in institutional or other segregated settings.” The Department goes on to “currently clarify the types of circumstances under which a plaintiff could sufficient “show risk of institutionalization to make out an violation,” including a Olmstead “if public entity’s failure to provide community services or its cut to such services will likely cause a decline in health, safety, or welfare that would lead to the individual’s eventual placement in an institution.” at 5. Id. Consistent with the Department of Justice’s guidance, courts certifying an risk” have required that the probability of institutionalization be serious “at (and hence foreseeable). Consistent with standing and ripeness principles, it is appropriate for courts to include in an risk” class only individuals who face a “at serious or substantial risk of institutionalization. In addition, courts have required that proposed class members’ be connected to an allegedly discriminatory “risk” systemic policy or practice. F.R.D. at 602 (approving risk” See Lane, 283 “at class members where risk was tied to the defendants’ systemic policies and practices); 293 F.R.D. at 265-6 (certifying a class that included Kenneth R, individuals placed at risk by defendants’ systemic failure to provide sufficient community service options). When these conditions are met, a class of individuals risk” of institutionalization satisfies the requirements of Rule 23. “at D. The Plaintiffs’ Proposed Risk” Class. “At
“currently in institutional or other segregated settings.” The Department goes on to clarify the types of circumstances under which a plaintiff could “show sufficient risk of institutionalization to make out an Olmstead violation,” including “if a public entity’s failure to provide community services or its cut to such services will likely cause a decline in health, safety, or welfare that would lead to the individual’s eventual placement in an institution.” Id. at 5. Consistent with the Department of Justice’s guidance, courts certifying an “at risk” have required that the probability of institutionalization be serious (and hence foreseeable). Consistent with standing and ripeness principles, it is appropriate for courts to include in an “at risk” class only individuals who face a serious or substantial risk of institutionalization. In addition, courts have required that proposed class members’ “risk” be connected to an allegedly discriminatory systemic policy or practice. See Lane, 283 F.R.D. at 602 (approving “at risk” class members where risk was tied to the defendants’ systemic policies and practices); Kenneth R, 293 F.R.D. at 265-6 (certifying a class that included individuals placed at risk by defendants’ systemic failure to provide sufficient community service options). When these conditions are met, a class of individuals “at risk” of institutionalization satisfies the requirements of Rule 23. D. The Plaintiffs’ Proposed “At Risk” Class.