Institutionalization Is Not A Prerequisite To Establishing A

By Nancy Mitchell,2014-06-19 06:40
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Institutionalization Is Not A Prerequisite To Establishing A




    LARS KNIPP by his next friend, )

    Deborah Stone; JAMES KIM, by)

    his next friend, Grace Kim; SUSANNAH)

    TROGDON, by her next friend, Samuel)

    Trogdon; AMBI HEARD; SHAUN )


    by his next friends, Tom Chaffin and )

    Lena Margareta Larsson Chaffin, )


    Plaintiffs,) CIVIL ACTION





    III, in his official capacity as Governor, )

    State of Georgia, CLYDE L. REESE, III )

    in his official capacity as Commissioner, )

    Georgia Department of Community )

    Health; DR. FRANK E. SHELP, in his )

    official capacity as Commissioner, )

    Georgia Department of Behavioral Health )

    and Developmental Disabilities. )




    The United States respectfully submits this Statement of Interest, pursuant to

    128 U.S.C. ? 517, because this litigation implicates the proper interpretation and application of Title II of the Americans with Disabilities Act, 42 U.S.C. ? 12101, 1?28 U.S.C. ? 517 permits the Attorney General to send any officer of the Department of Justice “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.”

et. seq. (“ADA”), and in particular, its integration mandate. See Olmstead v. L.C.,

    527 U.S. 581 (1999). The Department of Justice has authority to enforce Title II, 42 U.S.C. ? 12133, and to issue regulations implementing the statute, 42 U.S.C. ? 12134. The United States thus has a strong interest in the resolution of this matter and urges the Court to grant the plaintiffs’ motion for preliminary injunction.

    Additionally, the United States advises the Court of its right to intervene in this action pursuant to 28 U.S.C. ? 2403 to address a question of constitutionality

    2 In their response filed on of an Act of Congress affecting the public interest.

    October 4, 2010, defendants assert that they are immune under the Eleventh Amendment from private suits under Title II of the Americans with Disabilities Act (“ADA”), claiming that “some courts have held that Congress failed to abrogate Eleventh Amendment immunity for states under Title II of the [ADA] and further that immunity may still exist for states in suits brought under Title II where there is no underlying constitutional violation alleged.” See Defendants’ Response to

    Motion for Preliminary Injunction (“Defs.’ Resp.”), ECF No. 23 at 8-9. 2?28 U.S.C. 2403 provides: “In any action, suit or proceeding in a court of the United States to which the United States … is not a party, wherein the constitutionality of an Act of Congress affecting the public interest is drawn in question, the court shall … permit the United States to intervene for … argument on the question of constitutionality.”


    The United States typically defends the constitutionality of Title II of the ADA in all contexts and anticipates that it will file a notice of intervention to address the constitutionality question raised by the defendants. In accordance with Department of Justice procedures, however, authorization from the Office of the Solicitor General is required in advance of filing a notice of intervention under 28 U.S.C. ? 2403. Given that defendants’ constitutionality challenge was raised only two days ago, the United States respectfully requests the Court’s permission to submit a brief addressing defendants’ constitutional challenge on or before

    3October 28, 2010.


    This lawsuit alleges that defendants, the Governor of the State of Georgia and the Commissioners of the Department of Community Health and the Department of Behavioral Health and Developmental Disabilities (collectively, “Georgia” or “the State”), are placing the plaintiffs at serious risk of hospitalization by terminating the Medicaid-funded services plaintiffs need to remain in their current settings without offering any alternative support services. 3?We also advise this Court that a two-week hearing has been scheduled to begin on November 8, 2010 with respect to the United States’ motion for immediate relief in the case captioned United States v. Georgia, No. 1:09-CV-119, pending

    before the Honorable Charles A. Pannell, Jr. That action involves factual and legal issues that overlap with the issues before the Court in the instant action.3

    The plaintiffs are adults with mental disabilities who have been receiving services under a Georgia Medicaid program called “Service Options Using Resources in a Community Environment (“SOURCE”). (Compl. ? 1). Services provided through the SOURCE program include nursing and health-related support services, medically-related personal care and case management. See Georgia

    Department of Community Health, Division of Medical Assistance, Policies and

    Procedures for Alternative Living Services, at XII-29 (attached as Exhibit 4 to Pls.’

