UNITED STATES DISTRICT COURT 
 FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION 


GEORGIA ADVOCACY OFFICE, INC.,
Plaintiff,
v.
FRANK SHELP, M.D., in his official capacity, as Commissioner, Georgia Department of Behavioral Health and Developmental Disabilities,
Defendant.

) 
 ) ) ) ) CIVIL ACTION FILE NO. ) 1:09-CV-2880-CAP ) ) ) ) ) )

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA 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 involves the proper interpretation and application of federal law, including the Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI Act”), 42 U.S.C. §§ 10801–10851, and the

1 Section 517 provides that the “Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.” 28 U.S.C. § 517. A submission by the United States pursuant to this provision does not constitute intervention under Rule 24 of the Federal Rules of Civil Procedure.

Developmental Disabilities Assistance and Bill of Rights Act of 2000 (“DD Act”), 42 U.S.C. §§ 15001–15115, known collectively as the “P&A Acts.” Accordingly, the United States has a strong interest in the resolution of this matter. See, e.g., Brief for the United States as Amicus Curiae, Va. Office for Prot. & Advocacy v. Reinhard, No. 09-529 (S. Ct. May 2010); United States’ Memorandum as Amicus Curiae, Conn. Office of Prot. & Advocacy for Pers. with Disabilities v. Connecticut, No. 3:06-cv-00179 (D. Conn. Nov. 25, 2009); Statement of Interest of the United States, Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. Servs. Admin., No. 1:06-cv-1816 (S.D. Ind. June 16, 2008); Brief for Intervenor United States of America, Iowa Prot. & Advocacy Servs., Inc. v. Tanager Place, No. 04-4074 (8th Cir. May 11, 2005). Indeed, the United States’ strong interest in this case is magnified by the grievous instances of abuse and neglect concerning individuals with mental illness and developmental disabilities alleged in our recent Complaints against the State of Georgia. See Amended Complaint, United States v. Georgia, No. 1:09-cv-119 (Jan. 28, 2010) (Doc. 53); Complaint, United States v. Georgia, No. 1:10-CV-249 (Jan. 28, 2010) (Doc. 1).
2


Statement
Plaintiff Georgia Advocacy Office, Inc., brings this action under 42 U.S.C.
§ 1983 for injunctive and declaratory relief to redress Defendant Commissioner
Frank Shelp’s alleged denial, partial denial, and delay of access to the state hospital
facilities, to the people confined in these institutions, and to records maintained by
Defendant and these facilities. See Amended Complaint [Doc. 7, ¶ 1] (hereafter,
“Am. Compl.”) Defendant challenges Plaintiff’s cause of action and claims that the requested relief is moot. See Answer [Doc.12, at 2].2 This Statement of
Interest by the United States addresses only the issue of the access authority
conferred on the Protection and Advocacy systems (“P&As”) under the P&A Acts.
The P&A Acts grant the P&As broad access to people, facilities, and records in
order to achieve the Acts’ goal of protecting vulnerable individuals from abuse and
neglect.
2 Defendant also raises defenses concerning sovereign immunity and Eleventh Amendment immunity, see Answer [Doc. 12, at 2], which the United States does not address at this time. However, the United States notes that the Seventh Circuit recently rejected those arguments as applied to a P&A, Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. Servs. Admin., 603 F.3d 365, 374 (7th Cir. 2010) (en banc) (“The Eleventh Amendment does not bar [the Indiana P&A’s] request for declaratory and injunctive relief against the named state officials.”), and the Supreme Court just granted certiorari on the issue, Va. Office for Prot. & Advocacy v. Reinhard, No. 09-529, 2010 WL 2471082 (S. Ct. June 21, 2010).
3


Statutory and Regulatory Background In 1975, Congress enacted the first of several grant programs that provide States funding to create P&As to protect individuals with disabilities or mental illness from abuse and neglect. The law was enacted in response to reports of severe abuse and neglect at a New York state institution for persons with developmental disabilities. See Pub. L. No. 94-103, § 203, 89 Stat. 486, 504 (1975); S. Rep. No. 93-1297 (1974), 1974 U.S.C.C.A.N. 6373, 6408-6409. Congress reauthorized the program in 2000 as part of the DD Act. 42 U.S.C. §§ 15001–15115. Similar concerns about abuse and neglect of individuals in state-run psychiatric facilities led to the enactment of the PAIMI Act, in 1986. See S. Rep. No. 99-109, reprinted in 1986 U.S.C.C.A.N. 1361, 1362–63. The PAIMI Act authorized additional funding for the same P&As established pursuant to the DD Act and expanded their mission to encompass the protection of individuals with mental illness. See Pub. L. No. 99-319, 100 Stat. 478 (1986). The PAIMI Act was reauthorized most recently in 2000. Pub. L. No. 106-310, § 3206, 114 Stat. 1101,
4


1193–95 (2000) (codified as amended at 42 U.S.C. §§ 10801–10851). Congress also has enacted several statutes that provide additional funding for the P&As.3
The federal statutes authorize the state-created P&As to investigate incidents
of abuse or neglect if such incidents are reported to the P&A or if the P&A has
probable cause to believe that an incident of abuse or neglect occurred. 42 U.S.C.
§§ 10805(a)(1)(A), 15043(a)(2)(B). To ensure that such investigations are
effective, the statutes vest P&As with investigatory powers, including a right of
access to records relevant to an investigation in enumerated circumstances.
42 U.S.C §§ 10805(a)(4), 15043(a)(2)(I) & (J). As the PAIMI Act makes explicit,
these rights of access are federal rights that exist even if “the laws of a State
prohibit [the P&A] from obtaining access to the records of individuals with mental
illness.” 42 U.S.C. § 10806(b)(2)(C); see Ctr. for Legal Advocacy v. Hammons,
323 F.3d 1262, 1272 (10th Cir. 2003) (“We agree that [PAIMI] language reveals a
3 See 29 U.S.C. § 794e (funding for P&As to serve persons with disabilities not eligible under previously established P&A programs); 29 U.S.C. § 3004 (funding for P&As to assist individuals with disabilities in obtaining assistive technologies); 42 U.S.C. § 1320b-21 (funding for P&As to assist beneficiaries of Social Security to secure or regain employment); 42 U.S.C. § 300d-53 (funding for P&As to serve individuals with traumatic brain injury); 42 U.S.C. § 15461 (funding for P&As to assist individuals with disabilities in the electoral process, through means other than litigation).
5


congressional intent to preempt state laws prohibiting access to records . . . .”); Pa. Prot. & Advocacy, Inc. v. Houstoun, 228 F.3d 423, 428 (3d Cir. 2000) (“PAIMI preempts any state law that gives a healthcare facility the right to withhold such records.”); see also U.S. Const., art. VI, cl. 2. In addition, the P&A statutes provide that a P&A shall have authority to pursue legal, administrative, and other appropriate remedies to ensure the protection of individuals with disabilities or mental illness. 42 U.S.C. §§ 10805(a)(1)(B), 15043(a)(2)(A)(I).
A state that chooses to participate in these federal spending programs has the option to designate either a state agency or a private nonprofit entity to serve as its P&A. See 42 U.S.C. §§ 10804(a)(1), 15044(a). In either case, to ensure that the P&A will be effective in investigating abuse and neglect at state-run (as well as private) facilities, the P&A must be independent of any state agency that provides treatment or services. See 42 U.S.C. §§ 10805(a)(2), 15043(a)(2)(G).
Summary of Facts The State of Georgia elects to participate in these federal spending programs and, thereby, receives federal funding to provide P&A services to individuals with disabilities. See Am. Compl., ¶ 5. Georgia chose to establish its P&A as a private,
6


non-profit corporation known as Georgia Advocacy Office, Inc.—the Plaintiff in this case. See Am. Compl., ¶ 4.
Pursuant to its authority under the P&A Acts, Plaintiff investigates deaths and incidents when it has probable cause to believe that abuse or neglect has occurred at state hospitals. 42 U.S.C. §§ 10805(a), 15043(a)(2)(B). As part of its investigatory process, Plaintiff requests records and conducts interviews of people believed to have relevant information about the incidents, and conducts on-site visits to the hospitals. See Am. Compl., ¶ 11. Plaintiff also relies on access to “peer review records” in its investigations—records produced by medical staff members or committees of medical staff who examine the care provided by a peer medical staff member “to determine whether the medical staff member under review has met accepted standards of care in providing health services.” See Am. Compl., ¶ 17. Peer records are particularly useful in investigations because they “disclose . . . the process and outcome of reviews by state hospital medical staff and any recommended corrective or remedial actions regarding incidents of patient abuse and neglect, injury, and death within these facilities.” Id.
Defendant is the Commissioner of the Georgia Department of Behavioral Health and Developmental Disabilities (“DBHDD”). See Am. Compl., ¶ 1.
7


DBHDD operates seven state run regional hospital facilities that provide services to individuals with mental illness and developmental disabilities, including Southwestern State Hospital. Am. Compl.,¶ 4.
Plaintiff alleges that Defendant routinely fails to comply with its requests for access to records, including peer review records, either by producing incomplete records, delaying the production of records for lengthy periods of time, or denying access altogether. See Am. Compl., ¶¶ 16, 18, 19. Plaintiff also alleges that Defendant has denied Plaintiff unaccompanied access to facilities and has prevented Plaintiff from interviewing or speaking to patients without a hospital staff member being present. See Am. Compl., ¶¶ 21, 22. Plaintiff alleges that timely and unrestricted access to records and individuals in the facilities is essential to fulfill its statutory mandate. See Am. Compl., ¶¶ 9, 13, 16, 19.
Plaintiff specifically alleges that it received information that a resident with mental illness had been subject to sexual abuse while confined at Southwestern State Hospital. See Am. Compl., ¶¶ 23, 24. After determining that there was probable cause that the abuse occurred, Plaintiff opened an investigation and informed Defendant that, on October 12, 2009, its representative would visit the Hospital to conduct an investigation and monitor the facility. See Am. Compl.,
8


¶¶ 26-27. Defendant’s employee denied Plaintiff’s access to the patient in question and to the hospital facility, alleging that a member of the hospital staff was not available to accompany Plaintiff on the investigation. See Am. Compl., ¶¶ 29, 30. Defendant acknowledges that hospital staff denied Plaintiff access to the facility, but claims that the victim of the abuse did not wish to meet with Plaintiff and that hospital staff was preoccupied with a site visit from the United States Department of Justice (“DOJ”).
Plaintiff filed a complaint with this Court seeking a temporary restraining order and a preliminary injunction. On December 9, 2009, the Parties informed the Court that they were trying to come to an agreement, and Plantiff withdrew its motion for preliminary injunction at that time. See Minute Entry, Dec. 9, 2009 [Doc. 11]. However, the Parties failed to reach an agreement and subsequently filed cross-motions for summary judgment. [Doc. 20, 25].
Discussion The federal P&A program was prompted by revelations of “inhumane and despicable conditions” in a state-run facility. Ala. Disabilities Advocacy Program v. J.S. Tarwater Developmental Ctr., 97 F.3d 492, 494 (11th Cir. 1996). For example, as alleged in our recently-filed Complaints against the State of Georgia,
9


individuals in the Georgia State Hospitals—the very facilities to which Plaintiff seeks access— have been subjected to homicide, rapes, suicides, suicide attempts, questionable medical deaths, assaults by peers, regression and loss of skills from inadequate treatment and services, harm from excessive restraint and administration of sedating medications, harm from inadequate medical and nursing care, harm from the lack of services to persons with specialized needs, harm from inadequate discharge planning, and harm from inadequate community-based supports and services. See Amended Complaint, United States v. Georgia, No. 1:09-cv-119, at ¶¶ 32–189 (Jan. 28, 2010) (Doc. 53); Complaint, United States v. Georgia, No. 1:10-CV-249, at ¶¶ 11–76 (Jan. 28, 2010) (Doc. 1).
Congress structured the P&A program to ensure that P&As would be effective in investigating abuse and neglect in state, as well as private, facilities. Id. Congress thus gave the P&As “broad access to records, facilities, and residents.” Id. at 497. Congress’ clear intent in establishing the P&A program was to create entities capable of protecting individuals who, by virtue of their disabilities, are unable to protect themselves. See, e.g., id. at 498 n.3 (“Congress legislated the [DD] Act to protect disabled people who are unable to protect themselves.”).
10


1. Access to Facilities and People In investigating suspected incidents of abuse or neglect, P&As are entitled to “reasonable unaccompanied access” to facilities and programs that provide services, supports, care, or treatment to individuals with disabilities, and to “all areas of the facility which are used by residents or are accessible to residents.” 42 C.F.R. § 51.42; 45 C.F.R. § 1386.22(f). This access includes the authority “to interview any facility service recipient, employee, or other persons, including the person thought to be the victim of such abuse, who might be reasonably believed by the system to have knowledge of the incident under investigation.” 42 C.F.R. § 51.42; 45 C.F.R. § 1386.22(f). Moreover, P&As are entitled to this access at the times “necessary to conduct a full investigation.” 42 C.F.R. § 51.42; 45 C.F.R. § 1386.22(f). 2. Access to Records To ensure that P&As have the tools that they need to investigate abuse effectively, Congress mandated that P&As have access to “all records” of a suspected victim of abuse or neglect. 42 U.S.C. §§ 10805(a)(4)(B)(iii), 15043(a)(2)(I)(ii)(III). In addition, Congress gave P&As the authority to pursue administrative, legal, and other appropriate remedies to ensure the protection of
11


individuals with mental illness or developmental disabilities who are receiving care or treatment in the State, 42 U.S.C. §§ 10805(a)(1)(B), 15043(a)(2)(A)(i).
In enacting the original PAIMI Act, Congress recognized that the P&As would need broad access to records in order to fulfill their mandate and expressed its intent to grant P&As the fullest possible access: “The Committee recognizes the need for full access to facilities and clients and to their records in order to ensure the protection of mentally ill persons. It is the intent of the Committee that the [P&A system] have the fullest possible access to client records . . . .” S. Rep. 109, 99th Cong., Sess. 10 (1985), reprinted in 1986 U.S.C.C.A.N. 1361, 1370. Indeed, Congress deemed access to facilities and records so vital to the protection of people with disabilities that, under the PAIMI Act, it granted P&A systems a right of access to patient records even if “the laws of a State prohibit [a system] from obtaining access to the records of individuals with mental illness.” 42 U.S.C. § 10806(b)(2)( c) (emphasis added).
3. Courts have interpreted P&A Access Authority Broadly To Fulfill the Mandates of the P&A Acts
Courts have taken a broad view of P&A access authority by consistently holding that facilities must permit the P&A to operate effectively and with broad
12


discretion and independence in accessing individuals, facilities and records for investigative purposes. See Disability Rights Wisc., Inc. v. Wisc. Dep’t of Pub. Instruction, 463 F.3d 719, 728–30 (7th Cir. 2006) (authorizing P&A access to records related to a state agency investigation into use of seclusion rooms for disciplining students at an elementary school); Conn. Office of Prot. & Advocacy for Pers. with Disabilities v. Hartford Bd. of Educ., 464 F.3d 229, 240–45 (2nd Cir. 2006) (authorizing P&A access to a school for children with disabilities to investigate complaints of abuse and neglect and to obtain a directory of students and contact information for parents and guardians). A number of Circuit Courts also have specifically required disclosure of peer review materials such as those requested by Plaintiff in the course of its investigations. See Ind. Prot. & Advocacy Servs, 603 F.3d at 382 (“In light of the language of the PAIMI Act itself . . . we join all other circuits that have addressed the issue and agree . . . that peer review records are ‘records’ under the PAIMI Act.”); Conn. Office of Prot. & Advocacy for Pers. with Disabilities v. Comm’r, Conn. Dep’t of Mental Health & Addiction Servs., 448 F.3d 119, 128 (2d Cir. 2006) (“[W]e join our sister circuits in holding that the plain language of PAIMI that grants . . . access to all records of any individual, including reports prepared by any staff of a facility, encompasses
13


peer review reports.” (internal quotation marks omitted)); Mo. Prot. & Advocacy
Servs. v. Mo. Dep’t of Health, 447 F.3d 1021, 1026 (8th Cir. 2006); Ctr. for Legal Advocacy, 323 F.3d at 1272; Pa. Prot. & Advocacy, 228 F.3d at 428.4
For example, in Alabama Disabilities Advocacy Program, 97 F.3d at 494, the
Eleventh Circuit granted a P&A access to medical records of deceased former
residents of a state facility for persons with developmental disabilities. The P&A
had received an anonymous telephone call alerting them to the residents’ deaths,
and the State refused to release the records. Id. at 495. In finding that the
anonymous telephone call constituted a complaint and established probable cause
of abuse or neglect, the court analyzed the case “within the broad remedial
framework” of the Act:
4 The United States Department of Health and Human Services, which administers the DD and PAIMI programs, see 42 U.S.C. §§ 15002(26), 15004, 10802(6), 10803, 10826, has promulgated regulations defining records as including certain evaluative materials, but stating that “nothing in this section is intended to preempt State law protecting records produced by medical care evaluation or peer review committees.” 42 C.F.R. § 51.41(c)(4); 45 C.F.R. § 1386.22(c)(1). As noted above, notwithstanding HHS’s regulations, a number of courts of appeals have ruled that the plain text of the PAIMI Act explicitly preempts state peer-review privileges. Whether a P&A system is entitled to obtain access to peer-review records when such records are privileged under state law is currently under regulatory review. See 73 Fed. Reg. 19,708, 19,731–32 (2008).
14


It is clear that the Act provides express authority for the P&As to gain broad access to records, facilities, and residents to ensure that the Act’s mandates can be effectively pursued. In adopting the provision of the Act mandating P&A access to facility residents, Congress gave substance to its intent to assure that the most vulnerable individuals [institutionalized persons] who may not be able to contact the P&A system will have access to protection and advocacy services. Id. at 497 (alteration in original) (internal citations and quotation marks
omitted).
And, in Mississippi Protection & Advocacy, Inc. v. Cotten, 929 F.2d
1054, 1059 (5th Cir. 1991), the Fifth Circuit upheld an injunction enjoining
the State from interfering with a P&A’s authority to access residents at a
state facility. The court held that the plain text of the DD Act required that
the state have an effective protection and advocacy system, agreeing with
the district court’s findings that “[t]he state cannot . . . establish[] a
protection and advocacy system which has . . . authority in theory, but then
tak[e] action which prevents the system from exercising that authority,” and
that the State’s restrictive practices reduced the P&A to offering “only a
fraction of the services to which [residents] are entitled.” Id. The court also
held that the State’s restrictive practices “rendered nugatory” the “authority
to investigate incidents of abuse and neglect,” and “render[ed] the state’s 15


requirement to have in effect a system to protect and advocate the rights of persons with developmental disabilities comatose if not moribund.” Id. (internal quotation marks omitted).
Conclusion Congress enacted the P&A Acts to protect individuals with developmental disabilities or mental illness from abuse and neglect—the very instances of abuse and neglect alleged against the State of Georgia in the United States’ recently-filed Complaints— and granted to the P&As broad access rights to fulfill this mandate. A narrow interpretation of these statutes would strip the P&As of the ability to protect these vulnerable individuals and would render their authority meaningless. Accordingly, the Court should interpret the P&A Acts broadly. With the Court’s permission, counsel for the United States will be present if the Court schedules a hearing on this matter.
(Continued on next page.)
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Respectfully submitted, SALLY QUILLIAN YATES United States Attorney Northern District of Georgia
/s/ Mina Rhee MINA RHEE [GA 602047] Assistant United States Attorney Northern District of Georgia 600 United States Courthouse 75 Spring Street, SW Atlanta, GA 30303 Tel: (404) 581-6302 Fax: (404) 581-6163 Email: Mina.Rhee@usdoj.gov

THOMAS E. PEREZ Assistant Attorney General
SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney
General Civil Rights Division
JUDY C. PRESTON Acting Chief Special Litigation Section
MARY R. BOHAN Acting Deputy Chief Special Litigation Section
/s/ Robert A. Koch TIMOTHY D. MYGATT [PA 90403] ROBERT A. KOCH [OR 072004] EMILY A. GUNSTON [CA 218035] Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Tel: (202) 514-6255 Fax: (202) 514-0212 Email: Robert.Koch@usdoj.gov

17


Local Rule 7.1D Certification
By signature below, counsel certifies that the foregoing document was
prepared in Times New Roman, 14-point font in compliance with Local Rule 5.1B.
/s/ Robert A. Koch ROBERT A. KOCH Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section

CERTIFICATE OF SERVICE 

I hereby certify that on this 25th day of June, 2010, I electronically filed the
STATEMENT OF INTEREST OF THE UNITED STATES with the Clerk of
Court using the CM/ECF system which will automatically send email notification
of such filing to the following attorneys of record:
Jason S. Naunas 
 Mark J. Cicero 
 Assistant Attorneys General 
 State of Georgia 

Joshua H. Norris 
 Georgia Advocacy Office, Inc. 

/s/ Robert A. Koch_ ROBERT A. KOCH Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section

 
 Case: 1:09-cv-2880 As of: 09/26/2017 01:56 AM EDT 1 of 9
4months,CLOSED,LTDREF
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:09−cv−02880−CAP

Georgia Advocacy Office, Inc. v. Shelp Assigned to: Judge Charles A. Pannell, Jr Cause: 42:1983 Civil Rights Act
Plaintiff Georgia Advocacy Office, Inc.

