          United States Court of Appeals
                      For the First Circuit


No. 08-1874

 ERIC VOSS, LAURA THIBAULT, FREDERICK CARTER, CHRISTOPHER PALEO,
ANGEL AGOSTA, KIMBERLY LAWRENCE, KELLEY SCHNAIR, ROBERT BUCKMAN,
NICOLE KEATING, MUSA NURISLAM, CHERYL COURTNEY, LENNIE LEBLANC,
LAURA PUTTERMAN, PEDRO CAVALLARO, DAVID BRAGA, AMANDA WATTS, ERIN
POULIN, SHERI BELVILLE, ALISSA CORMIER, BELEN GARCIA-SIMMONS, JESSE
STEWART, MARK CHAPMAN, UCHENNA OBI, STEFANIE PETRIE, LINDA KLAIBER,
JEANNETTE MCGINNIS, LAURA PROUTY, JILLIAN HUME, ANDRE AMATO, SHARIA
PITTS, PETER LIDDY, JOSHUA GREANEY, HOMER SWAIN, ANDREW PATTERSON,
PATRICK SHEEHAN, ANDREW CHAN, DYLAN KEENE, ABRAHAM CARRO, WILLIAM
CAMPBELL, POLO DEJESUS, EMILY SAM, ZACHARY FOSTER, WENDELL ROQUE,

                     Plaintiffs, Appellants,

                                v.

   LORETTA ROLLAND, MARGARET PINETTE, TERRY NEWTON, BRUCE AMES,
FREDERICK   COOPER,   LESLIE   FRANCIS,   TIMOTHY   RAYMOND,   ARC
MASSACHUSETTS, and STAVROS CENTER FOR INDEPENDENT LIVING,

                      Plaintiffs, Appellees,

                                v.

DEVAL PATRICK, JAY GONZALEZ, JUDYANN BIGBY, BRUCE M. BULLEN, ELIN
M. HOWE, CHARLES CARR, JOHN AUERBACH, and TERESA O'HARE, in their
                      official capacities,*

                      Defendants, Appellees.


         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Kenneth P. Nieman, U.S. Magistrate Judge]




     *
          Pursuant to Fed. R. App. P. 43(c)(2), several defendants
have been substituted for their predecessors in office.
                             Before

                       Lynch, Chief Judge,
                Selya and Stahl, Circuit Judges.



     Stephen M. Sheehy with whom Anthony S. Fiotto, Jr., Michelle
R. Gonnam, Christiaan H. Highsmith, and Goodwin Proctor, LLP were
on brief for plaintiffs-appellants.
     Steven J. Schwartz with whom Cathy E. Costanzo, Center for
Public Representation, Jeffrey S. Follett, Catherine H. Wicker,
Foley Hoag LLP, Frank J. Laski, Mental Health Legal Advisors
Committee, Matthew Engel, and Disability Law Center were on brief
for plaintiffs-appellees.
     Kenneth W. Salinger, Assistant Attorney General, with whom
Martha Coakley, Attorney General, was on brief for defendants-
appellees.



                        January 19, 2010
            LYNCH, Chief Judge. This appeal by a small number of the

plaintiff    class    challenges    the     2008    approval   of     an   amended

settlement agreement between the remaining plaintiff class members

and the state in a longstanding class action.                   See Rolland v.

Patrick (Rolland XI), 562 F. Supp. 2d 176 (D. Mass. 2008).                     The

original suit, brought in 1998 by developmentally disabled nursing

home residents on behalf of over 1000 class members, alleged that

Massachusetts did not provide appropriate treatments in appropriate

settings to them as federal law required.             Here, 43 class members

at one nursing facility object to the 2008 amended settlement under

which   many   class    members    will     be   transitioned    to    community

placements.     They fear it will lead to them being forced out of

their particular nursing facility, where they prefer to stay.

            The 2008 settlement resulted from the state's inability

to comply fully with an earlier settlement, reached in 2000. Under

the 2000 settlement, the state successfully moved many class

members   to   the    community    but    failed     to   provide     specialized

services, including "active treatment," to those remaining in

nursing homes.      See Rolland v. Cellucci (Rolland IV), 138 F. Supp.

2d 110, 120 (D. Mass. 2001).         The parties negotiated the amended

settlement     in    2008   to   lessen   the      state's   active    treatment

obligations and, instead, move most class members remaining in

nursing homes to the community.



                                      -3-
          The   appealing   Groton   parents,1   who   are   parents   and

guardians, challenged the amended settlement in May 2008 on behalf

of residents of the Seven Hills Pediatric Center (Seven Hills) in

Groton, Massachusetts.   They say their children and wards are more

severely disabled than the rest of the plaintiff class and would

not benefit from leaving Seven Hills.        They objected that the

amended settlement was unfair and sought decertification of the

plaintiff class, which the district court had certified in 1999.

