Case 1:10-cv-02850-TCB Document 8 Filed 09/10/10 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

LARS KNIPP by his next friend,

)

Deborah Stone; JAMES KIM, by

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his next friend, Grace Kim; SUSANNAH )

TROGDON, by her next friend, Samuel )

Trogdon; AMBI HEARD; SHAUN

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MITCHELL; and ROBERT CHAFFIN )

by his next friends, Tom Chaffin and

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Lena Margareta Larsson Chaffin,

)

)

Plaintiffs,

)

)

v.

)

)

GEORGE ERVIN “SONNY” PERDUE )

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.

)

)

Defendants.

)

)

CIVIL ACTION FILE NO.

COMPLAINT INTRODUCTION

1. Plaintiffs are adults diagnosed with severe mental health or developmental disabilities. They need extensive supervision and assistance in order to live in the

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community. Until recently, such services were provided through a state Medicaid program called the Service Options Using Resources in a Community Environment (“SOURCE”). 2. Plaintiffs each received termination notices because the Georgia Department of Community Health opted to change the SOURCE program so that it would not serve individuals with mental health disabilities or developmental disabilities, unless such individuals also had a physical disability. 3. With the loss of SOURCE benefits, Plaintiffs will lose the services they need to continue to live in the community and will be at substantial risk of having to enter an institution. 4. Defendants’ actions violate the Americans with Disabilities Act (ADA), Title II, 42 U.S.C. § 12132, and its implementing regulations, and Section 504 of the Rehabilitation Act, 29 U.S.C. §794a, and its implementing regulations. Among other things, these laws require Defendants to administer their services and programs in the most integrated setting appropriate to the needs of individuals with disabilities. 5. Plaintiffs seek declaratory and injunctive relief to preserve their receipt of care in the community.
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JURISDICTION AND VENUE 6. This is an action for declaratory and injunctive relief for violation of Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12132 and Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794. 7. The Court has jurisdiction over Plaintiffs’ claims under 28 U.S.C. §§1331, 1343(a)(3), (4). Declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202 and Fed. R. Civ. P. 65. Plaintiffs’ causes of action for disability discrimination are authorized by 42 U.S.C. § 12133 and 29 U.S.C. § 1391(b). 8. Venue is proper because all or a substantial part of the actions and omissions of which Plaintiffs complain occurred in this District. 28 U.S.C. §1391(b). Defendants are located in this Division.
DEFENDANTS 9. Defendant Governor Ervin “Sonny” Perdue, III is the Governor of the State of Georgia. Defendant Perdue is sued in his official capacity. 10. Defendant Clyde L. Reese, III is the Commissioner of the Georgia Department of Community Health (“DCH”). DCH is the state agency responsible for the administration and supervision of Georgia’s Medicaid program under title XIX of the Social Security Act. 42 C.F.R. §431.10 (2010). DCH is the responsible agency for the Service Options Using Resources in a Community
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Environment (“SOURCE”) Program. Commissioner Reese bears ultimate responsibility for the implementation and management of Georgia’s Medicaid program. Defendant Reese is sued in his official capacity. 11. Defendant Dr. Frank E. Shelp is the Commissioner of the Georgia Department of Behavioral Health and Developmental Disabilities (DBHDD). DBHDD is the state agency that focuses on policies, programs, and services for people with severe and persistent mental illness, and developmental and intellectual disabilities. Defendant Shelp is sued in his official capacity.
PLAINTIFFS 12. Plaintiffs are adults with diagnoses of mental illness or mental retardation. 13. Lars Knipp is diagnosed with schizophrenia and bipolar disorder. He experiences auditory and visual hallucinations. Mr. Knipp has been receiving supervision and personal supports through the SOURCE program through the Georgia Department of Community Heath. On January 29, 2010, Mr. Knipp received a letter stating he was terminated from the SOURCE program. His SOURCE benefits will cease immediately if he loses his pending administrative appeal. Mr. Knipp’s next friend is his mother, Debra Stone. 14. James Kim is diagnosed with schizophrenia, traumatic brain injury and depression. Mr. Kim has been receiving supervision and personal supports through
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the SOURCE program operated by the Georgia Department of Community Health since February 2009. On March 1, 2010, Mr. Kim received a letter stating he was terminated from the SOURCE program. His SOURCE benefits will cease immediately if he loses his pending administrative appeal. James Kim’s next friend is his mother, Grace Kim. 15. Susannah Trogdon is diagnosed with mental retardation. Ms. Trogdon has been receiving personal supports through the SOURCE program through the Georgia Department of Community Health since 2005. On December 29, 2009, Ms. Trogdon received a letter stating she was terminated from the SOURCE program. Her SOURCE benefits ceased on July 1, 2010 when a state administrative hearing officer upheld the termination due to the Department of Community Health’s change in eligibility for SOURCE to exclude people with developmental disabilities. Ms. Trogdon’s father, Samuel Trogdon, is her next friend. 16. Ambi Heard is diagnosed with schizophrenia. Ms. Heard has been receiving supervision and personal supports through the SOURCE program operated by the Georgia Department of Community Health since January 14, 2008. On February 10, 2010, Ms. Heard received a letter stating she was terminated from the SOURCE program. Her SOURCE benefits will cease immediately if she loses her
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pending administrative appeal. Ms. Heard does not have a next friend available and is capable of making decisions on the lawsuit and has been making decisions. 17. Shaun Mitchell is diagnosed with schizophrenia. Mr. Mitchell has been receiving supervision and personal supports through the SOURCE program through the Georgia Department of Community Health since December 2008. On December 21, 2009, Mr. Mitchell received a letter stating he was terminated from the SOURCE program. His SOURCE benefits ceased, although his provider has continued to provide some benefits to him in part because she did not understand the benefits were terminated. His provider is no longer willing to provide services without SOURCE funding. Mr. Mitchell does not have a next friend available and is capable of making decisions and has been making decisions regarding the lawsuit. 18. Robert Chaffin is diagnosed with schizophrenia and experiences hallucinations, delusions and paranoia. Mr. Chaffin has been receiving supervision and personal supports through the SOURCE program through the Georgia Department of Community Health since February 13, 2008. On February 5, 2010, Mr. Chaffin received a letter stating he was terminated from the SOURCE program. His SOURCE benefits ceased on July 1, 2010 when a state administrative hearing officer upheld the termination due to the Department of
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Community Health’s change of eligibility for SOURCE to exclude people whose sole disability is mental illness. Mr. Chaffin’s next friends are his brother and sister-in-law, Tom Chaffin and Lena Margareta Larsson Chaffin.
STATUTORY FRAMEWORK Medicaid Act
19. The Medicaid program, established by Title XIX of the Social Security Act, 42 U.S.C. § 1396, et seq. (hereafter the “Medicaid Act”), is a federally funded cooperative program with the states, designed to provide medical and remedial services to low-income people. States are not obligated to participate in the Medicaid program, but if they do, they must comply with the requirements of the Medicaid Act and its implementing regulations promulgated by the Center for Medicare and Medicaid Services (hereafter, “CMS”). 42 U.S.C. § 1396a et seq., 42 C.F.R. §§ 430, et seq. 20. The Department of Community Health is designated as the state Medicaid agency responsible for the administration and supervision of Georgia’s Medicaid Program under Title XIX of the Social Security Act. 21. The Medicaid Act authorizes states to obtain Home and Community Based Service (HCBS) waivers from CMS to provide for alternatives to institutional services. Waiver programs cover a range of home-based services. Such waiver
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services can be made available to persons who meet the requirement for residence in an intermediate care facility for the mentally retarded (ICF-MR). See 42 U.S.C. § 1396n(c). 22. The Medicaid Act also authorizes states to provide Home and Community Based Services to people with incomes of less than 150% of the poverty level in order to provide for alternatives to institutional services. 42 U.S.C. § 1396n(i). This is referred to as Section 1915(i) of the Social Security Act. Services under this program cover the same wide range of home-based services and waivers under 42 U.S.C. § 1396n(c). There is no requirement for need for institutional care. See 42 U.S.C. § 1396n(i).
Georgia Operation of the SOURCE Program 23. Service Options Using Resources in Community Environment (SOURCE) is a Medicaid funded program in Georgia that enables adults with disabilities who otherwise would have to live in an institution to live in the community. 24. SOURCE is an enhanced primary care case management service. The goal of the program is to serve individuals in community settings by linking the primary care physician with home and community based services. 25. Under SOURCE, an individual care plan is designed based on the need for medical monitoring and assistance with functional tasks. Family members, other
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informal caregivers, staff from support agencies and housing providers participate in care plans. 26. In addition to case management, SOURCE offers personal support services, assisted living services, extended home health, home delivered meals, adult day health care, emergency response services and 24-hour medical access to a case manager and primary care physician. 27. The SOURCE program was initially part of the Georgia state plan for Medicaid services, meaning it was available to the Medicaid eligible population generally. 28. According to the State of Georgia, the SOURCE program was put under the auspices of the Home and Community Based Waiver program pursuant to 42 U.S.C. § 1396n(c) on October 1, 2007 and was taken out of the state Medicaid plan. Prior to the transfer of SOURCE, SOURCE had been open to all individuals eligible for Medicaid who needed institution level services. 29. Despite the paperwork change shifting the federal law from state plan services to HCBS waivers under which it operated the SOURCE program, the SOURCE program continued to admit individuals whose disabilities were exclusively mental illness or developmental disabilities.
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30. Beginning in about December 2009, the State asserted that the 2007 change noted above changed SOURCE eligibility from anyone eligible for Medicaid to only those people who were aged (over 65) or who had a physical disability and met the requirements for nursing facility services. For the most part, this means only people with physical disabilities meet the requirements. 31. The state could have included people eligible for care in ICF-MRs (people with developmental disabilities) under the 42 U.S.C. § 1396n(c) waiver but did not do so. 32. The State of Georgia voluntarily ended its ability to provide SOURCE services to people with mental illnesses and developmental disabilities. 33. Starting in about December 2009, Defendants began to terminate SOURCE services to people with mental disabilities. 34. Because Plaintiffs have appealed denials of SOURCE services, the State continues to provide those services to three of the Plaintiffs at this time. Ms. Trogdon, Mr. Mitchell and Mr. Chaffin’s services are no longer being provided. 35. As recently as February 2010, Georgia was still promoting the SOURCE program as an important part of its effort to provide services to people with mental disabilities in the community. In a document filed by the State of Georgia with this Court, Defendant Shelp stated:
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Georgia’s use of Medicaid waivers has also increased dramatically since 2003. . . Georgia has also opened the SOURCE program to the mental health and developmentally disabled population. SOURCE is a primary care, enhanced case management model. In 2003, just less than 3,000 persons received treatment through SOURCE. By 2009, the number was over 18,000. (Declaration under penalty of perjury, Par. 41 of Frank E. Shelp, M.D., M.P.H. February 22, 2010, filed in United States of America v. State of Georgia, et al., Civil Action No. 1:09-CV-0119-CAP United States District Court, Northern District of Georgia).
FACTS CONCERNING PLAINTIFFS 36. Plaintiffs have severe chronic mental illnesses or developmental disabilities that cause them to need extensive supervision and extensive personal assistance. Plaintiffs were receiving supervision and assistance in the community through the SOURCE program, but were sent termination notices after Respondent Department of Community Health opted to make changes to the SOURCE program. Plaintiffs were each found eligible for the SOURCE program and found to meet the institutional level of care necessary for the SOURCE program. Later, Plaintiffs were found ineligible due to the change in eligibility for the SOURCE program.
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Due to the loss of these services, the Plaintiffs are now likely to have to enter institutions. 37. After terminating Plaintiffs’ SOURCE services, Defendants have done nothing to provide alternative services to Plaintiffs. Plaintiffs requested additional, alternative, or the same services they had been receiving through reasonable accommodation letters that were sent to the Defendants. A letter requesting a reasonable accommodation was sent to Defendants on behalf of Lars Knipp, James Kim, Ambi Heard, Shaun Mitchell, and Robert Chaffin on July 19, 2010. A letter requesting a reasonable accommodation on behalf of Susannah Trogdon was sent to DBHDD on June 29, 2010. A letter requesting a reasonable accommodation for Ms. Trogdon was sent to DCH on March 31, 2010.
LARS KNIPP 38. Lars Knipp is a twenty-year-old man, who has been diagnosed as having schizoaffective disorder, schizophrenia, and bipolar disorder. He has a history of harming himself and violence toward others. He regularly experiences hallucinations. 39. Until his current stable placement in a SOURCE-funded personal care home, Mr. Knipp was in and out of hospitals for mental illness repeatedly over the last four years.
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40. Mr. Knipp was hospitalized for his mental illness at Wellstar Hospital on six separate occasions between July 2006 and December 2009. He was hospitalized at these various time for symptoms including experiencing delusions and hallucinations, being violent, having suicidal ideation, exhibiting bizarre behavior, being actively psychotic, experiencing auditory hallucinations, and threatening personal care home providers and staff. 41. Between his visits to Wellstar in July 2006 and January 2008, Mr. Knipp spent a week at Riverwoods Psychiatric Center and a month and a half at Devereux Institute, which is an institution for children with emotional and behavioral difficulties. Mr. Knipp was at Northwest Georgia Regional Hospital, a state mental health facility, from January 16, 2008 through February 29, 2008 and returned there in March 2008. Mr. Knipp was also hospitalized at Atlanta Medical Center for mental health reasons in March 2008. 42. In addition to his frequent hospitalizations, Mr. Knipp has lived in four different personal care homes over the last two years. He has had difficulty finding a place to live that worked out for him until now. 43. After an exhaustive search for a personal care home, Mr. Knipp’s SOURCE case manager ultimately found him a personal care home operated by Ray Johnson. Mr. Knipp moved into Mr. Johnson’s personal care home in December 2009. Mr.
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Knipp is doing as well as he has done in a long time. His grades in school are up, and he has not been hospitalized or had a major mental health crisis since he entered Mr. Johnson’s personal care home. 44. In the personal care home, Mr. Knipp receives ALS funded by SOURCE. He receives twenty-four-hour supervision while he is at home. He is given his medications at the proper times, and his assistant documents each time Mr. Knipp takes his medications. His main assistant Patrick Wooten has figured out how to respond to Mr. Knipp’s outbursts and knows how to calm him down. 45. Mr. Knipp was sent a letter on January 29, 2010 stating that he was terminated from the SOURCE program for not meeting “level of care.” Mr. Knipp’s mother filed an appeal for him. The case is currently before an Administrative Law Judge on cross motions for summary judgment. Pursuant to SOURCE rules, Mr. Knipp will lose his SOURCE funding immediately if and when he loses his SOURCE administrative appeal. 46. Mr. Knipp cannot stay in his personal care home if he loses his SOURCE services. Mr. Knipp will lose the other SOURCE services he receives, including enhanced case management and regular visits by a SOURCE nurse. Neither the Georgia Department of Community Health nor the SOURCE provider has offered Mr. Knipp any services to replace what he has been receiving through SOURCE.
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47. The loss of Mr. Knipp’s SOURCE services and his current personal care home would destabilize Mr. Knipp and cause him to decompensate. Mr. Knipp will likely have to be hospitalized again in the near future if he loses his SOURCEfunded services, particularly the twenty-four-hour supervision and assistance with medications.
JAMES KIM 48. James Kim is a twenty-eight-year-old man diagnosed with schizophrenia and a traumatic brain injury. He has seizures and delusions. 49. Mr. Kim was hit by a car when he was five years old when he was chasing a ball. He suffered a major head and brain injury and was in a coma for over two months. 50. Due to his traumatic brain injury, Mr. Kim has significant problems controlling his anger. He has punched a hole in a wall, thrown and destroyed a television set, and caused other damage to his current house. He often tries to hurt himself. 51. Mr. Kim has been receiving SOURCE services in a personal care home operated by Gwinnett Homes since February 2009. Mr. Kim went to Gwinnett Homes after he had been in and out of Summit Ridge Hospital on several occasions for hurting himself and causing property damage.
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52. Mr. Kim was hospitalized most recently at Georgia Regional Hospital Atlanta in July 2010 after attacking a hospital employee at a referring hospital, threatening to commit suicide with a knife, causing property damage, and causing a public disturbance. He was able to leave the hospital because he could return to the close supervision at the Gwinnett Homes personal care home. 53. Gwinnett Homes provides Mr. Kim with ALS. Mr. Kim is provided twentyfour-hour supervision, assistance with his medications, prepared meals, and transportation. The personal care home also provides him personal support services. The personal home director, Seema Mason, continuously works to negotiate and work with individuals when Mr. Kim has difficulties due to his disability, including most recently speaking on Mr. Kim’s behalf at a criminal hearing. Mr. Kim is also provided case management and nursing services through SOURCE. 54. Mr. Kim was sent a termination notice from the SOURCE program on March 1, 2010. Mr. Kim appealed the SOURCE termination. He has an administrative hearing scheduled for September 28, 2010. He will lose his SOURCE funding immediately if he loses his SOURCE appeal. 55. When Mr. Kim loses his SOURCE funding, he will be discharged from his personal care home, and he will lose his SOURCE services.
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56. If Mr. Kim loses SOURCE, he would very likely not continue his current medications. As a result, his psychosis and impulse control would worsen, and he would become a threat to himself or others. In addition, if Mr. Kim does not take his seizure medication, he would begin suffering seizures which might cause permanent impairment or death. 57. Mr. Kim would be a threat to himself or others within weeks if he loses his SOURCE funded ALS. Mr. Kim would likely be committed to a mental health institution or incarcerated within weeks if he loses his SOURCE-funded ALS.
SUSANNAH TROGDON 58. Susannah Trogdon is a forty-three-year-old woman with mental retardation. She lives with her father Samuel Trogdon, who is seventy years old, and her thirtynine-year-old brother, who is often not home. 59. Ms. Trogdon is not able to be on her own for more than five or ten minutes without being at risk of injury. On one occasion when Mr. Trogdon had to leave her alone for a few minutes while he ran to the corner pharmacy, Ms. Trogdon placed a plastic bowl on the stove and turned on the burner. She melted the plastic bowl. 60. Ms. Trogdon does not know how to use a phone or call for emergency services.
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Each time Ms. Trogdon would take a bath on her own, she would let the water overflow because she would not think to turn the bath water off. It happened so many times her father had to replace the floor in the bathroom. 61. Ms. Trogdon also needs assistance with baths and mobility because she suffers from vertigo and has frequent falls. 62. Ms. Trogdon is not able to go shopping, manage her money, or use public transportation on her own. 63. Ms. Trogdon’s mental condition is worse, according to her father, now than it used to be. Ms. Trogdon has an extremely poor memory. 64. Ms. Trogdon’s mother, who was her primary caregiver, passed away in 2005. 65. Ms. Trogdon went to live in a personal care home for a short time after her Mom’s death, but then returned to live with her father that same year. 66. Ms. Trogdon was able to come live with her father because she had been approved for SOURCE. As part of her SOURCE, she received enhanced case management and, more importantly, five and a half hours of personal support each day from Monday through Friday.
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67. The personal support came from an aide, who would assist Ms. Trogdon with bathing, brushing her teeth, meal preparations, taking her medications, and supervising her. 68. Ms. Trogdon was sent a notice of termination from the SOURCE program on December 29, 2009. She appealed and had an administrative hearing. The Department of Community Health’s decision was affirmed on July 1, 2010 due to the fact that individuals with developmental disabilities are no longer eligible for SOURCE. She lost her SOURCE funding on the date of her hearing, and she no longer receives the case management or personal support services. 69. Mr. Trogdon has attempted to obtain other services for Ms. Trogdon, including applying for a Medicaid waiver for developmental disabilities and seeking day services. To date, he has not been able to obtain any other services for Ms. Trogdon. 70. Mr. Trogdon has to make sure someone is with Ms. Trogdon at all times, and usually it has to be him. He cannot take care of his real estate business. The constant care for Ms. Trogdon is taking a physical toll on him. He will not be able to keep his daughter with him much longer without the personal support being restored. Mr. Trogdon states, “I will probably end up bankrupt due to our loss of income, and I cannot survive on social security alone. My nerves are frayed and I
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am exhausted. I will have to assess the situation each month. I am trying my best to hold on because I love my daughter. I just don’t know how much longer I can keep this up.” 71. Ms. Trogdon needs 24-hour supervision and will very likely be admitted to an institution if she cannot have services similar to what she had been receiving through SOURCE restored.
AMBI HEARD 72. Ambi Heard is a thirty-four-year-old woman diagnosed with schizophrenia. She experiences paranoia and delusions. At times, she is violent. She has slapped staff members and her roommate at times. 73. Ms. Heard says that she hears things that others cannot hear and that are too advanced for other people to understand like God and the devil. She says that she took herself to jail once to see what it feels like to have control from God. She often states that she is an angel and that she has lived for billions of years. 74. Ms. Heard came to Gwinnett Homes on December 28, 2007 after being discharged from Anchor Hospital where she had been receiving in-patient mental health treatment for serious delusions from November 11, 2007 to December 28, 2007.
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75. Ms. Heard was transferred to Gwinnett County because she had had several failed attempts at living in personal care homes in Atlanta. Prior to going to Anchor Hospital, Ms. Heard had been homeless living near Moreland Avenue in Atlanta, Georgia. She was not taking her medications at that time. 76. Ms. Heard was admitted into the SOURCE program on January 14, 2008. As part of her ALS, Ms. Heard is provided with supervision and her medications. She is also given prepared meals and assisted with her daily activities. 77. Her assistants in the personal care home are proactive in working with her. As part of her ALS, they provide her with twenty-four hour supervision when she is in the house, and they know how to respond to her needs, particularly when she becomes aggressive. 78. In February 2009, Ms. Heard was hospitalized at Summit Ridge due to increased erratic behavior, delusions, and refusal to take medications. She was in the hospital from February 23, 2009 to March 3, 2009. Ms. Heard was able to be discharged from Summit Ridge relatively quickly because she had a stable place to which to return where she could receive ALS and other services. 79. Ms. Heard was sent a termination notice from the SOURCE program on February 10, 2010 stating that she was being terminated for not meeting level of
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care. Ms. Heard appealed. She has an appeal hearing on September 23, 2010. If Ms. Heard loses her appeal, she will be immediately terminated from SOURCE. 80. If Ms. Heard is not able to keep her SOURCE benefits or have a similar financial subsidy for ALS, then she would have to leave her personal care home. 81. Ms. Heard would likely become non-compliant with her medications if she lost her SOURCE-funded ALS. If she became non-compliant with her medications, this would result in her decompensating, with exacerbation of psychotic symptoms. 82. If she loses her SOURCE provided services, Ms. Heard will likely become an imminent risk of harm to herself and possibly others due to her tendency toward violence during her psychosis. She will likely once again be hospitalized for an inability to care for herself.
SHAUN MITCHELL 83. Shaun Mitchell is a thirty-year-old man diagnosed with schizophrenia. Mr. Mitchell came to Gwinnett Homes in October 2008 after having been at Georgia Regional Hospital Atlanta for four months for his mental illness. While at Georgia Regional, Mr. Mitchell was diagnosed as being psychotic.
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84. Mr. Mitchell had been in a personal care home prior to his four-month hospitalization in 2008. He had not been taking his medications and had threatened his personal care home provider. 85. Mr. Mitchell’s current personal care home provider, Seema Mason of Gwinnett Homes, met Mr. Mitchell at Georgia Regional Hospital Atlanta. The Georgia Regional Hospital social worker and Ms. Mason worked out that Mr. Mitchell would come to the personal care home with the understanding that he would apply for and receive SOURCE funding for ALS. 86. Mr. Mitchell’s psychosis was still active when he was discharged from Georgia Regional and admitted into Ms. Mason’s personal care home. His behavior was considerably influenced by delusions or hallucinations or serious impairment of judgment or inability to function in almost all areas. 87. Mr. Mitchell has become much more stable since living in Ms. Mason’s personal care home. Mr. Mitchell remains stable, in part, due to the fact that he receives Risperdal shots every two weeks from a SOURCE-funded nurse. Risperdal is an anti-psychotic drug used for the treatment of schizophrenia. This medication lasts for two weeks. 88. Mr. Mitchell also needs the other ALS services he receives, particularly the provision of transportation, meal preparation, and coordination of doctor visits.
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90. Mr. Mitchell’s SOURCE has been in limbo since the end of 2009. When the SOURCE provider checked the Department of Community Health website, it showed that Mr. Mitchell was active with SOURCE, so Ms. Mason has continued to provide services for him. However there have been no SOURCE payments for him since the end of 2009. 91. Ms. Mason can no longer continue to provide services to Mr. Mitchell without SOURCE. She will have to discharge him from her personal care home. 92. If he lost the SOURCE-funded shots every two weeks and did not have someone providing him with medication assistance such as SOURCE provides, Mr. Mitchell would likely not take his medications. If this happened, he would decompensate quickly and very likely be institutionalized in a mental health hospital.
ROBERT CHAFFIN 93. Robert Chaffin is a fifty-five-year-old man diagnosed with schizophrenia. He has hallucinations, delusions, and paranoia. 94. Mr. Chaffin often gets so paranoid that he won’t talk to anyone. Often, he will not spend more than five or ten minutes out of his room with others before he rushes back to his bed and pulls a sheet over his head.
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95. Mr. Chaffin has many delusions, including that he works at a gas station, is connected to FBI informants, and that he once belonged to the mafia. 96. Mr. Chaffin has been receiving SOURCE-funded ALS in a personal care home operated by Betty Usher since February 2008. He came to live in Ms. Usher’s personal care home after his elderly mother became too sick to care for him. 97. As part of his ALS, Mr. Chaffin received twenty-four-hour supervision, assistance with his medications, and extensive assistance with all regular activities of daily living, including such simple activities as shaving and dressing. 98. Mr. Chaffin has sometimes threatened his personal care home assistants, but they know him and know how to calm him down. 99. Ms. Usher has also found Mr. Chaffin day programs. She originally found him a program in Kirkwood, but when that fell through, Ms. Usher arranged for Mr. Chaffin to receive Assertive Community Treatment (“ACT”) services through New Joshua, which is a wellness and recovery center for mental illness, as well as a five-day a week peer support program. 100. Mr. Chaffin was sent a letter terminating him from the SOURCE program in February 2010. Mr. Chaffin appealed the termination. He had an administrative
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hearing, which he lost on July 1, 2010 due to the change in eligibility criteria for SOURCE. Mr. Chaffin has not been on the SOURCE program since that date. 101. Despite his loss of SOURCE, Ms. Usher has not yet discharged Mr. Chaffin because she is afraid he would end up in a hospital very quickly. Ms. Usher will not be able to keep Mr. Chaffin for much longer without SOURCE funding. 102. Mr. Chaffin has an extreme need for stability. The slightest change in his life, including a change in his services or his home, will put his life into a tailspin. 103. Mr. Chaffin will likely have an exacerbation of his symptoms resulting in hospitalization if he is required to leave his SOURCE home and if loses the provision of the services that he receives through SOURCE. 104. Packing Mr. Chaffin’s belongings or transporting him to a new place would cause him to experience severe anxiety and would also cause exacerbation of symptoms and hospitalization. Mr. Chaffin would likely be a harm to himself or others if this happens. Mr. Chaffin needs at least the amount of assistance and services that he had been receiving as ALS through SOURCE in order to avoid institutionalization.
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FIRST CLAIM FOR RELIEF Title II of the Americans with Disabilities Act 105. Plaintiffs adopt and restate the allegations set forth in the preceding paragraphs. 106. Title II of the Americans with Disabilities Act (ADA) provides that “no qualified individual with a disability shall, by reason of disability, be excluded from participation in or be denied benefit of the services, programs, or activities of a public entity or be subject to discrimination by such entity.” 42 U.S.C. § 12132. 107. A “public entity” is defined as any State or local government or other instrumentality of a State of local government. See 42 U.S.C. § 12131 (1)(A) & (C). 108. Regulations implementing Title II of the ADA require that a public entity administer its services, programs and activities in “the most integrated setting appropriate” to the needs of qualified individuals with disabilities. 28 C.F.R. § 35.130(d) (2009). 109. Regulations implementing Title II provide that “a public entity may not, directly through contractual or other arrangements, utilize criteria or other methods of administration; (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) that have the
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purpose or effect of defeating or substantially impairing accomplishment of the objectives of the entity’s program with respect to individuals with disabilities…” 28 C.F.R. § 35.130(b)(3) (2009). Regulations implementing Title II further provide: “(b)(1) A public entity, in providing any aid, benefit, or services, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability: (iii) Provide a qualified individual with a disability an aid, benefit or service that is not as effective in affording equal opportunity to obtains the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others; (iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others; (v) Aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to an agency, organization, or person that discriminated on the basis of disability in providing any aid, benefit, or service to beneficiaries of the public entity’s program.” 28 C.F.R. § 35.130(b)(1) (2009). 110. The United States Supreme Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), held that unnecessary institutionalization of individuals with
28

