Disability Rights Washington v. Rolfe et al, No. 3:2012cv05004 - Document 18 (W.D. Wash. 2012)
Court Description: ORDER denying 2 Plaintiff's Motion for Preliminary Injunction, signed by Judge Ronald B. Leighton.(DN)
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Disability Rights Washington v. Rolfe et al Doc. 18 HONORABLE RONALD B. LEIGHTON 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 DISABILITY RIGHTS WASHINGTON, Plaintiff, 10 11 12 13 No. 3:12-cv-05004-RBL v. LINDA ROLFE, in her official capacity as Director of Division of Developmental Disabilities, and WASHINGTON DIVISION OF DEVELOPMENTAL DISABILITIES, ORDER DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION [Dkt. #2] 14 Defendants. 15 16 17 18 19 THIS MATTER comes before the Court on Plaintiff’s Motion for a Preliminary Injunction [Dkt. #2]. Disability Rights Washington seeks to compel the State of Washington to 20 release personal contact information of individuals, and their legal guardians, who the State has 21 22 determined are not eligible for disability services, or who Disability Rights Washington believes 23 will lose their eligibility upon a future benefits review hearing. Because the federal Protection 24 and Advocacy Acts do not authorize such disclosure without consent or probable cause of abuse 25 or neglect, and Disability Rights Washington is unlikely to succeed on the merits of its request 26 27 under the circumstances presented, Plaintiff’s motion is DENIED. 28 ORDER - 1 Dockets.Justia.com I. BACKGROUND 1 2 Congress enacted the Developmental Disability Assistance and Bill of Rights Act (DD 3 Act) to “assure that individuals with developmental disabilities and their families participate in 4 the design of and have access to needed community services” and other forms of assistance. 42 5 U.S.C. § 15001(b). In order for a state to receive federal funding under the DD Act, the state 6 7 must have an independent system in effect “to protect and advocate the rights of individuals with 8 developmental disabilities.” 42 U.S.C. § 15043(a)(1). The Protection and Advocacy for 9 Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq., and the Protection and Advocacy 10 of Individual Rights Act, 29 U.S.C. § 794e et seq., contain similar requirements. These 11 protection organizations are commonly referred to as “protection and advocacy systems.” The 12 13 DD Act authorizes state protection and advocacy systems “to investigate incidents of abuse and 14 neglect of individuals with developmental disabilities if the incidents are reported to the system 15 or if there is probable cause to believe that the incidents occurred.” 42 U.S.C. § 15043(a)(2)(B). 16 In order to effectuate this investigatory function, the DD Act also grants the systems access to 17 18 19 “all records” of individuals with developmental disabilities under certain circumstances. 42 U.S.C. § 15043(b)(2)(I)–(J). 20 Plaintiff Disability Rights Washington (DRW), a nonprofit corporation, serves as 21 Washington’s protection and advocacy system. Pl.’s Compl. at 3 [Dkt. #1]; see also Wash. Rev. 22 Code 71A.10.080(2) (authorizing the Governor to designate an agency for the protection and 23 24 advocacy of the rights of persons with developmental disabilities). DRW has the authority and 25 responsibility to pursue legal, administrative, and other appropriate relief to protect individuals 26 with developmental disabilities “who are or who may be eligible for treatment, services, or 27 habilitation.” 42 U.S.C. § 15043(a)(A)(i). Defendant Washington Division of Developmental 28 ORDER - 2 1 Disabilities (State or DDD) is the state agency responsible for administering services to persons 2 with developmental disabilities. Pl.’s Compl. at 3 [Dkt. #1]. The parties are signatories to an 3 access agreement that implements the provisions of the DD Act, including specifying the terms 4 of access to records. Pl.’s Mot., Ex. B at 11 [Dkt. #2-1]. 5 Pursuant to this agreement and its statutory mandate, DRW sent a letter to the State on 6 7 June 1, 2011, requesting specific information about individuals scheduled to change status from 8 an Intermediate Care Facility to a Nursing Facility at a state-operated housing community. Pl.’s 9 Reply, Ex. B at 11 [Dkt. #14]. DRW predicated its request on probable cause to investigate 10 abuse or neglect at this location based on statements from DDD employees. Id. The State 11 complied with the request and sent the specific contact information to DRW. Pl.’s Reply, Ex. C 12 13 at 13 [Dkt. #14]. 