Date Filed: 10/16/2009 Date Terminated: 05/09/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Joshua H. Norris Joshua H. Norris, LLC Suite 125 1801 Peachtree St., NE Atlanta, GA 30309 404−867−6188 Fax: 404−393−9680 Email: josh.norris@childrenshealthlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Coleman Kegley Georgia Advocacy Office, Inc. Suite 625 One West Court Square Decatur, GA 30030 404−885−1234 Email: jkegley@thegao.org ATTORNEY TO BE NOTICED
Paula Marie Rafferty Fulton County Attorney's Office 141 Pryor Street, SW Suite 4038 Atlanta, GA 30303 404−612−0260 Fax: 404−378−0031. Email: raffertysq2@gmail.com ATTORNEY TO BE NOTICED

V.
Defendant
Frank Shelp, M.D. in his official capacity as Commissioner, Georgia Department of Behavioral Health and Developmental Disabilities

represented by Carolyn Elizabeth Frazier Georgia State Employees Union SEIU Local 1985 AFL−CIO 236 Forsyth Street Suite 502 Atlanta, GA 30303 404−659−4166 TERMINATED: 10/22/2009 LEAD ATTORNEY
Jason S. Naunas Attorney General's Office−Atl Department of Law 40 Capitol Square, SW Atlanta, GA 30334 404−656−3357 Email: jnaunas@law.ga.gov

Case: 1:09-cv-2880 As of: 09/26/2017 01:56 AM EDT 2 of 9

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Calandra A. Harps State of Georgia Law Department East Tower, Suite 356 2 martin Luther King Jr. Dr. Atlanta, GA 30334 404−656−3388 Fax: 404−657−9932 Email: charps@law.ga.gov ATTORNEY TO BE NOTICED

Defendant
Hilary Hoo−You in her official capacity as Regional Hospital Administrator, Southwestern State Hospital TERMINATED: 11/02/2009

represented by Carolyn Elizabeth Frazier (See above for address) TERMINATED: 10/22/2009 LEAD ATTORNEY
Jason S. Naunas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/16/2009 10/16/2009 10/16/2009 10/21/2009 10/22/2009
10/22/2009
11/02/2009

# Docket Text
1 COMPLAINT filed and summons issued. Consent form to proceed before U.S. Magistrate and pretrial instructions provided. Filing fee $350, receipt number 17398. (Attachments: # 1 Summons, # 2 Civil Cover Sheet)(dfb) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 10/16/2009)
2 MOTION for Temporary Restraining Order, MOTION for Preliminary Injunction by Georgia Advocacy Office, Inc. (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Tobin McDaniel, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Affidavit of Sadie J. Charles) (dfb) (Entered: 10/16/2009)
3 ORDER Setting Hearing on Motion 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction: Hearing set for 10/22/2009 at 09:00 AM in ATLA Courtroom 2307 before Judge Charles A. Pannell Jr. Signed by Judge Charles A. Pannell, Jr on 10/16/2009. (rvb) (Entered: 10/16/2009)
4 RESPONSE re 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Frank Shelp, MD, Hilary Hoo−You. (Attachments: # 1 Brief Memorandum In Support Part I, # 2 Brief Memorandum in Support Part II, # 3 Brief Memorandum in Support Part III)(Naunas, Jason) (Entered: 10/21/2009)
5 Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: Motion Hearing held on 10/22/2009 re 2 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction; TAKING UNDER ADVISEMENT 2 Motion for TRO; Attorney Jason S. Naunas and Carolyn Elizabeth Frazier added for Frank Shelp, MD and Hilary Hoo−You. Court heard argument from counsel. Plaintiff to file amended complaint. Court will hear Motion for TRO & Preliminary Injunction on 11/16/2009 at 9:30 AM in ATLA Courtroom 2307 before Judge Charles A. Pannell Jr. Hearing Concluded. (Court Reporter Martha Frutchey)(adg) (Entered: 10/22/2009)
6 CORRECTED Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: Motion Hearing held on 10/22/2009 re 2 MOTION for Temporary Restraining Order; DENYING 2 Motion for TRO; Court heard argument from counsel. Plaintiff to file amended complaint. Court will hear Motion for Preliminary Injunction on 11/16/2009 at 1:30 PM in ATLA Courtroom 2307 before Judge Charles A. Pannell Jr. Hearing Concluded. (Court Reporter Martha Frutchey)(adg) (Entered: 10/22/2009)
7 First AMENDED COMPLAINT against Frank Shelp, MD, filed by Georgia Advocacy Office, Inc..(Norris, Joshua) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 11/02/2009)

Case: 1:09-cv-2880 As of: 09/26/2017 01:56 AM EDT 3 of 9

11/13/2009 11/13/2009 12/09/2009 12/09/2009
12/18/2009 01/19/2010 01/19/2010 02/10/2010
02/16/2010 02/24/2010 03/04/2010 04/23/2010 04/24/2010 04/27/2010 04/28/2010 05/07/2010

8 Joint MOTION to Continue by Frank Shelp, MD, Hilary Hoo−You. (Attachments: # 1 Text of Proposed Order Exhibit 1)(Naunas, Jason) (Entered: 11/13/2009)
9 ORDER GRANTING 8 Motion to Continue hearing scheduled for 9/16/20009. The hearing is continued until 12/9/2009 at 10:00 AM in courtroom 2307, to determine whether the preliminary injunction requested by plaintiff should be granted. Signed by Judge Charles A. Pannell, Jr on 11/13/2009. (adg) (Entered: 11/16/2009)
10 MOTION to Continue by Georgia Advocacy Office, Inc.. (Attachments: # 1 Text of Proposed Order Proposed Order on Plaintiff's Motion for Continuance)(Norris, Joshua) (Entered: 12/09/2009)
11 Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: Motion Hearing held on 12/9/2009. The parties appeared and stated to the court that they are trying to come to an agreement. The pla is to w/draw it's 2 MOTION for Preliminary Injunction and a Final Hearing to be held 4/29/2010 at 10:00 AM in ATLA Courtroom 2307 before Judge Charles A. Pannell Jr. (Court Reporter Lori Burgess)(adg) (Entered: 12/09/2009)
12 Defenses and ANSWER to 7 Amended Complaint by Frank Shelp, MD. Discovery ends on 5/17/2010.(Naunas, Jason) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 12/18/2009)
13 PRELIMINARY REPORT AND DISCOVERY PLAN filed by Frank Shelp, MD. (Attachments: # 1 Attachment "A", # 2 Text of Proposed Order)(Naunas, Jason) (Entered: 01/19/2010)
14 Initial Disclosures by Frank Shelp, MD. (Attachments: # 1 Attachment "A", # 2 Attachment "C")(Naunas, Jason) (Entered: 01/19/2010)
15 ORDER DIRECTING the parties to confer and file a joint preliminary report and scheduling order and a joint certificate of interested parties within 15 days from the date of the docketing of this order. Failure to do so will result in dismissal of the plaintiff's claims. The Clerk is directed to submit this case to the court if the joint certificate of interested parties and the joint preliminary report and scheduling order are not filed. Signed by Judge Charles A. Pannell, Jr on 2/10/2010. (adg) (Entered: 02/10/2010)
16 Amended PRELIMINARY REPORT AND DISCOVERY PLAN filed by Frank Shelp, MD. (Naunas, Jason) (Entered: 02/16/2010)
17 ORDER APPROVING 16 Amended Preliminary Report and Discovery Plan, except as herein modified: Daubert motions with regard to expert testimony shall be filed no later than 30 days after the close of final discovery. Signed by Judge Charles A. Pannell, Jr on 2/24/2010. (adg) (Entered: 02/24/2010)
Submission of 15 Order to Show Cause,submitted to District Judge Charles A. Pannell. (adg) (Entered: 03/04/2010)
NOTICE of CANCELLATION of Hearing set for April 29, 2010 at 10:00 a.m. The hearing is re−set for 6/3/2010 at 10:00 AM in ATLA Courtroom 2307 before Judge Charles A. Pannell Jr.. (yrm) (Entered: 04/23/2010)
Remark re 13 Preliminary Report and Discovery Plan (see 17 Order approving 16 Amended Preliminary Report and Discovery Plan ) (adg) (Entered: 01/07/2011)
18 Consent MOTION for Extension of Time To File Summary Judgment Motions or The Pretrial Order by Georgia Advocacy Office, Inc., Frank Shelp, MD. (Attachments: # 1 Text of Proposed Order)(Naunas, Jason) (Entered: 04/27/2010)
19 ORDER GRANTING 18 Motion for Extension of Time to 5/7/2010 for parties to file motions for summary judgment. Signed by Judge Charles A. Pannell, Jr on 4/28/2010. (adg) (Entered: 04/28/2010)
20 MOTION for Summary Judgment on Plaintiff's Complaint with Brief In Support by Frank Shelp, MD. (Attachments: # 1 Defendant's Memorandum of Law In Support of his Motion for Summary Judgment)(Naunas, Jason) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− (Entered: 05/07/2010)

Case: 1:09-cv-2880 As of: 09/26/2017 01:56 AM EDT 4 of 9

05/07/2010 05/07/2010 05/07/2010 05/07/2010 05/07/2010
05/07/2010 05/08/2010 05/08/2010 05/08/2010 05/08/2010 05/08/2010 05/08/2010 05/08/2010
05/08/2010
05/10/2010

21 STATEMENT of Material Facts Upon Which There is No Genuine Issue to be Tried on Plaintiff's Complaint re 20 Motion for Summary Judgment, by Frank Shelp, MD. (Naunas, Jason) Modified on 5/11/2010 to correct docket text/document link (adg). Modified on 5/11/2010 (adg). (Entered: 05/07/2010)
22 APPENDIX in Support of re 21 Statement of Material Facts Upon Which There is No Genuine Issue to be Tried on Plaintiff's Complaint by Frank Shelp, MD. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Naunas, Jason) Modified on 5/11/2010 to correct docket text (adg). (Entered: 05/07/2010)
23 NOTICE Of Filing Notice of Filing Original Affidavits by Frank Shelp, MD (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Naunas, Jason) (Entered: 05/07/2010)
24 NOTICE of Appearance by Paula Rafferty Miller on behalf of Georgia Advocacy Office, Inc. (Miller, Paula) (Entered: 05/07/2010)
25 MOTION for Summary Judgment with Brief In Support by Georgia Advocacy Office, Inc.. (Attachments: # 1 Brief Memorandum of Law in Support of Motion for Summary Judgment, # 2 Statement of Material Facts Plaintiff's Statement of Undisputed Material Facts Upon Which There Is No Genuine Issue To Be Tried)(Norris, Joshua) −−Please refer to http://www.gand.uscourts.gov to obtain the Notice to Respond to Summary Judgment Motion form contained on the Court's website.−− (Entered: 05/07/2010)
36 NOTICE Of Filing Original Affidavits by Frank Shelp, MD (Attachments: # 1 Exhibit A, # 2 Exhibit B)(adg) (Entered: 05/11/2010)
26 AFFIDAVIT re 25 MOTION for Summary Judgment Affidavit of Sadie Charles by Georgia Advocacy Office, Inc.. (Norris, Joshua) (Additional attachment(s) added on 5/12/2010: # 1 Unredacted Exhibits (DOCUMENT FILED UNDER SEAL )) (adg). Modified on 5/12/2010 (adg). (Entered: 05/08/2010)
27 AFFIDAVIT re 25 MOTION for Summary Judgment Affidavit of Ruby Moore by Georgia Advocacy Office, Inc.. (Norris, Joshua) (Entered: 05/08/2010)
28 AFFIDAVIT re 25 MOTION for Summary Judgment Affidavit of Tomika Jackson by Georgia Advocacy Office, Inc.. (Norris, Joshua) (Additional attachment(s) added on 5/12/2010: # 1 Unredacted Exhibits (DOCUMENT FILED UNDER SEAL )) (adg). Modified on 5/12/2010 (adg). (Entered: 05/08/2010)
29 AFFIDAVIT re 25 MOTION for Summary Judgment Affidavit of Geraldine Speed by Georgia Advocacy Office, Inc.. (Norris, Joshua) (Additional attachment(s) added on 5/12/2010: # 1 Unredacted Exhibits (DOCUMENT FILED UNDER SEAL )) (adg). Modified on 5/12/2010 (adg). (Entered: 05/08/2010)
30 AFFIDAVIT re 25 MOTION for Summary Judgment Affidavit of Katherine Chandler by Georgia Advocacy Office, Inc.. (Norris, Joshua) (Entered: 05/08/2010)
31 MOTION for Leave to File Excess Pages by Georgia Advocacy Office, Inc.. (Attachments: # 1 Text of Proposed Order)(Norris, Joshua) (Entered: 05/08/2010)
32 AFFIDAVIT re 25 MOTION for Summary Judgment Affidavit of Tobin McDaniel by Georgia Advocacy Office, Inc.. (Norris, Joshua) (Additional attachment(s) added on 5/12/2010: # 1 Unredacted Exhibits 1−45 (DOCUMENT FILED UNDER SEAL ), # 2 Unredacted Exhibits 46−77 (DOCUMENT FILED UNDER SEAL )) (adg). Modified on 5/12/2010 (adg). (Entered: 05/08/2010)
33 AFFIDAVIT re 25 MOTION for Summary Judgment Affidavit of Sarah Stanton by Georgia Advocacy Office, Inc.. (Norris, Joshua) (Additional attachment(s) added on 5/12/2010: # 1 Unredacted Exhibits 1−37 (DOCUMENT FILED UNDER SEAL ), # 2 Unredacted Exhibits 38−106 (DOCUMENT FILED UNDER SEAL ), # 3 Unredacted Exhibits 107−176 (DOCUMENT FILED UNDER SEAL )) (adg). Modified on 5/12/2010 (adg). (Entered: 05/08/2010)
34 MOTION for Extension of Time re: 29 Affidavit, 26 Affidavit, 25 MOTION for Summary Judgment, 33 Affidavit, 28 Affidavit, 32 Affidavit, 30 Affidavit, 27 Affidavit, 31 MOTION for Leave to File Excess Pages by Georgia Advocacy Office, Inc.. (Attachments: # 1 Affidavit Declaration of Paula Rafferty Miller, # 2 Exhibit Exhibits of Tobin McDaniel part 1, # 3 Exhibit Exhibits of McDaniel 2 of 2, # 4 Exhibit Exhibits Stanton 1 of 3, # 5 Exhibit Exhibits Stanton 2 of 3, # 6 Exhibit

Case: 1:09-cv-2880 As of: 09/26/2017 01:56 AM EDT 5 of 9

05/10/2010 05/11/2010 05/11/2010 05/11/2010 05/12/2010 05/21/2010 05/25/2010
06/15/2010
06/15/2010 06/15/2010 06/15/2010 06/15/2010 06/25/2010 06/29/2010 06/29/2010 07/02/2010

Exhibits Stanton 3 of 3)(Miller, Paula) (Entered: 05/10/2010)
35 MOTION to Seal Unredacted Copies of Exhibits by Georgia Advocacy Office, Inc.. (Attachments: # 1 Text of Proposed Order)(Miller, Paula) (Entered: 05/10/2010)
37 ORDER GRANTING 35 Motion to Seal Unredacted Copies Exhibits to Affidavits. Signed by Judge Charles A. Pannell, Jr on 5/11/2010. (adg) (Entered: 05/11/2010)
38 NOTICE OF REQUIREMENT TO FILE ELECTRONICALLY pursuant to Standing Order 04−01 as to Jason S. Naunas re 36 Notice of Filing. (adg) (Entered: 05/11/2010)
Notification of Docket Correction re 21 Statement of Material Facts, modified on 5/11/2010 to link to 20 MOTION for Summary Judgment on Plaintiff's Complaint. (adg) (Entered: 05/11/2010)
39 NOTICE of Appearance by Julie Coleman Kegley on behalf of Georgia Advocacy Office, Inc. (Kegley, Julie) (Entered: 05/12/2010)
40 Consent MOTION for Extension of Time To Respond to Motions For Summary Judgment And To Continue Hearing with Brief In Support by Frank Shelp, MD. (Attachments: # 1 Text of Proposed Order)(Naunas, Jason) (Entered: 05/21/2010)
41 ORDER GRANTING 31 Motion for Leave to File Excess Pages; GRANTING 34 Motion for Extension of Time ; GRANTING 40 Motion for Extension of Time; the responses to 20 MOTION for Summary Judgment on Plaintiff's Complaint and 25 MOTION for Summary Judgment are due 6/15/2010, any reply is due on 6/29/2010; the hearing scheduled for 6/3/2010 is canceled, and if necessary, will be re−scheduled after the parties' motions for summary judgment have been fully briefed. Signed by Judge Charles A. Pannell, Jr. on 5/25/2010. (adg) (Entered: 05/25/2010)
42 Response to Statement of Material Facts re 20 MOTION for Summary Judgment on Plaintiff's Complaint Defendant's Appendix in Response to Plaintiff's Statement of Undisputed Material Facts as to which There Is No Genuine Issue For Trial And Memorandum Of Law In Support Of Plaintiff's Motion For Summary Judgment filed by Frank Shelp, MD. (Attachments: # 1 Exhibit Exhibits A − C, # 2 Exhibit Exhibits D − H, # 3 Exhibit Exhibits I− L, # 4 Exhibit Exhibits M − S)(Naunas, Jason) (Entered: 06/15/2010)
43 Response to Statement of Material Facts re 20 MOTION for Summary Judgment on Plaintiff's Complaint Defendant's Response to Plaintiff's Statement of Undisputed Material Facts as to Which There is No Genuine Issue for Trial filed by Frank Shelp, MD. (Naunas, Jason) (Entered: 06/15/2010)
44 RESPONSE re 25 MOTION for Summary Judgment and Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment filed by Frank Shelp, MD. (Naunas, Jason) (Entered: 06/15/2010)
45 Response to Statement of Material Facts re 20 MOTION for Summary Judgment on Plaintiff's Complaint filed by Georgia Advocacy Office, Inc.. (Norris, Joshua) (Entered: 06/15/2010)
46 RESPONSE re 20 MOTION for Summary Judgment on Plaintiff's Complaint filed by Georgia Advocacy Office, Inc.. (Norris, Joshua) (Entered: 06/15/2010)
47 STATEMENT of Interest re 20 MOTION for Summary Judgment on Plaintiff's Complaint, 25 MOTION for Summary Judgment by United States of America (Rhee, Mina) Modified on 7/2/2010 to correct docket text (adg). (Entered: 06/25/2010)
48 REPLY to Response to Motion re 20 MOTION for Summary Judgment on Plaintiff's Complaint filed by Frank Shelp, MD. (Naunas, Jason) Modified on 7/2/2010 to remove double wording and link to correct docket entry (adg). Modified on 7/2/2010 (adg). (Entered: 06/29/2010)
49 REPLY to Response to Motion re 25 MOTION for Summary Judgment filed by Georgia Advocacy Office, Inc.. (Norris, Joshua) (Entered: 06/29/2010)
Notification of Docket Correction re 47 STATEMENT of Interest. Modified on 7/2/2010 to correct docket text (adg) (Entered: 07/02/2010)

Case: 1:09-cv-2880 As of: 09/26/2017 01:56 AM EDT 6 of 9

07/02/2010 07/02/2010 07/09/2010 08/10/2010 03/08/2011 03/09/2011 03/09/2011 03/16/2011
03/16/2011
03/31/2011 03/31/2011 04/01/2011 04/26/2011 04/27/2011 09/20/2011 09/29/2011

Notification of Docket Correction re 48 Reply to Response to Motion. Modified on 7/2/2010 to link to correct docket entry. (adg) (Entered: 07/02/2010)
Submission of 20 MOTION for Summary Judgment on Plaintiff's Complaint, 25 MOTION for Summary Judgment, submitted to District Judge Charles A. Pannell. (adg) (Entered: 07/02/2010)
50 RESPONSE re 47 Notice (Other) Response to Statement of Interest of the United States filed by Frank Shelp, MD. (Naunas, Jason) (Entered: 07/09/2010)
51 Notice for Leave of Absence for the following date(s): 09/17/2010, 10/14/2010−10/28/2010; and 11/03/2010− 11/05/2010, by Jason S. Naunas. (Attachments: # 1 Letter Regarding Notice of Leave of Absence)(Naunas, Jason) Modified on 8/11/2010 to correct docket text (adg). (Entered: 08/10/2010)
52 Joint MOTION for Order for Mediation by Georgia Advocacy Office, Inc.. (Attachments: # 1 Text of Proposed Order Proposed Order for Mediation)(Norris, Joshua) (Entered: 03/08/2011)
NOTICE of Hearing on Motion re: 52 Joint MOTION for Order for Mediation. Motion Hearing set for 3/16/2011 at 10:00 AM in ATLA Courtroom 2307 before Judge Charles A. Pannell Jr.. (yrm) (Entered: 03/09/2011)
53 ORDER DENYING 20 Motion for Summary Judgment; DENYING 25 Motion for Summary Judgment; the court will set a schedule for the parties to submittheir joint proposed pretrial order at a later date. Signed by Judge Charles A. Pannell, Jr on 3/9/2011. (adg) (Entered: 03/09/2011)
54 Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: MOTION HEARING held on 3/16/2011; DENYING 52 Joint Motion for Order for Mediation. Court heard from counsel. Court has no objection to parties obtaining a 3rd party mediator that is knowledgeable in the aspects of this case. Consolidated PTO shall be filed no later than June 1, 2011. (Court Reporter Martha Frutchey)(mdy) (Entered: 03/16/2011)
55 ORDER DENYING 52 Joint Motion for Mediation Before a Magistrate Judge. The parties are DIRECTED, within 10 days of the docketing of this order, to confer and select a third party mediator more knowledgeable as to mental health policies and procedures than the magistrate judges of this court. The parties are further DIRECTED to submit the name and CV of any mediator agreed upon for this court's approval within 14 days of the date of this order. Finally, the parties are DIRECTED to submit their joint proposed pretrial order on or before 6/1/2011. Signed by Judge Charles A. Pannell, Jr on 3/16/2011. (mdy) (Entered: 03/16/2011)
56 NOTICE by Frank Shelp, MD Notice of Mediation Status (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order For Mediation)(Naunas, Jason) (Entered: 03/31/2011)
57 STATUS REPORT on Mediation by Georgia Advocacy Office, Inc.. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Miller, Paula) (Entered: 03/31/2011)
58 ORDER REFERRING CASE to Wayne Howell for Mediation. Signed by Judge Charles A. Pannell, Jr on 4/1/2011. (adg) (Entered: 04/01/2011)
59 Joint MOTION for Extension of Time to File the Pretrial Order by Frank Shelp, MD. (Attachments: # 1 Text of Proposed Order)(Naunas, Jason) (Entered: 04/26/2011)
60 ORDER GRANTING 59 Motion for Extension of Time until further order of the Court to file the pretrial order. Signed by Judge Charles A. Pannell, Jr on 4/27/2011. (adg) (Entered: 04/28/2011)
61 ORDER, Status Conference set for 9/29/2011 at 10:00 AM in ATLA Courtroom 2307 before Judge Charles A. Pannell Jr. Signed by Judge Charles A. Pannell, Jr. on 09/20/2011. (jtj) (Entered: 09/20/2011)
62 Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: Status Conference held on 9/29/2011. The defendant request the hearing to discuss peer review and to ask the court to enter a scheduling order. Once the parties have completed their briefs, a hearing would be set. Before the hearing, dft is to inform the