Case 1:10-cv-02850-TCB Document 8 Filed 09/10/10 Page 29 of 36
disabilities is a form of discrimination under Title II of the ADA. In doing so, the Supreme Court interpreted the ADA’s “integration mandate” as requiring persons with disabilities to be served in the community when: (1) the state determines that community-based treatment is appropriate; (2) the individual does not oppose community placement; and (3) community placement can be reasonably accommodated. 527 U.S. at 607. 111. DCH, DBHDD, and the State of Georgia are public entities under Title II of the ADA and its implementing regulations. 112. Plaintiffs are individuals with disabilities in that they each have a mental impairment that substantially limits one or more of their major life activities, including but not limited to, thinking, communicating, learning, working, caring for themselves, and concentrating. See 42 U.S.C. § 12102. 113. Plaintiffs are qualified individuals in that they are capable of safely living in community settings with necessary services and they meet the essential eligibility requirements for the receipt of services from and participation in the State Medicaid program, in state-funded mental health and developmental disabilities programs with or without reasonable modifications to the rules, policies, and practices of those programs.
29

Case 1:10-cv-02850-TCB Document 8 Filed 09/10/10 Page 30 of 36
114. Plaintiffs’ community placements were the result of the State’s determination that community-based treatment was appropriate for them. Plaintiffs do not oppose community placement. Plaintiff’s community placement can be reasonably accommodated, as demonstrated by the fact that all are currently being provided services in the community. Plaintiffs’ care in the community supported by SOURCE or an alternative program is far less expensive than the cost of their care in an institution. 115. Plaintiffs are being discriminated against based on their particular type of disability. 116. Without reasonable modification or accommodation of the rules, policies, and procedures governing the waiver programs, the State Medicaid Plan, or to alternative services provided to adults with mental illnesses or developmental disabilities, Plaintiffs will be forcibly isolated and segregated. Plaintiffs are facing forced institutionalization as a direct result of Defendants’ actions. 117. Plaintiffs are entitled to live and receive services in the most integrated settings, including in their current setting or in settings more integrated than those in which they currently reside and receive services. 118. Defendants’ failure to make reasonable modifications or accommodations to the SOURCE program or to provide alternative integrated services for individuals
30

Case 1:10-cv-02850-TCB Document 8 Filed 09/10/10 Page 31 of 36
with mental illnesses or developmental disabilities denies Plaintiffs the staffing and services they need to remain in a community based setting. The failure to make reasonable modifications or accommodations to allow Plaintiffs to remain in their current integrated settings or to live and receive services in even more integrated settings constitutes unlawful discrimination in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 and its implementing regulation, 28 C.F.R. § 35.130(d) (2009).
SECOND CLAIM FOR RELIEF Section 504 of the Rehabilitation Act 119. Plaintiffs adopt and restate the allegations set forth in the preceding paragraphs. 120. Section 504 of the Rehabilitation Act of 1973 provides, “no otherwise qualified individual with a disability in the United States… shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29. U.S.C. § 794(a). 121. “Individual with a disability” is one who has a disability as defined by the Americans with Disabilities Act. 29 U.S.C. § 705(20)(B) referencing 42 U.S.C. § 12102.
31

Case 1:10-cv-02850-TCB Document 8 Filed 09/10/10 Page 32 of 36
122. “Program or activity” includes a department, agency, special purpose district, or other instrumentality of a State of local government. 29 U.S.C. § 794 (b)(1)(A). 123. “Recipient” of federal financial assistance also includes any public or private agency or other entity to which Federal financial assistances is extended directly or through other recipient. 28 C.F.R. §41.3(d) (2009). 124. Regulations implementing Section 504 require a recipient of federal financial assistance to administer its services, programs, and activities in the “most integrated setting appropriate” to meet the needs of the qualified individuals with disabilities. 28 C.F.R. §41.51(d) (2009). 125. Plaintiffs are “qualified person[s] with disabilities” within the meaning of Section 504 because they have physical and/or mental impairments that substantially limit one or more major life activities, and they meet the essential eligibility requirements for the SOURCE program. 126. Plaintiffs are being discriminated against based on their particular type of disability. 127. Without reasonable modification or reasonable accommodation of the rules, policies, and procedures governing the SOURCE program, Plaintiffs will be forcibly isolated. A reasonable modification or accommodation will enable them
32

Case 1:10-cv-02850-TCB Document 8 Filed 09/10/10 Page 33 of 36
to stay in their community placement, which is a more integrated setting appropriate to their needs than an institution. 128. Plaintiffs’ community placements were the result of the State’s determination that community-based treatment was appropriate for them. Plaintiffs do not oppose community placement. Plaintiff’s community placement can be reasonably accommodated, as demonstrated by the fact that all are currently being provided services in the community. Plaintiff’s care in the community supported by SOURCE is far less expensive than the cost of their care in an institution. 129. Without reasonable modification or accommodation of the rules, policies, and procedures governing the waiver programs, the State Medicaid Plan, or to alternative services provided to adults with mental illnesses or developmental disabilities, Plaintiffs will be forcibly isolated and segregated. Plaintiffs are facing forced institutionalization as a direct result of Defendants’ actions. 130. Plaintiffs are entitled to live and receive services in the most integrated settings, including in their current setting or in settings more integrated than those in which they currently reside and receive services. 131. Defendants’ failure to make reasonable modifications or accommodations to the SOURCE program or to provide alternative integrated services for individuals
33

Case 1:10-cv-02850-TCB Document 8 Filed 09/10/10 Page 34 of 36
with mental illnesses or developmental disabilities denies Plaintiff’s the staffing and services they need to remain in a community based setting. The failure to make reasonable modifications or accommodations to allow Plaintiffs to remain in their current integrated settings or to live and receive services in even more integrated settings constitutes unlawful discrimination.
RELIEF REQUESTED Wherefore, Plaintiff’s request that the Court grant the following relief: 1. Declare Defendants’ failure to make reasonable accommodations or modifications to the SOURCE program or to comparable alternative services to individuals with mental illnesses or developmental disabilities so as to provide services to Plaintiffs in the most integrated settings appropriate to their needs to be unlawful discrimination in violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act; 2. Grant appropriate preliminary and permanent injunctions including, enjoining Defendants from failing to provide reasonable accommodations and reasonable modifications to Plaintiffs and requiring Defendants to continue the provisions of individualized coverage of Plaintiffs’ service needs in the least restrictive, most integrated setting through the SOURCE program or a comparable
34

Case 1:10-cv-02850-TCB Document 8 Filed 09/10/10 Page 35 of 36

alternative service program for individuals with mental illnesses or developmental disabilities; 3. Waive the requirement for the posting of a bond as security for the entry of preliminary relief; 4. Award the Plaintiffs the costs of this action and reasonable attorney’s fees pursuant to 29 U.S.C. § 794a and 42.U.S.C. §12133 and any other applicable provision of law; and 5. Grant such other and further relief as the Court deems to be just and equitable.

