services to 2,200 individuals in the target populations by July 1, 2016 (Executive Order IV.3.c) Status: In its amended Employment First Report of October 2016, the State reported that, as of June 30, 2016,, 2,971 individuals in the target population received an employment service. This is a cumulative number from state fiscal years 2014 through 2016 (July 1, 2013 – June 30, 2016). The State also reported that there were 1,577 unique individuals who received at least one new employment service in SFY 2016.

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The Employment First report contained the following table:

Executive Order Employment Services to Target Population

Employment Service

SFY SFY SFY 2014 2015 2016 Total

VR Entered IPE

430 724 987 2,141

Completed Discovery Profiles

*

287 502 789

New Individual Integrated Employment from ODDS 143 146 266 555

New Small Group Supported Employment

223 138 163 524

Brokerage Employment Service

170 **

** 170

Total Employment Services in SFY 2016 Year

966 1,295 1,918 4,179

Total Unique Clients Served in SFY 2016 Year

882 1,128 1,577 2,971

*Service not available in SFY 2014 **Service no longer available

[Source: Source: Oregon DHS Employment First Report, Amended Report, October 2016, at p. 14.]

Settlement Agreement V.B.1.a: Provide SES to all named plaintiffs by 6-30-16.

Status:

x All eligible named plaintiffs received an employment service in SFY 2016. Two named plaintiffs are employed in competitive integrated employment. There has been some delay with scheduling employment services for others, but the services have been rendered in SFY 2016.

The State reports that the named plaintiffs received the following Supported Employment Services on or before 6/30/2016:
x Gretchen Cason: VR IPE (2/4/2016); Discovery (12/29/2015) x Sparkle Green: VR IPE (7/22/2013); Competitive Integrated Employment (5/27/2015);
Job Coaching (5/2015-6/2015) x Angela Kehler: Discovery (4/27/2016); Supported Small Group (9/14-12/14) x Zavier Kinville: VR IPE (1/13/2015); Competitive Integrated Employment (3/19/15);
Job Coaching (6/2015-ongoing) x Paula Lane: VR IPE (9/26/2013); Competitive Integrated Employment (9/3/15);
Job Coaching (12/15-1/16) x Andres Paniagua: VR IPE (11/12/2013); Discovery (9/1/2015)

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x Lori Robertson: VR IPE (4/28/2015)

Based on the dates that the State reports, several of the named plaintiffs have received Supported Employment Services prior to the January 2016 effective date of the Settlement Agreement. The Independent Reviewer will continue to assess what services these individuals receive since the Settlement Agreement went into effect.
Verification of Requirements:
In order to demonstrate that all named plaintiffs currently residing in Oregon received a Supported Employment Service, the State compiled billing data for Supported Employment Services through eXPRS Plan of Care (ODDS billing system) and service delivery through ORCA (VRs data system). One Named Plaintiff, Elizabeth Harrah, left the state, and therefore, by federal regulation can no longer receive services in Oregon.
Additionally, the State gathered the most recent progress notes and status updates the Named Plaintiff’s Services Coordinator or Personal Agents and VR Counselors.
Named Plaintiff Updates Summary
The State reported the following updates on the named plaintiffs, which the State obtained through reviewing progress notes, ORCA notes, and interviews with VR counselors as well as e-mails from VR Counselors, Services Coordinators and Personal Agents. Disability Rights Oregon, counsel for the named plaintiffs, also provided information about the plaintiffs.
x Gretchen Cason: Gretchen’s VR file was opened 1/20/16 and Gretchen was recently hired to start 10/3/16 at Portland Public Schools.

x Sparkle Green: Sparkle previously had a Competitive Integrated job from 5/27/15 – 6/25/15 which she left as she reported it as being too difficult for her. Sparkle continues in job development and recent started working with a new job developer, Community Vision. Ms. Green completed Discovery in Summer 2016 and received a job shadow at a Home Goods retail store. As a result of the job shadow, she was offered employment assisting with directing customers and to fronting store product displays and stock. Ms. Green was to start after a visit with her family over the end of year holidays. The job offer is being held open for Ms. Green at this time.

x Angela Kehler: Angela was referred to VR on 7/18/16. Intake was completed on 7/26/16 and eligibility completed 9/23, delay due to difficulty getting medical records. Discovery was completed by Dirkse pre-referral to VR. Discovery recommends job readiness class and community assessment prior to job development. VRC will be working with Angela to choose a job developer and determine if she would like to participate in a job readiness class or community

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assessment. Ms. Kehler had a team meeting on November 21, 2016 where she met with two prospective providers – Abilities at Work and Eastco. She decided to work with an Abilities at Work Job Developer.
x Zavier Kinville: Zavier was hired by the YWCA in a child care position 3/19/15 and closed successfully through VR 8/21/15. Zavier is currently enrolled in on-going job coaching through ODDS.Paula Lane: Paula previously had a Competitive Integrated job from 9/3/15 until 2/3/16. Paula is currently receiving employment path community services through Edward’s Center and will have the opportunity to participate in supported small group services when they become available. She has an open file with VR and is in the process of job development through TVW. She meets with her job developer regularly. Paula started Discovery in September and completed it in December 2016. She has subsequently been assigned a new job developer and VR counselor.
x Andres Paniagua: Andres started working with a new job developer (Community Access Solutions) as of July, after meeting and choosing from three providers. This is the fourth employment services provider he has worked with. Mr. Paniagua has since job shadowed with his job developer at a tool maker shop in Hillsboro. His job would be to test tool production quality. He does not have a start date yet.
Lori Robertson: Lori has an aggravated medical condition now reported to limit her to 1 hour per day at her employment path provider, Eastco. The employment team recently decided on a new work assessment to determine appropriate work and required supports with respect to new limitations. Job developer has possible assessment sites at K-Mart and a small boutique. Her Services Coordinator is also going to continue to discuss her choice regarding employment providers and services at an upcoming meeting. Ms. Robertson had a team meeting at VR on November 28, 2016. Eastco indicated that it did not believe it could meet Ms. Robertson’s needs. Ms. Robertson indicated that she would work with a new job developer. The VRC indicated that consultation with a new job developer – Full Life – would be authorized, but that provider has since indicated that it cannot work with Ms. Robertson.

SA VI – Supported Employment, Related Services & Competitive Employment
Settlement Agreement VI.1: Implementation of Supported Employment Services The Settlement Agreement requires ODDS and VR to establish and implement a policy that Supported Employment Services provided under this Agreement shall be individualized,

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evidence-based, flexible, offered in an integrated setting and available as needed and desired, but shall not by mandated as a condition of working or receiving services in an integrated employment setting.
Status:
The State has issued:
x Employment Rule (Chapter 411-345-0025) - Each component of the Settlement Agreement Section VI.1 about “individualized, evidence based, integrated employment setting, and preferences” is found in the Employment Rule in section 0025.
x March 2016 ODDS and VR Memorandum of Understanding (MOU) - The ODDS/VR MOU can be found in Appendix B. The MOU is available online.
To date, the State has established a Supported Employment Services policy whose terms are consistent with the requirements of Settlement Agreement VI.1. The Independent Reviewer will conduct program reviews that will look at, among other things, implementation of the Supported Employment Services policy and other related policies.
Settlement Agreement VI.3 b: Additional Individuals in Sheltered Workshops Will Obtain Competitive Integrated Employment

The requirement is for the State to have successfully assisted 130 individuals receiving sheltered workshop services by the end of State Fiscal Year 2016 to be competitively employed in an integrated place of employment.

Status:

By the end of SFY 2016, the State indicated in the October 2016 Employment First Report that 143 new individuals had worked in Competitive Integrated Employment for 90 days or more.

The State’s method of determining this number may not be accurate. The Settlement Agreement requires that a person must work for 90 consecutive days to be counted as achieving Competitive Integrated Employment. The State counts someone as achieving Competitive Integrated Employment if billing data shows that an individual received at least 3 months of job coaching. However, billing data could reflect 3 months of job coaching even if the individual was not employed for a full 3 months or 90 consecutive days.

The State reports that it is reviewing whether each of the 143 individuals cited in the Employment First Report as achieving Competitive Integrated Employment has worked for 90 consecutive days. The State has confirmed that 141 new individuals worked in competitive integrated employment for 90 days or more as of March 30, 2016. The State will, if needed, revise this number for SFY 2016 when it receives and analyzes end-of-year data. Final data for

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SFY 2016 will be available no later than March 2017.

Based on the State’s reported data, the State has achieved the numerical outcome required in Settlement Agreement VI.3.b.

Settlement Agreement VI.5 – Transition Age Youth Receiving Employment Services & IPE
By July 1, 2022, the State will ensure that at least 4,900 of the 7,000 individuals who are provided Employment Services pursuant to Executive Order IV.3 are members of the transition-age target population. At least half of those 4,900 transition-age target population members shall also receive an Individual Plan for Employment (IPE) with VR.
Status: The State reported the following cumulative numbers in the October 2016 Employment First Report that for SFY 2014-2016 (July 1, 2013 – June 30, 2016):
x 1,859 transition aged youth received at least one new employment service x Out of the total of 1,859 individuals, 1,485-transition aged youth received an IPE.

x About 80% of the transition-age population who received an employment service also received an IPE. The Settlement Agreement requires that by July 1, 2022, at least 50% of the individuals who receive an employment service have an IPE. The State is currently on track to meet this requirement. The state has exceeded the obligation within this reporting year from SFY 2014 through SFY 2016.

Settlement Agreement VI.6 - The State Will Encourage and Facilitate Oregon School Districts to Continue and Expand Models of Evidence-Based Transition Practices.

Status:

The Oregon Department of Education (ODE) will provide an annual summary report beginning in the fall of 2017. This report will list transition programs by district and what ODE has done to encourage and expand evidence-based transition services.

The Independent Reviewer visited a very small sample of transition programs in Oregon within a three-day period from November 1-3, 2016. A member of the state staff accompanied the Independent Reviewer on these visits. During these visits, the Independent Reviewer spoke with and observed students who may be members of the transition-age target population. The Independent Reviewer will make additional site visits in 2017 and will provide observations in future reports when a larger sample is available. The sites that the Independent Reviewer visited in 2016 were: a Youth Transition Program (YTP) site at a high school in Prineville, Bend High School YTP, Sisters High School YTP, Rivers Edge High School, and Brown Education School YTP. It should be noted that YTP programs often include students with a range of disabilities,

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not only intellectual and developmental disabilities covered by the Settlement Agreement. It should be noted that YTP programs often include students with a range of disabilities, not only intellectual and developmental disabilities covered by the Settlement Agreement.
A summary of the Independent Reviewer’s site visits follow.
x The Independent Reviewer visited the high school in Prineville, Oregon, which is a YTP site. The Independent Reviewer observed a joint class with students with disabilities and ROTC students without disabilities on résumé building. Some students in the YTP program described their work experiences. For example, a student had a paid internship in a local museum. Information was provided about the summer work experiences. Some of the youth internship wages were paid by the school YTP program, and another student’s salary and some internships were paid by the employer.
x The Independent Reviewer visited the Bend High School YTP site. The site reported that the February 2015 Memorandum of Understanding (MOU) between ODE/VR/ODDS, which was entered before the Settlement Agreement was negotiated, helped to bring partners to the table. The Independent Reviewer observed students in school work experiences and one in a community work experience. The Independent Reviewer observed a possible mock sheltered workshop activity in the school, special education students were collecting silverware around the school. Settlement Agreement IX.1.4 prohibits mock sheltered workshop activities, yet only students with disabilities performed this activity.
The Independent Reviewer shared her concerns with the school and ODE. The school reported that this work experience was discontinued as of December 9, 2016, approximately 5 weeks after the observation. The Transition Network Facilitator followed up with the school to offer training and technical assistance on alternate options for students.
x The Independent Reviewer visited the Sisters, Oregon high school, which is a YTP site. Elementary students were in community work experiences, in addition to middle and high school students. The program uses a model of paid student job coaches. The Independent Reviewer observed YTP students in a variety of paid jobs, such as camp employee, coffee cart, and City Hall. VR Stimulus funds were used to improve work experiences and the independent reviewer learned of a student with significant disabilities operating a Zamboni- like cleaning machine as part of a paid job within the school.
x At Rivers Edge High School, the Independent Reviewer visited the school coffee shop, which is part of a paid transition training effort. This program is not a YTP site, and unlike the YTP sites the Independent Reviewer observed, this program does not currently have students working in the community.
x The Independent Reviewer visited the Brown Education School, which is a YTP site. The

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students provided the tour of their transition program. Students were gaining work experience in a community vet program and multiple community work experiences.
x The Independent Reviewer met with the Employment First team, which included high school staff, VR staff, ODDS staff, and the Transition Network Facilitator. According to the group, the new Oregon Employment policies are helping to break down silos and are having teams work closely together on the joint goal of employment for transitioning youth.
In 2017, as part of a formal program review, the Independent Reviewer will visit additional transition sites throughout Oregon that include a variety of YTP and non-YTP programs. A list of interview questions is being developed for those visits, and a draft has been shared with both parties prior to the site visits.
Settlement Agreement VI.7 – Individuals in Sheltered Workshops Wanting Job in Integrated Employment Setting Receive Supported Employment Services and Related Employment Services
Any individual in a sheltered workshop who states as part of the Career Development Plan (CDP) process that he or she desires a job in an Integrated Employment Setting will receive Supported Employment Services and Related Employment Services that allow the individual an opportunity to obtain a job. An opportunity is not a guarantee of employment.
Status:
The State has agreed to provide a Career Development Plan (CDP) Report on or before February 28, 2017. The report will contain the State’s annual analysis of CDPs and other documents of individuals currently in Sheltered Workshops. The report on CDPs will include all persons who want Competitive Integrated Employment. The state will report on services requested for a statistically significant sample, and will also look at all CDPs for individuals in a sheltered workshop and report if the plans are complete. Thereafter, the State will provide an annual report due in the fall of each year.
At this time, there is no evidence that everyone in the class had a completed CDP, as of June 30, 2016. The state has reported that they have gathered the CDPs and are in process of analyzing the results. At this time the report is not yet complete.

Settlement Agreement VI.9 –DHS Shall Adopt a Rule Requiring CDDPs and Brokerages to Encourage Individuals in Sheltered Workshop Target Population to Choose to Leave Sheltered Workshops

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Status:
The Oregon Department of Human Services (DHS) adopted a rule requiring community developmental disabilities programs (CDDPs) and support services brokerages to encourage individuals in the sheltered workshop population to choose options other than sheltered workshops. This is reflected in the Case Management Rule, OAR 411-415-0070(2)(i)(G). The rule states in part: “For individuals who use employment services in sheltered workshop settings, the Career Development Plan must document that the individual has been encouraged to choose a community based employment service option and not a sheltered workshop setting option.” This provision of the Case Management Rule satisfies the Settlement Agreement’s requirement that DHS shall adopt a rule on this matter.
As part of a formal program review, in 2017 the Independent Reviewer will be scheduling site visits throughout Oregon to visit with providers, brokerages, CDDPs, and transition programs and assess the implementation of the policy above.

SA VII - Enhancing Employment Options.
Settlement Agreement VII.1.a: Establish and Promote a Goal of 20 Hours as the Standard for Planning and Implementing Employment Services for Individuals with I/DD who Want to Work in the Community and Issue Guidance.
Status:
DHS has established and taken actions in 2016 to promote a goal that all persons with I/DD who want to work in the community will be afforded the opportunity to pursue Competitive Integrated Employment that allows them to work the maximum number of hours consistent with their abilities and preferences. ODDS and VR issued a Joint Action Request Transmittal APD-AR-16-040 dated June 10, 2016. Please see Appendix C for a copy of the Joint Action Request Transmittal.
DHS has issued guidance to VR counselors, ODDS staff, brokerages and CDDPs that the recommended standard for planning and implementing competitive integrated employment will be the opportunity to work at least 20 hours per week. This guidance recognizes that based upon individual choice, preferences and circumstances, some people may choose to work at that level and others may not.
Now that the joint policy has been distributed, the State will provide a joint ODDS and VR report of promotional and/or training strategies on the 20-hour policy. The obligations in this Settlement Agreement section are ongoing, and the Independent Reviewer will be assessing the State’s promotion of this goal.

Settlement Agreement VII.1.b: DHS Will Develop and Seek Approval of New Rates from CMS

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The Settlement Agreement requires DHS to develop and seek approval from the Centers for Medicare and Medicaid Services (CMS) for reimbursement rates for supported employment services for outcome payments or other financial incentives to providers for individuals with I/DD who obtain Competitive Integrated Employment at a monthly average of at least 20 hours per week.

Status:

The State has submitted new rates for Competitive Integrated Employment to CMS for approval during 2016. CMS approved the amendment for Competitive Integrated Employment rates in August of 2016. This approval covers initial, ongoing and maintenance rates for Competitive Integrated Employment. The State began implementation of these new rates as of November 1, 2016.

Settlement Agreement VII.1.c: Provider Transformation Grants and Incentive Payments
The Settlement Agreement requires DHS to continue to include a goal in provider transformation grants that individuals with I/DD obtain Competitive Integrated Employment and work the maximum number of hours consistent with their abilities and preferences. The grants are to continue to provide one-time incentive payments to providers for each person who obtains Competitive Integrated Employment at least 20 hours per week.
Status:
DHS has continued with its sheltered workshop provider transformation grants. One goal of the grants is to increase Competitive Integrated Employment for individuals with I/DD to work the maximum hours consistent with their abilities and preferences. The State reports that there are incentive payments within the transformation grants for employment outcomes for new jobs that are for 20 hours or more of work per week, at minimum wage or better.

DHS announced a new Request for Applications (RFA) for providers to improve employment services and outcomes for individuals with developmental disabilities. More information in this RFA can be found at: http://orpin.oregon.gov or through the July 22, 2016 announcement of new transformation grants (https://www.oregon.gov/DHS/EMPLOYMENT/EMPLOYMENTFIRST/Documents/

RFA%20Transformation%20Message%207-22-16.pdf). As set forth in DHS’s RFA, DHS is seeking service provider agencies looking to transform their business models from the delivery of facility-based employment services (sometimes known as sheltered workshops) for individuals with I/DD to community-based, integrated employment services. Interested providers will be selected via an ongoing application process. DHS will review service provider applications every six months through July 2017 (August 2016, January 2017, July 2017), or until all available

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funding for transformation grants has been awarded.

The RFA provides that the selected providers will receive training and technical assistances as well as an award of up to $150,000 in order to initiate and sustain their transformation from facility-based to community-based employment services. Providers must commit to providing community-based, integrated employment services and to ending facility-based or sheltered employment services.

The RFA states that Living Opportunities, Inc. of Medford and the Washington Initiative for Supported Employment (WISE) will provide training and technical assistance for at least 12 months to the selected providers.

The RFA affirms that investing in provider transformation is part of the DHS strategy to make continual improvements to employment services in Oregon by:

· Increasing capacity, in terms of provider numbers and skill levels, to deliver employment services in integrated employment settings;

· Increasing the opportunities for individuals with I/DD to join the general workforce by being competitively employed in workplace settings typically found in our communities;

· Reducing the use of facility-based services; and

· Assisting providers to comply with new federal rules that require Medicaid-funded services to be community-based.

Settlement Agreement VII 1.d: DHS will issue guidance to Technical Assistance Providers to train employment professionals and job developers on 20 Hours/Week Standard
Status:
DHS is under contract with two technical assistance providers, the Washington Initiative for Supported Employment (Wise) and Living Opportunities, Inc., to train employment professionals and job developers to assist individuals in finding, obtaining and keeping jobs in Competitive Integrated Employment at 20 hours per week or more, if possible. The contract amendments for these two providers were completed December 1, 2016 and will continue through June 30, 2019.

The ODDS and VR Joint Action Request Transmittal #APD-AR-16-040, issued June 10, 2016 and effective June 30, 2016, covers the requirement that technical assistance providers will train professionals and job developers with a goal of Competitive Integrated Employment with the opportunity to work 20 hours per week. See Section VII.1.a above.

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Settlement Agreement VII.2: Report Percentage Receiving SES Working at least 20 Hours/Week in an integrated employment setting
As of July 1, 2016, the Settlement Agreement requires the State to collect and semi-annually report the percentage of individuals with I/DD who receive Supported Employment Services under the Settlement Agreement and who are working in an Integrated Employment Setting at least 20 hours per week. If the percentage does not increase by the percentage required by the Executive Order’s Policy Group, the State and the Independent Reviewer will meet to discuss ways to enhance employment outcomes.
Status:
Metric 5 of the State’s Integrated Employment Plan (IEP) corresponds to the goal referenced in this Settlement Agreement section. Metric 5 sets annual goals for the State to increase the percentage of adults with developmental disabilities receiving ODDS employment services who are working in individual integrated employment settings for 20 or more hours per week. The SFY 15 baseline for Metric 5 was that 10% of adults, a total of 58 individuals, with developmental disabilities receiving ODDS employment services worked in individual integrated employment settings for at least 20 hours per week. The SFY 16 goal was to increase the percentage to 11.1% and the total number of individuals to 67. In the amended October 2016 Employment First Report, the State reported that, according to March 2016 data, this percentage increased to 21.5% and the total number of individuals increased to 181 adults. Based on the State’s reported data, it achieved this outcome metric for SFY 2016.
The State’s amended Employment First Report of October 2016 also reported the percentage of individuals with I/DD in each target population who received Supported Employment Services and who are working in a Competitive Integrated Employment Setting at least 20 hours per week. The Employment First Report contains the following chart that describes the total number of hours worked by all individuals with intellectual and developmental disabilities served by DHS in its employment service system, and is not focused on those in the Target Populations:

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[Source: Oregon DHS Employment First Report, Amended Report, October 2016, at p. 10.] As shown in the chart above, and according to the State’s October 2016 Employment First Report and March 2016 EOS, the average weekly hours were:
x Individual Supported Employment – 12.4 hours per week; x Small Group Employment – 12.7 hours per week; x Sheltered Employment – 13 hours per week; x Employment Path Facility with a wage1 – 12.7 hours per week x Employment Path Community with a wage – 11.4 hours per week; and x Self-employment – 7.4 hours per week. Of the 841 individuals working in Individual Supported Employment, 181 (21.5%) worked an average of 20 hours or more. This is a 212% increase from the 58 individuals who were

1 Not all Service Recipients billed under Employment Path Facility or Community earn a wage.

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counted in the prior year, SFY 2015.
Broken out by target population, the percentage of individuals with WI/DD who receive Supported Employment Services under the Settlement Agreement and who are working in a Competitive Integrated Employment Setting at least 20 hours per week is reflected below.
x For transition-age target population, 19.4 percent of transition-aged youth receive Supported Employment Services and are working in a Competitive Integrated Employment setting for at least 20 hours per week, and
x For individuals from the sheltered workshop target population, 5.6 percent received Supported Employment services and worked in a Competitive Integrated Employment Setting for at least 20 hours per week.

As for the average time that an individual worked in Individual Supported Employment, the State’s EOS data shows that the average for all workers is 3.25 years, with transition-aged individuals working an average of 1.2 years, and current Sheltered Workers working an average of 3.92 years.
SA VIII - Career Development Planning
Settlement Agreement VIII.1
Consistent with ODDS policy and administrative rules, all individuals in Executive Order 15-01’s ODDS/VR Target Population II(1)(a) (the sheltered workshop target population) shall have a Career Development Plan (CDP) by July 15, 2015. DHS shall determine whether all such CDPs have been developed and shall utilize performance based contracting metrics to impose financial penalties on responsible entities that fail to develop a CDP for any person in the target population. Individuals in Executive Order 15-01’s ODDS/VR Target Population II(1)(b) (the transition-age target population) will receive a CDP prior to their expected exit from the school district. If an individual leaves school prior to his or her expected exit, he or she will receive a CDP within one year of the unexpected exit. The provision of Employment Services will not be delayed or denied due to a lack of a CDP.
Status:
x ODDS adopted Case Management Rule 411-415-0070(2) which is a policy to address the requirement to develop a CDP. The policy included a presumption that all individuals in the ODDS/VR target populations are capable of working in an integrated employment setting.

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x Not all individuals in the sheltered workshop target population had a CDP by July 15, 2015.
x The State reports that, as of July 1, 2016, all adults supported by ODDS/VR in a sheltered workshop had a CDP, but some were incomplete. The incomplete CDPs only included demographic information about the person but there was no plan.
x It is not clear how many transition-age students within the transition-age target population have a CDP at this time.
By July 1, 2017, ODDS reports that it will have new contract language with case managers and brokerages that include financial penalties for noncompliance with CDP requirements. The State will provide an annual report of which providers have a plan of correction for noncompliance. The State will change its provider contracts in State Fiscal Year 2016 to list a completed and comprehensive CDP as a required element of the contract. Financial penalties for failure to have a CDP will require federal CMS approval and may not be in place within FY 2017. This topic will be revisited in future meetings of the parties.
All students who are ODDS service eligible will have a CDP before exiting school in State Fiscal Year 2017. A review will be conducted by ODDS using a statically significant sample of students with planned and unplanned school exiting and the status of CDPs. The methodology for this sample will come back to the meeting of the parties for review in the Spring of 2017.
The State is currently behind schedule in its implementation of the deliverables for this section of the Settlement Agreement.

The Independent Reviewer will continue to monitor progress on implementation of this Settlement Agreement requirement and encourages the State to continue working to achieve these outcomes in the upcoming year.

SA IX - Transition Planning for Youth

Settlement Agreement IX.1: ODE shall require that the transition planning process may begin as early as age 14 but must not begin later than the start of the one year period when the student reaches age 16; the transition process shall include information about and provide opportunities to experience Supported Employment Services in Integrated Employment Settings; local educational agencies may not include sheltered workshops in the continuum of alternative placements and supplementary aids and services provided to students; and school instructional curriculum shall not include mock sheltered workshop activities.
Status:
The State has created the following policies, guidance and MOUs:

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1. ODDS/VR/ODE/OCDD MOU
2. Policy Transmittal APD-PT-14-022 and OAR 407-025-0020(1): No vocational Assessments by ODDS or VR in sheltered workshop settings. Effective July 2, 2014, ODDS and VR no longer purchase or fund vocational assessments for individuals with I/DD in sheltered workshops.
3. Policy Transmittal APD-PT-15-006: No new services by ODDS in sheltered workshop settings. Effective July 1, 2015, ODDS will no longer fund sheltered work or services in a sheltered workshop setting, for individuals who are newly eligible, or individuals already using services but not in a sheltered workshop setting.
4. Policy Transmittal APD-PT-15-022 and OAR 407-025-0020(2): ODDS and VR shall no longer purchase or fund sheltered workshop placements for transition-age individuals with I/DD, any working age individual with I/DD newly eligible for ODDS or VR services, and any working age individual with I/DD already utilizing ODDS or VR services who is not already working in a sheltered workshop
OAR 581-015-2245(3) ODE: Alternative placements and supplementary Aids and Services Rule.
Mock Sheltered Workshop Guidance: Issued September 22, 2016. Available at http://www.ode.state.or.us/news/announcements/announcement.aspx?ID=14115&TypeID=4.
ODE Supported Employment Services Guidance: Issued December 13, 2016. Available at http://www.ode.state.or.us/news/announcements/announcement.aspx?ID=14256&TypeID=4. See Appendix D.
These policies and guidance are generally consistent with the Settlement Agreement.
At this early stage in implementation, the Independent Reviewer has not assessed the State’s progress on this section of the Settlement Agreement. Based on the Independent Reviewer’s preliminary discussions with impacted families, it is not clear that students and families understand that transition services may begin as early as age 14 for students, and that the transition process shall include information about and provide opportunities to experience supported employment services in integrated employment settings. The above polices may need to be revised and or the State may need to ensure that school personnel as well as students and families are aware of the above. The State should take proactive steps to ensure that students with disabilities and their families are aware of their rights during the transition process, including the focus on employment.
This is an area that can be improved. The obligations in this section of the Settlement Agreement are ongoing, and the Independent Reviewer will continue to assess the State’s implementation of this section. The Independent Reviewer’s upcoming program and client

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reviews will provide additional information to help assess this area of the Settlement Agreement.
Settlement Agreement IX.2: The state will develop a broad based professional development plan for transition services. Status: ODE reports that it is working on a professional development plan for transition services. At this time, the report has not been shared with the independent reviewer. Therefore, the Independent Reviewer cannot assess the State’s implementation of this Settlement Agreement requirement. This is an area that can be improved.
SA X - Training
Settlement Agreement X.1: The State shall maintain a technical assistance provider to offer training on evidence-based practices to supported employment providers through June 30, 2019 Status: Oregon has two training contracts for the provider employment transformation grants. The State has contracts with Wise and Living Opportunities, Inc. that are in place through June 30, 2019. The State has made good progress in this area.
SA XI - Provider Capacity
Settlement Agreement XI.1: Subject to the availability of sufficient funding, the State will maintain provider transformation grants until at least June 30, 2019. DHS will make diligent efforts to obtain sufficient funding.
Status:
The State has agreed to provide an annual report of capacity building efforts. See above.
SA XII - Funding
Settlement Agreement XII.2: The State will make diligent efforts to obtain the necessary funding to comply with the Settlement Agreement.

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Status:
The State has shared their preliminary budget information, as allowed by statute, on its efforts to obtain necessary funding, appropriations, and expenditure authority. The Agencies requested budgets were submitted September 1, 2016 to the Governor’s Office. The Governor’s proposed budget was made available December 1, 2016. Funding Allocation decisions will be made available at the end of legislative session in June/July of 2017.
This Settlement Agreement section creates an ongoing obligation, and the Independent Reviewer will continue to assess the State’s efforts to obtain funding in the future.
SA XIII - Data Collection and Reporting
Settlement Agreement XIII.1.a-b: Starting January 1, 2016, the State is required to report specific data about the target populations twice a year. Starting on July 1, 2016, the State is required to report specific information about supported employment services and providers once a year.
Status:
The State is providing semi-annual data reports to Plaintiffs and the Independent Reviewer. The data is reflected in this report. The following is a summary of the data most recently provided in the State’s October 2016 Employment First Report that describes the total number of individuals with intellectual and developmental disabilities served by DHS who receive any type of employment services, and is not focused on those in the Target Populations:
Office of Developmental Disabilities Services - Employment Services in March 2016: x 841 individuals used Individual Supported Employment; x 591 individuals used Group Supported Employment; x 943 individuals used Employment Path Community and earned a wage; and x 1,452 individuals used Employment Path Facility and earned a wage.
Vocational Rehabilitation - Employment Services to ODDS Clients in SFY 2016: x 1,832 applicants to VR, an annual increase of 29 percent; x 1,474 individuals entered an Individualized Plan for Employment (IPE), an annual increase of 39 percent; and x 563 successful closures with Competitive Integrated Employment, an annual increase of 29 percent.

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Sheltered Employment: There were 1,405 workers in Sheltered Workshops in March 2016, which is a decrease of 532 individuals from March 2015.
Average Hours and Wages: For individuals working in Individual Supported Employment with ODDS employment services, average wages were $9.69 per hour. Average hours worked per week were 12.4.
Settlement Agreement Service Goal: Executive Order 15-01 required at least 2,200 transitionage or sheltered workers to be given an employment service from July 1, 2013 to June 30, 2016. This number was surpassed with 2,971 individuals receiving a new employment service.
Services for Transition-Age Individuals: Of the 2,971-people described in the paragraph above as having received an Employment Service, 1,859 were transition-aged individuals. The Settlement Agreement also requires that at least 50% of those transition-age individuals receive an IPE. Of the 1,859 counted, there were 1,485 transition-age individuals counted as receiving an IPE, (79.9%).
The State’s revised Employment First Report includes data for each Target Population in the appendices. That data indicates that for the sheltered workshop target population:
x Of the 841 individuals who used Individual Supported Employment in March 2016, 36 were members of the sheltered workshop target population. These individuals worked an average of 7.1 hours per week and earned an average hourly wage of $9.81.
x Of the 591 individuals who used Small Group Employment in March 2016, 62 were members of the sheltered workshop target population. These individuals worked an average of 6.3 hours per week and earned an average hourly wage of $9.29.
x Of the 943 individuals who used Employment Path Community and earned a wage in March 2016, 164 were members of the sheltered workshop target population. These individuals worked an average of 4.8 hours per week and earned an average hourly wage of $6.73.
x Of the 1,452 individuals who used Employment Path Facility and earned a wage in March 2016, 1,405 were members of the sheltered workshop target population. These individuals worked an average of 13 hours per week and earned an average hourly wage of $4.69.
For the transition-age target population that data indicates:

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x Of the 841 individuals who used Individual Supported Employment in March 2016, 196 were members of the transition-age target population. These individuals worked an average of 12.3 hours per week and earned an average hourly wage of $9.43.
x Of the 591 individuals who used Small Group Employment in March 2016, 79 were members of the transition-age target population. These individuals worked an average of 11.9 hours per week and earned an average hourly wage of $9.30.
x Of the 943 individuals who used Employment Path Community and earned a wage in March 2016, 93 were members of the transition-age target population. These individuals worked an average of 13.8 hours per week and earned an average hourly wage of $6.59.
x Of the 1,452 individuals who used Employment Path Facility and earned a wage in March 2016, 118 were members of the transition-age target population. These individuals worked an average of 11.5 hours per week and earned an average hourly wage of $5.24.
Settlement Agreement XIII.1.c: ODE will collect specified additional information in the PostSchool Outcomes surveys and will collect information from all school leavers starting in July 2016.
Status:
The State has not yet reported the Post-School Outcome survey results for the 2015-2016 school year or provided the independent reviewer with copies of the survey results.
Executive Order (EO) Provisions Referred to in the Settlement Agreement
The Settlement Agreement requires the State to substantially implement and maintain Executive Order 15-01 – “Providing Employment Services to Individuals with Intellectual and Developmental Disabilities.” (Settlement Agreement V.A.1). The State’s progress on EO provisions that have not yet been addressed in this report is discussed below.
EO VI.1: Competency-Based Training and Certification Standards
The EO requires ODDS and VR establish competencies for employment service providers and to establish competency-based training standards for Career Development Plans, job creation, job development, job coaching, and coordination of those services.

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Status:
ODDS and VR have amended their rules and policies to require documentation of staff competency based training and certification. OAR 411-435, APD-PT-14-029, and APD-AR-16079. All employment specialists (anyone delivering an employment service) must pass core competencies and take at least one formal training and all employment providers must have at least one staff who is ASPE or ACRE certified trained staff.
VR verifies certification requirements for staff when they redo contracts with providers. ODDS licensure review is conducted every two years. iLearn helps to ensure that training information on core competencies is complete and tracked if a staff leaves one agency and moves to another agency. Providers can upload other training certifications such as APSE and ACRE into iLearn for tracking purposes. If a provider does not meet minimum qualifications for training, the provider is not able to provide employment services without an ODDS-approved variance. Plaintiffs requested that the independent reviewer add a question about how many staff have APSE or ACRE certification as part of her reviews with providers, etc. Direct support workers must have core competencies completed and self-reported to ODDS to provide employment services as of December, of 2016.
Personal support workers can only do job coaching and do not require certification. Licensure reviews this data by provider every two years. There is a statewide tracking document of which staff, by provider, has APSE certification and OELN Training certification.
EO VII - Outreach and Awareness
The EO requires ODDS and VR to create an outreach and information program for members of the ODDS/VR target population about the benefits of employment and to encourage individuals with I/DD to seek employment services.
Status:
The State issued a Communication Plan on, The Communication Plan is shared and posted online at https://www.oregon.gov/DHS/EMPLOYMENT/EMPLOYMENTFIRST/Documents/Phase%202%20Outreach%20and%20Communications%20Plan_2016_Final.p df and http://www.oregon.gov/DHS/EMPLOYMENT/EMPLOYMENTFIRST/Documents/Revised%20Outreach%20Awareness%20Plan%20Final%202015-16.pdf. It will be updated as needed. Any updates to the Communication Plan will be reviewed by the EO Policy Committee.
EO X - Educational Provisions
The EO requires the State to use specific strategies to improve transition services and prepare transition-age youth with I/DD for Competitive Integrated Employment.
Status:

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The State has taken steps to implement the strategies set out in this EO provision, including contracting with FACT Oregon to provide outreach to families. Before signing the Settlement Agreement, the State created a Transition Technical Assistance Network (TTAN) consistent with the EO’s strategies. The TTAN has employed eight full-time Transition Network Facilitators to work since July 2015 to work with school districts and adult service agencies to provide technical assistance regarding transition services. The Independent Reviewer will continue to assess the State’s progress on this requirement.
According to the State, the Transition Technical Assistance Network (TTAN) team was created to support the Governor’s Executive Order (No.13-04 & 15-01) to further improve Oregon’s systems of designing and delivering employment services for students with disabilities. As of July 2015, the Transition Technical Assistance Network includes ODE’s Secondary Transition Liaison, eight full-time Transition Network Facilitators, and one Regional Employment Coordinator and Trainer. The network is in its third year of development.
As noted in the State’s description of the TTAN, the role of the Secondary Transition Liaison includes facilitation of the TTAN and specifically, the oversight of the Transition Network Facilitators. The role also includes acting as the liaison between ODE and the Department of Human Services in the work of the Governor’s Executive Order and supporting their obligations under the Lane vs. Brown settlement agreement.
The State explains that the role of a Transition Network Facilitator (TNF) is to act as the primary liaison for regional school districts and adult service agencies. This work includes improving communication and collaboration between agencies, and assisting school districts in supporting the efforts of Vocational Rehabilitation in the implementation of the Workforce Innovation and Opportunity Act; specifically, the provision of Pre-Employment Transition Services (Pre-ETS). The Regional Employment Coordinator and Trainer provides work training to local education agencies regarding developing and maintaining successful community work experiences.
The State’s overall vision of the TTAN is to support alliances that will improve opportunities for individuals who experience disabilities so they can live full lives integrated in Oregon communities based on choice. The goals of the Transition Technical Assistance Network include:
x Provide technical assistance to educators for students with disabilities who are of transition age.
x Develop strategies for successful team facilitation and planning.

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x Continue to develop relationships with community partners such as Vocational Rehabilitation, Developmental Disabilities, County Mental Health, family advocacy programs, etc.
x Implement training and professional development for regional partners on policy and systems change.
x Provide support to districts in understanding Pre-ETS.
The State’s documents describe the Educator Institute on Networking and Transition I and II as a series of 16 full day regional trainings designed and implemented by the TTAN in June-August 2014 and June-August of 2015 specifically for middle and high school special education teachers to learn more about adult service agencies and effective strategies to assist students with disabilities in the transition process. In all over 700 teachers attended these trainings. Topic sessions at the trainings included presentations provided by adult service and parent advocacy representatives around introduction to Vocational Rehabilitation, introduction to Developmental Disability Services, Benefits Planning, Person Centered Planning, Local Employment First Groups, Family Advocacy Groups, and training opportunities for families.
Ongoing Educator Institute on Networking and Transition trainings have been customized by the TNFs for each of their regions. These trainings are tailored to the needs of each region as identified through a needs assessment done by each TNF in their region. These trainings continue to be ongoing and are supported by ODE. During the 2015-16 school year, the TNF’s completed 22 additional Educator Institute trainings and 7 are already scheduled for the 20162017 school year
ODE Transition Network
Region 1 (Multnomah, Washington) Regional Employment Coordinator and Trainer (Clatsop, Columbia)
Region 2 (Tillamook, Yamhill, Polk, Marion)
Region 3 (Lane, Lincoln, Linn, Benton)
Region 4 (Douglas, Coos, Curry)
Region 5 (Josephine, Jackson, Klamath)
Region 6 (Clackamas, Wasco, Hood River, Sherman, Gilliam)

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Region 7 (Jefferson, Deschutes, Crook, Wheeler, Lake)
Region 8 (Morrow, Umatilla, Union, Wallowa, Baker, Grant, Harney, Malheur)
In addition, ODE amended the contract with Oregon Parent Training Institute (PTI) which for last year was FACT. ODE will provide an annual report of the outreach provided by the Oregon PTI.

EO XI.1: MOU with ODDS/VR/ODE
The EO requires the State to develop at least one MOU between ODDS, VR, and ODE addressing allocation of responsibility, funding commitments, and authority to implement the EO; collaborating to achieve the EO’s employment outcomes; coordinating funding to achieve the EO’s goals; and coordinating outreach to the target populations.
Status:

The MOU has been recently updated.

EO XII: Quality Assurance/Quality Improvement Plan
The EO directs DHS to develop and implement a quality improvement initiative to promote and evaluate the quality of Employment Services provided under the EO.
Status:

The Quality Assurance/Quality Improvement Plan (QA/QI Plan) from 2014 was updated in 2016. In comparing the 2014 plan to the 2016 plan, the Independent Reviewer has several concerns. This is the second version of the plan. The 2016 version of the QA/QI plan is vaguer with fewer measures, instead of greater detail. There are fewer quality metrics in the 2016 QA/QI plan compared to the 2014 version. It the opinion of the Independent Reviewer that the state would be better served to utilize the 2014 version of the QA/QI plan.

EO XIV: EO Policy Group and Integrated Employment Plan
The EO calls for the creation of a policy group including individuals from ODE, DHS, legislators, and stakeholders to make recommendations about implementation of the EO and to recommend and monitor metrics to assess the State’s performance.
Status:
x The policy group meets monthly. Disability Rights Oregon is a member of the EO Policy Group.

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x The Integrated Employment Plan is complete. The IEP may be revised from time to time. Reporting on its metrics are mandated for 9, 10 and 11, as well as the number of people working 20 hours or more a week.
x ODDS is working to update metrics for the Integrated Employment Plan with input from the EO Policy Group. ODE has recently recommended deleting the IEP metrics on education.
Client Review

In 2017, the independent reviewer will be conducting client reviews with individuals in the sheltered workshop and transition-age target populations. The Independent Reviewer has a subcontract with Celia Feinstein of Temple University to serve as an expert for the collection, aggregation and interpretation of quality metrics specific to the individuals in the target populations.

Individual Assessment for the Lane Independent Review

1. A sampling strategy will be determined, to insure a representative sample is chosen for
the three groups of individuals of interest to the parties and the Independent Evaluator
– those who are employed, those who are leaving sheltered workshops and those
transitioning from school to adult life.
2. Use all employment/transition questions from the National Core Indicators Survey. National Core Indicators (NCI)™ is a voluntary effort by public developmental disabilities agencies to measure and track their own performance. The core indicators are standard measures used across states to assess the outcomes of services provided to individuals and families. Indicators address key areas of concern including employment, rights, service planning, community inclusion, choice, and health and safety. The instrument possesses the statistical qualities of reliability and validity and is currently being used in 46 states.
3. Use all employment questions from the Essential Data Elements Survey, the data collection instrument that supports Independent Monitoring for Quality (IM4Q), the supplemented version of the NCI used in Pennsylvania. The EDE survey has been determined to possess reliability and validity.
4. Use the Transition Survey, developed in PA to supplement the EDE. The transition survey is typically used for individuals between the ages of 14-26, to gain perspective on the transition experience.
5. Meet with the staff at the Oregon Health Sciences University Center for Excellence (OHSU) to discuss data collection by students and staff. OHSU is currently involved in collecting all data for the National Core Indicators and would be a sensible choice for collecting data for the Lane individual reviews.
6. Present all proposed questions to all parties; once accepted, create the final individual instrument. (Feb, 2017)
7. Meet with parties to finalize instrument and process (March, 2017) 8. Begin annual data collection (May, 2018)

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9. Data will be collected on an annual basis 10. Data will be analyzed on an annual basis with a report submitted by the research team
to the Independent Evaluator and all parties.

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Program Review
The Independent Reviewer will conduct a series of interviews in calendar year 2017 of providers specific to this settlement agreement. The independent reviewer will travel to five to eight areas of the state to interview providers of competitive integrated employment, case management entities which includes brokerages and County Developmental Disability Programs (CDDP’s), and transition programs.
The areas of the state to be covered include but are not limited to:
x Portland Area x Marion County x Roseburg or Medford Area x East Oregon near Pendleton or Ontario x Bend Area and x The Coast.
Interview questions are being developed and a draft has been shared with both parties. The purpose of collecting this information is to review implementation of the settlement agreement at a local and regional level.

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CONCLUSION SUMMARY OF IMPLEMENTAION FOR SFY 2016 BY THE NUMBERS:

Vocational Rehabilitation (VR) Employment Services to ODDS Clients in State FY 2016 x 1,832 applicants to VR, an annual increase of 29 percent; x 1,474 individuals entered an Individualized Plan for Employment (IPE), an annual increase of 39 percent; and x 563 successful closures with Competitive Integrated Employment, an annual increase of 29 percent.

Sheltered Employment: There were 1,405 workers in sheltered employment in March 2016, which is a decrease of 532 individuals from March 2015.

Average Hours and Wages: For individuals working in Individual Supported Employment with ODDS employment services, average wages were $9.69 per hour. Average hours worked per week were 12.4. In the first year of implementation, the State has made progress in implementing many areas of the Settlement Agreement. Highlights of that progress include the following.
The Oregon ODDS has completed and distributed policy transmittals and distributed those polices statewide. The State is tracking any new admissions to sheltered workshops. Any admission of a newly eligible adult requires a formal ODDS hearing. Class members are allowed to leave and reenter a sheltered workshop for up to one year. The State will provide to plaintiffs and the independent reviewer an annual report for any first-time admissions to sheltered workshops; a report if any individual class member has left the sheltered workshop for more than one year and requests readmission; and a report of any transition age youth with I/DD who seeks admission to a sheltered workshop. In addition, the State has agreed to provide notice to plaintiffs and the independent reviewer whenever a new admission is allowed.
DHS has established and promoted a goal that all persons with I/DD who want to work in the community will be afforded the opportunity to pursue Competitive Integrated Employment that allows them to work the maximum number of hours consistent with their abilities and preferences.
The State has submitted new rates for Competitive Integrated Employment to CMS for approval. CMS approved the amendment for employment rates in August of 2016. This approval covers initial, ongoing and maintenance rates for employment. The State began to implement the new rates as of November 1, 2016.