Case: 1:09-cv-2880 As of: 09/26/2017 01:56 AM EDT 7 of 9

09/29/2011 09/30/2011
10/31/2011 11/15/2011 11/30/2011 12/14/2011 12/15/2011 12/15/2011 12/16/2011 12/16/2011 12/20/2011 12/28/2011 01/04/2012 02/06/2012 02/07/2012 02/28/2012

plaintiff if there will be live testimony, so the plaintiff can plan accordingly. The court is approving the stipulation as the temporary order of the court. Scheduling order to be entered by the court. Hearing concluded. (Court Reporter Martha Frutchey) (jtj) (Entered: 09/29/2011)
63 STIPULATION Agreement by Frank Shelp, MD. (Attachments: # 1 Exhibit A)(Naunas, Jason) (Entered: 09/29/2011)
64 ORDER APPROVING AND ADOPTING 63 Stipulation Agreement, including its exhibit, as the temporary order of this court and shall remain in effect until further order. The plaintiff is DIRECTED to file its brief on the issue of access to peer review records on or before October 31, 2011. The defendant shall have 30 days after the filing of the plaintiffs brief to respond. The plaintiff shall have 14 days after the filing of the defendants response to reply. The court anticipates setting a hearing on the issue of access to peer review records for some date thereafter. In addition, within 14 days after the deadline for the plaintiff to file a reply, the parties are DIRECTED to file on the docket a notice of sworn testimony to be presented at the hearing, including the name, title, address, phone number, and the substance of the expected testimony of any witness that might be called. Signed by Judge Charles A. Pannell, Jr. on 09/30/2011. (jtj) (Entered: 09/30/2011)
65 MOTION for Permanent Injunction with Brief In Support by Georgia Advocacy Office, Inc.. (Attachments: # 1 Brief Memorandum of Law in Support of Motion for Permanent Injunction)(Norris, Joshua) (Entered: 10/31/2011)
66 Request for Leave of Absence for the following date(s): 12/21/11, 12/22/11, 12/23/11, 12/24/11, 12/25/11, 12/26/11, 12/27/11, 12/28/11, 12/29/11, by Jason S. Naunas. (Naunas, Jason) (Entered: 11/15/2011)
67 RESPONSE re 65 MOTION for Permanent Injunction filed by Frank Shelp, MD. (Attachments: # 1 Exhibit A)(Harps, Calandra) (Entered: 11/30/2011)
68 REPLY BRIEF re 65 MOTION for Permanent Injunction filed by Georgia Advocacy Office, Inc.. (Attachments: # 1 Affidavit Affidavit of Ruby Moore)(Norris, Joshua) (Entered: 12/14/2011)
Submission of 65 MOTION for Permanent Injunction, submitted to District Judge Charles A. Pannell. (jtj) (Entered: 12/15/2011)
69 Request for Leave of Absence for the following date(s): December 26−30, 2011, January 30−February 1, 2012, April 2−6, 2012, by Joshua H. Norris. (Norris, Joshua) (Entered: 12/15/2011)
70 Application for Leave of Absence for the following date(s): 12/26, 12/27, 12/28, 12/29, 12/30, by Paula Rafferty Miller. (Miller, Paula) (Entered: 12/16/2011)
71 Application for Leave of Absence for the following date(s): 12/26, 12/27, 12/28, 12/29, 12/30, by Julie Coleman Kegley. (Miller, Paula) Modified on 12/19/2011 to correct filer. (jtj) (Entered: 12/16/2011)
72 Witness List by Frank Shelp, MD. (Naunas, Jason) (Entered: 12/20/2011)
73 Plaintiff's NOTICE of Sworn Witness Testimony by Georgia Advocacy Office, Inc. (Norris, Joshua) Modified on 12/29/2011 to correct docket text. (jtj) (Entered: 12/28/2011)
74 NOTICE of Appearance by Calandra A. Harps on behalf of Frank Shelp, MD (Harps, Calandra) (Entered: 01/04/2012)
NOTICE of Hearing on Motion re: 65 MOTION for Permanent Injunction Motion Hearing set for 2/22/2012 at 11:00 AM in ATLA Courtroom 2307 before Judge Charles A. Pannell Jr.. (yrm) (Entered: 02/06/2012)
NOTICE of Hearing on Motion re: 65 MOTION for Permanent Injunction Motion Hearing re−set for 2/28/2012 at 10:00 AM in ATLA Courtroom 2307 before Judge Charles A. Pannell Jr.. (yrm) (Entered: 02/07/2012)
75 Minute Entry for proceedings held before Judge Charles A. Pannell, Jr: Motion Hearing held on 2/28/2012. TAKING UNDER ADVISEMENT 65 Motion for

Case: 1:09-cv-2880 As of: 09/26/2017 01:56 AM EDT 8 of 9

03/06/2012
03/07/2012 03/15/2012 03/15/2012 03/16/2012 05/09/2012
05/09/2012
05/09/2012 05/23/2012 06/04/2012 06/18/2012 06/20/2012 06/21/2012
06/25/2012
06/29/2012

Permanent Injunction. Opening statements by counsel. Pla's evidence: Ruby Moore, sworn. Pla's exh 1, admitted. Dft's evidence Dr. Frank Shelp, sworn. Closing arguments by counsel. Each side to submit proposed orders to the court on or before 03/15/2012. Hearing concluded (Court Reporter Martha Frutchey) (jtj) (Entered: 02/28/2012)
76 TRANSCRIPT of Motion for Permanent Injunction Proceedings held on February 28, 2012, before Judge Charles A. Pannell, Jr. Court Reporter/Transcriber Martha J. Frutchey, Telephone number 404−215−1573. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/27/2012. Redacted Transcript Deadline set for 4/6/2012. Release of Transcript Restriction set for 6/4/2012. (Attachments: # 1 Notice of Filing of Official Transcript) (kac) (Entered: 03/07/2012)
77 Plaintiff's EXHIBIT 1 received from Courtroom Deputy and placed in Exhibit room. (jtj) (Entered: 03/07/2012)
78 NOTICE Of Proposed Language by Frank Shelp, MD (Naunas, Jason) Modified on 3/16/2012 to remove duplicate text. (jtj) (Entered: 03/15/2012)
79 Plaintiff's Proposed Remedy/Order re: 65 MOTION for Permanent Injunction. (Norris, Joshua) Modified on 3/16/2012 to correct docket text. (jtj) (Entered: 03/15/2012)
80 Plaintiff's RESPONSE re 78 Defendant's Notice of Proposed Language filed by Georgia Advocacy Office, Inc. (Norris, Joshua) Modified on 3/19/2012 to correct docket text. (jtj) (Entered: 03/16/2012)
81 ORDER GRANTING 65 Motion for Permanent Injunction. Because this order and injunction adjudicates all remaining issues, the clerk is DIRECTED to close this civil action. Signed by Judge Charles A. Pannell, Jr on 5/9/2012. (adg) (Entered: 05/09/2012)
82 CLERK'S JUDGMENT prohibiting defendant from refusing to allow plaintiff to inspect and copy records under the P&A Acts. (adg)−−Please refer to http://www.ca11.uscourts.gov to obtain an appeals jurisdiction checklist−− (Entered: 05/09/2012)
Civil Case Terminated. (adg) (Entered: 05/09/2012)
83 Preliminary MOTION for Attorney Fees by Georgia Advocacy Office, Inc. (Miller, Paula) Modified on 5/25/2012 to remove double wording (adg). (Entered: 05/23/2012)
84 RESPONSE re 83 Preliminary MOTION for Attorney Fees filed by Frank Shelp, MD. (Naunas, Jason) (Entered: 06/04/2012)
85 REPLY to Response to Motion re 83 Preliminary MOTION for Attorney Fees filed by Georgia Advocacy Office, Inc.. (Kegley, Julie) (Entered: 06/18/2012)
Submission of 83 Preliminary MOTION for Attorney Fees, submitted to District Judge Charles A. Pannell. (adg) (Entered: 06/20/2012)
86 Consent MOTION for Extension of Time to File Itemization of Requested Fee Award in Support of Plaintiff's Motion for Attorneys' Fees re: 83 Preliminary MOTION for Attorney Fees by Georgia Advocacy Office, Inc.. (Attachments: # 1 Text of Proposed Order)(Norris, Joshua) (Entered: 06/21/2012)
87 ORDER GRANTING 86 Consent Motion for Extension of Time until 6/29/2012 for Plaintiff to file its detailed specification and itemization of the requested fee award in support of Plaintiffs motion for attorneys' fees. Signed by Judge Charles A. Pannell, Jr on 6/25/2012. (adg) (Entered: 06/25/2012)
88 BRIEF in Support of 83 Preliminary MOTION for Attorney Fees by Georgia Advocacy Office, Inc.. (Attachments: # 1 Exhibit, # 2 Declaration with Exhibit, # 3 Declaration with Exhibit, # 4 Declaration with Exhibit, # 5 Declaration)(Kegley, Julie) Modified on 7/2/2012 to correct docket text to accurately reflect e−filed document. (adg). (Entered: 06/29/2012)

Case: 1:09-cv-2880 As of: 09/26/2017 01:56 AM EDT 9 of 9

06/29/2012 07/02/2012 07/09/2012
07/10/2012 07/20/2012 08/03/2012 09/12/2012
03/24/2016 05/11/2016

89 NOTICE Of Filing Replaces 88−2 Declaration of Joshua Norris with Exhibit by Georgia Advocacy Office, Inc. re 88 MOTION for Attorney Fees (Kegley, Julie) (Entered: 06/29/2012)
Notification of Docket Correction re 88 MOTION for Attorney Fees . Modified on 7/2/2012 to correct docket text to accurately reflect e−filed document as a Brief in Support of 83 Preliminary MOTION for Attorney Fees. (adg) (Entered: 07/02/2012)
90 Consent MOTION for Extension of Time To File Response To Plaintiff's Brief In Support Of Motion For Reasonable Attorneys' Fees re: 88 MOTION for Attorney Fees by Frank Shelp, MD. (Attachments: # 1 Text of Proposed Order)(Naunas, Jason) (Entered: 07/09/2012)
91 ORDER GRANTING 90 Motion for Extension of Time until 7/20/2012 for Defendant to respond to 83 Preliminary MOTION for Attorney Fees. Signed by Judge Charles A. Pannell, Jr on 7/10/2012. (adg) (Entered: 07/10/2012)
92 RESPONSE re 88 MOTION for Attorney Fees filed by Frank Shelp, MD. (Naunas, Jason) (Entered: 07/20/2012)
93 REPLY BRIEF re 88 MOTION for Attorney Fees filed by Georgia Advocacy Office, Inc.. (Miller, Paula) (Entered: 08/03/2012)
94 ORDER GRANTING Plaintiff's 83 Motion for Attorney Fees in the amount of $39,561.50. The defendant is DIRECTED to remit payment on or before 11/15/2012. Failure to do so will result in contempt sanctions. Signed by Judge Charles A. Pannell, Jr on 9/12/2012. (adg) (Entered: 09/12/2012)
95 NOTICE TO PLAINTIFF'S COUNSEL regarding RECLAMATION AND DISPOSITION OF UNCLAIMED EXHIBITS (Motion Hearing − February 28, 2012) pursuant to Local Rule 79.1D(2). (mec) (Entered: 03/24/2016)
PLAINTIFF'S EXHIBIT DESTROYED as directed in 95 Exhibit Return Notification (mec) (Entered: 05/11/2016)

 
 Case 1:09-cv-02880-CAP Document 1 Filed 10/16/09 Page 1 of 13

AILED 1,1CLERWS OFFICE

OCT 1 8 209

A J

ts

sp

1hi .~A`d/-

IN THE UNITED STATES DISTRICT COURT

FOR TH E NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

GEORGIA ADVOCACY OFFICE, INC .
Plaintiff,
V.
FRANK SHELP, M .D ., in his official capacity as Commissioner, Georgia Department of Behavioral Health and Developmental Disabilities, and HILARY HOO-YOU, in her official capacity as Regional Hospital Administrator, Southwestern State Hospital,

~.

CIVIL ACTION FILE

NO

-28 O

Defendants .

COMPLAINT COMES NOW Plaintiff Georgia Advocacy Office, Inc . ("GAO"), by and through counsel, and respectfully alleges as follows :
INT ROD UCT ION 1.
Plaintiff brings this action for injunctive and declaratory relief to redress the Defendants' refusal to permit Plaintiff, the designated Protection and Advocacy
-Doc# 600300 .02

Case 1:09-cv-02880-CAP Document 1 Filed 10/16/09 Page 2 of 13
System for the State of Georgia, access to Defendants' facilities at Southwestern State Hospital ("SWSH") for the purposes of conducting an investigation of possible abuse of a person with mental illness and monitoring conditions pursuant to the Protection and Advocacy for Individuals with Mental Illness Act, 42 U .S .C . §§ 10801 , et seq. (hereinafter "PAIMI Act") .
JURISDICTION AND VENUE 2.
The Court has jurisdiction over the subject matter of this action pursuant to 28 U.S .C . § § 1331 as this case arises under the laws of the United States, including, without limitation, 42 U .S .C. § 10801 et seq.
3. Venue is proper in this district pursuant to 28 U .S.C . § 1391(b )(1) . Defendant resides in the Northern District of Georgia .
PARTIES 4.
Plaintiff GAO is a private, non-profit Georgia corporation which provides protection and advocacy services to individuals with disabilities. GAO has been designated by the State of Georgia since 1977 as its protection and advocacy system ("P&A") to protect the legal and human rights of individuals with disabilities in the
2

Case 1:09-cv-02880-CAP Document 1 Filed 10/16/09 Page 3 of 13
Stake of Georgia pursuant to the Protection and Advocacy for Individuals with Mental Illness Act, 42 U .S .C. § 10801 et seq., the Developmental Disabilities Assistance and Bill of Rights Act of 2000, 42 U .S .C . § 15041 et seq ., and the Protection and Advocacy for Individual Rights Program of the Rehabilitation Act, 29 U . S .C. § 794e ("P&A Acts") .
5. GAO receives federal funding to provide protection and advocacy services to people with disabilities in Georgia pursuant to the P&A Acts .
6. Under its federal mandate, the P&A has authority to investigate specific incidents of abuse and neglect and to conduct monitoring activities to protect the rights and safety of individuals with disabilities . 42 U.S .C . §14805(a) ; 42 U.S.C . § 15 043 (a)(2) .
7. To fulfill this federal mandate, the P&A must have access to individuals with disabilities at reasonable times in locations in which services, supports, and other assistance are provided and to have access to their records in order to protect the legal and human rights of such individuals . 42 U.S .C . §10805(a) ; 42 U .S.C . §15043(a)(2) .
3

Case 1:09-cv-02880-CAP Document 1 Filed 10/16/09 Page 4 of 13
8. Defendant Frank Shelp, M .D., is being sued in his official capacity as the Commissioner of the Georgia Department of Behavioral Health and Developmental Disabilities ("DBHDD") . Defendant Hilary Hoo-you is being sued in her official capacity as the Regional Hospital Administrator at Southwestern State Hospital .
9. At all relevant times, Defendants were operating under the color of state law as representatives of a public entity and within the scope of their public employment .
FACTUAL ALLEGA TIONS COMMON TO ALL COUNTS 10 .
The DBHDD operates seven (7) facilities that provide services to people with mental illness and developmental disabilities, including Southwestern State Hospital, West Central State Hospital, Central State Hospital, Georgia Regional Hospital at Atlanta, Georgia Regional Hospital at Savannah, East Central Regional Hospital and Northwest Regional Hospital .

Case 1:09-cv-02880-CAP Document 1 Filed 10/16/09 Page 5 of 13
11 . GAO routinely conducts investigations of abuse and neglect at DBHDD's seven facilities and regularly monitors conditions at these facilities .
12 . D. is a person with mental illness confined to SWSH .
13 . D. is eligible for protection and advocacy services from GAO pursuant to the PAIMI Act.
14 . GAO received information that D . had been subject to abuse while confined at SWSH. Specifically, GAO received information that D . had been sexually assaulted at SWSH .
15 . GAO considered the information it had received in light of its knowledge and experience and made a finding that probable cause exists to believe that D. may have been subject to abuse at SWSH and opened an investigation into the matter .
16 . GAO informed Defendant Hoo-you by faxed letter on October 13, 2009, that a representative of GAO would be visiting SWSH on that day for the purposes of
5

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investigating the sexual assault of D . and to conduct monitoring of the facility . GAO informed Defendant of GAO's role as Georgia's P&A and explained in detail its federally mandated access authority for purposes of investigation and monitoring .
17 . On October 13, 2009, a GAO investigator traveled to SWSH hospital to meet with D. and investigate the sexual assault and to monitor conditions at the hospital .
18 . On October 13, 2009, Defendant Hoo-you denied GAO's investigator access to D. and to the SWSH facility .
COUNTY VIOLATION OF PROTECTION & ADVOCACY FOR INDIVIDUALS
WITH MENTAL ILLNESS ACT 19 .
The allegations set forth in the numbered paragraphs hereinabove are incorporated herein as fully as if set forth verbatim .
20 . GAO is a "system" as such term is used in the P&A Acts .
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21. Pursuant to 42 U.S .C . § 10805(a)( 1)(B), a P&A system shall "have the authority to pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the State ."
22 . Pursuant to 42 U .S .C . §10805(a)(1)(A), a P&A system shall "have the authority to investigate incidents of abuse and neglect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred ."
23 . Pursuant to 42 U .S .C . § 10845(a)(3), a P&A system shall "have access to facilities in the State providing care or treatment ."
24 . Pursuant to 42 C .F.R. §51 .42(b), a P&A system "shall have reasonable unaccompanied access to public and private facilities and programs in the State which render care or treatment for individuals with mental illness, and to all areas of the facility which are used by residents or are accessible to residents ."

Case 1:09-cv-02880-CAP Document 1 Filed 10/16/09 Page 8 of 13
25 . Further pursuant to 42 C .F.R. §51 .42(b), a P&A system "shall have reasonable unaccompanied access to residents at all times necessary to conduct a full investigation of abuse or neglect . This authority shall include the opportunity to interview any facility service recipient, employee, or other persons, including the person thought to be the victim of such abuse, who might be reasonably believed by the system to have knowledge of the incident under investigation ."
26 . As defined by 42 C .F.R. §51 .2, "abuse" means "any act or failure to act by an employee of a facility rendering care or treatment which was performed, or which was failed to be performed, knowingly, recklessly, or intentionally, and which caused, or may have caused, injury or death to an individual with mental illness, and includes but is not limited to acts such as : rape or sexual assault ; striking ; the use of excessive force when placing such an individual with mental illness in bodily restraints ; the use of bodily or chemical restraints which is not in compliance with Federal and State laws and regulations ; verbal, nonverbal, mental and emotional harassment ; and any other practice which is likely to cause immediate physical or psychological harm or result in long-term harm if such practice s continue ."

Case 1:09-cv-02880-CAP Document 1 Filed 10/16/09 Page 9 of 13
27 . As defined by 42 C .F.R. §51 .2, "neglect" means "a negligent act or omission by an individual responsible for providing services in a facility rendering care or treatment which caused or may have caused injury or death to an individual with mental illness or which placed an individual with mental illness at risk of injury or death, and includes, but is not limited to, acts or omissions such as failure to : establish or carry out an appropriate individual program or treatment plan (including a discharge plan) ; provide adequate nutrition, clothing, or health care ; and the failure to provide a safe environment which also includes failure to maintain adequate numbers of appropriately trained staff ."
28 . In addition, 42 C .F .R. §51 .2 defines "probable cause" as "reasonable grounds for belief that an individual with mental illness has been, or may be at significant risk of being subject to abuse or neglect . The individual making such determination may base the decision on reasonable inferences drawn from his or her experience or training regarding similar incidents, conditions or problems that are usually associated with abuse or neglect ."
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29 . As described above, the GAO asserted probable cause to believe that D . had been subject to abuse and requested access to D . at SWSH pursuant to PAIMI, 42 U .S .C . § 10801 et seq .
30 . Defendants refused to allow GAO to have access to D . or the SWSH facility .
31 . As a result of Defendants' violations of the P&A Acts, GAO is prohibited from fulfilling its mandate under PAIMI, 42 U .S.C . § 10801 et seq ., and is suffering irreparable injury .
COUNT II VIOLATION OF 42 U.S.C. & 1983
32 . The allegations set forth in the numbered paragraphs above are incorporated herein as fully as if set forth verbatim .
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33 . GAO's right to access individuals with disabilities in the locations in which they receive services and to access records of such individuals are rights secured by the laws of the United States, including, but not limited to, the P&A Acts .
34 . In violation of 42 U.S.C. § 1983, Defendants have subjected GAO to a deprivation of GAO's rights under color of a statute, ordinance, regulation, custom, or usage of the State of Georgia .
35 . As a result of Defendants' deprivation of GAO's rights, the GAO is suffering irreparable injury .
36 . Pursuant to 42 U .S .C . § 1988, GAO should recover a reasonable attorney's fee as part of its costs for taking action to enforce Section 1983 .
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WHEREFORE , Plaintiff GAO prays that the Court will grant the following relief:
I . Declare that Defendants have violated the rights of Plaintiff under P&A Acts by unreasonably restricting Plaintiff's access to D ., an individual with mental illness, at Southwestern State Hospital ;
2 . Preliminarily and permanently enjoin Defendants and their successors from denying Plaintiff any and all future access to individuals with disabilities in the locations where Defendants provide services to them as required by the P & A Acts;
3 . Award Plaintiff a reasonable attorney's fee pursuant to 42 U .S .C . § 1988(b) ; and
4. Provide such other and further relief as the Court may deem just and proper .
This 16th day of October, 2009 .
Z~'//Z-
Joshua H . Norris Georgia Bar No . 545854 Attorney for Plaintiff Georgia Advocacy Office , Inc .
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Georgia Advocacy Office, Inc . 150 E. Ponce de Leon Avenue Suite 430 Decatur, GA 30030 Phone: (404) 885-1234 Fax: (404) 378-0031 Email : jnorris @the ao .org
13

 
 Case 1:09-cv-02880-CAP Document 7 Filed 11/02/09 Page 1 of 14

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

GEORGIA ADVOCACY OFFICE, )

INC.

)

)

Plaintiff, )

)

v.