/s/ C. Talley Wells_________ C. Talley Wells Georgia Bar No. 747657 Atlanta Legal Aid Society, Inc. 246 Sycamore Street Decatur, GA 30030 404-377-0705 ext. 282 (phone) 404-377-2349 (fax) ctwells@atlantalegalaid.org

/s/ Charles R. Bliss________ Charles R. Bliss Georgia Bar Number 063385 Atlanta Legal Aid Society, Inc. 151 Spring Street NW Atlanta, GA 30303 (404) 614-3988 (404) 614-3997 (fax) crbliss@atlantalegalaid.org

.

35

Case 1:10-cv-02850-TCB Document 8 Filed 09/10/10 Page 36 of 36
CERTIFICATE OF COMPLIANCE The undersigned counsel certifies that the foregoing has been prepared in Times New Roman (14 point) font, as approved by the Court in L.R. 5.1.B. /s/ C. Talley Wells____ C. Talley Wells Georgia Bar No. 747657 Counsel for Plaintiffs
36

 
 Case 1:10-cv-02850-TCB Document 11 Filed 09/10/10 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

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

)

MITCHELL; and ROBERT CHAFFIN )

by his next friends, Tom Chaffin and

)

Lena Margareta Larsson Chaffin,

)

)

Plaintiffs,

)

)

v.

)

)

GEORGE ERVIN “SONNY” PERDUE )

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.

)

)

Defendants.

)

CIVIL ACTION FILE NO.

MOTION FOR PRELIMINARY INJUNCTION

Come now Plaintiffs and move the Court for entry of a preliminary

injunction showing as follows:

1

Case 1:10-cv-02850-TCB Document 11 Filed 09/10/10 Page 2 of 4
1. Plaintiffs are current or recently terminated recipients of benefits under a Georgia Medicaid program called Service Options Using Resources in a Community Environment (“SOURCE”). The SOURCE program provides supports, including residential services, necessary for Plaintiffs to live in community settings. Plaintiffs each received a termination notice from SOURCE because the Georgia Department of Community Health opted to change the SOURCE program so that it would not serve individuals needing those services because of mental health disabilities or developmental disabilities, unless such individuals also had a physical disability.
2. With the loss of SOURCE benefits, Plaintiffs will lose the services they need to continue to live in the community and will be at substantial risk of institutionalization. Individuals with disabilities have the right to receive services in the most integrated setting appropriate to their needs unless such services would fundamentally alter the way in which the state provides services. Plaintiffs now seek preliminary injunctive relief including reinstatement of benefits provided under the SOURCE program.
2

Case 1:10-cv-02850-TCB Document 11 Filed 09/10/10 Page 3 of 4
3. Plaintiffs meet the requirements for preliminary injunctive relief. In the attached brief and the accompanying evidentiary materials, Plaintiffs will demonstrate (1) a substantial likelihood of success on the merits; (2) a threat of irreparable injury if the preliminary injunction is not granted; (3) irreparable injury that outweighs the harm the preliminary injunction will cause to the Defendants; and (4) the preliminary injunction is in the public interest. WHEREFORE, Plaintiffs request that they be granted preliminary injunctive relief continuing their SOURCE benefits.
Respectfully submitted,
/s/ C. Talley Wells Georgia Bar No. 747657 Atlanta Legal Aid Society, Inc. Decatur, GA 30030 404-377-0705 ext. 282 (phone) 404-377-2349 (fax) ctwells@atlantalegalaid.org
3

Case 1:10-cv-02850-TCB Document 11 Filed 09/10/10 Page 4 of 4
CERTIFICATE OF COMPLIANCE The undersigned counsel certifies that the foregoing has been prepared in Times New Roman (14 point) font, as approved by the Court in L.R. 5.1.B. Respectfully submitted, /s/ C. Talley Wells____ C. Talley Wells Georgia Bar No. 747657 Counsel for Plaintiffs
4

 
 Case 1:10-cv-02850-TCB Document 23 Filed 10/04/10 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

LARS KNIPP, by his next friend, *

Deborah Stone; JAMES KIM, by his *

next friend, Grace Kim; SUSANNAH {c

TROGDON, by her next friend, Samuel *

Trogdon; AMBI IIEARD; SHALIN *<

MITCHELL; andROBERT CHAFFIN *

and by his next friends, Tom Chaffin

{<

Lena Margareta Larsson Chaffin,

*

*

Plaintifß,

T >F

V.

*

*

GEORGE ERVIN "SONNY" PERDIIE, *

III, et al.,

*

*

Defendants.

*

CIVIL ACTION
1 :10-CY-2850-TCB

DEFENDANTS' RESPONSE TO MOTION FOR PRELIMINARY INJUCTION

COMES NOW Governor Sonny Perdue, in his official capacity,

Commissioner Clyde Reese, in his official capacity, and Dr. Frank Shelp, in his

official capacity, Defendants in the above styled action, by and through counsel

Thurbert E. Baker, Attomey General for the State of Georgia, and fìles this

response showing that Plaintifß should not be granted a preliminary injunction in

this matter.

Case 1:10-cv-02850-TCB Document 23 Filed 10/04/10 Page 2 of 16
I. STATEMENT OF THE CASE
Plaintiffs are six individuals who currently are receiving or formerly received funds from a program administered by the Department of Community Health (hereinafter "DCH") known as "SOIIRCE," an acronym for "Service Options Using Resources in a Community Environment. SeePlainliffs' Motion for Preliminary Injunction ("Motion") at T 1. In late 2009 and early 2010, DCH informed Plaintifß individually that they no longer met the qualifications to receive funds from SOURCE. See Complaint at TIT 13-18. Thereafter Plaintiffs
availed himself or herself of the state's "appeal" procedure via ahearing in front of an Administrative Law Judge ("ALJ") held at the Office of State Administrative Hearings ("OSAH").r See id. In the cases of Plaintiffs Trogdon and Chaffin, the ALJ upheld DCH's decision. Id. aflTll 15, 18. Those Plaintiffs did not ask for agency review of the ALJ's decision. SeeBx. "B." Plaintiff Heard is awaiting a hearing at OSAH. See Ex. "C." Plaintiff Knipp had a hearing and may still seek agency review. See Ex. "D."
SOITRCE was part of the Georgia Medicaid State Plan until 2008. SeeBx.
"A" atl2. In January 2008, the Department received approval from the Centers
t Plaintiff Mitchell states he never received a termination notice and thus did not
receive a hearing at OSAH . See Declaration of Seema Mason at I 93 . DCH
withdrew the OSAH referral for James Kim and has not re-filed.

Case 1:10-cv-02850-TCB Document 23 Filed 10/04/10 Page 3 of 16
for Medicare and Medicaid Services ("CMS") to admit the SOURCE Program into the existing I9l5(c) Medicaid Waiver for the Elderly and Physically Disabled. ,See
id. The impetus for this move from the State Medicaid Plan to a Waiver Program
was the Department's understanding from CMS that in order to continue providing the "wrap around" home and community services, the SOIIRCE Program could only continue as a Waiver Program. Id.
A Medicaid'Waiver Program means that aprogram is designed to be population specific and admit participants who would otherwise require the care
provided in an institution such as a nursing home or hospital. See Ex. "4" atll3.
Participants in the Waiver Program must meet the institutional level of care being waived through the provision of home and community services. See ¿d When the Department removed SOURCE from the state plan, and truly treated it like a waiver program, it meant that the institutional level-oÊcare guidelines and the identified target group had to be strictly adhered to by the Department according to
the CMS-approved Medicaid Waiver. See Ex. " A" atfl 4.
SOURCE is designed for persons over 65 years of age or persons under 65 who are disabled and who meet the criteria for Intermediate Nursing Home Level of Care. SeeParf II, Policies and Procedures for SOIIRCE, Chapter 701, (revised 4105). SOURCE "was developed specifically to address chronic physical illness in

Case 1:10-cv-02850-TCB Document 23 Filed 10/04/10 Page 4 of 16
older and disabled recipients," although "a behavioral health diagnosis does not exclude a person from eligibility as long as the individual meets Nursing Home Level of Care criteria." Id.
Defendants do not deny that Plaintiffs received SOURCE services for a
time. See Ex. ".Ã" atJf 5. Plaintiffs, however, were never part of the targeted individuals for whom SOURCE was developed. See id. The Department has undertaken enhanced training in the past year to inform providers of the
requirements for persons to receive SOURCE services. 1d.
Persons receiving SOURCE are reviewed annually to determine if they still meet eligibility requirements as required by CMS. Id. atfl 6. As Plaintiffs' cases came up for review, it was determined that they did not meet SOURCE,
requirements since they are not over 65 years of age and are not physically
disabled. See id. The Complaint evidences that they do not qualif, for SOURCE:
none of them is over 65 and none of them claim to be physically disabled. See Complaint at T'1T 38-43,48-52,58-62,72-78,83-89, 93-99. Because Plaintifß did not meet SOURCE requirements they were informed of such and opted (prior to the filing of this suit) to avail themselves of Georgia's administrative appeal
procedures. See Ex. "4" at fl 6.

Case 1:10-cv-02850-TCB Document 23 Filed 10/04/10 Page 5 of 16
II. ARGUMEI\T AND CITATION OF AUTHORITY
The Motion should be denied. First, Plaintiffs do not have standing. Second, Plaintiffs cannot make out a case for preliminary injunction because they cannot meet the four prong test as required by federal law.
A. Plaintiffs Do Not Have Standing To Bring
This Action. For a plaintiff to proceed in federal court he or she must have standing to
bring the suit pursuant to Article III of the U.S. Constitution. "[T]he irreducible
constitutional minimum of standing contains three elements." Lujan v. Defenders of Wildlife,504 U.S. 555, 560-61 (1992). A plaintiff must have suffered an injury
in fact which must be "concrete and particularized." See id. That injury must be actual or imminent and not conjectural or hypotherical. Id. The injury must be
caused by the conduct of a defendant and must be curable by a favorable decision ofthe court. Id.
In this case, Plaintifß fail to show an injury which is concrete. Instead, they argue that because of decreased SOURCE funding, "fP]laintiff3 are now likely to have to enter institutions." Complaint at fl 36 (emphasis supplied). Plaintifß, however, are not presently institutionalized according to their complaint. See id. at
\n 46, 55, 65, 7 4, 85,96. Further, they present no evidence to support the

Case 1:10-cv-02850-TCB Document 23 Filed 10/04/10 Page 6 of 16
imminence of institutionalization. See 3I Foster Childrenv. Bush,329F.3d1255, 1266-67 (1lth Cir. 2003). Additionally, Plaintiffs Kim and Heard are still
receiving SOTIRCE services and so at present can claim no adverse action against them. See Complaint at TT 54,79. Finally, Plaintifß do not meet the eligibility requirements for the SOURCE program. See Murray v. Auslander,Z4L F.3d 807, 810-11 (2001). Accordingly, Plaintiffs do not have the requisite constitutional standing to bring this suit.
B. Plaintiffs Do Not Meet The Four Prong
Test For A Preliminary Injunction And Thus Their Request Should Be Denied. A preliminary injunction is an extraordinary and drastic remedy. See United States v. Jffirson County,720F.2d 1511, 1519 (11th Cir. 1983); MerÌal Ltd. v. Roman,2010 U.S. Dist. LEXIS 27263 (N.D. Ga. 2010). The traditional standards for granting preliminary injunctive relief, which are applied in this circuit, are that the movant must show (1) that there is a substantial likelihood that he or she will ultimately prevail on the merits; (2) lhat he or she will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movant outweighs
whatever damage the proposed injunction may cause the opposing party; and (4)

Case 1:10-cv-02850-TCB Document 23 Filed 10/04/10 Page 7 of 16
that if issued, the injunction would not be adverse to the public interest. See Baker v. Buckeye Cellulose Corp., 856 F.2d 167,169 (1lth Cir. 1988).
In this circuit, these standards are more stringently applied than in all of the other circuits, and the movant must clearly carry the burden of persuasion on all
four standards. See Jefferson County,720 F .2d at I5l9; Merial Ltd. v. Roman,
2010 U.S. Dist. LEXIS 27263. "Only in rare instances is the issuance of a mandatory preliminary injunction proper."2 Harris v. Wilters,596 F.2d 678, 680
(5th Cir. 1979).3 Further, Plaintiffs must show an even greater likelihood of
success when the relief sought is mandatory rather than prohibitive. See Vincent v MARTA, 225 F . Stpp. 2d 1362, 1372 (N.D. Ga. 2002). When an action seeks to enjoin a goveflìment agency the traditional tack has been to give the agency wide
latitude in conducting its business. See id. In addition, an injunction which gives Plaintifß all or most of the relief to which they contend that they would be entitled to at trial is burdensome to Defendants. ,See Wright & Miller, 11,{ Fed. Prac. &
Proc. Civ. $ 2948.2 (2d ed.2010).
2 Although labeled an injunction, for at least some of the plaintifß, the relief Plaintifß seek is to mandate that DCH keep Plaintiffs on the SOURCE "rolls" or put them back on to receiving SOURCE services.
' pifth Circuit decisions rendered prior to September 30, 1981 are binding on this
Court. See Bonner v. City of Pritchard,66l F.2d 1206,1209 (1lth Cir. 1981).

Case 1:10-cv-02850-TCB Document 23 Filed 10/04/10 Page 8 of 16
Further, equity should not lie where there is a remedy at law. See Amoco Production Co. v. Village of Gambell,480 U.S. 531,542 (1987); A.A.A. Always Open Bail Bonds, Inc, v. DeKalb County,2004 U.S. Dist. LEXIS 30920 (N.D. Ga. 2004). In this case, Plaintiffs have a remedy at law in the state courts of Georgia via administrative and judicial review, to which they partially availed themselves of yet aborted by filing this lawsuit. See Complaint at tTT 13-18.
Moreover, this Court should abstain for reasons of comity. A party should not seek federal intervention while in midprocess with a state appellate review
system and should exhaust state appellate remedies before coming to the federal courts. See New Orleans Pub. Serv. Inc. v Council of the City of New Orleans,
491 U.S. 350,357 (1989); 3l toster Childrenv. Bush,329F.3d1255,1274-1282 (1lth Cir.2003); Burfordv. Sun Oil Co.,3l9 U.S. 315,318 (1943).
1. Plaintiffs are not likely to succeed on the
merits.
Plaintifß are unlikely to succeed on the merits in the case for a number of
reasons. First, the Eleventh Amendment bars suit against a state or one of its agencies or departments absent a waiver or valid congressional override. See Kentuclqt v. Graham,473 U.S. 159,169 (1985). The State of Georgia has
specifically preserved its sovereign immunity in its constitution. See Ga. Const. of

Case 1:10-cv-02850-TCB Document 23 Filed 10/04/10 Page 9 of 16
1983, Art. I, $ 2, T 9(Ð. While an exception to Eleventh Amendment immunity exists under Ex Parte Young,209 U.S. 123 (1908), it is limited to suits against individuals sued in their official capacity for prospective injunctive relief. See
Arizonøns for Official English v. Arizona,520 U.S. 43, 69 (1997). In this case,
those Plaintiffs who are no longer receiving SOURCE services are seeking retrospective relief, and thus, their claims are barred by the Eleventh Amendment.
Additionally, some courts have held that Congress failed to abrogate Eleventh Amendment immunity for states under Title II of the Americans with Disabilities Act ("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 United States v. Georgia,546 U.S. 151, 158-59 (2006); Wagan Clifton, Jr. v. Georgia Merit System,478F. Supp. 2d 1356,1368 (N.D. Ga.2007). Plaintiffs also rely on 28 C.F.R. $ 35.130(bX3) as support for their allegation that Defendants have discriminated against them and failed to accommodate them. See Memorandum in Support of Motion for Preliminary Injunction ("Memorandum") at27-28. To the extent that Plaintifß are utilizing the regulation relied upon as the vehicle for this suit, no private right of action exists in such a regulation
promulgated to implement the ADA. See American Ass'n of People with Disabìlities v. Harris, 605 F.3d 1124,1137 (L1th Cir. 2010).
9

Case 1:10-cv-02850-TCB Document 23 Filed 10/04/10 Page 10 of 16
In addition, Plaintiffs do not assert any claims in their complaint against Governor Perdue, Dr. Shelp, or the Department of Behavioral Health and Developmental Disabilities. As such they have failed to state a claim upon which relief can be granted regarding those defendants. See Fed. R. Civ. P. 12(bX6).
Plaintifß are not qualified individuals under the Rehabilitation Act or the ADA which provides that "no 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." 42 U.S.C. $ 12132. See also 42 U.S.C. $ 12101, 29 U.S.C. ç 794. In this case, Plaintifß are not being denied SOURCE services based on any particular disability, be it mental illness or developmental disability,
but instead are being denied such benefits because they otherwise do not meet the
program requirements which have been set forth legitimately by DCH. SeeBx. ".Ã" al lTlT 5-6. That is, they do not meet the requirements to receive SOURCE
services because they are not over 65 years of age or are not physically disabled.
See id.
Given that the state has not discriminated against Plaintiffs based on any
disability, Defendants are under no obligation to provide a particular type of
service. The United States Supreme Court held in Olmstead
10