DHS has continued with its sheltered workshop provider transformation grants. The goal of the grants is to increase Competitive Integrated Employment for individuals with I/DD to work the maximum hours consistent with their abilities and preferences. There were 25 transformation grants funded in SFY 2015. There are 15 transformation grants funded so far in SFY 2016, but

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others are expected.
DHS is under contract with two technical assistance providers to train employment professionals and job developers to assist individuals in finding, obtaining and keeping jobs in Competitive Integrated Employment at 20 hours per week or more, if possible. The State is now collecting and reporting the percentage of individuals with I/DD who receive Competitive Integrated Employment and who are working in these settings at least 20 hours per week.
As such, the state of Oregon has made good progress in the implementation of the Lane v. Brown settlement agreement for 2016. There are a few areas that could be improved. The independent reviewer encourages the State to concentrate its efforts in 2017 on the CDP provisions of the Settlement Agreement (SA Sections VI.7 and VIII), transition planning for youth (SA Section IX), data collection and reporting, including Post School Outcome Survey data (SA Section XIII), and the Quality Assurance/Quality Improvement Plan (EO XII). Overall, the State’s progress is steadily moving forward.
Cathy Ficker Terrill
Independent Reviewer 2016

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APPENDIX A Meeting Agendas
Independent Reviewer – Lane v. Brown: 2016 Report to the Court – Appendix A

Lane Implementation Meeting Agenda
June 17, 2016
1. Welcome and Introductions
2. Review Guiding Principles
3. Open Meetings Act Not Applicable to these meetings
4. Start date for Lane v Brown settlement agreement
5. Obligations and deadlines in the Settlement Agreement, including requirements of the executive order
6. ODDS Policy and Regulatory Changes on the 20-hour policy; Employment Rule and Case Management Rule
7. Employment First Employment First data and report Training WISE Provider transformation grants update Status of the Integrated Employment Plan EO Policy Group: role and documents
8. VR Policy and Regulatory Changes on the 20-hour policy and other proposed rule changes that impact Lane v Brown Youth Transition Projects as it relates to Lane V Brown WIOA implementation for class members as it relates to Lane V Brown
9. ODE Policy Directives on Mock sheltered workshops for the school year starting August, 2016 Baseline to track target populations Transition pilots update, Project Search as it related to Lane v Brown Regulatory changes specific to transition services related to Lane v Brown
10. Federal CMS Waiver amendments updates including any changes to rates
11. Documents Base line for data collection Plaintiffs’ January 14, 2016 list and defendants’ chart/response New document requests
12. Meeting Dates for 2016

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Lane Implementation Meeting Agenda
September 8-9, 2016 9 am until 5 pm
Location in Portland to be determined
I. Settlement Agreement Obligations and Deadlines: What is to be measured? What date is expected? How often will the state report? What is the measure of success?
A. Sheltered Workshops (SA IV) 1. Status: No longer purchasing or funding new SW placements (SA IV.1)
B. Settlement Agreement, Executive Order Outcomes & IEP Metrics (SA V.B) 1. Status: Provide Employment Services to 2,200 individuals (SA V.B.1/EO IV.3.c) report annually 2. Status: Decrease census of SWs to 1,860 or 1,530 in SFY 16 (SA IV.2; IEP Metric 9, p. 76) report annually 3. Status: Decrease hours worked in SWs to 80,350 or 66,100 in SFY 16 (SA IV.2; IEP Metric 10, p. 77) report annually 4. Status: Increase adults in SWs who obtain CIE to 130 in SFY 16 (IEP Metric 11, p. 77) report annually 5. Status: provide SES to all named plaintiffs by 6/30/16 (SA V.B.1.a)
C. Competitive Integrated Employment (SA VI) 1. Implementation of Supported Employment Services policies (SA VI.1-2) 2. Status: 130 additional individuals in SWs obtain CIE by 6/30/16 (VI.3.b) 2017 160 2018 170 2019 170 2020 150 2021 130 2022 100 3. Number of transition age youth who have received employment services & how many have received IPE (SA VI.5) 4. Expansion of evidence-based transition services (SA VI.6) a. Seamless Transition Model b. Project Search c. YTP 5. Individuals who want SES (SA VI.7) 6. Rule encouraging individuals in SW Target Population to choose to leave SWs (SA VI.9) a. Status: rule b. integrated day services

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C. Enhancing Employment Outcomes (SA VII) 1. Establish goal of 20 hours and issue guidance by 6/30/16 (SA VII.1.a) a. Implementation of ODDS Guidance b. Implementation of VR Guidance 2. Status: Seek approval of new rates from CMS by 6/30/16 (SA VII.1.b) 3. Continue Provider transformation grants by 6/30/16 (SA VII.1.c) a. Outcomes of incentive payments for new jobs > 20 hours b. Update on which providers applied by 8/26/16 and who has been selected 4. Guidance to TA providers on 20 hours per week standard by 6/30/16 (SA VII.1.d) 5. Starting 7/1/15, State will semi-annually collect and report percentage of individuals with I/DD receiving SES under SA and who are working at least 20 hours per week in integrated employment (SA VII.2) semiannually reporting
D. Career Development Plans (SA VIII) 1. Status: all persons in SW have a CDP & all transition age youth receive CDPs prior to exiting school a. tracking process for adults in SWs and youth b. outcomes and quality review process
E. Transition Planning (SA IX) 1. Outreach that State has done to make parents aware of SA provisions on transition 2. Status: transition planning for youth ages 14 and higher (SA IX.1) 3. Mock Sheltered Workshops – revised guidance (SA IX.1) 4. Status: professional development plan (SA IX.2)
F. Training (SA X) 1. Status of current training year 2. Changes to the contract for next FY
G. Provider Capacity (SA XI) 1. Status of current grantees a. Expected outcomes b. Actual outcomes 2. Status: provider expansion grants
H. Status: Data Collection (SA XIII) 1. Client data 2. Provider data 3. Post-school outcome data

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I. Executive Order Provisions not covered in Settlement Agreement (SA V.A) 1. Competency-based training & certification (EO VI.1) a. Tracking of SES staff training and competency b. Tracking of certification 2. Outreach and Awareness (EO VII) a. education program for persons in ODDS/VR Target Population b. Outreach and Communication Plan 3. Provider capacity (EO VIII) 4. Education Provisions (EO X) a. transition technical assistance b. ODE contract for outreach c. ODE staff specialists d. Statewide Transitional Assistance Network 5. MOU between ODDS. VR, and ODE covering all points in EO XI.1 6. QA Plan (EO XII) 7. EO Policy Group (EO XIV)
III. Integrated Employment Plan IV. ODDS
A. Implementation of Employment Rule (Chapter 411, Division 345) B. Implementation of Case Management Rule (Chapter 411, Division 415) V. VR A. VR SE Rule Revisions B. WIOA VI. CMS/OHA A. Waiver amendments VII. Next Meeting Date: Dec. 5 and 6; March 7 and 8, 2017 Appendix B

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Lane Implementation Meeting Agenda
December 5 1 pm until 5 pm December 6, 2016 9 am until 5 pm Larkins and Vacura Offices 121 SW Morrison Street Portland, Oregon
I. PI’s and DOJ’s 10-3-16 memo, state’s response on implementation issues II. PI’s and DOJ’s 10-6-16 memo, state’s response on policy/rule issues III. Independent Reviewer’s Revised Chart of settlement agreement obligations IV. Review of revised October data report on Employment First Data V. Revised Competitive Integrated Employment data VI. ODE’s SES Guidance VII. Update on tracking credentialed employment staff in provider agencies VIII. Report of independent reviewers visit to observe students in transition in central
Oregon IX. Status of report on people leaving sheltered workshops due after Jan. 2017 X. Update on named plaintiff’s status XI. Status of the EO Policy Meetings on the IEP metrics XII. Update on client review by the court monitor XIII. Update on status of Career Development Plans XIV. Implementation of Mock Sheltered Workshop Guidance XV. New Business XVI. Next Meeting March 7 and 8, 2017 XVII. Meeting Dates for 2017

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ODE Guidance: Avoiding Mock Sheltered Workshop (MSW) activities in schools – What they are and how this requirement impacts planning for appropriate vocational instructional activities. Overview

This guidance document is provided for special education directors, secondary special education teachers, administrators and transition specialists. The Settlement Agreement for the Lane vs. Brown case was approved in December 2015, and relates to persons with intellectual and developmental disabilities (I/DD) who worked in or were referred to sheltered workshops. There has been some confusion regarding the definition of Mock Sheltered Workshop (MSW) activities contained in the Settlement Agreement and their prohibition within public schools. Clarification is needed around pre-vocational activities, similar to those that might occur in a sheltered workshop.

Mock Sheltered Workshop - Inappropriate Activities

The Settlement Agreement defines MSW activities as: "Mock sheltered workshop activities" are prevocational training activities (for example, folding, sorting, shredding, packaging, and labeling activities) that are:
a. Conducted during the school day; b. Performed only by students with disabilities; c. Closely resemble the vocational work tasks performed by adults with I/DD in
Sheltered Workshops, including by being activities: 1. designed to fulfill the demands of a contractor, business, charitable organization, school or school district, retail store, or other entity; and 2. performed by individuals without compensation or in exchange for subminimum wages; and
d. Not part of an instructional sequence, such as teaching generalization of skills. Instructional sequence does not include instruction that consists solely of the activities described in all of (a), (b), and (c) above. (Section II.6).

It is important to become familiar with the definition, language and scenarios of MSWs in order to help make determinations about appropriate activities in your district. Appropriate pre-vocational activities/transition services must be included in a student’s program as a part of a vocational instructional sequence and be aligned to a student’s measurable postsecondary goals that are based upon the student’s preferences, interests, needs and strengths (PINS). Appropriate and measurable post-secondary goals for students with disabilities, including intellectual and developmental disabilities, are competitive, integrated employment opportunities.

What Is An ‘Instructional Sequence’?

An instructional sequence is the effective ordering of content in such a way as to help the student learn a skill. It is the task analysis of a skill, whereby the task is broken down into its component parts for the purpose of systematic instruction. A vocational instructional sequence should be related to the student’s post-secondary goal of integrated employment. The vocational instructional sequence should also be tied to the student’s transition services focusing on interests and needs. Periodic reviews of student progress should be conducted so that a student does not continue with a vocational instructional sequence after the

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skill has been mastered and generalized. When skills are achieved, the student, parent and IEP team should identify and implement new vocational goals that support successful work experiences.
Examples of Mock Sheltered Workshop Activities that ODE Does Not Allow  A sheltered workshop contracts with a school district to provide labeling of packages at a district high school. The school district arranges for students with intellectual disabilities to do the labelling work – nondisabled students are not involved. The school sees some benefits for students with disabilities, but the labeling is not part of an instructional sequence. The students are paid a subminimum wage.  A school district program operates its own coffee cart. The only students working with the cart are students with disabilities, though peers without disabilities may sometimes assist in mentoring. The program benefits from the proceeds of the coffee cart to support its continued availability. Students learn how to make coffee drinks, serve patrons and order needed materials. They also gain some good work habits, but this is not part of an instructional sequence related to individual student’s IEP goals or transition program.  Students with intellectual disabilities are assigned by a school to help shred papers. Some staffs believe the tasks will benefit the students, but the tasks are not part of an instructional sequence. Students without disabilities do not participate in this activity, which is unpaid and meets a need of the school.
Each of these pre-vocational/transition activities are inappropriate and are considered MSW activities because the school activity:
¾ 1)is conducted during the school day ¾ 2)is performed only by students with disabilities ¾ 3)is similar to work tasks performed in sheltered workshops and designed to fulfill the
demands of a business or school without compensation; and ¾ 4)is not part of an instructional sequence, such as teaching generalization of skills.
Examples of Appropriate Pre-vocational Activities/Transition Services (That Are Not Mock Sheltered Workshop Activities)
 A high school is engaged in a fundraiser to support its students and programs. A special education classroom at the school consists of students with intellectual disabilities. Students with and without disabilities stuff envelopes together with letters to parents asking them to help with the fundraiser. Students in the special education classroom participate. This is not a mock sheltered workshop activity, because the activity is not performed only by students with disabilities.
 A school has a voluntary recycling program, in which students are asked to help out by sorting cans and bottles. Proceeds from the program help pay for school activities. The IEPs for some students with intellectual disabilities provide that students should spend a limited time in sorting activities, including the sorting of recycling materials, as part of an instructional sequence related to the student’s measurable post-secondary goals, to be followed as appropriate by other instructional activities in the sequence. Students with and without disabilities participate together in the program during the school day. Students are not paid for this activity. This is not a mock sheltered workshop activity, because the work is part of a vocational instructional sequence for students, related to their post-secondary

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goals, including teaching generalization of skills. In addition, both students with and without disabilities work in the recycling program.  A school has a deli store on site, where students with and without disabilities work side-byside. All students are paid at minimum wage. Students with disabilities that work in the deli have specific IEP goals related to pre-vocational skill acquisition. The work includes a full-range of work-related tasks and skills, such as preparing and serving food, running a cash register and ordering weekly supplies. This is not a mock sheltered workshop activity 1) because all students are paid at minimum wage, 2) because the activity is not limited to students with developmental disabilities, and 3) because students with disabilities participate based on targeted vocational skill development identified in their individual transition plans, as part of a vocational instructional sequence.
These activities are appropriate and are not considered a MSW activity because the school activity: ¾ 1)is not performed only by students with disabilities ¾ 2)is not similar to activities performed by adults with I/DD in a sheltered workshop solely designed to fulfill the needs of a business or school ¾ 3)pays students at minimum wage, or ¾ 4)is part of a vocational instructional sequence, such as teaching generalization of skills.
Other Considerations Related to Expectations and Student Progress
Students with intellectual disabilities can achieve competitive, integrated employment, and Oregon public schools will prepare these students to successfully transition to integrated work opportunities. The IEP development for each student should be individualized to address unique post-secondary goals based on needs, interests and areas of strength, through age-appropriate transition assessments. The instructional sequence should include periodic progress reports so that early achievement of skills can be recognized and new goals developed, as the student gains proficiency. Continuation of the same IEP goals from year to year, without review and revision, is not best practice; IEP goal development should challenge the student to gain additional skills and experiences leading to the post-secondary outcome of competitive, integrated employment.
For more information or for specific questions regarding a program, please contact Heather Lindsey, Secondary Transition Liaison, (heather.lindsey@state.or.us) at 503-947-5791 or your Regional Transition Network Facilitator.

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APPENDIX B VR-ODDS Memorandum of Understanding
Independent Reviewer – Lane v. Brown: 2016 Report to the Court – Appendix B

Memorandum of Understanding Developmental Disabilities Services
Vocational Rehabilitation
1 Introduction
The Department of Human Services' Vocational Rehabilitation (VR) and Office of Developmental Disability Services (ODDS) share a common mission, philosophyand goal in increasing employment opportunities for individuals with developmental disabilities. Because of the interdependent nature of the service system, each office also shares a common strategic need to jointly and collaboratively accomplish the objectives(s). The mutual goal, objectives and strategic needs are best represented by the ODDS adoption of and VR endorsement of the "Employment First Policy" for working age adults with developmental disabilities.
2 Purpose, Goal and Objectives
This memorandum of understanding (MOU) is to impact and be implemented statewide, with a target population of all working age individuals with Developmental Disabilities eligible for both VR and ODDS services. This will include school age individuals engaged in employment related transition services.The general purpose of this MOU is to support the Charter between the Department of Human Services (DHS) Child Welfare, Self Sufficiency Program and the Aging and People with Disabilities that creates the initiative entitled Improved Employment Outcomes for Individuals with Developmental Disabilities; to fully implementation Executive Order 15-01; and, to fulfill mandates from theWorkforce Innovation and Opportunity Act (WIOA) to empower individuals with disabilities to maximize employment, economic self-sufficiency, independence,and inclusion and integration into society.
2.1 The specific purpose is to outline mutual goals, strategies, actions, and responsibilities
that staff of the parties will endorse and conduct to accomplish the desired goal to increase the opportunities and success of working age adults with developmental disabilities to achieve and sustain competitive integrated employment, as delineated in Executive Order 15-01, Integrated Employment Plan (7/6/15), and Lane v. Brown Settlement Agreement (2015)
VR-ODDS Memorandum of Understanding Page 1 of 6

2.2 The objectives supporting this intent are to (a) Promote actions that will directly improve employment outcomes for mutual
clients
(b) Promote systems change that positively and collaboratively impacts the effective
and efficient operation of each Office
(c) Engage all applicable stakeholders in the accomplishment of desired outcomes
3 Parties
Within the Department of Human Services, Vocational Rehabilitation (VR) andOffice of Developmental Disability Services (ODDS) desire to enter into an intra- agency agreement in order to provide improved and collaborative employment outcomes for individuals with intellectual or developmental disabilities.
3.1 VR will assure that individuals exercise informed choice as it assists them to identify
their strengths, resources, priorities, capabilities, concerns, and interests including vocational goals. VR will develop individualized plans ofemployment to address identified employment barriers. VR will also provide and purchase goods, services, aids and devices in support of individualizedplans for employment (IPE)
3.2 ODDS provides supports and services to youth and adults with intellectual and
developmental disabilities. Eligible individuals and their families can access service coordination, generic and specialized services to provide the support, including appropriate employment support, based on the individualneeds of the person, to be able to live independent, productive lives integrated within their community
4 Mutual Responsibilities of the Parties
VR and ODDS agree to perform the following:
4.1 Establish and promote a goal that all persons with Intellectual or developmental
disabilities (IDD) who want to work in the community will be afforded an opportunity to pursue competitive integrated employment thatallows them to work the maximum number of hours consistent with their abilities and preferences. DHS will issue guidance that the recommended standard for planning and implementing supported employment services willbe the opportunity to work at least 20 hours per week (recognizing that based on individual choice, preferences, and circumstances, some may not choose to work at this level).
VR-ODDS Memorandum of Understanding Page 2 of 6

4.2 Participate in the collaborative governance structure aimed at implementing this
agreement
4.3 Work collaboratively to design a coordinated service system that will produce positive
employment outcomes and engage vocational rehabilitation, countyIDD service coordinators, brokerage personal agents, service providers (vendors) and other stakeholders at the local level
4.4 Determine gaps or other issues in services and implement a plan to eliminate those
gaps or issues
4.5 Share data, within the bounds of confidentiality and as established through the Executive
Order 15-01 and its implementation
4.6 Encourage networking and collaboration among VR and ODDS at regional and local
levels
5 Individual Responsibilities of the Parties
In addition to the mutual responsibilities listed in section 4, ODDS agrees to do the following:
5.1 Assure that the CDDP/Brokerage working with the individual who is referredto VR
provide as much pertinent existing information as possible for the VR intake meeting. This information will assist in planning the individual's employment goal and developing their VR individualized plan for employment(IPE). Example documents include: work history, Individual Support Plan (ISP), Career Development Plan (CDP), Behavior Support Plan (BSP), original eligibility determination documentation and Discovery Profile if one exists. The Service Coordinator or Personal Agent will attend as many team meetingsas possible to assure that information is shared and understood by the entireteam
5.2 The individual service plan (ISP) reflects the VR plan (IPE) and is updated in a timely
fashion as needed to support necessary changes in supports for the individual participant
5.3 For those eligible for long term support services, ODDS will provide this support
once the individual reaches stabilization;
5.4 Refer individual for ODDS services (e.g., Discovery, Employment Path) at the
individual's request and when the team agrees that it is the appropriate courseof action
VR-ODDS Memorandum of Understanding Page 3 of 6

5.5 Share information on new services provided to the individual participant with the team
including VR
In addition to the mutual responsibilities listed in section 4, VR agrees to do the following:
5.6 Utilize existing employment data/information to the maximum extent possiblewhen
working with a participant to set their employment goal, address barriers to employment, and create the IPE
5.7 Include brokerage and county staff in targeted participant's team meetings; at a
minimum the intake meeting and IPE planning meeting(s)
5.8 The IPE reflects the ODDS plan (ISP) and other pertinent ODDS employmentservices
and is amended as needed to reflect changes in needed services as well as changes in ODDS services for the individual participant
5.9 Provide job development and job coach services until job stabilization is reached.
Job stabilization is determined by the individual and their VRCounselor
5.10 Share employment outcome data about shared individual clients, with the team,
including local county or brokerage staff on an ongoing and timely basis; at a minimum, during advancement toward the employment goal; at job placement; and, at the approach and accomplishment of job stabilization
6 Definitions
6.1 Behavior Support Plan (BSP) - a written plan for behavior support utilizing
individualized positive support techniques that includes: a summary of: needs, preferences, and relationships of the individual; functions of the behavior;strategies related to the functions of the behavior; prevention strategies; early warning signals or predictors; a general crisis response plan; specificinstructions for staff who provide support; and, positive behavior supports that include least intrusive intervention possible.
6.2 Career Development Plan (CDP) -- means the part of an ISP that identifies:
the employment goals and objectives; services and supports needed to achieve those goals; people, agencies and providers assigned to assist with goal attainment; obstacles to working in an individualized job in a competitiveintegrated employment setting; and is based on person-centered planning principles
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6.3 Discovery - is a ODDS time-limited comprehensive person-centered and community-
based employment planning support service to better inform an individual seeking an individualized job in an integrated employment setting; that includes a series of work or volunteer related activities to inform about the strengths, interests, abilities, skills, experiences and support needs of the individual; and to identify the conditions and employment settings in which the individual will be successful. A Discovery Profile is the report generated about these activities
6.4. Job coach services • For Vocational Rehabilitation -- means time limited services provided on the job to
teach the participant the essential skills necessary to completerequired job tasks beyond what is normally provided by the employer
• For Developmental Disabilities Services -- means support for an individual
to maintain an individual job in a competitive integrated employment setting in the general workforce
6.5 Job developer services -means support for an individual to obtain an individual job
in a competitive integrated employment setting in the general workforce, including customized employment
6.6 Job Stabilization -- is the point when the individual and their VR Counseloragree that
the employment goal, including hours worked, in the IPE has been reached and that they and the employer agree that the individual is performing well on the job. At this point, transition to extended long-term support services funded by an agency other than Oregon Vocational Rehabilitation can begin
6.7 Team (the team) - is composed of an individual receiving services from ODD, VR or
both; the legal or designated representative of the individual (as applicable); services coordinator or personal agent; VR counselor; and others chosen by the individual, such as service providers and family members
7 Collaborative Governance Structure and Strategies
In implementing this MOU, assigned VR and ODDS management and programstaff will check in monthly during the Employment First Policy and InnovationWorkstream, and meet as needed, to plan, monitor, and evaluate the resultingactivities. Assignment of management and program staff will be made by VR and ODDS Directors.
VR-ODDS Memorandum of Understanding Page 5 of 6

The assigned management and program staff will meet jointly with the program leadership as frequently as needed but at least every six (6) months (utilizing the Employment First Steering Committee meetings) to review progress, suggestpossible changes or strategies related to implementation of the MOU.
In implementing this MOU, assigned staff will consider such principle strategies as:
• Identifying, reviewing and improving key policies and procedures thatinclude,
but not limited to such areas as program eligibility and access, individual service planning and service evaluation
• Communicating activities, key information, and updates on outcomeswith VR
and ODDS staff and principal internal and external stakeholders
• Implementing training and technical assistance activities. • Improving or expanding service capacity • Conducting case reviews in order to identify systems issues. • Developing written materials such as practice guide and procedures • Reviewing program and outcome data and sharing that data with VR and ODDS
staff and principal internal and external stakeholders
8 General Provisions
8.1 This agreement supersedes and replaces all previous Memoranda of
Understanding between these two parties
8.2 The parties agree to revise this document as needed 8.3 The agreement will be formally reviewed every two years 8.4 The agreement may, at any time, be modified or extended by the written consent
of both parties
8.5 In the event that a conflict arises between the parties, it is understood that the
Administrators of the Offices will attempt to resolve the conflict through negotiation
8.6 Either party may terminate this agreement by giving the other party 30 days of notice.
The notice will include the reasons for the request for termination.Termination of the agreement does not relieve the parties of fulfilling theirresponsibilities under this agreement until the termination date
VR-ODDS Memorandum of Understanding Page 6 of 6

Signature Page for Memorandum of Understanding between Developmental Disability Services and Vocational Rehabilitation
For Office of Developmental Disability Services:

Date Lilia Teninty, Director
For Vocational Rehabilitation:

Trina M. Lee, Director

Date

Reviewed/Office of Contracts and Procurement, DHS:
Date
VR-ODDS Memorandum of Understanding Page 7 of 7

APPENDIX C VR-ODDS Joint Policy on Maximizing Client Goal Hours and Recommended Standard of 20 Hours/Week
Independent Reviewer – Lane v. Brown: 2016 Report to the Court – Appendix C

Vocational Rehabilitation

Action Request Transmittal

Authorized signature: Pete Karpa, Deputy Director
Topic: Supported Employment

Number: Issue: date: Due Date:

VR-AR-16-02 5/13/16 6/30/16

Subject: Maximizing client goal of hours worked and recognizing the recommended standard of 20 hours a week

Applies to (check all that apply):

7 Vocational Rehabilitation – All Staff  Vocational Rehabilitation – Executive Team  Vocational Rehabilitation - Administration  Vocational Rehabilitation – Branch Managers 7 Other ODDS Employment Unit Staff, for dissemination
Rationale
Nationally, the Rehabilitation Act of 1973 as amended by the Workforce Innovations and Opportunity Act (2014), seeks to empower individuals with disabilities to maximize employment and economic self-sufficiency.
Oregon’s goal is that all persons with I/DD who want to work in the community will be afforded an opportunity to pursue competitive employment that allows them to work the maximum number of hours consistent with their abilities and preferences. The recommended standard for planning and implementing Supported Employment Services is the opportunity to work at least 20 hours per week. Based on individual choice, preferences, and circumstances, some

people may choose to work at that level while others may not. (Lane v. Brown, US District Court Case No: 3:12-cv-0038-ST: Settlement VII(1)(a)).
Reason for Action
VR follows federal and state mandates to maximize opportunity for all participants with disabilities including I/DD to pursue competitive integrated employment at the hours they choose to work.
Action Required
VR should invite referring staff and others chosen by the participant, to the Intake meeting (or other pre-plan meeting) when the participant’s IPE employment goals, including hours worked per week, are discussed.
Benefits planning information that alleviates fear of working because of loss of benefits is needed by participants who are just beginning to seek employment so they can utilize informed choice in making decisions. The participant and their VR counselor will decide if they need to be referred for benefits planning at this time. If they are already working and want to increase their hours or if they are on the point of starting a job, then full benefits planning services is best practice and a referral should be made. Referral to and receipt of benefits planning services should be documented in case notes.
A goal of hours worked should be recorded in the first fillable box of the IPE that directs staff to, “Discuss transferable skills, individual’s strengths, resources, priorities, concerns, abilities, capabilities, interests, informed choice and other factors that were used to determine the employment goal.”
When the participant chooses to change their goal of hours worked, the VR counselor and participant should agree on a plan revision to the lower or higher number of hours and inform the PA or SC. Some participants choose to

change this goal during job development; others choose to take a job with higher or lower hours than the original IPE goal. Reaching the hours worked goal in the IPE (or revised IPE) is one of the criteria for job stabilization that must be reached before transfer to DD services or natural support.
Some participants choose to increase their working hours over time, after they are employed and their VR case file is closed; with potential assistance from their long-term job coach. In that case, their IPE goal of hours worked may be lower than their long term goal and should be thought of as a final goal for the VR plan but an interim goal for the participant. The IPE goal and long range plans should be documented in case notes. Pertinent sections of the IPE should be provided to the PA or SC to inform the long-term job coach about the participant’s long term plans.
Participants, who want to increase their hours after starting a part time job, may choose to develop a plan to find additional employment to supplement the original job. A participant may choose to seek supplemental employment before the VR case file is closed to meet their IPE goal. Other participants choose to seek supplemental employment after their VR file is closed, either on their own or through the use of other workforce programs.
Training requirement
Branch Managers review this transmittal at an all-staff meeting, keep a record of the meeting notes and forward a copy of the notes to the contact person listed below.
Policy and Resources
x Workforce Incentive and Opportunities Act (WIOA), 2014 x Lane v. Brown, US District Court Case No: 3:12-cv-0038-ST: Settlement x Oregon Policy: 3.14 Supported Employment Policy x VR-IM-15-01 Job Stabilization

Acronyms
x I/DD is Intellectual and/or Developmental Disability x IPE is a VR Participant’s Individualized Plan for Employment x PA is a Personal Agent x SC is a Services Coordinator x VR is Vocational Rehabilitation

If you have any questions about this information, contact:

Contact(s): Ann Balzell Phone: 503-945-6975 Email: Ann.balzell@state.or.us

Fax: 503-947-5025

APPENDIX D ODE Policy on Supported Employment

ODE Policy on Supported Employment Services
Purpose of Guidance: This guidance document is provided for special education directors, secondary special education teachers, administrators, and transition specialists. The Settlement Agreement for the Lane v. Brown case was approved in December 2015. A portion of the Settlement Agreement deals with transition services, and it provides that ODE shall require that the transition planning process include information about, and provide opportunities to experience, Supported Employment Services in Integrated Employment Settings for students with intellectual and developmental disabilities (I/DD). The Office of Developmental Disability Services (ODDS) and the and Office of Vocational Rehabilitation Services (VR) makes Supported Employment Services available to Oregon students who are found eligible to receive services, and ODE issues this guidance so that district IEP teams will take steps to inform themselves and others, including transition-age individuals and their families, of these services.
What Should Districts Do? School Districts shall take the following steps:
1. Provide information to IEP teams (including parents) regarding Supported Employment Services available to students with I/DD to include and coordinate with individual transition planning.
2. Communicate and coordinate with VR or ODDS funded case managers, transition-age individuals, and their families to provide opportunities for students with I/DD to experience Supported Employment Services available through DHS in integrated employment settings.
3. Strongly consider beginning the transition process as early as possible, rather than waiting for the IEP year in which a student turns 16. The adoption of the Workforce Innovation and Opportunity Act (WIOA) in 2014 places added emphasis on providing Vocational Rehabilitation services to students as young as 14. The settlement agreement in the Lane v. Brown lawsuit also calls for the transition planning process to begin as young as age 14, if deemed appropriate by the student's IEP team. As a

result of these developments, ODE is encouraging districts and IEP teams to consider the inclusion of transition goals in the IEP’s of individual students with I/DD sooner than the required first IEP to be in effect when the child turns 16.
What Are Supported Employment Services Provided Through DHS?
Supported Employment Services (SES) are individualized services that assist an individual with I/DD to obtain and maintain work in an Integrated Employment Setting. SES are provided or funded by the DHS and available to students with I/DD through (ODDS) or (VR). These services support the individual to work a maximum number of hours consistent with his/her interests and abilities. The services and supports are based on person-centered planning principles and evidence-based practices.
Supported Employment Services include post-secondary education and/or training for transitionage youth when included in a person's Individual Support Plans or Individual Plans for Employment. Services available include Discovery, job development, job-finding, job carving, job coaching, job training, job shadowing, co-worker and peer supports, and re-employment support.
Which Students Are Eligible to Receive Supported Employment Services Through DHS?
Students with I/DD between 14 and 21 years of age are eligible to receive Supported Employment Services through DHS, though certain approvals are required. Support services provided by ODDS to students who are under 18 years of age require approval from ODDS, while supported employment services provided through VR to students who are under 16 years of age require approval from VR.
What Are Supported Employment Services Provided Through Schools
For youth who are 14 to 18 and who are not otherwise eligible for VR services, supported employment services identified as appropriate for individual students through the IEP team process may include transitional services and supports, including instruction, community experiences, development of employment and other post school adult living objectives, schoolbased preparatory experiences, career preparation, and integrated work-based learning experiences (e.g., site visits, job shadowing, soft skill and job skill development, internships, parttime employment, and summer employment); youth development and leadership, including

training in self-advocacy, self-determination and conflict resolution skills, peer and adult mentoring, and, where appropriate, daily living skills; and connecting activities, including exposure to post-school educational and community services, transportation, benefits planning, and assistive technology. However, IEP teams should be aware that a number of these services may also be available through VR or ODDS, and VR and/or ODDS should be involved in planning as soon as an IEP team determines it is appropriate.
What is an Integrated Employment Setting?
An Integrated Employment setting is a setting where work is paid at minimum wage or above, that is located at a place in the community where an employee with disabilities interacts with persons without disabilities (i.e. peer employees and customers) to the same extent that employees without disabilities do, and where employees with disabilities have the same opportunities for advancement that employees without disabilities have.
Are School Districts Required to Find Jobs for Students With I/DD?
While it’s true that the IDEA, and its provision of FAPE, do not require school districts to find jobs for students with I/DD or other disabilities, nevertheless, school districts should make diligent efforts to ensure that these students have opportunities to experience Supported Employment Services in Integrated Employment Settings. Districts should ensure that IEP teams are aware of and promote the opportunities that are provided through Oregon VR and ODDS for persons with intellectual and developmental disabilities to experience Supported Employment Services in Integrated Employment Settings. This is consistent with the requirement that districts ensure that a student’s IEP, beginning at age 14 when deemed appropriate by the IEP team and no later than the year in which the student turns 16, includes appropriate measurable postsecondary goals based on age appropriate transition assessments related to training, education, employment, and where appropriate, independent living skills, and that transition services (including courses of study) needed to assist the student in reaching those goals are provided.
Questions?
If you have questions, please contact Sally Simich, Secondary Transition Specialist at the Oregon Department of Education, (503) 947-5639, Sally.Simich@ode.state.or.us, or your regional Transition Network Facilitator.

APPENDIX E
ODD Policy on No New Services in Sheltered Workshops

POLICY TRANSMITTAL DHS Oregon Department of Human Services, Developmental Disabilities Services

Authorized Signature Number: Issue date: Topic:

Lilia Teninty APD-PT-15-006 2/25/2015 Developmental Disabilities

Transmitting: Applies to:

New policy Office of Developmental Disabilities Services(ODDS) County DD Program Managers Other: Employment and day service providers

Policy/rule title: Effective date:

No new services in Sheltered Workshop settings (Provider) 2/25/2015

Discussion/Interpretation:

POLICY: Oregon formally adopted its “Employment First” policy in 2008, and was one of the first states in the country to do so. Under its Employment First policy, Oregon presumes that, with the right training and support, each individual who experiences an intellectual or developmental disability (I/DD) can succeed in an individual integrated job that pays competitive wages and benefits. Recognizing the pivotal role integrated employment plays in the lives of individuals who experience intellectual or developmental disabilities, employment in fully integrated settings is the highest priority over unemployment, segregated employment, facility-based employment, or day habilitation.1 As outlined below, the Employment First policy is being implemented through a number of ongoing initiatives.

In order to further Oregon’s Employment First policy, effective July 1, 2015, ODDS will no longer fund services in Sheltered Workshop settings for individuals who are newly eligible for services, or individuals already using services but not in a Sheltered Workshop setting. Only individuals already using services in Sheltered Workshop settings as of June 30, 2015, may continue to do so after July 1, 2015.

BACKGROUND:

Oregon’s Office of Developmental Disability Services (ODDS) and Oregon’s Department of Human Services (DHS) have implemented changes to employment and other non-residential day services to implement Oregon’s Employment First policy, to highlight opportunities available to use Medicaid-funded services administered through ODDS, and to increase integrated employment opportunities for individuals with disabilities. These measures include but are not limited to:

Previously bundled, ODDS Employment Services now include an array of discrete stand-alone community-based employment services. Services can be combined in order to meet the needs of the individual using the services. Additionally, Employment Services are now paid based on an hourly rate instead of on a daily rate. These modifications increase flexibility to meet individualized needs, and better support goals related to achieving community employment in the most integrated setting.
Community-based employment services funded through ODDS include2:
x Individual Employment Support – Job Coaching x Discovery x Individual Employment Support – Job Development x Small Group Employment Support x Employment Path Community
Other day services are also available under Oregon’s Community First Choice K Plan. Services include group based support to meet ADL/IADL needs, including but not limited to, socialization and community inclusion.
Career Development Planning is required for all individuals using ODDS services, at minimum, as part of the annual person-centered planning process, or more frequently as necessary or as requested. As part of Career Development Planning, individuals will have an opportunity to discuss all Employment Service options. Individualized approaches may be needed to ensure the person has an opportunity to make a truly informed choice about pursuing employment.
Oregon Administrative Rules governing ODDS employment services, and all related guidance, explicitly requires that the optimal and expected outcome of all ODDS and Medicaid-funded employment services is individual integrated employment that pays minimum wage or better, but no less than the same wage and level of benefits paid to individuals who do not have disabilities.3 An individual who uses ODDS employment services must have an employment goal in his or her Career Development Plan (CDP).4 This employment goal must support progress towards the optimal and expected outcome of employment services, which is individual integrated employment that pays competitive wages and benefits, as well as work experience leading to further career development.5
DHS has awarded contracts to Living Opportunities and Washington Initiative for Supported Employment (WISE), two organizations that will provide training and technical assistance to other provider organizations in order to increase capacity for more community-based employment supports.
DHS will also be issuing a number of grants to fund new organizations that provide individual integrated employment services, or fund existing provider organizations that will expand to provide individual integrated employment services in Oregon.

New federal regulations regarding Medicaid Home and Community Based Services (all ODDSfunded employment and day services) require that every setting in which services are provided meet the new setting requirements. As outlined under Oregon’s HCBS Transition Plan to come into compliance, each setting will be assessed to measure compliance. Assessment for compliance with the new federal regulations will occur initially and on an ongoing basis.
SHELTERED WORKSHOP SETTINGS:
Effective July 1, 2015, ODDS will no longer fund services used in Sheltered Workshop settings for individuals who are newly eligible for services, or individuals already utilizing services who are not already working in Sheltered Workshop settings.6
To operationalize this, Oregon service coordinators and personal agents will no longer authorize ODDS and Medicaid-funded Employment Services in Sheltered Workshop settings for individuals not already using services within Sheltered Workshop settings. Only individuals who use Employment Path Facility services for support in a Sheltered Workshop setting as of June 30, 2015, can receive authorization to continue using Employment Path services in the Sheltered Workshop setting after July 1, 2015. If, after July 1, 2015, an individual discontinues using services in a Sheltered Workshop setting for one year or more, he or she will not be able to resume using ODDS services in a Sheltered Workshop setting. Individuals may temporarily suspend services for more than 30 calendar days if the suspension is due to a change in eligibility for Medicaid Home and Community Based Services that may occur, for example, due to hospitalization.
Sheltered Workshops are facilities in which individuals who experience intellectual or developmental disabilities are congregated for the purpose of using ODDS employment services and performing work tasks for pay at the facility. A Sheltered Workshop primarily employs individuals with I/DD and other disabilities, with the exception of service support staff. A Sheltered Workshop is a fixed site that is owned, operated, or controlled by a provider, where an individual has few or no opportunities to interact with people who do not have disabilities, not including paid support staff. 7
BACKGROUND FOR THIS NEW POLICY:
As outlined under sub-regulatory federal guidance regarding ODDS employment services, “funding is not available for the provision of vocational services delivered in facility based or sheltered work settings, where individuals are supervised for the primary purpose of producing goods or services.” 8
ODDS services must be provided in the most integrated setting possible.
Under new federal regulations, ODDS and Medicaid-funded Home and Community Based Services must be provided in settings that meet new requirements. Settings that isolate individuals with disabilities, and provide minimal interaction with the broader community, must make adaptations to come into compliance under Oregon’s Transition Plan.9 These settings

must encourage interaction with the general public, facilitate access to the greater community, and provide opportunities to seek competitive integrated employment.10
All Employment Path services, including those used for support in Sheltered Workshop settings, are time limited and expected to occur over a defined period of time, with specific outcomes to be achieved.11
Notes:
1 See Oregon’s Employment First policy codified under Oregon Revised Statutes 427.007(1)(b); see also Oregon Administrative Rule 411-345-0025(2) regulating ODDS and Medicaid-funded employment services.
2 See Oregon Administrative Rule 411-345, and policy transmittal APD-PT-14-023. 3 OAR 411-345-0025(4); see also sub-regulatory guidance from the Center for Medicare and Medicaid Services
(CMS) (September 16, 2011) found here: http://downloads.cms.gov/cmsgov/archiveddownloads/CMCSBulletins/downloads/CIB-9-16-11.pdf. 4 OAR 411-345-0160(2). 5 OAR 411-345-0025(4). 6 See Oregon’s Executive Order 15-01 (which replaces and supersedes Oregon’s earlier Executive Order 13-04). 7 See Oregon Administrative Rule 407-025 and Oregon’s Executive Order 15-01. 8 OAR 411-345-0025(4); see also sub-regulatory guidance from the Center for Medicare and Medicaid Services (CMS) (September 16, 2011) found here: http://downloads.cms.gov/cmsgov/archiveddownloads/CMCSBulletins/downloads/CIB-9-16-11.pdf. 9 Additional information regarding Oregon’s Transition Plan can be found here: http://www.oregon.gov/dhs/dhsnews/Pages/hcbs-transitionplan.aspx 10 42 CFR §441.301(c)(4)-(5). 11 See OAR 411-345-0025(9)(d)(B); see also CMS sub-regulatory guidance (September 16, 2011) referenced above.

