Case 3:09-cv-00686-REP Document 2 Filed 10/27/09 Page 1 of 3 PageID# 65

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

f"[21~~' U [L,---"~". If-~'

CLERK, u.s. DisTRICT COURT

THE ARC OF VIRGINIA, INC.,

Plaintiff,

MOTION

v.

TIMOTHY M. KAINE, in his official capacity as Governor of the Commonwealth of Virginia, : et ai.,

Defendants.

PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiff, The Arc of Virginia, Inc. ("the Arc"), files this Motion for a Preliminary Injunction. The Arc requests that this Court enter a Preliminary Injunction, as authorized by the Americans with Disabilities Act, 42 U.S.C. § 12131 ("The ADA"), Section 504 ofThe Rehabilitation Act of 1973,29 U.S.c. § 794 ("Section 504") and the Supremacy Clause of the Constitution of the United States, U.S. Const. art. VI, cl. 2 ("The Supremacy Clause"):
1. Prohibiting Defendants from implementing their plan and from building a new segregated institution;
2. Prohibiting the Defendants from otherwise implementing Budget Bill Item 103.05(A)(1);
3. Granting the Arc its attorneys' fees and costs, to the extent permitted by law; and
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4. Granting the Arc such other and further relief that to this Court seems just and proper.
In support ofthis Motion, Plaintiffsubmits the attached Memorandum ofLaw and Exhibits which are incorporated as if fully set forth hereat.
WHEREFORE, the Plaintiffrespectfully prays that this Court enjoin the Defendants, during the pendency of this action, by entering an Order::
I. Prohibiting Defendants from implementing their plan and from building a new segregated institution;
2. Prohibiting the Defendants from otherwise implementing Budget Bill Item 103.05(A)(I);
3. Granting the Arc its attorneys' fees and costs, to the extent permitted by law; and
4. Granting the Arc such other and further reliefthat to this Court seems just and proper.
Dated: 27 October 2009 Respectfully submitted, The Arc of Virginia, Inc. by Counsel
Virginia Office for Protection and Advocacy Counsel for Plaintiff 1910 Byrd Avenue, Suite 5 Richmond, VA 23230 Tel: (804) 225-2042 Fax: (804) 662-7431 V. Colleen Miller, Executive Director
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..
onathan G. Martinis, aging Attorney Virginia State Bar N ber: 37299 Virginia Office for Protection and Advocacy Attorney for Plaintiff 1910 Byrd Avenue, Suite 5 Riclnnond, VA 23230 Telephone: (804) 225-2042 Fax: (804) 662-7431 E-mail: Jonathan.Martinis@VOPA.Virginia.Gov
~ C·w.-U) KllleM.Ek:st~IAttorney
Virginia State Bar Number: 74858 Virginia Office for Protection and Advocacy Attorney for Plaintiff 1910 Byrd Avenue, Suite 5 Riclnnond, VA 23230 Telephone: (804) 225-2042 Fax: (804) 662-7431 E-mail: Kalena,Ek@VOPA.Virginia.Gov
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 Case 3:09-cv-00686-REP Document 1 Filed 10/27/09 Page 1 of 62 PageID# 1

•

fILED

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

ZnUq OCT 21 A 'I: 33

THE ARC OF VIRGINIA, INC., a not-forprofit corporation,
Plaintiff,
v.
TIMOTHY M. KAINE, in his official capacity as Governor of the Commonwealth of Virginia, : VIOLA O. BASKERVILLE, in her official capacity as Secretary of Administration of the Commonwealth of Virginia, MARILYN B. TAVENNER, in her official capacity as Secretary of Health and Human Resources ofthe Commonwealth of Virginia, DR. JAMES S. REINHARD, in his : official capacity as Commissioner ofthe Department of Behavioral Health and Developmental Services of the Commonwealth: of Virginia, and RICHARD F. SLIWOSKl, P.E., in his official capacity as Director of the Department of General Services of the Commonwealth of Virginia,
Defendants.

COMPLAINT
Case No.: 3: 0'1 c\/ f.clll.o

COMPLAINT PRELIMINARY STATEMENT This case asks the Court to prevent the Commonwealth of Virginia from keeping people with intellectual disabilities in an unlawful state of "unjustified institutional isolation" in defiance of the Supreme Court's Olmstead decision. The Defendants intend to build a new segregated institution to "replace" Southeastern Virginia Training Center ("SEVTC"), a state institution for Virginians with intellectual

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disabilities. Under the Defendants' plan, 75 SEVTC residents will be forced to live in the new institution, even though a state-sponsored study found that each and every one of them can be served in the community rather than in an institution.
As a result, Defendants' plan violates those SEVTC residents' rights under federal law, including their rights to be free from discrimination and to receive services "in the most integrated setting" appropriate to their needs under the Americans with Disabilities Act, Section
504 ofthe Rehabilitation Act of 1973 and the Supreme Court's decision in Olmsteadv. L.e., 527
U.S. 581 (1999). Plaintiff, The Arc of Virginia, Inc., prays that this Court hold that Defendants' plan,
and/or the state Budget Bill Item that precipitated it, violate federal law and the rights of Arc members. Doing so will prevent the Defendants from building the new institution, protect the rights of people with intellectual disabilities to live in the most integrated setting and preserve the right of SEVTC residents to live in an appropriate, government-owned or operated facility if they choose to do so.
JURISDICTION AND VENUE 1. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
§ 1331 and 28 U.S.C. § 1343. 2. This Court has personal jurisdiction over the Defendants in that they are residents
of the Commonwealth of Virginia and are employed as officials of the Commonwealth of Virginia. 3. The Arc's prayers for Declaratory relief are authorized by 28 U.S.c. § 2201.

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4. The Arc's prayers for Injunctive relief are authorized by the Title II of the

Americans with Disabilities Act, 42 U.S.c. § 12l3l ("The ADA"), Section 504 of

The Rehabilitation Act of 1973,29 U.S.C. § 794 ("Section 504") and the

Supremacy Clause of the Constitution of the United States, U.S. Const. art. VI, cl.

2.

5.

Venue is appropriate in this District pursuant to 28 U.S.C. § 1391 as this matter

arose in this District and the Defendants' offices are located in this District.

PARTIES PLAINTIFF 6. Plaintiff, The Arc of Virginia, Inc. ("the Arc"), is a not-for-profit corporation.
The Arc is the Virginia state Chapter of The Arc of the United States, the world's largest community-based organization of and for people with intellectual and developmental disabilities. With the Arc of the United States and its over 780 state and local chapters, the Arc is devoted to promoting and improving supports and services for all people with intellectual disabilities. 7. The Arc's membership is comprised of people with intellectual disabilities, their family members and advocates. 8. The Arc is governed by a Board of Directors, three of whom are people with intellectual disabilities. The Arc's Board of Directors meets at least four times each year. 9. Each local chapter has a representative on the Board. Local chapter representatives are selected by the local chapter's Board of Directors, many of