          The district court found that the amended settlement was

fair, reasonable, and adequate ("fairness"), Rolland XI, 562 F.

Supp. 2d at 178, and denied the motion to decertify, Rolland v.

Patrick (Rolland XII), No. 98-30208-KPN, 2008 WL 4104488 (D. Mass.

Aug. 19, 2008) (order denying motion to decertify).2           The court

entered Rule 54(b) judgment on the Groton parents' objections to

the settlement's fairness.    Rolland v. Patrick (Rolland XIII), No.

98-3028-KPN (D. Mass. Nov. 20, 2009).

          On appeal the Groton parents untimely attack the 1999

class certification order.   More significantly, they challenge the


     1
          To avoid confusion, we will call the appellants the
"Groton parents" and reserve the term "plaintiffs" for the
plaintiff class, the appellees in this case.
     2
          The parties agreed that a magistrate judge would handle
all proceedings, Rolland v. Cellucci (Rolland I), No. 98-3028-KPN
(D. Mass. Dec. 3, 1998) (order keeping case before magistrate
judge), so we refer to the magistrate judge as the district court.
The magistrate judge has issued a number of orders over the years
and is very familiar with the case. See Rolland XI, 562 F. Supp.
2d at 177 n.1 (listing decisions).

                                 -4-
approval of the settlement, objecting that it does not adequately

protect class members who should not be transferred from their

nursing homes to the community.    We affirm.

                                  I.

            We review for abuse of discretion the district court's

two decisions: whether to certify or decertify the class and

whether to approve the amended settlement.          García-Ruberia v.

Calderón, 570 F.3d 443, 460 (1st Cir. 2009); McKenna v. First

Horizon Home Loan Corp., 475 F.3d 418, 422 (1st Cir. 2007); City

P'ship Co. v. Atl. Acquisition Ltd. P'ship, 100 F.3d 1041, 1043

(1st Cir. 2003).      We review underlying legal issues de novo.

McKenna, 475 F.3d at 422.

            The parties litigated and settled this case against the

backdrop of a series of federal statutes3 designed to move disabled

individuals from institutions and integrate them into society. The

class plaintiffs sued under three statutes that were passed as part

of   this   "deinstitutionalization"    or   "integration"   movement4:


     3
          See, e.g., Rehabilitation Act of 1973, Pub. L. No. 93-
112, 87 Stat. 355 (codified as amended in scattered sections of 29
U.S.C.); Education of All Handicapped Children Act of 1975, Pub. L.
No. 94-142, 89 Stat. 773 (codified as amended at 20 U.S.C. §§ 1405-
06, 1415-20); Developmental Disabilities Assistance and Bill of
Rights Act, Pub. L. No. 95-602, tit. V, 92 Stat. 2955 (1978)
(codified as amended in scattered sections of 42 U.S.C.); Fair
Housing Amendments Act of 1988, Pub. L. No. 100-430, 102 Stat. 1619
(codified as amended at 42 U.S.C. §§ 3601-19, 3631).
     4
          The integration movement argued that the practice in the
mid-twentieth century of confining the disabled in institutions was
unnecessary and often harmful.     It believed the best and most

                                  -5-
Medicaid, the Nursing Home Reform Amendments (NHRA), and the

Americans with Disabilities Act (ADA).

           Although Medicaid5 originally funded mostly institutional

services   for   disabled   individuals,6   Congress   added   optional

programs that encouraged states to provide community-based Medicaid

services to disabled individuals.      See, e.g., Bryson v. Shumway,

308 F.3d 79, 82 (1st Cir. 2002).       Massachusetts participates in

several community programs.

           In 1987 Congress amended Medicaid by enacting the NHRA.

It had found that many states were reducing crowding at state

institutions by transferring mentally disabled people to geriatric

nursing facilities, which were poorly equipped to care for them.

H.R. Rep. No. 100-391(I), at 459 (1987), as reprinted in 1987

U.S.C.C.A.N. 2313-1, 2313-279.     The NHRA limits states to using


dignified setting for the disabled was their communities. See,
e.g., J. tenBroek & F.W. Matson, The Disabled and the Law of
Welfare, 54 Cal. L. Rev. 809, 816 (1966); see also Ricci v. Okin,
823 F. Supp. 984, 985 (D. Mass. 1993) (reporting the "deplorable
conditions" the court found when visiting state institutions in the
1970s).
     5
          Medicaid, created in 1965, uses state and federal funds
to provide medical services to needy individuals. Rio Grande Cmty.
Health Ctr., Inc. v. Rullan, 397 F.3d 56, 61 (1st Cir. 2005).
States can choose whether to participate in Medicaid and some
optional programs. See Bryson v. Shumway, 308 F.3d 79, 81-82 (1st
Cir. 2002).   Once states do, they must meet applicable federal
requirements. Rio Grande Cmty. Health Ctr., 397 F.3d at 61.
     6
          See J. Karger, Note, "Don't Tread on the ADA": Olmstead
v. L.C. ex rel. Zimring and the Future of Community Integration for
Individuals with Mental Disabilities, 40 B. C. L. Rev. 1221, 1229
(1999).