 </s> Lane et al. v. Brown et al.
Civil Action No. 3:12-cv-00138-ST
2017 Report to the Court
Prepared by: Cathy Ficker Terrill, M.S. Independent Reviewer January 1, 2017 - December 31, 2017

Introduction
The Independent Reviewer issues this second annual report on Oregon’s progress in implementing the Settlement Agreement in Lane v. Brown. The Settlement Agreement went into effect on January 27, 2016. If the State substantially complies with its obligations, the Settlement Agreement will end no later than July 1, 2022.
This report covers the State’s implementation efforts from January 1, 2017 through December 31, 2017. The Independent Reviewer considered various sources in preparing this report, including information the parties provided at quarterly meetings, the State’s amended 2017 Employment First Reports, state policies and administrative rules, other State documents, program reviews undertaken statewide by the Independent Reviewer, and information reported by the State. The Independent Reviewer has not audited or otherwise verified the State’s reported data.
In 2017, the Independent Reviewer conducted program reviews to help assess the State’s implementation of the Settlement Agreement. Next year, in 2018, the Independent Reviewer in collaboration with Temple University and Oregon Health Sciences University will conduct a client review based on interviews of a statistically significant sample of target population members.
Overall, according to the data provided by the State, the State has achieved the numerical and policy requirements for the relevant time period, as detailed in the settlement agreement. However, there are some systemic issues that have been identified that need to be addressed. The state has begun to address some of those systemic issues. The Independent Reviewer has identified areas where the State should concentrate its efforts in the upcoming year.
Background and Overview of the Settlement Agreement
On January 25, 2012, eight individual “named plaintiffs” with intellectual or developmental disabilities (I/DD) and an organization, United Cerebral Palsy of Oregon and Southwest Washington, filed a class action Complaint on behalf of themselves and others similarly situated. The lawsuit was filed in the United States District Court for the District of Oregon. The lawsuit alleged that Oregon unnecessarily segregated individuals with I/DD in sheltered workshops, in violation of the rights of these individuals under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The United States intervened as a plaintiff in 2013.
Under the Settlement Agreement, Oregon agreed to continue its policy of decreasing the State’s support of sheltered workshops for people with I/DD in Oregon and expanding the availability of supported employment services that allow individuals with I/DD the opportunity to work in competitive integrated employment settings. The Settlement Agreement provides relief to two target populations – (1) adults with I/DD who are 21 years old or older and worked in a sheltered workshop on or after January 25, 2012 (sheltered workshop target population), and (2) transition-age youth with I/DD between the ages of 14 and 24 who are found eligible for services from the State’s Office of Developmental Disability Services (ODDS) (transition-age target population).
1

• The Settlement Agreement requires that any individual with I/DD working in a sheltered workshop who wants a job in an integrated employment setting and is eligible for ODDS services can ask in the Career Development Plan (CDP) process for and receive supported employment services.
• The Settlement Agreement requires that the State substantially implement and maintain the terms and systemic improvements of Oregon’s Executive Order 15-01. Specifically, over the next seven years, the State must provide 7,000 individuals with employment services. Of this number, 4,900 will be transition-aged youth (14 to 24 years old). The Agreement requires that at least half of the transition-aged youth who receive employment services, and who apply and are found eligible for Vocational Rehabilitation Services, will receive an Individual Plan for Employment. The state will also provide supported employment and related employment services so that 1,115 working-age adults (at least 21 years old) who are included in the sheltered workshop target population, obtain competitive integrated employment between July 1, 2014 and June 30, 2022. This is consistent with metric 11 measuring placements in competitive integrated employment (CIE) in the State’s July 6, 2015 Integrated Employment Plan. CIE is work where an individual is paid at least Oregon’s minimum wage and not less than the customary rate paid to non-disabled individuals for the same or similar work. CIE allows people with I/DD to interact with others who do not have disabilities to the same extent that individuals without disabilities in comparable positions interact with other people, and to receive the same benefits provided to other employees.
• The Settlement Agreement requires that ODDS establish and promote a goal that all persons with I/DD who want to work in the community will be afforded an opportunity to pursue competitive integrated employment that allows them to work the maximum number of hours consistent with their abilities and preferences. ODDS has issued guidance that the recommended standard for Supported Employment Services is the opportunity to work at least 20 hours per week, if consistent with individual choice and other factors. ODDS is continuing to work on creating financial incentives for providers to ensure that service recipients obtain competitive integrated employment at the recommended standard of 20 hours per week.
• All individuals in the Executive Order 15-01’s ODDS/VR Target Population II(1)(a) (the sheltered workshop target population) should have received a Career Development Plan by July 1, 2015. All transition-aged youth with I/DD in Executive Order 15-01’s ODDS/VR Target Population II(1)(b) (the transition-age target population) must also receive a Career Development Plan. Using person-centered planning principles, a Career Development Plan identifies the individual’s employment goals and objectives, obstacles to achieving competitive integrated employment, and the services and supports necessary to overcome those obstacles.
• The Settlement Agreement also requires the State to achieve two other metrics in its July 6, 2015 Integrated Employment Plan measuring the State’s decreased support of sheltered workshops. From July 1, 2016 to June 30, 2017, the State must reduce the number of individuals with I/DD working in sheltered workshops from 1,926 to 1,530.
2

During this period, the State must also reduce the number of hours individuals spend working in sheltered workshops from 93,530 hours per month to 66,100 hours per month.
• The Settlement Agreement includes provisions covering transition services for youth with I/DD, training, system capacity to provide employment services, funding, data collection, and reporting.
The Settlement Agreement provides that a neutral Independent Reviewer will evaluate the State’s compliance and issue annual written reports on implementation of the Agreement. The Court retains jurisdiction of this matter until substantial compliance is achieved. The Settlement Agreement includes a dispute resolution process and enforcement procedures by the federal court. The State may defend against an enforcement proceeding by proving an event which substantially impairs or impedes compliance, and which was not initiated, created, caused, or substantially contributed to by ODDS or ODE.
The State’s responsibilities under this Settlement Agreement are subject to funding by the Legislature. The State is required to make diligent efforts to obtain funding necessary to comply with the Settlement Agreement. If Oregon fails to attain funding necessary to comply with the Settlement Agreement, the Settlement Agreement may become void and litigation may resume.
Guidelines for Meetings of the Parties
Guidelines outlining the purpose and principles of joint meetings were established to assist the Independent Reviewer’s work with the parties. These guidelines are listed below:
Purpose of the Meetings of Parties in Lane v. Brown:
• Ongoing communication;
• Status updates;
• Clarification of information;
• Dispute resolution;
• Collaboration to identify obstacles to success within the implementation plan; and
• Opportunity to brainstorm strategies to overcome obstacles.
Guiding Principles for the Joint Meetings in Lane v. Brown:
• Treat others with dignity and respect.
• The primary purpose of the meetings is to review the Settlement Agreement to assure it enhances individual opportunities and systems change for employment outcomes.
• The Settlement Agreement is the result of extensive, thorough, and good faith negotiations.
• The terms of the Settlement Agreement have been voluntarily accepted.
• The court has jurisdiction over this Settlement Agreement.
3

• All parties will have access to the same information specific to the Settlement Agreement.
• Meeting agendas will be available two weeks in advance of the meeting to the parties. The parties will provide input to the agenda three weeks in advance of the next meeting.
• Meetings will be held quarterly.
• The Independent Reviewer, in consultation with the Judge (if needed), shall determine the status of Settlement Agreement. Parties retain the right to disagree.
• Summary notes on key decision points will be maintained by the Independent Reviewer for each meeting. These will be shared with the parties with an opportunity to review, comment and request changes. The parties retain the right to maintain their own notes.
• Disability Rights Oregon will communicate on a regular basis with named plaintiffs and solicit their input in language that they understand. If an individually named plaintiff or the organizational plaintiff wishes to provide input at a meeting of the parties, they would be welcome to do so at the beginning of the meeting.
• The parties can suggest agenda items to the Independent Reviewer no later than three weeks before each meeting.
• Plaintiffs will request data and information from defendants no later than 30 days before each meeting. The defendants will provide the data and information no later than two weeks before each meeting. Data requests must be reasonable and follow the Settlement Agreement. The Independent Reviewer will decide if data requests are too cumbersome or outside the scope of the Settlement Agreement.
Meetings of the Parties for 2017 and 2018
Parties have met (or will meet) to discuss the State of Oregon’s progress on meeting the terms of the Lane v. Brown Settlement Agreement on the following dates:
• March 30 and 31, 2017
• July 11 and 12, 2017
• September 27 and 28, 2017
• December 4 and 5, 2017
The scheduled dates for the meetings of the parties for 2018 are as follows:
• April 10 and 11, 2018
• July 10 and 11, 2018
• September 24 and 25, 2018
• January 9 and 10, 2019
In addition to the information exchanged at the parties’ meetings, the Independent Reviewer reviewed the following pertinent information in 2017:
4

• Lane v. Brown Data Report (Amended Mar. 24, 2017)
• Report on Career Development Plans Under the Lane v. Brown Settlement Agreement (Mar. 27, 2017)
• Report on Post School Outcomes of Students Enrolled in ODDS Services from Follow Up Interviews Conducted in 2016 (Apr. 24, 2017)
• Lane v. Brown Settlement Report on 20 Hour Policy (Sept. 1, 2017)
• Employment First Capacity Report, June 1, 2016 – June 30, 2017 (Sept. 1, 2017)
• Career Development Plan Report (Sept. 2017)
• ODE 2017 Report on the Facilitation of Evidence Based Transition Services in Oregon Public Schools (Oct. 3, 2017)
• DNE Review – Youth CDP Review (Oct. 4, 2017)
• VR Subminimum Wage Project data (Jan. 9, 2018)
• Lane v. Brown Data Report (Amended Jan. 11, 2018)
Additionally, in 2017, the Lane v. Brown Independent Reviewer, as part of the Program Review, conducted 63 interviews with Community Developmental Disabilities Programs (CDDPs), support service brokerages, Vocational Rehabilitation (VR) offices, public schools, and employment service providers. The purpose of the Program Review is to collect information relevant to the Independent Reviewer’s evaluation of the State’s compliance with the terms of the Lane v. Brown Settlement Agreement and the Governor of Oregon’s Executive Order on employment services for persons with I/DD, and enable the Independent Reviewer to aid, recommendations, and training to the State as it implements the Agreement. Overall, the responses indicated that the State is taking some steps toward fulfilling its obligations under the Lane v. Brown Settlement Agreement so that persons with I/DD can obtain and maintain competitive integrated employment to the fullest extent possible, consistent with their strength, preferences, and abilities. The interviews also revealed certain persistent obstacles that are impeding the State’s progress in maximizing compliance.
The following is a summary chart to track the state’s compliance for 2017 for the Settlement Agreement. Some items listed below that have metrics for each year. Other items have ongoing provisions across the term of the Settlement Agreement.

Summary of Item
The state is no longer purchasing or funding new Sheltered Workshop placements
Decrease number of persons in sheltered workshops to no more than 1530 (Metric 9)

2017 Status One reported new entry was discovered, and payment was disallowed. The individual was offered alternate service. State data shows there were 1,043 people in sheltered workshops as of March 2017
5

Decrease number of hours worked in Sheltered Workshops to 66,100 by June 30, 2017 (Metric 10)
The State shall issue a policy describing Supported Employment Services
Similar to IV.3, Provide CIE to 160 additional individuals in 2017
Ensure at least 4,900 transition age youth are provided SES, and half of those receive an Individual Plan of Employment.

State data shows 53,857 hours worked.
A policy was issued in 2016, and state continues to implement in 2017 Although disagreement remains about how to count, the State has met the 2017 target The total count of transition age individuals receiving SES is 2,453. 2,043 received an IPE.

State to encourage schools to continue and expand evidence-based transition practices to achieve CIE.

State continues training on transition practices but could do more to encourage evidence-based practices

Those in Sheltered Workshops who state in their Career Development Plan that they want CIE shall receive SES toward that goal.

The state provides SES as requested. However, delays have slowed the delivery of such services. The State needs to focus on efficient delivery of available services to those who express an interest. There is evidence that there may be more individuals interested in CIE than is reflected in the current CDP’s.

Adopt rule encouraging individuals in SW Rule released Jan. 2016 and in case

Target Population to choose to leave

management rule as of 7/16

SWs.

Adopt and promote a goal of working at least 20 hours a week
Seek approval from CMS for rates that incentivize SES to obtain jobs for class members who obtain CIE of at least 20 hours per week.

Rule and guidance adopted by ODDS and VR in 2016, data shows that the percentage of persons working at least 20 hours a week continues to rise.
The state has sought approval for such rates from CMS, although their efforts have not been entirely successful.

Issue guides to Technical Assistance providers to train providers on the 20 hours per week standard

Guidance was issued in 2016 and is still in place

6

Class shall receive CDP by 7/1/2015. DHS shall determine whether CDPs have been done.

State issued a report on CDP, after gathering all CDPS of SW class and a sample of Transition age class. Quality of plans is being addressed through training

ODE shall require transition planning may begin as early as age 14 and no later than 16; shall include information and opportunities to experience Supported Employment Services. No referrals to sheltered workshops or use of mock sheltered workshops.

ODE issued polices regarding transition practices and prohibiting mock sheltered workshops in 2016. The surveys by the Independent Reviewer indicate that the range of transition activities could be improved, and more training is needed.

ODE shall develop a professional development plan for transition services

ODE used an outside consultant to develop a plan which has stated goals. ODE needs to implement the goals identified

Maintain training technical assistance through 6/30/19

Such assistance continues to be funded by the state.

Maintain transformation grants through 6/30/19

Such grants continue to be in place.
The state is now issuing a provider capacity report. As the state moves forward, the state should investigate options to enhance provider capacity in some areas of the state.

Make diligent effort to obtain and maintain funding to comply with Agreement

So far, sufficient funding has been allocated to comply with the Agreement

Semi-annual data reporting required

The state has issued semiannual reports in accordance with 1.a. and b. The state continues to adapt report format to improve transparency.

Post School Outcome survey to be conducted starting July 2016 and each year thereafter. Create a report with specified elements

The State has produced a report on the survey, however, it should be more robust. The state promises to improve this report

Establish competencies for employment Standards established in 2016, computer-

service providers

based training implemented in 2017

Outreach and awareness program for members of target population

Employment First communication plan is in place

7

Use strategies to improve transition services for transition age youth to get CIE
Develop MOUs with ODDS.VR.ODE
Develop and implement QA plan

The state continues to offer many trainings to providers and school personnel all over the state. In addition, Transition Network Facilitators are trained and available
Completed in 2016, and updated as needed
QA plan updated in 2016. State has shifted some items to the Provider Capacity report. Staff changes slowed QA activities, but state intends to continue QA plan

SA IV.1 - Sheltered Workshops
Settlement Agreement IV.1: By July 1, 2015, Oregon will no longer purchase or fund sheltered workshop placements for: a) transition age youth with I/DD; b) adults with I/DD who are newly eligible for ODDS or VR services; and c) adults with I/DD using ODDS or VR services who are not already in sheltered workshops.
Status Update 2017
During SFY 2017, one new person attempted to enter a sheltered workshop. The state discovered the placement and the attempt to bill the state for services. Funding for the new service of sheltered work for 1 individual was denied; the individual was offered another service that is allowable and billable. According to the state, the involved case coordination staff were retrained, and the provider was reminded of the policy directive. As such, the state has been successful in preventing new admissions into a sheltered workshop. The state satisfied section IV.1 in 2017.
SA IV.2 - Sheltered Workshops
By June 30, 2017, reduce sheltered workshop census to no more than 1,530 and decrease hours worked in sheltered workshops to no more than 66,100.
Status Update 2017
The SFY 2017 target was to reduce the number working in sheltered workshops in the March 2017 census to 1,530 individuals. According to the State’s March 2017 EOS census, there were 1,043 individuals in sheltered employment (an annual reduction of 362 individuals), which would satisfy Metric 9.
The SFY 2017 target was to reduce the hours worked in sheltered employment in the March 2017 EOS Census to 66,100 hours. According to the State’s March 2017 EOS census, there were 53,857 hours worked in sheltered employment, which is less than the 66,100-hour target and would satisfy Metric 10.
8

SA V.B - Executive Order Service Outcomes and IEP Metrics

Settlement Agreement V.B.1: Provide Employment Services to 3,000 individuals in the target populations by July 1, 2017 (Executive Order IV.3.d)

Status Update 2017

Oregon Executive Order 15-01 provides that “ODDS and VR will provide Employment Services as described in Section IV.6 below to at least 7,000 unique individuals” and that by July 1, 2017 ODDS and/or VR will have provided Employment Services to at least 3,000 unique individuals in the target populations.

The State reports that in SFY 2017, 1,979 new employment services were given. Some of these persons received more than one service. When that duplication is removed, the state reports that 1,697 unique individuals received services in SFY 2017 (See Table 2 below). Due to data reporting lags, the state indicates that this calculation was completed without all SFY 2017 data available. This number is therefore incomplete. Future reports will update this number and are expected to include upward revisions of the number of employment services given, as occurred for SFY 2016.

Data for SFY 2016 was also updated by the state with newer information. As a result, according to the State’s report, the unduplicated number of employment services received by persons in both target populations in SFY 2016 has been revised up from 1,577 unique individuals to 1,731 unique individuals (see Table 1 below).

Table 1

Employment Services To Target Populations In SFY 2016 (Updated)

Employment Service

Transition Sheltered TotalUnique Age Workers Counts

VR Entered IPE Completed Discovery Profiles New Individual Supported Employment from ODDS New Small Group Supported Employment Total Unique Counts of Clients

680

412

1,030

247

355

572

190

148

324

67

147

194

993

833

1,731

9

Table 2

Employment Services To Target Populations In SFY 2017

Employment Service

Transition Sheltered Total Unique Age Workers Counts

VR Entered IPE

656

388

1,010

Completed Discovery Profiles

181

261

426

New Individual Supported Employment from ODDS

205

189

382

New Small Group Supported Employment

51

118

161

Total Unique Counts of Clients

936

788

1,697

Quoting from the State’s most recent data report:
When the two target populations are broken out, 255 persons were transition age and 299 persons were sheltered workshop class members. When the individuals in both target populations are deduplicated a total of 539 individuals achieved competitive integrated employment in SFY 2017. As noted below in the discussion of Metric 11, larger groups of persons are counted under Metric 11. Metric 11 is measured using a broader array of data sources; data which is not readily available on a semi-annual basis. The XIII.a.2 count here is made with a narrower data source, EOS data, than is used to calculate the number under Metric 11. Unlike Metric 11 data, however, EOS data is available semi-annually. The calculation is described in further detail in the “Reporting Methodology for Settlement Calculations” below. Historically, EOS has also been the data source for this measurement.
As with other measurements described above, this measurement counts a person only once per fiscal year. This time, the focus is on the new receipt of services. Numbers for group supported employment and individual supported employment are provided. As stated in the “Reporting Methodology for Settlement Calculations” below, the number of new individuals who received Individual Supported Employment services from ODDS comes from eXPRS billing data. eXPRS billing data is used for this metric because it measures services, and this data source can also demonstrate new services through new billing and gaps in billing. As required by the plaintiffs, this data is reported semi-annually. To be able to report this data on a semi-annual basis and to allow for comparison with previous reports, this measurement relies on eXPRS billing data for the ODDS measures. This measurement is different from the methodology used to calculate Metric 11.
During SFY 2014-2017 (July 1, 2013 to June 30, 2017), 4,031 unique individuals in the target populations received an employment service. (see Table 3 below). This exceeds the minimum 3,000-person number of unique individuals required under the Settlement Agreement, by 1,031 persons. The state complied with the service numbers required in Section V.B. of the Settlement Agreement for 2017.

10

Table 3

Employment Services To Target Populations

State Fiscal Year

Minimum Required Number of Individuals*

Total Unique Amount

Count of

Above

Clients Served Requirement

SFY 2014

600

882

282

SFY 2015

1,350

1,844

494

SFY 2016

2,200

3,071

871

SFY 2017

3,000

4,031

1,031

* As set forth by Excecutive Order 15-01 section IV

Settlement Agreement V.B.1.a: Provide SES to all named plaintiffs by 6-30-16.

Status Update 2017:
Disability Rights Oregon has provided an update on named plaintiffs for State Fiscal Year 2017.
G. C.: Ms. C began employment October 2016 in the cafeteria at an elementary school with Portland Public Schools. This employment was pursuant to her preference following completion of Discovery. She worked from 10:30 a.m. to 1:30 p.m. Monday through Friday at above minimum wage. She switched to a smaller school after finding the first larger school too active. She did not reach job stabilization at that site as she continued to have difficulty managing the pace of activity during the lunch hour rush. She resigned at the end of January 2017 and began attending THRIVE (http://otlifebalance.wixsite.com/thrive/about).
Ms. C next had a several week-long assessments in a group setting which pinpointed targeted goals to work upon. She then met with a Behavior Support Specialist who set strategies for her regarding workplace behaviors. By summer 2017, the vendor began set-up of a community based targeted employment site in which these issues may be worked through.
S. G.: Ms. G completed Discovery in Summer 2016 and had a job shadow at a Home Goods retail store. She was offered employment resulting from this service. Her job duties were to involve assisting with directing customers and with store product displays and stock. Ms. G was to start working after a visit with her family over the end of year holidays.
However, Ms. G eloped from her group home prior to her start date and was considered missing for 5 days. Her DD services case manager recommended that her start date be held off until her employment ISP team met February 15. The store manager agreed to continue to hold the offer for Ms. G open. Ms. G then began more intensive counselling related to the reasons behind her elopement and put her job search on hold through June 2017.
A. K.: A Discovery Specialist from Dirkse Counseling and Consulting developed a Discovery profile between April 27 and June 7, 2016. A VR application was submitted on July 27, 2016. On

11

September 23, 2016, Ms. K was found eligible for VR services. The VR Counselor attributed the delay to being given an incorrect suite number to request medical records. Ms. K did not have a VR meeting until October 3. By that time, the Discovery Specialist who had done the Discovery profile had left Dirkse, and a different Employment Specialist joined the meeting. The new Employment Specialist had not worked with Ms. K.
Another VR meeting was scheduled for October 31, 2016 with the goal of selecting a Community Based Work Assessment (CBWA) provider. Ms. K’s residential provider did not transport her to the meeting on October 31. The VR Counselor, DD Services Coordinator, and Eastco Lead Employment Specialist did come to the VR office for the meeting, which was rescheduled to November 7.
Prior to the November 7 meeting, Ms. K’s residential provider (Up and Out Inc.) administrator, who had not attended the October 3 VR meeting, raised concerns about Eastco as the CBWA provider. He was apparently unaware of the waitlist for Dirkse. He asked that the meeting be postponed so he could attend.
Ms. K had a team meeting on November 21, 2016 where she met with two prospective providers – Abilities at Work and Eastco. She ultimately decided to work with Abilities at Work Job Developer Doug Harlow.
Ms. K completed a CBWA with Abilities at Work at a TJ Maxx store in Portland. She had a meeting on March 15, 2017 to review the CBWA. The team met again, on March 31, 2017, and authorized Abilities at Work to provide job development services. Due to a waitlist, Ms. K did not begin job development until mid-May 2017.
Z. K.: In March 2015, Mr. K was hired to work in a child care position at a Portland YMCA. VR closed his file in August 2015. Mr. K worked at the YMCA with ongoing ODDS job coaching provided by United Cerebral Palsy for most of SFY 2017. On May 31, 2017, Mr. K experienced a detached retina in his left eye. He was rushed to emergency surgery and spent over four months convalescing. He was out of work for medical reasons past the end of SFY 2017.
P. L.: In 2016, Ms. L was laid off from her employment sorting & filing print jobs and watering plants at a large print shop. As she began VR services prior to Discovery implementation, her team determined that she should engage Discovery, after having lost that prior employment. She completed Discovery in December 2016 and was subsequently assigned a new job developer and VR counselor.
The team began reviewing options for targeted micro-enterprise. Ms. L determined that she preferred to continue work with her job developer for employment at a more traditional employer.
Meanwhile, her productivity at the shop had continued to be far higher than previously, but then began dipping in January through March 2017. While her ISP team determined that she does not need a Behavior Support Plan, a behavior consultant was recommended targeted towards workplace behavior. This consultant was engaged in early spring 2017 with resulting recommendations on issues which arose at her community job. This also helped her regain focus on new employment.
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By late spring, she completed trial work at the Portland Children’s Museum. After job developer discussion with the museum Human Resource manager, it appeared that a customized position for her was feasible. Her tasks were/are to direct museum visitors and answer basic questions about the current exhibit. Ms. L presented on a panel at the June 2017 APSE National Conference in Portland and discussed her new job & her job search, which she reports having enjoyed tremendously.
A. P.: In December 2016, a trial work arrangement was set for Mr. P by his job developer at a tool maker shop in Hillsboro. He began this work in March 2017, after some difficulty getting the start date confirmed. He performed well with testing tool production quality through April 2017. However, the employer declined to hire him as a regular employee. He could have continued through the temp agency which staffs on-call work at the site, but as the temp agency could not give any assurance as to length or hours of employment, Mr. P declined to continue there. A several week-long delay had occurred in confirming this information, as the job developer vendor had staffing changes.
Mr. P’s job developer then explored opportunities for similar work through the Galt Foundation which did not bear fruit. They meanwhile worked to develop a workplace seizure protocol, to improve communication & interviewing skills and to develop another targeted work assessment site. A referral was also completed for work incentive planning.
L. R.: In July 2016, Eastco was authorized to perform a CBWA. Citing health reasons, Eastco delayed starting the CBWA. Eastco staff reported that Ms. R was still going to the Eastco workshop, but her health issues have impacted the tasks she is able to do and her overall endurance. She had lost previously mastered skills and was having difficulty staying awake.
Ms. R had a team meeting at VR on November 28, 2016. Eastco indicated that it did not believe it could meet Ms. R’s needs. Ms. R indicated that she would work with a new job developer. The VR Counselor indicated that consultation with a new job developer – Full Life – would be authorized. Full Life decided that it did not have the expertise to meet Ms. R’s needs. On March 13, 2017, Community Vision was authorized to set up a CBWA and provide job development services.
Ms. R was supposed to start her CBWA in mid-June 2017. She also had interest from an employer, Portland Garment Factory, which was interested in carving a position for her. However, her sister took her out of town for two weeks with short notice. The CBWA was delayed until July and the potential employer lost interest.
SA VI – Supported Employment, Related Services & Competitive Employment
Settlement Agreement VI.1: Implementation of Supported Employment Services. The
Settlement Agreement requires ODDS and VR to establish and implement a policy that Supported Employment Services provided under this Agreement shall be individualized, evidence-based, flexible, offered in an integrated setting and available as needed and desired, but shall not by mandated as a condition of working or receiving services in an integrated employment setting.
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Status Update 2017:
In FY2016, the State established a Supported Employment Services policy whose terms are consistent with the requirements of Settlement Agreement VI.1. The state continues to encourage employment providers to assist individuals to be successful in competitive integrated employment. The state has policies in place such that supported employment services shall be individualized, evidence based, flexible, and offered in an integrated setting. Funding for such services are available from ODDS. However, a significant delay has been seen when accessing services from VR. Due to extensive VR staff turnover, as well as high demand for intake services, VR staff, employment providers, CDDPs and Brokerages have indicated long waits for VR intake services in some geographic areas of the state. Although there are federally mandated response times once an individual has been deemed eligible for VR services, there are no time frames for waiting periods to go through VR intake.
Settlement Agreement VI.3.c: The State was required to provide supported employment services and related employment services so that 395 individuals receiving sheltered workshop services newly obtained competitive integrated employment (retaining it for at least 90 days) from Fiscal Year 2015 through Fiscal Year 2017.
Status Update 2017:
Due to a new internal agreement between DHS and the Employment Department, the state has access to Employment Department data, which has allowed the state to consider new data when reviewing metric 11 and identify class members who are receiving employment services and working in competitive integrated employment. The parties disagree about how to measure the outcomes found in Metric 11 and Section VI.3 of the settlement agreement. The parties have not come to an agreement on this critical issue and discussions will continue into 2018.
Plaintiffs contend that the agreement requires an unduplicated count of unique individuals, so that a single individual cannot be counted more than once toward this metric over the term of the settlement. Plaintiffs also contend that in determining which supported employment services and related employment services can lead to CIE for purposes of this metric, the State should use the same methodology it used when the settlement agreement and its metrics were established ―i.e., the State should count individuals toward this metric if they received a successful closure through VR, or billed for three months of ODDS job development or job coaching services.
The state contends that the Settlement Agreement allows the state to continue its practice of counting new jobs obtained each fiscal year. The state further contends that the Agreement defines Supported Employment Services to include additional types of supported employment services that assist a person with IDD to obtain and maintain work in an integrated employment setting, therefore employment achieved with these additional services should also be counted.
Until these disputes are resolved, the state has reported statistics that align with the way the state contends they should be reported. The state has also provided data enabling plaintiffs to determine what the count should be using the method for which they have argued. Using both
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methodologies, the state has met the minimum requirement of 395 individuals who are part of the Sheltered Workshop class who have received competitive integrated employment for at least 90 days. Plaintiffs contend that while the Agreement has been in effect, the State has provided supported employment services and related employment services so that 412 members of the sheltered workshop target population newly obtained competitive integrated employment, cumulatively. This includes 180 individuals in Fiscal Year 2017. The total of 412 exceeds the 395 required cumulatively as of June 30, 2017. By contrast, it is the State’s position that during this time period, it provided supported employment services and related employment services so that 542 members of the sheltered workshop target population newly obtained competitive integrated employment, cumulatively, which also exceeds the 395 required as of June 30, 2017. The number of individuals working in the following settings is shown below: competitive integrated employment, Individual Supported Employment, Self-Employment, Sheltered Workshop, and Small Group Employment. Table 4
According to March 2017 EOS data, the average length of time a person worked in competitive integrated employment was 20 months for sheltered workshop class members and 15 months for transition-age individuals.
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The average length of time a person worked in Small Group Employment was 53.7 months for sheltered workshop class members and 18.2 months for transition-age individuals.
Settlement Agreement VI.5 – Transition Age Youth Receiving Employment Services & IPE
By July 1, 2022, the State will ensure that at least 4,900 of the individuals who are provided Employment Services pursuant to Executive Order IV.3 are members of the transition-age target population. At least half of those 4,900 transition-age target population members shall also receive an Individual Plan for Employment (IPE) with VR.
Status Update 2017:
The Lane Settlement Agreement also requires that, by July 1, 2022, at least half (50%) of the transition-age target population that are counted as having received a new employment service will also receive an IPE from VR. According to the state, the total count of transition-age individuals receiving a new service from July 1, 2013 to June 30, 2017 was 2,453. Of that number, 2,043 received an IPE. This means that 83 percent of these transition-age individuals received an IPE from VR. Oregon is on track to meet this requirement based on the State’s reported data.
Settlement Agreement VI.6 - The State Will Encourage and Facilitate Oregon School Districts to Continue and Expand Models of Evidence-Based Transition Practices.
Status Update 2017:
The Oregon Department of Education (ODE) provided the Independent Reviewer with a November 3, 2017 report titled “The Facilitation of Evidence Based Transition Services in Oregon Public Schools.” The report stated that ODE coordinated a variety of trainings, activities, and collaborative projects with Oregon’s Department of Human Services to support the Settlement Agreement and the Executive Order 15-01 Provisions. A list of trainings provided by ODE and the Transition Technical Assistance Network was included. The report also identified some of the ways in which the state is moving in the direction of evidence-based transition services. Specific requirements outlined in the Lane v. Brown Settlement Agreement call on the State to encourage and facilitate the continued and expanded provision of evidencebased transition services in Oregon schools.
The addendum to ODE’s report states as follows:
Oregon has been selected, and participates in, the National Technical Assistance Center on Transition (NTACT) as a Technical Assistance State. With this support, Oregon has an opportunity to develop an Assistance and Professional Development Action Plan (Action Plan). This plan outlines goals to continue to expand cross-agency professional development trainings and innovative transition strategies across the state.
One specific goal of the Action Plan is to provide 36 cross-agency trainings in 2018. Topics in this training will include learning more about the Individualized Education Plan (IEP), the Individual Support Plan (ISP), and the Individual Plan for Employment (IPE), and how agencies can work together to share information to support successful outcomes employment outcomes for transition-aged students.
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Another goal in the Action Plan is to increase the number of summer work experiences for students with disabilities. ODE, in partnership with VR and ODDS, created a summer youth Request for Application (RFA) in the Oregon Procurement Information Network (ORPIN) in April 2017. With blended funding, applicants had an opportunity to apply for funding to support the development of a summer youth work experience program in communities around the state. This RFA was designed to help DHS and ODE find the best way to support summer work as a sustainable service. Contracted programs focused on community integration and the summer work experience must include community-based experience. At least 20 percent of the participants must have an intellectual or developmental disability.
This RFA is part of ongoing efforts in ODDS, VR and ODE to increase job opportunities for transition-age and high school youth. The state hopes that a model program emerges from this process. All applicants must issue a report on the program and its outcomes at the end of the process. The funds are available on a rolling basis through Dec. 31, 2018.
ODE identified the Lincoln County School District as an example of individual district efforts that go beyond the RFA. In addition to the RFA, Lincoln County School district has participated for the past two years in the Summer Work Employment Experience Training (SWEET) program. This seven-week work experience program supported students from Lincoln County to gain community work experiences while they were paid at minimum wage or greater. Students also were provided first aid training, food handlers certification, and work related/soft skills training through ODEP’s “Skills that Pay the Bills” curriculum. In Summer 2016, 10 students participated in the program. By summer 2017, 16 applicants were accepted into the program and 15 completed the SWEET program. This successful summer youth experience was captured in the Employment First weekly message on August 25, 2017.
Oregon’s First Transition Conference
In support of providing training and technical assistance, ODE, in collaboration with the Oregon Association of Vocational Support Needs Personnel, DHS, and ODDS developed the first Oregon Statewide Transition Conference in 2017. More than 500 people attended the two-day conference. The Oregon Statewide Transition Conference provided more than 60 sessions supporting the following topical strands: Educational Practices for Transition Aged Youth, Vocational Rehabilitation, Youth Transition Program, and Research and Evidence Based Practice in Transition. The conference featured presenters from ODE, local education agencies, adult services agencies, family advocacy, universities, and employment providers who presented on best practices or emerging practices in Oregon. Karen Gaffney, a self-advocate and founder of the Karen Gaffney Foundation, was one of the keynote speakers. She spoke about the importance of inclusion in schools, workplaces and the community. ODE also provided specific sessions focused on the Lane v. Brown Settlement Agreement and Mock Sheltered Workshop Guidance.
Eastern Oregon Regional Job Club
ODE identified, as an example of an emerging practice to support the provisions of Executive Order 15-01 and the Lane v. Brown Settlement Agreement, the development of the Regional Job Club (RJC). This is a day-long, hands-on career exploration in the community for transition-
17

aged students who experience disabilities. This program was developed by the Transition Network Facilitator and communities in eastern Oregon to assist in expanding opportunities for career exploration in rural and frontier communities. During each job club, students have an opportunity to tour local employers and learn more about job opportunities and careers in multiple counties in eastern Oregon. Over the 2016-2017 school year, more than 645 students attended the 10 regional job clubs and more than 100 adults supported these events. An additional 12 events are scheduled for the 2017-2018 school year with plans for expansion to other areas around the state.
Seamless Transition Boot Camp
Oregon launched a Seamless Transition Pilot in 2013. The goal is to establish a seamless transition model for transition-age (16-21 years) people with significant disabilities, with strong emphasis on intellectual and developmental disabilities (I/DD), from school to integrated paid work. This is a collaborative process that includes partnership between ODE, local school districts, ODDS, Vocational Rehabilitation, Community Developmental Disability Programs (CDDPs), Support Service Brokerages, employment providers, and family members. In August 2017, ODE and DHS provided a Seamless Transition Boot Camp for eight teams around the state. Each team was invited by its Transition Network Facilitator. All teams were asked to bring a local education agency representative, VR counselor, DD case manager or Brokerage Personal Agent, and employment provider to be a part of the team. During this two-day Seamless Transition Boot Camp, teams learned about the history and foundation of a seamless transition process and how to plan ahead when working with transition-aged students three years before they exit from school. Training on each of the agency’s plan was provided and examples of sharing information between school and adult service agencies were shared. After the training, the teams scheduled time to continue to meet regularly in their communities with the support of their Transition Network Facilitator. Plans to expand and offer another Seamless Transition Boot Camp in summer 2018 are in development.
Creating Community Work Experiences
The Transition Technical Assistance Network created by Executive Order 13-04 continues to encourage and facilitate the continued and expanded provision of evidence-based transition services in Oregon schools. During the 2016-2017 school year, the Transition Technical Assistance Network created and implemented a training on creating and expanding community work experiences. This training provides educators and educational support staff information regarding Bureau of Labor and Industries (BOLI) rules and regulations regarding paid vs. unpaid work experiences and internships for students. There were more than 12 trainings provided during the school year. Upon completion of this series of trainings, it was recommended by local education agencies that there be a training more specific to providing successful job coaching to students working in community experiences. The target audience for this training would be educators, transition specialists, and instructional assistants/paraprofessionals. This training will provide information regarding proper job coach training and fading, data tracking that can be useful for IEP planning and for sharing with adult service agencies and building and maintaining work relationships with community employers. This training is taking place during the 2017-2018 school year.
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In addition, ODE is encouraging and facilitating the expansion of evidence-based transition services in Oregon schools. ODE is also working with its contractor FACT to provide training to families on evidence-based practices in transition. In the program reviews it was clear that schools understand that no student should be referred to a sheltered workshop. It was also consistently clear, that schools are aware that there should be no mock sheltered workshop options in any school setting.
However, it is not clear that schools understood that after students with IDD leave their transition programs, the schools can refer the students to community-based employment providers to receive competitive integrated employment services. Although ODE has put forth much effort to provide training and technical assistance toward evidence-based transition services, the results of the program review suggests that paid competitive integrated employment is rarely a component of Oregon transition programs. Many schools reported to the Independent Reviewer that although they offer students with IDD in transition options for unpaid in-school internships, very few schools offer paid employment as an option through their transition programs. This component of the settlement agreement is in process. Until schools indicate a better understanding of the importance of paid competitive integrated employment as an essential component of evidence based best practices in transition, there is still work to be done.
The state has begun work to ensure that paid work for some students in the class is a possibility. The state has created summer work grants for paid work experience at some schools. Seamless transition highlights paid work experiences for some students and the state will continue this model. The state is in compliance with this section of the settlement agreement for 2017, but the Independent Reviewer strongly suggests that ODE enhance its focus on evidenced based best practice with an emphasis on paid work for students.
Settlement Agreement VI.7 – Individuals in Sheltered Workshops Wanting Job in Integrated Employment Setting Receive Supported Employment Services and Related Employment Services
Any individual in a sheltered workshop who states as part of the Career Development Plan
(CDP) process that he or she desires a job in an Integrated Employment Setting will receive Supported Employment Services and Related Employment Services that allow the individual an opportunity to obtain a job. An opportunity is not a guarantee of employment.
Status Update 2017:
The results reported in the State’s CDP Report as they relate to Settlement Agreement VI.7 are discussed in conjunction with the discussion of Settlement Agreement VIII. These two provisions in the Settlement Agreement are closely related, as Section VIII sets forth the requirement that the State complete CDPs for target population members, while Section VI.7 defines the State’s obligation to provide supported employment services to those Sheltered Workshop Target Population members who are interested in competitive integrated employment.
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In FY 2017, the state VR Office conducted its first interviews of adults in sheltered workshops paid subminimum wages. Although the provisions of W.I.O.A. are not specific to the Settlement Agreement, many of the individuals interviewed by the state as part of the federal requirements are Lane class members. As such, this data is important and relevant to Lane class members. A more detailed analysis of the data will be available in the next report of the Independent Reviewer. ODDS and VR are following up on this data. This data will be discussed in April of 2018 by the parties at their quarterly meeting. Data that Oregon gathered by interviewing individuals in sheltered employment suggests that many individuals indicated that they wanted competitive integrated employment but have not yet been connected with VR services. Specifically, the interviews produced the following results:

Reponses to the Question Are you interested in competitive integrated employment?

Number who want CIE

560

Number who do not want CIE

259

No response

45

Total surveyed

864

When the responses are broken down by provider, it shows that at most of the large providers, over 70% of the total individuals surveys would like CIE, with Goodwill being the highest at 95%. There are, however, two outliers among the large providers – Edwards Center, where the response was only 20% and Shangri-La, where the response was zero. These two anomalies need to be further investigated. At these 2 programs the same reviewer found that 16% of the 166 individuals surveyed wanted CIE while 83% did not want CIE. In contrast, the other reviewers found that 76% of those surveyed wanted CIE and just 17% did not want CIE. As such, the State should reevaluate individuals with these two providers.

VR ANALYSIS OF INDIVIDUALS WHO WANT CIE

Total number of individuals who want CIE and are VR client

112

Total number of individuals who want CIE but are NOT VR client

443

Number who want CIE and blanks/unknown/unclear for VR

response

5

This data requires further discussion. The data will be discussed by parties at the April, 2018 implementation meeting. After the discussion, the Independent Reviewer may file a supplement to this report on the interview data.
Settlement Agreement VI.9 – DHS Shall Adopt a Rule Requiring CDDPs and Brokerages to Encourage Individuals in Sheltered Workshop Target Population to Choose to Leave Sheltered Workshops
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Status Update 2017:
As part of a formal program review, in 2017 the Independent Reviewer conducted site visits throughout Oregon to visit with providers, brokerages, CDDPs, VR counselors, and transition programs and assess the implementation of the policy above. In the program review conducted by the Independent Reviewer, it was found that some CDDP staff do not support the concept of encouraging members of the sheltered workshop population to leave sheltered workshops and consider employment options. In addition, in the ODDS CDP review, it was found that 31% of individuals with a CDP who requested employment services did not receive the requested services.
SA VII - Enhancing Employment Options.
Settlement Agreement VII.1.a: Establish and Promote a Goal of 20 Hours as the Standard for Planning and Implementing Employment Services for Individuals with I/DD who Want to Work in the Community and Issue Guidance.
Status Update 2017:
As set forth in the July 2015 Integrated Employment Plan, the SFY 2017 target is that 12.3 percent of individuals working in Individual Supported Employment work an average of 20 hours per week or more.
According to March 2017 EOS data, 23.8 percent of individuals working in Individual Supported Employment were working 20 hours or more, higher than the 12.3 percent target. (Numerically, the number of adults with I/DD working in individual integrated employment settings for 20 or more hours per week also increased from 181 in 2015 to 264 in 2017. Thus, according to the State’s data, the State has satisfied this part of the Agreement for this year.
DHS reports that their staff promote this policy annually and issues a report of activities annually. The reports include success stories, training calls, etc.
Settlement Agreement VII.1.b: DHS Will Develop and Seek Approval of New Rates from CMS
The Settlement Agreement requires DHS to develop and seek approval from the Centers for Medicare and Medicaid Services (CMS) for reimbursement rates for supported employment services for outcome payments or other financial incentives to providers for individuals with I/DD who obtain competitive integrated employment at a monthly average of at least 20 hours per week.
Status Update 2017:
The State has been negotiated with CMS on rate issues for more than a year between 20152016. Rates for job coaching are based on hours the individual works versus hours of contact and were formally implemented between the end of 2016 and the beginning of 2017. CMS required a $6.8 million-dollar payback from Oregon for implementation that occurred in 2014, prior to waiver approval. However, the waiver approval includes the requirement that the state adjust the rate annually based on the amount of direct contact time provided. This annual adjustment provides an instability for providers that may not be able to be managed. The state continues to be in conversation with internal and external stakeholders to reach a solution that
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reflects best practice. The state has developed and sought CMS approval of rates that include financial incentives. The state has worked diligently to promote best practice with rates with the federal government. Settlement Agreement VII.1.c: Provider Transformation Grants and Incentive Payments The Settlement Agreement requires DHS to continue to include a goal in provider transformation grants that individuals with I/DD obtain competitive integrated employment and work the maximum number of hours consistent with their abilities and preferences. The grants are to continue to provide one-time incentive payments to providers for each person who obtains competitive integrated employment at least 20 hours per week. Status Update 2017: Transformation Grants: These comments reflect input on Settlement Agreement Section VII.1.c and XI. Provider Capacity. The state has spent considerable funds helping with provider transformation by allocating grant funds to providers willing to refocus on competitive integrated employment. Living Opportunities and WISE were selected to mentor organizations committed to the transformation process state-wide through the Employment First grants. Organizations are currently being mentored, and competitive-wage jobs are being developed in community businesses, in rural and urban settings, for individuals with a wide variety of abilities and support needs. The state has funded transformation and innovation grants to focus on expanding and enhancing provider capacity for competitive integrated employment. Phase 1 transformation grants were awarded as shown in Tables I and II and expired on December 31, 2016.
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TABLE I. Living Ops Phase 1 Transformation Grants
Opportunity Foundation of Central Oregon Sunrise Enterprises of Roseburg Southern Oregon Aspire Partnerships in Community Living Opportunity Connections/Hood River Sheltered Workshops, Inc. Star of Hope Goodwill Industries of Southern Oregon Arc of Lane County Pearl Buck Grand Total

$ 150,000 $ 125,000 $ 125,000 $ 100,000
$ 70,000 $ 80,000 $ 110,000 $ 100,000 $ 125,000 $ 985,000

TABLE II. WISE Phase 1 Transformation Grants

Sheltered Workshop Name Mentor Oregon Garten Services, Inc. The Shangri-La Corporation Mid-Valley Rehabilitation Tualatin Valley Workshop Catholic Community Services Eastco Diversified Services Western Idaho Training Company Rise, Inc. Exceed Enterprises, Inc. SERP Enterprises, Inc. Alternative Services - Oregon, Inc. Willamette Valley Rehabilitation Center Bethesda Lutheran Communities Community Services, Inc. Sunny Oaks

Amount $ 150,000 $ 150,000 $ 125,000 $ 125,000 $ 125,000 $ 100,000 $ 100,000 $ 50,000 $ 35,000 $ 125,000 $ 125,000 $ 110,000 $ 100,000 $ 80,000 $ 50,000 $ 35,000 Grand Total $ 1,585,000

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Phase 2 transformation grants have been awarded as shown in Table III and IV. TABLE III. Living Ops Phase 2 Transformation Grants

Community Access Edwards Center Abilitree Opportunity Foundation MV Advancements Sunrise ARC Aspire Opportunity Connections

$ 75,000 $ 75,000 $ 50,000 $ 100,000 $ 50,000 $ 50,000
T&TA only T&TA only T&TA only

Grand Total $ 400,000

TABLE IV. WISE Phase 2 Transformation Grants

Albertina Kerr Bethesda Lutheran CSI Eastco Exceed Imagine Possibilities SERP TVW Garten ASI Mentor Work Unlimited

$ 71,000 $ 35,000
T/TA only $ 35,000 $ 100,000 $ 35,000
T/TA only $ 100,000 $ 100,000 $ 50,000 $ 150,000 $ 35,000 Grand Total $ 711,000

The next round of transformation grants has also been awarded. DHS has awarded new grants to service provider agencies that currently provide facility-based employment or day services to help transform their organizational and program models to community-based, integrated employment services.

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Phase 2, round 3 transformation grants have been awarded as shown in Tables V and VI. TABLE V. Living Ops Phase 2, round 3 Transformation Grants

Sunshine

$ 36,444

Star of Hope Cornerstone

$ $ Grand Total $

35,000 35,000 106,444

TABLE VI. WISE Phase 2, round 3 Transformation Grants

Horizon

$

Pearl Buck

$

Grand Total $

50,000 100,000 150,000

Innovation Grants In addition to these transformation grants, the State has awarded other types of grants that are designed to contribute to system reform. Originally, the State awarded start up and expansion grants to providers in FY 2015, but these funds could not be matched with federal dollars in FY 2016 (July 1, 2016 – June 30, 2017) and for that reason were not continued. Instead, the Oregon legislature appropriated dollars in the 2015-17 session for innovation grants, which were designed to fund innovative projects aimed at increasing Employment First capacity throughout the state. These grants were open to local communities and could include start up for already existing Personal Support Workers or Independent Contractors or expansion via mentoring of new providers, technical assistance, training, exploration of new models, etc.
The purpose of these innovation grants is to expand efforts to increase competitive integrated employment opportunities for people experiencing I/DD. Twenty-two grants were awarded totaling $458,422.00. The following summaries are examples of the awarded grants; a listing of all the grants is in Appendix A.
• Awardee: Garten Services, Inc.
Location/Region: Marion/Polk counties
Amount: $11,077
Project Summary: Three partner agencies will each have a staff member certified to do benefits counseling. Create materials and provide benefits counseling to families and individuals.
• Awardee: MV Advancements
Location/Region: Polk, Yamhill and Marion counties
Amount: $46,980
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Project Summary: Plan and implement multi-week training program for high school staff of transition-aged youth in six school districts.
Peer-to-Peer (P2P) Employment Project The P2P employment project is a collaboration between the Oregon Department of Human Services (DHS), the Oregon Council on Developmental Disabilities (OCDD) and the Oregon SelfAdvocacy Coalition (OSAC) with funding provided by DHS and OCDD. This project springs from OSAC’s goal to educate, inspire and encourage people with DD to pursue integrated employment. In the P2P project, Peer Mentors (OSAC employees) are helping people understand how to use their services to find community jobs. Trained Peer Mentors cofacilitate four classes (with support as needed) for up to 12 people with DD. They also collaborate with local disability programs and community partners to help participants work towards employment goals. Participants complete classes with homework, develop action plans to reach an employment goal and receive 1:1 or small group support to implement their action plans.
To date, OSAC has implemented the P2P project in Eugene, Portland and Central Oregon. The Eugene classes were held at Pearl Buck and Alvord Taylor during December 2016. OSAC convened the Portland classes with Exceed Enterprises in January and February. Finally, DHS worked with Opportunity Foundation in Redmond to hold classes for Central Oregon participants during June and July. The table below shows the number of initial participants and class completers in each location.
TABLE VII. P2P Participants by Location

Location Eugene
Portland Central Oregon

Host Organization Pearl Buck Alvord Taylor Exceed Enterprise Opportunity Foundation

Number Attended First Class 16
22 24

Number Completed All Classes 12
12 20

The next steps include incorporating final revisions into the P2P curriculum and assisting OSAC to package the materials and continuing to support OSAC Peer Mentors to provide 1:1 and group mentoring to Peers in Central Oregon. In addition, conversations will continue with OSAC and the service providers in Portland and Eugene to implement P2P and the peer support model in different settings.
The state substantially complied in 2017 with Sections VII.1.c and XI.1 of the Settlement Agreement.
Settlement Agreement VII 1.d: DHS will issue guidance to Technical Assistance Providers to train employment professionals and job developers on 20 Hours/Week Standard
Status Update 2017:
No changes.
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Settlement Agreement VII.2: Report Percentage Receiving SES Working at least 20 Hours/Week in an integrated employment setting
As of July 1, 2016, the Settlement Agreement requires the State to collect and semi-annually report the percentage of individuals with I/DD who receive Supported Employment Services under the Settlement Agreement and who are working in an Integrated Employment Setting at least 20 hours per week. If the percentage does not increase by the percentage required by the Executive Order’s Policy Group, the State and the Independent Reviewer will meet to discuss ways to enhance employment outcomes.
Status Update 2017:
As required by the Agreement, the State collected and reported the percentage of persons with ID who were working in an integrated setting at least 20 hours per week. See chart below.