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which have members with intellectual disabilities. Each local chapter's Board is elected by its members. 10. The Arc's Mission Statement is "The Arc of Virginia advocates for the rights and full participation of all children and adults with intellectual and developmental disabilities. Together with our network of members and affiliated chapters, we improve systems of supports and services; connect families; inspire communities and influence public policy." 11. To fulfill its mission, the Arc engages in activities including, but not limited to: advocating for changes to law and public policy to benefit it members and people with intellectual and developmental disabilities; organizing and collaborating with individuals and organizations that advocate for changes to law and public policy to benefit its members and people with intellectual and developmental disabilities; providing information to its members and people with intellectual and developmental disabilities, their families and advocates about important issues; providing training for its members and people with intellectual and developmental disabilities to become self-advocates for issues important to them; providing information to the public, government and policymakers about issues that are important to its members and people with intellectual and developmental disabilities; and holding an annual conference bringing together its members, people with intellectual and developmental disabilities, advocates and policymakers from across the state to discuss and influence public policy. The Arc frequently speaks out on issues important to people with intellectual and
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developmental disabilities and has been a leader in the struggle to prevent the Commonwealth from building a new segregated institution. 12. The Arc is pursuing this action to protect the rights of its members who are or may become residents of SEVTC and are, therefore, threatened with being placed in the new segregated institution rather than in the most integrated setting appropriate to their needs. These individuals have each suffered injuries, or are threatened with injuries" including violation of their rights under federal law and continued, unjustified institutionalization" that would allow them to bring suit against the Defendants in their own right. l3. The Arc is also pursuing this action in its own right because it has had to divert resources from its previously planned projects and efforts in order to oppose the Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103.05(A)(I), to the extent it requires such a plan. 14. If the Defendants are permitted to implement their plan and build the new segregated institution, the Arc will have to continue to divert resources from its other work in order to provide information and advocacy to residents of the institution and to people threatened with admission to the institution.
DEFENDANTS 15. Defendant Timothy M. Kaine ("the Governor") is sued in his official capacity as
the Governor ofthe Commonwealth of Virginia. The Governor is the highest state official of the Commonwealth of Virginia. The Governor "shall have the authority and responsibility for the formulation and administration of the policies
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of the executive branch." Va. Code § 2.2-103(A). The Governor has an obligation to ensure that his actions, policies and those of his subordinates and members of his administration comply with and uphold the ADA and Section 504. The Governor has failed in his obligation. 16. The Governor may be served at Patrick HeillY Building, 3rd Floor, 1111 East Broad Street, Richmond, Virginia 23219. 17. Defendant Viola O. Baskerville ("the Secretary of Administration"), is sued in her official capacity as the Secretary of Administration for the Commonwealth of Virginia. The Secretary of Administration is appointed by the Governor and "serves at the pleasure of the Governor." Va. Code § 2.2-200 (A). The Secretary of Administration has the power and obligation to hold the agencies in her charge "accountable for their administrative, fiscal and program actions in the conduct of the respective powers and duties of the agencies [and] [d]irect the development of goals, objectives, policies and plans that are necessary to the effective and efficient operation of government." Va. Code § 2.2-200(C)(3-4). The Secretary of Administration oversees the Department of General Services ("DGS") and has an obligation to ensure that her actions, policies and those ofDGS comply with the ADA and Section 504. The Secretary has failed in her obligation. 18. The Secretary of Administration may be served at Patrick Henry Building, 1111 East Broad Street, Richmond, Virginia 23219. 19. Defendant Marilyn B. Tavenner ("the Secretary of Health and Human Resources") is sued in her official capacity as the Secretary of Health and Human Resources for the Commonwealth of Virginia. The Secretary of Health and
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Human Resources is appointed by the Governor and "serves at the pleasure of the Governor." Va. Code § 2.2-200 (A). The Secretary of Health and Human Resources has the power and obligation to hold the agencies in her charge "accountable for their administrative, fiscal and program actions in the conduct of the respective powers and duties of the agencies [and] [d]irect the development of goals, objectives, policies and plans that are necessary to the effective and efficient operation of government." Va. Code § 2.2-200(C)(3-4). The Secretary of Health and Human Resources oversees the Department of Behavioral Health and Developmental Services ("DBHDS," formerly known as the Department of Mental Health, Mental Retardation and Substance Abuse Services ("DMHMRSAS")) and has an obligation to ensure that her actions, policies and those of DBHDS comply with the ADA and Section 504. The Secretary has failed in her obligation. 20. The Secretary of Health and Human Resources may be served at Patrick Henry Building, 1111 East Broad Street, Richmond, Virginia 23219. 21. Defendant Dr. James Reinhard ("the Commissioner") is sued in his official capacity as the Commissioner ofDBHDS (formerly known as DMHMRSAS). The Commissioner is charged to "supervise and manage the Department and its state facilities." Va. Code Ann.§ 37.2-304. The Commissioner is obligated to ensure that his actions, policies and those of DBHDS comply with the ADA and Section 504. The Commissioner has failed in his obligation. 22. The Commissioner may be served at 1220 Bank Street, Richmond, VA 23219.
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23. Defendant Richard F. Sliwoski, P.E. ("the Director") is sued in his official capacity as the Director of DGS. The Director is "responsible for the overall supervision of the Department's divisions, programs and personnel." Va. Code Ann. § 2.2-1100. The Director is obligated to ensure that his actions, policies and those of DGS comply with the ADA and Section 504. The Director has failed in his obligation.
24. The Director may be served 1100 Bank Street, Suite 420, Richmond, VA 23219.
FACTS 25. SEVTC is located on a 120 acre compound in an isolated section of Chesapeake,
Virginia. 26. SEVTC can be entered by car only by turning off of Military Highway 13 onto
Smith Avenue and then snaking through an industrial park, past signs saying "No Trespassing. " 27. SEVTC is segregated from the community at large on all sides. 28. SEVTC is segregated from the residential community on its Eastern border by a trench that is approximately one quarter mile long, five feet wide and two feet deep. Where the trench ends, SEVTC is segregated from that community by an approximately six foot high fence. It is also segregated from that community by multiple "No Trespassing" signs. All of the "No Trespassing" signs face the community, telling community members that they are not welcome at SEVTC. 29. The SEVTC compound is segregated from the industrial park along its Northern border by "No Trespassing" signs.
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30. The SEVTC compound is segregated from the community along its Southern border by Interstate 64.
31. The SEVTC compound is segregated from the business development along its Western border by a .six foot high fence.
32. If people who wish to visit the compound can ford these boundaries, they are then required to report to SEVTC's main office to request admission.
33. Under its visitation policy, SEVTC can deny any person or organization access to the compound, at its discretion.! SEVTC can do so even when an SEVTC resident has not been found incompetent by a court of law and has expressed a desire to meet with that person or organization.
34. SEVTC has used this authority to restrict its residents' contacts with organizations it presumably does not approve of.
35. For example, when the Arc formed a Chesapeake chapter to advocate for the rights of its members and other SEVTC residents, its self-advocate went to SEVTC to give residents information about the Arc and about their rights.
36. The Director of SEVTC, Robert D. Shrewsberry, Ph.D., responded by barring the Arc and its staff from soliciting membership or providing written information to SEVTC residents.
37. However, SEVTC allows members of other groups - presumably ones Dr. Shrewsberry likes - to visit SEVTC, solicit membership, distribute information and conduct meetings on the SEVTC compound.
! SEVTC cannot exclude organizations that have a statutory right to enter SEVTC, such as the Virginia Office for Protection and Advocacy.
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38. SEVTC even provides advertising for one such group, known as "Parents and Friends ofSEVTC."
39. When Dr. Shrewsberry was asked why SEVTC provides such support to that group, he replied in a letter, "we see [Parents and Friends of SEVTCj as having a direct interest in the operation of the Center. The Arc does not enjoy such status."
40. SEVTC also restricts residents' rights to travel off ofthe compound and interact with nondisabled people. For example, under SEVTC policy, it can, in its discretion, determine that a resident is not "competent" to leave the compound and deny him or her the opportunity to see or mingle with members of the community at large. SEVTC can do so even when a person has not been found incompetent by a court of law.
41. In his proposed budget for 20 I 0, the Governor proposed closing SEVTC. In an interview, the Governor stated that money spent on SEVTC should be put "into community services to treat people with mental illness and mental retardation." The Governor further stated that SEVTC residents "don't need to be institutionalized." See, WAVY-TV, "Kaine on the economy and 'going green,'" available at http://www.wavy.comldpp/news/local wavy kaine budget update southeastern 20090112
42. The Governor's proposed budget called for redirecting money that had been earmarked for construction at SEVTC to build community-based housing for people with intellectual disabilities.
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43. The Secretary of Health and Human Resources and the Commissioner supported the Governor's plan to close SEVTC and provide community-based services in testimony to the Virginia General Assembly and at public meetings.
44. However, instead of closing SEVTC, the Virginia General Assembly passed Budget Bill Item 103.05(A)(l), which ordered that a new 75-bed "facility" be built. A copy of Budget Bill Item 103.05, which contains Item 103.05(A)(I), is attached to and made a part of this Complaint as Exhibit A.
45. Budget Bill Item 103.05(A)(1) directs the Department of Mental Health, Mental Retardation and Substance Abuse Services ("DMHRMSAS," now known as DBHDS) and DGS to "rebuild and resize the Southeastern Virginia Training Center to a 75-bed facility to serve profound and severely disabled clients" and allots $23,768,000.00 for construction.
46. Upon information and belief, before passing Budget Bill Item 103 .05(A)(l), neither the General Assembly nor the Defendants performed or caused to be performed any evaluations or analysis to determine whether a new segregated institution is necessary to provide services to SEVTC residents.
47. Upon information and belief, before passing Budget Bill Item 103.05(A)(l), neither the General Assembly nor the Defendants performed or caused to be performed any individualized evaluations or analysis of SEVTC residents to determine if any require services in a new segregated institution that cannot be provided in more integrated, community-based settings.
48. Upon information and belief, before passing Budget Bill Item 103 .05(A)(l), neither the General Assembly nor the Defendants performed or caused to be
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performed any evaluations or analysis to determine whether a new segregated institution would provide more appropriate and lawful services to SEVTC residents than those offered in more integrated, community-based settings. 49. The General Assembly also passed Budget Bill Item 103.05(A)(3), which directs DGS and DMHMRSAS to "build, acquire or renovate 12 community based Intermediate Care Facilities (ICF-MR) and 6 MR Homes." 50. In April of2009, the Governor approved and signed the Commonwealth's budget for 20 I0, including Budget Billltem 103 .05(A)(l) and Budget Billltem 103.05(A)(3). 51. The Governor could have exercised his "line item veto" power to remove Budget Billltem 103.05(A)(I), but chose not to do so. 52. Upon information and belief, the Defendants are each implementing or working to implement Budget Billltem 103.05(A)(l). 53. In June of2009, a state-sponsored study ofSEVTC residents concluded that all SEVTC residents "Can Be Served in the Community," confirming the Governor's belief that SEVTC residents "don't need to be institutionalized." The study was performed by the Human Services Resource Institute, pursuant to a contract with DBHDS, and was based on medical records and evaluation data collected and kept by DBHDS. A copy ofthe study is attached to and made a part of this Complaint as Exhibit B. 54. On or about 29 June 2009, the Arc wrote to the Governor, stating that the statesponsored survey shows that there is no need to build the new segregated institution because all SEVTC residents can be served in the community. The Arc
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asked the Governor to defer building the new institution to study the results of the survey. 55. On or about 9 July 2009, the Secretary of Health and Human Resources responded on behalf of the Governor. She stated that the Governor would not delay building the new institution. 56. On or about 6 July 2009, the Commissioner responded to a request for information asking whether current SEVTC residents will make up the population of the new institution. 57. The Commissioner stated "[T]he process for determining the identity of the individuals who will be offered SEVTC beds is currently in development. No one has yet been selected as a candidate for an SEVTC bed at this date." A copy of the Commissioner's letter is attached to and made a part of this Complaint as Exhibit C. 58. DBHDS (formerly known as DMHMRSAS) headed an Advisory Committee of stakeholders to discuss ways to implement Budget Billltem 103.05(A)(l). 59. The Arc was made a member of the SEVTC Advisory Committee. As a member of the Advisory Committee, the Arc opposed plans to build a segregated institution and advocated for SEVTC residents to be provided with communitybased services. 60. On 13 August 2009, DBHDS informed the Advisory Committee of the Defendants' plan for implementing Budget Bill Item 103.05(A)(l). The Commissioner gave a summary of the plan and answered questions regarding it.
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61. At the time the Commissioner announced Defendants' plan, there were 155 residents of SEVTC.
62. Under the Defendants' plan, a new segregated 75-bed institution will be built under the auspices of DGS and DBHDS, which are headed by the Director and the Commissioner, respectively.
63. Under the Defendants' plan, the new segregated institution will be built on the SEVTC compound
64. In response to a question, the Commissioner stated that the 75-bed census for the new institution was not arrived at through any "science or study."
65. Under the Defendants' plan, the new segregated institution will be fully populated by current and future SEVTC residents.
66. Upon information and belief, the Defendants' plan calls for the new segregated institution to remain fully populated.
67. Under the Defendants' plan, all SEVTC residents will be evaluated. The Commissioner stated that the evaluations would not be conducted using the Supports Intensity Scale (SIS), a nationally recognized method for determining the true support needs for people with intellectual disabilities.
68. The Commissioner's refusal to use the SIS is troubling, given that the statesponsored survey fmding that all SEVTC residents can live in the community was completed, in large part, using the SIS.
69. Based on DBHDS' evaluation method, 65 SEVTC residents will be chosen to live in the new institution - whether or not those persons actually require treatment in an institutional setting.
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70. Under the Defendants' plan, the remaining 10 beds in the new institntion will be filled with SEVTC residents who are transitioning from or to community settings.
71. Under Defendants' plan, the remaining SEVTC residents will be placed in the community-based Intermediate Care Facilities for the Mentally Retarded ("ICFMRs") and MR homes provided for in Budget Bill Item 103 .05(A)(3) or in other community placements.
72. A DBHDS representative publicly admitted that there will be "very little" to no difference between the service needs of those individuals forced to live in the new segregated institntion and those permitted to live in the community-based ICFMRs and MR homes.
73. Upon information and belief, and as required by federal law, the communitybased ICF-MRs called for in Budget Bill Item 103.05(A)(3) will provide the SEVTC residents chosen to live in them with the same level of care provided in SEVTC, but in a more integrated, community-based setting.
74. Upon information and belief, prior to creating their plan to build and fully populate the new institution, Defendants did not perform or cause to be performed any evaluations or analysis, with the exception of the state-sponsored study concluding that all SEVTC residents can be served in the community, to determine whether a new segregated institution is necessary to provide services to SEVTC residents.
75. Upon information and belief, prior to creating their plan to build and fully populate the new institution, Defendants did not perform or cause to be performed any individualized evaluations or analysis of SEVTC residents, with the exception