)

)

FRANK SHELP, M.D., in his official )

capacity as Commissioner, Georgia )

Department of Behavioral Health and )

Developmental Disabilities,

)

)

Defendant. )

)

)

)

)

)

CIVIL ACTION FILE NO. 1:09-CV-2880-CAP

FIRST AMENDED COMPLAINT COMES NOW the Georgia Advocacy Office, Inc. (“GAO”), by and through counsel, and respectfully files its First Amended Complaint and shows as follows:
INTRODUCTION 1.
GAO brings this action under 42 U.S.C. §1983 for injunctive and declaratory relief to redress Defendant’s denial, partial denial, and delay of access

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by GAO, the designated Protection and Advocacy System for the State of Georgia, to the state hospital facilities operated by Defendant, to the people confined to the state hospital facilities and to records maintained by Defendant and these facilities.
JURISDICTION AND VENUE 2.
The Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 as this case arises under the laws of the United States, including, without limitation, the Protection and Advocacy for Individuals with Mental Illness Act (the “PAIMI Act”), 42 U.S.C. §§10801 et seq., and the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (the “DD Act”), 42 U.S.C. §§15001 et seq. (hereinafter the PAIMI Act and DD Act shall be referred to collectively as the “P&A Acts”)
3. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(1), as the Defendant is deemed to reside in the Northern District of Georgia.
PARTIES 4.
GAO is a private, non-profit Georgia corporation which provides protection and advocacy services to individuals with disabilities. GAO has been designated by
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the State of Georgia since 1977 as its protection and advocacy system ("P&A") to protect the legal and human rights of individuals with disabilities in the State of Georgia pursuant the federal legislation collectively referred to as the P&A Acts.
5. GAO receives federal funding to provide protection and advocacy services to people with disabilities in Georgia pursuant to the P&A Acts.
6. Under its federal mandate as the designated P&A, GAO is required to have authority to investigate specific incidents of abuse and neglect and to conduct monitoring activities to protect the rights and safety of individuals with disabilities. 42 U.S.C. §10805(a); 42 U.S.C. §15043(a)(2)(B).
7. Further, the P&A shall have the authority to pursue administrative, legal and other appropriate remedies to ensure the protection of individuals with disabilities and mental illness in the State. 42 U.S.C. §10805(a)(1)(B); 42 U.S.C. §15043(a)(2)(A)(i).
8. To fulfill this federal mandate to protect and advocate for individuals with disabilities in Georgia, GAO must have access to individuals with disabilities in
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the locations in which services, supports, and other assistance are provided and to have access to their records, all of which are necessary in order to protect the legal and human rights of such individuals. 42 U.S.C. §10805(a); 42 U.S.C. §15043(a)(2).
9. Defendant Frank Shelp, M.D., is being sued in his official capacity as the Commissioner of the Georgia Department of Behavioral Health and Developmental Disabilities (“DBHDD”). In his official capacity, Dr. Shelp directs and is responsible for the services provided by DBHDD to people with disabilities including Georgia’s seven (7) state regional hospitals for the treatment of individuals with mental illness and developmental disabilities.
10. At all relevant times, Defendant Shelp and his employees and agents were operating under the color of state law as representatives of a public entity and within the scope of their public employment.
FACTUAL ALLEGATIONS COMMON TO ALL COUNTS 11.
The DBHDD operates seven (7) state regional hospital facilities that provide services to people with mental illness and developmental disabilities,
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including Southwestern State Hospital, West Central Georgia Regional Hospital, Central State Hospital, Georgia Regional Hospital at Atlanta, Georgia Regional Hospital at Savannah, East Central Regional Hospital and Northwest Georgia Regional Hospital.
12. As Georgia’s P&A, GAO receives, among other information, complaints and information specific to incidents of abuse and neglect at the state hospital facilities operated by DBHDD.
13. GAO investigates deaths and incidents where it has probable cause to believe that abuse or neglect has occurred at the state hospitals. In the course of its investigations, GAO will request records, interview people who may have information about the death or other incidents, and conduct on-site visits to the site of the alleged abuse or neglect pursuant to the P&A Acts.
14. GAO investigators engage in a variety of activities to detect and remedy abuse and neglect in Defendant’s hospitals where individuals with mental illness and with developmental disabilities are confined.
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15. GAO’s investigators’ methods include but are not limited to, conducting full investigations at the facilities themselves; reviewing the investigations conducted by the facilities and oversight agencies and intervening when the process or outcome raises questions; reviewing corrective action plans and their implementation, if any; analyzing trends in reported incidents in facilities, regions or across the state and making recommendations for changes in policies and practices.
16. GAO regularly requests records from Defendant’s agents and employees pursuant to its investigatory authority. Defendant’s agents and employees routinely fail to provide complete records in a timely manner as required by the P&A Acts. It is not uncommon for GAO to have to send second and third requests for the same documents before any are provided.
17. In order for GAO to perform effective investigations in accordance with its mandates, GAO must have access to what are generally referred to as “peer review records.” Peer review refers to the process whereby by a medical staff member or committee of medical staff examines the care provided by a peer medical staff
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member to determine whether the medical staff member under review has met accepted standards of care in providing healthcare services. Peer review records disclose, among other things, the process and outcome of reviews by state hospital medical staff and any recommended corrective or remedial actions regarding incidents of patient abuse and neglect, injury, and death within these facilities. Peer review records are required by various accreditation programs and bodies and participation in Medicaid and Medicare, and must be created by the facilities.
18. In the event of a patient’s death at a facility, GAO is entitled access to all records within twenty-four hours after the request is made. In the past, Defendant’s agents and employees have inconsistently provided all or some or none of the peer review records from the various hospitals, and when any have been provided it has been only after repeated requests and delays of a year or more.
19. Currently, Defendant will not permit GAO to copy or take into its possession peer review records created and maintained by Defendant. Defendant will allow GAO to view peer review records by appointment at the facility where the records are located, making necessary multiple trips to facilities located hundreds of miles from GAO’s offices, and creating barriers to GAO’s use of the peer review records
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in fulfilling GAO’s Congressional mandate to investigate incidents of abuse, neglect and death. Peer review records are necessary to analyze trends, to assess the quality of the peer reviews and the physicians who conduct them, and to determine whether the corrective and remedial actions recommended have been completed and whether they have been effective.
20. GAO investigators and advocates monitor Defendant’s facilities in order to observe directly such matters as health and safety conditions, the use of restraints and seclusion, ratios of staff to patients, the attitudes and demeanor of interactions among staff and patients, and conducting on site interviews of patients and staff.
21. Although the P&A Acts clearly provide that GAO have unaccompanied access to facilities and individual patients, GAO is frequently prevented from doing so by Defendant’s agents and employees. Thus, when conducting monitoring activities, including speaking to individual patients confined to the hospitals, GAO advocates are often accompanied by hospital staff. Even when such staff remains at a short distance and probably cannot overhear the precise content of the advocate and patient conversation, there is no confidentiality afforded to the fact of the patient’s communication with the advocate.
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22. In some instances, GAO has been prevented from conducting private interviews with patients outside the direct presence of Defendant’s facility staff.
23. D. is a person with mental illness confined to SWSH.
24. D. is eligible for protection and advocacy services from GAO pursuant to the PAIMI Act.
25. GAO received information that D. had been subject to abuse while confined at SWSH. Specifically, GAO received information that D. had been sexually assaulted at SWSH.
26. GAO considered the information it had received in light of its knowledge and experience and made a finding that probable cause exists to believe that D. may have been subject to abuse at SWSH and opened an investigation into the matter.
27. GAO informed Defendant Hoo-you by faxed letter on October 13, 2009, that a representative of GAO would be visiting SWSH on that day for the purposes of
9

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investigating the sexual assault of D. and to conduct monitoring of the facility. GAO informed Defendant of GAO’s role as Georgia’s P&A and explained in detail its federally mandated access authority for purposes of investigation and monitoring.
28. On October 13, 2009, a GAO investigator traveled to SWSH hospital to meet with D. and investigate the sexual assault and to monitor conditions at the hospital.
29. On October 13, 2009, Defendant Hoo-you denied GAO’s investigator access to D. and to the SWSH facility.
30. Defendant’s stated reason for refusing to allow GAO’s investigator access to D. was the absence of a member of the hospital staff to accompany the GAO investigator.
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COUNT I 31.
GAO restates and incorporates by reference each numbered paragraph, above.
32. Defendant is violating the P&A Acts, 42 U.S.C. §§ 10801 et seq. and 15041 et seq., by delaying, denying and partially denying GAO’s full, complete and timely access to the Defendant’s facilities and the individuals confined to those facilities and their records as required by the federal statutes and their accompanying regulations.
33. Defendant has engaged in a course of conduct prior to the filing of this complaint through which Defendant has violated the P&A Acts by delaying, denying and partially denying GAO’s full, complete and timely access to the records, facilities and individuals as required by the statutes and their accompanying regulations.
34. By delaying, denying, and partially denying GAO’s full, complete, and timely access to the records, facilities and individuals, Defendant has, and is,
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interfering with GAO’s ability to effectively perform its obligations under the P&A Acts in accordance with its Congressional mandate, and is therefore causing GAO to suffer irreparable harm for which there is no adequate remedy at law.
35. By the nature of Defendant’s violations of the P&A Acts, these violations are capable of repetition and yet resist judicial review in order to provide complete relief to GAO.
36. GAO’s right to access individuals with disabilities in the locations in which they receive services and to access records of such individuals are rights secured by the laws of the United States, including, but not limited to, the P&A Acts.
37. In violation of 42 U.S.C. § 1983, Defendant has subjected GAO to a deprivation of GAO’s rights under color of a statute, ordinance, regulation, custom, or usage of the State of Georgia.
38. As a result of Defendant’s deprivation of GAO’s rights, the GAO is suffering irreparable injury.
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39. Pursuant to 42 U.S.C. § 1988, GAO should recover a reasonable attorney’s fee as part of its costs for taking action to enforce Section 1983.
WHEREFORE, GAO prays that the Court will grant the following relief: 1. Declare that Defendant has violated the rights of GAO under the P&A Acts by unreasonably restricting GAO’s access to D., an individual with mental illness, at Southwestern State Hospital; 2. Declare that Defendant has violated the rights of GAO under the P&A Acts by unreasonably denying GAO access to DBHDD’s seven (7) state regional hospital facilities that serve people with mental illness and developmental disabilities. 3. Declare that Defendant has violated the rights of GAO under the P&A Acts by unreasonably delaying GAO’s access to records; specifically, that Defendant has unreasonably denied GAO’s access to peer review records. 4. Preliminarily and permanently enjoin Defendant and his successors from denying GAO any and all future access to individuals with disabilities in the locations where Defendant provides services to them as required by the P & A Acts;
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5. Award GAO a reasonable attorney’s fee pursuant to 42 U.S.C. § 1988(b); and
6. Provide such other and further relief as the Court may deem just and proper.

This 2nd day of November, 2009.

Georgia Advocacy Office, Inc. 150 E. Ponce de Leon Avenue Suite 430 Decatur, GA 30030 Phone: (404) 885-1234 Fax: (404) 378-0031 E-mail: jnorris@thegao.org

/s/ Joshua H. Norris Joshua H. Norris Georgia Bar No. 545854
Attorney for Plaintiff

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 Case 1:09-cv-02880-CAP Document 94 Filed 09/12/12 Page 1 of 9

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

GEORGIA ADVOCACY OFFICE, INC.,
Plaintiff,
v.
FRANK SHELP, M.D., in his official capacity as Commissioner, Georgia Department of Behavioral Health and Developmental Disabilities,
Defendant.

CIVIL ACTION NO. 1:09-CV-2880-CAP

O R D E R

This action is before the court on the plaintiff’s motion for

attorneys’ fees and expenses [Doc. No. 83].

I. Background

The background of this case is set out in detail in the

court’s summary judgment order [Doc. No. 53] and does not need to

be repeated here. Following the court’s denial of summary judgment,

the parties successfully mediated almost all outstanding issues in

this case and entered into a stipulated agreement. Only one

substantive issue remained: whether, and to what extent, the

plaintiff was entitled to access peer review records kept by the

Department of Behavioral Health and Developmental Disabilities.

Additionally, the stipulated agreement settled all fees disputes to

that point but reserved the plaintiff’s right to “seek fees and

costs that arise from the litigation of the claim of access to peer

Case 1:09-cv-02880-CAP Document 94 Filed 09/12/12 Page 2 of 9
review records under the P&A Acts and regulations” [Doc. No. 63, ¶ 36].
Following briefing of the plaintiff’s motion for final injunction, which consisted almost entirely of arguments on the issue of access to peer review records, the court granted the defendant’s request for a hearing and then issued the permanent injunction on the terms the plaintiff requested [Doc. No. 65]. The plaintiff has now moved to recover attorneys’ fees in the amount of $51,990.50 under 42 U.S.C. § 1988. II. Legal standard and analysis
Pursuant to 42 U.S.C. § 1988, prevailing parties in civil rights actions are entitled to an award of attorneys’ fees. Hensley v. Eckerhart, 461 U.S. 424 (1983). In this case, it is undisputed that the plaintiff was the prevailing party. Accordingly, the plaintiff is entitled to an award of attorneys’ fees.
In calculating a reasonable attorneys’ fee award, the court must multiply the number of hours reasonably expended on the litigation by the customary fee charged in the community for similar legal services to reach a sum commonly referred to as the “lodestar.” Hensley, 461 U.S. at 433-34; Norman v. Housing Authority, 836 F.2d 1292, 1299 (11th Cir. 1988). The court may then adjust the lodestar to reach a more appropriate attorneys’ fee, based on a variety of factors, including the novelty or difficulty
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of the question presented and the time and labor required. Ass’n of Disabled Ams. v. Neptune Designs, Inc., 469 F.3d 1357, 1359 n.1 (11th Cir. 2006).
The defendant here objects to the reasonableness of the fees requested based on the rate charged by Paula Rafferty Miller and claims certain billed tasks were overstaffed, insufficiently documented, redundant, or unnecessary.
A. Hourly Rate “A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Norman, 836 F.2d 1292, 1299. The Eleventh Circuit provided the following instruction for determining a reasonable hourly rate for the attorneys involved in a case: [O]rdinarily there are no quotations for the prevailing market rate for a given attorney's services. Instead, the best information available to the court is usually a range of fees set by the market place, with the variants best explained by reference to an attorney's demonstrated skill. It is the job of the district court in a given case to interpolate the reasonable rate based on an analysis of the skills . . . which were exhibited by the attorney in the case at bar . . . . Id. at 1301. In this case, the defendant’s objection to the rate charged by Paula Rafferty Miller, $400 per hour, is based on a comparison with that charged by Joshua Norris, $330 per hour. According to the
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defendant, Ms. Miller’s rate is unreasonable because she is classified as a staff attorney, while Mr. Norris is the plaintiff’s Director of Legal Advocacy [Doc. No. 92 at 11].
Inspection of the declarations of Ms. Miller and Mr. Norris reveals that Ms. Miller’s higher rate is based largely on the fact that she has nine more years of experience than Mr. Norris. The court finds that $400 per hour is a reasonable hourly rate for attorneys of similar skills, experience, and reputation as Ms. Miller in the Atlanta area. Likewise, the court finds that the rates for Mr. Norris and Ms. Kegley ($295 per hour) are also reasonable.
B. Hours Expended The next step in computing the lodestar is the ascertainment of reasonable hours. Norman, 836 F.2d at 1301. Excessive, redundant or otherwise unnecessary hours should be excluded. Id. “This must necessarily mean that the hours excluded are those that would be unreasonable to bill to a client and therefore to one's adversary irrespective of the skill, reputation or experience of counsel.” Id. (emphasis omitted). Exclusions for excessive or unnecessary work on given tasks must be left to the discretion of the court. Id. While there is nothing inherently unreasonable about a client having multiple attorneys, which may all be compensated if they are
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not unreasonably doing the same work, the court is charged with deducting redundant hours. Id.
In this case, the defendant argues that several charges are unreasonable. The court addresses each in turn.
(1) The defendant first argues that the plaintiff’s attorneys unreasonably billed for two attorneys to attend and prepare for a court-ordered status conference. According to the billing sheets attached to plaintiff’s counsels’ affidavits, they billed 3.2 hours in total to prepare for the status conference, including .5 hour of research. The court finds this time reasonable and compensable. On the other hand, the court finds billing a total of 4.0 hours of attorney time for a 25 minute status conference is unreasonable. Accordingly, Kegley’s fees will be reduced by the equivalent of 2.0 hours, or $590.
(2) The defendant complains that the plaintiff’s attorneys failed to adequately document which tasks each performed in drafting the permanent injunction brief. The billing sheets reflect that Norris billed for 6.8 hours spent drafting the permanent injunction brief and that Miller billed for 4.0 hours spent drafting and revising the motion and brief. The court finds these time expenditures reasonable and compensable.
(3) The defendant complains that the plaintiff’s attorneys failed to adequately document which tasks each performed in
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drafting the reply brief for the permanent injunction motion. The defendant points out that Norris billed 4.2 hours, Miller billed 15.3 hours, and Kegley billed 6.5 hours for research, drafting, reviewing, and editing the reply brief. The court agrees that these amounts of time are unreasonable in the aggregate and are most likely redundant; the also court notes that the descriptive entries are too vague to show that any particular hours are not redundant. Accordingly, the court agrees with the defendant, and plaintiff’s attorneys’ respective fees will be reduced as follows: Norris’s fees will be reduced by the equivalent of 2.5 hours, or $825; Miller’s fees will be reduced by the equivalent of 9.3 hours, or $3,720; Kegley’s fees will be reduced by the equivalent of 2.5 hours, or $737.50.
(4) The defendant complains of unnecessary and irrelevant research done in several categories prior to the permanent injunction hearing, including 0.3 hours Kegley billed for emails with outside attorneys about their P&A access, 4.0 hours she billed for collecting peer review requests and denials while the facts relevant to the hearing were stipulated to, and 1.0 hour Norris billed for reviewing “DOJ findings letters in US v. GA re: protections from harm.” The plaintiff’s attorneys do not justify these hours, and the court agrees that they are unreasonable. Accordingly, the plaintiff’s counsels’ respective fees will be
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reduced as follows: Norris’s fees will be reduced by the equivalent of 1.0 hour, or $330, and Kegley’s fees will be reduced by the equivalent of 4.3 hours, or $1268.50.
(5) The defendant complains that the plaintiff’s attorneys billed 24.6 hours preparing their witness, Ms. Moore, for the permanent injunction hearing. The billing sheets reveal 8.2 hours billed by Norris, 12.1 hours billed by Miller, and 0.4 billed by Kegley for meeting or preparing witness examination. While the plaintiff’s attorneys argue that their entries also reflect planning for cross examination of Dr. Shelp, the descriptions are simply too vague. The court agrees with the defendant that, in any case, the total time billed for preparing for the hearing was unreasonable. Accordingly all the fees billed by Miller and Kegley for witness preparation, in amounts of $4,840 and $118, respectively, will be disallowed.
(6) The defendant complains that both Norris and Kegley billed for drafting the proposed remedy, as ordered by the court. The court finds these time expenditures reasonable and compensable.
(7) The defendant complains that the plaintiff’s attorneys billed a combined 13.1 hours preparing its attorney’s fees request. The court finds the time expenditures for the fees request reasonable and compensable. Moreover, a prevailing plaintiff is
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entitled to attorney’s fees for litigating its fee claim. Cruz v. Hauck, 762 F.2d 1230, 1233-34 (5th Cir. 1985).
C. Adjustment to the Lodestar Once the lodestar is obtained, the court may then adjust it upwards or downwards. Hensley, 461 U.S. at 434; Blum v. Stenson, 465 U.S. 886, 897 (1984); Barnes, 168 F.3d at 427; Norman, 836 F.2d at 1302. The Supreme Court and Eleventh Circuit have stated that while the adjustment may be based on a number of factors, the most important factor is the results obtained. Henslev, 461 U.S. at 434; Norman, 836 F.2d at 1302. The Supreme Court has warned, however, that upward adjustments are rarely warranted because the factors on which a prevailing party typically seeks an enhancement already have been considered by the court in determining the reasonable hourly rate: Expanding on our earlier finding in Hensley that many of the Johnson[v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)] factors “are subsumed within the initial calculation” of the lodestar, we specifically held in Blum that the “novelty [and] complexity of the issues,” “the special skill and experience of counsel,” the “quality of representation,” and the “results obtained” from the litigation are presumably fully reflected in the lodestar amount, and thus cannot serve as independent bases for increasing the basic fee award. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986).
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The plaintiff in this case does not seek an enhancement of the lodestar, and the court finds no basis for such enhancement However, the court does find that the degree of success and benefit to the public as a result of this case do warrant the award of the full lodestar amount. IV. Conclusion
For the reasons set forth above, the plaintiff’s motion for attorney’s fees [Doc. No. 83] is GRANTED in the reduced amount of $39,561.50. The defendant is DIRECTED to remit payment on or before November 15, 2012. Failure to do so will result in contempt sanctions.
SO ORDERED, this 12th day of September, 2012. /s/Charles A. Pannell, Jr. CHARLES A. PANNELL, JR. United States District Judge
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 Case 1:09-cv-02880-CAP Document 53 Filed 03/09/11 Page 1 of 35

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

GEORGIA ADVOCACY OFFICE, INC.,
Plaintiff,
v.
FRANK SHELP, M.D., in his official capacity as Commissioner, Georgia Department of Behavioral Health and Developmental Disabilities,
Defendant.

CIVIL ACTION NO. 1:09-CV-2880-CAP

O R D E R

This matter is now before the court on cross motions for summary judgment filed by the defendant [Doc. No. 20] and the plaintiff [Doc. No. 25]. I. Background

Disturbed by the inhumane and despicable conditions discovered at New York's Willowbrook State School for persons with developmental disabilities, Congress enacted the Developmental Disabilities Assistance and Bill of Rights Act (“the Act”) to protect the human and civil rights of this vulnerable population . . . . Pursuant to the Act, a state cannot receive federal funds for services to persons with developmental disabilities unless it has established a protection and advocacy (“P&A”) system.

Alabama Disabilities Advocacy Program v. J.S. Tarwater Developmental Center, 97 F.3d 492, 494 (11th Cir. 1996). Congress reauthorized this spending program in 2000, and the Developmental

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Disabilities Assistance and Bill of Rights Act of 2000, as amended

(“the DD Act”), is codified at 42 U.S.C. § 15001 et seq.

With similar concerns regarding the abuse and injury of

individuals in psychiatric facilities, see

42 U.S.C. 10801,

Congress enacted the Protection and Advocacy for Individuals with

Mental Illness Act (“the PAIMI Act”), which is codified at 42

U.S.C. § 10801 et seq. The PAIMI Act provides for additional

federal funding for the same P&A systems established by the DD Act

and expands their duties to encompass the protection of individuals

with mental illness.

As shown below, at the core of the DD Act and the PAIMI Act

(together, “the P&A Acts”) is the requirement that each state

accepting funding must establish and maintain an effective

protection and advocacy system to serve the patients and clients of

state-run facilities. While states electing to receive federal

funds under the P&A Acts can establish a P&A system as an arm of

the state or as a private entity, independence from the state-run

facilities is key to satisfying the federal mandate. 42 U.S.C.

10805(a)(2).

The P&A system for the State of Georgia is the plaintiff in

this case, the Georgia Advocacy Office, Inc., a private, non-profit

corporation. The plaintiff’s amended complaint in this case [Doc.

No. 7] alleges that the defendant, in his official capacity as the

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commissioner of the Georgia Department of Behavioral Health and Developmental Disabilities (“the Department”), has violated the plaintiff’s right of access to patients, facilities, and records under the P&A Acts. The plaintiff requests that the court enter declaratory and injunctive relief pursuant to 42 U.S.C. § 1983.
Both parties have now moved for summary judgment. In the interest of economy, the facts and factual allegations are set out below in sections dedicated to the disposition of the motion to which they pertain. Further, the court notes that the parties’ focus throughout briefing has been on the applicability of the PAIMI Act and its regulations. For this reason, the court has applied the relevant standards within the PAIMI Act framework to the factual situations raised by each side although the facts presented in support of each motion do not make clear whether the individual patients involved are covered by the PAIMI Act, the DD Act, or both. II. Summary Judgment Standard
Rule 56(a) of the Federal Rules of Civil Procedure states, “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(c)(1) provides that a party must support its summary judgment position by “citing to particular parts of materials in the record, including
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depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials” or by “showing that the materials cited to do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” The party seeking summary judgment bears the burden of demonstrating that no dispute exists as to any material fact. Adickes v. S. H. Kress & Co. , 398 U.S. 144, 157 (1970). This burden is discharged by "'showing'--that is, pointing out to the district court--that there is an absence of evidence to support [an essential element of] the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether the moving party has met its burden, a district court must view the evidence and all factual inferences in the light most favorable to the party opposing the motion. Johnson v. Clifton, 74 F.3d 1087, 1090 (11th Cir. 1996).
Once the moving party has adequately supported its motion, the nonmovant has the burden of sh owing that summary judgment is improper by coming forward with specific facts showing a genuine dispute. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Ultimately, the court's function is not to resolve issues of material fact, but rather to determine whether there are any such issues to be tried. Anderson v. Liberty Lobby,
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Inc., 477 U.S. 242, 251 (1986). Facts that are disputed, but which

do not affect the outcome of the case, are not material and thus

will not preclude the entry of summary judgment. Id.

at 248.

Genuine disputes are those in which "the evidence is such that a

reasonable jury could return a verdict for the nonmoving party."

Id.