Case 1:10-cv-02850-TCB Document 23 Filed 10/04/10 Page 11 of 16
We do not ...hold that the ADA imposes "on the States a 'standard of care' for whatever medical services they render, or that the ADA requires States to "provide a certain level of benefits to individuals with disabilities.' We do hold, however, that States must adhere to the ADA's nondiscrimination requirement with regard to the services they in fact
provide.
Olmsteqd v. L.C. ex rel. Zimring, 527 U.5.581, 603 (1999) (internal citations omitted). Section 504 of the Rehabilitation Act "'does not require affirmative action on behalf of handicapped person, but only the absence of discrimination."' Manecke v. School Bd. of Pinellas County,762F.2d9l2,92l (1lth Cir. 1985)
(quoting Smith v. Robinson, 468 U .5. 992, 1020 ( 198a); Southeastern Community
College v. Davis, 442U.5. 397 (1979)). "The State's responsibility, once it
provides community-based treatment to qualified persons with disabilities, is not
boundless ." Olmsteod, supra, 527 U.S. at 603. States are required only to make
"reasonable modifications" to avoid discrimination. Id. The modification
suggested by Plaintiffs would effect an entire reworking of the SOURCE program and would represent a significarrt alteration to that program which is not required
underthe ADA. See id. at592;28 C.F.R. $ 35.130(bX7). Further, Title II ofthe ADA does not expressly require public entities to make reasonable
accommodations for disabled individuals. See Bircoll v. Miami-Dade County, 480 F.3d 1072,1082 n.13 (1lth Cir. 2007).
11

Case 1:10-cv-02850-TCB Document 23 Filed 10/04/10 Page 12 of 16
2. Plaintiffs have not shown that they will
suffer irreparable harm. A showing of ineparable injury is the "sine qua non of injunctive relief." Siegel v. LaPore,234 F.3d 1163,II75 (l1th Cir. 2000)þer curiam). It cannot be presumed, even where there is a violation of constitutional rights. See id. at 7177. In all cases, a movant for preliminary injunction against a state or local
govefïrment must present facts that show a"teaI and immediate" threat of substantial, irreparable harm before a federal court will intervene. O'Shea v. Littleton,4l4 U.S. 488,494 (1974). See also Church v. City of Huntsville, 30 F.3d 1332,1337 (11th Cir. 1994) ("[A] party has standing to seek injunctive
relief only if th e party alleges, and ultimately proves, a real and immediate - as
opposed to a merely conjectural or hypothetical-threat of future injury.). The
United States Court of Appeals for the Eleventh Circuit has "emphasized on many occasions, the asserted irreparable injury 'must be neither remote nor speculative, but actual and imminent."' Siegel, supra,234F.3d at ll76-77(quoting Northeastern Fla. Chapter of the Ass'n of Gen. Contractors v. City of Jacksonville, 896F.2d 1283,1285 (11th Cir. 1990).
Plaintifß argue that they "are now likely to have to enter institutions" with the loss of SOURCE services. Complaint at fl 36 (emphasis supplied). See
12

Case 1:10-cv-02850-TCB Document 23 Filed 10/04/10 Page 13 of 16
Memorandum at 34. As noted infra, Plaintifß have not shown actual harm or the imminence thereof; their claims of harm are speculative. Further, there are numerous factors which might lead to Plaintifß' institutionalization Since Plaintiffs cannot show actual harm, they have not met this prong.
3. Plaintiffs cannot show that the threatened
injury to them outweighs the damage to
Defendants. On a motion for injunction, Plaintiffs bear the burden of showing that their perceived injuries outweigh the damage that the injunction might cause to Defendants. See Baker, supra,856 F. 2d at 169. In balancing the hardships, a court should consider whether the injunctive relief being sought is prohibitory or mandatory, as is the case here. ,See Wright & Miller, supra ç 2948.2. "Only in rare instances is the issuance of a mandatory preliminary injunction proper." Harris, supra,596F.2d at 680. In addition, where, as here, the injunction would
give Plaintifß all or most of the relief to which they would be entitled if they were successful atfrial on the merits, preliminary relief may be "excessively burdensome." SeeWright & Millet, sl¿pra) ç 2948.2.
Plaintiffs frame the balance to be determined as thus: their risk of
institutionalization as opposed to the cost to Defendants of Plaintiffs' care in an
t3

Case 1:10-cv-02850-TCB Document 23 Filed 10/04/10 Page 14 of 16
institution versus care in a community setting. See Memorandum at 36. First, their risk is speculative. Second, the injunctive relief sought by Plaintifß will force Defendants to make a significant alteration to the SOURCE program or to keep
certain consumers receiving SOURCE services who do not meet the program's requirements. As such, the risk to Defendants is much greater than to Plaintifß.
4. Public interest demands that the
injunction be denied. DCH submitted the SOURCE, program through the waiver-approval process
with CMS and obtained approval. See Ex. "A" ar"ll2. Plaintiffs do not meet the requirements to receive services through the SOURCE program. See id. The state
has a vested interest in maintaining the program standards it sets which have been approved by CMS. Plaintiffs have provided no evidence of actual harm, and thus, the scale weighs heavily against the grant of the Motion. The denial of the Motion would not disserve the public. See Tefel v. Reno,180 F.3d 7286,1295 (1lth Cir.
Leee).
T4

Case 1:10-cv-02850-TCB Document 23 Filed 10/04/10 Page 15 of 16

III. CONCLUSION
For the foregoing reasons, Plaintiffs' Motion for Preliminary Injunction is without merit and should be denied as to all Defendants.

Respectfully submitted,
THURBERT E. BAKER
Attorney General
DENNIS R. DUNN
Deputy Attomey General

033887 234098

s/SHALEN S. NELSON
SHALEN S. NELSON

636575

Senior Assistant Attorney General

s/|yIICFIELLE TOWNES
MICFIELLE TOWNES
Assistant Attorney General

7T4924

s/PENNY L. FIANNAH
PENNY HANNAH
Assistant Attorney General

323563

PLEASE SEND ALL
COMMLINICATIONS TO: MICFIELLE TOWNES Assistant Attorney General 40 Capitol Square, S.W. Atlarrta, Georgia 3 033 4- 1 3 00 Telephon e: 404-656-3 446 Facsimile : 404-463 -1062

15

Case 1:10-cv-02850-TCB Document 23 Filed 10/04/10 Page 16 of 16

CERTIFICATE OF SERVICE
I do hereby certi$z that I have this day filed electronically, the within and
foresoins DEFENDANTS' RESPONSE TO MOTION FOR PRELIMINARY I
INJUNCTION with the Clerk of the Court using the CMÆCF system which will
automatically send email notification of such filing to the following attorneys of
record:
C. Talley Wells, Esq. Atlanta Legal Aid Society, Inc. 246 Sycanrore Street Decatur, Georgia 30030
Charles R. Bliss, Esq. Atlanta Legal Aid Society, Inc. 246 Sycamore Street Decatur, Georgia 30030
This 4th day of October, 2010.

PE,NNY L. HANNAH Assistant Attorney General 40 Capitol Square, S.W.
Aflarfta, Georgia 3 03 3 4- 1 3 00 Telephon e: 404-65 6-3387 Facsimile : 404-463 -1062 E-mail : pharnah@law. ga. gov

sÆENNY L. HANNAH Georgia Bar No. 323563 Assistant Attorney General Counsel for Defendants

 
 Case 1:10-cv-02850-TCB Document 24 Filed 10/06/10 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

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

)

MITCHELL; and ROBERT CHAFFIN )

by his next friends, Tom Chaffin and

)

Lena Margareta Larsson Chaffin,

)

)

Plaintiffs,

)

)

v.

)

)

GEORGE ERVIN “SONNY” PERDUE )

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,

)

)

Defendants.

)

CIVIL ACTION FILE NO. 1:10-CV-2850-TCB

PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Defendants’ response to Plaintiffs'motion for preliminary injunction does not

address the overwhelming body of recent case law holding that States may not

terminate services needed to insure that individuals with disabilities can live in

1

Case 1:10-cv-02850-TCB Document 24 Filed 10/06/10 Page 2 of 17
community placements. Plaintiffs will address Defendants arguments in turn, but Defendants simply do not rebut this core argument in Plaintiffs’ opening brief.
FACTS Administrative Review
Defendants argue that the existence administrative review proceedings bar this action. Plaintiffs Knipp, Trogdon and Chaffin have received fair hearing through the Georgia Administrative process and have all lost. None has asked for agency review, the process under which the Department of Community Health reviews the administrative decisions made by independent hearing officers. (Trogdon Dec. ¶¶ 23-25; Usher Dec. ¶ 38; Knipp OSAH Decision; Second Dec. Ray Johnson). There is currently no administrative action pending for these plaintiffs.
Plaintiffs Kim and Heard have had their terminations from the SOURCE program reversed on procedural grounds and are currently reinstated. Ms. Heard was sent a second termination on July 19, 2010, which was appealed on August 6, 2010. (7/19/10 Heard Second Term. Letter; 8/6/10 Second Appeal for Heard). The Department of Community Health sent a letter on August 11, 2010 denying the request for an appeal based on the fact that an appeal was pending at the time. (8/11/10 Letter from DCH). Thus, no administrative action is pending for either of these Plaintiffs.
2

Case 1:10-cv-02850-TCB Document 24 Filed 10/06/10 Page 3 of 17
Through a misunderstanding about his ongoing eligibility, Plaintiff Mitchell never requested administrative review of his SOURCE termination. His ALS provider believed he was still on the program and continued to provide him homebased services. He has no administrative appeal pending. (Mason Dec. ¶¶ 92-95). Source and the Medicaid Program
Defendants’ response focuses on the narrow issue of SOURCE history and the Medicaid Category under which the state placed it in 2008. Whatever its initial intention, SOURCE became a major tool in Georgia’s effort to provide community services to individuals who otherwise would be institutionalized for mental illness. (Shelp Decl. ¶ 41). Georgia has provided no comparable program to meet the needs of individuals with mental disabilities served under SOURCE.
Defendants’ response does not deny that they could continue SOURCE under a Medicaid waiver request pursuant to 42 U.S.C. § 1396n(i). The State of Georgia Planning Initiative on Mental Health and Addictive Services specifically noted, “All parties (state staff, state Medicaid officials, advocates and technical assistance resources) agree that expansion of the state’s Medicaid plan in the area of supported housing, supported employment and targeted case management services is desired.” Id. p. 2. Defendants neglect alternative delivery methods with federal Medicaid funding, and the possibility of providing services with state funds.
3

Case 1:10-cv-02850-TCB Document 24 Filed 10/06/10 Page 4 of 17
REPLY TO DEFENDANTS’ ARGUMENT A. Plaintiffs Have Standing
Four Plaintiffs have been terminated from the SOURCE program. The relief Plaintiffs seek is continuation of the services they currently receive as SOURCE benefits. This unquestionably gives them standing to contest their termination.
Two Plaintiffs, Kim and Heard, recently had their original notices of termination rescinded through the administrative process for procedural reasons.1 Defendants have not changed their policy of excluding persons with mental disabilities from the SOURCE program. Defendants have not advised Plaintiffs Kim and Heard they will not again be terminated. These two Plaintiffs reasonably anticipate they will be terminated. (In fact, the July 19, 2010 second termination of Ms. Heard may still be active). These Plaintiffs have standing because “there is a reasonable likelihood that [they] will again suffer the deprivation of [services] that gave rise to this suit.” Honig v. Doe, 484 U.S. 305, 318 (1988). See also Lynch v. Baxley, 744 F.2d 1452, 1457 (11th Cir. Ala. 1984) (Plaintiff has standing when “realistically threatened by a repetition” of the previous conduct.)
1 The notice of termination sent to the Plaintiffs did not comport with the notice requirements of the SOURCE Manual or federal regulations. (See e.g. Exhibit C of Defendant’s Brief (Heard Admin. Decision). The Administrative decision in Heard stated, “[a]lthough the Court concludes that this particular matter must be dismissed, this decision does not preclude the Respondent from reissuing a Notice of Termination ... as was done on July 19, 2010). (Id. at 10).
4

Case 1:10-cv-02850-TCB Document 24 Filed 10/06/10 Page 5 of 17
B. Plaintiffs Meet the Standard For Granting Preliminary Injunctive Relief.
Plaintiffs seek a preliminary injunction to continue SOURCE services they have all received for some time. They are not asking this Court to design novel relief, but simply to order continuation of benefits to keep them in their current community placements. Some of the Plaintiffs’ SOURCE payments have now lapsed due to the loss of administrative hearings, but all remain in the community placements obtained and paid for with SOURCE benefits. Ms. Trogdon of course continues to live at home. It is this status quo they seek to maintain through injunctive relief continuing or reinstating their services.
Defendants cite no authority for the proposition that the standards for preliminary injunction are applied “more stringently than in all of the other circuits.” (Def. Brief, p. 7). No matter the standard, Plaintiffs have made an overwhelming showing on all factors.
Defendants have submitted no factually similar cases and have not distinguished the numerous similar cases granting preliminary injunctive relief cited by Plaintiffs in their opening brief. Martin v. MARTA, 225 F. Supp. 2d 1362 (N.D. Ga. 2002), cited by Defendants, grants an extensive mandatory preliminary injunction, far more comprehensive than the basic preservation of the status quo requested in this case.
5

Case 1:10-cv-02850-TCB Document 24 Filed 10/06/10 Page 6 of 17
C. The Existence Of State Remedies Is Not A Bar To Relief Defendants argue that relief is barred because Plaintiffs have a remedy at law
under state law. (Def. Brief, p. 8). Exhaustion of state law remedies is not required under Title II of the ADA. Bledsoe v. Palm Beach County Soil and Water Conservation Dist., 133 F.3d 816, 824 (11th Cir. 1998) ("'An analysis of Title II regulations further makes clear that, while resort to administrative remedies is optional, it is not required.'"); Smith v. Indiana, 904 F. Supp. 877, 880 (N.D. Ind. 1995).
Defendants next argue that comity bars this action. The abstention cases cited rely on several factors not present here. First, there are no administrative actions currently pending. Second, there is no uniquely complicated issue of state law to be resolved. One case cited by Defendants, New Orleans Pub. Serv. In. v. Council of the City of New Orleans, 491 U.S. 350 (1989) rejects abstention under facts closer to meeting the standard than those here. It notes, “there is . . . no doctrine requiring abstention merely because resolution of a federal question may result in the overturning of a state policy." Zablocki v. Redhail, 434 U.S. 374, 380, n. 5 (1978). 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003) also does not support abstention. (“[A]n essential part of the . . .abstention analysis is whether the federal proceeding will interfere with an ongoing state court proceeding. If there is no
6

Case 1:10-cv-02850-TCB Document 24 Filed 10/06/10 Page 7 of 17
interference, then abstention is not required.” Id. at 1276). Here there is no state court proceeding in progress and currently, no administrative proceedings. D. Plaintiffs Are Likely To Succeed On The Merits
Defendants suggest that the Eleventh Amendment is a bar to this action. They then rightly recognize that injunctive relief is allowed under Ex parte Young, 209 U.S. 123 (1908). (Def. Brief, p. 9) Since this motion only requests injunctive relief, Defendants appear to acknowledge the availability of the relief requested.
Defendants also argue that Plaintiffs are seeking retrospective relief. (Def. Brief, p. 9). Plaintiffs have requested no such relief in this motion. It is worth noting that the immunity defenses raised by Defendants that may throw obstacles in the way of retrospective relief if preliminary injunctive relief is not granted.2
Defendants next argue that Plaintiffs cannot enforce the ADA and 28 C.FR. 35.130. (Def. Brief, p. 9). Olmstead v. LC, 527 U.S. 581 (1999) conclusively answered that argument and enforced these very mandates. Defendants cite no case to the contrary in the face of Plaintiffs’ citations to numerous cases enforcing these rights. Plaintiffs have stated a claim against the Defendants under Rule 12(b)(6).
2 Although only injunctive relief is sought here, the State of Georgia has waived its Eleventh Amendment immunity under Section 504, 42 USCS § 2000d-7. Congress has abrogated it for damage awards, at least for constitutional violations under the ADA. United States v. Georgia, 546 U.S. 151, 158-59 (2006). As Plaintiff is not seeking damages in this motion, the extent of those waivers is currently not relevant.
7

Case 1:10-cv-02850-TCB Document 24 Filed 10/06/10 Page 8 of 17
Plaintiffs are qualified people with disabilities. Defendants do not dispute that Plaintiffs are disabled. As in Olmstead, these plaintiffs have shown that they are “’qualified’ for noninstitutional care: The State's own professionals determined that community-based treatment would be appropriate for [them] and [none] opposed such treatment.” Olmstead, 527 U.S. at 602-603.
Our case is a direct continuation of Olmstead. The Court there held “Unjustified isolation . . . is properly regarded as discrimination based on disability.” Id. at 597. In Olmstead, the plaintiffs were in institutions at the time of filing the case. However, the Court recognized that once appropriate community services were provided, "There may be times [when] a patient can be treated in the community, and others when an institutional placement is necessary." 527 U.S. at 605. In fact, like the plaintiffs here, the Olmstead plaintiffs were repeatedly in and out of institutions. L.C. by Zimring v. Olmstead, 138 F.3d 893, 895 n. 2, 903, n. 9 (11th Cir. 1998). By the time of the Court of Appeals decision, L.C. had been in an appropriate community placement for over two years and E.W. had been since shortly after the District Court decision. Id.
Individuals with mental disabilities are entitled to services in the least restrictive environment in which they can be served. They can sue to avoid the threatened discrimination as well as to escape discrimination. This is why Courts
8