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of the state-sponsored study concluding that all SEVTC residents can be served in the community, to determine if any require services in a new segregated institution that cannot not be provided in more integrated, community-based settings. 76. Upon information and belief, prior to creating their plan to build and populate the new institution, Defendants did not perform or cause to be performed any evaluations or analysis, with the exception of the state-sponsored study concluding that all SEVTC residents can be served in the community, to determine whether the new segregated institution will provide more appropriate services to SEVTC residents than those offered in more integrated, communitybased settings. 77. On or about 19 August 2009, counsel for the Governor responded to a request for "copies of all assessments, evaluations, studies or documents that were created or reviewed prior-to or leading to the conclusion that a new 75 bed institution is needed or appropriate." Counsel stated that there were no such documents in the possession, custody or control of the Governor, the Secretary of Administration or the Secretary of Health and Human Resources. 78. Counsel also stated that the Governor and the two Secretaries did not have "any individualized assessments ... indicating that a new institution is required to house people with disabilities" or any documents "indicating how, specifically, the 75 bed census was determined." 79. Counsel's letter was copied to each of the Defendants herein. A copy of the letter is attached to and made a part of this Complaint as Exhibit D.
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80. Instead of performing such evaluations or assessments to determine the actual needs of SEVTC residents and forming a plan to meet those needs in the most integrated setting appropriate to them, the Defendants simply created a plan that will result in 75 people being placed in a new segregated institution, whether or not those people actually require services in an institutional setting.
8!. On 21 September 2009, the Commissioner testified to a committee of the Virginia General Assembly about Defendants' plan.
82. Upon information and belief, in response to a question, the Commissioner admitted that each and every person residing in a state-run institution for people with intellectual disabilities, even those with the most severe needs, can be served in community-based settings.
83. On 13 October 2009, Heidi Dix, Deputy Commissioner ofDBHDS, gave a presentation to Virginia'S Community Integration Advisory Committee on Defendants' plan to build the new segregated institution.
84. In response to a question, Ms. Dix stated that the proposed 75-bed census for the new institution was not based on the individual needs of SEVTC residents.
85. Ms. Dix stated that the 75-bed census seemed "arbitrary" to DBHDS. 86. Ms. Dix stated that one ofthe members of the Virginia General Assembly who
proposed that census told her that it was based on the population of a children's institution and seemed like "a nice round number." 87. Defendants have received two proposals for building the new institution. Each proposal calls for the construction of a separate and segregated 75-bed institution to house SEVTC residents.
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88. Under Defendants' plan, they will choose a proposal and sign a contract with one bidder in December 2009. Construction on the new institution is scheduled to begin in August 20 I O.
89. On or about October 14, 2009, each Defendant was provided with additional notice ofthe nature of the claims making up this action. The Arc gave the Defendants notice that it considers their plan to build and fully populate a new segregated institution and Budget Item 1O.05(A)(I), as passed or as implemented by Defendants' plan, to violate federal law.
90. The Arc has requested that Defendants defer construction of a new segregated institution or explore other ways to implement Budget Item 103.05(A)(l) that would provide service to SEVTC residents in the most integrated setting appropriate to their needs.
91. This Complaint was only filed after Defendants refused to do so.
CAUSES OF ACTION
FIRST CAUSE OF ACTION: BROUGHT BY THE ARC, IN ITS ORGANIZATIONAL CAPACITY, FOR
DECLARATORY RELIEF: DEFENDANTS' PLAN TO BUILD A NEW SEGREGATED INSTITUTION and/or BUDGET BILL ITEM l03.05(A)(1) VIOLATE ARC MEMBERS' ADA
RlGHTS 92. The Arc incorporates and realleges all of the foregoing as if fully set forth hereat.
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93. The Defendants in their official capacities and the state agencies they head are "public entities" for the purposes of the ADA. See, 42 U.S.C. § 12131(l)(B) ("public entities" include "any department, agency, special purpose district, or other instrumentality of a State or States or local government.").
94. There are Arc members residing in SEVTC. 95. There are also Arc members at risk of being admitted to SEVTC. These members
are on the Commonwealth's waiting list for Medicaid services. Each of these individuals has been found, by representatives of the Commonwealth, to meet the criteria for institutionalization. Some have been found at "urgent" need of services in order to avoid institutionalization. If these individuals do not receive community-based services, they are at risk of being institutionalized and admitted to SEVTC. 96. The Arc is pursuing this cause of action to protect the ADA rights of its members. 97. The Arc members on whose behalf the Arc brings this action are all persons with intellectual disabilities (formerly known as "mental retardation") that limit their major life activities including, but not limited to, caring for themselves and learning. 98. The Arc members on whose behalf the Arc brings this action all meet the essential eligibility requirements to receive, and do receive, services for their intellectual disabilities from the Commonwealth of Virginia, its state agencies and officers. 99. Therefore, the Arc members on whose behalf the Arc brings this case are persons with disabilities and "qualified individuals with disabilities" for the purposes of the ADA. See, 42 U.S.C. § 12102; 28 C.F.R. § 35.104.
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100. The Arc members on whose behalf the Arc brings this action would have standing to bring this action in their own right because Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103.05(A)(1), as passed or as implemented by Defendants' plan, violate or threaten their ADA rights.
101. Protecting the ADA rights of the Arc members on whose behalf the Arc brings this action is germane to the Arc's purpose, including but not limited to "advocat[ing] for the rights and full participation of all children and adults with intellectual and developmental disabilities."
I 02. Neither the claims asserted by the Arc nor the relief sought by the Arc requires the participation of individual Arc members.
103. The Arc members on whose behalf the Arc brings this action, like all SEVTC residents, have an ADA right to receive services in the most integrated setting appropriate to their needs. See, 28 C.F.R. § 35.130(d); Olmstead v. L. C, 527 U.S. 581 (1999).
104. As the state-sponsored study showed, no Arc member at SEVTC - indeed, no SEVTC resident - requires services in a segregated institution that cannot be provided in one of the community ICF-MRs or MR homes provided for in Budget Bill Item 103.05(A)(3) or in other community placements.
105. The state-sponsored study notwithstanding, Defendants have not performed any appropriate or individualized analysis concluding that any Arc member or other SEVTC resident requires services in a new segregated institution that cannot be
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provided in a more integrated, community-based placement such as a community ICF-MR, Waiver home or other community placement. 106. The ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subject to discrimination by such entity." 42 U.S.C. § 12132. 107. The regulations implementing the ADA require a public entity to administer its services, programs and activities in "the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.13 O(d). 108. In its Commentary to the regulations it promulgated to interpret the ADA, the United States Department of Justice states, "public entities are required to ensure that their actions are based on facts applicable to individuals and not on presumptions as to what a class of individuals can or cannot do." Commentary to 28 C.F.R. § 35.130.
109. In Olmsteadv. I.e., the Supreme Court held that "unjustified institutional
isolation is a form of discrimination" in violation of the ADA. 527 U.S. 581,600 (1999). 110. Defendants have chosen to implement Budget Bill Item 103.05(A)(1) through their plan to build and fully populate a new segregated institution. III. Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103.05(A)(1), to the extent it requires such a plan, will result in 75 SEVTC residents being placed in the new segregated institution - whether or not they "need" institutionalization.
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112. At the same time, Defendants' plan will result in other SEVTC residents with similar needs receiving services in more integrated, community-based ICF-MRs and other community placements.
113. Therefore, Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103.05(A)(l), to the extent it requires such a plan, violate and/or threaten Arc members' ADA rights by placing them at risk of receiving services in the new segregated institution instead of the most integrated setting appropriate to their needs.
114. Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103.05(A)(I), as passed or as implemented by Defendants' plan, further violate or threaten Arc members' ADA rights by: (i) Denying them appropriate, individualized assessments to determine their needs - including which, if any, require services in a new segregated institution that cannot be provided in more integrated, community-based settings - before deciding to build a new, segregated institution; (ii) Denying them the opportunity to participate in or benefit from an aid, benefit, or service including, but not limited to, services in a more integrated, community-based setting; (iii) Affording them an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others; (iv) Providing them with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(v) Providing them with different or separate aids, benefits, or services than is provided to others when such action is not necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others;
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(vi) Otherwise limiting them in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or servIce;
(vii) Utilizing criteria or methods of administration that have the effect of subjecting them to discrimination on the basis of disability;
(viii) Imposing or applying eligibility criteria that screen out or tend to screen them out from fully and equally enjoying any service, program, or activity, without showing that such criteria can be shown to be necessary for the provision of the service, program, or activity being offered; and
(ix) Restricting their ability to interact with nondisabled peers due to the segregated and restrictive nature of the institution.
SECOND CAUSE OF ACTION: BROUGHT BY THE ARC, IN ITS ORGANIZATIONAL CAPACITY, FOR
DECLARATORY RELIEF: DEFENDANTS' PLAN TO BUILD A NEW SEGREGATED INSTITUTION
and/or BUDGET BILL ITEM 103.05(A)(1) VIOLATE ARC MEMBERS' SECTION 504 RIGHTS
115. The Arc incorporates and realleges all of the foregoing as if fully set forth hereat. 116. The Commonwealth of Virginia receives federal funds to provide services to
individuals with intellectual disabilities, including SEVTC residents. 117. The Defendants in their official capacity and/or the state agencies they head
receive Federal financial assistance for the purposes of Section 504. See, 28 C.F.R. § 41.3 ("recipients" includes any "instrumentality of a State or its political subdivision ... or any person to which Federal financial assistance is extended directly or through another recipient ."). 118. There are Arc members residing in SEVTC.
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119. There are also Arc members at risk of being admitted to SEVTC. These members are on the Commonwealth's waiting list for Medicaid services. Each of these individuals has been found, by representatives of the Commonwealth, to meet the criteria for institutionalization. Some have been found at "urgent" need of services in order to avoid institutionalization. If these individuals do not receive community-based services, they are at risk of being institutionalized and admitted to SEVTC.
120. The Arc is pursuing this cause of action to protect the Section 504 rights of its members.
121. The Arc members on whose behalf the Arc brings this action are all persons with intellectual disabilities (formerly known as "mental retardation") that limit their major life activities including, but not limited to, caring for themselves and learning.
122. The Arc members on whose behalf the Arc brings this action all meet the essential eligibility requirements to receive, and do receive, services for their intellectual disabilities from the Commonwealth of Virginia, its state agencies and officers.
123. Therefore, the Arc members on whose behalf the Arc brings this action are "handicapped persons" and "qualified handicapped persons" for the purposes of Section 504. See, 28 C.F.R. §§ 41.31-41.32.
124. The Arc members on whose behalf the Arc brings this action would have standing to bring this action in their own right because Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103 .05(A)(l), to the extent it requires such a plan, violate or threaten their Section 504 rights.
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125. The Section 504 rights of the Arc members on whose behalf the Arc brings this action are germane to the Arc's purpose, including but not limited to "advocat[ing] for the rights and full participation of all children and adults with intellectual and developmental disabilities."
126. Neither the claim asserted by the Arc nor the relief sought by the Arc requires the participation of individual Arc members.
127. The Arc members on whose behalfthe Arc brings this action, like all SEVTC residents, have a Section 504 right to receive services in the most integrated setting appropriate to their needs.
128. As the state-sponsored study showed, no Arc member at SEVTC - indeed, no SEVTC resident - requires services in a new segregated institution that cannot be provided in one of the community rCF-MRs or MR homes provided for in Budget Bill Item 103.05(A)(3) or in other community placements.
129. The state-sponsored study notwithstanding, Defendants have not performed appropriate or individualized analyses concluding that any Arc member or other SEVTC resident requires services in a new segregated institution that cannot be provided in a more integrated, community-based setting such as a community ICF-MR or other community-based placement.
130. Section 504 provides that "No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794.
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131. Under Section 504, recipients of federal funding must make individualized inquiries into the needs of people with disabilities when making decisions or taking actions impacting those needs. See, e.g., School Board a/Nassau County v. Arline, 480 U.S. 273 (1987)
132. The regulations implementing Section 504 require programs or activities receiving Federal financial assistance to "administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped . persons." 28 C.F.R. § 41.51.
133. Defendants have chosen to implement Budget Bill Item 103.05(A)(1) through their plan to build and fully populate a new segregated institution.
134. Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103.05(A)(1), to the extent it requires such a plan, will result in 75 SEVTC residents being placed in the new segregated institution - whether or not they "need" institutionalization.
135. At the same time, Defendants' plan will result in other SEVTC residents with similar needs receiving services in more integrated, community-based ICF-MRs and other community placements.
136. Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103.05(A)(1), as passed or as implemented by Defendants' plan, violate and/or threaten Arc members' Section 504 rights by placing them at risk of receiving services in a segregated institution instead of in the most integrated setting appropriate to their needs.
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137. Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103.05(A)(1), as passed or as implemented by Defendants' plan, further violate Arc members' Section 504 rights and/or threaten their Section 504 rights by: (i) Denying them appropriate, individualized assessments to determine their needs - including which, if any, require services in a new segregated institution that cannot be provided in more integrated, community-based settings - before deciding to build a new, segregated institution; (ii) Excluding them, solely by reason oftheir disabilities, from services provided to others in a program receiving federal financial assistance including, but not limited to, services and treatment provided in more integrated, community-based settings; (iii) Denying them, solely by reason of their disabilities, the benefits of services provided to others in a program receiving federal financial assistance; (iv) Subjecting them, solely by reason of their disabilities, to discrimination under a program receiving federal financial assistance; and (v) Restricting their ability to interact with nondisabled peers due to the segregated and restrictive nature of the institution.
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THIRD CAUSE OF ACTION: BROUGHT BY THE ARC, IN ITS OWN RIGHT, FOR DECLARATORY
RELIEF DEFENDANTS' PLAN TO BUILD A NEW SEGREGATED INSTITUTION
and/or BUDGET BILL ITEM l03.05(A)(1) ARE INVALID, UNCONSTITUTIONAL AND UNENFORCEABLE PURSUANT TO THE
SUPREMACY CLAUSE 138. The Arc incorporates and realleges all of the foregoing as if fully set forth hereat. 139. The Arc has opposed Defendants' plan to build and fully populate a new
segregated institution and Virginia Budget Bill Item 103.05(A)(l), to the extent it requires such a plan, as a member of the SEVTC Advisory Committee and through its public statements, public efforts and letters to the Governor and other policymakers. 140. The Arc has had to divert resources from previously planned projects and goals in order to oppose Defendants' plan and Budget Bill Item 103.05(A)(l), to the extent it requires such a plan. 141. In addition, if Defendants are permitted to implement their plan to build a new segregated institution, the Arc will be forced to continue diverting resources from its other work in order to provide advocacy for its members and other SEVTC residents who are either placed in the new institution or at risk of being placed in the new institution. 142. As part of its efforts to oppose the Defendants' plan and the Budget Bill Item, the Arc has expended staff and monetary resources to advocate to the SEVTC
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Advisory Council that a segregated institution should not be built; formed a new chapter to serve people in or at risk of being admitted to SEVTC; engaged in advocacy designed to prevent Defendants from building the new institution; issued public statements, orally and in writing, opposing the construction of a new segregated institution; and met with policymakers, including some of the Defendants herein, to educate them about the rights of Arc members and other people with intellectual disabilities to live in the most integrated setting and to urge them not to build a new segregated institution. 143. The diversion of the Arc's staff and monetary resources to oppose the Budget Bill Item and Defendants' plan have decreased the resources the Arc has to spend on, and decreased the work the Arc could do on, its previously planned projects such as advocating for the reduction or elimination of the waiting list for Medicaid services for individuals with intellectual and developmental disabilities. 144. In addition, since it began diverting resources to oppose Defendants' plan to build and fully populate a new segregated institution and Virginia Budget Bill Item 103 .05(A)(l), to the extent it requires such a plan, the Arc has also had less staff and monetary resources to devote to its other advocacy work such as advocating for the retention or restoration of services to its members and other people with intellectual and developmental disabilities in the face of state budget cuts and advocating for and monitoring the development of community housing for people with intellectual and developmental disabilities. 145. In addition, the Arc also had to divert staff and monetary resources that had been earmarked for other activities, including their own internal operations. Because