Population
Total ODDS Population ODDS Transition-age (14-24) ODDS Sheltered Worker Class Member

Number in

Number in Competitive

Competitive Integrated Integrated Employment (CIE)

Employment (CIE) Working 20 Hours or More

Ratio

1,111 255 299

264 23.8% 60 23.5% 66 22.1%

As set forth in the July 2015 Integrated Employment Plan, the SFY 2017 target was for 12.3 percent of individuals working in Individual Supported Employment to work in such settings for an average of 20 hours per week or more.
According to the State’s March 2017 EOS data, 23.8 percent of individuals working in Individual Supported Employment were working 20 hours or more (see Chart above), more than the 12.3 percent target. (Numerically, the number of adults with I/DD working in individual integrated employment settings for 20 or more hours per week also increased from 181 in 2015 to 264 in 2017. Thus, according to the data that it provided, the State is currently satisfying this part of the Agreement.
SA VIII - Career Development Planning
Settlement Agreement VIII.1 Consistent with ODDS policy and administrative rules, all individuals in Executive Order 15-01’s ODDS/VR Target Population II(1)(a) (the sheltered workshop target population) shall have a Career Development Plan (CDP) by July 15, 2015. DHS shall determine whether all such CDPs have been developed and shall utilize performance based contracting metrics to impose financial penalties on responsible entities that fail to develop a CDP for any person in the target population. Individuals in Executive Order 15-01’s ODDS/VR Target Population II(1)(b) (the transition-age target population) will receive a CDP prior to their expected exit from the school district. If an individual leaves school prior to his or her expected exit, he or she will receive a CDP within one year of the unexpected exit. The provision of Employment Services will not be delayed or denied due to a lack of a CDP.

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Status Update 2017:
The State reported to the Independent Reviewer on CDPs in 2017. The results are discussed below. This discussion also analyzes the State’s performance under Settlement Agreement §§ VI.7 (requiring the State to provide supported employment services, if a sheltered workshop target population member’s CDP states that the member is interested in competitive integrated employment) and VIII (requiring the State to complete CDPs for target population members). First, the results of the report concerning the adult sheltered workshop target population are discussed in relation to both VIII and VI.7. Second, the results of the report concerning the youth target population are discussed in relation to VIII.
Sheltered Workshop Target Population:
In order to determine whether all individuals in the Sheltered Worker Target Population had a CDP, ODDS reviewed CDPs for all individuals who received Employment Path Facility services in a Sheltered Workshop setting during fiscal year 2015, a total of 2,521 individuals. ODDS requested the CDPs from Case Management Entities. Members of the ODDS Employment Team examined the documents. Written instructions were provided to all reviewers. Several conference calls and two in-person meetings were also held to ensure consistency amongst reviewers.
All CDPs were reviewed to determine if a CDP had been completed, consistent with SA VIII Career Development Planning, as stated above. Thus, it was first determined whether an individual had a CDP as well as a basic review of employment related discussion. In the data review section this is referenced as “verify only.”
In order to get additional information, including a more in-depth review of an individual’s desired outcomes, and determine if supported employment service(s) requested were delivered as required by SA VI.7, a smaller percentage of the total had a more in-depth examination. In the data review section, this is referenced as “total review.”
To determine which CDPs would be reviewed as a “total review,” a sample distribution was created using a 95% Confidence Interval (CI) with a 5% Margin of Error. However, because of the number of individual Case Management Entities (CDDPs and Brokerages) providing services, it was determined a more statistically relevant sample could only be obtained by sampling at the point of service level for the total review. Normal distribution random sampling was used at each of the CDDPs and Brokerages using a random number generator based on Participant Prime Identification Numbers (Primes). A minimum of 20% of each CDDP/Brokerage was targeted for sampling and as a further level of validation.
Based on the initial review, a total of 2,521 records were to be reviewed as part of the CDP review process. Of the 2,521 only eight were unable to be obtained. Thus, a total of 2,513 were reviewed overall. Some reasons as to why CDP was not obtained included that the CDP was not completed, and the individual had passed away, dis-enrolled from ODDS services, or was no longer in any employment service. Therefore, 99.7% of CDPs were completed with a CDP Component (2023), a Decision Not to Explore (“DNE”) Component (414), or both the CDP and DNE components (76). See Table A below for additional details.
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Table A
Description Total # of CDPs Pulled for Review Total Reviewed Total Unable to Review

% (as

#

applicable)

2521

2513

99.7

8

.003

Total Reviewed (including “Total Review” and “Verify Only”)

2513

CDP Component Completed

2023

81

DNE Component Completed

414

16

Both CDP and DNE Components Completed

76

3

Total Reviewed Breakout “Total Review” and “Verify Only”

2513

Verify Only Review

1796

71

Total Review

717

29

Improvement needed (i.e. number of CDPs that appear to have been completed incorrectly)

815

32

Using a 95% CI and 5% Margin of Error, as well as the sampling distribution outlined in the “Methodology” section above, 652 needed more in-depth reviews or “Total Reviews.” The reviewers exceeded this requirement by conducting 717 Total Reviews.
Of note with the “Total Reviews,” it was determined whether the individual requested a Supported Employment Service (including Discovery, Job Coaching, a referral to VR for Job Development, or a referral to Supported Small Group) as required by Settlement Agreement VI.7. Of 717 reviewed, 475 individuals requested a Supported Employment Service and received it, 223 requested a Supported Employment Service and did not receive it and 19 did not request a Supported Employment Service. See the Table below for additional information regarding the SES requests.
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As demonstrated below, 223 individuals requested a Supported Employment Service and did not receive it. ODDS encourages Case Management Entities to document and authorize job coaching if an individual is interested in exploring job coaching; however, job coaching cannot be billed until a job is found and provider secured. Additionally, an individual may have requested a provider of a service and may have been waiting to receive that service or may have changed their decision after the initial referral. Therefore, if an individual requested a Supported Employment Service but did not receive it, additional follow up and information are needed before next steps can be determined. See Table B for additional details.
Table B

Description

% (as

#

applicable)

Total # of “Verify Only” Reviews

1796

CDP Component Completed

1463

81

DNE Component Completed

290

16

Both CDP and DNE Components Completed

43

2

Total # of “Total Reviews” CDP Component Completed DNE Component Completed Both CDP and DNE Components Completed

717

560

78

124

17

33

5

Supported Employment Service (SES) Request for “Total Reviews”
Requested and Received SES
Requested and did not Receive SES
Did not Request SES

475

66

223

31

19

3

Thus, it was indicated that 66% of individuals who requested a Supported Employment Service received one, 31% of those who requested a Supported Employment Service did not receive one and 3% did not request a Supported Employment Service. As there are several reasons that an individual may request a Supported Employment Service and not receive it, the Independent

30

Reviewer asks that the State provide a report on why an individual did not receive a requested service as required.
The CDP report also revealed that a substantial proportion of the CDPs appear to have been completed incorrectly. A CDP comprises two components: the CDP Component, for individuals who wish to explore employment; and the DNE Component, for those who do not. Only one of the two components should be completed for each individual, depending on the individual’s responses regarding his or her interest in employment. However, in many cases, both components were completed for the same individual. In other cases, a DNE component was completed when it was clear that a CDP component should have been completed instead (such as when the individual requested an employment service elsewhere on the form). Still other CDPs omitted employment desired outcomes or included problematic outcomes such as saying that a person’s only possible outcome was to stay in a sheltered workshop. Further information and samples are available in Appendices 2 and 4 to this report. In total, 32% of the CDPs reviewed required some form of improvement.
To address these concerns, the ODDS employment team reviewed existing training materials to ensure that these issues are clearly incorporated and explained. Additionally, Case Management Entities with the highest percentage of improvement needed were required to attend training. ODDS has amended the CDP to clarify instructions to ensure that the most common mistakes are addressed (such as being clear that if someone is in a Sheltered Workshop setting they must complete the CDP component not the DNE component of the CDP).
ODDS has agreed to conduct another CDP review for individuals in Sheltered Workshops setting during Fiscal Year 2017. Although the sample will not include all individuals in a Sheltered Workshop setting, it will include a statistically significant sample size across Case Management entities, just as the “total review” was completed for this report. Future reviews will seek to determine if training, changes to the CDP form, and individualized follow up has yielded an improvement in overall CDP performance.
Transition-Aged Target Population:
The following facts are largely quoted from the State’s Career Development Plan Report of September 2017, with some edits for clarity:
For transition aged youth, a similar assessment was completed by ODDS specific to Career Development Plans. For this study, the parties agreed on a sampling methodology, as requested by the U.S. Department of Justice. DHS sampled youths turning 20 in 2017 using a base sample size of 20 individuals for each of the eight Transition Network Facilitator Regions. In total, it was requested that 160 transition age CDPs be reviewed.
DHS determined the number of people that met the age criteria in each county by reviewing eXPRS records for client authorizations across the state, filtering by age. Then, using a random number generator, DHS pulled a representative sample from each county based on the overall percentage of eligible residents to meet the regional distribution expectations. DHS pulled 242 CDPs for review.
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Of the 242, 57 CDPs were not able to go through the review process because the individuals were not or had not yet been determined eligible for employment services. Reasons for this included that the person was not Medicaid eligible; had not yet been determined for Medicaid eligibility or was Case Management Only; was no longer in service; or had moved1. As a result, DHS reviewed 185 CDPs. Case Management Entities submitted CDPs for 100% of those in the sample who were currently eligible for ODDS employment services. This indicates, with good reliability based on the sample size, that CDPs are being completed for transition age youth. Chart 1 shows how many of the 185-transition age youth CDPS were completed as Students or as Working Age Adults. For youth in school and eligible for IDEA, the Service Coordinator/Personal Agent (SC/PA) completes the “Transition” (Students) Section of the CDP. The SC/PA completes the “Working Age Adults” section of the CDP for youth who are 16 or older and who have exited school. Please note that when someone’s ISP year spans time in school when they are eligible for IDEA and also after they exit school, the CDP may articulate outcomes for the time they are in school as well as after they exit school. The DNE component is the most notable difference between completing the CDP as a Youth or as a Working Age Adult. Even if a Student chooses not to explore CIE, to avoid possibly ingraining the “no” response to even exploring CIE in a young person’s file, DHS does not include the DNE component. A Student should never have the DNE component. However, a Transition Age Target Population member who has left school and is now working-age must complete the DNE component if (and only if) he or she makes an informed decision not to even explore CIE over the ISP year.
1 Youth originally found eligible based on a Developmental Disability often undergo re-determination around age 20. The redetermination may find that the person is no longer eligible. Other people may leave services after transition, or live in-home and choose only to receive case management without having service eligibility for employment services. DHS anticipated that some people would not be in service and would not have an ISP or Plan of Care at this time. By gathering additional CDP samples, DHS ensured compliance with the number agreed upon by DHS, the Independent Reviewer and the Plaintiffs.
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CHART 1

CDPs Completed for Transition Age Youth Working Age Adults and Students
As Working Age Adults 30% (56)

As Students

As Students 70% (129)
As Working Age Adults

Competitive Integrated Employment Outcomes
Of the 185 reviewed CDPs, 117 or 63% demonstrated a clear interest in CIE. In general, plans to explore, pursue and/or secure CIE were generally robust. As outlined above, there are differences between how a CDP is completed for a Student and a Working Age Adult. For that reason, this section will first discuss the results for Students; then Working Age Adults and then cumulative results.
Students
Because a youth who is in school and is eligible under IDEA has different opportunities than a Working Age Adult who is eligible for Medicaid services, the Student Section of the CDP has different selections than the Working Age Adults Section. Because there are wording differences between programs various versions of the CDP, the choices below may differ slightly than what is on a particular version of the CDP. The choices for Students are:
- In school and wants to work now. Develop employment outcomes. - In school and wants to maintain and advance in current job. Develop employment outcomes. - In school and receiving employment supports elsewhere. Develop employment outcomes. - Has an IEP with post-secondary goals or employment training focus. - In school and not receiving any employment supports. - Currently receiving or requesting pre-employment transition planning services through VR. Students may choose one or more of the above selections. As shown in Chart 2, seventy-four of the 129 Students had CDPs with CIE outcomes.

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CHART 2

Students with CIE Outcomes

Has CIE Outcomes 58% (74)

No CIE Outcomes 42% (55)

Without CIE Outcomes With CIE Outcomes

As shown in Chart 3, 40 of the 74 Students, or 54% are requesting or using VR services. Nearly one-third (23) were requesting/using ODDS employment services. Twenty percent (15)2 were requesting /using ODDS employment services and VR services simultaneously.

CHART 3

Supports Requested by the 74 Students with Outcomes Related to CIE

40

40

23

30

15

20

10

0

Rqsting/Using VR Rqsting/Using Rqsting/Using VR

Services

ODDS Emp & ODDS Emp

Services

Services

The new version of the CDP should alleviate most of these mistakes. When a Student’s CDP is completed, the DNE component will not be available.

2 This number includes some of the 25 people who were requesting/using ODDS employment services.
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Transition-Age Youth Who Are Now Old Enough to Work

Again, the following factual claims are largely quoted from the State’s Career Development Plan Report of September 2017, with some edits for clarity:

Chart 4 shows how many of the 56 youth in this category had a CDP component, DNE component or both at the same time. A person should have either a CDP or a DNE component completed but not have both simultaneously.

Chart 4: CDP Components For Working Age Adults
5% (3)

As discussed previously, the new version of the CDP will not populate the DNE component when an individual’s interest in CIE is indicated in the CDP and should alleviate most of these errors.

27% (15)

68% (38)

CDP DNE BOTH component at the same time all had CIE outcomes.

Although two of the 15 people who had DNE components had CIE goals, none of the people with DNE components were using or requesting ODDS employment services. However, one person with a DNE component was using/requesting VR services. The three people who had both a CDP and DNE

Like the students who completed CDPs, there were also a number of transition-age individuals who are old enough to work, whose CDPs reveal that they have ambitious plans.

Chart 5 shows that 26 are requesting/using VR services; 24 people are requesting /using ODDS employment services; and 14 are requesting/using ODDS employment services and VR services.

35

CHART 5

Services Requested by 39* People

30

26

24

25

20 14
15

10

5

0

Rqsting/Using VR Rqsting/Using Rqsting/Using VR

Services

ODDS Emp Services & ODDS Emp

Services

* Includes one person with both a CDP and DNE at the same time
Cumulative This section features charts that combine the numbers for Student CDPs and Working Age Adult CDPs. CHART 6

Transition Age Youth with CIE Outcomes

With a CIE Goal 63%(117)

Without a CIE Goal 37%(68)

Without a CIE Goal With a CIE Goal

36

CHART 7

Services Requested

66 70

60

47

50

40

29

30

20

10

0

Rqsting/Using VR Services Rqsting/Using ODDS Emp Rqsting/Using VR & ODDS

Services

Emp Services

SA IX - Transition Planning for Youth
Settlement Agreement IX.1: ODE shall require that the transition planning process may begin as early as age 14 but must not begin later than the start of the one-year period when the student reaches age 16; the transition process shall include information about and provide opportunities to experience Supported Employment Services in Integrated Employment
Settings; local educational agencies may not include sheltered workshops in the continuum of alternative placements and supplementary aids and services provided to students; and school instructional curriculum shall not include mock sheltered workshop activities.
Status Update 2017:
Based on the Independent Reviewer’s preliminary discussions with impacted families, it remains unclear whether students and families understand that transition services may begin as early as age 14 for students, and that the transition process shall include information about and provide opportunities to experience supported employment services in integrated employment settings. The above policies may need to be revised and or the State may need to ensure that school personnel as well as students and families are aware of the above. The State should take proactive steps to ensure that students with disabilities and their families are aware of their rights during the transition process, including the focus on employment.
This is an area that can be improved. The obligations in this section of the Settlement Agreement are ongoing, and the Independent Reviewer will continue to assess the State’s implementation of this section. The Independent Reviewer’s continuing program reviews and
37

upcoming client reviews will provide additional information to help assess this area of the Settlement Agreement.
In the program reviews conducted by the Independent Reviewer in 2017, many school personnel indicated progress among some local schools. For example, one high school in the Portland Metro area reported, “We look at transition with a different lens” as a result of new policies that the State is implementing in connection with the Lane v. Brown settlement. “How do we transition from an in-school Italian soda shop run by a self-contained classroom in the school to a community work experience? We stopped the Italian soda shop because it was not inclusive. We realized that we are segregated and need to move toward integration.” Another Portland Metro high school echoed this assessment, stating that “[t]he policies make us work harder to focus on employment and are changing the thinking of professionals,” yet also cautioned that “some of that outdated thinking still exists.”
The Independent Reviewer found a relative lack of paid, individualized work experiences. While schools appear to have made efforts to expand the array of work experiences that are potentially available to transition-aged students with I/DD, the clear majority of these work experiences remain unpaid. Academic research and best practices strongly support the principle that placement in such paid work experiences is the single most effective method of ensuring that students with I/DD successfully transition into competitive integrated employment after they exit schools and enter the adult population. Although it may be beyond the terms of the Agreement to dictate the types of transition activities that schools must undertake, the State should encourage school districts to increase and maximize the number of students with I/DD who are exposed to paid trial work experiences.
In addition, as a policy matter, the State should assist schools in ensuring that students’ trial work experiences are individualized. Some schools reportedly rotate students through a set list of internship employers without regard to the students’ preferences. By contrast, other districts have developed more person-centered practices for selecting internships for students. For example, one school in Southern Oregon reported that before placing a student in a work experience, “First [we] find out student interests and strengths. Our transition coordinator is trained to do Discovery. She designed forms for students to request a job change for internships.” The State should assist schools and school districts so that their personnel have the training and knowledge to implement person-centered practices to the greatest extent possible in connection with their efforts to place students with I/DD in trial work experiences.
Settlement Agreement IX.2: The state will develop a broad based professional development plan for transition services.
Status Update 2017:
Oregon is working with the National Technical Assistance Center on Transition. The goal of the Oregon Technical Assistance Plan is to improve transition outcomes for youth with disabilities by creating an equitable, sustainable, simplified system, aligned across agencies that reduces redundancy. The professional development plan for transition services has been shared with plaintiffs and the Independent Reviewer. The plan has 6 goals. The goals are as follows:
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1. Develop an Oregon universal release of information (OUROI) combining OUROI requirements from ODE, ODDS and VR with review by legal counsel for sufficiency across agencies and then implement/field test. The tool should be final by May of 2018.
2. ODE, VR and ODD will develop and implement 36 cross agency professional development trainings (focused on employment opportunities for staff working in foster care, 24 -hour and supported living facilities, VR, parent PTI, Developmental Disabilities, tribal VR, and education) to facilitate universal information sharing (ISP, IPE, SOP), collaborative resource delivery, and promote shared outcomes of employment for all transition age students with disabilities. The training will begin in June of 2018.
3. Develop and provide professional development trainings adapted for families and foster and group home family support about ISP, IEP and SOP, and OUROI as well as on eligibility requirements and needs of each agency to provide coordinated services to youth. Training of trainers began in November 2017 and training will be held annually.
4. Increase summer work experiences for 100 students with disabilities by blending funds from VR, DD and Education. Summer work programs were operationalized in the summer of 2017.
5. Develop a data collection method to capture Pre-ETS activities as required by WIOA occurring in high schools and transition programs without a YTP contract. This work is ongoing.
6. Cross agency team will develop an educational version of the discovery tool to be used by educators to document discovery like activities completed during the student’s educational programming. This will be piloted from February to May of 2018.
According to the State, these goals will provide a much-needed link from school-based services to employment services. The school-based discovery tool will aid in transition from school to work and provide much needed information to VR counselors. The data collection tool for high schools and transition programs without a YTP contract will be helpful. It has been reported to the Independent Reviewer by those who have been providing transition in Oregon, that students with IDD or significant disabilities cannot access YTP. However, OD reports that at least 30% of students in YTP in Oregon are IDD or potentially IDD eligible. The state reports a concerted effort to increases students who are IDD or have significant disabilities in YTP in the last few years.
The summer work experiences were launched in the summer of 2017, and hopefully additional funds can be allocated to continue as well as expand the program for students with more significant disabilities. Professional cross training is essential, and Oregon is moving toward a coordinated system of supports. The universal release forms through OUROI will open communication across agencies that are working cooperatively on employment first. In sum, the professional development plan appears to represent a positive step on the State’s path to compliance. The Independent Reviewer will continue to assess the implementation and efficacy of the plan going forward.
In 2017, the State carried out its obligation to develop a broad-based professional development plan for transition services that incudes targeted assistance provided to ODE personnel, school district personnel, and other practitioners.
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SA X - Training
Settlement Agreement X.1: The State shall maintain a technical assistance provider to offer training on evidence-based practices to supported employment providers through June 30, 2019
Status Update 2017:
DHS contracts with WISE to provide technical assistance and training to execute the Oregon Statewide Employment First Project. During the period July 1, 2016 through June 30, 2017 the training and technical assistance activities pursuant to that contract consisted of:
1. Calendar: Throughout the year, WISE maintained a web-based project calendar that lists events, activities and forums with projected dates to provide a schedule and planning guide for target audiences.
2. OELN Training: WISE submitted a Technical Assistance Plan for the fiscal year, which was subsequently approved by ODDS. WISE presented 17 two-day events to 566 attendees providing 34 days of training for the Oregon Employment Leadership Network (OELN). In addition, WISE applied to the Association of Community Rehabilitation Educators (ACRE) to obtain certification for the OELN seminar series, which was subsequently awarded. As a result, the number of individuals holding the ACRE Certified Employment Support Professional credential increased by 93 since the last report.
3. Virtual Community of Practice Sessions: WISE completed four web-based Community of Practice sessions during this reporting period. Topics and attendance were: o “Employment is Everyone’s Job: Employment Team Collaboration and Coordination,” (130) o “Recruit, Train, Retain: How to Build a Successful Employment Team,” (68) o “Making the Business Case for Hiring,” (79) o “Collaboration between Employment First Teams,” (75).
The Oregon technical assistance contract is in the process of rebidding through a request for proposals. The state intends to continue funding technical assistance statewide through a contracted vendor. It is important to include in the contract mechanisms to allow for statewide training that is available locally to reduce travel time and travel costs.
The state has satisfied the requirement for 2017 that it maintain a technical assistance provider to offer competency-based training, ongoing assistance, and support for evidenced-based practices to agencies that offer supported employment services.
SA XI - Provider Capacity
Settlement Agreement XI.1: Subject to the availability of sufficient funding, the State will maintain provider transformation grants until at least June 30, 2019. DHS will make diligent efforts to obtain sufficient funding.
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Status Update 2017:
The state has continued to fund transformation grants. However, they have changed the grants’ outcome measures so that they are more specific in requiring successful outcomes for individuals in competitive integrated employment. This is a key positive change. The state has spent considerable funds helping with provider transformation by allocating grant funds to providers willing to refocus on competitive integrated employment. Living Opportunities and WISE were selected to mentor organizations committed to the transformation process statewide through the Employment First grants. Organizations are currently being mentored, and competitive-wage jobs are being developed in community businesses, in rural and urban settings, for individuals with a wide variety of abilities and support needs. See the pertinent section earlier in the report for a full discussion on transformation grants.
The state substantially complied in 2017 with the provision that, subject to funding, the state would maintain transformation grants through June 30, 2019.
SA XII - Funding
Settlement Agreement XII.2: The State will make diligent efforts to obtain the necessary funding to comply with the Settlement Agreement.
Status Update 2017:
The state reported that ODE has had no negative budget impact. For VR there was a 1.8% increase from the previous budget. There will be no order of selection at this time for VR. The ODDS budget had an overall increase, but it also included significant reductions in certain program line items. Crisis intervention staff have been cut from the budget. The family support program was cut in half. Bed hold days in residential programs have been reduced. ODDS needs to cut an additional $12 million. The priority is to not cut finding for employment.
In 2017, the state substantially complied with the necessary funding provision.
SA XIII - Data Collection and Reporting
Settlement Agreement XIII.1.a-b: Starting January 1, 2016, the State is required to report specific data about the target populations twice a year. Starting on July 1, 2016, the State is required to report specific information about supported employment services and providers once a year.
Status Update 2017:
The State is providing semi-annual data reports to Plaintiffs and the Independent Reviewer. The following is a summary of the data most recently provided in the State’s October 2017 Amended Lane v. Brown Report. Some of this data is also discussed elsewhere in this report.
Supported Employment Services to Target Populations for SFY 2017:
• 656 transition age and 388 sheltered workers completed an Individual Plan for Employment with VR, for a total unique count of 1010 individuals.
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• 181 transition age and 261 sheltered workers completed Discovery profiles for a total unique count of 426 persons.
• 255 transition age and 299 sheltered workers received individual supported employment from ODDS for a total unique count of 539 persons.
• 54 transition age and 286 sheltered workers were funded for small group supported employment for a total unique count of 331 persons.
• 2004 total unique individuals received a supported employment service, as members of the class in SFY 2017.
• During SFY 2014-2017 (July 1, 2013 to June 30, 2017), 4,031 unique individuals in the target populations received an employment service. This exceeds the minimum 3,000person number of unique individuals required under the Settlement Agreement, by 1,031 persons.
• The Lane Settlement Agreement also requires that, by July 1, 2022, at least half (50%) of the transition-age target population that are counted as having received a new employment service will also receive an IPE from VR. The total count of transition-age individuals receiving a new service from July 1, 2013 to June 30, 2017 was 2,453. Of that number, 2,043 received an IPE. This means that 83 percent of these transition-age individuals received an IPE from VR. Oregon is on track to meet this requirement.
Vocational Rehabilitation—Employment Services to ODDS Clients in SFY 2017:
• SFY 2017 VR Closure data shows that 314 transition age and 180 sheltered worker class members successfully exited VR with employment.
• DHS examined open VR cases for all ODDS clients in SFY 2017. For this group, 140 VR counselors served 4,388 ODDS clients who had an open case at some time in SFY 2017.
• Breaking this group out by target populations, 137 VR counselors served 2,042 transition-aged ODDS clients and 118 VR counselors served 1,075 Sheltered Worker class members who had an open case at some time in SFY 2017.
• New Manual: VR released the Supported Employment Procedures Manual (VR-AR-1703) on 6/30/17 and have revised Supported Employment policy, in draft. In addition, VR trained branch managers and VRC-IDD staff to take the lead in guiding all VR staff in their work with VR’s supported employment participants.
• New Rules: VR is currently revising their Oregon Administrative Rules and began releasing them in stages during the winter of 2017 starting with Definitions and Dispute Resolution.
• Policy Releases: The following apply specifically to Employment First and were released during the reporting period:
➢ VR-AR 17-02 Subminimum wage – WIOA Part 397 – directions to staff for providing services to current VR clients -- released 1/19/17.
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➢ VR-AR 16-10 Updated Service Questionnaire, DHS 1277 – released 8/3/16. ➢ VR-AR 16-03 Participant Release of training, certificates, degrees, and grades
information – measures credential attainment and measurable skill gain -released 11/7/16.
Employment Counts for Target Population in March 2017 EOS Data:
• 255 ODDS transition age class members were funded for individual supported employment.
• 299 sheltered workers were funded for individual supported employment.
• 1 ODDS transition age students and 4 ODDS sheltered workers were self-employed.
• 54 ODDS transition age individuals and 286 ODDS sheltered workers were funded in small group employment.
• 57 ODDS transition age (14-24) individuals and 1,043 sheltered workers were funded in sheltered employment.
Numbers in Competitive Integrated Employment:
• 255 ODDS transition age individuals were working in competitive integrated employment.
• 299 sheltered workers were working in competitive integrated employment.
• 60 ODDS transition age individuals were working 20 hours or more a week in competitive integrated employment.
• 66 sheltered workers were working 20 hours or more a week in competitive integrated employment.
• The SFY 2017 target had a goal that 160 individuals in the sheltered workshop class obtain new competitive integrated employment, for a total of 395 jobs from SFY 20152017. An additional requirement to this metric applies to newly obtained job placements in which employment has been retained for at least 90 days, regardless of whether a person subsequently loses his or her job.
• In SFY 2017, 270 individuals obtained competitive integrated employment for at least 90 days. This leads to an overall total of 542 placements since SFY 2015
• According to March 2017 EOS data, the average length of time a person worked in competitive integrated employment was 20 months for sheltered workshop class members and 15 months for transition-age individuals.
• The average length of time a person worked in Small Group Employment was 53.7 months for sheltered workshop class members and 18.2 months for transition-age individuals.
• The SFY 2017 target is that 12.3 percent of individuals working in Individual Supported Employment have an average of 20 hours per week or more. According to March 2017 EOS, 23.8 percent of individuals working in Individual Supported Employment were
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working 20 hours or more, more than the 12.3 percent target. (Numerically, the number of adults with I/DD working in individual integrated employment settings for 20 or more hours per week also increased from 181 in 2015 to 264 in 2017.
• Using the method of counting that plaintiffs prefer; the count is 412 individuals. To avoid disputes for the time being, the State has reported the data in the way the State believes is appropriate but is including the data if the plaintiffs preferred methodology is used. The requirement for 2015 to 2017 was a total of 395. Under either method, the State has satisfied Metric 11 for this fiscal year.
People in sheltered workshops:
• The SFY 2017 target was to reduce the number working in sheltered workshops in the March 2017 census to 1,530 individuals. The March 2017 EOS census calculated that, there were 1,043 individuals in sheltered employment (an annual reduction of 362 individuals), which satisfies Metric 9.
• The SFY 2016 target was to reduce the hours worked in sheltered employment in the March 2017 EOS Census to 66,100 hours. The March 2017 EOS census calculated that there were 53,857 hours worked in sheltered employment, which is less than the 66,100-hour target, which satisfies Metric 10.
Training Data:
• According to the DHS ilearn Core Competency Training data, 980 persons have completed provider training, including job coaching, job development or Discovery training.
• According to the Association of Community Rehabilitation Educators (ACRE) certificate registry, 197 employment professionals in Oregon have obtained an ACRE Certification.
• According to the Association of People Supporting Employment First (APSE), 313 employment professionals have achieved the Certified Employment Support Professional (CESP) credential in Oregon.
• According to Washington Initiative for Supported Employment (WISE), which is contracted to deliver Oregon Employment Learning Network (OELN) certificates, 94 Employment Professionals have obtained the DHS Employment First OELN certification.
• According to VR’s SFY 2017 case closure data for job development contracts, there were 67 job developer vendors who served Sheltered Worker class members and 84 job developer vendors served transition-aged ODDS clients.
• Currently DHS/Work Incentives Network contracts with six Independent Living Centers to provide benefits counseling throughout the state. In total, the six centers have 11 counselors. Disability Rights Oregon also administers a benefit planning program called “Plan for Work.” Both programs serve all types of disabilities, not just the I/DD population.
In 2017, the state substantially complied with Sections XIII.1.a and .b of the Agreement.
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Settlement Agreement XIII.1.c: ODE will collect specified additional information in the Post School Outcomes surveys and will collect information from all school leavers starting in July 2016.
Status Update 2017:
ODE shared some summary results from the Post School Outcomes Survey (PSO). Oregon reported that it had added a few questions to the federally mandated questions specific to the Lane Settlement Agreement. ODE reported that it provides training to school districts on how to complete the PSO. ODE offers stipends to incentivize school districts to complete the survey. For the school year ending in 2016, 2937 students were interviewed statewide. The data provided to plaintiffs and the Independent Reviewer was incomplete. In the summary results, the results indicated that of those interviewed, 941 had a paid job, 116 were not sure if they had a paid job, and 2000 did not respond. Plaintiffs and the Independent Reviewer asked for more detail data from the PSO school year ending in 2017.
When asked how ODE was utilizing this key data, there were mixed responses from ODE staff. One staff member reported that it was local school districts, not ODE, that should use the data to improve outcomes. Another ODE staff member responded that ODE staff is using the data and going to districts to talk about training needs and then provide technical assistance through the transition network facilitators and others as needed.
In the future, it would be helpful to have the aggregate PSO data, in addition to the summary results, which would better enable the Independent Reviewer to identify trends and next steps. In the program reviews, school districts indicated that they were looking at the PSO data for the first time as a tool to improve services. ODE should place additional value on this data, assure that it is as complete as possible, and utilize the data to move toward evidence based best practices. The data shared with the parties should be more thorough and presented in a fashion that is understandable.
Executive Order (EO) Provisions Referred to in the Settlement Agreement
The Settlement Agreement requires the State to substantially implement and maintain
Executive Order 15-01 – “Providing Employment Services to Individuals with Intellectual and Developmental Disabilities.” (Settlement Agreement V.A.1). The State’s progress on EO provisions that have not yet been addressed in this report is discussed below.
EO VI.1: Competency-Based Training and Certification Standards
The EO requires ODDS and VR establish competencies for employment service providers and to establish competency-based training standards for Career Development Plans, job creation, job development, job coaching, and coordination of those services.
Status Update 2017:
This data is reported on in the section from the Settlement Agreement XIII. According to the DHS iLearn Core Competency Training data, 980 persons have completed provider training, including job coaching, job development or Discovery training.
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According to the Association of Community Rehabilitation Educators (ACRE) certificate registry, 197 employment professionals in Oregon have obtained an ACRE Certification.
According to the Association of People Supporting Employment First (APSE), 313 employment professionals have achieved the Certified Employment Support Professional (CESP) credential in Oregon.
According to Washington Initiative for Supported Employment (WISE), which is contracted to deliver Oregon Employment Learning Network (OELN) certificates, 94 Employment Professionals have obtained the DHS Employment First OELN certification.
According to VR’s SFY 2017 case closure data for job development contracts, there were 67 job developer vendors who served Sheltered Worker class members and 84 job developer vendors served transition-aged ODDS clients.
Currently DHS/Work Incentives Network contracts with six Independent Living Centers to provide benefits counseling throughout the state. In total, the six centers have 11 counselors. Disability Rights Oregon also administers a benefit planning program called “Plan for Work.” Both programs serve all types of disabilities, not just the I/DD population.
The state remains in compliance with the competencies requirements of the Executive Order for 2017.
EO VII - Outreach and Awareness
The EO requires ODDS and VR to create an outreach and information program for members of the ODDS/VR target population about the benefits of employment and to encourage individuals with I/DD to seek employment services.
Status Update 2017:
In addition to outreach to the general public, employers, clients and their families, Employment First’s communication effort is a cornerstone of maintaining and increasing system capacity by reminding “troops in the field” that what they are doing not only matters, but changes lives for the better. The following communication activities were undertaken during the reporting period:
• Employment First has partnered with the Oregon Resource Association to produce both 30-second and 15-second radio spots to air statewide through the Oregon Broadcaster’s Association on all commercial radio stations, as well as guaranteed ad buys through iHeart Media in the Portland metro area during drive time, to direct potential job seekers to vendor agencies.
• Employment First’s statewide marketing campaign continued including billboards, transit signage, radio and print ads, posters and pamphlets.
• In-depth Success Stories are being produced describing positive system outcomes from multiple perspectives including Clients, families, employers and the employment professionals who helped bring about these outcomes.
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• ODDS released transmittals 16-077 and 16-079 explaining the new streamlined processes for enrolling new and renewal personal service workers/job coaches, and independent contractor discovery specialists/job developers, respectively. Streamlined enrollment processes should encourage qualified individuals to enroll who otherwise were put off by the previous confusing and burdensome requirements.
• Employer focused outreach is being conducted, including:
➢ Employer-focused statewide radio ad in cooperation with the Oregon Broadcaster’s Association.
➢ Created a window decal that employers that hire people experiencing I/DD can use to brand their businesses.
➢ Produced an employer web page with video testimonials from employers. ➢ Increased employer engagement on social media by tagging the employer’s
Facebook page when we share a story. This is a win-win strategy for both Employment First and the employer because it increases exposure for both beyond normal reach through views and multiple shares. In 2017, the state remained in compliance with the Executive Order’s outreach and information plan provisions.
EO X - Educational Provisions
The EO requires the State to use specific strategies to improve transition services and prepare transition-age youth with I/DD for competitive integrated employment.
Status Update 2017:
ODE provided the following training during the reporting period:
• Planning Alternative Tomorrows with Hope/Making Action Plans Facilitation training to regional Training Network Facilitators (TNFs) and ODDS Regional Employment Specialists.
• Better Employment Success Together (BEST) Trainings in Jackson and Coos Counties. These were the last two of ten trainings across the state.
• A total of 600 persons attended the Transition Conference, featuring Settlement Agreement and Mock Sheltered Workshop presentations.
In addition, ODE developed other trainings, plans and tools:
• Work experience development and coaching training. This is a training series aimed to support teachers and school staff in creating and supporting students in community work experiences. The materials have been developed and piloted in one region. The trainings are scheduled to be presented in multiple regions around the state this academic year.
• TNFs are trained as Person Centered Planning facilitators. The plan is to have all Training network facilitators provide Person Centered Plans (PCPs) in their region for 2017-2018, then will train others in their region to become person centered planning facilitators.
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Training other stakeholders will expand capacity and will be a low cost/no cost opportunity for teams to provide PCPs in their communities.
• National Technical Assistance Center on Transition intensive technical assistance plan to be implemented in the 2017-2018 tracking year.
• TNF tracking app - This application allows the ability to track the location and activities of when and where TNFs are going around the state, allowing ODE to gather data regarding direct contact to local education agencies, VR, Employment Providers, ODDs, Family outreach, Pre-Employment Transition Service activities, and trainings provided in each assigned region.
In 2017, the state remained in substantial compliance with the Executive Order’s transition strategies provisions.
EO XI.1: MOU with ODDS/VR/ODE
The EO requires the State to develop at least one MOU between ODDS, VR, and ODE addressing allocation of responsibility, funding commitments, and authority to implement the EO; collaborating to achieve the EO’s employment outcomes; coordinating funding to achieve the EO’s goals; and coordinating outreach to the target populations.
Status Update 2017:
The previous MOU between ODDS, VR, and ODE was replaced by a new MOU in May 2017. Copies are available online. The state remains in substantial compliance for 2017 with the Executive Order’s MOU provisions.
EO XII: Quality Assurance/Quality Improvement Plan
The EO directs DHS to develop and implement a quality improvement initiative to promote and evaluate the quality of Employment Services provided under the EO.
Status Update 2017:
The state of Oregon has had significant staff turnover in the QA ODDS position. The state shifted some of the quality metrics from the 2015 QA Plan as part of the Settlement Agreement. The State has also shifted some of the components of the 2015 QA Plan to the new Provider Capacity Report. The state will now develop an annual Provider Capacity Report. The first Provider Capacity Report was made available in September of 2017. This report also addresses some of the systemic issues identified by the Independent Reviewer’s Program Review. ODDS is actively recruiting for a new staff to work on the QA Plan.
In 2017, although the state substantially complied with the Executive Order’s quality improvement provision, this is an area that would benefit from more work, more staff and more progress.
EO XIV: EO Policy Group and Integrated Employment Plan
The EO calls for the creation of a policy group including individuals from ODE, DHS, legislators, and stakeholders to make recommendations about implementation of the EO and to recommend and monitor metrics to assess the State’s performance.
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Status Update 2017:
The EO Policy Group continues to meet monthly with leadership from ODDS, VR and ODE. The Independent Reviewer participates, typically on the phone, but also in person when possible. Disability Rights Oregon continues to be an active member. In 2017, the state substantially complied with the Executive Order’s policy group provisions.
Client Review
In 2018, the Independent Reviewer will be conducting client reviews with individuals in the sheltered workshop and transition-age target populations. The Independent Reviewer has a subcontract with Celia Feinstein of Temple University to serve as an expert for the collection, aggregation and interpretation of quality metrics specific to the individuals in the target populations.
Status Update 2017: Methodology for Individual Assessment for the
Lane Independent Review
(Modified January 2018)
1. Develop survey instrument based on: a. Employment/transition questions from the National Core Indicator Survey for each of the groups b. Questions developed by the Court Monitor in the Rhode Island Consent Decree and Interim Settlement Agreement (permission granted by Charles Moseley) in the areas of employment and Community-based Day Services. c. Employment questions from the Essential Data Elements (EDE) Survey, the data collection instrument that supports Independent Monitoring for Quality (IM4Q), the supplemented version of the NCI used in Pennsylvania. The EDE survey has been determined to possess reliability and validity. d. The Transition Survey, developed in PA to supplement the EDE. The transition survey is typically used for individuals between the ages of 14-26, to gain perspective on the transition experience.
2. A sampling strategy will be determined, to insure a representative sample is chosen for the two groups of individuals of interest to the parties and the Independent Evaluator – those who are employed, having left sheltered workshops and those transitioning from school to adult life. Possibilities for sampling strategy include: a. Simple random samples of individuals from each of the two groups; b. Cluster sampling, where geographical areas are identified as the clusters; once the clusters are identified a sample of clusters is selected and then individuals in the two groups are identified through random sampling in each of the clusters selected. Cluster sampling increases efficiency and decreases
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costs but does not ensure representation from each of the clusters as the cluster is the sampling unit. c. Stratified random sampling, where strata (in this case geographic areas) are identified and a random sample is selected from each of the strata – this is less efficient but ensures each of the strata will be represented in the sample. 3. Finalize instrument (February 2018) 4. Meet with parties to finalize instrument and process (February 2018) 5. Recruit and hire data collectors through OHSU (February 2018 – May 2018) a. Recruit data collectors who have significant experience working with people with disabilities, specifically in the areas of employment and transition from school to work. Some of the data collectors will be individuals who have participated in data collection for National Core Indicators (NCI) b. OHSU will identify those individuals with the most significant experience and ask if those individuals are willing/able to conduct the individual reviews for Lane class members. c. Once the group of experienced data collectors is identified, training will be provided to them specific to the Settlement Agreement and its provisions. Training will also be provided in assessing best practices in employment and transition. Training may be provided by the Independent Evaluator or Derrick Nord, specifically in case judging. 6. Pilot data collection instrument a. Independent Evaluator and Consultant which each collect data for about 10 individuals (April 2018) 7. Obtain IRB approval at OHSU (February 2018). 8. Begin annual data collection (July 2018). 9. Data will be collected on an annual basis. 10. Data will be analyzed on an annual basis with a report submitted by the research team to the Independent Evaluator and all parties.
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Program Review
Status Update 2017:
The Program Review interviews that the Independent Reviewer conducted in 2017 enabled the Independent Reviewer to make the following additional observations regarding the State’s progress on this obligation and on issues that may call for extra attention going forward. Although the state is generally complying with the terms of the Agreement, the state is promoting organizational and systems change. This type of change takes time and requires systemic changes. Ensuring that all new policies, grants and training result in widespread improvement requires coordination in the effective delivery of employment services. This is an ongoing task and the state appears to be committed to this organizational change. The following are areas of systemic change that could be enhanced as the state moves forward.
Lack of Capacity of Job Developers, Job Coaches, and Other Service Providers Necessary to Implement the Settlement Agreement
Although the state is working on improving provider capacity, numerous interviewees across all settings and all geographical areas expressed serious concerns regarding a lack of sufficient staff to meet the demand for employment services. In 17 of the 63 interviews, there were reports of insufficient staffing at VR (case managers, job developers); and in 21 of the interviews, there were similar reports with respect to insufficient staffing at ODDS and its employment providers (case managers, job coaches, ODDS staff, Discovery personnel), including eight in which the reports focused specifically on Discovery. These personnel shortages present a challenge to expand capacity at the provider level and reduce staff turnover. There appears to be an insufficient number of job developers employed by VR as private providers in many areas of the state.
Access to VR
Another eight interviews revealed, more generally, that there are inordinate delays in receiving services through the State’s employment system, especially from VR. Interviewees cited wait times as long as three months for VR intake, and one CDDP stated that delays sometimes last so long that “[w]e have providers who find people jobs, but they lose the jobs waiting for VR.” Another noted that VR was “not ready to handle all these people coming to get a job” due to these capacity issues, and thus VR “only takes a few people with I/DD a month for the whole county for orientation.”
A state hiring freeze in VR caused multiple vacancies to occur in SFY 2017, which impacted VR to maintain full staffing of VR counselors. VR reports it was able to fill these vacancies toward the end of 2017. According to the DHS Employment First Report on Outcomes and Successes for October 2017, VR did help more than 700 individuals with IDD to get a job in the community which the state reports is a 24% increase from prior years.
Lack of Effective Interagency Coordination
Complaints about the lack of effective interagency coordination within the State’s employment services system were commonplace. These concerns came from across the State but were especially prominent in Eastern Oregon. For example, one CDDP in that region stated that “VR
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seems not to want to do anything and sends the people back to us,” while “ODDS says we have to go through VR and then they pass them back like a hot potato.” Employment service providers in Eastern Oregon echoed these concerns, with one stating that “ODDS is not always willing to work with VR,” and another describing the process as “broken.”
Comments on interagency coordination in other regions of the State were mixed at best. In the Portland area, one provider agency stated “[t]here’s a lot to be improved,” while another labeled the process “cumbersome” and “awkward.” Yet another responded, “Sometimes it works great. Sometimes it’s horrible.” In Southern Oregon, one provider agency stated that the process “goes terribly,” citing the example of one individual with I/DD who lost a job and wished to find a new one: “Brokerage referred him to VR. VR said no, they won’t reopen his case for job development because they thought he was too independent. So now he’s in Employment Path.” Other interviewees likewise indicated that the process of coordinating between different agencies was difficult, although they also indicated that the situation was gradually improving in their regions.
Considering these interviewees’ comments, the State should take steps to improve the level of communication between VR, DD, and providers. Agency leaders at the State level should work in concert, through training, meetings, or other joint communications, to develop closer and more effective working relationships among on-the-ground agency personnel and providers at the local level, particularly in Eastern Oregon, as well as set clear expectations that such local personnel and providers are to work cooperatively always. In addition, agency leaders should work together to conduct their own interviews of local personnel and providers to troubleshoot for future problems with respect to coordination and cooperation.
Poor Quality of Some Discovery Profiles
Of the interviewees who expressed an opinion about Discovery, a majority voiced strong criticisms. Only a small handful of interviewees expressed enthusiastically positive opinions about the efficacy of this new service. However, many indicated that Discovery, if done correctly, was an essential service to move toward employment.
Most criticisms reflected a perception that many Discovery Profiles were of poor quality. Many brokerage staff offered negative assessments of Discovery Profiles completed in the past.
While many felt that Discovery is of such poor quality that it is redundant or a waste of time, several others said that the problem was lack of access to Discovery, either due to lack of available staff or lack of funding. As previously noted, eight interviewees specifically identified Discovery as a service that has been negatively impacted by a lack of capacity.
Provider agencies also expressed frustration. In March 2017, two agencies in Eastern Oregon indicated that, as of that date, CDDPs were not funding Discovery in that area. Both indicated that they had asked their respective CDDPs for funding for Discovery, but their CDDPs had refused. This has been corrected, staff have been retrained. This is not allowable under Medicaid.
Yet, other CDDP staff and Employment providers value Discovery, if done well. Many statewide interviewees commented that it makes better sense for VR to contract with the same provider
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to do Discovery and Job Development for an individual. It is confusing and lacks coordination of if one entity does the Discovery profile and then another entity is charged with job development. Continuity of supports is important.
The State should increase its efforts to ensure that CDDPs and brokerages recommend, fund, monitor, and use Discovery as required by State rules. The widespread critiques of Discovery’s quality, its usefulness relative to other supported employment services, and its availability suggest that the State would benefit from working with system stakeholders ―especially brokerages, VR personnel, and provider agencies ―on training and on maximizing the quality of and access to Discovery.
The state conducted a statewide focus group which included VR Managers, VR Counselors, Provider Organizations, SC/Pas and Transition Network Facilitators in 2017. The purpose of the focus group was to identify ways to improve the quality of Discovery. DHS intends to implement new training in 2018 as well as policy changes in early 2019. The state should prioritize these changes in the coming months.
Lack of Available Services for Individuals with Greater Needs
Executive Order 15-01 § IV(1)-(2) requires ODDS’ and VR’s employment services to be evidence-based, individualized, and of a type and duration that are tailored to each recipient. Yet interviewees reported that individuals who have greater needs and/or require personal care services are not able to access necessary employment services from providers or VR. Interviewees stated that individuals with high needs who find jobs may then lose them due to the requirement to taper job coaching services. One provider agency in Eastern Oregon stated that “VR pushes back on funding for individual supports for adults with I/DD who have more significant needs,” while a Portland Metro brokerage added that Discovery providers often refuse to support individuals with personal care support needs.
ODDS implemented a rate model that has 6 tiers and 3 categories designed to provide financial incentives to provide services to those with higher needs. VR also has a 3-tier system, which allows higher rates for individuals with higher needs and is one of the only VR programs in the US to offer such a rate system. This system was designed through interagency collaboration. However, more work is needed to make sure the providers better understand the system and that individuals with higher needs receive services based upon individual needs.
The State should clarify to VR offices and provider agencies that all individuals in the target populations are equally deserving of supports, and that individuals may not be given lower levels of priority, let alone turned away from services, based on having more complex needs.
Opportunity to Expand Paid, Individualized Work Experiences in Schools
Eleven schools and school districts were interviewed as part of the program review. Many interviewed indicated progress among some local schools. For example, one high school in the Portland Metro area reported, “We look at transition with a different lens” as a result of new policies that the State is implementing in connection with the Lane v. Brown settlement. “How do we transition from an in-school Italian soda shop run by a self-contained classroom in the school to a community work experience? We stopped the Italian soda shop because it was not
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inclusive. We realized that we are segregated and need to move toward integration.” Another Portland Metro high school echoed this assessment, stating that “[t]he policies make us work harder to focus on employment and are changing the thinking of professionals,” yet also cautioned that “some of that outdated thinking still exists.”
The most significant deficiency was the relative lack of paid, individualized work experiences. While schools appear to have made efforts to expand the array of work experiences that are potentially available to transition-aged students with I/DD, most of these work experiences remain unpaid. Academic research and best practices strongly support the principle that placement in such paid work experiences is the single most effective method of ensuring that students with I/DD successfully transition into competitive integrated employment after they exit schools and enter the adult population. Thus, the State should encourage school districts to increase and maximize the number of students with I/DD who are exposed to paid work experiences.
In addition, the State should assist schools in ensuring that students’ work experiences are individualized. Some schools reportedly rotate students through a set list of internship employers without regard to the students’ preferences. By contrast, other districts have developed more person-centered practices for selecting internships for students. For example, one school in Southern Oregon reported that before placing a student in a work experience, “First [we] find out student interests and strengths. Our transition coordinator is trained to do Discovery. She designed forms for students to request a job change for internships.” The State should assist schools and school districts so that their personnel have the training and knowledge to implement person-centered practices to the greatest extent possible in connection with their efforts to place students with I/DD in work experiences.
System Issues from the regional program reviews:
1. Offer technical assistance and training to the CDDP’s and Brokerages who have filed incomplete or inaccurate Career Development Plans. Update: The state found about 30% of the CDP’s in need of correction. TA has been made available and CDP’s have been rewritten, for the 30% with plans of correction.
2. Consider making employment training mandatory for all CDDP and brokerage staff. Update: Training was required for agencies that had a 30% correction rate or higher on the CDP’s. DHS has also created an online CDP training for new case managers and broker staff and or those who may need a refresher course on how to complete a CDP and wrote SMART employment goals.
3. Provide additional training and mentoring to VR counselors with a large number of people with IDD on their caseloads. Update: VR is now hosting regular conference calls with VR counselors on the Lane Settlement Updates.
4. Provide additional direction to the field that referral to VR can start during Discovery. Update: It is not clear if formal direction has been provided, but many CDDP’s and Brokerages report that this is their new protocol. However, it has not been embraced statewide.
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5. VR should create a checklist of data needed by VR for referral to employment providers, brokers and CDDP’s. Update: DHS has worked with stakeholders to develop a uniform referral which will be piloted in March of 2018.
6. Could VR and ODDS and ODE clarify how a person with IDD can go directly to VR without going through the CDDP, Brokerage, or school? Update: A revised exception process has been created and staff have been informed of how and when to utilize the protocol.
7. Until Oregon has a comprehensive case management system, in the meantime is there a way to aggregate key data points from the CDP such as employment data from the ISP and CDP? Update: DHS continues to work with CCDDP’s and Brokerages to manually review CDP’s.
8. As in every state, transportation is an issue, especially in rural areas. Update: ODDS is working to offer innovative solutions to transportation barriers. ODDS created a new transportation website which contains local transportation resources.
9. The state should clarify to the CDDP’s that if an individual wishes to use the waiver funded services called, Discovery, then access should not be denied based upon the opinions of particular CDDP Director(s). Update: DHS has discussed the federal requirements to offer individuals choice and make referrals to available services.
10. Some transition programs require students to pass a class in order to be considered for work experiences. Some students never pass the class after taking it three times. Should technical assistance address this?
11. In many transition programs, work experiences are unpaid, yet the data and research demonstrate that students with a paid job prior to graduation have a higher success rate for employment post-graduation. Update: DHS with ODE is offering summer work grants that require paid work experiences to help students access paid work experiences.
12. More Students with significant disabilities should be included in the Youth Transition Programs. Update: ODE reports that the number of students with significant disabilities continues to increase. About 30% of YTP participants are students with significant disabilities. That number needs to continue to increase.
13. Clarification is needed with foster placements staff about denying a paid work experience for an individual. Update: DHS is developing an employment training for families and residential providers to be released in 2018.
14. A comprehensive case management system would allow the state to have accurate data and information across the state and across ODDS, VR, and transition.
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CONCLUSION, SUMMARY OF IMPLEMENTATION FOR SFY 2017 BY THE NUMBERS and RECOMENDATIONS:
Vocational Rehabilitation (VR) Employment Services to ODDS Clients in State FY 2017
According to the data that the State calculated and provided:
• 1697 total unique individuals received a new supported employment service as class members in SFY 2017.
• 656 transition-age youth and 388 employees in sheltered workshops completed an individual plan for employment, total count of 1010 individuals;
• 205 transition-age youth and 189 employees in sheltered workshops, total count of 382 people received supported employment and during SFY 2014-2017, 4,031 unique individuals in the target populations received an employment service, exceeding the 3,000-person target by over 1,000 persons.
Sheltered Employment: The SFY 2017 target was to reduce the census of individuals in sheltered workshops. The goal for March of 2017 was 1,530 individuals, based on state data the census is 1,043.
The state reports that it has met the numerical benchmarks in the settlement agreement for SFY 2017. The State calculated that members of the sheltered workshop target population worked 53,857 hours in sheltered employment, which is less that the target of 66,100 hours worked.
Number of individuals working in competitive integrated employment:
There is still a dispute among the parties on how to calculate this data. To avoid disputes for the time being, the State has reported the data in the way the State believes is appropriate but is including the data if the plaintiffs preferred methodology is used.
According to March 2017 EOS, 23.8% of individuals working in Individual Supported Employment were working 20 hours or more, more than the 12.3% target. With employees making at least minimum wage.
In SFY 2017, 270 individuals obtained competitive integrated employment for at least 90 days. There has been an overall total of 542 placements since SFY 2015.
Highlights for State Fiscal Year 2017 for Oregon:
1. The state published the Employment First Outcomes and Successes Report in October of 2017, the report showed that 1,111 people with IDD were working in community jobs with supports as of March 2017. This represents a 32 percent increase from last year. There was also a 46 percent increase in people with IDD working 20 or more hours per week.
2. Of those 1,111 individuals, 255 ODDS transition age class members were funded for individual supported employment and 299 sheltered worker class members were funded for individual supported employment. 60 transition age individuals were working 20 hours or more a week in competitive integrated employment. 66
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sheltered workers in SFY 2017 were working 20 hours a week or more in competitive integrated employment.
3. 542 class members have worked in competitive integrated employment for at least 90 days since SFY 2015.
4. The state launched the second phase of the employment marketing and outreach campaign, “I Work We Succeed.”
5. ODDS, VR and ODE worked jointly to launch a summer work experience initiative to increase paid work opportunities for youth with disabilities.
6. ODDS and VR trainings were revised and updated based on stakeholder feedback.
7. Innovation grants were awarded to 20 entities throughout Oregon to increase capacity and employment outreach efforts for individuals with IDD.
8. Additional transformation grants were funded to assist employment provider agencies to transform from legacy services to community-based employment services.
9. ODDS hosted a statewide employment conference with over 350 participants to network and discuss best practices about Employment First.
10. ODE hosted a statewide transition conference with over 600 participants to network and discuss best practices about transition.
11. VR provided career counseling, information and referral to 1,239 individuals working in subminimum wage employment.
12. ODDS redesigned the employment outcomes system online to highlight employment provider agency capacity with an easy to use system to help people with disabilities, families, case coordinators, school transition personnel and VR to understand where there is capacity in Oregon for employment providers and to allow informed choices by consumers of employment services.
13. The state launched a Peer to Peer Employment Project with the Oregon SelfAdvocacy Coalition in conjunction with the Oregon Council on Developmental Disabilities.
Recommendations from the Independent Reviewer’s Program Review
1. The State should outline strategies and report on work done to build provider capacity, particularly in areas where it has been identified that there is a lack of employment provider capacity. The report should be shared with the IR and plaintiffs by September 2018.
2. The Program Review revealed that numerous persons in the employment service system lack confidence in the quality of many Discovery Reports. The State should ensure that CDDPs and brokerages recommend, fund, monitor, and use Discovery as required by State rules. The state should continue to retrain CDDP’s and brokerages to maximize the quality of the service and ensure consistency and confidence in the process. Wherever possible, the entity doing Discovery, should also provide job development, unless the individual requests someone else to do so.
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3. The State should clarify to VR offices and provider agencies that all individuals in the target populations are equally deserving of supports, and that individuals may not be given lower levels of priority or turned away from services based on having more intense needs.
4. ODE should provide guidance to school districts to increase and maximize the number of members of the Transition Age Target Population, including those with more intense needs, who are exposed to paid trial work experience before exiting into the adult service system. ODE should also assist schools in ensuring that such work experiences are individualized and person-centered, rather than simply rotating students through a pre-set list of internship employers.
5. Statewide there is a need for additional benefit counseling.
Recommendations for Class Members in the Sheltered Workshops
1. For individuals in sheltered workshops who indicated an interest in competitive integrated employment and are not already a VR client, ODDS and or their agents (CDDPs and Brokerages) should review the Career Development Plans for those individuals. Each of these individuals should be referred, on a rolling basis, to VR for intake and assessment. VR should provide the Independent Reviewer with a plan and timetable for completing these referrals within SFY 2018.
2. ODDS should develop a Case Management System which will allow for improved follow up and data for all individuals in sheltered workshops and transition populations.
3. The State should improve its tracking of Sheltered Workshop Target Population members who enter CIE, so that it can know whether and when an individual leaves CIE, regardless of whether the individual initiates a request for new VR or other services. Although this is not specifically required by the Settlement Agreement, it would enhance the state’s capacity to understand what contributes to successful competitive integrated employment.
Recommendation on Youth Transition Issues
1. Given the State’s explanation that “Decision Not to Explore” (DNE) components had been completed in error on the CDP’s of certain members of the Transition Age Target Population, the State should provide increased technical assistance regarding (a) how and when to complete DNE components, especially for transition-aged youth, and (b) how to discuss employment with transition-aged youth and their families in a manner that ensures that they are making a truly informed choice about whether to pursue employment.
2. While the state has made progress among the target populations, overall, there appears to be a lack of students with more significant I/DD included in school district Youth in Transition Programs (YTP). ODE and VR should look at creative ways to expand the number of YTP Programs and to incentivize school districts to include students with significant disabilities in Youth in Transition Programs. The state reports that the number of students with IDD has increased in recent years with 30%
58