                                 -6-
Medicare funding for nursing home residents found, through a

screening process, to need the level of care nursing homes provide.

See 42 U.S.C. § 1396r(e)(7)(D)(ii).

          That screening process is called a Preadmission Screening

and Annual Resident Review (PASARR), and it requires states to

assess whether "mentally retarded"7 individuals (1) need the level

of care nursing homes provide and (2) require specialized services.

Id. § 1396r(e)(7)(B)(ii).     States had to review all mentally

retarded nursing home residents when the NHRA was enacted and still

must review new admissions and residents whose conditions change

significantly.8 Id. § 1396r(e)(7)(B)(ii)-(iii). Generally nursing

homes may not admit or must discharge anyone found not to need

their services.   See id. §§ 1396r(b)(3)(F)(ii), (e)(7)(C)-(D).

          Title II of the ADA prohibits public entities from

excluding disabled individuals from entities' "services, programs,

or activities."   42 U.S.C. § 12132.   This "integration mandate"

requires states to place people in the "most integrated setting


     7
          The NHRA uses the term "mentally retarded" to refer to
individuals who have mental retardation or "a related condition" as
defined in another provision. 42 U.S.C. § 1396r(e)(7)(G)(ii). The
plaintiffs use the word "developmentally disabled" to reflect more
precisely who the NHRA and similar provisions in this litigation
cover.   We generally use "developmentally disabled" except to
accurately represent the text of the NHRA.
     8
          Originally the NHRA required annual reviews of residents.
Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-203,
tit. IV, 101 Stat. at 1330-198. Congress amended the statute to
only require PASARR review if a resident's condition changes. See
42 U.S.C. § 1396r(e)(7)(B)(iii).

                                -7-
appropriate," 28 C.F.R. § 35.130(d), often the community.                    See

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597-602 (1999).

                                       II.

A.          Historical Context

            To provide context for the 2008 settlement, we briefly

review the history of the litigation.            Greater detail may be found

in the district court's opinions.

            The original suit, brought under 42 U.S.C. § 1983 and

Title II of the ADA, claimed Massachusetts was violating the ADA,

several Medicaid provisions, and the NHRA by illegally limiting

access    to    community   programs      and   ignoring   PASARR     findings.

Consequently, the state was allegedly confining many individuals to

nursing    homes    who   belonged   in      community   placements    and   not

providing them with specialized services while in nursing homes.

The district court certified the plaintiff class in 1999.               Rolland

v. Cellucci (Rolland II), No. 98-30208-KPN, 1999 WL 34815562, at

*1-2 (D. Mass. Feb. 2, 1999) (order certifying class).9

            In 2000, the court approved a settlement between the

parties.       Rolland v. Cellucci (Rolland III), 191 F.R.D. 3, 15-16

(D. Mass. 2000).      In the 2000 settlement the state agreed to place



     9
          The court certified a single class of "all adults with
mental retardation and other developmental disabilities in
Massachusetts who resided in nursing facilities on or after October
29, 1998, or who are or should be screened for admission to nursing
facilities pursuant to 42 U.S.C. § 1396r(e)(7) and 42 C.F.R 483.112
et seq." Rolland II, 1999 WL 34815562, at *1-2.

                                       -8-
many class members in appropriate placements, divert people who

would have been admitted to nursing homes to community placements,

and provide class members with specialized services.              Id. at 7.

The state was not required to provide community placements to

objecting class members.      Id.

          Over the next several years, the state satisfied its

community-placement     and   diversion   obligations,    see   Rolland    v.

Patrick (Rolland VIII), No. 98-30208-KPN, 2007 WL 184626, at *1 (D.

Mass. Jan. 16, 2007) (order denying noncompliance motion).                 It

placed about 1,000 class members in the community.               But as all

parties acknowledge, it largely failed to provide specialized

services to about 800 class members who remained in nursing homes.

          The district court held, and this court affirmed, that

the 2000 agreement's specialized-services provisions required the

state to provide "active treatment" to nursing home residents.