Case 1:10-cv-02850-TCB Document 24 Filed 10/06/10 Page 9 of 17
have repeatedly recognized that individuals in the community are entitled to continuation of their community services if the discontinuation would threaten them with a risk of institutionalization. Fisher v. Okl. Health Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003) (“protections 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”); Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161, 1170 (N.D. Cal. 2009); V.L. v. Wagner, 669 F. Supp. 2d 1106, 1119 (N.D. Cal. 2009); Mental Disability Law Clinic v. Hogan, 2008 U.S. Dist. LEXIS 70684 at *50 (E.D.N.Y. Aug. 28, 2008). All plaintiffs remain qualified people with disabilities because of their ongoing needs for community services to avoid institutionalization.
The Accommodations Plaintiffs Request Are Reasonable Defendants argue that continuing Plaintiffs’ services under the SOURCE program is not a reasonable modification. To evaluate that assertion, the Court should examine SOURCE’s place in Defendants’ treatment of people with mental illness. Georgia provides institutional services for the mentally ill. Beyond that, SOURCE is the major program allowing for community placement. (Shelp Decl. ¶ 41). It is the primary program that Defendant Dr. Shelp pointed to in his February 2010 Declaration, filed in the lawsuit between the United States Justice Department
9

Case 1:10-cv-02850-TCB Document 24 Filed 10/06/10 Page 10 of 17
and the State of Georgia, in his description of community services for people with mental illness in Georgia. (Shelp Dec. ¶¶ 42-47).
Plaintiffs do not request creation of a new program. Instead, they simply ask to continue to receive services under the SOURCE program that has served them, and that continues to serve people who do not have mental disabilities. No new providers or programs need be set up. Indeed, the opposite is true; providers will be deprived of clients if the services are eliminated. Not only is SOURCE treatment less expensive, it can be funded with Medicaid payments that are paid approximately 70% by the federal government.
Defendants identify no cases where program modifications like those requested here have been found unreasonable. Plaintiffs cited numerous cases in their opening brief that support such modifications. Fisher v. Okla. Health Care Auth., 335 F.3d at 1179 n.3 ; V.L. v. Wagner, 669 F. Supp. 2d at 1119 ; Marlo M. v. Cansler, 679 F. Supp. 2d at 638-39 (Preliminary injunction against reduction of home based Medicaid services for two plaintiffs); Knowles v. Horn, 2010 U.S. Dist. LEXIS 11901 *12-13 (N.D. Tex. Feb. 10, 2010)(Continuation of extensive home based services ordered, noting they can be paid for with entirely state funds if necessary).
In addition to the cases that support all Plaintiffs, Plaintiff Trogdon is also
10

Case 1:10-cv-02850-TCB Document 24 Filed 10/06/10 Page 11 of 17
entitled to services under the analysis of Olmstead and Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003). Ms. Trogdon has recently been found eligible for the NOW-COMP waiver program. This entails a decision that she is eligible for level of care in a hospital, nursing facility, or institution for individuals with mental retardation. 42 CFR 441.303(f)(5). Like the plaintiff class in Townsend, Ms. Trogdon would prefer to receive the services she is entitled to at home (for far less expense). This is the essence of Olmstead and Ms. Trogdon’s case parallels Townsend. Further, Ms. Trogdon is an individual plaintiff making the accommodation far less onerous than the class wide relief in Townsend.
Defendants have not submitted evidence to make out a fundamental alteration defense that accommodating plaintiff would somehow impair provision of services to other individuals in need of mental health series. See Olmstead, 527 U.S. at 605606. No matter what facts Defendants present, they cannot make a fundamental alteration defense because they do not meet the baseline requirement: they cannot show that they have a plan to expand and provide community services to those in need of such services to avoid institutionalization. Frederick L. v. Dep't of Pub. Welfare of Pa., 422 F.3d 151, 177-79 (3d Cir. 2005); Sanchez v. Johnson, 416 F.3d 1051, 1067-1068 (9th Cir. 2005). Instead Defendants are going backward. They are eliminating the program that has provided community placements for mentally ill
11

Case 1:10-cv-02850-TCB Document 24 Filed 10/06/10 Page 12 of 17
individuals with no replacement program and not even any transition services. The fundamental alteration defense is available only if states can show a plan and good faith progress. In regard to the elimination of the SOURCE program, Defendants cannot make this showing. E. Plaintiffs Have Shown They Are Likely To Suffer Irreparable Harm
Contrary to Defendants’ bald assertion, all Plaintiffs have offered substantial evidence of the likelihood of irreparable harm. Dr. Richard Elliot, who examined the Plaintiffs and their medical records stated that Lars Knipp would likely decompensate and be institutionalized if he lost his SOURCE services. (Elliot Decl. ¶¶ 33-34) He stated that Mr. Kim would likely be a threat to himself or others, be hospitalized or incarcerated, and if he failed to take his seizure medications might suffer permanent injury or death. (Elliot Decl. ¶¶ 41-43) He stated Ms. Trogdon would likely be admitted to an institution. (Elliot Decl. ¶ 60). Ms. Heard would likely decompensate and be hospitalized or incarcerated. (Elliot Decl. ¶ 69). Mr. Mitchell would likely become non-compliant with his medication, decompensate and be hospitalized. (Elliot Decl. ¶ 77). Mr. Chaffin was at risk of an exacerbation of his already serious symptoms and institutionalization if he cannot continue in his SOURCE living arrangement. (Elliott Decl. ¶¶ 91-94).
The Plaintiffs’ history of institutionalization buttresses this expert evidence.
12

Case 1:10-cv-02850-TCB Document 24 Filed 10/06/10 Page 13 of 17
Mr. Knipp was hospitalized 9 times from July 2006 to December 2009 prior to his current SOURCE placement. (Stone Decl. ¶ 9; Elliott Decl. ¶ 18; Knipp Medical records generally). Since obtaining SOURCE, he has not been institutionalized in 10 months.
Mr. Kim went to his current SOURCE placement in February 2009 after he had been in and out of Summit Ridge Hospital on several occasions for hurting himself and causing property damage. (Kim Decl. ¶¶ 11-17; Mason Decl. ¶ 21; Kim Med. pp. 185-189; 467-68; 617-620; 659-660; 706-710). He has continued to need occasional institutional care while in his SOURCE placement, but the stays have generally been short. The availability of the level of services in the SOURCE placement has facilitated his return to the community from institutions. (Mason Decl. ¶ 26; Elliott Decl. ¶ 39; Kim Med. pp. 906-12; 966).
Ms. Heard came to Gwinnett Homes in December 2007 after being in Anchor Hospital from November 11, 2007 to December 28, 2007. (Mason Decl. ¶49; Heard Medical Records (“Heard”) pp. 9-11). She required an additional institutional stay at Summit Ridge from February 23, 2009 to March 3, 2009. Ms. Heard was able to be discharged from Summit Ridge quickly because she had a stable place to which to return where she could receive ALS and other services. (Mason Decl. ¶¶ 57-58).
Mr. Mitchell came to Gwinnett Homes in October 2008 after having been at
13

Case 1:10-cv-02850-TCB Document 24 Filed 10/06/10 Page 14 of 17
Georgia Regional Hospital Atlanta for four months for his mental illness. (Mason Decl. ¶¶ 76-77). The Georgia Regional Hospital social worker and Ms. Mason worked out that Mr. Mitchell would come to the personal care home with the understanding that he would apply for and receive SOURCE funding for ALS. (Mason Decl. ¶ 78).
Mr. Chaffin was hospitalized at least twice in 2003. (Elliot Decl. ¶ 81). Because of intense family support and placement in a SOURCE home, Mr. Chaffin has since avoided institutionalization. However, Dr. Elliott stated that Mr. Chaffin was one of the most severely mentally ill people he had met who was living in the community. (Elliot Decl. ¶ 79).
The Court must bear in mind that the harm of institutionalization presupposes that the Plaintiffs’ mental state will deteriorate dramatically. The incomprehensible pain of such decompensation is also irreparable harm.
The fact that Plaintiffs face a likelihood of irreparable harm is also shown by the most recent assessments conducted by the SOURCE program’s assessment nurses. (SOURCE assessments for all plaintiffs). The SOURCE nurses found that all of the Plaintiffs needed supervision or cuing at all times. (Id. at § C). They found that, based on their capacity, the Plaintiffs needed assistance or were totally dependent on others for help with managing their medications, shopping for
14

Case 1:10-cv-02850-TCB Document 24 Filed 10/06/10 Page 15 of 17

household items and food, meal preparation, managing finances, and ordinary household work. (Id. at § G). Plaintiffs will suffer irreparable injury if they lose the services that meet these extensive needs.
Finally, the likelihood of institutionalization of Plaintiffs is demonstrated by Defendants’ prior findings that all would require institutionalization in determining them eligible for the SOURCE program in the first place. While Defendants have changed the SOURCE program criteria to exclude participants whose needs are a result of mental disabilities, there is no change in the underlying condition of Plaintiffs that led to the determination they needed institutional services.
CONCLUSION This Court should grant the Motion for a Preliminary Injunction.
Respectfully submitted,

/s/ C. Talley Wells_________ C. Talley Wells Georgia Bar No. 747657 Atlanta Legal Aid Society, Inc. 246 Sycamore Street Decatur, GA 30030 404-377-0705 ext. 282 (phone) 404-377-2349 (fax) ctwells@atlantalegalaid.org

/s/ Charles R. Bliss________ Charles R. Bliss Georgia Bar Number 063385 Atlanta Legal Aid Society, Inc. 151 Spring Street NW Atlanta, GA 30303 (404) 614-3988 (404) 614-3997 (fax) crbliss@atlantalegalaid.org

15

Case 1:10-cv-02850-TCB Document 24 Filed 10/06/10 Page 16 of 17
CERTIFICATE OF COMPLIANCE The undersigned counsel certifies that the foregoing has been prepared in Times New Roman (14 point) font, as approved by the Court in L.R. 5.1.B. /s/ C. Talley Wells____ C. Talley Wells Georgia Bar No. 747657 Counsel for Plaintiffs
16

Case 1:10-cv-02850-TCB Document 24 Filed 10/06/10 Page 17 of 17

CERTIFICATE OF SERVICE

I certify that I have this day filed electronically, the foregoing Plaintiffs’

Reply Memorandum in Support of Motion for Preliminary Injunction with the Clerk

of the Court using the CM/ECF system that will automatically send email

notification of such filing to the following attorneys of record:

Michelle Townes Assistant Attorney General 40 Capitol Square, S.W. Atlanta, GA 30334-1300

Penny Hannah Assistant Attorney General 40 Capitol Square, S.W. Atlanta, GA 30334-1300

/s/ C. Talley Wells_________ C. Talley Wells Georgia Bar No. 747657 Atlanta Legal Aid Society, Inc. 246 Sycamore Street Decatur, GA 30030404-377-0705 ext. 282 404-377-2349 (fax) ctwells@atlantalegalaid.org

17

 
 Case 1:10-cv-02850-TCB Document 25 Filed 10/06/10 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

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

)

MITCHELL; and ROBERT CHAFFIN )

by his next friends, Tom Chaffin and

)

Lena Margareta Larsson Chaffin,

)

)

Plaintiffs,

)

)

v.

)

)

GEORGE ERVIN “SONNY” PERDUE )

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.

)

)

Defendants.

)

CIVIL ACTION 1:10-CV-2850-TCB

STATEMENT OF INTEREST OF THE UNITED STATES

The United States respectfully submits this Statement of Interest, pursuant to 28 U.S.C. § 517,1 because this litigation implicates the proper interpretation and

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

Case 1:10-cv-02850-TCB Document 25 Filed 10/06/10 Page 2 of 25
application of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101, 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 of an Act of Congress affecting the public interest.2 In their response filed on 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. interests of the United States in a suit pending in a court of the United States.” 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.”
2

Case 1:10-cv-02850-TCB Document 25 Filed 10/06/10 Page 3 of 25
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 October 28, 2010.3
INTRODUCTION 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.
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Case 1:10-cv-02850-TCB Document 25 Filed 10/06/10 Page 4 of 25
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

Case 1:10-cv-02850-TCB Document 25 Filed 10/06/10 Page 5 of 25
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 flexible support services as needed.4 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 ¶¶ 913.
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 Act and Olmstead. Instead, the United States addresses the limited question 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.
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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.
ARGUMENT 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 serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2). For those
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reasons, Congress prohibited discrimination against individuals with disabilities by
public entities:
[N]o qualified individual with a disa bility shall, by reason of such disability, be excluded fr om participation in or be de nied the benefits of the services, program s, or ac tivities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C. § 12132.5
One form of discrimination prohibited by the ADA is a violation of the
“integration mandate.” The integration mandate arises out of Congress’s explicit
findings in the ADA, the regulations of the Attorney General implementing title II,6 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 are required to provide community-based services to persons with
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).
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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. 555, 560-61 (1992).7 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
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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
plaintiffs who were not then in custody of the state could not allege injury for 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.
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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
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defendants to provide community-based services to plaintiff to prevent
unnecessary placement in a nursing home); Marlo M. v. Cansler,
679 F. Supp. 2d 635, 637 (E.D.N.C. 2010) (granting preliminary injunction in case
where plaintiffs were at risk of institutionalization); Cota v. Maxwell-Jolly, 688 F.
Supp. 2d 980, 985 (N.D. Cal. 2010) (granting preliminary injunction where cuts to
community-based services placed plaintiffs at risk of institutionalization), appeal docketed No. 10-15635 (9th Cir. Mar. 24, 2010). 8
8 See also Ball v. Rogers, No. 00-67, 2009 WL 1395423, at *6 (D. Ariz. April 24, 2009) (holding that defendants’ failure to provide adequate services to avoid unnecessary institutionalization was discriminatory); Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161,1164 (N.D. Cal. 2009) (granting preliminary injunction where plaintiffs were at risk of institutionalization due to cuts in community-based services); V.L. v. Wagner, 669 F. Supp. 2d 1106, 1109 (N.D. Cal. 2009) (preliminarily enjoining cuts to community-based services where plaintiffs demonstrated risk of institutionalization), appeal docketed, No. 09-17581 (9th Cir. Nov. 11, 2009); Crabtree v. Goetz, No. 3:08-0939, 2008 WL 5330506, at *30 (M.D. Tenn. Dec. 19, 2008) (“Plaintiffs have demonstrated a strong likelihood of success on the merits of their [ADA] claims that the Defendants’ drastic cuts of their home health care services will force their institutionalization in nursing homes.”) M.A.C. v. Betit, 284 F. Supp. 2d 1298, 1309 (D. Utah 2003) (ADA’s integration mandate applies equally to those individuals already institutionalized and to those at risk of institutionalization); Makin v. Hawaii, 114 F. Supp. 2d 1017, 1034 (D. Haw. 1999) (holding that individuals in the community on the waiting list for community-based services offered through the State’s Medicaid program, could challenge administration of the program as violating Title II’s integration mandate because it “could potentially force Plaintiffs into institutions”).
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B. The Risk of Institutionalization Need Not Be “Imminent” Defendants’ assertion that plaintiffs must show that their institutionalization is “imminent” is similarly without merit. Defs.’ Resp. at 5-6. The elimination of services that have enabled plaintiffs to remain out of settings that are more restrictive than their current settings violates the ADA, regardless of whether it causes them to be immediately hospitalized, or whether it causes them to decline in health over time and eventually enter a hospital to seek necessary care. Indeed, in Fisher, the first United States Circuit Court case to explicitly recognize risk-ofinstitutionalization claims, there was no allegation that the defendants’ actions threatened any of the plaintiffs with immediate institutionalization. 335 F.3d at 1185. Rather, the evidence showed that many of the plaintiffs would remain in their homes “until their health ha[d] deteriorated” and would “eventually end up in a nursing home.” Id. (emphasis added); see also V.L., 669 F. Supp. 2d at 1120 (concluding that plaintiffs may establish a violation of the integration mandate by showing that the denial of services could lead to an eventual “decline in health” that puts them at “risk [of] being placed in a nursing home.”) As plaintiffs have demonstrated here, their continued stability is highly dependent upon the services that they currently receive through the SOURCE program. (Elliott Decl. ¶¶ 31-33, 41-43, 60, 69, 77, 93-95). The elimination of
12