III. 42 U.S.C. § 1983 and the Eleventh Amendment

The defendant’s salient arguments in favor of his motion for summary judgment center not on the facts of this case but whether the plaintiff may properly bring suit in the first place. In support of this argument, the defendant asserts that the P&A Acts provide no federal rights that may be enforced by private suit pursuant to 42 U.S.C. § 1983. The defendant also briefly argues that the Eleventh Amendment to the United States Constitution protects the State of Georgia’s sovereign immunity such that this action is barred. The court addresses these arguments in turn.
A. 42 U.S.C. § 1983

Quoting Blessing v. Freestone, 520 U.S. 329, 340 (1997), the

defendant opens its argument on whether a § 1983 suit is

appropriate by stating, “[I]n order to seek redress through § 1983,

a plaintiff must assert the violation of a federal

right, not

merely a violation of federal law” [Doc. No. 20-1, p.11][italics in

original]. Then, citing several cases analyzing the existence of

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federally-created rights under statutes passed pursuant to Congress’ spending power, see U.S. Constitution Art. I, § 8, Cl. 1, the defendant concludes, “Where a statutory provision contains ‘no rights-creating language,’ has an ‘aggregate, not individual, focus,’ and serves primarily to direct the distribution of funds, it does not create a right enforceable under § 1983" [Doc. No. 201, p. 15].
The defendant relies heavily on the Supreme Court’s opinion in Gonzaga Univeristy v. Doe , 536 U.S. 273 (2002). In Gonzaga , the Supreme Court analyzed the Family Education Rights and Privacy Act (“FERPA”), which provides funding to educational institutions but prohibits such funding to institutions that have a policy or practice of releasing education records to unauthorized persons. Id. at 276. The Supreme Court ultimately decided that FERPA did not provide for a private cause of action under § 1983 for the plaintiff, a student at Gonzaga University, whose records had allegedly been improperly released. Id.
In so holding, the Supreme Court utilized a set of inquiries based on the phrasing and content of FERPA. First, the Supreme Court looked into whether Congress intended to create a federal right. Id. at 286-87. To do so, it examined the text of the statute:
To begin with, the provisions entirely lack the sort of -6-

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“rights-creating” language critical to showing the

requisite congressional intent to create new rights.

Unlike the individually focused terminology of Titles VI

and IX (“No person . . . shall . . . be subjected to

discrimination”), FERPA’s provisions speak only to the

Secretary of Education, directing that “[n]o funds shall

be made available” to any “educational agency or

institution” which has a prohibited “policy or practice.”

20 U.S.C. § 1232g(b)(1). This focus is two steps removed

from the interests of individual students and parents and

clearly does not confer the sort of “

individual

entitlement” that is enforceable under § 1983.

Id. at 287 (italics in original)(internal citations omitted).

The Supreme Court next observed that FERPA’s nondisclosure

provisions “speak only in terms of institutional policy and

practice, not individual instances of disclosure.” Id. at 288

(citing a FERPA provision “prohibiting the funding of ‘any

educational agency or institution which has apolicy or practice of

permitting the release of education records’ (emphasis added)”).

“Therefore,” the Supreme Court concluded, “they have an ‘aggregate

focus,’ [and] they are not concerned with whether the needs of any

particular person have been satisfied.” Id.

Finally, the Supreme Court observed that its conclusion that

FERPA’s nondisclosure provision conferred no enforceable rights “is

buttressed by the mechanism that Congress chose to provide for

enforcing those provisions. Congress expressly authorized the

Secretary of Education to ‘ deal with violations’ of the act, §

1232g(f) (emphasis added), and required the Secretary to ‘establish

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or designate a review board” for investigating and adjudicating such violations.” Id. at 289. The Supreme Court also observed that other administrative language regarding the location where “the functions of the Secretary” were supposed to take place under the nondisclosure provision were, when read together with the other administrative provisions empowering the Secretary of Education to “deal with” violations, incompatible with a private right of action. Id. at 290.
With these guiding principles in mind, the court turns to the text of the P&A Acts.
The DD Act provides for budgetary allotments to states that “have in effect a system to protect and advocate the rights of individuals with developmental disabilities.” 42 U.S.C. § 15043; see also 42 U.S.C. § 15022. A system required by the DD Act (referred to generically throughout this order as a P&A system) is required by the DD Act to have the authority to,inter alia, pursue legal, administrative, and other appropriate remedies or approaches to ensure the protection of, and advocacy for the rights of individuals with developmental disabilities, provide information on and referral to programs and services addressing the needs of such individuals, and investigate incidents of abuse and neglect of such individuals if the incidents are reported to the system or there is probable cause to believe that the incidents occurred. 42 U.S.C. §
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15043.

The PAIMI act provides further funding to P&A systems

established under the DD Act with the express purposes of

“ensur[ing] that the rights of individuals with mental illness are

protected” and

assist[ing] States to establish and operate a protection and advocacy system for individuals with mental illness which will
(A) protect and advocate the rights of such individuals through activities to ensure the enforcement of the Constitution and Federal and State statutes; and (B) investigate incidents of abuse and neglect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred.

42 U.S.C. § 10801(b). Consistent with these purposes, 42 U.S.C. §

10805(a)(1) confers upon P&A systems the authority to:

(A) investigate incidents of

abuse and neglect of

individuals with mental illness if the incidents are

reported to the system or if there is probable cause to

believe that the incidents occurred;

(B) pursue administrative, legal, and other appropriate

remedies to ensure the protection of individuals with

mental illness who are receiving care or treatment in the

State; and

(C) pursue administrative, legal, and other remedies on

behalf of an individual who–-

(i) was an individual with mental illness; and

(ii) is a resident of the state,

but only with respect to matters which occur within

90 days after the date of the discharge of such

individuals from a facility providing care or

treatment . . . .

Additionally, § 10805(a) provides that P&A systems shall:

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(2) be independent of any agency in the State which provides treatment or services (other than advocacy services) to individuals with mental illness; (3) have access to facilities in the State providing care or treatment; (4) in accordance with section 10806 of this title, have access to all records of--
(A) any individual who is a client of the system if such individual, or the legal guardian, conservator, or other legal representative of such individual, has authorized the system to have such access; (B) any individual (including an individual who has died or whose whereabouts are unknown)--
(i) who by reason of the mental or physical condition of such individual is unable to authorize the system to have such access; (ii) who does not have a legal guardian, conservator, or other legal representative, or for whom the legal guardian is the State; and (iii) with respect to whom a complaint has been received by the system or with respect to whom as a result of monitoring or other activities (either of which result from a complaint or other evidence) there is probable cause to believe that such individual has been subject to abuse or neglect; and (C) any individual with a mental illness, who has a legal guardian, conservator, or other legal representative, with respect to whom a complaint has been received by the system or with respect to whom there is probable cause to believe the health or safety of the individual is in serious and immediate jeopardy, whenever-(i) such representative has been contacted by such system upon receipt of the name and address of such representative; (ii) such system has offered assistance to such representative to resolve the situation; and (iii) such representative has failed or refused to act on behalf of the individual . . . .
The plaintiff here contends that it instituted this suit in
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order to vindicate its own federally protected rights, as opposed to bringing this suit on behalf of an individual under subpart (C) of § 10805(a)(1) [see amended complaint, Doc. No. 7, praying for a declaration that the defendant violated the plaintiff’s rights, not the rights of a particular patient]. The court therefore analyzes the language of the PAIMI Act to determine whether it confers rights on the plaintiff, as Georgia’s designated P&A system.
Under the analytical steps utilized by the Supreme Court in Gonzaga, this court has little difficulty in determining that the PAIMI Act confers certain rights on the plaintiff in this case. First, the PAIMI Act is phrased in terms of authorizations for the P&A systems and the facilities and records to which the P&A system “shall . . . have access . . . .” 42 U.S.C. § 10805. That Congress chose to mandate access with such specific language indicates the unambiguous intent to create rights of access.
Next, and as opposed to the framework set up in FERPA as analyzed by the Supreme Court in Gonzaga, PAIMI’s language is not addressed to the authority charged with dispensing federal funds. Instead, PAIMI addresses the rights of the P&A systems regarding facilities such as those overseen by the defendant here. In addition, that the P&A systems are authorized to “pursue legal, administrative, and other appropriate remedies” further contrasts it with the Supreme Court’s analysis of FERPA in that the Secretary
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of Education is authorized to deal with violations under that statutory framework. Under PAIMI, there can be no doubt but that the proper entities for enforcement are the P&A systems.
Other courts are in agreement. Last year, the Court of Appeals for the Seventh Circuit issued its opinion in Indiana Protection and Advocacy Services v. Indiana Family and Social Services Administration, 603 F.3d 365 (7th Cir. 2010)(en banc)(hereafter “IPAS”). The Seventh Circuit analyzed the availability of a private cause of action for Indiana’s P&A system, called IPAS, and concluded that the PAIMI Act created rights of access and that they were enforceable under 42 U.S.C. § 1983. In contrast to the nondisclosure provisions of FERPA as analyzed in Gonzaga and the disparate impact regulations under Title VI of the Civil Rights Act of 1964 as analyzed in Alexander v. Sandoval, 532 U.S. 275 (2001), the Seventh Circuit concluded that the right-of-access provisions in the PAIMI Act “are not one or two steps removed from IPAS - they are granted directly to IPAS itself.” 603 F.3d at 379. Accordingly, the Seventh Circuit concluded that the PAIMI Act itself provides a cause of action for equitable relief and declined to decide whether 42 U.S.C. § 1983 similarly provided relief. See also Missouri Protection and Advocacy Services v. Missouri Department of Mental Health, 447 F.3d 1021 (8th Cir. 2006)(recognizing a cause of action under § 1983 to vindicate rights conferred by the PAIMI Act).
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This court concludes that the PAIMI Act confers rights of access to the plaintiff in unambiguous terms and that these rights are enforceable under § 1983. The defendant’s motion for summary judgment on the ground that the plaintiff has not alleged a deprivation of a federal right is DENIED.
B. Immunity and the Eleventh Amendment Citing Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985), the defendant next argues, “Unless a State has waived its Eleventh Amendment immunity or Congress has overridden it, a State cannot be sued directly in its own name regardless of the relief sought.” The defendant continues, arguing that the rule from Graham extends to state agencies and officers and that the plaintiff has failed to show any waiver of sovereign immunity [Doc. No. 20-1, p. 16]. The plaintiff responds by arguing that the doctrine of Ex Parte Young, 209 U.S. 123 (1908), which permits suits against state officers where the relief sought is prospective and equitable and seeks to end continuing violations of federal law, is applicab le in this case. The defendant’s reply relies on Virginia v. Reinhar,d 568 F.3d 110 (4th Cir. 2009) for the following proposition: “[T]he doctrine of Ex Parte Young only applies to suits by private individuals” [Doc. No. 48, p. 4]. This conclusion and the corresponding case law cited by the defendant in support overlooks the fundamental basis
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upon which Reinhard was decided. At issue in Reinhard was whether

Virginia’s P&A system (called VOPA) could rightfully bring a cause

of action under PAIMI against Virginia’s commissioner of the

Department of Mental Health in his official capacity for refusing

access to records. The Fourth Circuit ultimately decided that the

Eleventh Amendment barred VOPA’s cause of action against the

commissioner, but this holding was very limited. After narrowing

the question (“The limited question we face, therefore, is ‘whether

the Eleventh Amendment bar should be lifted, as it was inEx Parte

Young,’ when the plaintiff is a state agency”), id.

at 119

(internal citation omitted), the Reinhardcourt concluded, “We hold

only that, because VOPA is a state agency, Ex Parte Young is the

improper vehicle for VOPA to gain access to a federal forum. This

holding in no way limits the scope of Ex Parte Young for private

plaintiffs.” Id. at 124. The Reinhard court expressly made its

decision based on the fact that the P&A system there was a state

agency. Its holding is therefore inapplicable to the plaintiff

here, a non-profit private corporation. See id. at 118 (stating

“this case differs from Ex Parte Young in a critical respect: the

plaintiff there was not a state agency”); id. at 119 (stating “The

state officials concede that Ex Parte Young would permit this

action if the plaintiff were a private person or even a private

protection and advocacy system”).

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Instead, the court conducts a straightforward inquiry into whether the “complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S. 635, 645 (2002); see also IPAS , 603 F.3d at 371. The amended complaint in this case satisfies these criteria: it alleges that the defendant is violating the P&A acts by delaying and denying access to facilities, individuals, and records, and it requests injunctive relief restraining the defendants from doing so [Doc. No. 7].
This case fits neatly within the Ex Parte Youngline of cases. The defendant’s motion for summary judgment is therefore DENIED insofar as it seeks dismissal on Eleventh Amendment grounds. IV. The P&A Acts as applied to this case
The remaining portion of the defendant’s motion for summary judgment [Doc. No. 20] and the plaintiff’s motion for summary judgment [Doc. No. 25] are based on the P&A Acts and their implementing regulations as applied to the facts of this case. The plaintiff’s claims can neatly be summarized and divided into categories as follows: the defendant and the Department, in violation of the P&A Acts and the regulations promulgated thereunder, unlawfully restricted the plaintiff’s access to 1) the Department’s facilities and patients and 2) patient records.
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A. Introduction The apparent impetus for the original filing of this case
occurred on October 13, 2009. Though the parties characterize the events of that day differently, what is undisputed is that one of the plaintiff’s agents visited Southwestern State Hospitals (“SWSH”), which is run by the Department, but left before she was given access to the facilities. The stated reason for the visit was to investigate the alleged sexual assault of one of the patients 1 that had happened in July 2009 at that facility, as well as to monitor the conditions at that facility more generally. As a result the plaintiff organization filed suit alleging that it had been denied access to the SWSH facilities.
Following the court’s denial of preliminary injunctive relief on October 22, 2009, the plaintiff filed an amended complaint broadening its claims to encompass more general claims of denial of access to facilities, patients, and patient records.
Each party has now filed a motion for summary judgment. The defendant’s motion [Doc. No. 20] is supported by a statement of material facts [Doc. No. 21] (“Def. SMF”), to which the plaintiff
1 The defendant refers to this individual as “a long term forensic consumer” [Doc. No. 20-1, p. 2], while the plaintiff refers to the individual as a “resident” [Doc. No. 25-1, p. 2]. For the sake of clarity, the court will refer to those under the care of the Department as patients throughout this order.
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has responded [Doc. No. 42] (“Pl. Resp.”). Similarly, the
plaintiff’s motion [Doc. No. 25] is supported by a statement of
material facts [Doc. No. 25-2] (“Pl. SMF”), to which the defendant
has responded [Doc. No. 45] (“Def. Resp.”). Neither party filed a
statement of additional facts which the respondent contends are
material and present a genuine issue for trial pursuant to Civil
Local Rule 56.1B(2)(b).
“The court will not consider any fact (a) not supported by a
citation to the evidence (including paragraph number); (b)
supported by a citation to a pleading rather than to evidence; (c)
stated as an issue or legal conclusion; or (d) set out only in the
brief and not in the movant’s statement of undisputed facts.” Civil Local Rule 56.1B(1).2
2 As an initial matter, the court notes that the affidavits of Michael James or Hillary Hoo-Yoo filed by the defendant in support of his statement of material facts are problematic. These documents, first filed as an appendix [Doc. No. 22, Exhibits A and B, respectively], are obvious drafts of affidavits. They contain an editor’s proofreading marks in red ink or pencil, [Doc. No. 22-1, p.2; 22-2, p. 5], and the Appendix cover page indicates that the intended filings are each dated May 5, 2010 [Doc. No. 22]. The documents actually filed are dated October 20, 2009, and October 21, 2009. Apparently recognizing that there was some mistake and that the wrong documents had been filed, counsel for the defendant promptly filed a “notice of original filing” but appended the exact same documents [Doc. No. 23]. Finally, counsel for the defendant filed what appear to be the correct documents with another “notice of original filing” [Doc. No. 36]. These filings, without explanation from the defendant, understandably caused confusion for the court and for the plaintiff, see [Doc. No. 45](objecting to Def. SMF ¶ 17 and stating that the paragraph in an affidavit cited
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i. Reasonable access to facilities and patients
The amended complaint summarily claims that the defendant is
violating the P&A Acts “by delaying, denying and partially denying
GAO’s full, complete and timely access to the Defendant’s
facilities and the individuals confined to those facilities . . .
as required by the federal statutes and their accompanying
regulations” [Doc. No. 7, ¶ 32].
The implementing regulations for the PAIMI Act provide as
follows regarding instances when a P&A system such as the plaintiff
here suspects abuse or neglect in a regulated facility:
A P&A system shall have reasonable unaccompanied access to public and private facilities and programs in the State which render care or treatment for individuals with mental illness, and to all areas of the facility which are used by residents or are accessible to residents. The P&A system shall have reasonable unaccompanied access to residents at all times necessary to conduct a full investigation of an incident of abuse or neglect. This authority shall include the opportunity to interview any facility service recipient, employee, or other persons, including the person thought to be the victim of such abuse, who might be reasonably believed by the system to have knowledge of the incident under investigation. Such access shall be afforded, upon request, by the P&A system when: (1) An incident is reported or a complaint is made to the P&A system; (2) The P&A system determines there is probable cause to
to support ¶ 17 does not exist). Although the court has read and considered the evidence in the latest-filed versions of these affidavits, [Doc. Nos. 36-1 and 36-2], these documents were not integral to the court’s determination of the defendant’s motion for summary judgment.
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believe that an incident has or may have occurred; or (3) The P&A system determines that there is or may be imminent danger of serious abuse or neglect of an individual with mental illness. 42 C.F.R. § 51.42(b). The next section provides: If a P&A system's access to facilities, programs, residents or records covered by the Act or this part is delayed or denied, the P&A system shall be provided promptly with a written statement of reasons, including, in the case of a denial for alleged lack of authorization, the name, address and telephone number of the legal guardian, conservator, or other legal representative of an individual with mental illness. Access to facilities, records or residents shall not be delayed or denied without the prompt provision of written statements of the reasons for the denial. 42 C.F.R. § 51.43. The plaintiff points to incidents on four separate dates that it argues demonstrate that the defendant and the Department have violated the P&A Acts, as follows: First, the plaintiff alleges that, on February 19, 2010, Central State Hospital (“CSH”) staff refused to allow the plaintiff’s agent, Katie Chandler, to attend a meeting to which she had been invited to assist in the transition of a 17-year-old boy from CSH to the community [Pl. SMF., Doc. No. 25-2, ¶ 26]. In response, the defendant denies that Ms. Chandler was denied access to a meeting by CSH staff and refers the court to ¶ 8 of the affidavit of Yevonna Paggett-Johnson, which states that, although
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Ms. Chandler had been invited to the meeting in question, she had not been invited by the guardian of the patient in question, J.W. [Doc. No. 42-3, p. 7]. According to the Paggett-Johnson affidavit, CSH staff informed Ms. Chandler and her intern that they could not attend the meeting as planned, but that she could meet with J.W. and his mother afterwards [id.].
The evidence presented by the plaintiff on this point is insufficient to determine that it is entitled to judgment as a matter of law. The court lacks the factual predicate to determine whether Ms. Chandler was legally entitled to attend the meeting, including whether the patient’s legal guardian invited her, and there are disputed questions of fact regarding why Ms. Chandler was not allowed to attend.
On the same date, the plaintiff claims that CSH staff “refused to allow advocate Katie Chandler visit [sic] or monitor on the hospital campus,” [Pl. SMF, Doc. No. 25-1, ¶ 27], and “refused to allow advocate Katie Chandler to meet privately with an existing client,” [id., ¶ 28]. The defendant denies these claims, and points to the Paggett-Johnson affidavit. Ms. Paggett-Johnson testified that Ms. Chandler was allowed onto the campus and was not denied access to monitor at CSH, but rather was directed to speak with a risk management representative first [Doc. No. 42-3, pp. 7-8]. Ms. Paggett-Johnson also testified that Ms. Chandler was allowed to
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meet privately with the patient in question, C.C., but that Ms. Paggett-Johnson “did sit in the room due to being the staff witness for the signatures [for a required form], but left as soon as [she] had witnessed the signatures” [id., p. 8].
Again, there is a disputed issue of material fact on whether Ms. Paggett-Johnson prevented Ms. Chandler from meeting privately with a patient. Accordingly, summary judgment for the plaintiff is inappropriate on this evidence.
The plaintiff next claims that its agent, Sarah Stanton, was denied access to Monitor at West Central Hospital (“WCH”) on June 2, 2009 [Pl. SMF, ¶ 29]. The defendant denies this allegation and instead points to the affidavit of Felicia Hardaway, who testifies, “the staff on the unit were not attempting to deny access to Ms. Stanton, only to clarify that she had authorization to be on the unit. Unfortunately, due to office relocation, it may have been difficult for staff to reach me in a more timely manner for authorization” [Doc. No. 42-2, p. 12]. This testimony is consistent with the record evidence cited by the plaintiff: Ms. Stanton testifies, “After waiting twenty-five (25) minutes, I was advised that [the staff members] were waiting for Ms. Hardaway to give permission for me to enter the unit” [Doc. No. 33, p. 18].
The evidence before the court is insufficient to determine that the access afforded to Ms. Stanton was legally insufficient.
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Case 1:09-cv-02880-CAP Document 53 Filed 03/09/11 Page 22 of 35
Summary judgment for the plaintiff is therefore inappropriate on this point as well.
The plaintiff also alleges that on March 12, 2010, Ms. Stanton “was not allowed to speak to S.W., although she was standing near her,” [Pl. SMF, Doc. No. 25-2, ¶ 30], and that “Stanton was allowed to obtain a release from A.C., but then was immediately interrupted and not allowed to speak to her further” [id,. ¶ 31]. The defendant points out that the record evidence cited by the plaintiff to support the proposition that Ms. Stanton was not allowed to speak to patient S.W. is contradictory: Ms. Stanton testifies as follows in reference to S.W.:
As I made my way towards her, a GRHA Registered Nurse said to me that she needed to get permission for me to see S.W. and that the last time I saw S.W. she should not have let me in. I explained to the Registered Nurse that I had the right to see S.W. because of GAO’s federal access authority. I offered to show her a copy of our access authority, which she accepted and allowed me to see S.W. [Doc. No. 33, pp. 23-24][emphasis added]. Regarding A.C., the defendant objects to the plaintiff’s statement because the record evidence does not support the proposition for which it is cited, [D. Resp., Doc. No. 42, ¶ 31], and the court agrees. Accordingly, summary judgment for the plaintiff is inappropriate on this point as well. Finally, the plaintiff states, “Advocate Tomika Jackson was
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Case 1:09-cv-02880-CAP Document 53 Filed 03/09/11 Page 23 of 35
not permitted to have unaccompanied access to monitor the mental health unit at Central State Hospital” on February 18, 2010 [Pl. SMF, ¶ 32]. The defendant objects on the ground that this statement is in the form of a conclusion such that no response is required pursuant to Local Civil Rule 56.1B(1)(c). The court agrees. The plaintiff’s statement of material facts fails, in this paragraph, to set out enough facts for the court to consider whether the conclusion -- that Ms. Jackson was denied unaccompanied access –is supported. Accordingly, summary judgment for the plaintiff is inappropriate on this point as well.
In sum, the plaintiff has failed to carry its burden at summary judgment regarding the defendant’s alleged violation of the P&A Acts and their regulations as they apply to the plaintiff’s access to facilities and patients.3
With regard to access to facilities and patients, the defendant, in his brief and statement of material facts, sets out arguments only regarding the incident at SWSH on October 13, 2009. While the material facts regarding what happened that day are disputed, the defendant’s motion as a whole is also insufficient
3 The paragraphs of the plaintiff’s statement of material facts not specifically cited in this order do not warrant the court’s consideration: they are largely conclusions of law or argumentative rather than statements of facts material to this case.
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Case 1:09-cv-02880-CAP Document 53 Filed 03/09/11 Page 24 of 35

because it treats October 13, 2009, as the only incident at issue

in this case. The plaintiff’s claims encompass more than that date,

and even if the defendant’s evidence negated each of the

plaintiff’s claims regarding the events of that date, the

defendant’s motion for summary judgment would still be denied: the

defendant’s evidence would not in that hypothetical case –- and

does not in the present case –- establish that the defendant is

entitled to judgment as a matter of law on the broader claims.

ii. Access to records

The PAIMI Act’s regulations provide as follows regarding

access to patient records for P&A systems:

(a) Access to records shall be extended promptly to all

authorized agents of a P&A system.