Rolland v. Romney (Rolland VI), 318 F.3d 42, 57-58 (1st Cir. 2003);

Rolland IV, 138 F. Supp. 2d at 115-16; Rolland v. Cellucci (Rolland

V), 198 F. Supp. 2d 25, 28-35, 46 (D. Mass. 2002).              Designed to

cultivate independence in the developmentally disabled, "active

treatment"   is   the   federal   standard   of   care   for   residents   in

Intermediate Care Facilities for Persons with Mental Retardation

(ICF/MRs).   See 42 C.F.R. § 483.440(a)(1).        In 2007, the court and

the parties agreed on a rigorous standard for active treatment

based on federal ICF/MR regulations.              See Rolland v. Patrick


                                    -9-
(Rolland X), No. 98-30208-KPN (D. Mass. Aug. 2, 2007) (order

adopting revised active treatment standards); Rolland v. Patrick

(Rolland IX), 483 F. Supp. 2d 107, 117-18 (D. Mass. 2007).

                The court also ordered the state to better coordinate

with nursing home staff to ensure class members received active

treatment in all settings.           Rolland V, 198 F. Supp. 2d at 36-37,

46.   It mandated what came to be called Rolland Integrated Service

Plans (RISPs) for class members, which were "coherent, integrated

treatment plan[s] which [would] guide[] [class members'] services

across all settings."        Id.10

                For the state, these federal active treatment standards

were difficult to coordinate and expensive, especially because

class members were scattered in nursing homes across the state.

The court found the state was not complying with its settlement

obligations and with the court's orders four times between 2000 and

2007.        See Rolland IX, 483 F. Supp. 2d at 117-18; Rolland v. Romney

(Rolland VII), 273 F. Supp. 2d 140, 143 (D. Mass. 2003); Rolland V,

198 F. Supp. 2d at 36; Rolland IV, 138 F. Supp. 2d at 118, 120-21.




        10
          RISPs act as Rolland class members' individual service
plans (ISPs), which state officials generally must develop for
developmentally disabled individuals.    See 115 Mass. Code Regs.
6.20. ISPs identify physical, developmental, and social goals for
the person and what services the state will provide to help the
individual meet those goals.    Id. 6.23(4).    An ISP team, which
includes state service coordinators, individuals, their families,
and their service providers, reviews these plans at least annually.
Id. 6.21, 6.24.

                                       -10-
              In   January    2008,   a   court   monitor,      whom   the      court

appointed in 2007, Rolland IX, 483 F. Supp. 2d at 119, also

determined that the state was largely failing to provide active

treatment to class members in nursing homes.11               She concluded that

many nursing homes were not equipped to provide active treatment,

and   class    members   in    those      homes   should   be    moved     to     more

appropriate settings.

B.            The 2008 Settlement

              The state and the plaintiffs negotiated a new settlement

to reduce the state's active-treatment burden in 2008. In the 2008

settlement, the state agreed to move 640 of the 800 or so class

members remaining in nursing homes to community placements over

four years, based on preliminary assessments of the number of class

members who could live in the community.             In exchange, only those

not moved to the community would receive "active treatment" at the

nursing    home.      Class   members     identified   for      transfer     to   the

community would receive any specialized services they were already

receiving and some additional community-based services in lieu of

active treatment.

              This appeal primarily concerns the agreement's process

for identifying class members for community placements.                      As the

agreement required, staff of the Department of Mental Retardation


      11
          Among the 35 class members she surveyed, she found 94
percent did not receive active treatment as the court had defined
it.

                                       -11-
(DMR)12 initially placed 666 people on a Rolland Community Placement

List (the List) who they believed could benefit from community

placement. DMR staff also identified 39 class members who were too

medically fragile to move and 53 who should not be moved because of

personal circumstances.

            The agreement allowed DMR to remove people from the List

whose condition changed, making community placement inappropriate.

Anticipating that many new class members would be admitted to

nursing homes, the agreement also permitted DMR to add up to 160

new class members to the List and substitute some new admissions

for class members who died or were removed from the List.

            The agreement provided DMR could move a List member to

the community if it "determine[d], through the PASARR process,

that" the person could "be safely served in the community, and that

appropriate community services are, or will soon be, available for

that individual."    It gave class members no express right to veto

transfer.    The settlement agreement reserved all other rights,

including appeals rights, of parties and nonparties.        It also

required the parties to notify class members and educate them about

the agreement before final approval.

            After a hearing, the district court granted preliminary

approval of the amended settlement on April 14, 2008.    Responding



     12
          After the settlement, DMR's name was changed to the
Department of Developmental Services.

                                -12-
to concerns the court had expressed during the preliminary-approval

process, the parties fleshed out, in a Joint Plan for Transition

Services (the Joint Plan), how the state would conduct "transition

planning."   Specifically, the Joint Plan, which was part of the

settlement agreement, outlined how the state would decide during

"transition planning" whether "appropriate community services and

supports" were available in the community for List members and what

specialized services they should receive while awaiting transfer.