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those services without any services to replace them puts them at serious risk of placement in more restrictive settings. (Id. ¶¶ 34, 42, 60, 69, 75, 77, 96.)
II. Plaintiffs Satisfy the Requirements for a Preliminary Injunction To obtain a preliminary injunction, the moving party must show (1) a substantial likelihood of success on the merits, (2) that he will be irreparably harmed in the absence of an injunction, (3) that the balance of the equities favors granting the injunction, and (4) that the public interest would not be harmed by the injunction. Mesa Air Group, Inc. v. Delta Air Lines, Inc., 573 F.3d 1124, 1128 (11th Cir. 2009). The decision whether or not to issue a preliminary injunction lies within the sound discretion of the trial court. Charles H. Wesley Educ. Foundation, Inc. v. Cox, 408 F.3d 1349, 1354 (11th Cir. 2005). The “primary justification” for the issuance of a preliminary injunction is to preserve the court’s ability to render a meaningful decision on the merits. Canal Authority of the State of Florida v. Callaway, 489 F.2d 567, 573, 576 (5th Cir. 1974).9 Here, preliminary injunctive relief is necessary to prevent the irreparable harm of unnecessary and 9 See also Cox, 408 F.3d at 1351 (affirming preliminary injunction in a voting rights acts case requiring defendants to process voter registration applications); Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1425 (11th Cir. 1984) (issuing preliminary injunction requiring defendants to display notices and instruct employees and agents of nondiscrimination policies and finding that “when housing discrimination is shown it is reasonable to presume that irreparable injury flows from the discrimination”); Haddad Op., at 39 (issuing preliminary injunction requiring defendants to provide community-based services to plaintiff);
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repeated institutionalization in a psychiatric hospital caused by defendants’ termination of services. See Long v. Benson, No. 08cv26, 2008 WL 4571903 *2 (N.D. Fla. Oct. 14, 2008) (granting preliminary injunction requiring Florida to provide Medicaid-funded community-based services because irreparable injury would result if plaintiff were forced to enter a nursing home), aff’d, No. 08-16261, 2010 WL 2500349 (11th Cir. June 22, 2010).
A. Plaintiffs Are Likely to Succeed on the Merits To establish a violation of Title II of the ADA, a “plaintiff must prove that (1) she has a disability; (2) she is a qualified individual; and (3) she was subjected to unlawful discrimination because of her disability.” Morisky v. Broward County, 80 F.3d 445, 447 (11th Cir. 1996).10 Defendants do not dispute that plaintiffs are persons with disabilities within the meaning of the ADA and the Rehabilitation Act. Nor do they dispute that plaintiffs are eligible to receive services in the State’s mental health service system. Instead, defendants contend that plaintiffs fail to meet the eligibility criteria of the SOURCE program because “they do not meet the program requirements which have been set forth legitimately by [the defendants].” Defs’ Resp. at 10. Defendants also assert that continuing to provide 10 Claims under the ADA and the Rehabilitation Act are treated identically unless, unlike here, one of the differences in the two statutes is pertinent to a claim. Allmond v. Akal Sec., Inc., 558 F.3d 1312, 1316 n.3 (11th Cir. 2009); Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
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SOURCE services to the plaintiffs would be a fundamental alteration of that
program. Id. at 11. These arguments are without merit.11
1. Plaintiffs Are Qualified Individuals with Disabilities Under the ADA, a “qualified individual with a disability” is “an individual
with a disability who, with or without reasonable modifications to rules, policies,
or practices … meets the essential eligibility requirements for receipt of services or
the participation in programs or activities provided by the public entity.” 42
U.S.C. § 12131(2). The defendants argue that plaintiffs are not eligible for the
SOURCE program because the defendants have implemented practices that
exclude plaintiffs from that program. The relevant program for purposes of this
analysis, however, is not the SOURCE program, which the State is now
11 Defendants raise an additional argument that “[t]o the extent that Plaintiffs are utilizing the regulation relied upon as the vehicle for this suit, no private right of action exists in such a regulation promulgated to implement the ADA.” Defs.’ Resp. at 9. This argument misconstrues plaintiffs’ claims. Plaintiffs are not relying solely upon the ADA regulations as the basis for their action. Rather, they are alleging a violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132. Accordingly, American Association of People with Disabilities v. Harris (“AAPD”), 605 F.3d 1124 (11th Cir. 2010) is inapplicable here. In AAPD, the court found that there was no legal basis for an injunction because the district court’s ruling did not hold that the defendants had violated the ADA, instead it ordered the defendant to comply with the regulation alone. 605 F.3d at 1131. The AAPD court’s entire analysis considers whether the regulation provides “a freestanding cause of action.” However, no freestanding cause of action is being alleged in this case. See also Haddad Op. at 25-26 (holding that AAPD presents no bar to the plaintiff’s integration claims where she is asserting a violation of the ADA).
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administering in a way that excludes plaintiffs. The relevant program is the State’s program of services for persons with mental disabilities, which includes community-based services funded by SOURCE and other means, as well as services provided in institutions. Defendants do not dispute that plaintiffs are eligible for and do receive services in the State’s mental health service system. The State is required to provide those services in the most integrated setting appropriate to the needs of the plaintiffs. Given that plaintiffs have been successfully served with support services in their current settings, there can be no dispute that they are qualified to remain in those settings with adequate services.
2. Plaintiffs’ Current Level of Services Can Be Maintained With Reasonable Modifications to the State’s Service System
With reasonable modifications to its service system, the State could maintain the services necessary to enable plaintiffs to avoid unnecessary hospitalizations. Given that the plaintiffs have been receiving services in their current settings for almost two years, it is clear that a service delivery system is already in place and that plaintiffs are connected to a network of caregivers. Indeed, defendants have failed to muster any support for their assertion that the relief sought would “effect an entire reworking of the SOURCE program and would represent a significant alteration to that program.” Defs’ Resp. at 11.
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Moreover, as defendants do not dispute, it is far less costly to serve individuals with disabilities outside the setting of a psychiatric hospital or other similar settings. See Georgia Department of Community Health, Division of Medical Assistance, Policies and Procedures for Service Options Using Resources in Community Environments at VI-1-2 (attached as Exhibit 5 to Pls.’ Mot. for Prelim. Inj., dated Sept. 10, 2010, ECF. No 11-6) (stating that the SOURCE program was created “to reduc[e] the need for long-term institutional placement and increas[e] the cost-efficiency and value of Medicaid [Long-term Care] funds by reducing inappropriate emergency room use, multiple hospitalizations, and nursing home placement caused by preventable medical complications.”).
Defendants could also pursue other options for obtaining federal funding for services they provide to persons with mental disabilities. Partial federal funding could be available through the Medicaid program, either through rehabilitative or personal care benefits available under the State Medicaid plan, through a home and community-based services program established in the State plan under Section1915 (i) of the Social Security Act, 12 or, when Medicaid would
12 Under Section 1915(i), States can provide home and community-based services through a state plan service package that does not require that recipients meet the nursing home level of care. Under the Affordable Care Act, P.L. 111-148 & P.L. 111-152, States are now permitted to target specific 1915(i) services to Statespecified populations. See State Medicaid Director Letter, Re: Improving Access
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otherwise cover institutional care, through a program to furnish home and
community-based services operating under a waiver of Medicaid requirements pursuant to section 1915(c) of the Social Security Act.13
The plaintiffs thus have a substantial likelihood of success on the merits of
their claims.
B. Plaintiffs Will Suffer Irreparable Harm Without Injunctive Relief
Without a preliminary injunction preserving the status quo, the plaintiffs will
suffer irreparable harm. The plaintiffs’ medical expert has determined, based on
his assessments of the plaintiffs, that the loss of their current services would result
in the deterioration of their health and will require them to endure frequent
hospitalizations, long-term institutionalization, or incarceration. (Elliott Decl. ¶¶
31-33, 41-43, 60, 69, 77, 93-95). Thus, the harm the plaintiffs will endure is not
speculative and cannot be adequately remedied by a later decision from this Court.
to Home and Community-Based Services, August 6, 2010, available at http://www.cms.gov/smdl/downloads/SMD10015.pdf. 13 Although the State argues that it terminated SOURCE services to plaintiffs because of federal limitations of its existing Medicaid waiver programs, that argument is flawed. Defendants’ obligations under Olmstead are not defined by, or limited to, the scope of the Medicaid program. The Medicaid program provides an opportunity for the State to obtain partial federal funding to provide services, but the obligation of the State to ensure that individuals with disabilities are not needlessly institutionalized is independent of the Medicaid program. Even if the plaintiffs were not properly served in a particular Medicaid waiver program, the defendants could construct their program in a way that complies with both Medicaid and the ADA.
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As many courts have held, requiring an individual to submit to unnecessary institutionalization in order to receive needed services results in irreparable harm. See Marlo M., 679 F. Supp. 2d at 638 (finding that unnecessary instutitonalization constitutes irreparable harm and recognizing the “regressive consequences” that such placements would have on the individuals); Crabtree, 2008 WL 5330506, at *25 (finding that unnecessary institutionalization “would be detrimental to [plaintiffs’] care, causing, inter alia, mental depression, and for some Plaintiffs, a shorter life expectancy or death”); Long, 2008 WL 4571903, at *2 (finding irreparable harm where individual would be forced to leave his community placement and enter a nursing home and specifically recognizing the “enormous psychological blow” that such placements would cause). The disruptive and destabilizing effects of repeated hospitalizations or long-term entry into an institution cannot be understated.14
C. The Balancing of Hardships Tips in Plaintiffs’ Favor The hardship to defendants of continuing to provide services to the six plaintiffs in this action is negligible, and is unquestionably outweighed by the benefit of allowing plaintiffs to avoid placement in more restrictive settings. 14 The plaintiffs also face the substantial possibility of losing their current housing. For example, Mr. Knipp has received an eviction notice from his personal care home because he did not prevail on his administrative appeal to retain his SOURCE benefits. (Second Declaration of Ray Johnson ¶ 2).
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Long, 2008 WL 4571903 at *3 (N.D. Fla. Oct. 14, 2008) (“If, as it ultimately turns out, treating individuals like [the plaintiff] in the community would require a fundamental alteration of the Medicaid program, so that the Secretary prevails in this litigation, little harm will have been done. To the contrary, [plaintiff’s] life will have been better, at least for a time.”). Providing services to the plaintiffs in manner that prevents their institutionalization in a psychiatric hospital will also save defendants money. See p. 17 supra. The lack of hardship to defendants stands in stark contrast to the significant hardship the plaintiffs face if no injunction is granted.
D. Granting a Preliminary Injunction is in the Public Interest The public interest weighs heavily in favor of granting preliminary injunctive relief. There is a strong public interest in eliminating the discriminatory effects that arise from segregating persons with disabilities into institutions. As the Olmstead Court explained, the unjustified segregation of persons with disabilities stigmatizes them as incapable or unworthy of participating in community life. Olmstead, 527 U.S. at 600. Many courts have held that issuing injunctive relief to avoid unnecessary institutionalization furthers the public interest. See Long, 2008 WL 4571903, at *3; Haddad Op. at 38 (“[T]he public interest favors preventing the discrimination that faces Plaintiff so that she may avoid unnecessary
20

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institutionalization … [and] upholding the law and having the mandates of the ADA and Rehabilitation Act enforced….”); Wagner, 669 F. Supp. at 1122 (preliminary injunction enjoining the state from withdrawing community-based supports furthers the public interest); Cota, 688 F. Supp. 2d at 999 (preliminary injunction enjoining the state from implementing restrictive eligibility requirements for community-based services was in the public interest); Kathleen S. v. Dep’t of Pub. Welfare, 10 F. Supp. 2d 476, 481 (E.D. Pa. 1998) (“[I]t is clearly in the interest of the public to enforce the mandate of Congress under the Americans with Disabilities Act.”) Thus, granting a preliminary injunction in this matter to prevent the withdrawal of support services is in the public interest.
21

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CONCLUSION

For all the foregoing reasons, the Court should grant Plaintiffs’ Motion for

Preliminary Injunction. The United States respectfully requests to be present,

through its counsel, at the hearing on plaintiffs’ motion for preliminary injunction.

Dated: October 6, 2010

Respectfully submitted,

SALLY QUILLIAN YATES United States Attorney Northern District of Georgia
/s/ Mina Rhee___ MINA RHEE GA Bar No. 602047 AILEEN BELL-HUGHES GA Bar. No. 375505 Assistant United States Attorneys Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, Georgia 30303 Tel: (404) 581-6302 Fax: (404) 581-6163 Mina.Rhee@usdoj.gov
/s/ Mary R. Bohan MARY R. BOHAN (GA Bar. No. 420628) Deputy Chief Special Litigation Section U.S. Department of Justice

THOMAS E. PEREZ Assistant Attorney General
SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division
JOHN L. WODATCH, Chief PHILIP L. BREEN, Special Legal Counsel RENEE M. WOHLENHAUS, Deputy Chief /s/ Anne S. Raish ANNE S. RAISH Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. – NYA Washington, DC 20530 Tel: (202) 305-1321 Fax: (202) 307-1197 Anne.Raish@usdoj.gov
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Case 1:10-cv-02850-TCB Document 25 Filed 10/06/10 Page 23 of 25
Civil Rights Division 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Tel: (202) 616-2325 Fax: (202) 307-1197 Mary.Bohan@usdoj.gov Counsel for the United States
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Case 1:10-cv-02850-TCB Document 25 Filed 10/06/10 Page 24 of 25
CERTIFICATE OF COMPLIANCE The undersigned counsel certifies that the foregoing document was prepared in Times New Roman 14 point font, in compliance with L.R. 5.1.B.
/s/ Mina Rhee MINA RHEE Assistant United States Attorney Georgia Bar No. 602047

Case 1:10-cv-02850-TCB Document 25 Filed 10/06/10 Page 25 of 25

CERTIFICATE OF SERVICE
This is to certify that I have on this day electronically filed the foregoing
STATEMENT OF INTEREST OF THE UNITED STATES with the Clerk of
Court using the CM/ECF system, which will send notification of such filing to
all parties in this matter via electronic notification or otherwise:
Shalen S. Nelson Michelle Townes Penny L. Hannah Assistant Attorneys General 40 Capitol Square, S.W. Atlanta, GA 30334-1300
C. Talley Wells Charles R. Bliss Atlanta Legal Aid Society, Inc. 151 Spring Street NW Atlanta, GA 30303
This 6th day of October, 2010.

Assistant Georgia

/s/ Mina Rhee MINA RHEE
United States Attorney Bar No. 602047

 
 Case 1:10-cv-02850-TCB Document 54-2 Filed 12/17/12 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

LARS KNIPP, by his next friend,

*

Deborah Stone; JAMES KIM, by his *

next friend, Grace Kim; SUSANNAH *

TROGDON, by her next friend, Samuel *

Trogdon; SHAUN

*

MITCHELL; and ROBERT CHAFFIN *

by his next friends, Tom Chaffin and *

Lena Margareta Larsson Chaffin,

*

*

Plaintiffs,

*

*

v.

*

*

NATHAN DEAL, et al.,

*

*

Defendants.

*

CIVIL ACTION 1:10-CV-2850-TCB

SETTLEMENT AGREEMENT

Plaintiffs filed this action on September 10, 2010 along with a motion

requesting that a preliminary injunction be entered under the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101 and Section 504 of the Rehabilitation

Act (“Section 504”), 29 U.S.C. § 794a seeking to receive services available from

the state in the most integrated appropriate environment . Specifically, Plaintiffs

were receiving Medicaid Waiver services through the Service Options Using

Resources in a Community Environment (“SOURCE”) Medicaid Waiver.

Case 1:10-cv-02850-TCB Document 54-2 Filed 12/17/12 Page 2 of 12
Plaintiffs were either terminated or in the process of being terminated from SOURCE. Plaintiffs sought continuation of SOURCE or equivalent services citing the United States Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999), and alleging that they were at substantial risk of having to enter an institution without such services.
A hearing regarding the preliminary injunction was held on October 7, 2010. The Court entered a preliminary injunction through December 6, 2010, with the time for Defendants to file any defensive pleadings extended to and through December 16, 2010. The Court granted a series of consent motions to extend the preliminary injunction through February 3, 2011, April 4, 2011, June 6, 2011, August 8, 2011, December 12, 2011, April 16, 2012, June 19, 2012, September 18, 2012, and November 17, 2012 while the parties worked to fully resolve this matter.
As a result of the parties’ work to resolve this matter, the parties agree that this action should be finally concluded by entry of this Settlement Agreement. This Settlement Agreement is entered into by the parties as an amicable way of resolving all outstanding differences that may have existed in this case. This Settlement Agreement is intended and does fully and finally resolve any and all claims arising out of the Complaint filed by Plaintiffs.
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The parties agree that they will file a joint motion to seek the Court’s approval of this Settlement Agreement.
The parties do not object to the jurisdiction of the Court over this action and waive a hearing and the Entry of Findings of Fact and Conclusions of Law.
Accordingly, the parties hereby agree to the following: 1. This Settlement Agreement resolves all claims arising out of the issues between the Plaintiffs and Defendants in this lawsuit, including, without limitation, injunctive relief, declaratory relief, costs, and attorneys’ fees. 2. This Court has jurisdiction of the subject matter of this action and of the parties. 3. The terms and provisions of this Settlement Agreement are adequate, fair, reasonable, equitable, and just. The rights of the parties are adequately protected by this Settlement Agreement. 4. This Settlement Agreement conforms with the ADA and is not in derogation of the rights and privileges of any person. The entry of this Settlement Agreement will be in the best interests of the parties and the public. 5. The term “Plaintiffs” in this Settlement Agreement shall refer to Robert Chaffin, Shaun Mitchell, Susannah Trogdon, James Kim, and Lars Knipp.
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Case 1:10-cv-02850-TCB Document 54-2 Filed 12/17/12 Page 4 of 12
6. The term “Defendants” in this Settlement Agreement shall refer to Governor Nathan Deal, David A. Cook, in his official capacity as the Commissioner of the Georgia Department of Community Health (“DCH”) and Frank W. Berry, in his official capacity as Commissioner of the Georgia Department of Behavioral Health and Developmental Disabilities (“DBHDD”).
7. The Defendants shall give Plaintiffs reasonable accommodations based on their disabilities as required by law, including providing Plaintiffs with such state or Medicaid funded services that are reasonable and necessary in order to ensure that Plaintiffs do not have to live in a psychiatric hospital or nursing facility in order to receive medical or mental health services.
8. Robert Chaffin qualified for and is now receiving the SOURCE Medicaid Waiver. Defendants shall continue to provide Robert Chaffin the SOURCE Medicaid Waiver or equivalent Medicaid or Medicaid Waiver services for as long as he continues to satisfy the eligibility criteria for such services. Mr. Chaffin also must comply with the policies and procedures of the SOURCE program and the Medicaid program.
9. Shaun Mitchell shall continue to receive the SOURCE Medicaid services at least through midnight on December 31, 2012. If he is found ineligible upon review after that date, then Defendants shall, prior to termination from such
4