    Mot. for Prelim. Inj., dated Sept. 10, 2010, ECF. No 11-5). In support of their motion, the plaintiffs have put forth substantial evidence that these services have enabled them to remain in their current residential settings and to avoid the recurrent and long term hospitalizations they have experienced in the past. (See,

    e.g., Pltfs.’ Mot. for Prelim. Inj. at 8, 12, 15, 18, 20, 23.) Plaintiffs have also put forth evidence that, without the SOURCE services provided by the State, or sufficient alternative support services, their health will deteriorate and they will be placed in settings, such as hospitals, shelters and jails, that are far more restrictive than their current settings. (See Declaration of Dr. Richard Elliott, ECF No. 11-11

    (“Elliott Decl.”) ?? 34, 42, 60, 69, 75, 77, 96.)

    All but one of the plaintiffs have been receiving SOURCE benefits in personal care homes licensed by the State. Personal care homes are one source of 4

    housing for individuals discharged from the State’s psychiatric hospitals, but they are not the most integrated setting for most individuals with serious mental illness. Supported housing—another type of service setting that exists (albeit in limited supply) in the State’s mental health service system—is an integrated setting in which persons with serious mental illness live in the community and receive

    4flexible support services as needed. See Declaration of Michael J. Franczak at

    ? 35, Exhibit 20 to United States’ Motion for Preliminary Injunction, United States

    v. Georgia, 09-119 (N.D. Ga. Jan. 28, 2010), ECF No. 55-23 (attached hereto as Exhibit A). Most, if not all, persons with serious and persistent mental illness can be served successfully in supported housing or with similar supports. Id. at ?? 9-


    Plaintiffs’ motion is limited to maintaining the status quo to avoid the irreparable harm of unnecessary hospitalizations and deterioration of the plaintiffs’ health. For that reason, the United States does not address here whether the defendants are currently serving the plaintiffs in the most integrated settings appropriate to their needs, as required by Title II of the ADA, the Rehabilitation 4?The State has already begun to implement Pathways to Housing, a supported housing program modeled after a similar program in New York State. See

    Declaration of Dr. Frank E. Shelp, M.D., Ph.D, ? 43, attached as Exhibit 13 to Pls.’ Mot. for Prelim. Inj., dated Sept. 10, 2010, ECF No. 11-14.


Act and Olmstead. Instead, the United States addresses the limited question

    whether the actions by the defendants that are causing plaintiffs to be at serious risk of unnecessary placement in settings that are more restrictive than their current settings, such as hospitals, shelters, and jails, violates the integration mandate.

    Actions that place individuals with disabilities who receive services from the state at serious risk of unjustified institutionalization violate Title II of the ADA and the Rehabilitation Act. Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175,

    1181 (10th Cir. 2003). As the facts put forth by the plaintiffs show, defendants’ elimination of services, without any alternatives, places the plaintiffs at serious risk of placement in more restrictive settings. Accordingly, the defendants’ actions violate the ADA and the Rehabilitation Act, and the Court should grant the plaintiffs’ motion for preliminary injunction.


    I.Olmstead and the Integration Mandate

    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). It 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 6

    serious and pervasive social problem.” 42 U.S.C. ? 12101(a)(2). For those reasons, Congress prohibited discrimination against individuals with disabilities by public entities:

    [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.

    542 U.S.C. ? 12132.

    One form of discrimination prohibited by the ADA is a violation of the “integration mandate.” The integration mandate arises out of Congress’s explicit

    6findings in the ADA, the regulations of the Attorney General implementing title II,

    and the Supreme Court’s Olmstead decision. In Olmstead, the Supreme Court held

    that unjustified isolation of persons with disabilities is a form of discrimination prohibited by the ADA. Olmstead, 527 U.S. at 597. Accordingly, public entities

    5?Section 504 of the Rehabilitation Act of 1973 similarly prohibits disability-based discrimination. 29 U.S.C. ? 794(a) (“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”).