14 On December 21, 2011, DRW sent another letter explaining it “received reports and has 15 probable cause to suspect abuse and neglect of individuals who need . . . services but are denied 16 or terminated due to categorical exclusions based upon disability type.” Pl.’s Compl., Ex. E at 17 18 26 [Dkt. #1-1]. DRW requested the names and contact information for three specific groups of 19 individuals and their guardians: (1) individuals who have been denied services under the “other 20 conditions” category; (2) individuals who have had their services terminated under the “other 21 conditions” category; and (3) individuals that are currently eligible for services under the “other 22 conditions” category but will lose services upon their next eligibility review. Id. at 26–27. The 23 24 25 other conditions category refers to a catch-all provision in the State’s eligibility criteria for disability services. See Wash. Rev. Code 71A.10.020(4).1 26 27 28 1 The State defines “developmental disability” to include intellectual disability, cerebral palsy, epilepsy, autism, or any “other condition of an individual found by the secretary to be closely related to an intellectual disability.” Id. In order to promote consistency in statewide eligibility determinations, a committee known as the Other Condition Determination Committee (OCDC) maintains a list of conditions the State believes are included in and excluded ORDER - 3 On December 23, 2011, the State declined to provide the contact information DRW 1 2 requested. Pl.’s Compl., Ex. F at 29 [Dkt. #1-1]. The State determined it was not authorized to 3 disclose information about individuals that are not disabled as defined by the parties’ access 4 agreement; it questioned the basis for DRW’s probable cause; and it concluded the third category 5 of individuals was not readily identifiable. Id. DRW subsequently filed this lawsuit seeking a 6 7 8 temporary restraining order and preliminary injunction to compel the State to disclose the personal contact information. 9 II. ANALYSIS 10 While DRW seeks both a preliminary injunction and a temporary restraining order in its 11 complaint and caption, the motion before the Court focuses exclusively on preliminary injunctive 12 13 relief. See Pl.’s Mot. at 2 [Dkt. #2]. The proper legal standard for preliminary injunctive relief 14 requires a party to demonstrate “that he is likely to succeed on the merits, that he is likely to 15 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 16 favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 17 18 555 U.S. 7, 20 (2008).2 The first question is whether the parties’ access agreement enables DRW to obtain the 19 20 personal contact information of the three categories of individuals it has requested. The 21 agreement states DRW “may access records” of “DDD consumer[s]” who have consented to 22 release their information; who are unable to consent to release their information; who do not 23 24 from the definition of developmental disability. Def.’s Resp. at 4 [Dkt. #4]. DRW, however, believes this other conditions category is largely illusory. Pl.’s Compl. at 7 [Dkt. #1]. 25 2 26 27 28 The nature of DRW’s relief might be better characterized as a permanent injunction because the release of this information “cannot be undone.” Disability Law Ctr. of Alaska, Inc. v. Anchorage Sch. Dist., 581 F.3d 936, 938 (9th Cir. 2009) (treating a protection and advocacy system’s request for records as a permanent injunction instead of a preliminary injunction or a temporary restraining order). The standard for a permanent injunction is “actual success” rather than a “likelihood of success” on the merits. Winter, 555 U.S. at 32 (2008) (citing Amoco Prod. Co. v. Vill. of Gamble, 480 U.S. 531, 546 n.12 (1987)). Because the Court concludes DRW’s request does not satisfy either standard, the Court need not determine which standard is preferable. ORDER - 4 1 have legal guardians; or with respect to whom DRW has probable cause to believe he or she has 2 been subjected to abuse or neglect. Pl.’s Mot., Ex. B at 17 [Dkt. #2-1]. The term “DDD 3 consumer” is expressly defined as “an individual with a developmental disability receiving 4 support from a program funded by DDD.” Id. at 12. Because the individuals in the first two 5 categories do not receive support from a state funded disability program (their benefits have 6 7 either been denied or terminated), they are not DDD consumers and the access agreement does 8 not authorize disclosure of their personal information. The third category of individuals, those 9 whose current benefits DRW posits will be terminated in the future, do constitute DDD 10 consumers because they are receiving support from a program funded by DDD. But, DRW has 11 offered no evidence that these individuals, or their guardians, have either consented to releasing 12 13 their personal information, or lack capacity or guardianship, or have been abused or neglected as 14 required by section five of the agreement. See id. at 17. DRW does not have the authority to 15 obtain the personal information of a group of people that does not yet exist or is not readily 16 identifiable. 17 18 To the extent that the agreement is inconsistent with the DD Act or its implementing 19 regulations, the parties have intended the federal statute to otherwise control. See id. at 11. The 20 provisions in the DD Act for accessing records to support an investigation largely mirror the 21 specifications set forth in the parties’ access agreement. See 42 U.S.C. § 15043(a)(2)(I). But the 22 DD Act appears to grant broader authority to protection and advocacy systems to obtain records 23 24 from persons with developmental disabilities that are not “clients” or “consumers” of the system 25 when there is probable cause to believe incidents of abuse or neglect have occurred. See 42 26 U.S.C. § 14053(a)(2)(J)(i). DRW asserts it has probable cause to believe the individuals in the 27 three categories for which they seek information “may be abused or neglected.” Pl.’s Mot. at 9 28 ORDER - 5 1 [Dkt. #9]. DRW relies on a declaration from a DRW attorney and investigator, who states: “I 2 have interviewed several DDD clients, families, independent professionals, and DDD contracted 3 providers who allege that each of the DDD clients has been or will soon be negatively affected 4 by the systemic categorical exclusion of certain disabilities from the ‘other condition’ category.” 