          The Joint Plan required coordinators or case managers13

to propose a detailed plan for moving any List member to the

community in a twenty-nine-page planning sheet.14   On that sheet,

coordinators and a registered nurse would first describe class

members' lifestyle, abilities, needs, and medical histories.   They

would compile this information based on clinical assessments and

prior work with class members and their families.     Coordinators

would review that proposal with RISP team members, who include



     13
           A service coordinator is a DMR staff member who
supervises   state-provided   services    for   mentally   retarded
individuals. A case manager is the staff member of a University of
Massachusetts program who coordinates services for individuals with
other developmental disabilities. See Rolland V, 198 F. Supp. 2d
at 43, 46. We use "coordinator" to refer to both positions.
     14
          The planning sheet required coordinators to plot every
aspect of a proposed transition into the community. For example,
it asked what services and supports the individual would need,
where the person would live, and where the person would receive
services. It also asked how the person's financial, health-and-
safety, equipment, and medical needs would be met in the new
setting.

                               -13-
class members, their families, representatives from their nursing

homes, DMR clinical and professional staff, and relevant clinical

professionals.     State officials would review the RISP team's plan.

C.         The Groton Parents' Objections to the Settlement

           On May 12, 2008, the Groton parents filed a motion

objecting to the settlement and to class certification, after the

plaintiffs presented the proposed settlement at a meeting at Seven

Hills.   On May 20, they filed a motion to decertify the class.         Of

the 800 class members affected by the amended settlement, these 43

Seven Hills residents were the only objectors.

           Seven    Hills   is   a   pediatric   nursing   facility   that

specializes in caring for developmentally delayed children and

young adults with significant medical problems. The Groton parents

argued that the differences between their children and the class

representatives made class certification improper and made the

class representatives inadequate.           They also sought a provision

giving them the right to veto a transition decision, as the 2000

settlement had done.

           The court held a fairness hearing on May 22, 2008, on the

2008 amended agreement.     The plaintiffs and the state argued that

the agreement offered a new chance for most of the rest of the

class to be placed in the community and better used the state's




                                     -14-
limited resources.15      They insisted that class members had no right

to reject community placement, but they assured the court that the

state would not move any class members unless it found them

appropriate placements.

          In support, the state DMR commissioner explained how DMR

would decide whether to move class members to the community.         She

emphasized   that   the    List   was   tentative.   Through   transition

planning DMR would consider every aspect of a possible move,

including whether the move would be safe and whether it would match

the class member's needs and preferences.            She said the state

wanted to use that process to work with families before anyone

eliminated community placement as an option; in her experience,

many families who initially resisted community placement eventually

found it very satisfactory.

          One class member and two relatives of class members

testified about their positive experiences with community services.

But four Groton parents expressed concern that community settings

were inadequate, described the high quality of care at Seven Hills,

and asked for authority to decide the best placement for their

children and wards.

          Counsel for the state also clarified that the state would

not move class members "over their objection, if efforts to come up


     15
          Most of the 92 class members not currently on the List
lived in three pediatric facilities; the state believed it could
afford to provide and coordinate active treatment for this group.

                                    -15-
with the right individualized placement and to work with family

members or guardians regarding the merits of the move prove to be

unsuccessful." Counsel agreed with the court's assessment that the

state was reserving the right, in "extreme" cases, to decide that

community placement is best for a class member if the person's

family was unreasonable.

          The district court approved the settlement as fair,

reasonable, and adequate at the hearing and explained its reasoning

in an order issued on June 16, 2008.      Rolland XI, 562 F. Supp. 2d

176.   In a separate decision, dated August 19, 2008, the court

denied the Groton parents' motion to decertify the class.      Rolland

XII, 2008 WL 4104488, at *1.      We discuss the court's findings and

reasoning in our discussion below.

          In light of the entry of the Rule 54(b) judgment, the

parties agree we have appellate jurisdiction over the issues

regarding the settlement's fairness; they disagree whether we have

jurisdiction over the other issues the Groton parents raise.

                                  III.

A.        Scope of the Appeal

          The   only   judgment    over   which   we   have   appellate

jurisdiction, for various reasons, is the Rule 54(b) judgment of

the district court as to the fairness of the class settlement.      We

do not reach the Groton parents' arguments that the district court

improperly certified the class or denied class decertificaiton.


                                  -16-
            The class was certified in 1999, but the Groton parents

did not then appeal within ten days16 after the class certification

order, as they could have done under Rule 23(f).            See Fed. R. Civ.

P. 23(f).    Nor did they for the next decade seek entry of a Rule

54(b) order allowing them to appeal the class's certification.

They try to excuse this failure by arguing that they never received

notice of the litigation or the class and that, in any event, the

district court had some obligation to monitor the defined class.

