Ball v. DeWine: Information and Updates

Last Updated: December 2019

This page contains information, updates, and resources related to Ball v. DeWine (formerly known as Ball v. Kasich), a lawsuit filed by Disability Rights Ohio in U.S. District Court for the Southern District of Ohio against the Governor of Ohio and other state officials on behalf of five private citizens and one organization for alleged noncompliance with the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and the Social Security Act. Details of this lawsuit, its purpose, its parties, and its potential effects can be found below. This page will be updated as new developments occur. Major case developments are listed in reverse-chronological order.

Updates At A Glance (Click Date to Jump to Section)

  • January 2020 - Parties propose revised settlement terms to address guardian intervenor concerns
  • December 2019 - Judge Asks for New ICF Language in Settlement
  • October 2019 - Parties in federal lawsuit reach tentative settlement
  • September 2018 - Guardians file new claims against State of Ohio, county boards, and DRO
  • March 2018 - Judge certifies class in Ball v. Kasich lawsuit
  • July 2017 - Court grants OACB's motion to intervene as defendant
  • March 2017 - Court denies most of State of Ohio defendants' motions to dismiss
  • January 2017 - Plaintiff's attorneys oppose OACB's motion to intervene as defendant
  • November 2016 - OACB files motion to intervene as defendant in Ball v. Kasich
  • June 2016 - State files separate motions to dismiss lawsuit
  • March 2016 - Disability Rights Ohio files lawsuit seeking class-action status against State of Ohio

 

January 2020: Parties propose revised settlement terms to address guardian intervenor concerns

On January 10, 2020, plaintiffs and state and county defendants in the Ball v. DeWine lawsuit filed a revised version of the case’s proposed settlement agreement to address the concerns of guardian intervenors raised at a fairness hearing in December.

All parties in the suit initially agreed to a tentative settlement agreement in October. At a mandatory settlement fairness hearing on December 17, however, a number of guardians of ICF residents raised objections to the agreement, claiming the tentative settlement did not do enough to protect ICFs and their residents.

In a good-faith effort to assuage guardian intervenor concerns and avoid a civil trial in Ball v. DeWine, plaintiffs (DRO et al) and state and county defendants (DODD and OACB) have jointly agreed to several changes to the settlement language. Download the new proposed settlement agreement. The new proposed settlement language does the following:

  • Affirms that the agreement is not intended to force or direct ICF residents to leave ICFs or otherwise remove the ICF option;
  • States that the agreement does not require people with developmental disabilities to accept a waiver as an alternative to ICF-based supports; and
  • Commits DODD to preserving the current ICF reimbursement rate through the fiscal biennium and states that the department will make all feasible efforts to maintain that rate through the end of FY2023.

The revised settlement proposal does not include a legal enforcement mechanism requested by the guardian intervenors that would give them oversight of the settlement’s implementation by allowing them to bring additional complaints related to the settlement before the court.

Updated January 10, 2020


December 2019: Judge asks for new ICF language in settlement

At a fairness hearing yesterday in Columbus, the federal judge in the Ball v. DeWine lawsuit said his approval of the tentative settlement agreement may be contingent on the addition of new language that would give the guardian intervenors an enforcement mechanism with which they can oversee the settlement's implementation.

After listening to several hours of in-person testimony from parents of ICF residents, Judge Edmund Sargus, chief district judge of the U.S. District Court for the Southern District of Ohio, gave parties 14 days to return to court with a revised settlement. Furthermore, the judge suggested that the new language:

Make explicit that it is not the settlement's intention to force or encourage people to leave ICFs; and
Allow family members of ICF residents to bring additional complaints related to the settlement before the court.

Counsel for the plaintiffs (DRO et al) and state defendants (including OACB) asked the court to approve the current agreement, and counsel for the guardian intervenors opposed. Additionally, 20 people asked to voice their objections to the court personally, and Judge Sargus permitted them to do so.

Updated December 17, 2019


October 2019: Parties in federal lawsuit reach tentative settlement

Note: In this and all following entries, the lawsuit will be referred to as Ball v. DeWine to reflect updated court filings.
 
Judge Edmund Sargus of the U.S. District Court for the Southern District of Ohio has taken the first step toward accepting a proposed settlement agreement between plaintiffs and defendants in the lawsuit Ball v. DeWine.

The proposed settlement now must be shared with the many members of the plaintiff class participating in the case for their review prior to being formalized by the court at a hearing scheduled for December 17, 2019. Download the proposed settlement agreement.
 
Under the proposed settlement agreement, the State of Ohio has agreed to undertake the following actions within the Ohio Department of Developmental Disabilities (DODD) to address plaintiffs’ concerns regarding access to community-integrated services:
  • Continue providing and expanding access to state-funded Individual Options (IO) waivers for people who choose a waiver after options or pre-admission counseling.
  • Continue providing programs for integrated, affordable housing and integrated employment and day services.
  • Expand options counseling and pre-admission counseling programs.
  • Continue peer-to-peer and family-to-family programs and exploratory community visits for people who have not yet made decisions o n whether to live in an ICF or a community-based service setting.
  • Continue follow-along visits for people after they have left ICFs.