of students in YTP are IDD or potentially IDD eligible, however some schools appear not to understand this fact. 3. Schools are reporting very few paid employment options for high school students in transition prior to graduation. ODE needs to enhance training and technical assistance in this area to promote job development and individualization of employment services. In addition, the State should assist schools to ensure that students’ work experiences are individualized based on skills and preferences.
Recommendations on Executive Order Implementation
1. ODDS and Employment First should implement and update its Quality Assistance plan as needed.
2. ODDS and Employment First should continue to update its Outreach and Communication Plan.
The state has been following up on some of the systemic issues above. While some items were consistent across the board (for example, most parties were aware of and attended Employment First Meetings, and understood the provider training requirements and 20-hour policy) interpretation of other policies and procedures were not consistent (such as understanding when to refer to VR after Discovery, how to bypass VR if an individual is stable, etc.) For that reason, DHS (including VR and ODDS) and ODE continue to follow up as needed.
Some follow-up has been specific (such as when a specific entity does not understand a particular policy) and some has been more general. For instance, a manager at a CDDP office clearly did not understand how to write detailed employment outcomes or the best use of the Career Development Plan (CDP), and in that case CDP training was provided.
However, some recommendations were made by the IR on a system level. These included (but were not limited to):
• Creating a statewide intake and referral form for VR.
• Clarification around referral information to VR.
• Clarification around how to bypass VR when an individual is stable.
• Creating a system flow chart.
• Clarification of the Discovery service requirements.
For that reason, ODDS, VR and ODE are working with stakeholders to develop a uniform intake, referral and release form for VR. Additionally, ODDS is working with stakeholders using Employment First Messages and online training about how and when it is appropriate to enter directly into long-term job coaching. ODDS is also working with the state technology team (OIS) to create an online flow chart that can be customized to individuals. Finally, ODDS is in the process of releasing updated policy regarding Discovery requirements. Additional information will be reported in the future as system changes are made.
59

Cathy Ficker Terrill, M.S. Independent Reviewer SFY 2017
60

 </s> FOR IMMEDIATE RELEASE
Contact Information: Bob Joondeph Disability Rights Oregon 620 S.W. Fifth Avenue, Suite 500 Portland, Oregon 97204 Telephone: (503) 243-2081 or 1-(800) 452-1694 www.disabilityrightsoregon.org
Class Action Lawsuit Seeks an End to Segregated Sheltered Workshops
PORTLAND, ORE. – Jan. 25, 2012 – Advocates for individuals with intellectual and developmental disabilities today filed a class action lawsuit challenging Oregon’s failure to provide supported employment services to more than 2,300 state residents who are segregated, in sheltered workshops where they perform mundane tasks, such as folding UPS bags.
The lawsuit, filed in U.S. District Court, charges state officials with violating the Americans with Disabilities Act and the Rehabilitation Act by confining individuals with disabilities to segregated settings where they have little – if any – interaction with non-disabled peers. Moreover, they are paid far below the state’s minimum wage of $8.80 for doing rote tasks that offer no training, no skills, and no advancement.
For more than a decade, lead plaintiff Paula Lane, 48, has had the same request: “Find me an outside job.” Instead, she and 137 other people with disabilities package gloves or put parts into boxes on assembly lines in a noisy and crowded sheltered workshop in Beaverton. Despite her request for competitive employment and her high performance scores, her individualized service plan has no goals related to employment. She lives in an apartment with staff support, and would like to go to a country music concert or attend an Upward Bound camp, but her resources are limited. Over a 12-month period in 2010-11, she made a high of 66 cents an hour.
Another plaintiff, Lori Robertson, 51, performs mundane tasks at a sheltered workshop in Gresham. She has been assigned to these segregated settings since 1981. Robertson earned $126.15 for 53.9 hours of work in December 2011 – which works out to $2.34 an hour. She lives in a group home and would like to earn at least minimum wage in an integrated job in the community. She also would like to go bowling or horseback riding, but has little money left after paying her bills.
According to the lawsuit, Oregon currently spends $30 million a year confining individuals with disabilities to sheltered workshops. The plaintiffs contend it would much cheaper to fund programs that promote integrated, supported employment. They cite a 2010 Call for Action Report issued by the state’s Office of Developmental Disability Studies that recognized “cumulative costs generated by sheltered employees may be as much as three times higher than the cumulative costs generated by supported employees – $19,388 versus $6,618.”
PDXDOCS:1954298.1

The plaintiffs are represented by Disability Rights Oregon, Miller Nash, Perkins Coie, and the Center for Public Representation.
“The Americans with Disabilities Act recognizes that discrimination against individuals with disabilities includes intentional segregation and relegation to lesser service jobs,” said Bruce Rubin, partner at Miller Nash. “This law protects individuals with developmental disabilities, like the named plaintiffs in this lawsuit.”
Ironically, throughout the 1980s, Oregon was in the forefront of a national movement to reduce the number of sheltered workshops and increase opportunities for integrated and supported employment. However, beginning in the mid-1990s, the state changed course, and the raw number and percentage of people served in sheltered workshops more than doubled, while the number and percentage served in supported employment has almost halved. This reversal, ascribed to a lack of commitment to expanded supported employment programs and to a dropoff in federal monies for such programs, coincided with the 1999 U.S. Supreme Court ruling in Olmstead v. L.C. that ordered states to develop concrete, measureable plans to integrate disabled persons into the general population.
“Requiring integration in employment is the next natural step for obeying the integration mandate required by the U.S. Supreme Court and the U.S. Department of Justice,” said Steven Schwartz, litigation director at the Center for Public Representation.
“It is time to require that the State of Oregon follow the law,” said Bob Joondeph, executive director of Disability Rights Oregon.
“We want the state to provide supported employment programs in integrated employment settings and to develop measurable plans that describe modifications to the state’s employment service system,” said Lawrence Reichman, partner at Perkins Coie.
Joondeph cited the plaintiffs’ segregation and inequitable wages, and added, “They deserve better.” For example, 28-year-old Sparkle Green wants “a community job,” but no one has discussed integrated employment options with her or offered her supported employment services. She has almost perfect performance scores at the Beaverton sheltered workshop, but earned less than 46 cents an hour in August, 39 cents an hour in September, and 29 cents an hour in October.
Gretchen Cason, 27, was referred to a sheltered workshop that purported to provide employment services, but instead offered only crafts projects, and she spent three years watching television or coloring. If she ever has the chance, she would work in a music store or an ice cream parlor. What she wants is “a job that’s not boring.”
Andres Paniagua, 32, works with 66 other individuals with disabilities in a sheltered workshop that cuts steel. Mr. Paniagua has worked in every department from the machine shop to the front office. Despite his demonstrated ability, interest, and repeated requests for outside integrated employment, he has not been afforded any community-based options. Rather, the goal outlined in his “individualized” service plan calls for more segregation: “opportunities in employment in a workshop setting and for activities and socialization with other people with disabilities.”
The other named plaintiffs are Annette Elder, 48, who independently boards a Tri-Met bus to travel to the Beaverton sheltered workshop that she has attended since 1991; Angela Kehler,
PDXDOCS:1954298.1

48, who has been forced to remain in sheltered workshops since she was laid off from a successful job placement at a drugstore; Chris Lacayo, 24, who spends a significant amount of his meager workshop wages on transportation to the workshop; Elizabeth Harrah, 32, who previously worked at McDonald’s and Safeway, and now is at a sheltered workshop while waiting for her case manager to help her return to competitive employment; and Zavier Kinville, 27, who is stuck at a sheltered workshop, awaiting an opportunity for integrated community employment. Kinville has volunteered in the community, where his favorite job was reading to children. United Cerebral Palsy of Oregon and Southwest Washington (UCP), which serves adults, children, and families experiencing cerebral palsy and intellectual and developmental disabilities, is an organizational plaintiff in the lawsuit. UCP executive director Ann Coffey said its efforts to increase supported employment programs have been frustrated by the state's diversion of resources into sheltered workshops. As alleged in the lawsuit, thousands of individuals with disabilities are unable to get supported employment services because the Department of Human Services (DHS) administers and funds an employment system that relies primarily on sheltered workshops. The plaintiffs are asking the court to direct the state to end their needless segregation in sheltered workshops and to provide supported employment services to enable them to participate in competitive employment in integrated settings as mandated by federal law. The lawsuit, Lane v. Kitzhaber, names as defendants Governor John Kitzhaber; Erinn KelleySiel, DHS director; Mary Lee Fay, administrator of the Office of Developmental Disability Services; and Stephanie Parrish Taylor, administrator of the DHS Office of Vocational Rehabilitation Services.
###
PDXDOCS:1954298.1

 </s> Case 3:12-cv-00138-AC As of 02/14/2019 07:45 AM PST Page 1 of 52 Page ID#: <pageID>
CLASS,CONSENT,PROTECTIVE ORD,TERMINATED
U.S. District Court District of Oregon (Portland (3)) CIVIL DOCKET FOR CASE #: 3:12−cv−00138−AC

Lane et al v. Brown et al Assigned to: Magistrate Judge John V. Acosta Cause: 42:12101 Americans with Disabilities Act
Plaintiff

Date Filed: 01/25/2012 Date Terminated: 01/27/2016 Jury Demand: None Nature of Suit: 445 Civil Rights: Americans with Disabilities − Employment Jurisdiction: Federal Question

Paula Lane on behalf of themselves and all others similarly situated

represented by Anna M. Krieger Center for Public Representation 22 Green Street Northampton, MA 01060 413−586−6024 Fax: 413−586−5711 Email: akrieger@cpr−ma.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bettina Toner Center for Public Representation 22 Green Street Northhampton, MA 01060 413−586−6024 Fax: 413−586−5711 Email: btoner@cpr−ma.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bruce A. Rubin Miller Nash Graham & Dunn LLP 111 SW Fifth Avenue Suite 3400 Portland, OR 97204 503−224−5858 Fax: 503−224−0155 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cathy E. Costanzo Center for Public Representation 22 Green Street Northhampton, MA 01060 413−586−6024 Fax: 413−586−5711 Email: CCostanzo@cpr−ma.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer J. Roof Miller Nash Graham & Dunn LLP 111 SW Fifth Avenue Suite 3400 Portland, OR 97204 503−205−2626 Fax: 503−224−0155

Case 3:12-cv-00138-AC As of 02/14/2019 07:45 AM PST Page 2 of 52 Page ID#: <pageID>
Email: jennifer.roof@millernash.com LEAD ATTORNEY
Joanna T. Perini−Abbott Perkins Coie, LLP 1120 NW Couch Street 10th Floor Portland, OR 97209−4128 503−727−2000 Fax: 503−727−2222 Email: jperini@perkinscoie.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin C. Sawyer Miller Nash Graham & Dunn LLP 111 SW Fifth Avenue Suite 3400 Portland, OR 97204 503−205−2340 Fax: 503−224−0155 Email: justin.sawyer@millernash.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence H. Reichman Perkins Coie, LLP 1120 NW Couch Street 10th Floor Portland, OR 97209−4128 503−727−2019 Fax: 503−727−2222 Email: lreichman@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen F. English Perkins Coie, LLP 1120 NW Couch Street 10th Floor Portland, OR 97209−4128 503−727−2003 Fax: 503−346−2003 Email: senglish@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J. Schwartz Center for Public Representation 22 Green Street Northhampton, MA 01060 (413) 586−6024 Fax: (413) 586−5711 Email: sschwartz@cpr−ma.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore E Wenk Oregon Advocacy Center 610 SW Broadway Suite 200 Portland, OR 97205 503−243−2081

Case 3:12-cv-00138-AC As of 02/14/2019 07:45 AM PST Page 3 of 52 Page ID#: <pageID>
Fax: 503−243−1738 Email: ted@droregon.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody J. Elliott Miller Nash Graham & Dunn LLP 111 SW Fifth Avenue Suite 3400 Portland, OR 97204 503−224−5858 Fax: 503−224−0155 Email: cody.elliott@millernash.com ATTORNEY TO BE NOTICED
James A. Wrigley Oregon Advocacy Center 610 SW Broadway, Suite 200 Portland, OR 97205 (503) 243−2081 Fax: (503) 243−1738 Email: jwrigley@droregon.org TERMINATED: 09/23/2013
Julia Terese Greenfield Disability Rights Oregon 610 SW Broadway Suite 200 Portland, OR 97205 503−243−2081 x 220 Fax: 503−243−1738 Email: jgreenfield@droregon.org TERMINATED: 12/04/2015
Kathleen L. Wilde Disability Rights Oregon 610 S.W. Broadway Suite 200 Portland, OR 97205 503−243−2081 Fax: 503−243−1738 Email: kwilde@droregon.org TERMINATED: 06/23/2017
Steven G. Liday , Jr. Miller Nash LLP 3400 US Bancorp Tower 111 SW Fifth Avenue Portland, OR 97204 (503) 224−5858 Fax: (503) 224−0155 Email: steven.liday@millernash.com TERMINATED: 11/07/2013
Thomas Stenson Disability Rights Oregon 511 SW 10th Avenue Suite 200 Portland, OR 97205 503−243−2081 Fax: 503−243−1738 Email: tstenson@droregon.org ATTORNEY TO BE NOTICED
Plaintiff

Case 3:12-cv-00138-AC As of 02/14/2019 07:45 AM PST Page 4 of 52 Page ID#: <pageID>

Andres Paniagua on behalf of themselves and all others similarly situated

represented by Anna M. Krieger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bettina Toner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bruce A. Rubin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cathy E. Costanzo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer J. Roof (See above for address) LEAD ATTORNEY

Joanna T. Perini−Abbott (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Justin C. Sawyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence H. Reichman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. English (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Schwartz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Theodore E Wenk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cody J. Elliott (See above for address) ATTORNEY TO BE NOTICED

James A. Wrigley (See above for address)

Case 3:12-cv-00138-AC As of 02/14/2019 07:45 AM PST Page 5 of 52 Page ID#: <pageID>

TERMINATED: 09/23/2013

Julia Terese Greenfield (See above for address) TERMINATED: 12/04/2015

Kathleen L. Wilde (See above for address) TERMINATED: 06/23/2017

Steven G. Liday , Jr. (See above for address) TERMINATED: 11/07/2013

Thomas Stenson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Elizabeth Harrah on behalf of themselves and all others similarly situated

represented by Anna M. Krieger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bettina Toner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bruce A. Rubin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cathy E. Costanzo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer J. Roof (See above for address) LEAD ATTORNEY

Joanna T. Perini−Abbott (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Justin C. Sawyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence H. Reichman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. English (See above for address)

Case 3:12-cv-00138-AC As of 02/14/2019 07:45 AM PST Page 6 of 52 Page ID#: <pageID>

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Schwartz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Theodore E Wenk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cody J. Elliott (See above for address) ATTORNEY TO BE NOTICED

James A. Wrigley (See above for address) TERMINATED: 09/23/2013

Julia Terese Greenfield (See above for address) TERMINATED: 12/04/2015

Kathleen L. Wilde (See above for address) TERMINATED: 06/23/2017

Steven G. Liday , Jr. (See above for address) TERMINATED: 11/07/2013

Thomas Stenson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Angela Kehler on behalf of themselves and all others similarly situated

represented by Anna M. Krieger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bettina Toner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bruce A. Rubin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cathy E. Costanzo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer J. Roof (See above for address)

Case 3:12-cv-00138-AC As of 02/14/2019 07:45 AM PST Page 7 of 52 Page ID#: <pageID>

LEAD ATTORNEY

Joanna T. Perini−Abbott (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Justin C. Sawyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence H. Reichman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. English (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Schwartz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Theodore E Wenk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cody J. Elliott (See above for address) ATTORNEY TO BE NOTICED

James A. Wrigley (See above for address) TERMINATED: 09/23/2013

Julia Terese Greenfield (See above for address) TERMINATED: 12/04/2015

Kathleen L. Wilde (See above for address) TERMINATED: 06/23/2017

Steven G. Liday , Jr. (See above for address) TERMINATED: 11/07/2013

Thomas Stenson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Gretchen Cason on behalf of themselves and all others similarly situated

represented by Anna M. Krieger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case 3:12-cv-00138-AC As of 02/14/2019 07:45 AM PST Page 8 of 52 Page ID#: <pageID>
Bettina Toner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce A. Rubin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cathy E. Costanzo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer J. Roof (See above for address) LEAD ATTORNEY
Joanna T. Perini−Abbott (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin C. Sawyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence H. Reichman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen F. English (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J. Schwartz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore E Wenk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody J. Elliott (See above for address) ATTORNEY TO BE NOTICED
James A. Wrigley (See above for address) TERMINATED: 09/23/2013
Julia Terese Greenfield (See above for address) TERMINATED: 12/04/2015

Case 3:12-cv-00138-AC As of 02/14/2019 07:45 AM PST Page 9 of 52 Page ID#: <pageID>

Plaintiff
Lori Robertson on behalf of themselves and all others similarly situated

Kathleen L. Wilde (See above for address) TERMINATED: 06/23/2017
Steven G. Liday , Jr. (See above for address) TERMINATED: 11/07/2013
Thomas Stenson (See above for address) ATTORNEY TO BE NOTICED
represented by Anna M. Krieger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bettina Toner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce A. Rubin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cathy E. Costanzo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer J. Roof (See above for address) LEAD ATTORNEY
Joanna T. Perini−Abbott (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin C. Sawyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence H. Reichman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen F. English (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J. Schwartz (See above for address)

Case 3:12-cv-00138-AC As of 02/14/2019 07:45 AM PST Page 10 of 52 Page ID#: <pageID>

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Theodore E Wenk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cody J. Elliott (See above for address) ATTORNEY TO BE NOTICED

James A. Wrigley (See above for address) TERMINATED: 09/23/2013

Julia Terese Greenfield (See above for address) TERMINATED: 12/04/2015

Kathleen L. Wilde (See above for address) TERMINATED: 06/23/2017

Steven G. Liday , Jr. (See above for address) TERMINATED: 11/07/2013

Thomas Stenson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Sparkle Green on behalf of themselves and all others similarly situated

represented by Anna M. Krieger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bettina Toner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bruce A. Rubin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cathy E. Costanzo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer J. Roof (See above for address) LEAD ATTORNEY

Joanna T. Perini−Abbott (See above for address) LEAD ATTORNEY

Case 3:12-cv-00138-AC As of 02/14/2019 07:45 AM PST Page 11 of 52 Page ID#: <pageID>

PRO HAC VICE ATTORNEY TO BE NOTICED

Justin C. Sawyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence H. Reichman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. English (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Schwartz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Theodore E Wenk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cody J. Elliott (See above for address) ATTORNEY TO BE NOTICED

James A. Wrigley (See above for address) TERMINATED: 09/23/2013

Julia Terese Greenfield (See above for address) TERMINATED: 12/04/2015

Kathleen L. Wilde (See above for address) TERMINATED: 06/23/2017

Steven G. Liday , Jr. (See above for address) TERMINATED: 11/07/2013

Thomas Stenson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Zavier Kinville on behalf of themselves and all others similarly situated

represented by Anna M. Krieger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bettina Toner (See above for address) LEAD ATTORNEY PRO HAC VICE

Case 3:12-cv-00138-AC As of 02/14/2019 07:45 AM PST Page 12 of 52 Page ID#: <pageID>
ATTORNEY TO BE NOTICED
Bruce A. Rubin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cathy E. Costanzo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer J. Roof (See above for address) LEAD ATTORNEY
Joanna T. Perini−Abbott (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin C. Sawyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence H. Reichman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen F. English (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven J. Schwartz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Theodore E Wenk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody J. Elliott (See above for address) ATTORNEY TO BE NOTICED
James A. Wrigley (See above for address) TERMINATED: 09/23/2013
Julia Terese Greenfield (See above for address) TERMINATED: 12/04/2015
Kathleen L. Wilde (See above for address) TERMINATED: 06/23/2017

Case 3:12-cv-00138-AC As of 02/14/2019 07:45 AM PST Page 13 of 52 Page ID#: <pageID>

Steven G. Liday , Jr. (See above for address) TERMINATED: 11/07/2013

Thomas Stenson (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
United Cerebral Palsy Association of Oregon and Southwest Washington, Inc.

represented by Anna M. Krieger (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bettina Toner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bruce A. Rubin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cathy E. Costanzo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer J. Roof (See above for address) LEAD ATTORNEY

Joanna T. Perini−Abbott (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Justin C. Sawyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence H. Reichman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen F. English (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven J. Schwartz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Theodore E Wenk

Case 3:12-cv-00138-AC As of 02/14/2019 07:45 AM PST Page 14 of 52 Page ID#: <pageID>
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody J. Elliott (See above for address) ATTORNEY TO BE NOTICED
James A. Wrigley (See above for address) TERMINATED: 09/23/2013
Julia Terese Greenfield (See above for address) TERMINATED: 12/04/2015
Kathleen L. Wilde (See above for address) TERMINATED: 06/23/2017
Steven G. Liday , Jr. (See above for address) TERMINATED: 11/07/2013
Thomas Stenson (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
State of Oregon Kate Brown, in her official capacity as the Governor of the State of Oregon

represented by John J. Dunbar Larkins Vacura LLP 121 SW Morrison St Suite 700 Portland, OR 97204 503−222−4424 Email: jdunbar@lvklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Scott Oregon Department of Justice 100 SW Market Street Portland, OR 97201 971−673−1880 Fax: 971−673−5000 Email: carla.a.scott@doj.state.or.us TERMINATED: 05/09/2014
Carson L. Whitehead Oregon Department of Justice Special Litigation Unit, Trial Division 1515 SW 5th Ave, Suite 410 Portland, OR 97201 971−673−1880 Fax: 971−673−5000 Email: carson.l.whitehead@doj.state.or.us TERMINATED: 05/09/2014
Christina L. Beatty−Walters Oregon Department of Justice 100 SW Market Street Portland, OR 97201

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(971) 673−1880 Fax: (971) 673−5000 Email: tina.beattywalters@doj.state.or.us ATTORNEY TO BE NOTICED

Keith E. McIntire Markowitz Herbold PC 1211 SW 5th Avenue Suite 3000 Portland, OR 97204 503−295−3085 Fax: 503−323−9105 Email: keith.mcintire@stoel.com TERMINATED: 01/22/2016

Laura R. Salerno Owens Markowitz Herbold PC 1211 SW 5th Ave Suite 3000 Portland, OR 97204 503−295−3085 Fax: 503−323−9105 Email: LauraSalerno@MarkowitzHerbold.com TERMINATED: 08/20/2014

Lauren F. Blaesing Markowitz Herbold PC 1211 SW 5th Ave Suite 3000 Portland, OR 97204 503−295−3085 Fax: 503−323−9105 Email: LaurenBlaesing@MarkowitzHerbold.com TERMINATED: 01/22/2016

Defendant
Oregon Department of Human Services Erinn Kelley−Siel, Director, in her official capacity

represented by John J. Dunbar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carla Scott (See above for address) TERMINATED: 05/09/2014

Carson L. Whitehead (See above for address) TERMINATED: 05/09/2014

Christina L. Beatty−Walters (See above for address) ATTORNEY TO BE NOTICED

Keith E. McIntire (See above for address) TERMINATED: 01/22/2016

Laura R. Salerno Owens (See above for address) TERMINATED: 08/20/2014

Lauren F. Blaesing (See above for address) TERMINATED: 01/22/2016

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Defendant Oregon Office of Developmental Disability Services Mary Lee Fay, Administrator, in her official capacity
Defendant Oregon Office of Vocational Rehabilitation Services Stephanie Parrish Taylor, Administrator, in her official capacity

Nina R. Englander Oregon Department of Justice 100 SW Market Street Portland, OR 97201 971−673−1880 Fax: 971−673−5000 Email: nina.englander@doj.state.or.us TERMINATED: 09/12/2013
represented by John J. Dunbar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Scott (See above for address) TERMINATED: 05/09/2014
Carson L. Whitehead (See above for address) TERMINATED: 05/09/2014
Christina L. Beatty−Walters (See above for address) ATTORNEY TO BE NOTICED
Keith E. McIntire (See above for address) TERMINATED: 01/22/2016
Laura R. Salerno Owens (See above for address) TERMINATED: 08/20/2014
Lauren F. Blaesing (See above for address) TERMINATED: 01/22/2016
Nina R. Englander (See above for address) TERMINATED: 09/12/2013
represented by John J. Dunbar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Scott (See above for address) TERMINATED: 05/09/2014
Carson L. Whitehead (See above for address) TERMINATED: 05/09/2014
Christina L. Beatty−Walters (See above for address) ATTORNEY TO BE NOTICED
Keith E. McIntire (See above for address)

Case 3:12-cv-00138-AC As of 02/14/2019 07:45 AM PST Page 17 of 52 Page ID#: <pageID>
TERMINATED: 01/22/2016
Laura R. Salerno Owens (See above for address) TERMINATED: 08/20/2014
Lauren F. Blaesing (See above for address) TERMINATED: 01/22/2016
Nina R. Englander (See above for address) TERMINATED: 09/12/2013

V. Intervenor Defendant Wally Wilkinson TERMINATED: 06/20/2014
Intervenor Defendant Eric Stewart TERMINATED: 06/20/2014
Intervenor Defendant Elizabeth Kehoe TERMINATED: 06/20/2014
Intervenor Defendant Alan Hubbell TERMINATED: 06/20/2014

represented by Edwin A. Harnden Barran Liebman LLP 601 SW Second Avenue Suite 2300 Portland, OR 97204 503−228−0500 Fax: 503−274−1212 Email: eharnden@barran.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean P. Ray Barran Liebman LLP 601 SW Second Avenue Suite 2300 Portland, OR 97204 503−228−0500 Fax: 503−274−1212 Email: sray@barran.com ATTORNEY TO BE NOTICED
represented by Edwin A. Harnden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean P. Ray (See above for address) ATTORNEY TO BE NOTICED
represented by Edwin A. Harnden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sean P. Ray (See above for address) ATTORNEY TO BE NOTICED
represented by Edwin A. Harnden (See above for address) LEAD ATTORNEY

Case 3:12-cv-00138-AC As of 02/14/2019 07:45 AM PST Page 18 of 52 Page ID#: <pageID>

ATTORNEY TO BE NOTICED

Sean P. Ray (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant
Douglas Gardelius TERMINATED: 06/20/2014

represented by Edwin A. Harnden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean P. Ray (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant
Mary Stuller TERMINATED: 06/20/2014

represented by Edwin A. Harnden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean P. Ray (See above for address) ATTORNEY TO BE NOTICED

Intervenor Defendant
Laura Anderson TERMINATED: 06/20/2014

represented by Edwin A. Harnden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sean P. Ray (See above for address) ATTORNEY TO BE NOTICED

Movant US Department of Labor

represented by Kevin C. Danielson US Attorney's Office 1000 S.W. Third Avenue Suite 600 Portland, OR 97204 503−727−1000 Fax: 503−727−1117 Email: kevin.c.danielson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor United States of America

represented by Adrian L. Brown US Attorney's Office District of Oregon 1000 S.W. Third Avenue Suite 600 Portland, OR 97204 503−727−1003 Fax: 503−727−1117 Email: adrian.brown@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Max P. Lapertosa

Case 3:12-cv-00138-AC As of 02/14/2019 07:45 AM PST Page 19 of 52 Page ID#: <pageID>
U.S. Deptartment of Justice 1800 G. Street NW Room 7119 Washington, DC 20006 202−305−1077 Fax: 202−514−1116 Email: Max.Lapertosa@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cheryl Rost U.S. Department of Justice Civil Rights Division, Disability Rights Section 950 Pennsylvania Ave. − NYA Washington, DC 20530 202−616−5311 Fax: 202−317−1197 Email: cheryl.rost@usdoj.gov ATTORNEY TO BE NOTICED
David W. Knight U.S. Department of Justice Disability Rights Section 950 Pennsylvania Ave, NW − NYA Washington, DC 20530 202−616−2110 Fax: 202−307−1197 Email: david.knight@usdoj.gov TERMINATED: 02/03/2015
Elizabeth S. Westfall U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530 202−305−7766 Fax: 202−307−1197 Email: elizabeth.westfall@usdoj.gov ATTORNEY TO BE NOTICED
H. Justin Park U.S. Deptartment of Justice 950 Pennsylvania Ave., NW (NYA) Washington, DC 20530 202−305−0178 Fax: 202−514−7821 Email: justin.park@usdoj.gov ATTORNEY TO BE NOTICED
Nicholas C. Lee U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave. Washington, DC 20530 202−305−0369 Fax: 202−305−9775 Email: nicholas.lee2@usdoj.gov TERMINATED: 09/12/2016
Regina Kline U.S. Deptartment of Justice Disability Rights Section/Civil Rights Division 950 Pennsylvania Ave., NW Washington, DC 20530

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202−307−0663 Fax: 202−305−9775 Email: Regina.Kline@usdoj.gov TERMINATED: 01/17/2017

Intervenor Defendant State of Oregon

represented by John J. Dunbar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carson L. Whitehead (See above for address) TERMINATED: 05/09/2014

Christina L. Beatty−Walters (See above for address) ATTORNEY TO BE NOTICED

Keith E. McIntire (See above for address) TERMINATED: 01/22/2016

Laura R. Salerno Owens (See above for address) TERMINATED: 08/20/2014

Date Filed 01/25/2012
01/25/2012 01/25/2012 02/01/2012 02/08/2012
02/08/2012
02/08/2012

# Docket Text
1 Complaint. Filing Fee in amount of $350 collected. Receipt No. 45100. Jury Trial Requested: No.Filed by Angela Kehler, Zavier Kinville, Paula Lane, Lori Robertson, United Cerebral Palsy Association of Oregon and Southwest Washington, Inc., Gretchen Cason, Elizabeth Harrah, Andres Paniagua, Sparkle Green against All Defendants. (Attachments: # 1 Civil Cover Sheet) (sss) (Entered: 01/25/2012)
2 Corporate Disclosure Statement. Filed by United Cerebral Palsy Association of Oregon and Southwest Washington, Inc. (sss) (Entered: 01/25/2012)
3 Discovery and Pretrial Scheduling Order and Notice of Case Assignment to Magistrate Judge Janice M. Stewart. Discovery is to be completed by 5/24/2012. Joint Alternate Dispute Resolution Report is due by 6/25/2012. Pretrial Order is due by 6/25/2012. Ordered by Magistrate Judge Janice M. Stewart. (sss) (Entered: 01/25/2012)
4 Summons Issued as to Oregon Department of Human Services, Oregon Office of Developmental Disability Services, Oregon Office of Vocational Rehabilitation Services, State of Oregon (sss) (Entered: 02/02/2012)
5 Order Granting Application for Special Admission Pro Hac Vice of Bettina Toner for Gretchen Cason, Sparkle Green, Elizabeth Harrah,Bettina Toner for Angela Kehler, Zavier Kinville, Paula Lane, Andres Paniagua, Lori Robertson and United Cerebral Palsy Association of Oregon and Southwest Washington, Inc.. Application Fee in amount of $100 collected. Receipt No. 45350 issued. Signed on 2/8/2012 by Magistrate Judge Janice M. Stewart. (ecp) (Entered: 02/09/2012)
6 Order Granting Application for Special Admission Pro Hac Vice of Steven J. Schwartz for Gretchen Cason, Sparkle Green, Elizabeth Harrah,Angela Kehler, Zavier Kinville, Paula Lane,Andres Paniagua, Lori Robertson and United Cerebral Palsy Association of Oregon and Southwest Washington, Inc.. Application Fee in amount of $100 collected. Receipt No. 45350 issued. Signed on 2/8/2012 by Magistrate Judge Janice M. Stewart. (ecp) (Entered: 02/09/2012)
7 Order Granting Application for Special Admission Pro Hac Vice of Cathy E. Costanzo for Gretchen Sparkle Green, Elizabeth Harrah,Angela Kehler,Zavier Kinville, Paula Lane, Andres Paniagua, Lori Robertson and United Cerebral Palsy Association of Oregon and Southwest Washington, Inc.. Application Fee in amount of $100 collected.