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the Arc diverted resources to oppose Defendants' plan to build and fully populate a new segregated institution and Virginia Budget Bill Item 103.05(A)(1), to the extent it requires such a plan, it did not have the resources to complete a previously scheduled upgrade to its internet site, which would have provided more information and educational material for its members, policymakers and the public. 146. If Defendants are permitted to implement their plan to build and fully populate a new segregated institution, the Arc will continue to divert resources in order to provide advocacy and services to its members and other residents of the new institution and those at risk of being placed in the new institution. This will include efforts to educate its members and other residents about their rights to live in the most integrated setting and advocacy and advocacy to contend that those residents should not be placed in a new segregated institution. 147. Because it will divert its resources, the Arc will have fewer resources to expend on, and will therefore be limited in its ability to work on, previously planned projects such as defending existing community-based services from budget cuts; advocating for more community housing, educating policymakers, advocating for the end of the waiting list for Medicaid services, and upgrading its internet site. 148. In passing the ADA, Congress found "historically, society has tended to isolate and segregate individuals with disabilities .... discrimination against individuals with disabilities persists in such critical areas as ... institutionalization ... and access to public services. 42 U.S.C. § l21Dl(a)(3).
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149. The ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subject to discrimination by such entity." 42 U.S.C. § 12132.
150. In its Commentary to the regulations it promulgated to interpret the ADA, the United States Department of Justice states, "public entities are required to ensure that their actions are based on facts applicable to individuals and not on presumptions as to what a class of individuals can or carmot do." Commentary to 28 C.F.R. § 35.130.
151. The regulations implementing the ADA require a public entity to administer its services, programs and activities in "the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35 .130(d).
152. In Olmstead, et al. v. L. C, et al., the Supreme Court analyzed the ADA and found that "unjustified institutional isolation of persons with disabilities is a form of discrimination...." 527 U.S. 581,600 (1999).
153. The Court held "Institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life . . . . Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment. ... In order to receive needed medical services, people with mental disabilities must, because of those disabilities, relinquish participation in community life they could
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enj oy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice." 527 U.S. at 600. 154. The Court further held that, in order to comply with the ADA, a State should have a "comprehensive working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated." 527 U.S. at 605-606. 155. Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103.05(A)(l), to the extent it requires such a plan, will result in 75 SEVTC residents being placed in the new segregated institution - whether or not they "need" institutionalization. 156. At the same time, Defendants' plan will result in other SEVTC residents with similar needs receiving services in more integrated, community-based rCF-MRs and other community placements. 157. Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103.05(A)(l), as passed or as implemented by Defendants' plan, violate and/or conflict with the ADA by:
(i) Denying SEVTC residents appropriate, individualized assessments to determine their needs - including which, if any, require services in a new segregated institution that cannot be provided in more integrated, community-based settings - before deciding to build a new, segregated institution;
(ii) Denying SEVTC residents services in the most integrated setting appropriate to their needs;
(iii) Forcing SEVTC residents into "unjustified institutional isolation;"
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(iv) Failing and/or refusing to create a "comprehensive, effective plan for placing qualified persons with mental disabilities in less restrictive settings;"
(v) Creating a plan that "endeavors to keep [the new] institution fully populated; "
(vi) Denying qualified individuals with disabilities the opportunity to participate in or benefit from an aid, benefit, or service;
(vii) Affording qualified individuals with disabilities an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others including, but not limited to, services provided in more integrated, community-based settings;
(viii) Providing qualified individuals with disabilities with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(ix) Providing different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others when such action is not necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others;
(x) Otherwise limiting qualified individuals with disabilities in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service;
(xi) Utilizing criteria or methods of administration that have the effect of SUbjecting qualified individuals with disabilities to discrimination on the basis of disability;
(xii) Imposing or applying eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, without showing that such criteria can be shown to be necessary for the provision of the service, program, or activity being offered; and
(xiii) Restricting individuals with disabilities' ability to interact with nondisabled peers due to the segregated and restrictive nature of the institution.
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158. Section 504 provides that "No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794.
159. The regulations implementing Section 504 require programs or activities receiving Federal financial assistance to "administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons." 28 C.F.R. § 41.51.
160. Under Section 504, recipients of federal funding must make individualized inquiries into the needs of people with disabilities when making decisions or taking actions impacting those needs. See, e.g., School Board ofNassau County v. Arline, 480 U.S. 273 (1987)
161. Defendants' plan to build and fully populate a new segregated institution and/or Budget Bill Item 103.05(A)(1), as passed or as implemented by Defendants' plan, violate Section 504 by: (i) Denying SEVTC residents appropriate, individualized assessments to determine their needs - including which, if any, require services in a new segregated institution that cannot be provided in more integrated, community-based settings - before deciding to build a new, segregated institution; (ii) Excluding qualified individuals with disabilities, solely by reason of their disabilities, from services provided to others, including, but not limited to, services provided in integrated, community-based settings; (iii) Denying qualified individuals with disabilities, solely by reason of their disabilities, the benefits of services provided to others; (iv) Subjecting qualified individuals with disabilities, solely by reason of their disabilities, to discrimination under a program receiving federal financial assistance;
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(v) Denying qualified individuals with disabilities services in the most integrated setting appropriate to their needs; and.
(vi) Restricting individuals with disabilities' ability to interact with nondisabled peers due to the segregated and restrictive nature of the institution.
162. Because Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103.05(A)(1), as passed or as implemented by Defendants' plan, violate the ADA and Section 504, they are preempted, unconstitutional and unenforceable pursuant to the Supremacy Clause of the Constitution of the United States. U.S. Const. art. VI, cl. 2
163. Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103.05(A)(1), as passed or as implemented by Defendants' plan, conflict with the ADA and Section 504 and stand as an obstacle to the accomplishment of the full purposes and objectives ofthe ADA and Section 504, including, but not limited to, the objective of ensuring that people with disabilities receive services in the most integrated setting appropriate to their needs.
164. Therefore, Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103.05(A)(I), as passed or as implemented by Defendants' plan, are preempted by the ADA and Section 504 and are unconstitutional and unenforceable pursuant to the Supremacy Clause of the Constitution of the United States. U.S. Const. art. VI, cl. 2.
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FOURTH CAUSE OF ACTION: BROUGHT BY THE ARC, IN ITS ORGANIZATIONAL CAPACITY, FOR
INJUNCTIVE RELIEF: DEFENDANTS SHOULD BE ENJOINED FROM BUILDING THE NEW INSTITUTION BECAUSE THEIR PLAN TO DO SO, and/or BUDGET BILL
ITEM I03.05(A)(1), VIOLATE ARC MEMBERS' ADA RIGHTS 165. The Arc incorporates and realleges all of the foregoing as if fully set forth hereat. 166. Defendants' plan to build and fully populate a new segregated institution and
Budget Bill Item I03.05(A)(l), as passed or as implemented by Defendants' plan, violate and/or threaten Arc members' ADA rights, as described above, including but not limited to their right to receive services in the most integrated setting appropriate to their needs. 167. Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103.05(A)(l), as passed or as implemented by Defendants' plan, cause Arc members irreparable harm, or place them at risk of irreparable harm, that has no remedy at law, including continued violation or threatening of their ADA rights and continued, unjustified and indefinite institutionalization.
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FIFTH CAUSE OF ACTION: BROUGHT BY THE ARC, IN ITS ORGANIZATIONAL CAPACITY, FOR
INJUNCTIVE RELIEF: DEFENDANTS SHOULD BE ENJOINED FROM BUILDING THE NEW INSTITUTION BECAUSE THEIR PLAN TO DO SO, and/or BUDGET BILL ITEM 103.05(A)(1), VIOLATE ARC MEMBERS' SECTION 504 RIGHTS 168. The Arc incorporates and realleges all of the foregoing as if fully set forth hereat. 169. Defendants' plan to build and fully populate a new segregated institution and
Budget Bill Item 103.05(A)(1), as passed or as implemented by Defendants' plan, violate and/or threaten Arc members' Section 504 rights, as described above, including but not limited to their right to receive services in the most integrated setting appropriate to their needs. 170. Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103.05(A)(I), as passed or as implemented by Defendants' plan, cause Arc members irreparable harm, or place them at risk of irreparable harm, that has no remedy at law, including continued violation or threatening of their Section 504 rights and continued, unjustified and indefinite institutionalization.
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SIXTH CAUSE OF ACTION: BROUGHT BY THE ARC, IN ITS OWN RIGHT FOR INJUNCTIVE RELIEF
DEFENDANTS SHOULD BE ENJOINED FROM BUILDING THE NEW INSTITUTION BECAUSE THEIR PLAN TO DO SO, and/or BUDGET BILL
ITEM l03.0S(A)(1), ARE INVALID, UNCONSTITUTIONAL AND UNENFORCEABLE PURSUANT TO THE SUPREMACY CLAUSE 171. The Arc incorporates and realleges all of the foregoing as if fully set forth hereat. 172. Injunctive relief is available to enjoin state officers from implementing laws or taking actions preempted under the Supremacy Clause of the Constitution of the United States. U.S. Const. art. VI, cl. 2. 173. Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103.05(A)(I), as passed or as implemented by Defendants' plan, violate and/or conflict with the ADA and Section 504 and stand as an obstacle to the accomplishment of the full purposes and objectives of those Acts, including, but not limited to, the objective of ensuring that people with disabilities receive services in the most integrated setting appropriate to their needs. 174. Unless Defendants are enjoined from implementing their plan, they will build the segregated institution called for in their plan and/or Budget Bill Item 103 .05(A)(l), causing Arc members and other persons with intellectual disabilities irreparable harm that has no remedy at law, including continued violation or threatening of their ADA and Section 504 rights and continued, unjustified and indefinite institutionalization.
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175. This irreparable harm, and/or the threat of it, will cause the Arc to continue to divert resources to counter or minimize the harm to its members, other people with intellectual disabilities, and its mission.
PRAYER FOR RELIEF WHEREFORE, your Plaintiff, The Arc of Virginia, Inc., respectfully prays that this Court grant it the following relief:
On Count One A. Enter a Declaratory Judgment setting forth Arc members' rights to receive appropriate services from the Defendants under the ADA, including but not limited to their right to receive services in the most integrated setting appropriate to their needs; B. Enter a Declaratory Judgment setting forth Defendants' obligations to provide appropriate services to the Plaintiffs under the ADA, including but not limited to their obligation to provide services in the most integrated setting appropriate to their needs; C. Enter a Declaratory Judgment holding that Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item l03.05(A)(l), as passed or as implemented by Defendants' plan, violate Arc members' ADA rights, including but not limited to their right to receive services in the most integrated setting appropriate to their needs;
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D. Grant the Arc their legal costs and attorneys' fees to the extent authorized by law; and
E. Grant the Arc such other and further relief that to this Court seems just and proper.
On Count Two A. Enter a Declaratory Judgment setting forth Arc members' rights to receive appropriate treatment services from the Defendants under Section 504, including but not limited to their right to receive services in the most integrated setting appropriate to their needs; B. Enter a Declaratory Judgment setting forth Defendants' obligations to provide appropriate services to Plaintiffs under Section 504, including but not limited to their obligation to provide services in the most integrated setting appropriate to their needs; C. Enter a Declaratory Judgment holding that Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103 .05(A)(l), as passed or as implemented by Defendants' plan, violate Arc members' Section 504 rights, including but not limited to their right to receive services in the most integrated setting appropriate to their needs; D. Grant the Arc their legal costs and attorneys' fees to the extent authorized by law; and E. Grant the Arc such other and further relief that to this Court seems just and proper.
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On Count Three A. Enter a Declaratory Judgment holding that Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item I 03.05(A)(l), as passed or as implemented by Defendants' plan, violate and/or conflict with the ADA; B. Enter a Declaratory Judgment holding that Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103.05(A)(l), as passed or as implemented by Defendants' plan, violate and/or conflict with Section 504; C. Enter a Declaratory Judgment holding that Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103 .05(A)(l), as passed or as implemented by Defendants' plan, are preempted by the ADA and are, therefore, unconstitutional and unenforceable pursuant to the Supremacy Clause of the Constitution of the United States; D. Enter a Declaratory Judgment holding that Defendants' plan to build and fully populate a new segregated institution and Budget Bill Item 103 .05(A)(l), as passed or as implemented by Defendants' plan, are preempted by Section 504 and are, therefore, unconstitutional and unenforceable pursuant to the Supremacy Clause of the Constitution of the United States; E. Order the Defendants to pay the Arc's attorneys fees and costs, to the extent authorized by law; F. Grant the Arc such other and further relief that to this Court seems just and proper.
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On Count Four A. Preliminarily and Permanently Enjoin the Defendants from implementing their plan to build a new segregated institution and fully populate it with SEVTC residents; B. To the extent that Budget Bill Item 103.05(A)(I) requires the construction of a new, segregated institution for SEVTC residents, preliminarily and permanently enjoin the Defendants from complying with it and from building that institution; C. Enjoin the Defendants to conduct appropriate individualized assessments of SEVTC residents - to include nationally recognized assessment tools by an independent evaluator acceptable to the Arc - to determine the actual needs of SEVTC residents; D. Enjoin the Defendants to meet the needs of SEVTC residents in the most integrated setting appropriate to their needs; E. Order the Defendants to pay the Arc's attorneys fees and costs, as authorized by the ADA; and F. Grant the Arc such other and further relief that to this Court seems just and proper.
On Count Five A. Preliminarily and Permanently Enjoin the Defendants from implementing their plan to build a new segregated institution and fully populate it with SEVTC residents;
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B. To the extent that Budget Bill Item I03.05(A)(I) requires the construction of a new, segregated institution for SEVTC residents, preliminarily and permanently enjoin the Defendants from complying with it and from building that institution;
C. Enjoin the Defendants to conduct appropriate individualized assessments of SEVTC residents - to include nationally recognized assessment tools by an independent evaluator acceptable to the Arc - to determine the actual needs of SEVTC residents;
D. Enjoin the Defendants to meet the needs of SEVTC residents in the most integrated setting appropriate to their needs;
E. Order the Defendants to pay the Arc's attorneys fees and costs, as authorized by Section 504; and
F. Grant the Arc such other and further relief that to this Court seems just and proper.
On Count Six A. Preliminarily and Permanently Enjoin the Defendants from implementing their plan to build a new segregated institution and fully populate it with SEVTC residents; B. To the extent that Budget Bill Item 103 .05(A)(I) requires the construction of a new, segregated institution for SEVTC residents, preliminarily and permanently enjoin the Defendants from complying with it and from building that institution; C. Order the Defendants to pay the Arc's attorneys' fees and costs, to the extent authorized by law; and
43