Continue Reading

Updated October 18, 2019


September 2018: Guardians file new claims against State of Ohio, county boards, and DRO

On September 14, a group of parents and guardians representing people with developmental disabilities who reside in intermediate care facilities (ICFs) filed a motion in the ongoing Ball v. Kasich litigation asserting that other parties named in the lawsuit—including the state defendants, county boards of DD, and Disability Rights Ohio—have “acted in concert” to limit or remove ICFs as an option for people with developmental disabilities. Click here to read the filing.
 
OACB will file an answer to these claims in the coming weeks that will focus primarily on the statements specific to county boards of DD. In consultation with legal counsel, OACB has prepared a general FAQ document explaining the nature of the filing and the stated logic behind the guardians’ assertions.
 
Members with questions about this topic should feel free to contact OACB legal counsel directly at 216-861-0360 or via email at fhickman@hickman-lowder.com. Members who receive media inquiries related to this filing should refer reporters to Adam Herman (aherman@oacbdd.org) at 614-431-0616.
 

Updated September 26, 2018 


March 2018: Judge certifies class in Ball v. Kasich lawsuit

On March 30, the U.S. District Court for the Southern District of Ohio allowed for the certification of a plaintiff class in Ball v. Kasich, meaning the case can now move forward as a class-action lawsuit. In its decision, however, the court determined that the presiding judge—not the plaintiffs—should define the class.
 
The decision (click here to download—MemberConnect login required) states that in order for a person to be part of the class involved in the suit, he or she must be a Medicaid-eligible adult Ohio resident who—on or after March 31, 2016, is qualified for home- and community-based services and, after receiving options counseling, wants to receive community-based services.

The decision (click here to download) states that in order for a person to be part of the class involved in the suit, he or she must be a Medicaid-eligible adult Ohio resident who—on or after March 31, 2016, is qualified for home- and community-based services and, after receiving options counseling, wants to receive community-based services.

The class of people originally proposed by DRO would have included nearly all people with developmental disabilities in the state. After extensive briefing, the court limited the scope of the class to only those people eligible for and interested in receiving waiver-funded services after receiving options counseling. The court’s decision to limit the class was based in part on affidavits submitted by OACB legal counsel.

The next phase of the lawsuit is likely to be a lengthy period of information gathering and sharing. OACB legal counsel will continue to work to determine how the recent decision will impact the case and its potential reach. OACB will update members on new developments in future editions of the PolicyBrief. Members with questions about this topic should send their inquiries to drolegal@oacbdd.org.

Updated April 10, 2018 


July 2017: Court grants OACB's motion to intervene as defendant in Ball v. Kasich

The U.S. District Court for the Southern District of Ohio has granted OACB's motion to intervene in the case of Ball v. Kasich as a defendant. This will allow OACB to act on behalf of county boards of DD as a named party in future legal proceedings. The judge's decision to allow OACB to enter the case as a defendant will give county boards a seat at the negotiating table for conversations about the future of Ohio's DD service delivery system.

As stated in the motion to intervene filed in November, OACB's defendant status does not mean that the association or county boards agree with arguments made by any other parties in the case. The court granted OACB's motion to intervene based on its finding that county boards' interests in the case are sufficiently different from the state's to warrant the association becoming a party to the lawsuit.

As always, members with questions about the Ball v. Kasich lawsuit and OACB's role in it can send their inquiries to drolegal@oacbdd.org.

Click here to download an FAQ document about OACB's filing in the Ball v. Kasich lawsuit

Updated July 27, 2017
 


March 2017: Court denies most of state defendants' motions to dismiss Ball v. Kasich

On Thursday, March 23, 2017, Chief Judge Edmund A. Sargus, Jr. of the U.S. District Court for the Southern District of Ohio issued a ruling denying nearly all of the state defendants’ motions to dismiss the Ball v. Kasich lawsuit.  

The defendants, which include Gov. John Kasich and three state department directors who were named in their official capacity, had argued that the court could not hear the case because it did not have legal merit in several key areas.  Because the court disagreed with nearly all of the defendants’ motions, the case now moves forward to the next stage of the process: determining whether or not the case can proceed as a “class action” lawsuit on behalf of all people with developmental disabilities in the state.

Click here to download full analysis of the court’s decision by OACB legal counsel, including the reasons why the court declined to grant nearly all of the the state defendants’ motions to dismiss.

To download the court’s full decision, click here.