Case 1:10-cv-02850-TCB Document 54-2 Filed 12/17/12 Page 5 of 12
program, provide Mr. Mitchell with a termination notice. In the case of a termination, Defendants will provide Mr. Mitchell with all of the due process, state, and federal rights he has under the law to appeal any such termination through the state administrative process. Mr. Mitchell also must comply with the policies and procedures of the SOURCE program and the Medicaid program.
10. Lars Knipp is not eligible for the SOURCE Medicaid Waiver. However, he qualified for and is now receiving the Comprehensive Supports (“COMP”) Medicaid Waiver in place of the SOURCE Medicaid Waiver. Defendants shall continue to provide Mr. Knipp the COMP Medicaid Waiver or equivalent Medicaid or Medicaid Waiver services for as long as he continues to satisfy the eligibility criteria of such services. Mr. Knipp also must comply with the policies and procedures of the COMP waiver and the Medicaid program.
11. Susannah Trogdon is not eligible for the SOURCE Medicaid Waiver. However, she qualified for and is now receiving from Defendants the COMP Medicaid Waiver. Defendants shall continue to provide Ms. Trogdon the COMP Medicaid Waiver or equivalent Medicaid or Medicaid Waiver services for as long as she continues to satisfy the eligibility criteria of any such services. Ms. Trogdon also must comply with the policies and procedures of the COMP waiver and the Medicaid program.
5

Case 1:10-cv-02850-TCB Document 54-2 Filed 12/17/12 Page 6 of 12
12. James Kim qualified for the SOURCE Medicaid Waiver. However, he also qualifies for, has chosen to receive, and is now receiving the Independent Care Waiver Program (“ICWP”) Medicaid Waiver in lieu of SOURCE. Defendants shall continue to provide Mr. Kim with the ICWP Medicaid Waiver or equivalent Medicaid or Medicaid Waiver services for as long as he continues to satisfy the eligibility criteria of any such services. Mr. Kim also must comply with the policies and procedures of the ICWP program and the Medicaid program.
13. James Kim also qualifies for and currently receives Assertive Community Treatment (“ACT”) Team services due to his diagnosis of severe mental illness and his repeated hospitalizations. He shall continue to qualify for and receive ACT services at least through May 11, 2013, and he shall continue to receive such ACT services after May 11, 2013 as long as he meets the eligibility criteria for such services and complies with applicable policies and procedures. The parties agree that Mr. Kim can continue to receive ACT and ICWP services simultaneously as long as he is eligible for each service. If Mr. Kim is discharged from ACT services due to ineligibility or noncompliance with applicable policies and procedures on or after May 11, 2013, then he must be given written notice of such discharge and full and adequate discharge planning, including being
6

Case 1:10-cv-02850-TCB Document 54-2 Filed 12/17/12 Page 7 of 12
connected to case management services or similar services for which he qualifies and chooses to receive.
14. Defendants shall pay the Atlanta Legal Aid Society, Inc. a total of one hundred thousand dollars ($100,000) as attorney’s fees and court costs. Defendants shall make such payment within thirty (30) days after receiving notice of the Court’s entry of this Settlement Agreement, by delivering to counsel for Plaintiffs, by United States Postal Service, certified mail return receipt requested, a business check made payable to the Atlanta Legal Aid Society, Inc. for such amount. Except as otherwise set out in this paragraph, the parties shall bear their respective attorney’s fees and costs incurred in this action up to the date of the signing of this Settlement Agreement.
7

Case 1:10-cv-02850-TCB Document 54-2 Filed 12/17/12 Page 8 of 12

15. All provisions of this Settlement Agreement shall continue in effect as

a Settlement Agreement between the parties governed by the laws of the State of

Georgia.

AGREED TO BY:

Attorneys for Defendants

SAMUEL S. OLENS Attorney General

551540

DENNIS R. DUNN Deputy Attorney General

234098

SHALEN S. NELSON

636575

Senior Assistant Attorney General

/s/ Michelle Townes Michelle Townes Assistant Attorney General

714924

_/s/ Penny Hannah_ Penny L. Hannah Assistant Attorney General

323563

8

Case 1:10-cv-02850-TCB Document 54-2 Filed 12/17/12 Page 9 of 12

Atlanta Legal Aid Society, Inc. 246 Sycamore Street Decatur, GA 30030 404-377-0705 ext. 282 (phone) 404-377-2349 (fax) ctwells@atlantalegalaid.org

Attorneys for Plaintiffs

/s/ C. Talley Wells_________________

C. Talley Wells

747657

Charles R. Bliss

063385

Order prepared by: C. Talley Wells Georgia Bar No. 747657 Atlanta Legal Aid Society, Inc. 246 Sycamore Street Decatur, GA 30030 770-817-7527 (phone) 404-377-2349 (fax) ctwells@atlantalegalaid.org

9

Case 1:10-cv-02850-TCB Document 54-2 Filed 12/17/12 Page 10 of 12
CERTIFICATE OF COMPLIANCE The undersigned counsel certifies that the foregoing has been prepared in Times New Roman (14 point) font, as approved by the Court in L.R. 5.1.B. /s/ C. Talley Wells____ C. Talley Wells Georgia Bar No. 747657 Counsel for Plaintiffs
10

Case 1:10-cv-02850-TCB Document 54-2 Filed 12/17/12 Page 11 of 12

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

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 *

MITCHELL; and ROBERT CHAFFIN *

by his next friends, Tom Chaffin and *

Lena Margareta Larsson Chaffin,

*

*

Plaintiffs,

*

*

v.

*

*

NATHAN DEAL, et al.,

*

*

Defendants.

*

CIVIL ACTION 1:10-CV-2850-TCB

CERTIFICATE OF SERVICE

I do hereby certify that I have on this day electronically filed this proposed Settlement Agreement with the Clerk of the Court using the CM/ECF system which will automatically send email notification of such filing to all attorneys of record.
(signature on next page)

11

Case 1:10-cv-02850-TCB Document 54-2 Filed 12/17/12 Page 12 of 12

This __17th____day of _December_______________, 2012.

Atlanta Legal Aid Society, Inc. 246 Sycamore Street Decatur, GA 30030 770-817-7527 (phone) 404-377-2349 (fax) ctwells@atlantalegalaid.org

/s/ C. Talley Wells C. Talley Wells Plaintiffs’ Attorney

747657

12

 
 Case 1:10-cv-02850-TCB Document 56 Filed 12/18/12 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

LARS KNIPP, by his next friend,

*

Deborah Stone; JAMES KIM, by his *

next friend, Grace Kim; SUSANNAH *

TROGDON, by her next friend, Samuel *

Trogdon; SHAUN

*

MITCHELL; and ROBERT CHAFFIN *

by his next friends, Tom Chaffin and *

Lena Margareta Larsson Chaffin,

*

*

Plaintiffs,

*

*

v.

*

*

NATHAN DEAL, et al.,

*

*

Defendants.

*

CIVIL ACTION 1:10-CV-2850-TCB

CONSENT ORDER APPROVING SETTLEMENT AGREEMENT

The parties to this action have settled this matter and have filed a joint

motion seeking the Court’s approval of this Settlement Agreement.

The parties do not object to the jurisdiction of the Court over this action and

waive a hearing and the Entry of Findings of Fact and Conclusions of Law.

It is ORDERED, ADJUDGED AND DECREED:

The attached Settlement Agreement is APPROVED. Furthermore, as

agreed, Defendants shall pay the Atlanta Legal Aid Society, Inc. a total of one

Case 1:10-cv-02850-TCB Document 56 Filed 12/18/12 Page 2 of 4
hundred thousand dollars ($100,000) as attorney’s fees and court costs. Defendants shall make such payment within thirty (30) days after receiving notice of the Court’s approval of this Settlement Agreement. Except as otherwise set out in this paragraph, the parties shall bear their respective attorney’s fees and costs incurred in this action up to the date of entry of this Settlement Agreement.
The parties do not need to file an answer or any further pleadings in this action as this case is settled. It is so ORDERED, this __11_88_tthh__ day of ____DD_ee_cc_ee_mm_bb_ee_rr____, 2012.
_______________________________ TIMOTHY C. BATTEN, SR.
2

Case 1:10-cv-02850-TCB Document 56 Filed 12/18/12 Page 3 of 4

CONSENTED TO AND AGREED TO BY: Attorneys for Defendants
SAMUEL S. OLENS Attorney General
DENNIS R. DUNN Deputy Attorney General

551540 234098

SHALEN S. NELSON

636575

Senior Assistant Attorney General

_/s/ Michelle Townes_______________

Michelle Townes

714924

Assistant Attorney General

_/s/ Penny L. Hannah_________________

Penny L. Hannah

323563

Assistant Attorney General

3

Case 1:10-cv-02850-TCB Document 56 Filed 12/18/12 Page 4 of 4

Atlanta Legal Aid Society, Inc. 246 Sycamore Street Decatur, GA 30030 404-377-0705 ext. 282 (phone) 404-377-2349 (fax) ctwells@atlantalegalaid.org

Attorneys for Plaintiffs

_/s/ C. Talley Wells__________________

C. Talley Wells

747657

Charles R. Bliss

063385

Order prepared by: C. Talley Wells Georgia Bar No. 747657 Atlanta Legal Aid Society, Inc. 246 Sycamore Street Decatur, GA 30030 770-817-7527 (phone) 404-377-2349 (fax) ctwells@atlantalegalaid.org

4

 
 Case: 1:10-cv-2850 As of: 02/21/2013 04:30 PM EST 1 of 8
4months,CLOSED
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:10−cv−02850−TCB

Knipp et al v. Perdue et al

Date Filed: 09/09/2010

Assigned to: Judge Timothy C. Batten, Sr

Date Terminated: 12/18/2012

Cause: 42:12101 et seq. Americans with Disabilities Act of 1990 Jury Demand: None

Nature of Suit: 446 Civil Rights:

Americans with Disabilities − Other

Jurisdiction: Federal Question

Plaintiff

Lars Knipp by his next friend, Deborah Stone

represented by Charles Richardson Bliss Atlanta Legal Aid Society, Inc. −Atl 151 Spring Street, N.W. Atlanta, GA 30303−2097 404−614−3988 Email: crbliss@atlantalegalaid.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Talley Wells Atlanta Legal Aid Society, Inc. − Decatur DeKalb County Regional Office 246 Sycamore Street Suite 120 Decatur, GA 30030−3434 770−817−7527 Fax: 404−377−2349 Email: ctwells@atlantalegalaid.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
James Kim by his next friend, Grace Kim

represented by Charles Richardson Bliss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Talley Wells (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Susannah Trogdon by her next friend, Samuel Trogdon

represented by Charles Richardson Bliss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles Talley Wells (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Ambi Heard TERMINATED: 04/28/2012

represented by Charles Richardson Bliss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:10-cv-2850 As of: 02/21/2013 04:30 PM EST 2 of 8

Plaintiff Shaun Mitchell
Plaintiff Robert Chaffin by his next friends, Tom Chaffin and Lena Margareta Larsson Chaffin

Charles Talley Wells (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles Richardson Bliss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Talley Wells (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles Richardson Bliss (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Talley Wells (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant George Ervin Sonny Perdue, III in his official capacity as Governor, State of Georgia
Defendant Clyde L. Reese, III in his official capacity as Commissioner, Georgia Department of Community Health
Defendant

represented by Michelle Townes State of Georgia Law Department 40 Capitol Square, S.W. Atlanta, GA 30334−1300 404−656−3446 Email: mtownes@law.ga.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Penny Hannah State of Georgia Law Department 40 Capitol Square, S.W. Atlanta, GA 30334−1300 404−656−3387 Email: phannah@law.ga.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle Townes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Penny Hannah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:10-cv-2850 As of: 02/21/2013 04:30 PM EST 3 of 8

Dr. Frank E. Shelp in his official capacity as Commissioner, Georgia Department of Behavioral Health and Developmental Disabilities

represented by Michelle Townes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Penny Hannah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor United States of America

represented by Anne S. Raish U.S.Dept. of Justice 950 Pennsylvania Avenue Washington, DC 20530 202−305−1321 Fax: 202−307−1197 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mina Rhee U.S. Attorneys Office − ATL 600 Richard Russell Building 75 Spring Street, S.W. Atlanta, GA 30303 404−581−6302 Email: mina.rhee@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/09/2010
09/09/2010 09/09/2010 09/09/2010 09/09/2010

# Docket Text
1 Affidavit in Support of Request to Proceed IFP by Lars Knipp. (Attachments: # 1 Complaint, # 2 Civil Cover Sheet, # 3 Certificate of Interested Persons and Corporate Disclosure Statement, # 4 Motion to Exceed Page Limits, # 5 Motion for Preliminary Injunction, # 6 Brief re Preliminary Injunction, # 7 Exhibit 1 re Preliminary Injunction, # 8 Exhibit 2 re Preliminary Injunction, # 9 Exhibit 3 re Preliminary Injunction, # 10 Exhibit 4 re Preliminary Injunction, # 11 Exhibit 5 re Preliminary Injunction, # 12 Exhibit 6 re Preliminary Injunction, # 13 Exhibit 7 re Preliminary Injunction, # 14 Exhibit 8 re Preliminary Injunction, # 15 Exhibit 9 re Preliminary Injunction, # 16 Exhibit 10 re Preliminary Injunction, # 17 Exhibit 11 re Preliminary Injunction, # 18 Exhibit 12 re Preliminary Injunction, # 19 Exhibit 13 re Preliminary Injunction, # 20 Exhibit 14 re Preliminary Injunction, # 21 Exhibit 15 re Preliminary Injunction, # 22 Exhibit 16 re Preliminary Injunction, # 23 Exhibit 17 re Preliminary Injunction, # 24 Exhibit 18 re Preliminary Injunction, # 25 Exhibit 19 re Preliminary Injunction, # 26 Exhibit 20 re Preliminary Injunction, # 27 Exhibit 21 re Preliminary Injunction, # 28 Exhibit 22 re Preliminary Injunction, # 29 Exhibit 23 re Preliminary Injunction, # 30 Exhibit 24 re Preliminary Injunction, # 31 Exhibit 25 re Preliminary Injunction)(alc) (Entered: 09/09/2010)
2 Affidavit in Support of Request to Proceed IFP by James Kim. (alc) (Entered: 09/09/2010)
3 Affidavit in Support of Request to Proceed IFP by Susannah Trogdon. (alc) (Entered: 09/09/2010)
4 Affidavit in Support of Request to Proceed IFP by Ambi Heard. (alc) (Entered: 09/09/2010)
5 Affidavit in Support of Request to Proceed IFP by Shaun Mitchell. (alc) (Entered: 09/09/2010)

Case: 1:10-cv-2850 As of: 02/21/2013 04:30 PM EST 4 of 8

09/09/2010 09/09/2010 09/10/2010 09/10/2010 09/10/2010 09/10/2010 09/10/2010
09/10/2010 09/13/2010 09/13/2010 09/13/2010 09/15/2010 09/16/2010