Case 3:09-cv-00686-REP Document 1 Filed 10/27/09 Page 44 of 62 PageID# 44
D. Grant the Arc such other and further relief that to this Court seems just and proper.
Dated: 27 October 2009 Respectfully Submitted: The Arc of Virginia, Inc. by counsel
The Virginia Office for Protection and Advocacy 1910 Byrd Avenue, Suite 5 Richmond, VA 23230 Tele: (804) 225-2042 Fax: (804) 662-7431 V. Colle~\II1l1
Jonathan G. Martinis, M . g Attorney '-'Virginia State Bar Numb : 37299
Virginia Office for Protection and Advocacy Attorney for Plaintiff 1910 Byrd Avenue, Suite 5 Riclnnond, VA 23230 Telephone: (804) 225-2042 Fax: (804) 662-7431 E-mail: Jonathan.Martinis@VOPAVirginia.Gov
Virginia Office for Protection and Advocacy Attorney for Plaintiff 1910 Byrd Avenue, Suite 5 Riclnnond, VA 23230 Telephone: (804) 225-2042 Fax: (804) 662-7431 E-mail: Kalena.Ek@VOPAVirginia.Gov
44

Case 3:09-cv-00686-REP Document 1 Filed 10/27/09 Page 45 of 62 PageID# 45
EXHIBIT A