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02/16/2012 02/16/2012 02/27/2012 03/06/2012 03/06/2012 03/06/2012 03/07/2012 03/09/2012 03/09/2012 03/09/2012 03/09/2012 03/09/2012 03/12/2012
03/12/2012

Receipt No. 45350 issued. Signed on 2/8/2012 by Magistrate Judge Janice M. Stewart. (ecp) (Entered: 02/09/2012)
8 Notice of Appearance of John J. Dunbar appearing on behalf of All Defendants (Titled Acceptance and Acknowledgment of Service of Process) Filed by on behalf of All Defendants (Dunbar, John) (Entered: 02/16/2012)
9 Notice of Appearance of Christina L. Beatty−Walters appearing on behalf of All Defendants Filed by on behalf of All Defendants (Beatty−Walters, Christina) (Entered: 02/16/2012)
10 Fed. R. Civ. P. 26(a)(1) Agreement . Filed by Gretchen Cason, Sparkle Green, Elizabeth Harrah, Angela Kehler, Zavier Kinville, Paula Lane, Andres Paniagua, Lori Robertson, United Cerebral Palsy Association of Oregon and Southwest Washington, Inc.. (Rubin, Bruce) (Entered: 02/27/2012)
11 Motion to Certify the Class . ORAL ARGUMENT requested. Filed by All Plaintiffs. (Rubin, Bruce) (Entered: 03/06/2012)
12 Memorandum in Support of Plaintiffs' Motion for Class Certification. Filed by All Plaintiffs. (Related document(s): Motion to certify class 11 .) (Attachments: # 1 Exhibit 1 (Declaration of Ann Coffey), # 2 Appendix (ADA Class Certification Cases)) (Rubin, Bruce) (Entered: 03/06/2012)
13 Declaration of Theodore Wenk Regarding Exhibits in Support of Plaintiffs' Motion for Class Certification. Filed by All Plaintiffs. (Related document(s): Motion to certify class 11 .) (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 5, # 4 Exhibit 6) (Rubin, Bruce) (Entered: 03/06/2012)
14 Notice of Change of Address for Kathleen L. Wilde, James A. Wrigley and Theodore E. Wenk Filed by All Plaintiffs (Wilde, Kathleen) (Entered: 03/07/2012)
15 Motion for Extension of Time to File a Response/Reply to Motion to Certify the Class 11 . Filed by All Defendants. (Beatty−Walters, Christina) (Entered: 03/09/2012)
16 Memorandum in Support of Motion for Extension of Time to Respond to the Motion for Class Certification. Filed by All Defendants. (Related document(s): Motion for Extension of Time to File Response/Reply to a Motion 15 .) (Beatty−Walters, Christina) (Entered: 03/09/2012)
17 Declaration of Christina L. Beatty−Walters in Support of Motion for Extension of Time to Respond to the Motion for Class Certification. Filed by All Defendants. (Related document(s): Motion for Extension of Time to File Response/Reply to a Motion 15 .) (Beatty−Walters, Christina) (Entered: 03/09/2012)
18 Response in Opposition to Motion for Extension of Time to File a Response/Reply to Motion to Certify the Class 11 15 Expedited Decision Requested requested. Filed by All Plaintiffs. (Attachments: # 1 Exhibit 1) (Rubin, Bruce) (Entered: 03/09/2012)
19 Report to Court of Initial Conference of Counsel for Discovery Planning (Fed. R. Civ. P. 26(f)). Filed by All Plaintiffs. (Attachments: # 1 Exhibit 1) (Rubin, Bruce) (Entered: 03/09/2012)
20 ORDER by Magistrate Judge Janice M. Stewart: Granting in Part Defendants' Motion for Extension of Time to File Response to Motion to Certify the Class 11 . Response is due by 4/13/2012. Reply is due by 5/4/2012. Oral Argument is set for Thursday, 5/10/2012 at 1:30PM in Courtroom 11A before Magistrate Judge Janice M. Stewart on Plaintiffs' Motion For Class Certification 11 . (jlr) (Entered: 03/12/2012)
21 SCHEDULING ORDER: Written consent forms to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c) are due on or before 5/4/2012. Please see the Discovery and Pretrial Scheduling Order (docket # 3 , p. 6) for consent form. Please see the attached Notice for additional procedures applicable in cases assigned to Judge Stewart. Ordered by Magistrate Judge Janice M. Stewart. (stewart1, ) (Entered: 03/12/2012)

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03/12/2012 03/13/2012 03/19/2012 03/19/2012 03/19/2012 03/19/2012 04/03/2012
04/03/2012 04/03/2012

22 Amended Notice of Change of Address Filed by All Plaintiffs (Wilde, Kathleen) (Entered: 03/12/2012)
23 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING a TELPEHONE Rule 16 Conference for Tuesday, 4/3/2012 at 09:30AM before Magistrate Judge Janice M. Stewart. The Court will initiate the call. Local Rules 16−2(b) and 26−1 require that counsel confer prior to the conference. At the conference, counsel should be prepared to discuss the status of the case, relevant dates and deadlines, and any other significant issues. Plaintiff shall advise the court at the conference whether or not there will be full consent from all parties to proceed before the magistrate judge in the case. Until full consents are filed, no trial date will be set. (jlr) (Entered: 03/13/2012)
24 Summons Returned Executed. as to State of Oregon served on 2/6/2012, answer due on 2/27/2012 Filed by All Plaintiffs. (Rubin, Bruce) (Entered: 03/19/2012)
25 Summons Returned Executed. as to Oregon Department of Human Services served on 2/6/2012, answer due on 2/27/2012 Filed by All Plaintiffs. (Rubin, Bruce) (Entered: 03/19/2012)
26 Summons Returned Executed. as to Oregon Office of Developmental Disability Services served on 2/6/2012, answer due on 2/27/2012 Filed by All Plaintiffs. (Rubin, Bruce) (Entered: 03/19/2012)
27 Summons Returned Executed. as to Oregon Office of Vocational Rehabilitation Services served on 2/6/2012, answer due on 2/27/2012 Filed by All Plaintiffs. (Rubin, Bruce) (Entered: 03/19/2012)
28 Record of telephone Rule 16 Conference and Notice Regarding Civil Case Procedures. ORDER: STAYING discovery through 5/10/2012; STRIKING the case schedule and deadlines, including the current date for argument on the Motion to Certify a Class; and SETTING the following new case schedule and deadlines: Defendants' Motion to Dismiss is due by 4/3/2012; Response to the Motion to Dismiss is due 4/20/2012; Motion for Protective Order is due 4/6/2012; Response to the Motion for a Protective Order is due 4/23/2012; Replis to the Motion to Dismiss and the Motion for a Protective Order is due 5/8/2012. A hearing on the Motion to Dismiss and the Motion for a Protective Order is set for Thursday, 5/10/2012 at 01:30PM in Judge Stewart's Courtroom before Magistrate Judge Janice M. Stewart. ORDER: Defendants' Response to the Motion to Certify a Class (docket # 11 ) is due 5/24/2012; Plaintiffs' Reply is due 6/11/2012. A hearing on the Motion to Certify a Class (docket # 11 ) is set for Wednesday, 6/13/2012 at 09:30AM in Judge Stewart's Courtroom before Magistrate Judge Janice M. Stewart. ORDER: Adopting portions of the parties' Proposed Schedule (attached to docket # 19 ) as follows: Motions to Join Parties or Amend Complaint are due and Fact discovery is to be completed by 4/1/2013; Designations of Experts due 4/30/2013; Exchange of Initial Expert Witness Statements must be completed by 6/28/2013; Exchange of Rebuttal Expert Witness Statements must be completed by 7/26/2013; Expert Discovery is to be completed by 9/30/2013; Summary Judgment motions due 11/1/2013; Responses to Motions for Summary Judgment due 11/29/2013; Replies to Motions for Summary Judgment due 1/3/2014. ORDER: The Joint ADR Report is WAIVED. The parties should refer to the Court's Notice Regarding Civil Case Procedures (attached to Scheduling Order, docket # 21 ) for motions practice procedures in cases assigned to Judge Stewart. The parties indicate that they consent to proceed before a Magistrate Judge (see docket # 19 , p. 2), and are advised that they must file written consent forms and should see the court's prior Scheduling Order (docket # 21 ) concerning the deadline and consent form. Bruce Rubin, Kathy Wilde, Steven Schwartz, and Bettina Toner present as counsel for plaintiff(s). John Dunbar and Christine Beatty−Walters present as counsel for defendant(s). Court Reporter: none. Tape No: none.Magistrate Judge Janice M. Stewart presiding. (stewart1, ) (Entered: 04/03/2012)
29 Motion to Dismiss . Oral Argument requested. Filed by All Defendants. (Beatty−Walters, Christina) (Entered: 04/03/2012)
30 Memorandum in Support of Motion to Dismiss. Filed by All Defendants. (Related document(s): Motion to Dismiss 29 .) (Beatty−Walters, Christina) (Entered: 04/03/2012)

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04/06/2012 04/06/2012 04/19/2012 04/20/2012 04/20/2012 05/07/2012 05/07/2012 05/08/2012 05/10/2012
05/17/2012 05/23/2012 05/24/2012 05/29/2012
06/07/2012 06/07/2012

31 Motion for Protective Order . ORAL ARGUMENT requested. Filed by All Plaintiffs. (Attachments: # 1 Exhibit Proposed Protective Order) (Wilde, Kathleen) (Entered: 04/06/2012)
32 Memorandum in Support of Plaintiffs' Motion for a Protective Order. Filed by All Plaintiffs. (Related document(s): Motion for Protective Order 31 .) (Wilde, Kathleen) (Entered: 04/06/2012)
33 Response to Motion for Protective Order 31 . Filed by All Defendants. (Beatty−Walters, Christina) (Entered: 04/19/2012)
34 Notice re Motion to Dismiss 29 Statement of Interest of the United States of America in Support of Plaintiff's Regarding Defendants' Motion to Dismiss Filed by United States of America (Related document(s): Motion to Dismiss 29 .) (Brown, Adrian) (Entered: 04/20/2012)
35 Response in Opposition to Motion to Dismiss 29 . Filed by All Plaintiffs. (Attachments: # 1 Exhibit 1) (Reichman, Lawrence) (Entered: 04/20/2012)
36 Reply to Motion to Dismiss 29 . Filed by All Defendants. (Beatty−Walters, Christina) (Entered: 05/07/2012)
38 Full Consent by all Parties to Jurisdiction by US Magistrate Judge. (sss) (Entered: 05/10/2012)
37 Reply to Motion for Protective Order 31 ORAL ARGUMENT requested. Filed by All Plaintiffs. (Wilde, Kathleen) (Entered: 05/08/2012)
39 Record of Motion Hearing. ORDER: Defendants' Motion to Dismiss 29 is taken under advisement. ORDER: Plaitniffs' Motion for a Protective Order 31 is GRANTED IN PART AND DENIED IN PART, as stated on the record. Plaintiffs shall prepare a redrafted Protective Order in accordance with the court's rulings, present it to defendants for approval, and then submit it to the court for signature. ORDER: RESETTING oral argument on Plaintiffs' Motion to Certify a Class 11 from June 13, 2012, to Judge Stewart's oral argument calendar of Thursday, June 21, 2012 at 9:30 a.m. ORDER: Defendants' response to the Motion to Certify a Class is due by 6/7/2012. Plaintiffs' reply is due by 6/18/2012. Steven Schwartz, Bruce Rubin, and Kathy Wilde (for plaintiffs) and Max Lapertosa (for US Department of Justice) present as counsel for plaintiff(s). Christina Beatty−Walters and John Dunbar present as counsel for defendant(s). Court Reporter: Bonita Shumway. Tape No: none.Magistrate Judge Janice M. Stewart presiding. (Related document(s): Motion to certify class 11 , Motion to Dismiss 29 , Motion for Protective Order 31 .) (stewart1, ) (Entered: 05/10/2012)
40 OPINION AND ORDER: Granting Defendants Motion to Dismiss 29 with leave to amend. First Amended Complaint is due by 5/29/2012. Signed on 5/17/2012 by Magistrate Judge Janice M. Stewart. (ST) (Entered: 05/17/2012)
41 Stipulated Proposed Form of Order Submitted Protective Order. Filed by All Parties. (Wilde, Kathleen) Modified to remove Goodwill Industries and United States of America as filers on 5/25/2012 (sss). (Entered: 05/23/2012)
42 Protective Order. Signed on 5/24/12 by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 05/24/2012)
43 Amended Complaint . Filed by Angela Kehler, Zavier Kinville, Paula Lane, Lori Robertson, United Cerebral Palsy Association of Oregon and Southwest Washington, Inc., Gretchen Cason, Elizabeth Harrah, Andres Paniagua, Sparkle Green against Lori Robertson, Oregon Department of Human Services, Oregon Office of Developmental Disability Services, Oregon Office of Vocational Rehabilitation Services, State of Oregon. (Schwartz, Steven) (Entered: 05/29/2012)
44 Motion to Strike Declaration of Ann Coffey. Oral Argument requested. Filed by All Defendants. (Beatty−Walters, Christina) (Entered: 06/07/2012)
45 Response to Motion to Certify the Class 11 , Motion to Strike Declaration of Ann Coffey 44 . Filed by All Defendants. (Beatty−Walters, Christina) (Entered: 06/07/2012)

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06/07/2012
06/07/2012 06/07/2012 06/07/2012 06/08/2012
06/15/2012 06/15/2012 06/15/2012 06/18/2012 06/18/2012 06/18/2012 06/18/2012 06/18/2012
06/18/2012 06/18/2012
06/18/2012 06/18/2012

46 Declaration of Christina L. Beatty−Walters . Filed by All Defendants. (Related document(s): Motion to certify class 11 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8) (Beatty−Walters, Christina) (Entered: 06/07/2012)
47 Declaration of Mary Lee Fay . Filed by All Defendants. (Related document(s): Motion to certify class 11 .) (Beatty−Walters, Christina) (Entered: 06/07/2012)
48 Declaration of Nina R. Englander . Filed by All Defendants. (Related document(s): Motion to certify class 11 .) (Beatty−Walters, Christina) (Entered: 06/07/2012)
49 Declaration of Joshua Leslie . Filed by All Defendants. (Related document(s): Motion to certify class 11 .) (Beatty−Walters, Christina) (Entered: 06/07/2012)
50 Scheduling Order by Magistrate Judge Janice M. Stewart: Setting Defendants' Motion to Strike Declaration of Ann Coffey 44 for Oral Argument on Thursday, 6/21/2012 at 9:30AM (along with Motion to Certify Class) in Judge Stewart's Courtroom before Magistrate Judge Janice M. Stewart. (jlr) (Entered: 06/08/2012)
51 Motion to Strike Declaration, 46 , Declaration 48 . Oral Argument requested. Filed by All Plaintiffs. (Reichman, Lawrence) (Entered: 06/15/2012)
52 Memorandum in Support of Plaintiffs' Motion to Strike Declarations. Filed by All Plaintiffs. (Related document(s): Motion to Strike 51 .) (Reichman, Lawrence) (Entered: 06/15/2012)
53 Answer to 43 Amended Complaint, . Filed by Oregon Department of Human Services, Oregon Office of Developmental Disability Services, Oregon Office of Vocational Rehabilitation Services. (Beatty−Walters, Christina) (Entered: 06/15/2012)
54 Reply to Motion to Certify the Class 11 . Filed by All Plaintiffs. (Schwartz, Steven) (Entered: 06/18/2012)
55 Declaration of Paul Kinville . Filed by All Plaintiffs. (Related document(s): Reply to Motion 54 .) (Schwartz, Steven) (Entered: 06/18/2012)
56 Declaration of Kathleen Cason . Filed by All Plaintiffs. (Related document(s): Reply to Motion 54 .) (Schwartz, Steven) (Entered: 06/18/2012)
57 Declaration of Bettina Toner . Filed by All Plaintiffs. (Related document(s): Reply to Motion 54 .) (Schwartz, Steven) (Entered: 06/18/2012)
58 Exhibits re Declaration 57 . Filed by All Plaintiffs. (Related document(s): Declaration 57 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20) (Schwartz, Steven) (Entered: 06/18/2012)
59 Response to Motion to Strike Declaration of Ann Coffey 44 . Filed by All Plaintiffs. (Rubin, Bruce) (Entered: 06/18/2012)
60 Statement of Interest of the United States of America in Support of Plaintiffs' Motion for Class Certification Filed by United States of America (Related document(s): Motion to certify class 11 .) (Brown, Adrian) Modified text on 6/19/2012 (sss). (Entered: 06/18/2012)
61 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING Motion to Strike 51 for Oral Argument on Thursday, 6/21/2012 at 9:30AM in Judge Stewart's Courtroom before Magistrate Judge Janice M. Stewart. (jlr) (Entered: 06/18/2012)
62 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Motion Hearing held on 5/10/2012 before Judge Janice M. Stewart, Court Reporter Bonita J. Shumway, telephone number (503)326−8188. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 6/28/2012. Redaction Request due 7/12/2012. Redacted Transcript Deadline set for 7/23/2012. Release of Transcript Restriction set for 9/20/2012. (Shumway, Bonita)

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06/18/2012 06/18/2012 06/19/2012 06/19/2012
06/20/2012 06/20/2012 06/20/2012 06/20/2012 06/20/2012 06/20/2012 06/21/2012

(Entered: 06/18/2012)
63 Motion for Protective Order or in the Alternative for an Extension of Time to Respond to Plaintiffs' Requests for Production. Oral Argument requested. Filed by Oregon Department of Human Services, Oregon Office of Developmental Disability Services, Oregon Office of Vocational Rehabilitation Services. (Beatty−Walters, Christina) (Entered: 06/18/2012)
64 Memorandum in Support . Filed by Oregon Department of Human Services, Oregon Office of Developmental Disability Services, Oregon Office of Vocational Rehabilitation Services. (Related document(s): Motion for Protective Order, 63 .) (Beatty−Walters, Christina) (Entered: 06/18/2012)
65 Declaration of Christina L. Beatty−Walters . Filed by Oregon Department of Human Services, Oregon Office of Developmental Disability Services, Oregon Office of Vocational Rehabilitation Services. (Related document(s): Motion for Protective Order, 63 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Beatty−Walters, Christina) (Entered: 06/19/2012)
66 Notice of Association of Attorney Nina R. Englander for Oregon Office of Developmental Disability Services, Oregon Office of Vocational Rehabilitation Services, Oregon Department of Human Services. Filed by Oregon Office of Developmental Disability Services, Oregon Office of Vocational Rehabilitation Services, Oregon Department of Human Services (Englander, Nina) Modified on 6/20/2012 to remove duplicate text (tll). (Entered: 06/19/2012)
67 Memorandum in Opposition to Motion for Protective Order or in the Alternative for an Extension of Time to Respond to Plaintiffs' Requests for Production 63 ORAL ARGUMENT requested. Filed by All Plaintiffs. (Attachments: # 1 Exhibit Declaration of counsel) (Wilde, Kathleen) (Entered: 06/20/2012)
68 Motion to Strike New Evidence Submitted With Plaintiffs' Reply in Support of Their Motion for Class Certification Declaration 55 , Declaration 56 , Declaration 57 . Oral Argument requested. Filed by Oregon Department of Human Services, Oregon Office of Developmental Disability Services, Oregon Office of Vocational Rehabilitation Services. (Englander, Nina) (Entered: 06/20/2012)
69 Memorandum in Support . Filed by Oregon Department of Human Services, Oregon Office of Developmental Disability Services, Oregon Office of Vocational Rehabilitation Services. (Related document(s): Motion to Strike, 68 .) (Englander, Nina) (Entered: 06/20/2012)
70 Response to Motion to Certify the Class 11 . Filed by Oregon Department of Human Services, Oregon Office of Developmental Disability Services, Oregon Office of Vocational Rehabilitation Services. (Beatty−Walters, Christina) (Entered: 06/20/2012)
71 Declaration of Christina L. Beatty−Walters . Filed by Oregon Department of Human Services, Oregon Office of Developmental Disability Services, Oregon Office of Vocational Rehabilitation Services. (Related document(s): Response to Motion 70 .) (Attachments: # 1 Exhibit 1) (Beatty−Walters, Christina) (Entered: 06/20/2012)
72 Memorandum in Opposition to Motion to Strike New Evidence Submitted With Plaintiffs' Reply in Support of Their Motion for Class Certification Declaration 55 , Declaration 56 , Declaration 57 68 . Filed by All Plaintiffs. (Roof, Jennifer) (Entered: 06/20/2012)
73 MINUTES of Proceedings: Motion Hearing Held on pending motions. ORDER: Plaintiffs' Motion to Certify the Class (docket # 11 ) and Defendants' Motion to Strike New Evidence Submitted With Plaintiffs' Reply in Support of Their Motion for Class Certification (docket # 68 ) are taken under advisement. Defendants' Motion to Strike the Declaration of Ann Coffey (docket # 44 ) is DENIED; Plaintiffs' Motion to Strike Declaration (docket # 51 ) is GRANTED; and Defendants' Motion for Protective Order or Alternative Motion for an Extension of Time to Respond to Plaintiffs' Requests for Production (docket # 63 ) is GRANTED to the extent that the due date for defendants' objections to the Request for Production is extended through August 2, 2012, and otherwise denied with leave to renew, if necessary, after the parties have conferred. Steven Schwartz, Bruce Rubin, Lawrence Reichman, and Kathleen Wilde (for

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plaintiffs) and Max Lapertosa (for US Department of Justice) present as counsel for plaintiff(s). Christina Beatty−Walters, Nina Englander, and John Dunbar present as counsel for defendant(s). Court Reporter: Jill Erwin. Tape No: none. Magistrate Judge Janice M. Stewart presiding. (stewart1, ) (Entered: 06/21/2012)
74 Declaration of Lawrence H. Reichman . Filed by All Plaintiffs. (Related document(s): Motion to certify class 11 .) (Attachments: # 1 Exhibit) (Reichman, Lawrence) (Entered: 06/21/2012)
75 Second Declaration of Nina R. Englander . Filed by Oregon Department of Human Services, Oregon Office of Developmental Disability Services, Oregon Office of Vocational Rehabilitation Services. (Related document(s): Response to Motion 45 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 1, # 3 Exhibit 1) (Englander, Nina) (Entered: 06/22/2012)
76 ORDER: Granting in Part Denying in Part Defendants' Motion to Strike New Evidence Submitted With Plaintiffs' Reply in Support of Their Motion for Class Certification 68 . See attached for details of ruling. Signed on 6/26/2012 by Magistrate Judge Janice M. Stewart. (ST) (Entered: 06/26/2012)
77 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Motion Hearing held on June 21, 2012, before Judge Janice M. Stewart, Court Reporter Jill L. Erwin, telephone number (503)326−8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 8/9/2012. Redaction Request due 8/23/2012. Redacted Transcript Deadline set for 9/4/2012. Release of Transcript Restriction set for 11/1/2012. (Erwin, Jill) (Entered: 07/30/2012)
78 OPINION AND ORDER: Granting Motion to Certify the Class 11 . Signed on 8/6/2012 by Magistrate Judge Janice M. Stewart. (ST) (Entered: 08/06/2012)
79 Motion for Extension of Discovery & PTO Deadlines pleading entitled: Plaintiffs' Motion to Amend Case Schedule and Deadlines. Oral Argument requested. Filed by All Plaintiffs. (Rubin, Bruce) (Entered: 03/15/2013)
80 Memorandum in Support of Plaintiff's Motion to Amend Case Schedule and Deadlines. Filed by All Plaintiffs. (Related document(s): Motion for Extension of Discovery & PTO Deadlines 79 .) (Attachments: # 1 Exhibit 1) (Rubin, Bruce) (Entered: 03/15/2013)
81 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING: Plaintiffs' Motion to Amend Case Schedule and Deadlines 79 for TELEPHONE Oral Argument on Tuesday, 4/16/2013 at 1:30PM Pacific Daylight Time before Magistrate Judge Janice M. Stewart. (The court will provide a phone number to counsel to join the conference) (jlr) (Entered: 03/21/2013)
82 Motion to Intervene . Filed by United States of America. (Lapertosa, Max) (Entered: 03/27/2013)
83 Memorandum in Support of Motion to Intervene. Filed by United States of America. (Related document(s): Motion to intervene 82 .) (Attachments: # 1 Proposed Document Proposed Complaint in Intervention, # 2 Exhibit Letter, # 3 Exhibit Letter, # 4 Exhibit Letter) (Lapertosa, Max) Modified to delete Exhibit 4 per Order #105 on 5/22/2013 (eo). (Entered: 03/27/2013)
84 Notice of Appearance of Steven G. Liday, Jr appearing on behalf of All Plaintiffs Filed by on behalf of All Plaintiffs (Liday, Steven) (Entered: 03/28/2013)
85 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING Motion to Intervene 82 filed by United States of America to be taken under advisement on 5/2/2013. (jlr) (Entered: 03/28/2013)
86 Response to Motion for Extension of Discovery & PTO Deadlines pleading entitled: Plaintiffs' Motion to Amend Case Schedule and Deadlines 79 Oral Argument requested. Filed by All Defendants. (Attachments: # 1 Exhibit 1) (Beatty−Walters, Christina) (Entered: 04/01/2013)

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87 Response to Motion to Intervene 82 Oral Argument requested. Filed by All Defendants. (Beatty−Walters, Christina) (Entered: 04/15/2013)
88 Declaration of Christina Beatty−Walters . Filed by All Defendants. (Related document(s): Response to Motion 87 .) (Attachments: # 1 Exhibit 1, 2, & 3) (Beatty−Walters, Christina) (Entered: 04/15/2013)
89 MINUTES of Proceedings: Granting Motion for Extension of Discovery & PTO Deadlines 79 and setting the case schedule oulined on Plaintiff's Motion to Amend Case Schedule and Deadlines 79 , p. 2. ORDER: SETTING United States of America's Motion to Intervene for TELEPHONE oral argument on Monday, May 20, 2013 at 9:30 AM. Bruce Rubin, Cathy Costanzo, Kathleen Wilde, and Steven Schwartz present as counsel for plaintiff(s). Christina Beatty−Walters and Nina Englander present as counsel for defendant(s); Max Lapertosa, Sheila Foran, Regina Kline, Justin Park, Chloe Holzmann, and Adrian Brown present as counsel for U.S. Dept of Justice (proposed intervenor). (Court Reporter none.) (stewart1, ) Modified on 4/16/2013 to add this hearing was recorded: FTR 11A(jlr). (Entered: 04/16/2013)
90 Scheduling Order by Magistrate Judge Janice M. Stewart regarding Motion to Intervene 82 . ORDER: TELEPHONE oral argument is set for Monday, 5/20/2013 at 09:30AM before Magistrate Judge Janice M. Stewart. ORDER: Please see the attached NOTICE regarding procedures applicable to cases assigned to Magistrate Judge Janice M. Stewart. (stewart1, ) (Entered: 04/16/2013)
91 Scheduling Order: As discussed at the motion hearing on April 16, 2013, SETTING a four−week jury trial to commence in this case on Monday, July 13, 2015 at 9:00 am, in Judge Stewart's courtroom. The remaining trial schedule will be set, and the Trial Management Order will be issued, following a ruling on dispositive motions. Ordered by Magistrate Judge Janice M. Stewart. (stewart1, ) (Entered: 04/16/2013)
92 Motion to Compel Production of Documents and for Electronic Discovery Order. Oral Argument requested. Filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Rubin, Bruce) Modified on 5/14/2013 see Notice of Withdrawal 101 (jlr). (Entered: 04/30/2013)
93 Memorandum in Support of Plaintiffs' Motion to Compel Production of Documents and for Electronic Discovery Order. Filed by All Plaintiffs. (Related document(s): Motion to compel 92 .) (Rubin, Bruce) (Entered: 04/30/2013)
94 Declaration of Kathleen L. Wilde in Support of Plaintiffs' Motion to Compel Production of Documents and for Electronic Discovery Order. Filed by All Plaintiffs. (Related document(s): Motion to compel 92 .) (Rubin, Bruce) (Entered: 04/30/2013)
95 Declaration of Bettina Toner in Support of Plaintiffs' Motion to Compel Production of Documents and for Electronic Discovery Order. Filed by All Plaintiffs. (Related document(s): Motion to compel 92 .) (Rubin, Bruce) (Entered: 04/30/2013)
96 Declaration of Bruce A. Rubin in Support of Plaintiffs' Motion to Compel Production of Documents and for Electronic Discovery Order. Filed by All Plaintiffs. (Related document(s): Motion to compel 92 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Rubin, Bruce) (Entered: 04/30/2013)
97 Memorandum in Support of the Department of Justice's Motion to Intervene. Filed by All Plaintiffs. (Related document(s): Motion to intervene 82 .) (Schwartz, Steven) (Entered: 05/01/2013)
98 Reply to Motion to Intervene 82 Oral Argument requested. Filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Lapertosa, Max) (Entered: 05/02/2013)
99 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING Motion to Compel Production of Documents and for Electronic Discovery Order 92 for TELEPHONE Oral Argument along with the Motion To Intervene currently set for Monday, 5/20/2013 at 09:30AM before Magistrate Judge Janice M. Stewart. The parties shall call into the court's conference line five minutes prior to the scheduled conference time. The court will join the conference at or shortly after the appointed time. (The phone number will be provided via separate email a few days before the hearing). (jlr) (Entered: 05/02/2013)

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100 Notice of Association of Attorney Carla Scott,Carla Scott for Oregon Office of Developmental Disability Services,Carla Scott for Oregon Office of Vocational Rehabilitation Services,Carla Scott for Oregon Department of Human Services,Carla Scott for State of Oregon. Filed by All Defendants (Scott, Carla) (Entered: 05/08/2013)
101 Motion to Withdraw Motion to Compel 92 Titled by filer as: Plaintiffs' Notice of Withdrawal of Plaintiffs' Motion to Compel Production of Documents and for Electronic Discovery Order Filed by All Plaintiffs (Related document(s): Motion to compel 92 .) (Rubin, Bruce) Modified event type on 5/14/2013 (sss). (Entered: 05/13/2013)
102 Notice of Appearance of Cody J. Elliott appearing on behalf of All Plaintiffs Filed by on behalf of All Plaintiffs (Elliott, Cody) (Entered: 05/14/2013)
103 ORDER: Withdrawing Plaintiffs' Motion to Compel Production of Documents and for Electronic Discovery Order 92 ; Granting Notice/Motion to Withdraw 101 . Ordered by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 05/15/2013)
104 Scheduling Order by Magistrate Judge Janice M. Stewart: Due to a conflict in the Court's schedule, Order RESETTING the TELEPHONE oral argument on the Motion to Intervene 82 . Oral Argument is reset from 5/20/13 to Wednesday, 5/22/2013 at 10:00AM before Magistrate Judge Janice M. Stewart. The telephone number has been provided to counsel to call in 5 minutes before the scheduled hearing. (jlr) (Entered: 05/16/2013)
105 MINUTES of Proceedings: Telephone motion hearing before Magistrate Judge Janice M. Stewart. ORDER: The United States Motion to Intervene 82 is GRANTED based upon permissive intervention under FRCP 24(b). The United States Complaint in Intervention shall be filed within 14 days of the date of this Order. ORDER: The United States oral motion to remove Exhibit 4 attached to Memorandum in Support of Motion to Intervene (docket # 83 ) from the courts ECF record is GRANTED. ORDER: The United States shall not duplicate, in whole or in part, any requests for production propounded by plaintiffs, and all parties shall participate in settlement negotiations before a neutral mediator. Jennifer Roof, Cathy Costanzo, Kathleen Wilde, Steven Schwartz, Lawrence Reichman, Bettina Toner present as counsel for plaintiff(s). Max Lapertosa, Adrian Brown, Sheila Foran, H. Justin Park, Chloe Holzmann, Lance Simon present as counsel for US Dept. of Justice. Christina Beatty−Walters, Nina Englander present as counsel for defendant(s).(Tape #FTR 11A.) (jlr) (Entered: 05/22/2013)
106 Intervener Complaint of the United States Summons issued as to State of Oregon. Filed by United States of America against State of Oregon. (Lapertosa, Max) (Entered: 05/24/2013)
107 Summons Issued as to Intervenor Defendant State of Oregon. (sss) (Entered: 06/05/2013)
108 Summons Returned Executed. as to State of Oregon served on 6/5/2013, answer due on 6/26/2013 Filed by United States of America. (Brown, Adrian) (Entered: 06/05/2013)
109 Notice of Appearance of Regina Kline appearing on behalf of United States of America Filed by on behalf of United States of America (Kline, Regina) (Entered: 06/26/2013)
110 Answer to Complaint in Intervention. Filed by State of Oregon. (Beatty−Walters, Christina) (Entered: 06/26/2013)
111 Notice of Appearance of H. Justin Park appearing on behalf of United States of America Filed by on behalf of United States of America (Park, H.) (Entered: 07/05/2013)
112 Transcript Designation and Order Form for the hearing held on 05/22/2013 before Judge Stewart. . Filed by All Defendants. Transcript is due by 9/9/2013. (Dunbar, John) (Entered: 08/05/2013)

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113 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Motion Hearing held on May 22, 2013, before Judge Janice M. Stewart, Transcriber Jill L. Erwin, telephone number (503)326−8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 9/19/2013. Redaction Request due 10/3/2013. Redacted Transcript Deadline set for 10/15/2013. Release of Transcript Restriction set for 12/12/2013. (Erwin, Jill) (Entered: 09/09/2013)
114 Notice of Attorney Substitution:Attorney Carson L. Whitehead is substituted as counsel of record in place of Attorney Nina R. Englander Filed by State of Oregon, Oregon Office of Developmental Disability Services, State of Oregon, Oregon Office of Vocational Rehabilitation Services, Oregon Department of Human Services (Whitehead, Carson) (Entered: 09/12/2013)
115 Notice of Attorney Substitution:Attorney Julia T. Greenfield is substituted as counsel of record in place of Attorney James A. Wrigley Filed by All Plaintiffs (Wilde, Kathleen) (Entered: 09/23/2013)
116 Motion to Quash Subpoena to Clackamas County CDDP. Oral Argument requested. Filed by Clackamas County. (Gordon, Alexander) (Entered: 10/09/2013)
117 Declaration of Pat Zullo in Support of Motion to Quash. Filed by Clackamas County. (Related document(s): Motion to Quash 116 .) (Attachments: # 1 Exhibit 1 − Subpoena) (Gordon, Alexander) (Entered: 10/09/2013)
118 Motion for Stay of All Proceedings. Filed by United States of America. (Brown, Adrian) (Entered: 10/10/2013)
119 ORDER by Magistrate Judge Janice M. Stewart: Order re Motion 118 Staying the briefing deadlines for a period not to exceed 14 days until Congress has restored appropriations to the Department of Justice. Counsel for Federal Defendants will notify the Court as soon as Congress has appropriated funds for the Department of Justice. (jlr) Modified on 10/21/2013 to link this entry to doc. 118 (jlr). (Entered: 10/11/2013)
120 Motion to Quash Expedited Hearing Requested. Filed by Lane County Health and Human Services Developmental Disabilities. (Newton−Tapia, Sebastian) Modified text on 10/18/2013 (sss). (Entered: 10/16/2013)
121 Declaration of Andrea Muzikant in Support of Motion to Quash. Filed by Lane County Health and Human Services Developmental Disabilities. (Related document(s): Motion to Quash 120 .) (Newton−Tapia, Sebastian) (Entered: 10/17/2013)
122 Motion for Extension of Time to File Motion to Quash Subpoena Duces Tecum. Filed by Lane Community College. (Attachments: # 1 Memorandum in Support of Motion for Extension of Time, # 2 Exhibit 1 to Memorandum in Support of Motion for Extension of Time, # 3 Declaration in Support of Motion for Extension of Time) (Kieran, Meg) (Entered: 10/17/2013)
123 ORDER: Granting Motion for Extension of Time To File Motion To Quash 122 filed by Lane Community College. Extension is granted to 11/7/13. Ordered by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 10/18/2013)
124 Order by Magistrate Judge Janice M. Stewart. LIFTING THE STAY due to resumption of normal government operations. (jlr) (Entered: 10/24/2013)
125 Motion for Extension of Time to File a Response/Reply to Motion to Quash Subpoena to Clackamas County CDDP 116 . Filed by United States of America. (Lapertosa, Max) (Entered: 10/25/2013)
126 ORDER: Granting United States of America's Unopposed Motion for Extension of Time to File Response to Motion to Quash Subpoena to Clackamas County CDDP 116 filed by Clackamas County. Response is due by 11/4/2013. Ordered by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 10/25/2013)
127 Motion for Leave to File First Amended Answers with Counterclaim. Oral Argument requested. Filed by All Defendants. (Scott, Carla) (Entered: 10/28/2013)

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128 Defendants' Memorandum in Support of Motion for Leave to File First Amended Answers with Counterclaim. Filed by All Defendants. (Related document(s): Motion for Leave 127 .) (Scott, Carla) (Entered: 10/28/2013)
129 Declaration of Carla A. Scott in Support of Motion to File First Amended Answers with Counterclaim. Filed by All Defendants. (Related document(s): Motion for Leave 127 .) (Scott, Carla) (Entered: 10/28/2013)
130 Response Plaintiffs' and United States of America's Joint Response to Lane County's to Motion to Quash 120 Oral Argument requested. Filed by All Plaintiffs. (Attachments: # 1 Exhibit 1) (Roof, Jennifer) (Entered: 11/04/2013)
131 Declaration of Jennifer J. Roof in Support of Plaintiffs' and United States of America's Joint Response to Lane County's Motion to Quash. Filed by All Plaintiffs. (Related document(s): Response to Motion 130 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6) (Roof, Jennifer) (Entered: 11/04/2013)
132 Response Plaintiffs' and United States of America's Joint Response to Clackamas County's to Motion to Quash Subpoena to Clackamas County CDDP 116 Oral Argument requested. Filed by All Plaintiffs. (Attachments: # 1 Exhibit 1) (Roof, Jennifer) (Entered: 11/04/2013)
133 Declaration of Jennifer J. Roof in Support of Plaintiffs' and United States of America's Joint Response to Clackamas County's Motion to Quash. Filed by All Plaintiffs. (Related document(s): Response to Motion, 132 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Roof, Jennifer) (Entered: 11/04/2013)
134 Scheduling Order by Magistrate Judge Janice M. Stewart regarding Motion for Leave to File First Amended Answers with Counterclaim 127 . TELEPHONE Oral Argument is set for Wednesday, 12/18/2013 at 9:30AM Pacific Standard Time before Magistrate Judge Janice M. Stewart. The court will provide the AT&T Toll−free number by separate email, a few days before the hearing. (jlr) (Entered: 11/05/2013)
135 Unopposed Motion to Extend Deadline for Lane Community College to File Motion to Quash. Filed by Lane Community College. (Kieran, Meg) (Entered: 11/07/2013)
136 Proposed Order Granting Unopposed Motion to Extend Deadline for Lane Community College to File Motion to Quash Motion − Miscellaneous 135 . Filed by Lane Community College. (Kieran, Meg) Modified on 11/8/2013 changed event to be a proposed order. This was docketed as a motion.(jlr). (Entered: 11/07/2013)
137 Notice of Attorney Withdrawal: of Steven G. Liday Filed by All Plaintiffs (Rubin, Bruce) (Entered: 11/07/2013)
138 ORDER: Granting Unopposed Motion to Extend Deadline to 11/12/13 for Lane Community College to File Motion to Quash 135 . Ordered by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 11/08/2013)
139 Motion to Quash Civil Subpoena Duces Tecum to Witness Lane Community College. Oral Argument Requested. Filed by Lane Community College. (Attachments: # 1 Attachment) (Kieran, Meg) Modified text on 11/14/2013 (sss). (Entered: 11/12/2013)
140 Amended Declaration of Alyse Stone with Exhibits. Filed by Lane Community College. (Related document(s): Motion − Miscellaneous, Motion to Quash 139 .) (Kieran, Meg) (Entered: 11/12/2013)
141 Scheduling Order by Magistrate Judge Janice M. Stewart regarding Motion to Quash Subpoena to Clackamas County CDDP 116 , Lane County Department of Human Service's Motion to Quash 120 , and Motion to Quash Civil Subpoena Duces Tecum to Witness Lane Community College 139 . TELEPHONE Oral Argument is set for Wednesday, 12/18/2013 at 10:00AM before Magistrate Judge Janice M. Stewart. (Motions to Quash will follow Motion for Leave to File First Amended Answers with Counterclaim which is set at 9:30 AM).The parties shall call into the court's conference line (the phone number provided via separate email). (jlr) (Entered: 11/13/2013)

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142 Joint Response in Opposition to Motion for Leave to File First Amended Answers with Counterclaim 127 Oral Argument requested. Filed by United States of America. (Lapertosa, Max) (Entered: 11/15/2013)
143 Amended Response in Opposition to Motion for Leave to File First Amended Answers with Counterclaim 127 Oral Argument requested. Filed by United States of America. (Lapertosa, Max) (Entered: 11/18/2013)
144 Reply to Motion to Quash 120 . Filed by Lane County Health and Human Services Developmental Disabilities. (Newton−Tapia, Sebastian) (Entered: 11/18/2013)
145 Declaration of Sebastian Newton−Tapia in Support of Reply to Motion to Quash. Filed by Lane County Health and Human Services Developmental Disabilities. (Related document(s): Reply to Motion 144 .) (Newton−Tapia, Sebastian) (Entered: 11/18/2013)
146 Joint Response in Opposition to Motion Motion to Quash Civil Subpoena Duces Tecum to Witness Lane Community College 139 . Filed by All Plaintiffs. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (Toner, Bettina) (Entered: 11/25/2013)
147 Declaration of Joanna T. Perini . Filed by All Plaintiffs. (Related document(s): Response in Opposition to Motion, 146 .) (Attachments: # 1 Exhibit, # 2 Exhibit) (Toner, Bettina) (Entered: 11/25/2013)
148 Motion for Leave to Appear Pro Hac Vice for Attorney Joanna T. Perini . Filing fee in the amount of $100 collected; Agency Tracking ID: 0979−3500071. Filed by All Plaintiffs. (Reichman, Lawrence) (Entered: 11/26/2013)
149 Motion to Amend/Correct Scheduling, 91 . Oral Argument requested. Filed by All Plaintiffs. (Attachments: # 1 Exhibit) (Schwartz, Steven) (Entered: 11/26/2013)
150 Memorandum in Support of Joint Motion to Further Revise Scheduling Order. Filed by All Plaintiffs. (Related document(s): Motion to Amend/Correct 149 .) (Schwartz, Steven) (Entered: 11/26/2013)
151 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING Plaintiffs' and United States' Joint Motion to Amend Schedule 149 for TELEPHONE Oral Argument along with previously set motions for Wednesday 12/18/2013 at 09:30AM before Magistrate Judge Janice M. Stewart. RESPONSE to the Joint Motion to Amend Schedule 149 is due by 12/13/13. (jlr) (Entered: 11/26/2013)
152 Order Granting Application for Special Admission Pro Hac Vice of Joanna T. Perini for Gretchen Cason, Sparkle Green, Elizabeth Harrah,J Angela Kehler,Zavier Kinville, Paula Lane, Andres Paniagua, Lori Robertson,and United Cerebral Palsy Association of Oregon and Southwest Washington, Inc.. Application Fee in amount of $100 collected. Receipt No. 0979−3500071 issued. Signed on 11/27/2013 by Magistrate Judge Janice M. Stewart. (ecp) (Entered: 12/02/2013)
153 Reply Memorandum to Motion for Leave to File First Amended Answers with Counterclaim 127 . Filed by All Defendants. (Whitehead, Carson) (Entered: 12/02/2013)
154 Declaration of Carson L. Whitehead in Support of Defendants' Reply Memorandum in Support of Motion for Leave to File First Amended Answers with Counterclaim. Filed by All Defendants. (Related document(s): Reply to Motion 153 .) (Whitehead, Carson) (Entered: 12/02/2013)
155 Response in Opposition to Motion to Amend/Correct Scheduling, 91 149 . Filed by All Defendants. (Beatty−Walters, Christina) (Entered: 12/13/2013)
156 Declaration of Christina L. Beatty−Walters . Filed by All Defendants. (Related document(s): Response in Opposition to Motion 155 .) (Beatty−Walters, Christina) (Entered: 12/13/2013)
157 Declaration of Michael J. Maley . Filed by All Defendants. (Related document(s): Response in Opposition to Motion 155 .) (Beatty−Walters, Christina) (Entered: 12/13/2013)