(b) A P&A system shall have access to the records of any

of the following individuals with mental illness:

(1) An individual who is a client of the P&A system

if authorized by that individual or the legal

guardian, conservator or

other legal

representative.

(2) An individual, including an individual who has

died or whose whereabouts is unknown to whom all of

the following conditions apply:

(i) The individual, due to his or her mental

or physical condition, is unable to authorize

the P&A system to have access.

(ii) The individual does not have a legal

guardian, conservator or other legal

representative, or the individual's guardian

is the State or one of its political

subdivisions; and

(iii) A complaint or report has been received

and the P&A system has determined that there

is probable cause to believe that the

individual has been or may be subject to abuse

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Case 1:09-cv-02880-CAP Document 53 Filed 03/09/11 Page 25 of 35
or neglect. (3) An individual who has a legal guardian, conservator, or other legal representative, with respect to whom a complaint or report has been received by the P&A system and with respect to whom the P&A system has determined that there is probable cause to believe that the health or safety of the individual is in serious and immediate jeopardy, whenever all of the following conditions exists:
(i) The P&A system has made a good faith effort to contact the representative upon prompt receipt of the representative's name and address; (ii) The P&A system has made a good faith effort to offer assistance to the representative to resolve the situation; and (iii) The representative has failed or refused to act on behalf of the individual. (c) Information and individual records, whether written or in another medium, draft or final, including handwritten notes, electronic files, photographs or video or audio tape records, which shall be available to the P&A system under the Act shall include, but not be limited to: (1) Information and individual records, obtained in the course of providing intake, assessment, evaluation, supportive and other services, including medical records, financial records, and reports prepared or received by a member of the staff of a facility or program rendering care or treatment. This includes records stored or maintained in locations other than the facility or program as long as the system has obtained appropriate consent consistent with section 105(a)(4) of the Act. The system shall request of facilities that in requesting records from service providers or other facilities on residents that they indicate in the release form the records may be subject to review by a system. (2) Reports prepared by an agency charged with investigating abuse neglect, or injury occurring at a facility rendering care or treatment, or by or for the facility itself, that describe any or all of the following:
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Case 1:09-cv-02880-CAP Document 53 Filed 03/09/11 Page 26 of 35
(i) Abuse, neglect, or injury occurring at the facility; (ii) The steps taken to investigate the incidents; (iii) Reports and records, including personnel records, prepared or maintained by the facility, in connection with such reports of incidents; or (iv) Supporting information that was relied upon in creating a report, including all information and records used or reviewed in preparing reports of abuse, neglect or injury such as records which describe persons who were interviewed, physical and documentary evidence that was reviewed, and the related investigative findings. (3) Discharge planning records. (4) Reports prepared by individuals and entities performing certification or licensure reviews, or by professional accreditation organizations, as well as related assessments prepared for the facility by its staff, contractors or related entities, except that nothing in this section is intended to preempt State law protecting records produced by medical care evaluation or peer review committees. (5) Professional, performance, building or other safety standards, demographic and statistical information relating to the facility. (d) A P&A system shall have reasonable access and authority to interview and examine all relevant records of any facility service recipient (consistent with the provisions of section 105(a)(4) of the Act) or employee. (e) A P&A system shall be permitted to inspect and copy records, subject to a reasonable charge to offset duplicating costs.
42 C.F.R. § 51.41. As with access to patients and facilities, and
as noted above,
If a P&A system's access to . . . records covered by the Act or this part is delayed or denied, the P&A system shall be provided promptly with a written statement of reasons, including, in the case of a denial for alleged
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Case 1:09-cv-02880-CAP Document 53 Filed 03/09/11 Page 27 of 35
lack of authorization, the name, address and telephone number of the legal guardian, conservator, or other legal representative of an individual with mental illness. Access to facilities, records or residents shall not be delayed or denied without the prompt provision of written statements of the reasons for the denial. 42 C.F.R. § 51.43. The plaintiff’s statement of material facts contains five numbered paragraphs that fairly relate to what it perceives as problems receiving records. First, the plaintiff points to the affidavit testimony of Sarah Stanton in alleging, “[O]ver a 6 month period, investigator/Advocate Stanton sent 69 formal requests [for records], 18 of which were second requests, and that does not count follow up efforts through email” [Pl. SMF, Doc. No. 25-2, p. 20]. While the defendant does admit that Ms. Stanton has made formal requests for records, including some second requests [Def. Resp., Doc. No. 42, ¶ 20], he also points to record affidavit testimony that explains the potential source of some of the alleged delays in the plaintiff’s receipt of copies of records and notes that the plaintiff may always access patient records at the facility where the patient is housed [id. ]. Viewing the facts in the light most favorable to the defendant, the court cannot conclude that the Department’s provision of records was not “prompt” under 42 C.F.R. § 51.41(a) in these circumstances. Next, the plaintiff complains that one of the hospitals, CSH,
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Case 1:09-cv-02880-CAP Document 53 Filed 03/09/11 Page 28 of 35
requires that all releases must be submitted on the hospital’s form and insists on the signature of a witness [Pl. SMF, Doc. No. 25-2, ¶ 21]. A review of the record evidence cited for this proposition (and the plaintiff’s argument that this requirement is an unreasonable barrier to access to records because the plaintiff is virtually unable to effectively request records through the mail from CSH) shows that CSH requires a signature on its forms while the plaintiff is not required to provide a signature for records requests for other facilities [Doc. No. 33, ¶ 25]. The defendant denies that CSH requires that its own form be used but does not contradict the allegation that CSH requires a witness for all signatures [Doc. No. 42, ¶ 21; Doc. No. 42-1, p. 53].
Though the essential fact –- that a signature is required for all signatures –- is undisputed, the plaintiff is not entitled to judgment as a matter of law on this basis. The plaintiff lacks factual support for its apparent assertion that it has been denied access to the records in question under the PAIMI Act and its regulations.
The plaintiff’s next paragraph states “Once a release is signed, the hospital will determine whether the individual has capacity to authorize GAO to have the records even in the absence of a guardianship” [Pl. SMF, Doc. No. 25-2, ¶ 22]. The defendant objects, stating that the record evidence cited, [Doc. No. 33, ¶
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Case 1:09-cv-02880-CAP Document 53 Filed 03/09/11 Page 29 of 35
46], does not stand for this proposition [Def. Resp., Doc. No. 42, ¶ 22]. The court agrees, and the court will not consider this statement pursuant to Civil Local Rule 56.1B(1)(a).
Next, the plaintiff makes various allegations regarding access to so-called peer review records. The plaintiff complains that the peer review records are only a vailable at the facilities (as opposed to through the mail), that the records being provided are less than what is available, and that the Advocate Stanton has received mixed messages regarding whether any peer review records are available [Pl. SMF, Doc. No. 25-2, ¶ 24]. 4 Though the record evidence cited by the plaintiff is the affidavit testimony of Ms. Stanton, and it tends to substantiate these generalities, the defendant disputes the factuality of many Ms. Stanton’s statements or objects to the vagueness of the references found in the plaintiff’s statement [Def. Resp., Doc. No. 42, ¶ 24]. The record evidence cited by the defendant supports his position [see , e.g.
4 Paragraph 24 of the plaintiff’s statement of material facts is representative of many of the paragraphs in that document in that it combines many factual statements that are more accurately described as variations on a theme into a single “statement.” Though this practice violates Civil Local Rule 56.1B(1) (“A movant for summary judgment shall include with the motion . . . a separate, concise, numbered statement of the material facts to which the movant contends there is no genuine issue to be tried. Each material fact must be numbered separately . . . .”), the court has attempted to address the separate allegations contained within those paragraphs.
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Case 1:09-cv-02880-CAP Document 53 Filed 03/09/11 Page 30 of 35
Doc. No. 42-2, p. 12]. There are disputes of material fact creating genuine issues for trial with regard to the access to peer review records provided to the plaintiff.
Finally, the plaintiff sets out several allegations regarding the a delay in time between when the plaintiff requested guardianship information and when records were sent [Pl. SMF, Doc. No. 25-2, ¶ 25]. The record evidence is again Ms. Stanton’s affidavit testimony wherein she relays alleged time lines for two separate record requests. [Doc. No. 33, ¶¶ 48, 56].5 Regarding the request for S.W.’s guardianship information, a review of the record evidence cited, incl uding exhibits, shows that the requested information was sent the same day it was requested [Doc. No. 33-2, p. 62]. Regarding the request for the records of Z.R., the defendant offers contrary evidence [Doc. No. 42-3, p.3], and the court cannot say as a matter of law whether, based on the facts, the Department had a duty to provide the requested information or whether the provision of such was other than prompt. Summary judgment is therefore inappropriate.
The defendant, in support of his motion for summary judgment, devotes approximately one page of his brief [Doc. No. 20-1, pp. 1617] and no paragraphs of his statement of material facts to the
5 See note 2, supra, regarding issues of form. -30-

Case 1:09-cv-02880-CAP Document 53 Filed 03/09/11 Page 31 of 35
issue of access to records. The defendant’s only argument on the issue of the whether the Department has denied the plaintiff access to patient records can be articulated as follows: the plaintiff complains that it is denied access to full peer review records but admits that peer review records can be viewed by appointment at the facility where those records are kept; therefore the plaintiff should not be heard to complain about having to travel to each facility to view the records. The defendant’s argument on this issue, however, is insufficient to warrant summary judgment in his favor.
First, the defendant’s argument is l imited to the issue of peer review rec ords, a subset of the plaintiff’s broader claims regarding records generally. Additionally, and within that subset, the plaintiff points out specific alleged instances supported by record evidence indicating that its agents were denied access to peer review records [Doc. No. 46, p. 21]. Though this information should properly have been set out in a statement of additional material facts under Civil Local Rule 56.1B(2)(b), it is clear, even without such evidence, that there are disputed issues of material fact creating issues for trial on the whether the plaintiff’s access to records has been unduly abridged. Summary judgment is therefore inappropriate for the defendant on these grounds.
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Case 1:09-cv-02880-CAP Document 53 Filed 03/09/11 Page 32 of 35

iii. Mootness

Finally, the defendant claims that this action is moot. He

states, “Plaintiff originally sought a ‘temporary restraining order

to ensure that it is able to access the SWSH facility in a timely

manner to investigate an

incident of abuse and to moniter

conditions at the facility’ [. . . .] Now it seeks to ‘enjoin

Defendant and his successors from denying Plaintiff any and all

future access’” [Doc. No. 20-1, p. 18]. Despite apparently

recognizing that the plaintiff broadened its claims from the

original complaint to the amended complaint to encompass not only

the alleged denial of access to Southwestern State Hospi tal but

also alleged delays and denials of access to records and patients

on a larger scale, the defendant focuses only on the incident at

SWSH in October 2009 for the following proposition: “This entire

action is moot as the Department never denied Plaintiff access to

SWSH” [Doc. No. 20-1, p. 17].

The defendant’s arguments fail for various reasons. First, it

ignores the breadth of the scope of issues before the court in this

case as noted above regarding the plaintiff’s access - other than

access to SWSH - afforded under the P&A Acts versus that allowed by

the defendant and the Department. Next, there are genuine issues of

material fact regarding the level of access given to facilities,

individuals, and records and even what happened on October 13,

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Case 1:09-cv-02880-CAP Document 53 Filed 03/09/11 Page 33 of 35
2009, such that this court cannot state with any certainty whether the plaintiff was denied access under the P&A Acts and their implementing regulations at SWSH that day. Finally, if the plaintiff’s allegations bear out, this case fits into the category of exceptions to the doctrine of mootness for actions that are “capable of repetition, yet evading review.” See Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 514 (U.S. 1911). “[T]he exception can be invoked only when (1) there is a reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party, and (2) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration.” Soliman v. U.S. ex rel. INS, 296 F. 3d 1237, 1243 (11th Cir. 2002)(italics in original)(internal citation omitted).
In the current case, with regard to the first prong of the above test, there is a reasonable expectation that the Department will continue to operate in the same manner as it did leading up to this suit in its dealings with the plaintiff. The defendant’s positions that his department “did not violate any federal law” and that “the Plaintiff has always had access to the Department’s mental health hospitals” serves to underscore this point [Doc. No. 20-1, pp. 6-7]. And if the department’s practices in dealing with the plaintiff are ultimately found to be violative of federal law,
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Case 1:09-cv-02880-CAP Document 53 Filed 03/09/11 Page 34 of 35
they are by their very nature too short in duration to be fully litigated prior to the occurrence of the harm that Congress was seeking to prevent in enacting the P&A Acts. That is, if the plaintiff’s access is denied or delayed unduly, the harm occurs in the denial or delay. Whether any foul play in the form of coverups, inappropriate coaching of patients before interviews, or the like is actually happening during these delays is immaterial. Denial and delay in and of themselves inhibit the investigations that the plaintiff and other P&A systems are charged to undertake in addition to breeding mistrust between entities (the plaintiff and the Department) that should and must work together to achieve a common goal: to raise the level of care for those protected by the P&A Acts. Therefore, summary judgment for the defendant is inappropriate on mootness grounds. V. Conclusion
The plaintiff has filed this suit in apparent frustration over the defendant’s policies and practices. Far from focusing on a single event or circumstance, the plaintiff has cited numerous examples of what it contends are roadblocks set up by the Department either with the intention or the effect of slowing or denying the plaintiff’s ability to do what the P&A Acts mandate: protect the interests of patients. The defendant largely argues that many of the delays or denials of which the plaintiff complains
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Case 1:09-cv-02880-CAP Document 53 Filed 03/09/11 Page 35 of 35
can be explained or excused by the surrounding circumstances. It is clear that the relevant inquiries in this case are based on facts upon which the parties disagree.
The court is also mindful that the PAIMI Act’s regulations are explicit regarding how parties affected by the PAIMI Act, such as the parties here, should conduct themselves in the face of a dispute. 42 C.F.R. § 51.32(b) provides, “Disputes should be resolved whenever possible through nonadversarial process involving negotiation, mediation, and conciliation.” The court doubts that it would have been –- or is now –- impossible to resolve the disputes at issue in this case nonadersarially.
The defendant’s motion for summary judgment [Doc. No. 20] and the plaintiff’s motion for summary judgment [Doc. No. 25] are each DENIED. The court will set a schedule for the parties to submit their joint proposed pretrial order at a later date.
SO ORDERED, this 9th day of March, 2011.
/s/ Charles A. Pannell, Jr. CHARLES A. PANNELL JR. United States District Judge
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 Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 1 of 20

IN TT{E UNITED STATES DISTRICT COURT NORTI{ERN DISTRICT OF GEORGIA ATLANTA DIVISION

GEORGIA ADVOCACY OFFICE, INC.,*

r*

Plaintiff,

{, {c

V.

*

*

FRANK SFIELP, M.D., in his

*

Official capacity as

{<

Commissioner of the DEPARTMENT *

OF BEFIAVIORAL ITEALTH AND *

DEVELOPMENTAL DISABILITIES, *

*

Defendant.

*

CryIL ACTION
1:09-CY-2880-CAP

STIPULATED AGREEMENT

These stipulations ("Stipulated Agreement") are made and entered into by

and between the Georgia Department of Behavioral Health and Developmental

Disabilities (the "Department"), and the Georgia Advocacy Office, Inc. ("GAO")

as follows:

1. GAO is the designated protection and advocacy system for the State of

Georgia pursuant to the Protection and Advocacy for Individuals with Mental Illness Act,42 U.S.C. $$ 10801 et seq. ("PAIMI"), the Developmental Disabilities
Assistance and Bill of Rights Act of 2000, 42u.5.c. $$ 1s041 et seq. ("DD Act"),
and the Protection and Advocacy for Individual Rights Program of the

Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 2 of 20
Rehabilitation Act,29 U.S.C. $$ 79ae (PAIR, collectively, withthe regulations issued under PAIMI, DD Act and PAIR, the "P&A Acts"). The term GAO refers to GAO, its employees and its agents authorized under the P&A Acts.
2. GAO has filed a civil action against the Department in the United States
District Court for the Northern District of Georgia, Civil Action File No. l:09-CV-
2880-CAP, Georgia Advocacy Office, Inc. v. Frank Shelp, M.D., in his fficial
capacity as Commissioner of the Department of Behaviorøl Health and Developmental Disabìtities regarding GAO's authority under the P&A Acts and regulations to have access to individuals, facilities, and records.
3. It is the desire of the parties hereto to avoid the time and expense
associated with litigation of all issues except peer review.
4. The parties desire to enter into an agreement that facilitates and expedites
GAO's access to individuals, facilities, and records in a manner consistent with the P&A Acts and their implementing regulations.
5. The parties agreed to mediate this matter and this Court ordered said mediation, which occurred on June 22,23, and29,20lI, and July 14,2011 and
August 4,2011.
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Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 3 of 20
6. The parties have made diligent efforts and have reached agreement as to
all of GAO's claims except with respect to access to peer review records under the P&A Acts and regulations.
7. The parties request a scheduling order on the only remaining issue of
access to peer review records under the P&A Acts and regulations.
ACCESS TO FACILITIES AND INDIVIDUALS 8. For purposes of this Agreement, Facility shall mean any setting operated by the Department that provides care or treatment services.
9. GAO shall have reasonable unaccompanied access to the Department's
Facilities, and the individuals served by those Facilities during reasonable times,
which shall include at a minimum, the normal working hours (operational hours) of the Facility. GAO shall have reasonable unaccompanied access to all areas of a
Facility where services, supports, and other assistance are provided to individuals who are admitted or served by the Department.
(a) This access is for the purposes of providing information and
training on, and referral to programs addressing the needs of individuals receiving services, and information and training about individual rights and the protection and advocacy services available from GAO, including GAO's
Ja

Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 4 of 20
name, address, and telephone number; monitoring compliance with respect to the rights and safety of individuals receiving services; and inspecting, viewing and photographing all areas of the Facility used by, or accessible, to individuals receiving services. 10. GAO shall have reasonable unaccompanied access to Facilities and
individuals at all times necessary to conduct a fulI investigation of any incident of
suspected abuse or neglect. GAO shall be afforded such access to Facilities when GAO informs an employee of the Facility that it has received a complaint or has probable cause to believe abuse or neglect has or may have occurred.
(a) GAO shall not be required to reveal the source of the complaint or certifu, attest or otherwise speciff the factual bases upon which a
determination of probable cause is made.
(b) This authority includes the opportunity: to interview any Facility
service recipient, employee or other individual, including the individual thought to be the victim of such abuse, who might be reasonably believed by the system to have knowledge of the incident under investigation; to inspect, view and photograph all areas of the Facility's premises that might be reasonably believed by GAO to have been connected with the incident under investigation.
4

Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 5 of 20
1 1. GAO shall not be required to alert Facility Administration of its presence at any Facility upon arrival or otherwise inform the Department of its presence at a Facility, except GAO shall notiff staff, if available, upon arrival at
the unit or building, and if asked, GAO will disclose the purpose of the visit.
12. AII authorized GAO employees and agents shall have a GAO-issued picture identification card on their person and wear a GAO-issued identification nametag while at any of the Department's Facilities.
13. GAO has the right to reasonable unaccompanied access to all individuals receiving services, which includes the opportunity to meet and communicate privately with individuals receiving services regularly, formally and informally, by telephone, mail and in person. Reasonable times shall include, at a minimum, the normal working hours (operational hours) of the Facility.
14. GAO shall conduct its activities so as to minimize interference with the Facility programs, respect the privacy rights of individuals and honor an individual's request to terminate an interview in accordance with 42 C.F.R.
5t.a2@).

Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 6 of 20
ACCESS TO INFORMATION AND RECORDS 15. GAO has a right to access all of the records of individuals who are admitted or served by the Department pursuant to the P&A Acts and regulations. The Department is not required to create any records in order to respond to a GAO request. This provision does not require the Department to obtain records from other providers providing care or treatment or community service boards. Information and individual records, whether written or in another medium, draft or final, including handwritten notes, electronic files, photographs or video or audio
tape records, which shall be available to GAO under this agreement if in the
Department's possession or control, shall include, but not be limited to: (a) individual records obtained or prepared in the course of providing
intake, assessment, evaluation, education, training and other supportive services, including clinical records, financial records, and monitoring and other reports prepared or received by a member of the staff of the Facility that is providing care or treatment;
(b) reports prepared by an agency charged with investigating incidents of abuse or neglect, injury or death occurring at the Facility, or while the individual is under the care of a member of the Department staff, or by or for the Facility itself, that describes any or all of the following:
6

Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 7 of 20
(i) abuse, neglect, injury, death; (ii) the steps taken to investigate the incidents; (iii) reports and records, including personnel records, prepared
or maintained by the Facility in connection with such reports of
incidents; or,
(iv) supporting information that was relied upon in creating a report, including all information and records used or reviewed in preparing reports of abuse, neglect, injrrry or death such as records which describe individuals who were interviewed, physical and
documentary evidence that was reviewed, and the related investigative findings; (c) discharge planning records; (d) reports prepared by individuals and entities performing certification or licensure reviews, or by professional accreditation organizations, as well as related assessments prepared for the Facility by its staff, contractors or related entities; and, (e) professional, performance, building or other safety standards, demographic and statistical information relating to the Facility. 16. GAO shall be afforded access to records promptly (1) upon the
7

Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 8 of 20
presentation of an authorization of an individual or the individual's legal guardian, or (2) upon GAO's assertion of probable cause to suspect abuse or neglect where the individual is unable to authorize access to their records, the State (Adult Protective Services ("APS") or Division of Family and Children Services ("DFCS")) is the guardian, or the individual has a legal guardian and the legal guardian has failed to act after a good faith effort to contact the guardian by GAO to inform them of possible abuse or neglect of the individual.
(a) If GAO is present at the Facility when the request is made, the records shall be produced for inspection and review promptly, if readily
available and such review does not interfere with the Facility's current use of the same records; provided, however, if the records are readily available at a different part of the Facility, GAO may access them there.
(b) Facility staff may be present during the inspection and review of
records, provided however that the lack of Facility staffing shall not be used as a reason to deny prompt access to records to GAO requesting access to them while present at the Facility.
(c) After GAO has made a written request for records for the
purposes of investigation or pursuant to an atthorization by an individual (or their legal guardian), the Department shall either copy and produce the
8

Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 9 of 20
records or make them available for inspection and copying by GAO. If the Department chooses to make the records available for inspection and copying by GAO, it shall inform GAO promptly. If the Department instead chooses to copy and produce them, it shall do so within three (3) business
days.
(d) Where the Department is unable to meet the due date of a record copy request, it shall contact GAO prior to the time for compliance and
request an extension of time for a specific period of time, which extension shall not be unreasonably withheld. 17. GAO shall be afforded immediate access to records, but not later than twenty-fow (24) hours, after GAO has made a written request, in any case of death
of an individual who is admitted or served by the Department, or if GAO
determines there is probable cause to believe that the health or safety of an individual is in serious and immediate jeopardy. Where the Department is unable
to meet the due date of a record request, it shall immediately contact GAO to
request an extension of time, which extension shall not be unreasonably withheld.
18. All requests for copies of records, except for minimal requests made by GAO in person at the Facility, shall be in writing and addressed to the director of medical records at each Facility. GAO's access to records shall include inspecting
9

Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 10 of 20
and obtaining copies of information and records. Copies of records shall be subject to the current rate specified in the Open Records Act, O.C.G.A. $ 50-18-70 et seq. Payment in advance shall not be required but payment shall be made promptly. A written request includes an email, a legible hand-written request, a facsimile or letter. The time deadlines in paragraphs 16(c) and 17 shall apply to the mailing of the records.
19. The Department staff may speak with GAO and provide information where the individual or the individual's legal guardian has executed an avthorization, or upon GAO's assertion of probable cause to suspect abuse or neglect where the individual is unable to authorize access to their records, the State (APS or DFCS) is the legal guardian, or the individual has a legal guardian and the legal guardian has failed to act after a good faith effort to contact the legal guardian by GAO to inform them of possible abuse or neglect of the individual. The Department's staffare not required to speak with GAO by this provision.
20. GAO shall maintain the confidentiality of any information and records
as required under federal or state law.
AUTHORIZATIONS
10

Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 11 of 20
21. The Department shall honor any valid authorization for release of
records executed by an individual receiving services from the Department or the individual's legal guardian. \Mith respect to authorizations from the individual or the individual's legal guardian seeking GAO's attendance at treatment team meetings, service planning meetings and discharge planning meetings at Facilities, the Department shall grarÍ" all reasonable requests that are consistent with the individual's best interests; provided, however, GAO shall only make such request consistent with the individual's wishes.
ENFORCEMENT OF ACCESS
22. If the Department denies or limits GAO access to any Facility or
individual for any reason, including GAO record reviews at a Facility, GAO attendance at meetings or the validity of an authorization,the responsible
Department employee and GAO shall attempt to resolve the issue. In the event it cannot be resolved, the responsible Department employee shall immediately notiff
the Facility administrator (or her or his designee) who shall attempt to address the access issue with GAO. If the matter cannot be resolved immediately, the Facility
administrator will contact the Department's Chief of Staff (or her or his designee)
and GAO shall contact the GAO Executive Director (or her or his designee). The
11

Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 12 of 20
two executives shall confer telephonically immediately to attempt to resolve the matter in dispute.
23. Inthe event the Department denies or limits GAO's written request for
access to records, the Department shall provide promptly to GAO, but not later than twenty-four (24) hours after a denial of access, a written statement of the
reasons for the denial of access. GAO will attempt to resolve the Department's objection. If no resolution is reached prior thereto, the Chief of Staff to the
Commissioner of the Department and the Executive Director of GAO agree to meet or confer telephonically as soon as practicable.
24. Inthe event the process in Paragraph 22 or Paragraph 23 does not
resolve the issue and the Department denies GAO access to records, Facilities and individuals admitted or served by the Department, the Department shall provide promptly to GAO after a denial of access, a written statement of the reasons for the denial ofaccess.
25. Prior to filing pleadings with this Court, both parties agree to follow Paragraphs 22through24 of this Agreement and make reasonable and diligent
efforts to resolve disputes.
26. The court shall retain jurisdiction for the purposes of enforcing this Stipulated Agreement until August 31,2014.
t2

Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 13 of 20
TRAINING 27. As soon as practicable after the Effective Date of this Agreement, the Chief of Staff to the Commissioner of the Department and the Executive Director of GAO agree to coordinate the content and process of the training under this Agreement to the Department and GAO. To that end, the Chief of Staff to the
Commissioner of the Department (or his or her designee) and the Executive Director of GAO (or his or her designee) agree to conduct joint trainings on the Agreement to both the Department and GAO.
28. Within six months of the Effective Date of this Agreement, the Department shall communicate with its Facilities' officials, employees, agents and
independent contractors involved in providing care to the individuals in its Facilities, the provisions in this Agreement that are applicable to their respective job duties.
29. \Mithin six months of the Effective Date of this Agreement, GAO shall communicate with its officials, employees and agents, the provisions in this Agreement that are applicable to their respective job duties.
13

Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 14 of 20
COOPERATION AND CIVILITY 30. The parties agree to conduct themselves in a cooperative and civil manner in carrying forth the terms of this Agreement.
SCOPE OF AGREEMENT 31. The Effective Date of this Stipulated Agreement shall be the date on which this agreement is jointly filed in Civil Action File No. 1 :09-CV-2880-CAP,
Georgia Advocacy Office, Inc. v. Frank Shelp, M.D., in his fficial capacity as
Commissioner of the Department of Behavíoral Health and Developmental Disabilities.
32. GAO and the Department agree that this Stipulated Agreement resolves all claims except as to the claim of access to peer review records, set forth in the Complaint filed in Georgia Advocacy Office, Inc. v. Frank Shelp, M.D., in his
fficiøl capacity as Commissioner of the Department,United States District Court
for the Northern District of Georgia, Civil Action File No. 1:09-CV-2880-CAP. 33. This resolution of claims releases the Department from any and all
claims under the P&A Acts and regulations, except as to the claim of access to peer review records under the P&A Acts and regulations, which GAO could have or should have raised in the above-referenced litigation between the parties. The
t4

Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 15 of 20
Stipulated Agreement does not apply to legal claims or actions GAO may bring against the Department specifically on behalf of and in the name of third parties.
34. This Stipulated Agreement is enforceable only by the parties and is binding upon the parties, by and through their offrcials, agents, employees, assigns and successors. No individual or entity is intended to be a third party beneficiary of the provisions of this Stipulated Agreement for purposes of any civil, criminal or administrative action, and accordingly, no individual or entity may assert any claim or right as a beneficiary or protected class under this Stipulated Agreement in any civil, criminal or administrative action.
35. Nothing in this Stipulated Agreement shall be construed as an acknowledgment, an admission or evidence of liability of the Department under the Constitution of the United States, federal or state law, and this Stipulated Agreement may not be used as evidence of liability in any other civil or criminal
proceeding.
36. Eachparty shall bear the cost of its fees and expenses incurred in connection with this case, including attorneys' fees; provided, however, this stipulation does not waive GAO's right to seek fees and costs that arise from the litigation of the claim of access to peer review records under the P&A Acts and
t5

Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 16 of 20
regulations or from the enforcement of this agreement, nor shall the Department be prohibited from opposing such request.
37. Notice under this Agreement shall occur by sending written documentation by overnight courier to the following:
Commissioner Georgia Department of Behavioral Health and Developmental Disabilities 2 P eachtree Street, N.W. Atlanta, Georgia 30303 Chief Executive Officer Georgia Advocacy Office 150 East Ponce De Leon Avenue Suite 430 Decatur, Georgia 30030
PEER REVIEW 38. The parties are unable to resolve the GAO's claim of access to peer review records under the P& A Acts and regulations. 39. For purposes of this Agreement, the Department's definition of peer review includes but is not limited to those processes described and authorizedin O.C.G.A. $$ 31-7-15,31-7-I31, and 3l-7-140, which produce conf,rdential information that includes but is not limited to the proceedings, records, actions, activities, evidence, findings, recommendations, evaluations, opinions, data or other information created by the peer review or shared between individual
t6

Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 17 of 20
clinicians and/or groups which are performing peer review. See O.C.G.A. $ 3l-7133. The aforementioned definition encompasses mortality review records.
40. Nothing in this agreement shall be construed as an acknowledgement or admission regarding GAO's right to access peer review records under the P&A Acts and regulations. All peer review records are excluded from this Agreement.
41. The parties additionally stipulate to the facts set forth in Exhibit A. 42. The parties request that this Court enter a scheduling order whereby
GAO shall have thirty (30) days after entry of this Agreement to brief the issue of
access to peer review records under the P&A Acts and regulations. The Department shall have thirty (30) days after the filing of GAO's brief to respond. GAO shall have fourteen (14) days to file a reply to the Department's brief.
Thereafter, the Department requests the Court schedule a hearing on the issue of
access to peer review records under the P&A Acts and regulations. GAO does not
oppose the request.
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Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 18 of 20

Respectfully submitted on this 29th day of September,20tl.

SAMUEL S. OLENS
Attorney General

551540

DENNIS R. DUNN
Deputy Attorney General

234098

/s/Shalen S. Nelson
SFIALEN S. NELSON

636575

Senior Assistant Attorney General

/s/Jason S. Naunas
JASON NATINAS
Assistant Attorney General Counsel for Defendant

T42O5I

/s/Calandra A. Harps CALANDRA HARPS
Assistant Attorney General 013605
Counsel for Defendant 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 (404) 6s6-33s7 (404) 463-1062 fax jnaunas@law.ga.gov
/s/ Joshua H. Norris (w/ express permission) Joshua H. Norris Georgia Bar No. 545854 Attorney for Plaintiff Georgia Advocacy Office, Inc. 150 E. Ponce de Leon Avenue Suite 430
Decatur, Georgia 30030 Phone: (404)885-1234
Fax: (404) 378-0031
E-mail : jnorris@thegao.org

18

Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 19 of 20

CERTIFICATION OF COMPLIANCE WITH RULE AND ORDER I hereby certiff that the forgoing Stipulated Agreement was prepared in 14-
point Times New Roman font in compliance with Local Rule 5.1(C).

State Law Department
40 Capitol Square, S.W.
Atlanta, Georgia 30334-1300
PH: (404) 6s6-33s7 FAX: (404) 463-1062
E-mail : j naunas@law. ga. gov

/s/ Jason S. Naunas JASON S. NAI-INAS Assistant Attorney General
Georgia Bar No. 142051

19

Case 1:09-cv-02880-CAP Document 63 Filed 09/29/11 Page 20 of 20
CERTIFICATE OF SERVICE I do hereby certifu that I have this day served the within and foregoing STIPULATED AGREEMENT with the Clerk of the Court using the CMÆCF system which will automatically send email notification of such filing to the following attorney of record:
Joshua H. Norris, Esq. Georgia Advocacy Office 150 E. Ponce De Leon Ave. Suite 430 Decatur, Georgia 30030 This 29th day of Septembe\2011.
/s/ Jason S. Naunas
JASON S. NAIINAS Assistant Attorney General Georgia Bar No. 142051
jnaunas@law.ga.gov
20

Case 1:09-cv-02880-CAP Document 63-1 Filed 09/29/11 Page 1 of 2
Exhibit A - Stipulated Facts
1. The Department's protocol is to allow GAo to physically inspect peer/mortality review records at the hospital where the records are located. However, GAO is not permitted to make copies of the peer/mortality review records in question.
2. GAO makes requests for access to peer/mortality review records related
to deaths and injuries that are connected to care and treatment at the Department's
state hospitals. The following is an example of GAo's requests and the
Department' s response.
Facts Related To L.P.
3 . On November 2, 2010, GAO made a written request pursuant to the P&A
Acts to the Department for records, including peer/mortality review records, related to L.P.'s death at East Central Regional Hospital ("ECRI{") based upon information that L.P. was a person with a developmental disability who had died.
4. On November 5,2010, the Department mailed the requested records
except for the peer/mortality review records, which were available at ECRH for GAO to review at their convenience.
5. On November 23,2010, GAO inspected, but was not permitted to copy, the peer/mortalþ review records related to L.P.

Case 1:09-cv-02880-CAP Document 63-1 Filed 09/29/11 Page 2 of 2
Facts Related To C.C.
6. GAO determined it had probable cause to believe that C.C., an individual
with mental illness , ffiãy have been subject to neglect prior to her death at Central State Hospital based upon information GAO had received.
7. On May 27,2009, GAO made a written request asserting probable cause pursuant to the P&A Acts and regulations to the Department for records related to
C.C.'s death.
8. On May 29,2009, GAO made a supplemental request for peer/mortality
review records related to C.C.'s death.
9. On Jvne 2,2009, the Department sent the requested records except for the
peer/mortality review records. 10. On June 17, 2009, GAO inspected, but was not permitted to copy, the
peer/mortality review records related to C.C.
2

 
 Case 1:09-cv-02880-CAP Document 81 Filed 05/09/12 Page 1 of 22

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

GEORGIA ADVOCACY OFFICE, INC.,
Plaintiff,
v.
FRANK SHELP, M.D., in his official capacity as Commissioner, Georgia Department of Behavioral Health and Developmental Disabilities,
Defendant.

CIVIL ACTION NO. 1:09-CV-2880-CAP

O R D E R

This matter is before the court on the plaintiff’s motion for

permanent injunction pursuant to Federal Rule of Civil Procedure 65

[Doc. No. 65].

I. Procedural posture

The order on the parties’ cross motions for summary judgment

sets out the factual background of this case in detail; it does not

need to be reiterated here except as follows: the cross motions for

summary judgment were deined, and, following private mediation, the

parties settled almost all of the plaintiff’s claims and entered a

stipulated agreement [Doc. No. 63]. The sole legal issue left for

the court to decide is whether the plaintiff is entitled to inspect

and copy peer review records pursuant to the P&A Acts1 and their

1 The Protection and Advocacy Acts: the Protection and Advocacy Act for Individuals with Mental Illness Act of 1986, 42

Case 1:09-cv-02880-CAP Document 81 Filed 05/09/12 Page 2 of 22
regulations. The parties have stipulated to all facts material to the
disposition of this issue. See [Doc. No. 63-1]. Although the defendant currently allows the plaintiff to physically inspect peer-review records, the defendant does not allow copying of any peer-review records. Moreover, the defendant has now taken the position that it should be able to restrict the plaintiff’s access to all peer-review records.
The court held a hearing on February 28, 2012, in which Ruby Moore, the plaintiff’s Executive Director, and the defendant testified. The plaintiff’s motion is now ripe for adjudication. II. Legal Standard
A plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. Monsanto Co. v. Geertson Seed Farms, --- U.S. ---, 130 S. Ct. 2743, 2756 (2010).
U.S.C. § 10801 et seq., the Developmental Disabilities Assistance and Bill of Rights Act of 2000, 42 U.S.C. § 15001 et seq., and the Protection and Advocacy of Individual Rights Program of the Rehabilitation Act of 1973, 29 U.S.C. § 794e.
2

Case 1:09-cv-02880-CAP Document 81 Filed 05/09/12 Page 3 of 22
III. Analysis The plaintiff argues it is entitled to access -- and
specifically to inspect and copy –- peer review records under the plain language of the several congressional acts, referred to herein as the P&A Acts. In support, the plaintiff first cites the access provision of the Protection and Advocacy Act for Individuals with Mental Illness Act of 1986 (“PAIMI Act”), 42 U.S.C. § 10801 et seq. Under that access provision, P&A systems are entitled to “access of all records” of individuals in several categories. 42 U.S.C. § 10805(a)(4). In the PAIMI Act, the term “records”
includes reports prepared by any staff of a facility rendering care and treatment or reports prepared by an agency charged with investigating reports of incidents of abuse, neglect, and injury occurring at such facility that describe incidents of abuse, neglect, and injury occurring at such facility and the steps taken to investigate such incidents, and discharge planning records. 42 U.S.C. § 10806(b)(3)(A). The plaintiff next cites the access provision of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (“DD Act”), 42 U.S.C. § 15001 et seq. That provision also entitles P&A systems to “access to all records of” individuals in several categories. 42 U.S.C. § 15043(a)(2)(I). The definition of “record” under the DD Act includes (1) a report prepared or received by any staff at any location at which services, supports, or other assistance
3

Case 1:09-cv-02880-CAP Document 81 Filed 05/09/12 Page 4 of 22
is provided to individuals with developmental disabilities; (2) a report prepared by an agency or staff person charged with investigating reports of incidents of abuse or neglect, injury, or death occurring at such location, that describes such incidents and the steps taken to investigate such incidents; and (3) a discharge planning record. 15 U.S.C. § 15043(c). Third, the plaintiff cites the access provision of the Protection and Advocacy of Individual Rights Program of the Rehabilitation Act of 1973 (“PAIR Act”), 29 U.S.C. § 794e. That provision requires the P&A system to “have the same general authorities, including access to records . . . as are set forth in subtitle C of the [DD Act].” 29 U.S.C. § 194e(f)(2). Because all of the P&A Acts, by their explicit terms, allow P&A systems such as the plaintiff here broad access to records, including the right to inspect and copy those records,2 the sole question for the court is whether peer review records fall within the definition of the term “records” as set out in the P&A Acts. In support of his argument that peer review records are not records under the P&A Acts, the defendant cites a regulation promulgated by the United States Department of Health and Human Services in 1997 pursuant to a 1991 reauthorization of the PAIMI Act. See 42 U.S.C. § 10826(b) (“[T]he Secretary shall promulgate final regulations to carry out [PAIMI].”). That regulation states, in a non-exclusive
2 See infra, pp. 7-8. 4

Case 1:09-cv-02880-CAP Document 81 Filed 05/09/12 Page 5 of 22
list of records P&A systems are entitled to access, “[N]othing in this section is intended to preempt State law protecting records produced by medical care evaluation or peer review committees.” 42 C.F.R. § 51.41(c)(4).
Based on this language and legislative history that facially supports it, as well as Georgia statutes requiring peer review records to be “held in confidence,” O.C.G.A. § 31-7-133, and disallowing their discovery or introduction into evidence in suits against health services providers, O.C.G.A. § 31-7-143, the defendant argues that peer review “records” were meant to be exempted from the definition of the term records under the P&A Acts. Moreover, he argues 42 C.F.R. § 51.41(c)(4) is entitled to deference from this court under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
Pretermitting whether there is any conflict in Georgia law and the access provisions of the P&A Acts,3 the court declines to defer to the interpretation of the Department of Health and Human Services regarding peer review records, as expressed in 42 C.F.R.
3 It is not at all clear that the mandates of the P&A Acts conflict with Georgia law. The court does not decide whether such a conflict exists because the plaintiff here is entitled to access peer review records regardless of state law under the plain language of the P&A Acts and the relevant access provisions. The analysis offered in this order is to demonstrate that, even if a conflict exists, the P&A Acts preempt state law.
5

Case 1:09-cv-02880-CAP Document 81 Filed 05/09/12 Page 6 of 22
§ 51.41(c)(4). The court is persuaded by the analysis of this issue
by the Third Circuit Court of Appeals in Pennsylvania Protection &
Advocacy, Inc. v. Houstoun, 228 F.3d 423 (3d Cir. 2000). It
explained its rejection of the regulation cited by the defendant as
follows:
The interpretation of PAMII4 set out in 42 C.F.R. § 51.41(c)(4) does not represent a reasonable interpretation of the statute, and we must therefore reject it. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). As noted, PAMII requires that groups such as [the plaintff] be given access to a defined category of records. Peer review reports either fall within that definition or they do not. The statutory language cannot reasonably be construed to encompass identical peer review reports in some states but not others. If Congress wished to achieve that result, it needed to enact different statutory language. It could not achieve that result, in the face of the statutory language it enacted, simply by inserting a passage in a committee report. Nor could that result be achieved by means of a regulation.
Id. at 427-28. The Houston court held that PAIMI “requires that an
organization such [as the plaintiff] be given access to peer review
reports such as those at issue here irrespective of state law.” Id.
Since then, the Second, Eighth, Tenth, and Seventh circuits have
agreed with the Houston court’s analysis and its conclusion that
P&A systems are entitled to access peer review records. See
4 PAMII, which is cited by Houston, is the same act as the PAIMI Act. It was reworded to refer to “individuals with mental illness” instead of “mentally ill individuals” and was renamed accordingly.
6

Case 1:09-cv-02880-CAP Document 81 Filed 05/09/12 Page 7 of 22
Protection & Advocacy for Persons with Disabilities v. Mental Health & Addiction & Advocacy Services, 448 F.3d 119 (2d Cir. 2006); Missouri Protection & Advocacy Services v. Missouri Department of Mental Health, 447 F.3d 1021 (8th Cir. 2006); Center for Legal Advocacy v. Hammons, 323 F.3d 1262 (10th Cir. 2003); Indiana Protection and Advocacy Services v. Indiana Family and Social Services Administration, 603 F.3d 365 (7th Cir. 2010) (cert. denied, 131 S. Ct. 2149). This court agrees. There is simply no textual basis for finding an implied exception to the requirements that all records be available to the plaintiff in this case.
The court is sensitive to the concerns Dr. Shelp expressed during the February 28, 2012, hearing. There, he reiterated that the goals of the peer review process, such as candid evaluation of one’s own actions and those of peers after an unfavorable medical outcome as well as the policy changes that result therefrom, are intrinsically dependent on keeping the peer review process shielded from outsiders. While these goals undoubtedly aim to serve the higher purpose of improving patient care, so do the P&A Acts. The balance the P&A Acts strike between secrecy and oversight dictates that the plaintiff in this case be given the same access to peer review records as it is any other records. Policy arguments to the contrary are better made to Congress.
Moreover, the plaintiff is entitled to inspect and copy the 7

Case 1:09-cv-02880-CAP Document 81 Filed 05/09/12 Page 8 of 22
peer review records. Under 42 C.F.R. § 51.41(e), a PAIMI Act regulation, “A P&A system shall be permitted to inspect and copy records, subject to a reasonable charge to offset duplicating costs.”5 The DD Act regulations contain an almost identical provision, 45 C.F.R. § 1386.22(d), and the PAIR Act allows the same access to records as provided for in the DD Act, 29 U.S.C. § 194e(f)(2). The defendants do not cite any contrary authority.
The court holds that peer review records are subject to inspection and copying by the plaintiff in the same manner and subject to the same limitations as any other records. Addressing the elements of the test for a permanent injunction, the court concludes an injunction is appropriate. First, the defendant’s failure to allow the required access constitutes an irreparable injury. The information contained in the disputed peer review records is not available in other records. Second, the plaintiff has no remedies available at law; no amount of damages could provide the plaintiff with the information it needs. Third, Congress has determined the hardship to the plaintiff outweighs that the defendant would experience in sharing the peer review records. Finally, the public interest is undoubtedly served when a
5 Note that this is a different provision of the same regulation that the courts of appeal have largely rejected as inconsistent with the statutory language. There is no indication that the inspect and copy provision is not good law, however.
8