Updated March 28, 2017 


January 2017: Disability Rights Ohio opposes OACB's motion to intervene in Ball v. Kasich as defendant, OACB files response on behalf of county boards

On December 23, attorneys representing the plaintiffs (led by Disability Rights Ohio) filed a motion in the U.S. District Court for the Southern District of Ohio asking the judge to overrule OACB’s request to intervene as a defendant in Ball v. Kasich

The plaintiff’s attorneys make two main arguments against OACBDD’s right to intervention – (1) the DD Boards have the same interests as the state defendants and, in essence, are agents of the state defendants and (2) the state defendants will adequately represents the interests of all DD Boards.  

DRO tells the court that OACB’s major reasons for wanting to intervene – that county boards are largely responsible for funding the current system as well as implementing and monitoring any changes at the local level – do not set them apart enough from the state to be allowed to participate in the case. DRO argues that the interests asserted by OACB are merely economic in nature, comparing the interests to those of private providers in other cases which were seeking to ensure that the providers received adequate funding. DRO argued that OACB can “protect the economic interests of its members through a variety of means, including advocacy, lobbying and contractual negotiations with the state.” 

DRO also believes that county boards are “instrumentalities of the state agency defendants, not autonomous or independent actors.”  This means that DRO thinks OACB/county boards are wholly controlled by the state agencies and therefore the court should not view them as separate entities.  DRO goes on to list the ways that the state controls the activities of county boards, including administrative rules and policies as well as the structure of the state’s Medicaid system. In short, DRO argues that a county board’s role is “merely to act as an agent of the state,” and therefore should not have a separate seat at the table.

As would be expected, OACB does not share any of these views, and filed its formal response to Disability Rights Ohio’s motion reiterating the importance of having county boards of DD represented in the lawsuit on January 17. Click here to download OACB's formal response to the court.

A full analysis of DRO’s arguments, including how OACB has responded and what the next steps are in this case, can be downloaded by clicking here.

Click here to download an FAQ document about OACB's original motion to intervene in the Ball v. Kasich lawsuit

Updated January 26, 2017  


November 2016: OACB files motion to intervene as Defendant in Ball v. Kasich 

On November 29, 2016, the Ohio Association of County Boards of DD (OACB) filed a Motion to Intervene as Defendant in Ball v. Kasich, a proposed class-action lawsuit currently before the United States District Court for the Southern District of Ohio. The purpose of this motion is to request that the court permit OACB to formally join the lawsuit as a named party and to act in future proceedings as the single legal representative of Ohio’s 88 county boards of developmental disabilities.

This action was unanimously approved by the OACB Board of Trustees at its regular meeting on October 10, 2016. The board’s action was taken at the recommendation of a special committee the trustees had empaneled for this exclusive purpose. A copy of the filing can be downloaded at www.oacbdd.org/intervention. For information about this recent development, please read the Frequently Asked Questions linked below to learn more.

Click here to download an FAQ document about OACB's filing in the Ball v. Kasich lawsuit

Updated November 29, 2016 


June 2016: State of Ohio files three motions to dismiss DRO lawsuit 

On June 27, 2016, the Ohio Department of Developmental Disabilities (DODD) and the Ohio Department of Medicaid (ODM) jointly filed a motion to dismiss in the Ball v. Kasich lawsuit.  Governor Kasich filed a separate motion to dismiss later the same day. The remaining defendant, Opportunities for Ohioans with Disabilities, filed its motion to dismiss on May 9.

The defendants cite several reasons why they believe the lawsuit should not be permitted to continue. The state contends that past lawsuits have already settled the questions posed by Ball v. Kasich. A full summary, including legal definitions, timelines for next steps, and other information, has been assembled in the form of an FAQ document for OACB members and stakeholders. OACB will continue monitoring this lawsuit very closely and will notify members and stakeholders of future developments as they occur. 
 

Updated June 28, 2016 


March 2016: Disability Rights Ohio files class action lawsuit against state on integrated services

On March 31, 2016, Disability Rights Ohio (DRO) announced that it filed a lawsuit in U.S. federal court against the Governor of Ohio and other state officials on behalf of six individuals and one organization for alleged noncompliance of the Americans with Disabilities Act (ADA), Section 504, and Medicaid requirements.

This litigation has the potential to touch the lives of thousands of Ohioans with developmental disabilities and their families. As such, the Ohio Association of County Boards of DD (OACB) has prepared this document to explore the potential impacts of this litigation on various individuals and organizations in Ohio’s DD system.

Click here to download a general overview and frequently asked questions (FAQ) regarding the DRO lawsuit

DRO claims that the state government has not done enough to prevent Ohioans with developmental disabilities (DD) from being unnecessarily admitted to care facilities that DRO considers to be institutions – places in which people with disabilities live, work, and receive care while separated from the wider community. Click here to read DRO's fact sheet about the lawsuit.

The suit is primarily concerned with intermediate care facilities (ICFs) that have eight or more residents. ICFs are live-in care centers for people with developmental disabilities. DRO’s stated intention is to give residents of these facilities more choices in when and how to receive state-funded residential, employment, and other day services.

Updated April 12, 2016