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158 Declaration of Sarah Drinkwater . Filed by All Defendants. (Related document(s): Response in Opposition to Motion 155 .) (Beatty−Walters, Christina) (Entered: 12/13/2013)
159 Reply to Motion to Amend/Correct Scheduling, 91 149 Oral Argument requested. Filed by All Plaintiffs. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (Schwartz, Steven) (Entered: 12/17/2013)
160 Scheduling Order by Magistrate Judge Janice M. Stewart. Consent to Magistrate, if any, by Intervenor, is to be filed by 12/31/2013. (Consent form can be found attached to document 3 , page 6). (jlr) (Entered: 12/18/2013)
161 MINUTES of Proceedings Telephone Motion hearing held before Magistrate Judge Janice M. Stewart on Motions 127 and 149 , and on Motions to Quash 116 , 120 , and 139 . ORDER: Plaintiffs and United States Joint Motion to Amend the Pre−trial and Trial Schedule 149 is GRANTED IN PART AND DENIED IN PART as follows: Except for the trial date of 7/13/2015, the current case schedule is stricken. ORDER: Setting a telephone scheduling conference on Wednesday, 1/22/2014 at 10:00 a.m. to set the remainder of the case schedule, including fact discovery cutoff date(s) for the purpose of summary judgment motions, if any, and trial, as well as a cost−effective procedure to update discovery and expert reports prior to trial. The court will provide the Toll−Free conference call−in number to counsel prior to the conference. ORDER: On or before Friday, 1/17/2014, defendants shall file a Status Report indicating whether the deadlines imposed in Executive Order 13−04 have been complied with and, if not, how and why not. Bruce Rubin, Steven Schwartz, Bettina Toner, Jennifer Roof, Joanna Perini, Kathleen Wilde, Lawrence Reichman, present as counsel for plaintiff(s). John Dunbar, Christina Beatty−Walters, Carla Scott, Carson Whitehead, present as counsel for defendant(s). Max Lapertosa, Adrian Brown, H. Justin Park, present as counsel for intervenor. Counsel for Motion to Quash 116 , Stephen Madkour. Counsel for Motion to Quash 120 , Sebastian Newton−Tapia. Counsel for Motion to Quash [139,] Meg Kieran.(Court Reporter Jill Erwin.) (jlr) Modified on 12/20/2013 to include docket numbers for motions that were heard. (jlr). (Entered: 12/18/2013)
162 ORDER: Clackamas Countys Objections and Motion to Quash Subpeona Duces Tecum 116 is GRANTED in part and DENIED in part as follows: The supersession provision of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) does not impose state evidentiary privileges in cases brought in federal court to enforce federal law. Because the Protective Order issued in this case 42 complies with HIPAAs requirements for protective orders, Clackamas County must produce the requested documents. However, to avoid an undue burden with respect to Requests Nos. 2, 3, and 5, it is not required to search each individual clients file, but is only required to produce documents that are available or maintained in an aggregate form, such as lists, reports, charts, spreadsheets, and databases. (stewart1, ) Modified on 12/19/2013 to remove signed on date. This is a paperless order.(jlr). (Entered: 12/18/2013)
163 ORDER: Lane County Department of Human Services Motion to Quash 120 is GRANTED in part and DENIED in part as follows: The supersession provision of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) does not impose state evidentiary privileges in cases brought in federal court to enforce federal law. Because the Protective Order issued in this case 42 complies with HIPAAs requirements for protective orders, Land County Department of Human Services must produce the requested documents. However, to avoid an undue burden with respect to Requests Nos. 2, 3, and 5, it is not required to search each individual clients file, but is only required to produce documents that are available or maintained in an aggregate form, such as lists, reports, charts, spreadsheets, and databases. (stewart1, ) Modified on 12/19/2013 to removed signed on date. This is a paperless order (jlr). (Entered: 12/18/2013)
164 OPINION AND ORDER Defendants' Motion for Leave to File First Amended Answers with Counterclaim 127 is DENIED. Signed on 12/19/13 by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 12/19/2013)
165 ORDER: Granting Motion to Quash Civil Subpoena Duces Tecum to Witness Lane Community College 139 on the basis that its students/client are not in segregated employment settings nor at risk of being in a segregated employment settings while at

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12/30/2013 12/31/2013
12/31/2013
01/06/2014 01/06/2014 01/06/2014 01/06/2014 01/08/2014 01/14/2014
01/17/2014 01/17/2014 01/21/2014

the college. Ordered by Magistrate Judge Janice M. Stewart. (ST) (Entered: 12/19/2013)
168 Full Consent by all Parties to Jurisdiction by US Magistrate Judge. (sss) (Entered: 01/06/2014)
166 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Motion Hearing held on April 16, 2013, before Judge Janice M. Stewart, Transcriber Jill L. Erwin, telephone number (503)326−8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 1/10/2014. Redaction Request due 1/24/2014. Redacted Transcript Deadline set for 2/3/2014. Release of Transcript Restriction set for 4/3/2014. (Erwin, Jill) (Entered: 12/31/2013)
167 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Motion Hearing held on December 18, 2013, before Judge Janice M. Stewart, Court Reporter Jill L. Erwin, telephone number (503)326−8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the court reporter or PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 1/10/2014. Redaction Request due 1/24/2014. Redacted Transcript Deadline set for 2/3/2014. Release of Transcript Restriction set for 4/3/2014. (Erwin, Jill) (Entered: 12/31/2013)
169 Joint Motion to Compel Electronic Discovery. Oral Argument requested. Filed by Gretchen Cason, Sparkle Green, Elizabeth Harrah, Angela Kehler, Zavier Kinville, Paula Lane. (Attachments: # 1 Exhibit) (Toner, Bettina) (Entered: 01/06/2014)
170 Joint Memorandum in Support of Motion to Compel Electronic Discovery. Filed by Gretchen Cason, Sparkle Green, Elizabeth Harrah, Angela Kehler, Zavier Kinville, Paula Lane. (Related document(s): Motion to compel 169 .) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit) (Toner, Bettina) (Entered: 01/06/2014)
171 Declaration of Bettina Toner . Filed by Gretchen Cason, Sparkle Green, Elizabeth Harrah, Angela Kehler, Zavier Kinville, Paula Lane. (Related document(s): Motion to compel 169 .) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit) (Toner, Bettina) (Entered: 01/06/2014)
172 Declaration of Peter Sternkopf . Filed by Gretchen Cason, Sparkle Green, Elizabeth Harrah, Angela Kehler, Zavier Kinville, Paula Lane. (Related document(s): Motion to compel 169 .) (Attachments: # 1 Exhibit) (Toner, Bettina) (Entered: 01/06/2014)
173 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING Joint Motion to Compel Electronic Discovery 169 for Oral Argument on Wednesday, 1/22/2014 at 10:00AM before Magistrate Judge Janice M. Stewart. Response to Joint Motion to Compel 169 is due 1/17/14. (jlr) (Entered: 01/08/2014)
174 Scheduling Order by Magistrate Judge Janice M. Stewart: the TELEPHONE Scheduling Conference remains as set on Wednesday 1/22/14 at 10:00 AM. ORDER STRIKING the Oral Argument on the Joint Motion to Compel Electronic Discovery 169 which will be reset at a later date. Order extending the due date for the Response by defendants to the Joint Motion to Compel Electronic Discovery 169 to 1/23/14. (jlr) (Entered: 01/14/2014)
175 Motion entitled: Plaintiffs' and United States of America's Revised Trial Schedule and Supporting Memorandum. Filed by All Plaintiffs. (Attachments: # 1 Exhibit 1 (Proposed Revised Trial Schedule)) (Schwartz, Steven) (Entered: 01/17/2014)
176 Motion −State Defendants' Objections and Proposal Regarding Case Schedule. 175 Filed by All Defendants. (Beatty−Walters, Christina) Modified on 1/22/2014 to reflect this document is a Response to 175 , it is not a motion (jlr). (Entered: 01/17/2014)
177 Motion −Status Report Regarding Implementation of Executive Order 13−04. Filed by All Defendants. (Attachments: # 1 Exhibit Exhibits 1−5 (of 9), # 2 Exhibit Exhibit 6, part 1 (of 9), # 3 Exhibit Exhibit 6, part 2 (of 9), # 4 Exhibit Exhibits 7−9 (of 9))

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01/22/2014
01/23/2014 01/23/2014
01/23/2014
01/24/2014 01/24/2014
01/28/2014 02/03/2014
02/10/2014
02/10/2014 02/10/2014 02/10/2014 02/10/2014 02/20/2014 02/20/2014 02/20/2014

(Scott, Carla) Modified on 1/22/2014 to reflect that this document is a Status Report, not a motion(jlr). Modified on 1/22/2014 (jlr). (Entered: 01/21/2014)
178 MINUTES of Proceedings: Hearing on Plaintiffs' and Intervenor's Motion for Revised Case Schedule (docket #( 175 ). ORDER: Granting the motion in part and setting a new case schedule. SEE ATTACHED ORDER for new case schedule. Bruce Rubin, Bettina Toner, Cathy Costanzo, Steven Schwartz, and Kathleen Wilde (for plaintiffs) and Max Lapertosa Adrian Brown, and Regina Kline (for Intervenor USA) present as counsel for plaintiff(s). John Dunbar, Christina Beatty−Walters, and Carla Scott present as counsel for defendant(s). Court Reporter: none. Tape No: FTR 11A.Magistrate Judge Janice M. Stewart presiding. (stewart1, ) (Entered: 01/22/2014)
179 Motion for Protective Order (Opposed). Oral Argument requested. Filed by All Defendants. (Attachments: # 1 Exhibit 1) (Scott, Carla) (Entered: 01/23/2014)
180 Declaration of Carla A. Scott in Support of Opposed Motion for Protective Order and in Support of Defendants' Opposition to Plaintiffs' Joint Motion to Compel. Filed by All Defendants. (Related document(s): Motion for Protective Order 179 .) (Attachments: # 1 Exhibit 1−3 (of 3)) (Scott, Carla) (Entered: 01/23/2014)
181 Declaration of Rodney Dearmore in Support of Opposed Motion for Protective Order and in Support of Defendants' Opposition to Plaintiffs' Joint Motion to Compel. Filed by All Defendants. (Related document(s): Motion for Protective Order 179 .) (Attachments: # 1 Exhibit 1) (Scott, Carla) (Entered: 01/23/2014)
182 Response (and Combined Brief) to Joint Motion to Compel Electronic Discovery 169 . Filed by All Defendants. (Attachments: # 1 Exhibit 1) (Scott, Carla) (Entered: 01/24/2014)
183 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING Joint Motion to Compel Electronic Discovery 169 , and Motion for Protective Order (Opposed) 179 for Oral Argument on Tuesday, 2/25/2014 at 01:30PM in Portland Courtroom 11A before Magistrate Judge Janice M. Stewart. (jlr) (Entered: 01/24/2014)
184 Court Trial Management Order. Signed on 1/28/14 by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 01/28/2014)
185 Scheduling Order by Magistrate Judge Janice M. Stewart. Plaintiffs' Response to the Motion for Protective Order (Opposed) 179 is due by 2/10/14 and Defendants' Reply is due by 2/20/14. The Reply to Joint Motion to Compel Electronic Discovery 169 is due by 2/10/14. (jlr) (Entered: 02/03/2014)
186 Response in Opposition to Motion for Protective Order (Opposed) 179 , Joint Motion to Compel Electronic Discovery 169 , Reply to Joint Motion to Compel Electronic Discovery 169 . Filed by United States of America. (Lapertosa, Max) (Entered: 02/10/2014)
187 Declaration of Bettina Toner . Filed by United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Lapertosa, Max) (Entered: 02/10/2014)
188 Declaration of Bettina Toner (Part 2). Filed by United States of America. (Attachments: # 1 Exhibit 3, # 2 Exhibit 4) (Lapertosa, Max) (Entered: 02/10/2014)
189 Declaration of Bettina Toner (Part 3). Filed by United States of America. (Attachments: # 1 Exhibit 5, # 2 Exhibit 6) (Lapertosa, Max) (Entered: 02/10/2014)
190 Supplemental Declaration of Peter Sternkopf . Filed by United States of America. (Lapertosa, Max) (Entered: 02/10/2014)
191 Reply to Plaintiffs' Response in Opposition to Motion for Protective Order (Opposed) 179 . Filed by All Defendants. (Scott, Carla) (Entered: 02/20/2014)
192 Supplemental Declaration of Carla Scott in Support of Defendants' Reply to Plaintiffs' Response in Opposition to Motion for Protective Order. Filed by All Defendants. (Related document(s): Reply to Motion 191 .) (Scott, Carla) (Entered: 02/20/2014)
193 Supplemental Declaration of Rodney Dearmore in Support of Defendants' Reply to Plaintiffs' Response in Opposition to Motion for Protective Order. Filed by All Defendants. (Related document(s): Reply to Motion 191 .) (Scott, Carla) (Entered:

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02/25/2014
02/28/2014 02/28/2014 03/04/2014 03/05/2014 03/05/2014 04/21/2014 04/21/2014 04/21/2014
04/24/2014
05/08/2014
05/08/2014 05/08/2014 05/08/2014

02/20/2014)
194 MINUTES of Proceedings: Motion Hearing Held before Magistrate Judge Janice M. Stewart regarding Motion to Compel 169 , and Motion for Protective Order 179 . Motions 169 and 179 are taken under advisement as of 2/25/2014. Bruce Rubin present as counsel for plaintiffs, and Bettina Toner and Cathy Costanzo present by phone. Max Lapertosa present for Intervenor, USA. John Dunbar, Carla Scott and Carson Whitehead, present as counsel for defendants. Court Reporter: Jill Erwin. (jlr) (Entered: 02/25/2014)
195 ORDER: Granting in Part and Denying in Part Motion to Compel 169 and Motion for a Protective Order 179 . See attached. Signed on 2/28/2014 by Magistrate Judge Janice M. Stewart. (ST) (Entered: 02/28/2014)
196 Protective Order. Signed on 2/28/2014 by Magistrate Judge Janice M. Stewart. (ST) (Entered: 02/28/2014)
197 Notice of Change of Address. for Attorney John J. Dunbar Filed by Oregon Department of Human Services, Oregon Office of Developmental Disability Services, Oregon Office of Vocational Rehabilitation Services, State of Oregon, State of Oregon (Dunbar, John) (Entered: 03/04/2014)
198 Notice of Appearance of David W. Knight appearing on behalf of United States of America Filed by on behalf of United States of America (Knight, David) (Entered: 03/05/2014)
199 Notice of Change of Address. Filed by All Defendants (Dunbar, John) (Entered: 03/05/2014)
200 Motion to Intervene . Oral Argument requested. Filed by Wally Wilkinson, Eric Stewart, Elizabeth Kehoe, Alan Hubbell, Douglas Gardelius, Mary Stuller, Laura Anderson. (Harnden, Edwin) (Entered: 04/21/2014)
201 Declaration of Edwin A. Harnden . Filed by Laura Anderson, Douglas Gardelius, Alan Hubbell, Elizabeth Kehoe, Eric Stewart, Mary Stuller, Wally Wilkinson. (Related document(s): Motion to intervene 200 .) (Harnden, Edwin) (Entered: 04/21/2014)
202 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Oral Argument held on February 25, 2014, before Judge Janice M. Stewart, Court Reporter Jill L. Erwin, telephone number (503)326−8191. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 5/1/2014. Redaction Request due 5/15/2014. Redacted Transcript Deadline set for 5/27/2014. Release of Transcript Restriction set for 7/24/2014. (Erwin, Jill) (Entered: 04/21/2014)
203 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING Motion to Intervene 200 filed by Wally Wilkinson, Eric Stewart, Elizabeth Kehoe, Alan Hubbell, Douglas Gardelius, Mary Stuller, Laura Anderson for Oral Argument on Wednesday 6/11/2014 at 09:30AM in Portland Courtroom 11A before Magistrate Judge Janice M. Stewart. Counsel may participate by phone upon request. (jlr) (Entered: 04/24/2014)
204 Response in Opposition to Motion to Intervene 200 . Filed by Gretchen Cason, Sparkle Green, Elizabeth Harrah, Angela Kehler, Zavier Kinville, Paula Lane, Andres Paniagua, Lori Robertson, United Cerebral Palsy Association of Oregon and Southwest Washington, Inc.. (Attachments: # 1 Attachment slip opinion) (Schwartz, Steven) (Entered: 05/08/2014)
205 Declaration of Regina Kline . Filed by All Plaintiffs. (Related document(s): Response in Opposition to Motion, 204 .) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit) (Schwartz, Steven) (Entered: 05/08/2014)
206 Declaration of Robert Joondeph . Filed by All Plaintiffs. (Related document(s): Response in Opposition to Motion, 204 .) (Schwartz, Steven) (Entered: 05/08/2014)
207 Defendants' Memorandum in Support of Defendant−Intervenors' Motion to Intervene. Filed by All Defendants. (Related document(s): Motion to intervene 200 .) (Dunbar,

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05/08/2014 05/09/2014
05/23/2014 05/23/2014 05/23/2014 05/27/2014 05/27/2014
05/27/2014 05/29/2014
06/03/2014 06/04/2014 06/09/2014 06/09/2014 06/09/2014 06/11/2014

John) (Entered: 05/08/2014)
208 Declaration of John J. Dunbar in Support of Defendants' Memorandum in Support of Defendant−Intervenors' Motion to Intervene. Filed by All Defendants. (Related document(s): Motion to intervene 200 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Dunbar, John) (Entered: 05/08/2014)
209 Notice of Attorney Substitution:Attorney Keith McIntire and Laura Salerno Owens is substituted as counsel of record in place of Attorney Carla Scott and Carson L. Whitehead Filed by State of Oregon, Oregon Office of Developmental Disability Services, State of Oregon, Oregon Office of Vocational Rehabilitation Services, Oregon Department of Human Services (McIntire, Keith) (Entered: 05/09/2014)
210 Joint Motion to Compel Production of Electronic Discovery. Oral Argument requested. Filed by All Plaintiffs. (Attachments: # 1 Exhibit) (Toner, Bettina) (Entered: 05/23/2014)
211 Joint Memorandum in Support of Motion to Compel Production of Electronic Discovery. Filed by All Plaintiffs. (Related document(s): Motion to compel 210 .) (Toner, Bettina) (Entered: 05/23/2014)
212 Declaration of Bettina Toner . Filed by All Plaintiffs. (Related document(s): Motion to compel 210 .) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit) (Toner, Bettina) (Entered: 05/23/2014)
213 Motion for Leave to File Response Memorandum to Defendants' Memorandum in Support of Motion to Intervene. Filed by United States of America. (Attachments: # 1 Proposed Document) (Lapertosa, Max) (Entered: 05/27/2014)
214 Declaration of Max Lapertosa in Support of Motion for Leave to File Response Memorandum to Defendants' Memorandum in Support of Motion to Intervene. Filed by United States of America. (Related document(s): Motion for Leave 213 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Lapertosa, Max) (Entered: 05/27/2014)
215 Reply in Support of to Motion to Intervene 200 . Filed by Laura Anderson, Douglas Gardelius, Alan Hubbell, Elizabeth Kehoe, Eric Stewart, Mary Stuller, Wally Wilkinson. (Ray, Sean) (Entered: 05/27/2014)
216 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING Plaintiffs' and United States of America's Joint Motion to Compel Production of Electronic Discovery 210 for Oral Argument on Wednesday 6/11/2014 at 9:30AM in Portland Courtroom 11A before Magistrate Judge Janice M. Stewart. Counsel may participate by phone upon request. (jlr) (Entered: 05/29/2014)
217 ORDER: Granting Plaintiffs' and United States' Joint Motion 213 For Leave To File Memorandum In Response to Defendants' Memorandum In Support of Motion to Intervene 200 . Ordered by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 06/03/2014)
218 Response to Defendants' Brief in Support of to Motion to Intervene 200 Oral Argument requested. Filed by United States of America. (Lapertosa, Max) (Entered: 06/04/2014)
219 Response to Joint Motion to Compel Production of Electronic Discovery 210 Oral Argument requested. Filed by All Defendants. (McIntire, Keith) (Entered: 06/09/2014)
220 Declaration of Carla A. Scott in Support of Defendants' Response to Plaintiffs' Motion to Compel. Filed by All Defendants. (Related document(s): Response to Discovery Motion 219 .) (McIntire, Keith) (Entered: 06/09/2014)
221 Declaration of John J. Dunbar in Support of Defendants' Response to Plaintiffs' Motion to Compel. Filed by All Defendants. (Related document(s): Response to Discovery Motion 219 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (McIntire, Keith) (Entered: 06/09/2014)
222 MINUTES of Proceedings: before Magistrate Judge Janice M. Stewart. Motion Hearing Held regarding Motion to Intervene 200 , and Motion to Compel 210 . Order Motion to Compel Production of Electronic Discovery 210 is DENIED, however,

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06/12/2014
06/20/2014 06/26/2014 07/09/2014 07/29/2014 07/29/2014
07/30/2014 08/01/2014 08/06/2014
08/06/2014

defendant shall produce all responsive emails dated prior to 3/5/2014 obtained from each custodian at least 21 days prior to that custodian's deposition, and such deposition may be continued to the extent necessary to address any supplemental emails produced. Order Motion to Intervene 200 is taken under advisement as of 6/11/2014. Bruce Rubin, Steve Schwartz, Cathy Costanzo, and Bettina Toner by phone. present as counsel for plaintiff(s). Appearing for Intervenor United States: Regina Kline, Max Lapertosa, Lance Simon and by phone, Justin Park. Present as counsel for defendant(s): John Dunbar, Keith McIntire and Carla Scott. Appearing for Wally Wilkinson, et al: Edwin Harnden and Sean Ray (Court Reporter Paula Tieger.) (jlr) (Entered: 06/11/2014)
223 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING a TELEPHONE Conference re discovery issues for Thursday, 6/26/2014 at 10:00AM before Magistrate Judge Janice M. Stewart. Please call the toll−free AT&T conference number previously provided a few minutes before the scheduled time. If you have not received the number and are in need of it, please contact Judge Stewart's courtroom deputy. (jlr) (Entered: 06/12/2014)
224 OPINION AND ORDER: Denying Motion to Intervene 200 . Signed on 6/20/14 by Magistrate Judge Janice M. Stewart. (ST) (Entered: 06/20/2014)
225 Scheduling Order by Magistrate Judge Janice M. Stewart. Per email from Plaintiff and Defendant, the 6/26/14 telephone conference is STRICKEN. (jlr) (Entered: 06/26/2014)
226 Notice of Appearance of Nicholas C. Lee appearing on behalf of United States of America Filed by on behalf of United States of America (Lee, Nicholas) (Entered: 07/09/2014)
227 Scheduling Order by Magistrate Judge Janice M. Stewart. At the request of defendant, Order setting a TELEPHONE Status Conference is set Tuesday, 7/29/2014 at 01:30PM before Magistrate Judge Janice M. Stewart. Counsel are to call the AT&T telephone conference number provided by separate e−mail. (This is the same conference number used for previous hearings). (jlr) (Entered: 07/29/2014)
228 MINUTES of Proceedings: Record of telephone hearing. ORDER: Defendants' letter request (dated 7/28/2014) for a Protective Order is DENIED. Bruce Rubin and Steven Schwartz present as counsel for plaintiff(s). John Dunbar and Keith McIntire (for State of Oregon), and Max Lapertosa and Nicholas Lee (for Intervenor USA) present as counsel for defendant(s). Court Reporter: none. Tape No: none.Magistrate Judge Janice M. Stewart presiding. (stewart1, ) (Entered: 07/29/2014)
229 Proposed Form of Order Submitted entitled Stipulated Order Regarding Production Pursuant to Protective Order. Filed by All Plaintiffs. (Roof, Jennifer) (Entered: 07/30/2014)
230 STIPULATED ORDER Regarding Production Pursuant to Protective Order. Signed on 8/1/14 by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 08/01/2014)
231 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED motions held on 6/11/14 before Judge Janice M. Stewart, Court Reporter Paula Tieger, telephone number 503−248−1003. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 8/18/2014. Redaction Request due 9/2/2014. Redacted Transcript Deadline set for 9/11/2014. Release of Transcript Restriction set for 11/7/2014. (Attachment: # 1 Transcript) (dsg) (Entered: 08/06/2014)
232 STRICKEN per Order #233 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Motion held on 7/30/14 before Judge John V. Acosta, Court Reporter Paula Tieger, telephone number 503−248−1003. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 8/18/2014. Redaction Request due 9/2/2014. Redacted Transcript Deadline set for 9/11/2014. Release of Transcript Restriction set for 11/7/2014. (Attachment: # 1

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08/06/2014
08/20/2014 08/21/2014 08/25/2014
09/05/2014 09/05/2014 09/05/2014 09/05/2014 09/19/2014 09/19/2014 09/26/2014 09/26/2014 09/26/2014 09/26/2014 09/26/2014

Transcript) (dsg) Modified on 8/6/2014 to strike entry (dsg). (Entered: 08/06/2014)
233 Order for Administrative Correction of the Record pursuant to Fed. R. Civ. P. 60(a) regarding Transcript of Proceedings,, 232 . A Clerical error has been discovered in the case record. The Clerk is directed to make the following administrative corrections to the record: this entry was made in the wrong case and has been stricken from the record. (dsg) (Entered: 08/06/2014)
234 Notice of Attorney Substitution:Attorney Lauren Blaesing is substituted as counsel of record in place of Attorney Laura R. Salerno Owens Filed by All Defendants (Blaesing, Lauren) (Entered: 08/20/2014)
235 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING a TELEPHONE Conference for Monday, 8/25/2014 at 10:00AM before Magistrate Judge Janice M. Stewart. The parties are to call the toll−free conference line at the number previoulsy provided by e−mail. (jlr) (Entered: 08/21/2014)
236 MINUTES of Proceedings: Telephone Conference before Magistrate Judge Janice M. Stewart. ORDER: Setting the following briefing schedule concerning the issues raised in defendants' letter of August 20, 2014. Defendants' Motion and Supplemental Materials are due 9/5/14. Plaintiffs' and Intervenors' Response is due by 9/19/2014. Defendants' Reply is due by 9/26/2014. ORDER: Setting a TELEPHONE hearing on defendants' motion for Wednesday, 10/1/2014 at 02:00PM before Magistrate Judge Janice M. Stewart. Counsel are to call the Toll−Free AT & T conference line number previously provided by e−mail. (Please contact the courtroom deputy for Judge Stewart if you do not have this number). Bruce Rubin, Steve Schwartz, Cathy Costanzo, appearing for plaintiff. John Dunbar, Keith McIntire, Lauren Blaesing appearing for Defendant; H. Justin Park and Regina Kline appearing for Intervenor. (All counsel appeared by phone). Court Reporter: none. Tape No: none.Magistrate Judge Janice M. Stewart presiding. (jlr) (Entered: 08/25/2014)
237 Motion for Stay . Oral Argument requested. Filed by All Defendants. (Dunbar, John) (Entered: 09/05/2014)
238 Declaration of John J. Dunbar . Filed by All Defendants. (Related document(s): Motion for Stay 237 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11) (Dunbar, John) (Entered: 09/05/2014)
239 Declaration of Dana Hittle . Filed by All Defendants. (Related document(s): Motion for Stay 237 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Dunbar, John) (Entered: 09/05/2014)
240 Declaration of Robert Costello . Filed by All Defendants. (Related document(s): Motion for Stay 237 .) (Dunbar, John) (Entered: 09/05/2014)
241 Response in Opposition to Motion for Stay 237 . Filed by All Plaintiffs. (Schwartz, Steven) (Entered: 09/19/2014)
242 Declaration of Steven J. Schwartz . Filed by All Plaintiffs. (Related document(s): Response in Opposition to Motion 241 .) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit) (Schwartz, Steven) (Entered: 09/19/2014)
243 Reply to Motion for Stay 237 . Filed by All Defendants. (Dunbar, John) (Entered: 09/26/2014)
244 Declaration of Michael Maley . Filed by All Defendants. (Related document(s): Reply to Motion 243 .) (Dunbar, John) (Entered: 09/26/2014)
245 Declaration of Keith McIntire . Filed by All Defendants. (Related document(s): Reply to Motion 243 .) (Dunbar, John) (Entered: 09/26/2014)
246 Declaration of Daniel Haun . Filed by All Defendants. (Related document(s): Reply to Motion 243 .) (Attachments: # 1 Exhibit 1) (Dunbar, John) (Entered: 09/26/2014)
247 Declaration of John Dunbar . Filed by All Defendants. (Related document(s): Reply to Motion 243 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8) (Dunbar, John) (Entered:

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09/26/2014 09/29/2014 09/29/2014 09/29/2014 09/30/2014 09/30/2014 09/30/2014 10/01/2014 10/01/2014
10/02/2014
10/02/2014
10/02/2014 10/09/2014

09/26/2014)
248 Declaration of Dana Hittle . Filed by All Defendants. (Related document(s): Reply to Motion 243 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7) (Dunbar, John) (Entered: 09/26/2014)
249 Motion for Protective Order U.S. Department of Labor's Motion for a Protective Order and Memorandum in Support. Filed by US Department of Labor. (Danielson, Kevin) (Entered: 09/29/2014)
250 Declaration of Kathleen Martinez . Filed by US Department of Labor. (Related document(s): Motion for Protective Order 249 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Danielson, Kevin) (Entered: 09/29/2014)
251 Declaration of Princina Stone . Filed by US Department of Labor. (Related document(s): Motion for Protective Order 249 .) (Danielson, Kevin) (Entered: 09/29/2014)
252 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING U.S. Department of Labor's Motion for a Protective Order 249 to be taken under advisement on 10/20/2014. (jlr) (Entered: 09/30/2014)
253 Joint Motion to Compel Production and for Sanctions Upon Failure to Produce Filed by Plaintiffs and Plaintiff−Intervenor United States of America. Oral Argument by Telephone requested. Filed by All Plaintiffs. (Rubin, Bruce) (Entered: 09/30/2014)
254 Declaration of Bettina Toner in Support of Plaintiffs' and the United States' Joint Motion to Compel Production and for Sanctions Upon Failure to Produce. Filed by All Plaintiffs. (Related document(s): Motion to compel 253 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Rubin, Bruce) (Entered: 09/30/2014)
255 Notice − Letter to Court Re Plaintiffs' Fourth Motion To Compel Filed by All Defendants (Dunbar, John) (Entered: 10/01/2014)
256 MINUTES of Proceedings: Motion Hearing Held by TELEPHONE before Magistrate Judge Janice M. Stewart regarding Motion for Stay 237 . Order Motion 237 is taken under advisement as of 10/1/2014. Steven Schwartz, Bruce Rubin, Cathy Costanzo present as counsel for plaintiff(s). Max Lapertosa, Amanda Marshal, Regina Kline for Intervenor United States. John Dunbar, Lauren Blaesing present as counsel for defendant(s). Court Reporter: Jill Erwin. (jlr) (Entered: 10/01/2014)
257 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING Joint Motion to Compel Production and for Sanctions Upon Failure to Produce Filed by Plaintiffs and Plaintiff−Intervenor United States of America 253 for TELEPHONE Oral Argument on Monday 10/20/2014 at 01:30PM before Magistrate Judge Janice M. Stewart. Counsel are to call Judge Stewart's toll−free AT & T conference line number previously provided for past hearings (Please contact the courtroom deputy for Judge Stewart if you do not have this number). (jlr) (Entered: 10/02/2014)
258 ORDER: Defendants' Motion for Stay (docket # 237 ) is denied as to a one year stay and set−over, but their alternative oral motion for a four−month set−over of the case schedule is granted. See attached Order for new case schedule and deadlines. ORDER: Amending the Court Trial Management Order (docket # 184 ) to reflect this new schedule. Signed on 10/2/2014 by Magistrate Judge Janice M. Stewart. (stewart1, ) (Entered: 10/02/2014)
259 AMENDED ORDER WITH NEW CASE SCHEDULE. Note: This Order corrects one typo regarding the date for Expert Reports, which are now due 4/1/2015, not 4/1/2014. Scheduling Order by Magistrate Judge Janice M. Stewart. Ordered by Magistrate Judge Janice M. Stewart. (stewart1, ) (Entered: 10/02/2014)
260 Scheduling Order by Magistrate Judge Janice M. Stewart: STRIKING the 10/20/14 telephone Oral Argument on Joint Motion to Compel Production and for Sanctions Upon Failure to Produce Filed by Plaintiffs and Plaintiff−Intervenor United States of America 253 . ORDER: 1. The parties shall provide a Joint Status Report by 10/27/2014, indicating whether part or all of the motion is withdrawn. 2. In the event any part of the motion is not withdrawn, defendants shall file and serve their response to any remaining items in the Motion to Compel 253 by 11/3/2014. 3. If necessary, the

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10/17/2014 10/17/2014
10/20/2014
10/27/2014 10/30/2014 11/03/2014 11/03/2014 11/03/2014 11/14/2014 11/14/2014 12/03/2014 12/03/2014

Court shall schedule oral argument by telephone for a time shortly after 11/3/14. (jlr) (Entered: 10/09/2014)
261 Response in Opposition to Motion for Protective Order U.S. Department of Labor's Motion for a Protective Order and Memorandum in Support 249 . (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by All Defendants. (McIntire, Keith) (Entered: 10/17/2014)
262 Declaration of Keith McIntire in Support of Defendants' Opposition to Motion for Protective Order. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by All Defendants. (Related document(s): Response in Opposition to Motion, 261 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21) (McIntire, Keith) (Entered: 10/17/2014)
263 ORDER: Granting in Part Denying in Part U.S. Department of Labor's Motion for a Protective Order 249 as follows: An extension of time is granted to 10/16/2014 to the U.S. Department of Labor to provide a clawback list to State of Oregon for Ms. Lowe's emails, and otherwise is denied. The deliberative process does not apply to the vast majority of the documents at issue. Even if did apply, it has been waived in part by public disclosure by two participant states, and any harm from disclosure is outweighed by the State of Oregons need for these relevant documents, and sufficient protections are provided by the Protective Order in this case. Signed on 10/20/14 by Magistrate Judge Janice M. Stewart. (ST) (Entered: 10/20/2014)
264 Joint Status Report of Plaintiffs, the United States of America and Defendants Regarding Plaintiffs' and the United States' Motion to Compel Production and for Sanctions Upon Failure to Produce (related docket Nos. 253 and 260 ). Filed by All Plaintiffs. (Rubin, Bruce) Modified to correct links on 10/28/2014 (sss). (Entered: 10/27/2014)
265 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING a TELEPHONE Conference for Tuesday, 11/18/2014 at 09:30AM before Magistrate Judge Janice M. Stewart on the Joint Motion to Compel Production and for Sanctions Upon Failure to Produce 253 . Counsel are directed to call the AT&T conference line number provided in a separate e−mail. (jlr) (Entered: 10/30/2014)
266 Response in Opposition to Joint Motion to Compel Production and for Sanctions Upon Failure to Produce Filed by Plaintiffs and Plaintiff−Intervenor United States of America 253 . Filed by All Defendants. (McIntire, Keith) (Entered: 11/03/2014)
267 Declaration of Lauren F. Blaesing in Support of Defendants'. Filed by All Defendants. (Related document(s): Response in Opposition to Motion 266 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5) (McIntire, Keith) (Entered: 11/03/2014)
268 Declaration of Andre Harboe in Support of Defendants'. Filed by All Defendants. (Related document(s): Response in Opposition to Motion 266 .) (Attachments: # 1 Exhibit 1) (McIntire, Keith) (Entered: 11/03/2014)
269 Motion to Withdraw Motion to compel 253 . Filed by All Plaintiffs. (Toner, Bettina) (Entered: 11/14/2014)
270 ORDER: Granting Motion/Notice of Withdrawal of Motion To Compel 269 . Order Finding as MOOT Joint Motion to Compel Production and for Sanctions Upon Failure to Produce 253 . Order STRIKING the 11/18/14 Telephone Conference. Ordered by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 11/14/2014)
271 Joint Motion for Leave to Take Continued Depositions Out of Time and to Take One Additional Deposition. Oral Argument requested. Filed by All Plaintiffs. (Lapertosa, Max) (Entered: 12/03/2014)
272 Declaration of Max Lapertosa. Filed by All Plaintiffs. (Related document(s): Motion for Leave 271 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Lapertosa, Max) (Entered: 12/03/2014)

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12/03/2014 12/03/2014 12/03/2014 12/05/2014
12/05/2014 12/05/2014 12/05/2014 12/05/2014 12/05/2014 12/11/2014
12/11/2014
01/20/2015 02/03/2015 02/05/2015 02/19/2015

273 Unopposed Motion to Amend/Correct Protective Order (and Motion for Production Order) Protective Order 42 . Filed by All Defendants. (Beatty−Walters, Christina) (Entered: 12/03/2014)
274 Proposed Form of Order Submitted (Production Order). Filed by All Defendants. (Beatty−Walters, Christina) (Entered: 12/03/2014)
275 Proposed Form of Order Submitted (Amended Protective Order). Filed by All Defendants. (Beatty−Walters, Christina) (Entered: 12/03/2014)
276 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING Plaintiffs' Joint Motion for Leave to Take Continued Depositions Out of Time and to Take One Additional Deposition 271 for a TELEPHONE Oral Argument on Thursday 12/11/2014 at 11:00AM before Magistrate Judge Janice M. Stewart. Counsel are to call the toll−free AT&T conference line at the number provided by separate e−mail a few minutes before the scheduled time. (jlr) (Entered: 12/05/2014)
277 ORDER: Granting Motion to Amend/Correct 273 re Unopposed Motion to Amend/Correct Protective Order (and Motion for Production Order) Protective Order 42 273 . Ordered by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 12/05/2014)
278 AMENDED Protective Order regarding Protective Order 42 . Signed on 12/5/14 by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 12/05/2014)
279 PRODUCTION ORDER Signed on 12/5/14 by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 12/05/2014)
280 Response in Opposition to Joint Motion for Leave to Take Continued Depositions Out of Time and to Take One Additional Deposition 271 . Filed by All Defendants. (McIntire, Keith) (Entered: 12/05/2014)
281 Declaration of Keith McIntire in Support of. Filed by All Defendants. (Related document(s): Response in Opposition to Motion 280 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (McIntire, Keith) (Entered: 12/05/2014)
282 MINUTES of Proceedings: TELEPHONE Motion Hearing Held regarding Plaintiffs' Joint Motion for Leave to Take Additional Deposition and to Take Continuation Depositions Out of Time 271 . ORDER: The motion is denied as to additional depositions, but granted in part as to extending the deadline for taking continued depositions. The deadlines for production of defendants' last email pull (11/17/14−2/2/15), for taking plaintiffs' five continuation depositions, and for exchanging initial expert reports are extended as set forth in the attached Amended Scheduling Order. Steven Schwartz, Bruce Rubin, Bettina Toner, and Cathy Costanzo (for Plaintiffs) and Max Lapertosa and Justin Park (for Intervenor USA) present as counsel for plaintiff(s). Keith McIntire and John Dunbar present as counsel for defendant(s).(Court Reporter Jill Erwin.) (stewart1, ) Modified on 12/12/2014 to reflect a telephone hearing (jlr). (Entered: 12/11/2014)
283 AMENDED SCHEDULING ORDER by Magistrate Judge Janice M. Stewart amending Scheduling Order, 259 to reflect deadline for production of defendants' last email pull (11/17/14 − 2/2/15) is 3/6/15. Deadline for plaintiffs' five (5) continuation depositions is 3/6/15 − 3/30/15. Deadline for expert reports is 4/15/15. (jlr) (Entered: 12/12/2014)
284 Scheduling Order by Magistrate Judge Janice M. Stewart: RESETTING the Oral Argument on summary judgment from 9/21/15 to Thursday, 10/1/15 at 9:30 AM. in Portland Courtroom 11A before Magistrate Judge Janice M. Stewart. Ordered by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 01/20/2015)
285 Notice of Attorney Withdrawal: David Knight Filed by United States of America (Knight, David) (Entered: 02/03/2015)
286 Notice of Change of Law Firm Name for Plaintiffs Filed by All Plaintiffs (Rubin, Bruce) (Entered: 02/05/2015)
287 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING a TELEPHONE Conference for Friday, 2/20/2015 at 01:30PM before Magistrate Judge Janice M. Stewart. Counsel are to call the AT&T Conference number previously provided by separate e−mail. (jlr) (Entered: 02/19/2015)

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02/20/2015
03/16/2015 03/19/2015 03/19/2015 03/19/2015 03/19/2015
03/23/2015 03/23/2015 03/23/2015 03/23/2015 03/25/2015
03/31/2015

288 MINUTES of Proceedings: Telephone Conference regarding expert discovery held. ORDER: No attorney representing any of the parties may be present during Dr. Mary Morningstar's fact−gathering interviews of school district staff. This Order applies only to the parties and does not preclude the non−party school districts from having their own counsel present during these interviews. Bruce Rubin, Steven Schwartz, and Cathy Costanzo (for Plaintiffs), and Justin Park and Regina Kline (for Intervenor USA) present as counsel for plaintiff(s). John Dunbar, Lauren Blaesing, and Keith McIntire present as counsel for defendant(s). Court Reporter: none. Tape No: none.Magistrate Judge Janice M. Stewart presiding. (stewart1, ) (Entered: 02/20/2015)
289 Order by Magistrate Judge Janice M. Stewart directing the substitution of Kate Brown, Governor of the State of Oregon, as defendant in the place of John Kitzhaber, former Governor of the State of Oregon at the time this action was filed and sued in his official capacity only. The parties shall modify the case caption on all future pleadings and the court will update the docket accordingly. (jlr) (Entered: 03/16/2015)
290 Motion to Compel Responses Regarding Relief. Oral Argument requested. Filed by All Defendants. (Dunbar, John) (Entered: 03/19/2015)
291 Declaration of John Dunbar in Support of Defendants' Motion to Compel. Filed by All Defendants. (Related document(s): Motion to compel 290 .) (Attachments: # 1 Exhibit A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8 − Part 1, # 10 Exhibit 8 − Part 2, # 11 Exhibit B, # 12 Exhibit C, # 13 Exhibit D) (Dunbar, John) (Entered: 03/19/2015)
292 Motion for Protective Order and Memorandum in Support. Oral Argument requested. Filed by All Defendants. (Dunbar, John) (Entered: 03/19/2015)
293 Declaration of John Dunbar in Support of Defendants' Motion for Protective Order. Filed by All Defendants. (Related document(s): Motion for Protective Order 292 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19) (Dunbar, John) (Entered: 03/19/2015)
294 Joint Response to Motion for Protective Order and Memorandum in Support 292 . Filed by United States of America. (Lapertosa, Max) (Entered: 03/23/2015)
295 Declaration of Max Lapertosa . Filed by United States of America. (Related document(s): Response to Motion 294 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5) (Lapertosa, Max) (Entered: 03/23/2015)
296 Scheduling Order by Magistrate Judge Janice M. Stewart regarding Motion for Protective Order 292 . TELEPHONE hearing is set for Wednesday 3/25/2015 at 09:30AM before Magistrate Judge Janice M. Stewart. (Counsel are to call the AT&T Conference line number previously provided by email). (jlr) (Entered: 03/23/2015)
297 Amended Declaration of Max Lapertosa (Corrected). Filed by United States of America. (Related document(s): Response to Motion 294 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5) (Lapertosa, Max) (Entered: 03/23/2015)
298 MINUTES of Proceedings: Telephone Motion Hearing Held regarding Motion for Protective Order 292 before Magistrate Judge Janice M. Stewart. Order Denying Motion for a Protective Order 292 . Order SETTING a TELEPHONE Oral Argument on the Motion to Compel 290 for Thursday, 4/16/2015 at 10:00AM before Magistrate Judge Janice M. Stewart. Counsel are to call the AT&T conference line number previously emailed for this hearing. (If you do not have Judge Stewart's conference line number, please let her courtroom deputy know). Steven Schwartz, Cathy Costanzo, Julia Terese Greenfield, Anna Krieger. present as counsel for plaintiff(s). Max Lapertosa present for Intervenor. John Dunbar, Keith McIntire present as counsel for defendant(s).(Court Reporter Bonita Shumway.) (jlr) (Entered: 03/25/2015)
299 Motion for Leave to Appear Pro Hac Vice for Attorney Anna Krieger . Filing fee in the amount of $100 collected; Agency Tracking ID: 0979−4064101. Filed by All Plaintiffs. (Wilde, Kathleen) (Entered: 03/31/2015)

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04/02/2015
04/02/2015 04/02/2015
04/02/2015
04/02/2015
04/03/2015
04/06/2015 04/06/2015 04/06/2015 04/06/2015 04/07/2015

300 Order Granting Application for Special Admission Pro Hac Vice of Anna M. Krieger for Gretchen Cason, Sparkle Green, Elizabeth Harrah,Angela Kehler, Zavier Kinville, Paula Lane, Andres Paniagua, Lori Robertson and United Cerebral Palsy Association of Oregon and Southwest Washington, Inc.. Application Fee in amount of $100 collected. Receipt No. 0979−4064101 issued. Signed on 4/2/2015 by Magistrate Judge Janice M. Stewart. (ecp) (Entered: 04/02/2015)
301 Notification of CM/ECF Account for Attorney Anna M. Krieger (appearing Pro Hac Vice). Your login is: amkrieger. Go to the CM/ECF login page to set your password. (ecp) (Entered: 04/02/2015)
302 Motion to Refer Case to a Special Master Plaintiffs and The United States' Motion for Appointment of Special Master. Filed by Gretchen Cason, Sparkle Green, Elizabeth Harrah, Angela Kehler, Zavier Kinville, Paula Lane, Andres Paniagua, Lori Robertson, United Cerebral Palsy Association of Oregon and Southwest Washington, Inc., United States of America. (Attachments: # 1 Exhibit A) (Reichman, Lawrence) (Entered: 04/02/2015)
303 Declaration of Bruce A. Rubin in Support of Plaintiffs' and The United States' Motion for Appointment of Special Master. Filed by Gretchen Cason, Sparkle Green, Elizabeth Harrah, Angela Kehler, Zavier Kinville, Paula Lane, Andres Paniagua, Lori Robertson, United Cerebral Palsy Association of Oregon and Southwest Washington, Inc., United States of America. (Related document(s): Motion to Refer Case to Special Master, 302 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21) (Reichman, Lawrence) (Entered: 04/02/2015)
304 Declaration of Peter Sternkopf in Support of Plaintiffs' and United States of America's Motion for Appointment of Special Master. Filed by Gretchen Cason, Sparkle Green, Elizabeth Harrah, Angela Kehler, Zavier Kinville, Paula Lane, Andres Paniagua, Lori Robertson, United Cerebral Palsy Association of Oregon and Southwest Washington, Inc., United States of America. (Related document(s): Motion to Refer Case to Special Master, 302 .) (Reichman, Lawrence) (Entered: 04/02/2015)
305 Motion Plaintiffs and The United States' Request for Oral Argument on Motion for Appointment of Special Master. Oral Argument requested. Filed by Gretchen Cason, Sparkle Green, Elizabeth Harrah, Angela Kehler, Zavier Kinville, Paula Lane, Andres Paniagua, Lori Robertson, United Cerebral Palsy Association of Oregon and Southwest Washington, Inc., United States of America. (Reichman, Lawrence) (Entered: 04/03/2015)
306 Response in Opposition to Motion to Compel Responses Regarding Relief 290 Oral Argument requested. Filed by All Plaintiffs. (Schwartz, Steven) (Entered: 04/06/2015)
307 Declaration of Steven J. Schwartz . Filed by All Plaintiffs. (Related document(s): Response in Opposition to Motion 306 .) (Attachments: # 1 Exhibit) (Schwartz, Steven) (Entered: 04/06/2015)
308 Motion for Extension of Time to File a Response/Reply to Motion to Refer Case to a Special Master Plaintiffs and The United States' Motion for Appointment of Special Master 302 . Filed by All Defendants. (McIntire, Keith) (Entered: 04/06/2015)
309 Declaration of Keith McIntire . Filed by All Defendants. (Related document(s): Motion for Extension of Time to File Response/Reply to a Motion, 308 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B) (McIntire, Keith) (Entered: 04/06/2015)
310 ORDER: Granting Motion 308 for Extension of Time to File Response/Reply to Motion to Refer Case to a Special Master Plaintiffs and The United States' Motion for Appointment of Special Master 302 filed by Sparkle Green, United Cerebral Palsy Association of Oregon and Southwest Washington, Inc., Angela Kehler, United States of America, Gretchen Cason, Lori Robertson, Zavier Kinville, Paula Lane, Andres Paniagua, Elizabeth Harrah. Response to Motion to Refer Case to a Special Master 302 is due by 5/1/2015. Ordered by Magistrate Judge Janice M. Stewart. (st3) (Entered: 04/07/2015)