5 Decl. of Emily Cooper Pura at 2 [Dkt. #15]. The State responds that people who are not eligible 6 7 for services are not “individuals with developmental disabilities” and therefore are not covered 8 by the DD Act and its implementing regulations. Def.’s Resp. at 7 [Dkt. #11]. Neither the 9 statute nor the federal regulations expressly define “developmental disability.” But even if the 10 individuals for whom DRW seeks contact information are covered by the DD Act, DRW’s 11 determination of probable cause does not withstand cursory review. 12 13 In this context, “[p]robable cause means a reasonable ground for belief that an individual 14 with developmental disabilities has been, or may be, subject to abuse or neglect.” 45 C.F.R. § 15 1386.19. This standard gives wide discretion to the protection and advocacy system, but it does 16 not afford the system carte blanche to obtain sensitive personal information of people that may or 17 18 may not be disabled. While the protection and advocacy system is the “final arbiter” of probable 19 cause between the state and the system, the system’s determination of probable cause is subject 20 to judicial review. See Iowa Prot. & Advocacy Servs., Inc. v. Gerard Treatment Programs, 21 L.L.C., 152 F. Supp. 2d 1150 (N.D. Iowa 2001). 22 In the cases affirming a protection and advocacy system’s determination of probable 23 24 cause, the system has at least relied on specific allegations of abuse or neglect. In Disability Law 25 Center of Alaska, for example, the protection and advocacy system “received six separate 26 complaints regarding mistreatment of students in the intensive needs special education class at 27 Lake Otis Elementary School.” 581 F.3d at 938. In Alabama Disabilities Advocacy Program v. 28 ORDER - 6 1 J.S. Tarwater Development Center, 97 F.3d 492, 494 (11th Cir. 1996), the protection and 2 advocacy system met the probable cause requirement when an anonymous caller alleged 3 administrative staff forced one resident into the cold when he was ill and not properly dressed, 4 and the resident subsequently died of pneumonia. See also Conn. Office of Prot. & Advocacy for 5 Pers. with Disabilities v. Hartford Bd. of Educ., 464 F.3d 229, 233 (2d Cir. 2006) (receiving 6 7 complaints from parents and students about “inappropriate use of physical restraints and 8 seclusion at the school”); Ga. Advocacy Office v. Borison, 520 S.E.2d 701, 702 (Ga. Ct. App. 9 1999) (responding to published articles about “bogus clinical trials and alleged incidents of abuse 10 and neglect of study participants”). 11 Here, DRW has not identified any instances or reports of abuse or neglect. Conversations 12 13 with DDD employees may be sufficient in some circumstances; for example, the State 14 appropriately complied with DRW’s June 2011 request for information when DRW heard from 15 DDD employees about abuse and neglect at one of the State’s resident care facilities. See Pl.’s 16 Reply, Ex. B at 11 [Dkt. #14]. But here, DRW bases its probable cause on reports that DDD 17 18 consumers will be “negatively affected” by reductions in service eligibility. Pura Decl. at 2 [Dkt. 19 #15]. The Court does not doubt that statewide budgetary woes will “negatively affect” a number 20 of individuals who rely on social services. But neglect requires “a negligent act or omission . . . 21 which caused or may have caused injury or death to an individual with developmental disabilities 22 or which placed an individual with developmental disabilities at risk of injury or death.” 45 23 24 25 26 27 C.F.R. § 1386.19. DRW does not provide any evidence that individuals who are found not to be developmentally disabled are at risk of injury or death. Absent a showing of probable cause to believe persons with disabilities are being or have been abused or neglected, DRW’s request to compel disclosure of personal information is 28 ORDER - 7 1 unlikely to prevail on the merits, and the balance of equities tips in the State’s favor . Therefore, 2 DRW has not met its burden to justify a preliminary injunction. Nothing in this order precludes 3 DRW from conducting its investigation in accordance with its statutory mandate, either by 4 seeking consent to release personal information from the individuals in question or by a 5 sufficient showing of probable cause. 6 III. CONCLUSION 7 8 9 For the reasons stated above, Plaintiff’s Motion for a Preliminary Injunction [Dkt. #2] is DENIED. 10 11 12 IT IS SO ORDERED. 13 14 15 16 17 DATED this 23rd day of April, 2012 A RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 ORDER - 8
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