6 Affidavit in Support of Request to Proceed IFP by Robert Chaffin. (alc) (Entered: 09/09/2010)
Submission of 1 , 2 , 3 , 4 , 5 , and 6 Affidavits in Support of Request to Proceed IFP, submitted to Magistrate Judge Janet F. King. (alc) (Entered: 09/09/2010)
7 ORDER GRANTING the Plaintiffs' respective requests for leave to proceed in forma pauperis. The Clerk is DIRECTED to submit this action to the appropriate District Court Judge for a frivolity determination pursuant to 28 USC § 1915A. Signed by Magistrate Judge Janet F. King on 9/10/2010. (alc) (Entered: 09/10/2010)
8 COMPLAINT filed by Lars Knipp, James Kim, Susannah Trogdon, Shaun Mitchell, Ambi Heard, Robert Chaffin. (Attachments: # 1 Civil Cover Sheet)(alc) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 09/10/2010)
9 Certificate of Interested Persons and Corporate Disclosure Statement by Robert Chaffin, Ambi Heard, James Kim, Lars Knipp, Shaun Mitchell, Susannah Trogdon. (alc) (Entered: 09/10/2010)
10 MOTION to Exceed Page Limits re 11 Motion for Preliminary Injunction, filed by Robert Chaffin, Ambi Heard, James Kim, Lars Knipp, Shaun Mitchell, Susannah Trogdon. (alc) (Entered: 09/10/2010)
11 MOTION for Preliminary Injunction with Brief In Support by Robert Chaffin, Ambi Heard, James Kim, Lars Knipp, Shaun Mitchell, Susannah Trogdon. (Attachments: # 1 Brief in Support, # 2 Exhibit 1 − Declaration of Seema Mason, # 3 Exhibit 2 − Level of Care James Kim, # 4 Exhibit 3 − Level of Care Ambi Heard, # 5 Exhibit 4 − SOURCE Manual, # 6 Exhibit 5 − CCSP Manual ALS, # 7 Exhibit 6 − Declaration of Samuel Trogdon, # 8 Exhibit 7 − Declaration of Debra Stone, # 9 Exhibit 8 − Declaration of Betty Ushe, # 10 Exhibit 9 − Declaration of Ray Johnson, # 11 Exhibit 10 − Declaration of Dr. Richard Elliott, # 12 Exhibit 11 − Cost of Care Georgia Regional Hospital Atlanta (per diem), # 13 Exhibit 12 − Copy of Affidavit of Catherine Ivey, # 14 Exhibit 13 − Declaration of Dr. Frank Shelp, # 15 Exhibit 14 − Knipp Medical Records, # 16 Exhibit 15 − Declaration of Patrick Wooten, # 17 Exhibit 16 − Declaration of Grace Kim, # 18 Exhibit 17 − Medical Records of James Kim, # 19 Exhibit 18 − 1992 Psychological Addendum Susannah Trogdon, # 20 Exhibit 19 − 2000 Vineland Assessment for Susannah Trogdon, # 21 Exhibit 20 − August 2010 Report of Psychological Evaluation, # 22 Exhibit 21 − Medical Records for Ambi Heard, # 23 Exhibit 22 − Medical Records for Shaun Mitchell, # 24 Exhibit 23 − July 19, 2010 Reasonable Accommodation Letter to Defendants, # 25 Exhibit 24 − June 19, 2010 Reasonable Accommodation Letter to DBHDD, # 26 Exhibit 25 − Reasonable Accommodation Letter to DCH)(alc) (Entered: 09/10/2010)
Submission of 8 Complaint for frivolity determination, 10 MOTION for Leave to File Excess Pages, and 11 MOTION for Preliminary Injunction, submitted to District Judge Timothy C. Batten, Sr. (alc) (Entered: 09/10/2010)
12 INSTRUCTIONS TO PARTIES AND COUNSEL. Signed by Judge Timothy C. Batten, Sr. on 09/13/10. (fap) Modified on 9/13/2010 to correct docket text (fap). (Entered: 09/13/2010)
Notification of Docket Correction re 12 Instructions to Parties and Counsel. Redockted to correct event type and signature of Judge. (fap) (Entered: 09/13/2010)
13 ORDER allowing the action to proceed, as the allegations contained in Plaintiffs' 8 Complaint do not appear to be frivolous, nor do they fail to state a claim upon which relief can be granted. Signed by Judge Timothy C. Batten, Sr. on 9/13/2010. (alc) (Entered: 09/14/2010)
18 Summons Issued as to George Ervin Sonny Perdue, III, Clyde L. Reese, III, Frank E. Shelp. (alc) (Entered: 09/16/2010)
14 Return of Service Executed by Susannah Trogdon, James Kim, Lars Knipp, Robert Chaffin, Ambi Heard, Shaun Mitchell. Clyde L. Reese, III served on 9/15/2010,

Case: 1:10-cv-2850 As of: 02/21/2013 04:30 PM EST 5 of 8

09/16/2010 09/16/2010 09/16/2010
09/16/2010 09/17/2010 09/22/2010 09/22/2010 09/30/2010
10/04/2010 10/06/2010
10/06/2010 10/07/2010

answer due 10/6/2010. (Wells, Charles) (Entered: 09/16/2010)
15 Return of Service Executed by Susannah Trogdon, James Kim, Lars Knipp, Robert Chaffin, Ambi Heard, Shaun Mitchell. Frank E. Shelp served on 9/15/2010, answer due 10/6/2010. (Wells, Charles) (Entered: 09/16/2010)
16 Return of Service Executed by Susannah Trogdon, James Kim, Lars Knipp, Robert Chaffin, Ambi Heard, Shaun Mitchell. George Ervin Sonny Perdue, III served on 9/15/2010, answer due 10/6/2010. (Wells, Charles) (Entered: 09/16/2010)
17 CERTIFICATE OF SERVICE re 10 MOTION for Leave to File Excess Pages, 11 MOTION for Preliminary Injunction, 9 Certificate of Interested Persons Served on Each of Defendants with Complaint and Summons, filed by Robert Chaffin, Ambi Heard, James Kim, Lars Knipp, Shaun Mitchell, Susannah Trogdon (Wells, Charles) (Entered: 09/16/2010)
NOTICE of Hearing on Motion re: 10 MOTION for Leave to File Excess Pages, 11 MOTION for Preliminary Injunction Motion Hearing set for 10/7/2010 at 10:00 AM in ATLA Courtroom 1708 before Judge Timothy C. Batten Sr. (Plaintiff's counsel to serve Defense counsel with notice). (jgs) (Entered: 09/16/2010)
19 CERTIFICATE OF SERVICE re Notice of Hearing on Motion, filed by Robert Chaffin, Ambi Heard, James Kim, Lars Knipp, Shaun Mitchell, Susannah Trogdon (Wells, Charles) (Entered: 09/17/2010)
20 NOTICE of Appearance by Michelle Townes on behalf of George Ervin Sonny Perdue, III, Clyde L. Reese, III, Frank E. Shelp (Townes, Michelle) (Entered: 09/22/2010)
21 NOTICE of Appearance by Penny Hannah on behalf of George Ervin Sonny Perdue, III, Clyde L. Reese, III, Frank E. Shelp (Hannah, Penny) (Entered: 09/22/2010)
22 NOTICE Of Filing Supplemental Declarations in Support of 11 MOTION for Preliminary Injunction, filed by Robert Chaffin, Ambi Heard, James Kim, Lars Knipp, Susannah Trogdon, Shaun Mitchell. (Attachments: # 1 Second Declaration of Ray Johnson, # 2 Second Declaration of Sam Trogdon, # 3 August 30, 2010 Psychological Report for Susannah Trogdon)(Wells, Charles) Modified on 10/3/2010 accurately reflect title of e−filed documents. (dfb) Modified on 10/7/2010 to add filer info (alc). (Entered: 09/30/2010)
23 RESPONSE re 11 MOTION for Preliminary Injunction, filed by George Ervin Sonny Perdue, III, Clyde L. Reese, III, Frank E. Shelp. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Hannah, Penny) Modified on 10/7/2010 to remove duplicative text (alc). (Entered: 10/04/2010)
24 REPLY BRIEF re 11 MOTION for Preliminary Injunction filed by Robert Chaffin, Ambi Heard, James Kim, Lars Knipp, Shaun Mitchell, Susannah Trogdon. (Attachments: # 1 Exhibit: Second SOURCE Termination, Appeal, Denial for Ambi Heard, # 2 Exhibit: State Planning Initiative on Mental Health, # 3 Exhibit: SOURCE Assessments for Plaintiffs)(Wells, Charles) Modified on 10/7/2010 to remove Johnson, and add Trogdon, as filers (alc). (Entered: 10/06/2010)
25 STATEMENT of Interest of the United States re 11 MOTION for Preliminary Injunction, filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Rhee, Mina) (Entered: 10/06/2010)
26 Minute Entry for proceedings held before Judge Timothy C. Batten, Sr.: Motion Hearing held on 10/7/2010. Plaintiff's 10 Motion to Exceed Page Limits GRANTED and their 11 Motion for Preliminary Injunction GRANTED for 60 days. The injunction shall expire on 12/6/2010. Status quo pending the expiration of the 60 day period. The Court directed the Parties to attempt to settle this action. The Parties are also directed to investigate if this case is related to actions pending before Judge Charles Pannell of this Court. Should the Parties fail to reach a settlement, the time for the State to file a motion to dismiss is extended to 12/16/2010. The Dept. of Justice shall have until 12/16/2010 to file a brief regarding the constitutionality of the termination of the program. (Court Reporter Elise Smith−Evans)(alc) (Entered: 10/07/2010)

Case: 1:10-cv-2850 As of: 02/21/2013 04:30 PM EST 6 of 8

11/17/2010 11/18/2010
11/18/2010 01/21/2011 01/26/2011
03/15/2011 03/16/2011
04/13/2011 05/05/2011 05/20/2011 05/23/2011
06/09/2011 07/28/2011 08/02/2011

27 PROPOSED CONSENT ORDER to Extend Preliminary Injunction. (Hannah, Penny) (Entered: 11/17/2010)
28 CONSENT ORDER to Extend Preliminary Injunction. The deadline for the preliminary injunction to end is EXTENDED an additional 60 days, through and including 2/3/2011, and the time for Defendants to file any defensive pleadings is extended up to and through 2/14/2011. The Department of Justice shall have up to and through 2/14/2011 to file their brief regarding the constitutionality of the SOURCE program. Signed by Judge Timothy C. Batten, Sr. on 11/18/2010. (alc) (Entered: 11/18/2010)
Clerk's Certificate of Mailing as to atty Anne S. Raish re 28 Consent Order and 12 Instructions to Parties and Counsel. (alc) (Entered: 11/18/2010)
29 PROPOSED CONSENT ORDER To Extend Preliminary Injunction re: 28 Order,. (Hannah, Penny) (Entered: 01/21/2011)
30 CONSENT ORDER to extend 28 Preliminary Injunction Order. The deadline for the preliminary injunction to end is EXTENDED an additional 60 days, through and including 4/4/2011, and the time for Defendants to file any defensive pleadings is extended up to and through 4/15/2011. The Department of Justice shall have up to and through 4/15/2011 to file their brief regarding the constitutionality of the SOURCE program. Signed by Judge Timothy C. Batten, Sr. on 1/26/11. (pdw) (Entered: 01/26/2011)
31 PROPOSED CONSENT ORDER To Extend Preliminary Injunction. (Hannah, Penny) (Entered: 03/15/2011)
32 CONSENT ORDER to Extend Preliminary Injunction. The deadline for the preliminary injunction to end is EXTENDED an additional 60 days, through and including 6/6/2011, and the time for Defendants to file any defensive pleadings is extended up to and through 6/20/2011. The Department of Justice shall have up to and through 6/20/2011 to file their brief regarding the constitutionality of the SOURCE program. Signed by Judge Timothy C. Batten, Sr. on 3/16/2011. (acm) (Entered: 03/16/2011)
33 Mail Returned as Undeliverable. Mail sent to Anne S. Raish re 32 Consent Order Extending Preliminary Injunction. (hfm) (Entered: 04/15/2011)
34 Notice for Leave of Absence for the following date(s): 05/30/11, 05/31/11, 06/01/11, 06/02/11, 06/03/11, 06/06/11, 06/07/11, by Michelle Townes. (Attachments: # 1 Exhibit A)(Townes, Michelle) (Entered: 05/05/2011)
35 PROPOSED CONSENT ORDER to Extend Preliminary Injunction. (Hannah, Penny) (Entered: 05/20/2011)
36 CONSENT ORDER to Extend Preliminary Injunction. The deadline for the preliminary injunction to end is hereby EXTENDED through and including 8/08/2011, and the time for Defendants to file any defensive pleadings is extended up to and through 08/22/2011. The Department of Justice shall have up to and through 08/22/2011 to file its brief regarding the constitutionality of the SOURCE program. Signed by Judge Timothy C. Batten, Sr. on 05/23/2011. (rvb) (Entered: 05/23/2011)
37 Request for Leave of Absence for the following date(s): 7/11/11, 7/12/11, 7/13/11, 7/14/11, 7/15/11, 7/18/11, 8/1/11, 8/2/11, 8/3/11, 8/4/11, 8/5/11, by Charles Talley Wells. (Wells, Charles) (Entered: 06/09/2011)
38 PROPOSED CONSENT ORDER to Extend Preliminary Injunction. (Hannah, Penny) (Entered: 07/28/2011)
39 ORDER EXTENDING deadline through and including 10/10/2011 for the preliminary injunction to end. Time for dfts to file any defensive pleadings is extended up to and through 10/31/11. Dept of Justice shall have up to and through 10/31/11 to file its brief regarding the constitutionality of the SOURCE program. Signed by Judge Timothy C. Batten, Sr on 8/1/11. (jlm) (Entered: 08/02/2011)

Case: 1:10-cv-2850 As of: 02/21/2013 04:30 PM EST 7 of 8

08/02/2011 10/04/2011 10/04/2011
12/12/2011 12/14/2011
02/07/2012 02/07/2012
04/13/2012 04/13/2012
04/28/2012 06/13/2012 06/13/2012
06/15/2012 09/17/2012

Clerks Certificate of Mailing re 39 Order to Ann S. Raish, U.S. Dept of Justice. (jlm) (Entered: 08/02/2011)
40 PROPOSED CONSENT ORDER To Extend Preliminary Injunction re: 39 Order filed by George Ervin Sonny Perdue, III, Clyde L. Reese, III, Dr. Frank E. Shelp. (Hannah, Penny) Modified on 10/5/2011 to add filers (rej). (Entered: 10/04/2011)
41 CONSENT ORDER granting Parties' request to extend deadline for the preliminary injunction an additional sixty days, through and including December 12, 2011, and the time for Defendants to file any defensive pleadings is extended up to and through January 9, 2012. Further the Department of Justice shall have up to and through January 9, 2012 to file its brief regarding the constitutionality of the SOURCE program. Signed by Judge Timothy C. Batten, Sr on 10/4/11. (rsh) (Entered: 10/04/2011)
42 PROPOSED CONSENT ORDER To Extend Preliminary Injunction re: 41 Order, Set Deadlines/Hearings, Set Submission Deadline,,,. (Hannah, Penny) (Entered: 12/12/2011)
43 CONSENT ORDER extending the preliminary injunction through and including 2/13/12; extending time up to and through 3/12/12 for dfts to file any defensive pleadings and the DOJ shall have up to and through 3/12/12 to file its brief regarding the constitutionality of the SOURCE program. Signed by Judge Timothy C. Batten, Sr on 12/14/11. (jlm) (Entered: 12/14/2011)
44 PROPOSED CONSENT ORDER To Extend Preliminary Injunction re: 43 Order,. (Hannah, Penny) (Entered: 02/07/2012)
45 CONSENT ORDER GRANTING Parties' requests to extend deadline for the preliminary injunction to end, granting an additional sixty days, through and including April 16, 2012, and the time for Defendants to file any defensive pleadings is extended up to and through May 21, 2012. Further the Department of Justice shall have up to and through May 21, 2012 to file its brief regarding the constitutionality of the SOURCE program. Signed by Judge Timothy C. Batten, Sr on 2/7/12. (rsh) (Entered: 02/07/2012)
46 PROPOSED CONSENT ORDER Consent Order to Extend Preliminary Injunction. (Hannah, Penny) (Entered: 04/13/2012)
47 ORDER: Parties' requests are hereby GRANTED, the deadline for the preliminary injunction to end is hereby EXTENDED an additional sixty days, through and including June 18, 2012, and the time for Defendants to file any defensive pleadings is extended up to and through July 23,2012. Further the Department of Justice shall have up to and through July 23, 2012 to file its brief regarding the constitutionality of the SOURCE program. Signed by Judge Timothy C. Batten, Sr on 4/13/12. (rsh) (Entered: 04/13/2012)
48 STIPULATION of Dismissal Without Prejudice by Ambi Heard. (Wells, Charles) (Entered: 04/28/2012)
49 PROPOSED CONSENT ORDER To Extend Preliminary Injunction re: 47 Order,. (Hannah, Penny) (Entered: 06/13/2012)
50 CONSENT ORDER EXTENDING PRELIMINARY INJUNCTION an additional 90 days, through September 18, 2012. Time for Defendants to file any defensive pleadings is extended up to and through October 22,2012. Further the Department of Justice shall have up to and through October 22, 2012, to fle its brief regarding the constitutionality of the SOURCE program. Signed by Judge Timothy C. Batten, Sr on 6/13/12. (rsh) (Entered: 06/13/2012)
51 Notice for Leave of Absence for the following date(s): 7/2/12,7/3/12,7/4/12,7/5/12,7/6/12, by Michelle Townes. (Townes, Michelle) (Entered: 06/15/2012)
52 PROPOSED CONSENT ORDER Proposed Consent Order Extending Injunction Through November 17, 2012 and Related Extensions re: 50 Order,. (Wells, Charles) (Entered: 09/17/2012)

Case: 1:10-cv-2850 As of: 02/21/2013 04:30 PM EST 8 of 8

09/17/2012
12/17/2012 12/17/2012 12/18/2012 12/18/2012

53 ORDER GRANTING Parties request for an extension of 60 day for the preliminary injunction to end. The preliminary injunction is hereby EXTENDED an additional sixty days, through and including November 17, 2012, and the time for Defendants to file any defensive pleadings is extended up to and through December 21, 2012. Further the Department of Justice shall have up to and through December 21, 2012 to file its brief regarding the constitutionality of the SOURCE program. NO FURTHER EXTENSIONS WILL BE GIVEN. Signed by Judge Timothy C. Batten, Sr on 9/17/12. (jlm) (Entered: 09/17/2012)
54 Final MOTION for Settlement by Robert Chaffin, James Kim, Lars Knipp, Shaun Mitchell, Susannah Trogdon. (Attachments: # 1 Text of Proposed Order Consent Order Approving Settlement Agreement, # 2 Exhibit Settlement Agreement)(Wells, Charles) (Entered: 12/17/2012)
55 PROPOSED CONSENT ORDER Consent Order Approving Settlement Agreement re: 54 Final MOTION for Settlement . (Attachments: # 1 Exhibit Settlement Agreement)(Wells, Charles) (Entered: 12/17/2012)
56 CONSENT ORDER APPROVING Settlement Agreement. Signed by Judge Timothy C. Batten, Sr on 12/18/12. (jlm) (Entered: 12/18/2012)
Civil Case Terminated. (jlm) (Entered: 12/18/2012)