Case 1:09-cv-02880-CAP Document 81 Filed 05/09/12 Page 9 of 22
Congressional mandate is followed. Accordingly, the plaintiff’s motion for permanent injunction [Doc. No. 65] is GRANTED.
The parties are hereby ORDERED as follows:6 PERMANENT INJUNCTION
ACCESS TO FACILITIES AND INDIVIDUALS 1. Facility shall mean any setting operated by the Department that provides care or treatment services. 2. GAO shall have reasonable unaccompanied access to the Department's Facilities and the individuals served by those Facilities during reasonable times, which shall include at a minimum, the normal working hours (operational hours) of the Facility. GAO shall have reasonable unaccompanied access to all areas of a Facility where services, supports, and other assistance are provided to individuals who are admitted or served by the Department.
(a) This access is for the purposes of providing information
6 With the exception of the Peer Review section, the language of this injunction order is taken from the parties’ stipulated agreement [Doc. No. 63], which they agree should be confirmed as the permanent injunction of the court. Rule 65 mandates that injunctions must not refer to other documents in describing the acts enjoined. Rule 65(d)(1)(C). Accordingly, the court copies the relevant portions of the agreement, making minor changes such as paragraph numbering and confirming language of agreement into mandatory language. Additionally, the court adopts the plaintiff’s proposed language in the Peer Review section with similar changes and decreased time deadlines in Paragraphs 21-22.
9

Case 1:09-cv-02880-CAP Document 81 Filed 05/09/12 Page 10 of 22
and training on, and referral to programs addressing the needs of individuals receiving services, and information and training about individual rights and the protection and advocacy services available from GAO, including GAO's name, address, and telephone number; monitoring compliance with respect to the rights and safety of individuals receiving services; and inspecting, viewing, and photographing all areas of the Facility used by, or accessible to, individuals receiving services. 3. GAO shall have reasonable unaccompanied access to Facilities and individuals at all times necessary to conduct a full investigation of any incident of suspected abuse or neglect. GAO shall be afforded such access to Facilities when GAO informs an employee of the Facility that it has received a complaint or has probable cause to believe abuse or neglect has or may have occurred. (a) GAO shall not be required to reveal the source of the complaint or certify, attest, or otherwise specify the factual bases upon which a determination of probable cause has been made. (b) This authority includes the opportunity: to interview any Facility service recipient, employee, or other individual, including the individual thought to be the victim of such abuse, who might be reasonably believed by the system to have
10

Case 1:09-cv-02880-CAP Document 81 Filed 05/09/12 Page 11 of 22
knowledge of the incident under investigation; to inspect, view, and photograph all areas of the Facility's premises that might be reasonably believed by GAO to have been connected with the incident under investigation. 4. GAO shall not be required to alert Facility Administration of its presence at any Facility upon arrival or otherwise inform the Department of its presence at a Facility, except GAO shall notify staff, if available, upon arrival at the unit or building, and if asked, GAO will disclose the purpose of the visit. 5. All authorized GAO employees and agents shall have a GAO-issued picture identification card on their person and wear a GAO-issued identification name tag while at any of the Department's Facilities. 6. GAO has the right to reasonable unaccompanied access to all individuals receiving services, which includes the opportunity to meet and communicate privately with individuals receiving services regularly, formally and informally, by telephone, mail, and in person. Reasonable times shall include, at a minimum, the normal working hours (operational hours) of the Facility. 7. GAO shall conduct its activities so as to minimize interference with the Facility programs, respect the privacy rights of individuals, and honor an individual's request to terminate an interview in accordance with 42 C.F.R. 51.42(c).
11

Case 1:09-cv-02880-CAP Document 81 Filed 05/09/12 Page 12 of 22
ACCESS TO INFORMATION AND RECORDS 8. GAO has a right to access all of the records of individuals who are admitted or served by the Department pursuant to the P&A Acts and regulations. The Department is not required to create any records in order to respond to a GAO request. This provision does not require the Department to obtain records from other providers providing care or treatment or community service boards. Information and individual records, whether written or in another medium, draft or final, including handwritten notes, electronic files, photographs or video or audio tape records, which shall be available to GAO under this agreement if in the Department's possession or control, shall include, but not be limited to:
(a) individual records obtained or prepared in the course of providing intake, assessment, evaluation, education, training, and other supportive services, including clinical records, financial records, and monitoring and other reports prepared or received by a member of the staff of the Facility that is providing care or treatment; (b) reports prepared by an agency charged with investigating incidents of abuse or neglect, injury, or death occurring at the Facility, or while the individual is under the care of a member of the Department staff, or by or for the Facility itself, that describes any or all of the following:
12

Case 1:09-cv-02880-CAP Document 81 Filed 05/09/12 Page 13 of 22
(i) abuse, neglect, injury, death; (ii) the steps taken to investigate the incidents; (iii) reports and records, including personnel records, prepared or maintained by the Facility in connection with such reports of incidents; or (iv) supporting information that was relied upon in creating a report, including all information and records used or reviewed in preparing reports of abuse, neglect, injury, or death such as records which describe individuals who were interviewed, physical and documentary evidence that was reviewed, and the related investigative findings; (c) discharge planning records; (d) reports prepared by individuals and entities performing certification or licensure reviews, or by professional accreditation organizations, as well as related assessments prepared for the Facility by its staff, contractors or related entities; and (e) professional, performance, building, or other safety standards, demographic and statistical information relating to the Facility. 9. GAO shall be afforded access to records promptly (1) upon the
13

Case 1:09-cv-02880-CAP Document 81 Filed 05/09/12 Page 14 of 22
presentation of an authorization of an individual or the individual's legal guardian or (2) upon GAO's assertion of probable cause to suspect abuse or neglect where the individual is unable to authorize access to their records, the State (Adult Protective Services ("APS") or Division of Family and Children Services ("DFCS")) is the guardian, or the individual has a legal guardian and the legal guardian has failed to act after a good faith effort to contact the guardian by GAO to inform him or her of possible abuse or neglect of the individual.
(a) If GAO is present at the Facility when the request is made, the records shall be produced for inspection and review promptly, if readily available and such review does not interfere with the Facility's current use of the same records; provided, however, if the records are readily available at a different part of the Facility, GAO may access them there. (b) Facility staff may be present during the inspection and review of records, provided, however, that the lack of Facility staffing shall not be used as a reason to deny prompt access to records to GAO requesting access to them while present at the Facility. (c) After GAO has made a written request for records for the purposes of investigation or pursuant to an atthorization by an individual (or their legal guardian), the Department shall
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either copy and produce the records or make them available for inspection and copying by GAO. If the Department chooses to make the records available for inspection and copying by GAO, it shall inform GAO promptly. If the Department instead chooses to copy and produce them, it shall do so within three business days. (d) Where the Department is unable to meet the due date of a record copy request, it shall contact GAO prior to the time for compliance and request an extension of time for a specific period of time, which extension shall not be unreasonably withheld. 10. GAO shall be afforded immediate access to records, but not later than 24 hours, after GAO has made a written request, in any case of death of an individual who is admitted or served by the Department, or if GAO determines there is probable cause to believe that the health or safety of an individual is in serious and immediate jeopardy. Where the Department is unable to meet the due date of a record request, it shall immediately contact GAO to request an extension of time, which extension shall not be unreasonably withheld. 11. All requests for copies of records, except for minimal requests made by GAO in person at the Facility, shall be in writing and addressed to the director of medical records at each Facility.
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GAO's access to records shall include inspecting and obtaining copies of information and records. Copies of records shall be subject to the current rate specified in the Open Records Act, O.C.G.A. § 50-18-70 et seq. Payment in advance shall not be required, but payment shall be made promptly. A written request includes an email, a legible hand-written request, a facsimile, or letter. The time deadlines in paragraphs 9(c) and 10 shall apply to the mailing of the records. 12. The Department staff may speak with GAO and provide information where the individual or the individual's legal guardian has executed an authorization, or upon GAO's assertion of probable cause to suspect abuse or neglect where the individual is unable to authorize access to their records, the State (APS or DFCS) is the legal guardian, or the individual has a legal guardian and the legal guardian has failed to act after a good faith effort to contact the legal guardian by GAO to inform them of possible abuse or neglect of the individual. The Department's staff are not required to speak with GAO by this provision. 13. GAO shall maintain the confidentiality of any information and records as required under federal or state law.
AUTHORIZATIONS 14. The Department shall honor any valid authorization for release of records executed by an individual receiving services from the
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Department or the individual's legal guardian. With respect to authorizations from the individual or the individual's legal guardian seeking GAO's attendance at treatment team meetings, service planning meetings and discharge planning meetings at Facilities, the Department shall grant all reasonable requests that are consistent with the individual's best interests; provided, however, GAO shall only make such request consistent with the individual's wishes.
ENFORCEMENT OF ACCESS 15. If the Department denies or limits GAO access to any Facility or individual for any reason, including GAO record reviews at a Facility, GAO attendance at meetings or the validity of an authorization, the responsible Department employee and GAO shall attempt to resolve the issue. In the event it cannot be resolved, the responsible Department employee shall immediately notify the Facility administrator (or her or his designee) who shall attempt to address the access issue with GAO. If the matter cannot be resolved immediately, the Facility administrator will contact the Department's Chief of Staff (or her or his designee) and GAO shall contact the GAO Executive Director (or her or his designee). The two executives shall confer telephonically immediately to attempt to resolve the matter in dispute. 16. In the event the Department denies or limits GAO's written
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request for access to records, the Department shall provide promptly to GAO, but not later than24 hours after a denial of access, a written statement of the reasons for the denial of access. GAO will attempt to resolve the Department's objection. If no resolution is reached prior thereto, the Chief of Staff to the Commissioner of the Department and the Executive Director of GAO shall to meet or confer telephonically as soon as practicable. 17. In the event the process in Paragraph 15 and Paragraph 16 does not resolve the issue and the Department denies GAO access to records, Facilities, and individuals admitted or served by the Department, the Department shall provide promptly to GAO after a denial of access, a written statement of the reasons for the denial of access. 18. Prior to filing pleadings with this Court, both parties shall follow Paragraphs 15 through 17 of this Agreement and injunction and make reasonable and diligent efforts to resolve disputes. 19. The court shall retain jurisdiction for the purposes of enforcing this Agreement and injunction until August 31, 2014.
TRAINING 20. As soon as practicable after the Effective Date of this Agreement and injunction, the Chief of Staff to the Commissioner of the Department and the Executive Director of GAO agree to coordinate the content and process of the training under this
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Agreement to the Department and GAO. To that end, the Chief of Staff to the Commissioner of the Department (or his or her designee) and the Executive Director of GAO (or his or her designee) shall to conduct joint training on the Agreement to both the Department and GAO. 21. Within 30 days of the Effective Date of this Agreement, the Department shall communicate with its Facilities' officials, employees, agents, and independent contractors involved in providing care to the individuals in its Facilities, the provisions in this Agreement and injunction that are applicable to their respective job duties. 22. Within 30 days of the Effective Date of this Agreement and injunction, GAO shall communicate with its officials, employees, and agents, the provisions in this Agreement and injunction that are applicable to their respective job duties.
COOPERATION AND CIVILITY 23. The parties shall conduct themselves in a cooperative and civil manner in carrying forth the terms of this Agreement and injunction. 24. Notice under this Agreement and injunction shall occur by sending written documentation by overnight courier to the following: (1) Commissioner, Georgia Department of Behavioral Health and Developmental Disabilities, 2 Peachtree Street, N.W.,
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Atlanta, Georgia 30303 and (2) Chief Executive Officer, Georgia Advocacy Office, 150 East Ponce De Leon Avenue, Suite 430, Decatur, Georgia 30030.
PEER REVIEW 25. The following provision supplements the preceding injunction provisions. The Department is enjoined and restrained from:
(a) Denying, preventing, and interfering with Plaintiff GAO’s access to any records upon GAO’s request, pursuant to 42 U.S.C. § 15001 et seq. and 42 U.S.C. § 10801 et seq., and specifically, peer review and mortality review records. The term “access” shall include both inspection and copying of any records included within the definition of “all records” under the P&A Acts and as set forth as follows:
(i) Peer review records; (ii) Mortality review records; (iii) Individual records obtained or prepared in the course of providing intake, assessment, evaluation, education, training, and other supportive services, including clinical records, financial records, and monitoring, and other reports prepared by or received by a member of the staff of the Facility that is providing care or treatment; (iv) Reports prepared by an agency charged with
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investigating incidents of abuse or neglect, injury or death occurring at the Facility, or while the individual is under the care of a member of the Department staff, or by or for the Facility itself, that describes any or all of the following:
(A) abuse, neglect, injury, death; (B) the steps taken to investigate the incidents; (C) reports and records, including personnel records, prepared or maintained by the Facility in connection with such reports of incidents; and (D) supporting information that was relied upon in creating a report, including all information and records used or reviewed in preparing reports of abuse, neglect, injury, or death such as records which describe individuals who were interviewed, physical and documentary evidence that was reviewed, and the related investigative findings; (v) discharge planning records; (vi) reports prepared by individuals and entities performing certification or licensure reviews, or by professional accreditation organizations, as well as related assessments prepared for the Facility by its staff, contractors, or related entities;
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(vii) professional, performance, building or other safety standards, demographic, and statistical information relating to the Facility; and (viii) records of any meeting of licensed medical professionals reviewing, critiquing, and/or discussing in any way the performance of another medical professional. (ix) Records within the scope of O.C.G.A., §§ 31-7-15, 31-7-131, 31-7-133, 31-7-140, and 31-7-143. Because this order and injunction adjudicates all remaining issues, the clerk is DIRECTED to close this civil action. SO ORDERED, this 9th day of May, 2012.
/s/ Charles A. Pannell, Jr. CHARLES A. PANNELL JR. United States District Judge
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 Case 1:09-cv-02880-CAP Document 94 Filed 09/12/12 Page 1 of 9

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

GEORGIA ADVOCACY OFFICE, INC.,
Plaintiff,
v.
FRANK SHELP, M.D., in his official capacity as Commissioner, Georgia Department of Behavioral Health and Developmental Disabilities,
Defendant.

CIVIL ACTION NO. 1:09-CV-2880-CAP

O R D E R

This action is before the court on the plaintiff’s motion for

attorneys’ fees and expenses [Doc. No. 83].

I. Background

The background of this case is set out in detail in the

court’s summary judgment order [Doc. No. 53] and does not need to

be repeated here. Following the court’s denial of summary judgment,

the parties successfully mediated almost all outstanding issues in

this case and entered into a stipulated agreement. Only one

substantive issue remained: whether, and to what extent, the

plaintiff was entitled to access peer review records kept by the

Department of Behavioral Health and Developmental Disabilities.

Additionally, the stipulated agreement settled all fees disputes to

that point but reserved the plaintiff’s right to “seek fees and

costs that arise from the litigation of the claim of access to peer

Case 1:09-cv-02880-CAP Document 94 Filed 09/12/12 Page 2 of 9
review records under the P&A Acts and regulations” [Doc. No. 63, ¶ 36].
Following briefing of the plaintiff’s motion for final injunction, which consisted almost entirely of arguments on the issue of access to peer review records, the court granted the defendant’s request for a hearing and then issued the permanent injunction on the terms the plaintiff requested [Doc. No. 65]. The plaintiff has now moved to recover attorneys’ fees in the amount of $51,990.50 under 42 U.S.C. § 1988. II. Legal standard and analysis
Pursuant to 42 U.S.C. § 1988, prevailing parties in civil rights actions are entitled to an award of attorneys’ fees. Hensley v. Eckerhart, 461 U.S. 424 (1983). In this case, it is undisputed that the plaintiff was the prevailing party. Accordingly, the plaintiff is entitled to an award of attorneys’ fees.
In calculating a reasonable attorneys’ fee award, the court must multiply the number of hours reasonably expended on the litigation by the customary fee charged in the community for similar legal services to reach a sum commonly referred to as the “lodestar.” Hensley, 461 U.S. at 433-34; Norman v. Housing Authority, 836 F.2d 1292, 1299 (11th Cir. 1988). The court may then adjust the lodestar to reach a more appropriate attorneys’ fee, based on a variety of factors, including the novelty or difficulty
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of the question presented and the time and labor required. Ass’n of Disabled Ams. v. Neptune Designs, Inc., 469 F.3d 1357, 1359 n.1 (11th Cir. 2006).
The defendant here objects to the reasonableness of the fees requested based on the rate charged by Paula Rafferty Miller and claims certain billed tasks were overstaffed, insufficiently documented, redundant, or unnecessary.
A. Hourly Rate “A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Norman, 836 F.2d 1292, 1299. The Eleventh Circuit provided the following instruction for determining a reasonable hourly rate for the attorneys involved in a case: [O]rdinarily there are no quotations for the prevailing market rate for a given attorney's services. Instead, the best information available to the court is usually a range of fees set by the market place, with the variants best explained by reference to an attorney's demonstrated skill. It is the job of the district court in a given case to interpolate the reasonable rate based on an analysis of the skills . . . which were exhibited by the attorney in the case at bar . . . . Id. at 1301. In this case, the defendant’s objection to the rate charged by Paula Rafferty Miller, $400 per hour, is based on a comparison with that charged by Joshua Norris, $330 per hour. According to the
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defendant, Ms. Miller’s rate is unreasonable because she is classified as a staff attorney, while Mr. Norris is the plaintiff’s Director of Legal Advocacy [Doc. No. 92 at 11].
Inspection of the declarations of Ms. Miller and Mr. Norris reveals that Ms. Miller’s higher rate is based largely on the fact that she has nine more years of experience than Mr. Norris. The court finds that $400 per hour is a reasonable hourly rate for attorneys of similar skills, experience, and reputation as Ms. Miller in the Atlanta area. Likewise, the court finds that the rates for Mr. Norris and Ms. Kegley ($295 per hour) are also reasonable.
B. Hours Expended The next step in computing the lodestar is the ascertainment of reasonable hours. Norman, 836 F.2d at 1301. Excessive, redundant or otherwise unnecessary hours should be excluded. Id. “This must necessarily mean that the hours excluded are those that would be unreasonable to bill to a client and therefore to one's adversary irrespective of the skill, reputation or experience of counsel.” Id. (emphasis omitted). Exclusions for excessive or unnecessary work on given tasks must be left to the discretion of the court. Id. While there is nothing inherently unreasonable about a client having multiple attorneys, which may all be compensated if they are
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not unreasonably doing the same work, the court is charged with deducting redundant hours. Id.
In this case, the defendant argues that several charges are unreasonable. The court addresses each in turn.
(1) The defendant first argues that the plaintiff’s attorneys unreasonably billed for two attorneys to attend and prepare for a court-ordered status conference. According to the billing sheets attached to plaintiff’s counsels’ affidavits, they billed 3.2 hours in total to prepare for the status conference, including .5 hour of research. The court finds this time reasonable and compensable. On the other hand, the court finds billing a total of 4.0 hours of attorney time for a 25 minute status conference is unreasonable. Accordingly, Kegley’s fees will be reduced by the equivalent of 2.0 hours, or $590.
(2) The defendant complains that the plaintiff’s attorneys failed to adequately document which tasks each performed in drafting the permanent injunction brief. The billing sheets reflect that Norris billed for 6.8 hours spent drafting the permanent injunction brief and that Miller billed for 4.0 hours spent drafting and revising the motion and brief. The court finds these time expenditures reasonable and compensable.
(3) The defendant complains that the plaintiff’s attorneys failed to adequately document which tasks each performed in
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drafting the reply brief for the permanent injunction motion. The defendant points out that Norris billed 4.2 hours, Miller billed 15.3 hours, and Kegley billed 6.5 hours for research, drafting, reviewing, and editing the reply brief. The court agrees that these amounts of time are unreasonable in the aggregate and are most likely redundant; the also court notes that the descriptive entries are too vague to show that any particular hours are not redundant. Accordingly, the court agrees with the defendant, and plaintiff’s attorneys’ respective fees will be reduced as follows: Norris’s fees will be reduced by the equivalent of 2.5 hours, or $825; Miller’s fees will be reduced by the equivalent of 9.3 hours, or $3,720; Kegley’s fees will be reduced by the equivalent of 2.5 hours, or $737.50.
(4) The defendant complains of unnecessary and irrelevant research done in several categories prior to the permanent injunction hearing, including 0.3 hours Kegley billed for emails with outside attorneys about their P&A access, 4.0 hours she billed for collecting peer review requests and denials while the facts relevant to the hearing were stipulated to, and 1.0 hour Norris billed for reviewing “DOJ findings letters in US v. GA re: protections from harm.” The plaintiff’s attorneys do not justify these hours, and the court agrees that they are unreasonable. Accordingly, the plaintiff’s counsels’ respective fees will be
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reduced as follows: Norris’s fees will be reduced by the equivalent of 1.0 hour, or $330, and Kegley’s fees will be reduced by the equivalent of 4.3 hours, or $1268.50.
(5) The defendant complains that the plaintiff’s attorneys billed 24.6 hours preparing their witness, Ms. Moore, for the permanent injunction hearing. The billing sheets reveal 8.2 hours billed by Norris, 12.1 hours billed by Miller, and 0.4 billed by Kegley for meeting or preparing witness examination. While the plaintiff’s attorneys argue that their entries also reflect planning for cross examination of Dr. Shelp, the descriptions are simply too vague. The court agrees with the defendant that, in any case, the total time billed for preparing for the hearing was unreasonable. Accordingly all the fees billed by Miller and Kegley for witness preparation, in amounts of $4,840 and $118, respectively, will be disallowed.
(6) The defendant complains that both Norris and Kegley billed for drafting the proposed remedy, as ordered by the court. The court finds these time expenditures reasonable and compensable.
(7) The defendant complains that the plaintiff’s attorneys billed a combined 13.1 hours preparing its attorney’s fees request. The court finds the time expenditures for the fees request reasonable and compensable. Moreover, a prevailing plaintiff is
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entitled to attorney’s fees for litigating its fee claim. Cruz v. Hauck, 762 F.2d 1230, 1233-34 (5th Cir. 1985).
C. Adjustment to the Lodestar Once the lodestar is obtained, the court may then adjust it upwards or downwards. Hensley, 461 U.S. at 434; Blum v. Stenson, 465 U.S. 886, 897 (1984); Barnes, 168 F.3d at 427; Norman, 836 F.2d at 1302. The Supreme Court and Eleventh Circuit have stated that while the adjustment may be based on a number of factors, the most important factor is the results obtained. Henslev, 461 U.S. at 434; Norman, 836 F.2d at 1302. The Supreme Court has warned, however, that upward adjustments are rarely warranted because the factors on which a prevailing party typically seeks an enhancement already have been considered by the court in determining the reasonable hourly rate: Expanding on our earlier finding in Hensley that many of the Johnson[v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)] factors “are subsumed within the initial calculation” of the lodestar, we specifically held in Blum that the “novelty [and] complexity of the issues,” “the special skill and experience of counsel,” the “quality of representation,” and the “results obtained” from the litigation are presumably fully reflected in the lodestar amount, and thus cannot serve as independent bases for increasing the basic fee award. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986).
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The plaintiff in this case does not seek an enhancement of the lodestar, and the court finds no basis for such enhancement However, the court does find that the degree of success and benefit to the public as a result of this case do warrant the award of the full lodestar amount. IV. Conclusion
For the reasons set forth above, the plaintiff’s motion for attorney’s fees [Doc. No. 83] is GRANTED in the reduced amount of $39,561.50. The defendant is DIRECTED to remit payment on or before November 15, 2012. Failure to do so will result in contempt sanctions.
SO ORDERED, this 12th day of September, 2012. /s/Charles A. Pannell, Jr. CHARLES A. PANNELL, JR. United States District Judge
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