us

~

Case
Budget Bill>

3:09-cv-00686-REP
Item 103.05 > 2009 Session

Document 1

Filed 10/2h7ttp/0://9leglP.staatgee.va4.u6sfocgfi-6b2infPleagpg5e04ID.ex#e?40961+bud+22-103.05

Department of Mental Health, Mental Retardation and Substaoce Abuse Services (720)

pdf view

103.05 (laoguage only)

A. Notwithstanding any other provision oflaw, the following provisions shall be implemented:

1. The Department ofGeneral Services (DGS), with the cooperation and support ofthe Department ofMental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS), shall rebuild and resize the Southeastern Virginia Training Center to a 75-bedfacility to serve profound and severely disabled clients;

2. The Director, Department ofPlanning and Budget, shall transfer $23,768,000 ofthe amount appropriated in Chapter 1 and Chapter 2,2008 Acts ofAssembly, Special Session Ifor project 17458 (Repair/Replace Southeastern Virginia Training Center) for the purpose stated in paragraph A.l. ofthis item;

3. The Department of General Services, with the cooperation and support ofthe Department ofMental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS), shall build, acquire, or renovate 12 community-based Intermediate Care Facilities (ICF-MR) and 6 MR Homes in Health Planning Region V Priority
should be given to projects which can be completed on existing state-ownedproperty within Health Planning
Region v,.

4. The Director, Department ofPlanning and Budget shall transfer $8,438,160 ofthe amount appropriated in Chapter 1 and Chapter 2, 2008 Acts ofAssembly, Special Session Ifor project 17457, (Repair/Replace Central Virginia Training Center) for the purpose stated in paragraph A.3. ofthis item.

5. q[the remaining appropriation in Chapter 1 and Chapter 2, 2008 Acts ofAssembly, Special Session Ifor project 17457, (Repair/Replace Central Virginia Training Center), $10,061,840 is designatedfor project 17733, (Construction of Community Housingfor Central Virginia).

6. The Governor, the Director, Department ofPlanning and Budget and the Director, Department ofGeneral Services, shall suspend the regular capital outlay process and initiate an expedited, fast track capital outlay process to ensure the timely availability ofboth the rebuilt and resized Southeastern Virginia Training Center and the 12 community-based Intermediate Care Facilities (ICF-MR) and 6 Mental Retardation Homes in Health Planning Region V. The Governor's expeditedprocess shall be submitted to the Chairmen ofthe House Appropriations and Senate Finance Committees for approval by July 15, 2009.

B. The Department ofGeneral Services (DGS), with the cooperation and support ofthe Department ofMental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS), shall examine the potential usesfor the Southeastern Virginia Training Center property and report on such uses to Chairmen ofthe House Appropriations and Senate Finance Committees by November 1, 2009.

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• Case 3:09-cv-00686-REP Document 1 Filed 10/27/09 Page 47 of 62 PageID# 47
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EXHIBITB

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, Case 3:09-cv-00686-REP Document 1 Filed 10/27/09 Page 48 of 62 PageID# 48

INFORMATION BRIEF

Virginia SIS Comparisons for SEVTC and Comprehensive Community Waiver Populations

June 23, 2009

Prepared by:

On Behalf of:

Jon Fortune Ed.D. & Karen J. Auerbach Ph.D.

C. Lee Price, Director

Human Services Research Institute

Office of

Developmental Services

7420 SW Bridgeport Road (#210)

The Department of Behavioral Health and

Developmental Services

portland, OR 97224

PO Box 1707

Richmond, VA 23218-1797

Introduction

Virginia has used the Supports Intensity Scale (SIS) for years to write better individual service plans for people in the community and to describe the support needs of the individuals being served. In this HSRllnformation Brief the results from the SIS assessments are described and compared for individuals from Southeastem Virginia Training Center (SEVTC) and individuals being served statewide by the state's comprehensive waiver.

Results -1. All Individuals Can Be Served in the Community

Overall, the 156 people at SEVTC and a sample group of 521 people in the Virginia

comprehensive waiver have SIS results that can be easily compared. One main conclusion is

that these individuals with developmental disabilities are all clinically eligible for Medicaid and

each person can be served by the Virginia community comprehensive waiver. The Virginia

community ranges of scores for (1) the SIS Support Needs Index (SNI), (2) the sum of Section 1

ABE standard scores (A is Home Living Activities, B is Community Living Activities, and E is Health

and Safety Activities) capturing key support needs, (3) the total Medical problems, and (4) the

total Behavioral problems for the individuals in the community encompass the range of scores

for all of the people at SEVTC. This means that there are people being successfully served with

SNI

mmunity who are like the people facing these challenges at SEVTC.

stitute

1

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Case 3:09-cv-00686-REP Document 1 Filed 10/27/09 Page 49 of 62 PageID# 49

Comparison of Virginia SIS Results for SEVTC and the Comprehensive Waiver

80 90

The 521 people being served in the community include people with the same support needs, behavioral challenges, and medical problems -

(1, Ihp. 19.. np.()nIFl livinn (11 Results - 2. People CurrenTlY LIVing <lJ ;>1:: V".. n<lve Considerable Needs for Support

Community Minimum Maximum

ABE

12

52

Medical

0

22

Behavior

0

20

SNI

60

143

SEVTC

ABE

27

42

Medical

0

22

Behavior

0

20

SNI

90

124

160
Support Needs Index
The 156 individuals currently living at the SEVTC have considerable needs for support and are depicted on the graph on the right. Though smaller than the sample group from the community, the 156 people from SEVTC have a higher need for general support needs that staff members, family, and friends can help with. They have statistically higher needs in the key areas of Home Living Activities, Community Living Activities, and Health and Safety Activities and more medical problems than the community sample. The behavioral problems measured by the SIS are statistically the same for the community sample and the people currently living at SEVTC. In the following summary table the SIS results for people from SEVTC represent the greatest needs of all the various comparison groups offered.
SIS Norm Group and State Waiver SIS Results