On these facts, these excuses are unavailing.17

            The Groton parents did move to decertify the class.            The

district    court   expressly   found   that   they   had    notice   of   the


     16
          Rule 23(f) now gives parties fourteen days to appeal.
See Fed. R. Civ. P. 23(f).
     17
          It is true that, "[e]ven after a certification order is
entered, the judge remains free to modify it in light of subsequent
developments in the litigation." Gen. Tel. Co. of Sw. v. Falcon,
457 U.S. 147, 160 (1982); see also Fed. R. Civ. P. 23(c)(1)(C).
That rule does not modify Rule 23(f)'s filing deadline for
interlocutory review of a certification or decertification order.
     The Groton parents try to rely, first, on Amchem Products,
Inc. v. Windsor, 521 U.S. 591 (1997). That case discussed courts'
obligations when reviewing class certification for settlement only
and not for litigation. Id. at 620. It does not apply.
     They also cannot rely on Stephenson v. Dow Chem. Co., 273 F.3d
249 (2d Cir. 2001), vacated in part on other grounds, 539 U.S. 111
(2003). In Stephenson the class members suffered exposure to Agent
Orange; the individuals collaterally attacking the settlement had
not become ill from exposure until after the settlement was
approved and its funds disbursed. Id. at 260-61. The court held
that because they did not know they suffered injury from exposure
when the case concluded, they lacked notice and adequate
representation. Id. Binding them to the settlement through res
judicata would violate due process. Id. The Groton parents are
not challenging this settlement after it terminated; indeed the
district court let them object to class certification.

                                   -17-
settlement and heard their objections to the class.    Rolland XII,

2008 WL 4104488, at *6.    Significantly, they failed to file a

notice of an appeal from that order.   That dooms their attempt to

raise the class certification issue before us.18

B.        Fairness, Reasonableness, and Adequacy of the Settlement

          The heart of this appeal is a challenge to the district

court's approval of the amended settlement.    District courts may

only approve class action settlements that are fair, reasonable,

and adequate.   City P'ship, 100 F.3d at 1043.     They enjoy great

discretion to "balance [a settlement's] benefits and costs" and

apply this general standard.   Nat'l Ass'n of Chain Drug Stores v.

New England Carpenters Ass'n, 582 F.3d 30, 45 (1st Cir. 2009).

          As we understand their briefs, the Groton parents raise

two objections to the proposed settlement.   First, they claim they

lacked timely notice of the settlement. Second, they urge that the

settlement is unfair because it does not give the Groton parents

power to refuse community placement for their children and could

force their children to leave Seven Hills, against their parents'

wishes or view of their children's best interests.




     18
          On appeal the Groton parents advance an entirely
frivolous standing argument, purportedly based on Article III, not
raised in the trial court and not within the scope of our
interlocutory jurisdiction. There is simply no question that the
certified class met all Article III requirements.

                               -18-
1.           Notice

             The Groton plaintiffs do not dispute that they eventually

learned about the settlement, but they contend that notice was

tardy.   They point out they were notified of the settlement after

it was negotiated and after DMR had created the List.               With earlier

notice they say they could have negotiated for a provision granting

them the right to refuse community placement in the settlement and

consulted with DMR about their children's placement on or absence

from the List.

             In    its     opinion    denying     class    decertification,     the

district court found that they had adequate notice of the proposed

settlement; indeed, plaintiffs' counsel personally explained the

agreement to Groton parents at Seven Hills on May 6, 2008.                 Rolland

XII, 2008 WL 4104488, at *6.                 This conclusion was not clearly

erroneous, and the district court did not abuse its discretion by

rejecting this notice argument as an attack on the settlement.                    It

gave   the   Groton        parents    a   full    and   fair   hearing   on    their

objections.       The Groton parents also cite no authority saying they

were   entitled       to    participate      in   settlement    negotiations,     a

questionable       proposition       given   Rule   23's   provision     for   class

counsel.     See Fed. R. Civ. P. 23(g)(4).

2.           Method for Placing Class Members in the Community

             At bottom, the Groton parents contend the settlement is

unfair because it does not adequately protect class members from


                                          -19-
being forced to move to community placements.   Their concerns are

threefold. First, they say the settlement creates a final List for

transfer and does not require the state to assess class members

individually or consult with their families. Second, they fear the

settlement creates a "quota" for community placements, requiring

the state to transfer class members even if doing so is unwise.

Third, they argue that Olmstead and a grandfather provision in the

NHRA, 42 U.S.C. § 1396r(e)(7)(C)(i), give them a right to refuse

community placement and the settlement is flawed because it does

not expressly protect this right.

          The district court did not abuse its discretion by

finding the agreement was fair despite these objections.       The

Groton parents misunderstand key aspects of the agreement that, in

fact, sufficiently protect class members.