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04/09/2015
04/14/2015 04/14/2015 04/16/2015 04/22/2015
05/01/2015 05/01/2015 05/08/2015 05/08/2015

311 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Telephone Motion Hearing held on 3/25/2015 before Judge Janice M. Stewart, Court Reporter Bonita J. Shumway, telephone number 503−326−8188. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the Court Reporter or PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 4/20/2015. Redaction Request due 5/4/2015. Redacted Transcript Deadline set for 5/14/2015. Release of Transcript Restriction set for 7/13/2015. (Shumway, Bonita) (Entered: 04/09/2015)
312 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING Motion to Refer Case to a Special Master Plaintiffs and The United States' Motion for Appointment of Special Master 302 for Oral Argument on Wednesday 5/13/2015 at 09:30AM in Portland Courtroom 11A before Magistrate Judge Janice M. Stewart. Counsel have been provided Judge Stewart's conference line number for those who want to appear by phone. Please call the number about 5 minutes before the scheduled hearing time. Counsel who want to appear in person may do so. (jlr) Modified on 4/14/2015 to correct date to Wednesday, 5/13/15 (not Thursday) (jlr). (Entered: 04/14/2015)
313 AMENDED Scheduling Order by Magistrate Judge Janice M. Stewart regarding Scheduling Order 312 , Motion to Refer Case to a Special Master Plaintiffs and The United States' Motion for Appointment of Special Master 302 is set for Oral Argument WEDNESDAY, 5/13/15 at 9:30AM, not Thursday. (jlr) (Entered: 04/14/2015)
314 MINUTES of Proceedings: Telephone oral argument held on Motion to Compel (docket # 290 ). ORDER: For the reasons stated on the record at the telephone hearing, Defendants' Motion to Compel 290 is DENIED and Plaintiffs' oral motion to amend their response to Request for Admission #5 of Defendants' First Request for Admissions is GRANTED. Steven Schwartz and Cathy Costanzo (for Plaintiffs) and Max Lapertosa and Regina Kline (for Intervenor USA) present as counsel for plaintiff(s). John Dunbar and Keith McIntire present as counsel for defendant(s). (Court Reporter Bonita Shumway.) (stewart1, ) (Entered: 04/16/2015)
315 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Telephone Oral Argument held on 4/16/2015 before Judge Janice M. Stewart, Court Reporter Bonita J. Shumway, telephone number 503−326−8188. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the Court Reporter or PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 5/4/2015. Redaction Request due 5/18/2015. Redacted Transcript Deadline set for 5/29/2015. Release of Transcript Restriction set for 7/24/2015. (Shumway, Bonita) (Entered: 04/22/2015)
316 Response to Motion to Refer Case to a Special Master Plaintiffs and The United States' Motion for Appointment of Special Master 302 . Filed by All Defendants. (Dunbar, John) (Entered: 05/01/2015)
317 Declaration of Keith McIntire in Support of Defendants' Response to Plaintiffs' and The United States' Motion for Appointment of Special Master. Filed by All Defendants. (Related document(s): Motion to Refer Case to Special Master, 302 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Dunbar, John) (Entered: 05/01/2015)
318 Reply to Motion to Refer Case to a Special Master Plaintiffs and The United States' Motion for Appointment of Special Master 302 . Filed by Gretchen Cason, Sparkle Green, Elizabeth Harrah, Angela Kehler, Zavier Kinville, Paula Lane, Andres Paniagua, Lori Robertson, United Cerebral Palsy Association of Oregon and Southwest Washington, Inc., United States of America. (Rubin, Bruce) (Entered: 05/08/2015)
319 Declaration of Bettina Toner in Support of Plaintiffs' and the United States of America's Reply in Support of Motion for Appointment of Special Master Pursuant to Fed. R. Civ. P. 53. Filed by Gretchen Cason, Sparkle Green, Elizabeth Harrah, Angela Kehler, Zavier Kinville, Paula Lane, Andres Paniagua, Lori Robertson, United Cerebral Palsy Association of Oregon and Southwest Washington, Inc., United States of America. (Related document(s): Motion to Refer Case to Special Master, 302 .) (Attachments: # 1 Exhibit − Exhibit 1, # 2 Exhibit − Exhibit 2, # 3 Exhibit − Exhibit 3,

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05/08/2015 05/08/2015 05/11/2015 05/13/2015
05/15/2015 05/21/2015

# 4 Exhibit − Exhibit 4, # 5 Exhibit − Exhibit 5, # 6 Exhibit − Exhibit 6, # 7 Exhibit − Exhibit 7, # 8 Exhibit − Exhibit 8, # 9 Exhibit − Exhibit 9, # 10 Exhibit − Exhibit 10, # 11 Exhibit − Exhibit 11, # 12 Exhibit − Exhibit 12, # 13 Exhibit − Exhibit 13, # 14 Exhibit − Exhibit 14, # 15 Exhibit − Exhibit 15, # 16 Exhibit − Exhibit 16, # 17 Exhibit − Exhibit 17, # 18 Exhibit − Exhibit 18, # 19 Exhibit − Exhibit 19, # 20 Exhibit − Exhibit 20, # 21 Exhibit − Exhibit 21) (Rubin, Bruce) (Entered: 05/08/2015)
320 Supplemental Declaration of Bruce A. Rubin in Support of Plaintiffs' and the United States' Motion for Appointment of Special Master Pursuant to Fed. R. Civ. P. 53. Filed by Gretchen Cason, Sparkle Green, Elizabeth Harrah, Angela Kehler, Zavier Kinville, Paula Lane, Andres Paniagua, Lori Robertson, United Cerebral Palsy Association of Oregon and Southwest Washington, Inc., United States of America. (Related document(s): Motion to Refer Case to Special Master, 302 .) (Attachments: # 1 Exhibit − Exhibit 1, # 2 Exhibit − Exhibit 2, # 3 Exhibit − Exhibit 3, # 4 Exhibit − Exhibit 4) (Rubin, Bruce) (Entered: 05/08/2015)
321 Declaration of John M. Barkett Pursuant to Fed. R. Civ. P. 53. Filed by Gretchen Cason, Sparkle Green, Elizabeth Harrah, Angela Kehler, Zavier Kinville, Paula Lane, Andres Paniagua, Lori Robertson, United Cerebral Palsy Association of Oregon and Southwest Washington, Inc., United States of America. (Related document(s): Motion to Refer Case to Special Master, 302 .) (Rubin, Bruce) (Entered: 05/08/2015)
322 Scheduling Order by Magistrate Judge Janice M. Stewart. After reviewing Mr. Dunbar's letter of May 7 to extend the due date for certain expert rebuttal reports and Mr. Schwartz's response of May 11, defendants' request to extend the due date for the rebuttal to Lynnae Ruttledge's expert report for two weeks is GRANTED from May 12 to May 26 and to the 11 reports by seven other experts (Ellen Condon, Teresa Grossi, Richard Luecking, Ruby Moore, Sarah Murphy, Sally Rogers and Lyn Rucker) for four weeks is granted in part from May 12 to May 19. (jlr) (Entered: 05/11/2015)
323 MINUTES of Proceedings: before Magistrate Judge Janice M. Stewart. Motion hearing held regarding Motion to Refer Case to Special Master, 302 . ORDER: For the reasons stated on the record, Plaintiffs' and the United States' Motion for Appointment of a Special Master Pursuant to FRCP 53 (docket # 302 ) is DENIED. ORDER: The case schedule is amended as follows: (1) No later than June 19, 2015, defendants shall complete production of all documents not previously produced due to the omission of search terms; (2) On or before August 14, 2015, Plaintiffs and the United States may take up to 10 additional or reopened depositions to inquire about the belatedly produced documents; (3) On or before August 14, 2015, Plaintiffs and the United States may file amended expert reports necessitated by the belatedly produced documents; and (4) On or before September 15, 2015, the parties may file supplemental expert reports necessitated by the belatedly produced documents. ORDER: Sanctions are imposed against defendants for their belated production of documents as follows: (1) Defendants shall reimburse plaintiffs and the United States for their reasonable attorney fees and costs incurred to take additional or reopened depositions as a result of the belated production of documents; and (2) Plaintiffs and the United States may seek the imposition of additional sanctions against defendants if warranted based upon their review of the belatedly produced documents. ORDER: No party may file a summary judgment motion without leave of court for good cause shown. Bruce Rubin, Kathleen Wilde, Lawrence Reichman and by phone: Steven Schwartz, Bettina Toner, Cathy Costanzo present as counsel for plaintiffs. By phone present for United States: Max Lapertosa and Regina Kline. John Dunbar, Keith McIntire present as counsel for defendant(s). (Court Reporter Nancy Walker.) (jlr) (Entered: 05/13/2015)
324 Amended Court Trial Management Order. This document replaces any previously issued trial management order(s), adds a date for the filing of the Joint Statement of Trial Issues (10/5/2015), includes the current trial schedule, and provides pretrial submission and objection requirements. Signed on 5/15/2015 by Magistrate Judge Janice M. Stewart. (st1) (Entered: 05/15/2015)
325 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Motion hearing held on May 13, 2015 before Judge Janice M. Stewart, Court Reporter Nancy M. Walker, telephone number 503−326−8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained from the Court Reporter (503−326−8186)

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07/02/2015
07/10/2015 07/14/2015 07/17/2015 07/20/2015 07/20/2015 07/20/2015

or through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 6/1/2015. Redaction Request due 6/15/2015. Redacted Transcript Deadline set for 6/25/2015. Release of Transcript Restriction set for 8/24/2015. (Walker, Nancy) (Entered: 05/21/2015)
326 SCHEDULING ORDER by Judge Acosta − SETTING the following Settlement Conference dates in this matter: (1) FOR PLAINTIFFS ONLY −− Friday, July 10, 2015, at 9:00AM in Judge Acosta's chambers. (2) FOR DEFENDANTS ONLY −− Tuesday, July 14, 2015, at 9:00AM in Judge Acosta's chambers. (3) ALL PARTIES − Monday, Tuesday and Wednesday, July 20−22, 2015, at 9:00AM, in Judge Acosta's chambers. (4) ALL PARTIES −− Tuesday, Wednesday and Thursday, August 11−13, 2015. Tuesday beginning at 9:00AM, Wednesday and Thursday beginning at 11:00AM. (peg) Modified on 7/6/2015 to correct the numbered dates for the 3 consecutive dates in July to read July 20th through July 22nd.(peg). (Entered: 07/02/2015)
327 MINUTES of Proceedings: First Session of Settlement Conference held by Judge Acosta, (Plaintiffs only). Next session (Defendants only) is set for Tuesday, July 14, 2015, in Judge Acosta's chambers on the 11th floor of the Mark Hatfield United States Courthouse, 1000 SW Third Avenue, Portland, Oregon 97204. Plaintiffs' counsel and party representatives present: Bruce Rubin, Adrian Brown, Sheila Foran Regina Kline, Eve Hill Bob Joondeph, Kathleen Wilde, Steven Schwartz, Cathy Costanzo, Max Lapertosa. None present as counsel for defendant(s). Court Reporter: None. Magistrate Judge John V. Acosta presiding. (peg) (Entered: 07/13/2015)
328 MINUTES of Proceedings: Second Session of Settlement Conference held by Judge Acosta, (Defendants only). Next session (All parties) is set for Monday, July 20, 2015. Plaintiffs to arrive at 9:00AM. Defendants to arrive at 10:00AM. Defense counsel and party representatives present: David Markowitz, Lauren Blessing, Sarah Drinkwater, Keith McIntire, Tina Beatty−Walters, Misha Isaak, John Dunbar, Lilia Teninty, Trina Lee, Mike Maley, Erinn Kelley−Siel. No counsel for plaintiffs or plaintiff party representatives were in attendance at this session. Court Reporter: None. Magistrate Judge John V. Acosta presiding. (peg) (Entered: 07/15/2015)
329 Scheduling Order by Magistrate Judge Janice M. Stewart GRANTING the 7/14/15 letter request to amend the scheduling order. Order extending the date for completing the 10 additional depositions from August 14, 2015 to September 11, 2015; and combining the deadline for plaintiffs to amend their expert reports, with the deadline for all parties to supplement their expert reports, and extend the two dates (August 14 and September 15, 2015) to September 28, 2015. Ordered by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 07/17/2015)
330 Scheduling Order by Magistrate Judge Janice M. Stewart. At the request of plaintiff, Order SETTING a TELEPHONE Status Conference for Tuesday, 7/21/2015 at 04:00PM before Magistrate Judge Janice M. Stewart. Counsel are to call the toll−free conference number previously provided by separate e−mail. (jlr) (Entered: 07/20/2015)
331 AMENDED Scheduling Order by Magistrate Judge Janice M. Stewart regarding Scheduling Order 330 . The Discovery Hearing set for Tuesday, 7/21/2015 at 04:00PM will be held in Portland Courtroom 11A before Magistrate Judge Janice M. Stewart, for counsel that are already in the courthouse for the settlement conference. Any counsel wanting to participate by phone please call the number provided, about 5 minutes before the scheduled time. (jlr) (Entered: 07/20/2015)
333 MINUTES of Proceedings: Third Session of Settlement Conference held by Judge Acosta, (All parties). Next session (All parties) is set for Tuesday, July 21, 2015. Plaintiffs to arrive at 9:00AM. Defendants to arrive at 10:00AM. Plaintiffs' counsel and party representatives present: Bruce Rubin, Adrian Brown, Sheila Foran Regina Kline, Eve Hill Bob Joondeph, Kathleen Wilde, Steven Schwartz, Cathy Costanzo, Max Lapertosa. Defense counsel and party representatives present: David Markowitz, Lauren Blessing, Sarah Drinkwater, Keith McIntire, Tina Beatty−Walters, Misha Isaak, John Dunbar, Lilia Teninty, Trina Lee, Mike Maley, Erinn Kelley−Siel. Court Reporter: None. Magistrate Judge John V. Acosta presiding. (peg) (Entered: 07/22/2015)

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07/21/2015 07/21/2015 07/23/2015 08/11/2015 08/12/2015 08/13/2015 08/13/2015
08/14/2015

332 MINUTES of Proceedings: Discovery Hearing held before Magistrate Judge Janice M. Stewart. Steven Schwartz present as counsel for plaintiff(s). Max Lapertosa present for Intervenor USA. Keith McIntire present as counsel for defendant(s). Tape No: FTR 11A. (jlr) (Entered: 07/21/2015)
334 MINUTES of Proceedings: Fourth Session of Settlement Conference held by Judge Acosta, (All parties). Next session (All parties) is set for Wednesday, July 22, 2015. Parties to arrive at 9:00AM. Plaintiffs' counsel and party representatives present: Bruce Rubin, Adrian Brown, Sheila Foran Regina Kline, Eve Hill Bob Joondeph, Kathleen Wilde, Steven Schwartz, Cathy Costanzo, Max Lapertosa. Defense counsel and party representatives present: Lauren Blessing, Sarah Drinkwater, Keith McIntire, Tina Beatty−Walters, Misha Isaak, John Dunbar, Lilia Teninty, Trina Lee, Mike Maley, Erinn Kelley−Siel. Court Reporter: None. Magistrate Judge John V. Acosta presiding. (peg) (Entered: 07/22/2015)
335 MINUTES of Proceedings Fifth Session of Settlement Conference held by Judge Acosta, (All parties). Next session (All parties) is set for Tuesday, August 11, 2015. Parties to arrive at 9:00AM. Plaintiffs' counsel and party representatives present: Bruce Rubin, Adrian Brown, Sheila Foran Regina Kline, Eve Hill Bob Joondeph, Kathleen Wilde, Steven Schwartz, Cathy Costanzo, Max Lapertosa. Defense counsel and party representatives present: Lauren Blessing, Sarah Drinkwater, Keith McIntire, Tina Beatty−Walters, Misha Isaak, John Dunbar, Lilia Teninty, Trina Lee, Mike Maley, Erinn Kelley−Siel. Court Reporter: None. Magistrate Judge John V. Acosta presiding. (peg) (Entered: 07/23/2015)
336 MINUTES of Proceedings − Sixth Session of Settlement Conference held by Judge Acosta, (All parties). Next session (All parties) is set for Wednesday, August 12, 2015. Plaintiffs to arrive at 8:00AM. Defendants to arrive at 11:00AM. Plaintiffs' counsel and party representatives present: Bruce Rubin, Adrian Brown, Sheila Foran Gina Kline, Eve Hill Bob Joondeph, Steven Schwartz, Cathy Costanzo, Max Lapertosa. Defense counsel and party representatives present: Lauren Blessing, Sarah Drinkwater, Keith McIntire, Tina Beatty−Walters, Misha Isaak, John Dunbar, Lilia Teninty, Trina Lee, Mike Maley, David Markowitz (peg) Modified on 8/13/2015 to correct filing date from 8/12/15 to 8/11/15. (peg) (Entered: 08/12/2015)
337 MINUTES of Proceedings − Seventh Session of Settlement Conference held by Judge Acosta, (All parties). Next session (All parties) is set for Thursday, August 13, 2015. Plaintiffs to arrive at 8:00AM. Defendants to arrive at 9:00AM. Plaintiffs' counsel and party representatives present: Bruce Rubin, Adrian Brown, Sheila Foran, Regina Kline, Eve Hill, Bob Joondeph, Steven Schwartz, Cathy Costanzo, Max Lapertosa. Defense counsel and party representatives present: Lauren Blessing, Sarah Drinkwater, Keith McIntire, Tina Beatty−Walters, Misha Isaak, John Dunbar, Lilia Teninty, Trina Lee, Mike Maley, David Markowitz. (peg) Modified on 8/13/2015 to correct filing date of 8/12/15. (peg) (Entered: 08/13/2015)
338 SCHEDULING ORDER by Judge Acosta − SETTING an additional Settlement Conference date in this matter for Friday, August 14, 2015. Plaintiffs to arrive at 8:30AM. Defendants to arrive at 9:00AM. (peg) (Entered: 08/13/2015)
339 MINUTES of Proceedings: Eighth Session of Settlement Conference held by Judge Acosta, (All parties in attendance). Next session (All parties) is set for Friday, August 14, 2015. Plaintiffs to arrive at 8:30AM. Defendants to arrive at 9:00AM. Plaintiffs' counsel and party representatives present: Bruce Rubin, Adrian Brown, Sheila Foran, Regina Kline, Eve Hill, Bob Joondeph, Steven Schwartz, Cathy Costanzo, Max Lapertosa. Defense counsel and party representatives present: Lauren Blessing, Sarah Drinkwater, Tina Beatty−Walters, Misha Isaak, John Dunbar, Lilia Teninty, Mike Maley, Keith McIntire. (peg) Modified on 8/17/2015 correct names of those in attendance. (peg) Modified on 8/17/2015 to correct text bolding (jtj). (Entered: 08/17/2015)
340 MINUTES of Proceedings: Ninth Session of Settlement Conference held by Judge Acosta, (All parties). Next session (All parties) is set for Monday, August 17, 2015. Plaintiffs to arrive at 8:00AM. Defendants to arrive at 8:30AM. Plaintiffs' counsel and party representatives present: Bruce Rubin, Adrian Brown, Sheila Foran, Regina Kline, Eve Hill, Bob Joondeph, Steven Schwartz, Cathy Costanzo, Max Lapertosa. Defense counsel and party representatives present: Lauren Blessing, Keith McIntire, Misha Isaak, John Dunbar, Lilia Teninty, Mike Maley. (peg) (Entered: 08/17/2015)

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08/17/2015
08/18/2015
08/24/2015
08/25/2015
09/15/2015 09/17/2015 09/21/2015 10/22/2015 10/26/2015 11/02/2015

341 MINUTES of Proceedings: Tenth Session of Settlement Conference held by Judge Acosta, (All parties). Next session (All parties) is set for Tuesday, August 18, 2015. Defendants to arrive at 8:30AM. Plaintiffs to arrive at 9:00AM. Plaintiffs' counsel and party representatives present in person or by telephone: Bruce Rubin, Adrian Brown, Sheila Foran, Kathy Wilde, Regina Kline, Eve Hill, Bob Joondeph, Steven Schwartz, Cathy Costanzo, Max Lapertosa. Defense counsel and party representatives present in person or available by telephone: Lauren Blessing, Keith McIntire, John Dunbar, Lilia Teninty, Mike Maley Sarah Drinkwater. (peg) (Entered: 08/18/2015)
342 MINUTES of Proceedings: MINUTES of Proceedings: Eleventh Session of Settlement Conference held by Judge Acosta, (All parties). Next session (All parties) is set for Monday, August 24, 2015. Parties to arrive at 9:00AM. Plaintiffs' counsel and party representatives present in person or by telephone: Bruce Rubin, Adrian Brown, Sheila Foran, Kathy Wilde, Regina Kline, Eve Hill, Bob Joondeph, Steven Schwartz, Cathy Costanzo, Max Lapertosa. Defense counsel and party representatives present in person or available by telephone: Lauren Blessing, Keith McIntire, John Dunbar, Lilia Teninty, Mike Maley Sarah Drinkwater. (peg) (Entered: 08/20/2015)
343 MINUTES of Proceedings: Twelfth Session of Settlement Conference held by Judge Acosta, (All parties in attendance). Next session (All parties) is set for Tuesday, August 25, 2015. Parties to arrive at 9:00AM. Plaintiffs' counsel and party representatives present or available by telephone: Bruce Rubin, Adrian Brown, Sheila Foran, Regina Kline, Eve Hill, Bob Joondeph, Kathleen Wilde, Steven Schwartz, Cathy Costanzo, Max Lapertosa. Defense counsel and party representatives present or available by telephone: Lauren Blessing, Sarah Drinkwater, Keith McIntire, Tina Beatty−Walters, Misha Isaak, John Dunbar, Lilia Teninty, Trina Lee, Mike Maley, Erinn Kelley−Siel, David Markowitz. (peg) (Entered: 08/26/2015)
344 MINUTES of Proceedings: Thirteenth Session of Settlement Conference held by Judge Acosta, (All parties in attendance). Plaintiffs' counsel and party representatives present or available by telephone: Bruce Rubin, Adrian Brown, Sheila Foran, Regina Kline, Eve Hill, Bob Joondeph, Kathleen Wilde, Steven Schwartz, Cathy Costanzo, Max Lapertosa. Defense counsel and party representatives present or available by telephone: Lauren Blessing, Sarah Drinkwater, Keith McIntire, Tina Beatty−Walters, Misha Isaak, John Dunbar, Lilia Teninty, Trina Lee, Mike Maley, Erinn Kelley−Siel, David Markowitz. (peg) Modified on 8/26/2015 to correct filing date of hearing to 8/25/15.(peg). (Entered: 08/26/2015)
345 Joint Motion for Settlement Approval. Filed by All Plaintiffs. (Attachments: # 1 Exhibit Proposed Settlement Agreement, # 2 Exhibit Notice) (Schwartz, Steven) (Entered: 09/15/2015)
346 ORDER: Granting Joint Motion for Preliminary Approval of Proposed Class Action Settlement 345 and granting the schedule set forth on page 7 of the Motion. A Fairness Hearing will be set in December, 2015. Ordered by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 09/17/2015)
347 Scheduling Order by Magistrate Judge Janice M. Stewart. A Fairness Hearing re class action settlement is set for Monday, 12/7/2015 at 09:30AM in Portland Courtroom 11A before Magistrate Judge Janice M. Stewart. Order STRIKING the current case schedule EXCEPT as set forth in document 346 . (jlr) (Entered: 09/21/2015)
348 SCHEDULING ORDER by Judge Acosta − SETTING an additional Settlement Conference session in this matter for Monday, October 26, 2015, in Judge Acosta's chambers on the 11th floor of the Mark O. Hatfield United States Courthouse, 1000 SW Third Avenue, Portland, Oregon 97204. Plaintiffs to arrive at 8:30AM. Defendants to arrive at 9:15AM. (peg) (Entered: 10/22/2015)
349 MINUTES of Proceedings: Settlement Conference held regarding attorney fees. Bruce Rubin, Steven Schwartz, Cathy Costanzo (by phone), Kathleen Wilde, Thomas Johnson present as counsel for plaintiff(s). John Dunbar present as counsel for defendant(s). Court Reporter: None. Magistrate Judge John V. Acosta presiding. (peg) (Entered: 10/27/2015)
350 Scheduling Order by Magistrate Judge Janice M. Stewart SETTING a TELEPHONE Status Conference for Friday, 11/6/2015 at 11:30AM before Magistrate Judge Janice M. Stewart regarding the 12/7/15 Fairness Hearing. (jlr) (Entered: 11/02/2015)

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11/06/2015
11/13/2015 11/16/2015
11/16/2015 11/16/2015 11/16/2015 11/16/2015 11/16/2015 12/02/2015 12/02/2015 12/03/2015 12/03/2015 12/04/2015

351 MINUTES of Proceedings: Telephone Scheduling and Status Conference held. ORDER: The parties Joint Motion is to be filed by 11/13/2015 and any individual briefs are due 11/16/2015. NOTE: The argument scheduled for Monday, December 7, 2015, will be held in Courtroom 16. Bruce Rubin, Steven Schwartz, and Cathy Costanzo present as counsel for plaintiffs. John Dunbar and Christina Beatty−Walters present as counsel for defendants. Max Lapertosa, Nicholas Lee and Regina Kline present as counsel for Intervenor. Court Reporter: none. Tape No: none. Magistrate Judge Janice M. Stewart presiding. (st1) Modified on 11/6/2015 to correct list of counsel present. NEF regenerated.(jlr). (Entered: 11/06/2015)
352 Joint Motion for Settlement Agreement Approval. Oral Argument requested. Filed by All Plaintiffs. (Schwartz, Steven) (Entered: 11/13/2015)
353 Plaintiffs' and United States' Memorandum in Support of Joint Motion for Final Approval of Proposed Settlement Agreement. Filed by Gretchen Cason, Sparkle Green, Elizabeth Harrah, Angela Kehler, Zavier Kinville, Paula Lane, Andres Paniagua, Lori Robertson, United Cerebral Palsy Association of Oregon and Southwest Washington, Inc.. (Related document(s): Motion for Settlement 352 .) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit) (Schwartz, Steven) (Entered: 11/16/2015)
354 Declaration of Bettina Toner in Support of Plaintiffs' and the United States' Joint Motion for Final Approval of Settlement Agreement. Filed by All Plaintiffs. (Related document(s): Motion for Settlement 352 .) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit) (Toner, Bettina) (Entered: 11/16/2015)
355 Declaration of Kathy Wilde in Support of Plaintiffs' and United States' Motion for Final Approval of Settlement Agreement. Filed by All Plaintiffs. (Related document(s): Motion for Settlement 352 .) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (Wilde, Kathleen) (Entered: 11/16/2015)
356 Declaration of Anna Krieger in Support of Plaintiffs' and the United States' Motion for Final Approval of Settlement Agreement. Filed by All Plaintiffs. (Related document(s): Motion for Settlement 352 .) (Attachments: # 1 Exhibit) (Krieger, Anna) (Entered: 11/16/2015)
357 Memorandum in Support of Motion to Approve Class Action Settlement. Filed by All Defendants. (Related document(s): Motion for Settlement 352 .) (Dunbar, John) (Entered: 11/16/2015)
358 Declaration of JOHN J. DUNBAR in Support of Defendants' Memorandum in Support of Motion to Approve Class Action Settlement. Filed by All Defendants. (Related document(s): Motion for Settlement 352 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5) (Dunbar, John) (Entered: 11/16/2015)
359 Declaration of Lilia Teninty in Support of Defendants' Memorandum in Support of Motion to Approve Class Action Settlement. Filed by All Defendants. (Related document(s): Motion for Settlement 352 .) (Attachments: # 1 Exhibit 1) (Dunbar, John) (Entered: 12/02/2015)
360 Declaration of Michael J. Maley in Support of Defendants' Memorandum in Support of Motion to Approve Class Action Settlement. Filed by All Defendants. (Related document(s): Motion for Settlement 352 .) (Attachments: # 1 Exhibit 1) (Dunbar, John) (Entered: 12/02/2015)
361 Unopposed Motion to Supplement Wilde Declaration. Filed by Gretchen Cason, Sparkle Green, Elizabeth Harrah, Angela Kehler, Zavier Kinville, Paula Lane, Andres Paniagua, Lori Robertson, United Cerebral Palsy Association of Oregon and Southwest Washington, Inc.. (Attachments: # 1 Exhibit) (Wilde, Kathleen) (Entered: 12/03/2015)
362 ORDER: Granting Unopposed Motion to Supplement Wilde Declaration 361 . Ordered by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 12/03/2015)
363 Notice of Appearance of Thomas Stenson appearing on behalf of All Plaintiffs , Notice of Attorney Withdrawal: Filed by on behalf of All Plaintiffs (Stenson, Thomas) (Entered: 12/04/2015)

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12/07/2015
12/07/2015 12/29/2015 01/08/2016 01/12/2016 01/13/2016 01/19/2016 01/19/2016
01/20/2016 01/22/2016 01/25/2016
01/25/2016 01/25/2016 01/25/2016 01/25/2016

364 MINUTES of Proceedings: Hearing on the parties' Joint Motion for Final Approval of Class Action Settlement Agreement (docket # 352 ). Order: Receiving Plaintiffs' Exhibits 1−8 and Defendant's Exhibits 1−9. Testimony received; Witness List to follow. ORDER: Motion is taken under advisement as of 12/7/2015. Bruce Rubin, Steven Schwartz, Cathy Costanzo, Ted Wenk, and Kathleen Wilde (for Plaintiffs), and Max Lapertosa, Nicholas Lee, Justin Park and Regina Kline (for Intervenor USA) present as counsel for Plaintiffs and Intervenor USA. John Dunbar and Christina Beatty−Walters (for State of Oregon) present as counsel for defendant. Court Reporter: Bonita Shumway. Tape No: none.Magistrate Judge Janice M. Stewart presiding. (Related document(s): Motion for Settlement 352 .) (st1) (Entered: 12/07/2015)
365 Clerk's List of Exhibits & Witnesses. (pvh) (Entered: 12/08/2015)
366 ORDER: Granting Joint Motion for Final Approval of Proposed Settlement Agreement 352 . The parties shall file a form of proposed Judgment in 14 days. Signed on 12/29/15 by Magistrate Judge Janice M. Stewart. (ST) (Entered: 12/29/2015)
367 Notice of Appearance of Cheryl Citera appearing on behalf of United States of America Filed by on behalf of United States of America (Citera, Cheryl) (Entered: 01/08/2016)
368 Joint Motion for Judgment Approval. Filed by All Plaintiffs. (Attachments: # 1 Attachment) (Schwartz, Steven) (Entered: 01/12/2016)
369 Scheduling Order by Magistrate Judge Janice M. Stewart regarding Joint Motion for Judgment Approval 368 . Motion will be taken under advisement as of 1/22/2016. (jlr) (Entered: 01/13/2016)
370 Unopposed Motion to File Excess Pages for Their Motion for an Award of Attorneys' Fees and Costs. Filed by All Plaintiffs. (Schwartz, Steven) (Entered: 01/19/2016)
371 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Fairness Hearing held on 12/7/2015 before Judge Janice M. Stewart, Court Reporter Bonita J. Shumway, telephone number 503−326−8188 or bonita_shumway@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the Court Reporter or PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 1/29/2016. Redaction Request due 2/12/2016. Redacted Transcript Deadline set for 2/22/2016. Release of Transcript Restriction set for 4/21/2016. (Shumway, Bonita) (Entered: 01/19/2016)
372 ORDER: Granting Plaintiffs' Motion to File Excess Pages 370 . Ordered by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 01/20/2016)
373 Notice of Attorney Substitution:Attorney John J. Dunbar is substituted as counsel of record in place of Attorney John J. Dunbar Filed by All Defendants (Dunbar, John) (Entered: 01/22/2016)
374 Notice re Memorandum in Support of Motion 357 Notice of Correction Filed by Oregon Department of Human Services, Oregon Office of Developmental Disability Services, Oregon Office of Vocational Rehabilitation Services, State of Oregon (Related document(s): Memorandum in Support of Motion 357 .) (Dunbar, John) (Entered: 01/25/2016)
375 Notice of Motion Filed by All Defendants (Dunbar, John) (Entered: 01/25/2016)
376 Motion to Amend/Correct or Clarify Order Approving Settlement Notice 375 . Filed by All Defendants. (Dunbar, John) (Entered: 01/25/2016)
377 Declaration of John J. Dunbar in Support of Defendants Motion to Correct or Clarify. Filed by All Defendants. (Related document(s): Motion to Amend/Correct 376 .) (Dunbar, John) (Entered: 01/25/2016)
378 Scheduling Order by Magistrate Judge Janice M. Stewart regarding Motion to Amend/Correct or Clarify Order Approving Settlement 376 . Response is due 2/11/16, Reply is due by 2/22/2016. Motion will be taken under advisement as of 2/22/2016. (jlr) (Entered: 01/25/2016)

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01/27/2016
01/27/2016 01/27/2016
01/27/2016 01/27/2016 01/27/2016 01/28/2016 01/29/2016 02/08/2016 02/08/2016 02/09/2016 02/11/2016 02/12/2016 03/01/2016 03/09/2016

379 Unopposed Motion for Attorney Fees and Costs. Filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30) (Schwartz, Steven) (Attachment 23 replaced on 1/29/2016) (eo). (Attachment 10 replaced on 1/29/2016) (eo). (Entered: 01/27/2016)
380 Motion to Amend/Correct Order on Motion for Settlement 366 . Expedited Hearing requested. Filed by All Plaintiffs. (Schwartz, Steven) (Entered: 01/27/2016)
381 ORDER: Granting Defendants' Motion to Correct or Clarify Order Approving Settlement 376 and Granting Plaintiffs' and United States' Motion to Correct Order Approving Settlement Agreement 380 . Although the Courts Order Approving Settlement 366 was not intended to modify any provision of the parties Settlement Agreement or be internally inconsistent, the parties are concerned that it could conceivably be misconstrued during implementation of the Settlement Agreement. Therefore, the Court will issue an Amended Order to address the parties concerns. Signed on 1/27/16 by Magistrate Judge Janice M. Stewart. (ST) (Entered: 01/27/2016)
382 AMENDED ORDER regarding Order on Motion for Settlement 366 . For the reasons stated, the Parties' Joint Motion for Final Approval of Proposed Settlement Agreement (docket 352 ) is GRANTED effective December 29, 2015. Signed on 1/27/16 by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 01/27/2016)
383 ORDER: Granting Joint Motion for Approval of Final Judgment 368 . Ordered by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 01/27/2016)
384 JUDGMENT Signed on 1/27/16 by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 01/27/2016)
385 Scheduling Order by Magistrate Judge Janice M. Stewart: SETTING Unopposed Motion for Attorney Fees and Costs 379 to be taken under advisement as of 2/16/2016. (jlr) (Entered: 01/28/2016)
386 Order REPLACING Exhibits 10 and 23 to the Unopposed Motion for Attorney Fees and Costs 379 , as they were incorrect. A Notice of Electronic Filing will be regenerated to all parties. Ordered by Magistrate Judge Janice M. Stewart. (jlr) (Entered: 01/29/2016)
387 Response to Unopposed Motion for Attorney Fees and Costs 379 . Filed by All Defendants. (Dunbar, John) (Entered: 02/08/2016)
388 Supplemental Declaration of Daniel H. Skerritt . Filed by All Defendants. (Related document(s): Response to Motion 387 .) (Dunbar, John) (Entered: 02/08/2016)
389 Reply In Support of Unopposed Motion for Attorney Fees and Costs to Unopposed Motion for Attorney Fees and Costs 379 . Filed by All Plaintiffs. (Rubin, Bruce) (Entered: 02/09/2016)
390 OPINION AND ORDER: Granting Motion for Attorney Fees 379 in the sum of $5,250,000.00. Signed on 2/11/16 by Magistrate Judge Janice M. Stewart. (ST) Modified on 3/3/2016 to correct the dollar amount(peg). (Entered: 02/11/2016)
391 Notice of Case Reassignment: This case has been reassigned from Magistrate Judge Janice M. Stewart to Magistrate Judge John V. Acosta. (eo) (Entered: 02/12/2016)
392 Satisfaction re Order on Motion for Attorney Fees 390 by All Defendants. Filed by All Defendants. (Dunbar, John) (Entered: 03/01/2016)
393 SCHEDULING ORDER by Judge Acosta − At request of counsel, the Court SETS a Telephone Status Conference for Thursday, March 10, 2016, at 9:00AM, Pacific Time. Counsel are to respond to courtroom deputy, Paul Gale at "paul_gale@ord.uscourts.gov" or 503.326.8056 to confirm their participation. Counsel will be notified by separate email of the court's conference line information. (peg) (Entered: 03/09/2016)

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03/09/2016
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06/23/2017 03/23/2018

394 STRICKEN (See Administrative Correction of the Record 396 )Application for to the bar of the U.S. District Court, District of Oregon NOTE: failure to update your account information under the Utilities menu could result in a delay processing your application. Filed by United States of America. (Westfall, Elizabeth) Modified on 3/10/2016 (ecp). (Entered: 03/09/2016)
395 MINUTES of Proceedings: Telephone Status Conference held before Judge Acosta. ORDER: Letters from the respective parties regarding independent review selection are due 4/1/16. Letter are to be submitted for in camera review only. Thomas Stenson, Bruce Rubin, John Dunbar, Cathy Costanzo, Ellen Mendoza, Elizabeth Westfall, Steven Schwartz, Nicholas Lee present as counsel for the parties. Court Reporter: Jill Jessup. Magistrate Judge John V. Acosta presiding. (peg) (Entered: 03/10/2016)
396 Order for Administrative Correction of the Record pursuant to Fed. R. Civ. P. 60(a) regarding Application for Admission, 394 filed by United States of America. A Clerical error has been discovered in the case record. The Clerk is directed to make the following administrative corrections to the record: Counsel is directed to refile the application in their admissions case; 3:16−ad−62. Docket entry 394 will be stricken. (ecp) (Entered: 03/10/2016)
397 ORDER by Judge Acosta − Pursuant to Section XIV(1)(b) of the parties' Settlement Agreement, the court hereby appoints Cathy Ficker Terrill as the Independent Reviewer in this matter. (peg) (Entered: 04/20/2016)
398 Stipulated Motion for Attorney Fees Supplemental. Filed by All Plaintiffs. (Schwartz, Steven) (Entered: 06/27/2016)
399 ORDER GRANTING the parties Stipulated Motion 398 for Supplemental Attorney Fees and Costs. APPROVED and entered as an order of the Court. Dated this 28th day of June, 2016, by United States Magistrate Judge John V. Acosta. (peg) (Entered: 06/28/2016)
400 Satisfaction re Order on Motion for Attorney Fees 399 by All Plaintiffs. Filed by All Plaintiffs. (Rubin, Bruce) (Entered: 07/14/2016)
401 Notice of Attorney Withdrawal: Nicholas C. Lee Filed by United States of America (Lee, Nicholas) (Entered: 09/12/2016)
402 Notice of Attorney Withdrawal: Regina Kline Filed by United States of America (Rost, Cheryl) (Entered: 01/17/2017)
403 2016 Independent Reviewer's Annual Report. (kms) (Entered: 03/02/2017)
404 Satisfaction by Oregon Department of Human Services, Oregon Office of Developmental Disability Services, Oregon Office of Vocational Rehabilitation Services, State of Oregon. Filed by Oregon Department of Human Services, Oregon Office of Developmental Disability Services, Oregon Office of Vocational Rehabilitation Services, State of Oregon. (Dunbar, John) (Entered: 05/16/2017)
405 Notice of Attorney Withdrawal: Filed by All Plaintiffs (Wilde, Kathleen) (Entered: 06/23/2017)
406 2017 Independent Reviewer's Annual Report. (peg) (Entered: 03/23/2018)


[CONTENT] January 25, 2012 | the United Cerebral Palsy Association | Oregon | Southwest Washington | the U.S. District Court | Oregon ||| Oregon | Offices of Developmental Disability Services | Vocational Rehabilitation Services | the Americans With Disabilities Act | ADA | the Rehabilitation Act ||| more than 2,300 |||  |||  ||| April 3, 2012 | ADA ||| 1 | Title II | ADA | 2 | 3 | 4 ||| ADA ||| April 20, 2012 | the United States ||| Title II | ADA | American ||| May 17, 2012 | Magistrate | Janice M. Stewart ||| 841 F.Supp.2d 1199 |||  |||  ||| May 29, 2012 |||  ||| Oregon |||  ||| August 6, 2012 ||| 283 ||| May 24, 2014 | the Department of Justice Civil Rights Division | the United States | nine-month | Oregon | ADA | Rehabilitation Act |||  ||| June 20, 2014 | Magistrate | Stewart ||| 2014 WL | 2807701 ||| September 8, 2015 | January 17, 2016 ||| 166 | 1180 ||| 1,115 | 1,926 ||| at least 4,900 | the state Department of Human Services ||| no later than July 1, 2022 ||| February 11, 2016 | 5,250,000.00 ||| 2016 | WL | 589684 ||| annual ||| two | annual | one | March 2, 2017 | one | March 23, 2018 ||| May 22, 2020 [SUMMARY] On January 25, 2012, this class action was brought by individuals with intellectual and developmental disabilities (I/DD) and the United Cerebral Palsy Association of Oregon and Southwest Washington, Inc. in the U.S. District Court for the District of Oregon. The plaintiffs claimed that the State of Oregon and its Offices of Developmental Disability Services and Vocational Rehabilitation Services, along with other state agencies, violated the Americans With Disabilities Act ("ADA") and the Rehabilitation Act by operating an employment services program that unnecessarily separated disabled participants from nondisabled participants. The plaintiffs claimed these segregated settings deprived members of the plaintiff class (more than 2,300 people in the state) of supported employment services, the opportunity to work alongside nondisabled persons, and the ability to compete for higher-paying jobs. They claimed the state's policy discriminated against them based on disability. The plaintiffs sought certification of their proposed class, declaratory relief, and a permanent injunction to limit unnecessary segregation in the defendants' employment services program and to provide an adequate array of integrated employment and supported employment services. 

On April 3, 2012, the defendants moved to dismiss the complaint, arguing that the plaintiffs were attempting to create "a new cause of action" by extending the ADA's integration mandate beyond the requirement to provide community and home-based services (which were designed to prevent unnecessary institutionalization) to also include employment services. The defendants argued that (1) employment claims were not covered by Title II of the ADA; (2) the integration mandate did not apply because a denial of employment services did not place any plaintiff at risk of institutionalization; (3) the plaintiffs' claims sought to require the defendants to provide a service that the state did not and could not provide; and (4) the plaintiffs' claims improperly imposed a certain standard of care on the state's provision of employment services. At the core of the defendants' argument was the notion that the integration mandate of the ADA applied only to a person's place of residency and not place of employment.

On April 20, 2012, the United States submitted a statement of interest regarding the motion to dismiss. It cited that contrary to defendant’s motion to dismiss, Title II of the ADA forms a clear and comprehensive mandate to end the segregation of persons with disabilities in virtually all aspects of American life.

On May 17, 2012, Magistrate Judge Janice M. Stewart held that the integration mandate applies equally to employment-related services and to services allowing persons to live outside institutions. 841 F.Supp.2d 1199. The court did, however, find that the plaintiffs sought "the forbidden remedy" of requiring defendants to provide an adequate level of employment services to enable plaintiffs to obtain a competitive job in their initial complaint. The court dismissed the complaint without prejudice and with leave to amend.  On May 29, 2012, the plaintiffs filed an amended complaint with changes made to correct errors identified by the court.  

The court then addressed the question of class certification. The plaintiffs sought to certify a class consisting of "all individuals in Oregon with intellectual or developmental disabilities who are in, or who have been referred to, sheltered workshops" and "who are qualified for supported employment services." The plaintiffs argued that the evidence needed to resolve the common questions of law and fact was the same for all class members. On August 6, 2012, the court granted class certification. 283 F.R.D. 587.

On May 24, 2014, the Department of Justice Civil Rights Division filed an intervenor complaint on behalf of the United States, which included evidence of a nine-month investigation into Oregon’s failure to comply with the ADA and Rehabilitation Act.

Some individual members of the class viewed sheltered work as equally valuable as integrated work and moved to intervene on the concern that their ability to choose sheltered work would be curtailed. But on June 20, 2014, Magistrate Judge Stewart denied the motion. 2014 WL 2807701.

On September 8, 2015, the parties submitted a proposed settlement agreement and on January 17, 2016, the court approved it. 166 F.Supp.3d 1180. In the settlement, the defendant committed to assisting 1,115 working-age individuals who receive or have received sheltered workshop services to obtain integrated employment in competitive-wage jobs and to reducing the number of adults with I/DD in sheltered workshops from 1,926 to no more than 1,530. The state also committed to end funding for sheltered workshop placements for youth newly eligible for state-funded employment, to provide at least 4,900 youth with employment services to help them access integrated employment, and to work with the state Department of Human Services in seeking financial incentives for providers to hire individuals with I/DD and in obtaining integrated employment. The parties agreed the settlement would terminate no later than July 1, 2022. 

On February 11, 2016, the court granted an award of $5,250,000.00 in attorney's fees to the plaintiffs. 2016 WL 589684. As part of the settlement, the state's efforts are being monitored by an independent reviewer who will issue annual reports until the settlement's termination date. Since the case settled, two annual reports have been filed, one on March 2, 2017 and one on March 23, 2018.

Because the settlement continues to be monitored and the plaintiffs may reopen litigation if defendants fail to comply, this case is ongoing as of May 22, 2020. 