IL G=.r:.:o:=uI:.p-=o:...;.rs=:.ta.:::;t:=e_ _....LI...:..P..::.e~op"-'l.=...JIe

I

Total Support

ABE

Medical Behavioral

Hwnan Services Research Institute

2

, Case 3:09-cv-00686-REP Document 1 Filed 10/27/09 Page 50 of 62 PageID# 50

Comparison of Virginia SIS Results for SEVTC and the Comprehensive Waiver

SIS Norms SE Virginia Training Center (SEVTCI Sample from the Central Virginia Training Center
Virginia Waiver Oregon Colorado Georgia Nebraska Utah

Needs Index

1,306
156

(Range 38143)
100.00
111.96

Support Needs
(8-52) 30.00
35.37

Support

Support

(Range 032) 2.47
6.32

(Range 026) 4.99
5.25

75

108.95

34.73

3.72

Comprehensive Adult HCBS Waivers

521

101.74

30.56

401

101.00

29.95

3,631

99.88

29.14

5,206

98.20

28.72

288

100.42

30.11

3,759

100.09

29.96

2.43
3.27 2.83 1.95 3.23 2.29

3.80
4.77
4.98 6.13 3.79 4.81 4.36

Human Services Research Institute

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Case 3:09-cv-00686-REP Document 1 Filed 10/27/09 Page 51 of 62 PageID# 51 Comparison of Virginia SIS Results for SEVTC and the Comprehensive Waiver

Technical Notes
The SIS Support Needs Index (SNI) is an IQ like score representing support needs with an average of 100 and a standard deviation of 15. The sum of Section 1 ABE standard scores capturing key support needs is normed with the combined standard score of 30. The total Medical problems and total Behavioral problems are weighted-counts of the challenges people face in those important areas. The following tables provide more detailed comparisons of the SIS results from people at SEVTC and people using the Virginia community comprehensive waiver.

The range of these four SIS scores for the SEVTC institution group break into 3 roughly equal groups and the majority of scores of individuals in the Community group also fall into these 3 groups. These findings indicate that there are people in the Community with the same challenges as those faced by the people at SEVTC.

Support Needs Index Scores

SNI SCORES Institution Group Community Group

90 to 108 30% 52%

109 to 114 34% 15%

115 to 124 36% 11 %

TOTAL 100%
78%

Sum of Section 1 ABE Scores

SUM ABE SCORES Institution Group Community Group

27 to 33 30% 42%

34 to 36 31% 18%

37 to 42 39% 10%

TOTAL 100%
70%

Section 3a Medical Scores

MEDICAL SCORES Institution Group Community Group

Oto 2 28% 68%

3 to 7 39% 26%

8 to 22 33% 6%

TOTAL 100%
100%

Section 3b Behavioral Scores

BEHAVIORAL SCORES
Institution Group
Community Group

oto 2
35% 41%

3 to 7
35% 36%

8 to 20
30% 23%

TOTAL
100% 100%

Human Services Research Institute

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Case 3:09-cv-00686-REP Document 1 Filed 10/27/09 Page 52 of 62 PageID# 52 Comparison of Virginia SIS Results for SEVTC and the Comprehensive Waiver

Virginia Descriptive Statistics

Groups from Virginia

Minimu Maximu Averag

Std.

People m

m

e

Deviation

community Sum ABE Stand SUM 521

12

52

30.56

6.406

of ABE Standard

Score

Section3aTotai

521

0

22

2.43

3.138

Section 3a Medical

Total

Section3bTotal

521

0

20

4.77

4.592

Section 3b Behavior

Total Supports Needs

,

521

60

143 101.74 13.441

Index

leaving institution

Sum ABE Stand SUM 156

27

of ABE Standard

Score

42

35.37

3.283

Section3aTotai

156

0

Section 3a Medical

Total

22

6.32

5.284

Section3bTotai

156

0

Section 3b Behavior

Total

20

5.27

4.697

Support Needs Index 156

90

124 111.96 6.569

Sum ABE Stand SUM of ABE Standard Score
Section3aTotai

Virginia Group Statistics

Groups from Virginia

Std. People Average Deviation

community

521

30.56

6.406

leaving institution

156 35.37

3.283

community

521

2.43

3.138

Std. Error Mean .281 .259
.137

Human Services Research Institute

5

" Case 3:09-cv-00686-REP Document 1 Filed 10/27/09 Page 53 of 62 PageID# 53 Comparison of Virginia SIS Results for SEVTC and the Comprehensive Waiver

leaving institution 156

Section3b Total

community

521

Section 3b Behavior leaving institution 156 Total

Support Needs Index community

521

group

leaving institution 156

6,32 4.77 5.25
101.74
111.96

5.284 4.592 4.697
13.441
6.569

.425 .201 .378
.589
.519

Virginia Independent Samples Test

Levene's Test for Equality of Variances

t-test for Equality of Means

95% Confidence Interval of the Difference

F Sig. t

Sig.

Std.

2- Mean Error

taile Differ Differe

df d ence nce Lower Upper

Sum ABE Equal

Stand SUM variances

of ABE

assumed

Standard Equal

Score

variances

not

assumed

48.888 .000 -9.109 674 .000 -4.862
-12.733 517.08 .000 -4.862 8

.534 -5.909 -3.814 .382 -5.612 -4.111

Section30T Equal otol Section variances 30 Medical assumed

95.227 .000 -11.449

674 .000 -3.918 .342 -4.590 -3.246

Hwnan Services Research Institute

6

, Case 3:09-cv-00686-REP Document 1 Filed 10/27/09 Page 54 of 62 PageID# 54
Comparison of Virginia SIS Results for SEVTC and the Comprehensive Waiver

Equal variances not assumed

Section3b Total Section 3b Behavior Total

Equal variances assumed
Equal variances not assumed

Support Needs Index

Equal variances assumed

Equal variances not assumed

-8.774 187.33 .000 -3.918 4

.508 .476 -1.191 674 .234 -.503

-1.175 247.77 .241 -.503 1

63.371 .000 -9.246

674 .000

-

10.324

-13.152 540.38 .000

-

2

10.324

.447 -4.799 -3.037

.423 -1.333 .326 .428 -1.346 .340

1.117

- -8.131

12.516

.785

- -8.782

11.866

Appendix: Validity Results of the SIS
./ Face Validity. Developed to measure the construct of supports, the SIS has greater face validity than the ICAP or other traditional assessments. The assessment of support needs using the SIS is done directly by persons with first-hand knowledge of the individual. The SIS directly measures the level of supports needed to enable an individual to participate successfully in the life of his or her community. It necessarily looks at more than skills and deficits, considering motivation, health, etiology, problem behavior, environment and other variables influencing the need for supports. By measuring individual support needs directly, it avoids the error inherent in inferring support needs statistically based on adaptive and maladaptive behavior scales. It is transparent. The SIS assessment of needed supports is more explicit and straightforward than other traditional instruments, and hence is a more open platform for the stakeholder deliberation and decision-making that attends individual resource allocation and payment processes. The SIS uses multi-point scales to rate the type (monitoring - full physical assistance), frequency (none to hourly) and intensity (no time to more than 4 hours in a 24 hour period) of supports needed by an individual to participate in 57 distinct aspects of life in their communities. Behavioral, health and other factors affecting support needs are considered .
./ Content Validity. To assure its content validity, the SIS was constructs were tested by 74 professionals working in the field of developmental disabilities. Using a Q-sort methodology, they narrowed the 130 candidate support indicators to 57, and reduced the 12 domains containing these indicators to seven. This makes the instrument more concise while still

Human Services Research Institute

7

• Case 3:09-cv-00686-REP Document 1 Filed 10/27/09 Page 55 of 62 PageID# 55
•
Comparison of Virginia SIS Results for SEVTC and the Comprehensive Waiver
asking the right questions. Efforts have been made to see the efficacy of the SIS in predicting extraordinary support needs (N=274)'.
,( Intemal Consistency. The SIS is intemally consistenf2. It has good inter-item reliability (all items or subscales in the measure are measuring the same construct). The intemal consistency reliability coefficients for all the SIS subscales. computed using Cronbach's Alpha method3• exceeded .90. which is the level widely accepted as demonstrating an acceptable level of intemal consistency in assessment scales. The SIS also has a high degree of inter-rater reliability4: the SIS Index (total score) correlation coefficient was .87 (same interviewer. different respondent) •.90 (different interviewer. same respondents), and .85 (different interviewer and different respondents) (N=40).
,( Construct and criterion validity. The high correlation of SIS subscale scores with one another shows that the SIS measure has good construct validity. meaning that scores on the SIS are highly correlated with scores on measures of other constructs (for example. adaptive behavior and intelligence) that are believed to be correlated with the construct measured by the SIS. To establish its criterion validity. the SIS measures of support needs were correlated with an independently constructed "criterion measure" - a Likert-type scale of support needs. All correlation coefficients exceeded the .35 minimum level required to demonstrate criterion-related validitys. Support for the construct validity of the Supports Intensity Scale based on clinician rankings of need (N=50) was explored in Ontario Canada in 2009.6

1 Wehmeyer. M.. Chapman. T. E.• Little. T.D .. Thompson. J. R.• Shalock. R.. and Tasse. M. J. Efficacy of the Supports Intensity Scale (SIS) to Predict Extraordinary Support Needs. American Journal of Intel/ectual and Developmental DIsabilities. 114( 1). 3-14.
2 Tasse. M. J. Thompson. J. R. & McLaughlin. C. (2006). Inter·interviewer and inter-respondent concordance on the Supports Intensity Scale. Poster presentation at the International Summit for the Alliance on Social Inclusion. May 3-5. Montreal, Canada.
3 Cronbach. L.J. (1951). Coefficient alpha and the intemal structure of fests. Psychometrika. 16(3). 297-334. 4 Thompson. J. (Feb 21. 2006). SIS reliability: preliminary findings and procedures. Email tram J. Thompson to J. Ashbaugh.
5 Hammill. D.D.• Brown. L.• and Bryant. B.R. (1992). A consumer guide to tests in print. Austin. TX: Pro-Ed.
6 Weiss. J. A.• Lunsky. Y.• Tasse. M. J.• & Durbin. J. (2009). Support tor the construct validity ot the Supports Intensity Scale based on clinician rankings of need. Research in Developmental Disabilities. 30, 933-941.