          In part their reading is flawed because they overlook the

scope of the material that the court appropriately reviewed and

relied on to approve the settlement and that we may consider on

appeal. That material includes the amended Settlement Agreement on

Active Treatment, the Joint Plan that further elucidated the

procedures to be followed under the agreement, relevant federal and

state regulations, and representations that state officials made




                               -20-
about how they understood their obligations.            See Rolland XI, 562

F. Supp. 2d at 178-79, 180-81, 183-84, 185 n.4.19

a.          Finality of the List

            The Groton parents urge us to accept their interpretation

of the agreement: that the List is final and the state will conduct

no further individualized review of class members.               The district

court reached, and the record supports, two conclusions that

undermine the Groton parents' reading of the agreement.

            First, the List reflects a preliminary but not final

determination that certain class members may be appropriate for

community placement and transition planning is warranted.              Id. at

183. DMR will conduct individualized evaluations during transition

planning and consider the wishes of class members' families.              Id.

at 180, 183-84.      It will only recommend community placement if it

determines that all of a class member's needs, including medical

needs,    can   be   met    in   an   appropriately   designed   and   staffed

community setting.         Id. at 180.




     19
          We review the evidence presented during fairness hearings
when determining whether a district court abused its discretion by
approving a settlement. See, e.g., Dikeman v. Progressive Exp.
Ins. Co., 312 F. App'x 168, 171 (11th Cir. 2008) (affirming the
district court in part on "the testimony and evidence presented at
the fairness hearing"); United Auto., Aerospace, and Agric. Workers
of Am. v. General Motors Corp., 497 F.3d 615, 636 (7th Cir. 2007)
(reviewing "live testimony" from a fairness hearing); Walker v.
City of Mesquite, 858 F.3d 1071, 1072-73 (5th Cir. 1988) (noting
the district court considered "oral testimony and documentary
exhibits").

                                       -21-
             The settlement limits when DMR may transfer List members.

DMR must "determine[], through the PASARR process, that a class

member [on the List] can be safely served in the community, and

that appropriate community services and supports are, or will soon

be,    available."       During   PASARRs,     the   state   assesses,   in

consultation with class members and their families, 42 C.F.R.

§ 483.128(c)(3), whether a nursing home, community setting, or

another placement is best for each individual.         Id. § 483.132.    It

must decide by reviewing an individual's physical and mental health

and ability to perform daily tasks.        Id. § 483.132(c).

             If the state concludes a community placement is the best

setting, as the DMR commissioner and the state's counsel explained,

it    will   then   determine   whether   an   appropriate   placement   is

available during transition planning.          Under the Joint Plan, the

state must review class members' personal and medical needs and

plan, in careful detail, transition to a "safe" and "appropriate"

community setting, as the settlement requires.          Coordinators must

review this plan with RISP team members, including family members

and clinical professionals.       The district court could accept, as

the DMR coordinator and the state's counsel requested, that the

state needs time to work with families during this process before




                                   -22-
making     a   final   decision    about    community    placement    for   List

members.20

               Second, the district court found residents had appeal

rights from a decision by the state contrary to the wishes of a

parent or guardian, which the agreement did not limit. Rolland XI,

562 F. Supp. 2d at 184.       The settlement reserves any other legal

rights class members have; the parties agree this clause preserves

class members' appellate rights.21

               As the parties agree, the NHRA allows anyone adversely

affected by a PASARR determination to appeal through a state

process.       42 U.S.C. § 1396r(e)(7)(F); 42 C.F.R. § 431.220(a)(4);

id.   §    483.204(a)(2).         State    regulations   also   let   Medicaid

beneficiaries      appeal   decisions      by   the   state   Medicaid   agency

"regarding the scope and amount of assistance (including, but not

limited to, level-of-care determinations)," 130 Mass. Code. Regs.

610.032(A)(5), and imposing "any condition . . . for assistance or

receipt of assistance that is not authorized by federal or state

law or regulations," id. 610.032(A)(7).




      20
          During transition planning the state will also consider
what enhanced specialized services List members should receive and
incorporate that plan into their RISPs. Though focused on services
and not placement, the RISP process is another time the state will
review class members' needs with them and their families.
      21
          The settlement also expressly creates some appellate
rights not relevant to the Groton parents' concerns.

                                      -23-
            Class     members          may   appeal    PASARR      and    Medicaid

determinations      in     the    state's    administrative       "fair   hearing"

process.    130 Mass. Code Regs. 456.412(B); id. 610.032(A).                   The

fair hearing involves an evidentiary hearing before an impartial

agency officer who issues a final, written decision.                      See id.

610.012-.086.       Some cases may receive a rehearing.             Id. 610.091.

Parties may seek judicial review in Massachusetts state court. Id.