    6?The regulations provide that “a public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of qualified persons with disabilities.” 28 C.F.R. ?? 35.130(d), 41.51(d). The preamble discussion of the ADA “integration regulation” explains that “the most integrated setting” is one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. ? 35.130(d), App. A. at 571 (2009).


    are required to provide community-based services to persons with disabilities when (a) such services are appropriate; (b) the affected persons do not oppose community-based treatment; and (c) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of others who are receiving disability services from the entity. Id. at 607.

    A.Institutionalization Is Not A Prerequisite To Establishing A

    Violation of Title II’s Integration Mandate

    Defendants assert that plaintiffs do not have standing to bring a Title II claim because they are not currently institutionalized and therefore have not suffered an injury. (Defs.’ Resp. at 5.) Defendants’ argument is without merit. First, they incorrectly conflate the requirements of Article III standing with the merits of integration claims. The issue here is not whether plaintiffs have “standing.” Indeed, defendants do not dispute that the plaintiffs will lose their SOURCE benefits as a result of their change in policy with respect to that program. Plaintiffs therefore have standing because they have alleged injury – i.e., the loss of services

    – resulting from defendants’ conduct. See Lujan v. Defenders of Wildlife, 504 U.S.

    7555, 560-61 (1992). At issue in this case whether defendants’ conduct violates 7?31 Foster Children v. Bush, 329 F.3d 1255 (2003)—the only case cited by

    defendants for their proposition that plaintiffs do not have standing—is materially different. There, the Court recognized that “a plaintiff need not demonstrate that the injury will occur within days or even weeks to have standing,” but held that plaintiffs who were not then in custody of the state could not allege injury for 8

    Title II of the ADA, which is a question about the merits of plaintiffs’ claims, not justiciability.

    Second, Plaintiffs need not wait until they are institutionalized to pursue a claim for violation of the ADA. Neither the statute nor its integration regulation applies solely to institutionalized persons. On the contrary, both protect “qualified individuals with disabilities.” 28 C.F.R. 35.130(d); accord 42 U.S.C. 12132.

    Unquestionably, plaintiffs are “qualified individuals,” because they are eligible to receive services through the State’s program of services for persons with mental disabilities. See Townsend v. Quasim, 328 F.3d 511, 516 (9th Cir. 2003)

    (concluding that plaintiff was a “qualified individual with a disability” for purposes of Title II because he was eligible to receive services through State’s Medicaid program, he preferred to receive such services in a community-based setting, and community-based services were appropriate for his needs).

    Further, the Supreme Court in Olmstead recognized Title II’s broad

    prohibition of discrimination goes beyond protecting those who are currently institutionalized. The Court explained that Congress’ identification of unjustified inadequate foster care services. Id. at 1266-67. Where, as here, the plaintiffs are

    currently eligible for and have received support services from the State, the termination of such services that places them at serious risk of institutionalization demonstrates clear injury.


    segregation as discrimination “reflects two evident judgments.” 527 U.S. at 600. First, that “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. And second,

    that “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.

    Thus, the goal of the integration mandate is to eliminate unnecessary institutionalization, and requiring a plaintiff to enter an institution before she may bring a Title II claim would defeat this fundamental purpose. See Fisher, 335 F.3d

    at 1181 (reasoning that the protections of the integration mandate “would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation.”).

    Indeed, every court to issue an opinion deciding whether recipients of community-based services may bring an integration claim in such circumstances has agreed that they may do so. See Fisher, 335 F.3d at 1181; Haddad v. Arnold,

    No. 3:10-cv-00414-MMH-TEM (M.D. Fla. July 9, 2010) (hereinafter “Haddad

    Op.” and attached hereto as Exhibit B) (issuing preliminary injunction requiring 10

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