610.092.

b.          Whether the Settlement Creates a Required Quota for
            Placement

            The Groton parents contend the agreement could force the

state to improperly transfer class members who belong in nursing

homes because it creates a "quota" for placing 640 individuals in

the community. This argument overlooks how the settlement protects

class members from inappropriate transfers and the size of the pool

of class members eligible for transfer.

            Under    the    agreement,       the   state   will   transfer   class

members incrementally over four years.              As we explained above, the

state will carefully review whether a safe, appropriate placement

is available for individuals before moving anyone, and class

members may appeal adverse decisions.              The state may also, per the

agreement, keep class members off the List who should not be

transferred because of medical needs or personal circumstances.

Indeed, roughly half of the residents of Seven Hills had been

"deemed    inappropriate         for   community   placement,"     including   the

                                         -24-
children of two of the four parents who testified at the fairness

hearing, for this reason.         Rolland XI, 562 F. Supp. 2d at 183.

           The settling parties expect far more class members will

be   eligible   for   transfer     than   the   state   can   accommodate   in

community placements. The state has initially determined 666 class

members could benefit from community placement.             DMR can add up to

160 new nursing home admissions and substitute even more admissions

for class members who die or are removed from the List.             If too few

class   members     could   be   safely   transferred,     the   parties   have

represented to this court that they will renegotiate the agreement.

c.         Right to Refuse Community Placement

           Finally, the Groton parents argue that the agreement is

unfair because it does not give them an absolute right to refuse

community placement for their children.              They say Olmstead and,

especially,     a   grandfather    provision    in   the    NHRA,   42   U.S.C.

§ 1396r(e)(7)(C)(i), give them this right and the agreement is

unfair if it does not expressly protect it.                We do not need to

interpret § 1396r(e)(7)(C)(i) definitively and believe it is unwise

to do so in the abstract.           The settlement is nonetheless fair

because it allows individual class members to raise this objection

in other settings, where they can assert any rights they may have.

           The "grandfather provision," § 1396r(e)(7)(C)(i), allows

some "long-term" residents of nursing homes to choose to remain in

their current nursing facility.           At a minimum eligible residents


                                     -25-
must have been determined to need specialized services but not

nursing home care during a PASARR and must have lived in a nursing

home "for at least 30 months before the date of the determination."

Id.   The parties dispute when that PASARR determination needed to

occur; we need not resolve this issue.22

           It is indisputable that whether an individual is a "long-

term resident" under the statute is a fact-based inquiry.                       It

depends on the timing and results of the person's PASARRs and where

the   person    has   lived.     This    issue   is   best   resolved     in    the

individualized review process we have described above: during class

members' PASARRs, during the transition process, and on appeal.

           In    light   of    these    facts,   it   was    not   an   abuse   of

discretion for the district court to refuse to strike down the

settlement to more expressly protect any rights a few class members

may ultimately prove they individually have.                  The court could

choose to approve a settlement that benefits the vast majority of

the class, including those whom the state does not want to move

from Seven Hills, since it adequately protects objectors' rights.



      22
           The parties disagree whether the grandfather provision
applies only to residents who lived in nursing homes and received
their first PASARR before April 1, 1990, or to residents who lived
in a nursing home for thirty months before a PASARR finding that
they no longer need nursing home care. Nothing in the district
court's decision or this decision prejudices class members' right
to argue they are "long-term residents" under either interpretation
to the state and on appeal. The district court's conclusion that
class members had no legal right to remain in nursing homes, see
Rolland XI, 562 F. Supp. 2d at 185, is not precedent on this issue.

                                       -26-
            Olmsted, on which the Groton parents alternatively rely,

adds nothing to their claim.           Olmstead interpreted the scope of

state authority to retain individuals in institutions under the

integration mandate of Title II of the ADA.                527 U.S. at 592-93,

602.    But Title II is not the basis for the state's authority to

transfer     class   members   to     the    community     in   the   settlement

agreement; the NHRA is.23

                                       IV.

            We    affirm    the     judgment       approving    the    fairness,

reasonableness,      and   adequacy    of    the    2008   amended    settlement

agreement.       The Commonwealth has made many commitments to this

court about ensuring the fairness of the placement process going

forward, and we expect that they will abide by those commitments.

Costs are awarded to the plaintiffs and the state.




       23
          The Groton parents do not contend Olmstead or Title II
modified the NHRA. As the district court noted, the NHRA actually
requires the state to move most individuals from nursing homes if
they do not need that level of care. Rolland XI, 562 F. Supp. 2d
at 185.   The NHRA prohibits federal Medicaid payments to cover
unnecessary nursing home care for individuals other than long-term
residents. See 42 U.S.C. § 1396r(e)(7)(D)(ii).

                                      -27-