Human Services Research Institute

8

• Case 3:09-cv-00686-REP Document 1 Filed 10/27/09 Page 56 of 62 PageID# 56
•
EXHIBITC

~ILE NCo.a78s6e 30:70/906-cv'-00906186:60-7REPID:DDMoHcMuRmSAeSnt 1 Filed 10/27/09FAPXa:8g0e4357716o6f3682 PageID# 57PAGE 1/ 3

JAMES S. RErNliARD. M.D, COMMISSIONER

COMMONWEALTH ofVIRGINIA
DEPARTMENt OF BENA VIORAL HEALTH liND DEVELOPMENTIIL SERVICES
Post Office 80x 1797 Ridunon4. Virginia 23218·1797
July 6, 2009

Telephone (804) 786-3921 VoiocrroD (804)371·8977
www.dbhd5,virginia.gov

Jonathan G. Martinis, Managing Attorney Virginia Office for Protection and Advocacy 19JO ByrdAvenue, Suite 5 Richmand, Virginia 23230
Dear Mr. Martinis:
I am responding to your information request submitted via facsimile on June 26, 2009. JtTUst my response finds you well, too. Your letter requested the following information:
(T)he committee agreed to the following wording tbr the tirst statement:
Provide services and supports for individuals who present complex medical and/or behavioral needs that cannot be met in traditional community homes, with goals and efforts to allain appropriate community services.
Will you please identitY who these "individuals" are anticipated 10 be and trom where they will come'? In other words, will current SRVTC residents make up this group or will the "individuals" be drawn trom other institutions/the community'!
The answer to thi.\" question is that the process/or determining the identity o;ffhe individuals who will he o;{fered SEVTC beds is currently under development. No one has yel been selected a.\" a candidateji,r an SEVTC hed at this date.
You asked us t{l provide you with a copy of the "purpose statement" discussed in the Summary. Attached is a copy of the statement "Future Role/Purpose ofSEVTC."
Please feel free to contact me if you have any questions.
Sincerely,

James S. Reinhard, M.D

~ILE NCo.a7s8e6 30:70/90-6cv'-009061866:0-R8 EPID:DDMoHcMumRSeASnt 1 Filed 10/27/09FAPXa:g80e4537816o6f3682 PageID# 58 PAGE 2/ 3
SEVTC Advisory COmmittee - May 26, 2009 Final Approved by Committee 5/26/09
Future Role/Purpose of SEVTC • Provide services and supports for individuals who present complex medical
and/or behavioral needs that cannot currently be met in traditional community homes, with goals and efforts to attain appropriate community services.
• Provide services and supports for individuals who present behavioral challenges that require short-term, intensive intervention to return to the community
• Provide services and supports for individuals that require short-term respite and/or stabilization
• Provide services and supports for individuals that require short-term medication stabilization
• Provide services and supports for facility and community residents through the Regional Community Support Center

~ILE CNaos.7e863:0079/-0c6v-0'00968166-:R08EP IDD:DoMcuHMmReSnAtS 1 Filed 10/27/09 FPAaXg:e8054937o16f 66328 PageID# 59 PAGE 3/ 3

TofJ Free AssisUlncc \ -800-552-3962 (TTY Or Voice)

CQMMONWEALTH of VIRGINIA
Virginia Office for Protection and Advocacy 1910 Byrd Avenue, Suite 5 Richmond, VA 23230
25 June 2009

(804) 22S-204Z FAX (504) 062.10S7
.WWW.vopa.sultc:.V8.U:(

Dr. James Reinhard, Com,inissioner Virginia Department ofl\1ental Health, Mental Retardation And Substance Abuse Services 1220 Bank Street Richlnond, VA 23219

Dear Dr. Reinhard:

I hope this letter finds yoil well. I am writing to request information about the 75 bed institution your
Department plans to buil~ as a replacement for Southeastern Virginia Training Center (SEVTC).

I have reviewed the SEVTC Advisory Committee Meeting Summary for the May 26, 2009 meeting (copy attached). Page three ofthe Summaty references the "Updated Statement on the Future RoIe/PUIpose of SEVTC;" The document states:

[T)he committee agreed to the following wording for the :first statement:

Provide silrV\ces and supportS for individuals who present complex medical andlor behaviora;! needs that cannot be met in traditional community homes, with goals and efforts to attain appropriate community services.
,.'
Will you please identify who these "individuals" are anticipated ~ be and from where they will come? In other words, will ClllTf'Ilt SEVTC reaidents make up this group or will the "individuals" be drawn from other institutionsltllc community? Finally, please provide me with a copy of the "pUIpose statement" discuss~ in the Summary. Ifthe statement is olllya draft. please so state.

Thank you for you courtesy and cooperation with regard to this matter. If you have any questions ~oncerni\lg this request, :please feel free to contact me at (804) 662-7306.

Virginia's Protection and Advocacy System

le'd

Serving Persuns with Disabilities
88991.!.86 Ol 18j;>L 299 j;>es

6002 92 Nnr

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Case 3:09-cv-00686-REP Document 1 Filed 10/27/09 Page 60 of 62 PageID# 60

EXHIBITD

· .. '

Case 3:09-cv-00686-REP Document 1 Filed 10/27/09 Page 61 of 62 PageID# 61

Mark E. Rubin
Counselor to the Governor

COMMONWEALTH of VIRGINIA
Office of the Governor
August 18, 2009

V. Colleen Miller, Esquire Executive Director Virginia Office for Protection and Advocacy 1910 Byrd Avenue, Suite 5 Richmond, VA 23230
Dear Ms. Miller:
Governor Kaine is in receipt of your request for records made to him as well as Secretaries Tavenner and Baskerville made in accordance with the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).
Your request for information is as follows:
"...we ask that you, Secretary Tavenner and Secretary Baskerville forward us copies of all assessments, evaluations, studies or documents that were created or reviewed prior -to or leading to the conclusion that a new 75 bed institution is needed or appropriate. These should include any individualized assessments (please redact the names or personal identifying information of any persons with disabilities) indicating that a new institution is required to house people with disabilities and any documents indicating how, specifically, the 75 bed census was determined."
We completed a thorough search of our records, including those within the Department of General Services and the Department of Behavioral Health and Developmental Services. There are no documents in the possession of the Govemor's office, Secretary Tavenner or Secretary Baskerville that are responsive to your request.
As you are aware, Governor Kaine proposed to close Southeastem Virginia Training Center (SEVTC) by June 30, 2009 in the budget he submitted to the 2009 General Assembly. It was the General Assembly that established the Appropriations Act
Patrick Henry Building. 1111 East Broad Street· Richmond, Virginia 23219· (804) 786·2211 • TTY (800) 828·1120 Mark.Rubin@governor.virginia.gov • www.governor.virginia.gov

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Case 3:09-cv-00686-REP Document 1 Filed 10/27/09 Page 62 of 62 PageID# 62
V. Colleen Miller, Esquire August 18, 2009 Page 2

language to construct a new 75 bed facility at SEVTC. Should you have any questions or would like to discuss this matter further, please do not hesitate to contact me.
Sincerely,

Mark E. Rubin
c: The Honorable Marilyn B. Tavenner, Secretary of Health and Human Resources The Honorable Viola O. Baskerville, Secretary of Administration James B. Reinhard, MD, Commissioner, Department of Behavioral Health & Developmental Services Rich Sliwoski, Director, Department of General Services

 
 Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 1 of 78 PageID# 68

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
THE ARC OF VIRGINIA, INC.,

[[,'I_~u: l ... )/
','(l''l7l;> d1'~ !
CLE~R""K;-,U"","'"S,"""OISTRICT COURT VA

Plaintiff,

MEMORANDUM OF LAW

v,

TIMOTHY M. KAINE, in his official capacity as Governor of the Commonwealth of Virginia, : et aI.,

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION
1, INTRODUCTION This Motion asks the Court to enter a Preliminary Injnnction prohibiting the Defendants
from building and fulIy populating an nnwarranted and nnlawfully segregated institution. Federal law gives people with disabilities a right to be free from discrimination in the
provision of government services, including the right to receive those services "in the most integrated setting" appropriate to their needs. See, The Americans with Disabilities Act ("ADA"), 42 V.S.c. § 12132; 28 C.F.R. § 35.130(d); Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 V.S.c. § 794; 28 C.F.R. § 41.51. This right led the Supreme Court to conclude that "nnjustified institutional isolation of persons with disabilities is a form of discrimination." Olmstead, et al. v. L.e., et aI., 527 U.S. 581, 600 (1999).

1

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 2 of 78 PageID# 69
In defiance ofthe ADA, Section 504 and the Olmstead decision, Defendants plan to build a new segregated institution and fully populate it with 75 residents of Southeastern Virginia Training Center ("SEVTC"), a state institution for people with intellectual disabilities. Defendants are taking this action without conducting appropriate individual assessments to determine if a new segregated institution is necessary to serve SEVTC residents or conducting assessments to determine how many, if any, SEVTC residents require institutional services at all. Even worse, they are doing so in the face of a state-sponsored survey concluding that all SEVTC residents can be served in integrated community settings.
Instead ofindividually assessing and determining the needs of SEVTC residents and finding ways to meet those needs in the most integrated setting possible, as required by federal law, Defendants' plan calls for them to choose 75 SEVTC residents - an arbitrary number that even a Defendant concedes is not the product of any "science or study" - and institutionalize them, regardless of whether they actually "need" institutional care.
Plaintiff, The Arc of Virginia, Inc. ("the Arc") filed this action on behalf of its members and in its own right, asking the Court to enter a Declaratory Judgment that Defendants' plan, and/or the Virginia Budget Bill Item that precipitated it, violate its members' rights under the ADA and Section 504 and are preempted by those Acts. The Arc also seeks an Injunction prohibiting Defendants from implementing their plan and building a segregated institution.
In this Motion, the Arc asks this Court to enter a Preliminary Injunction prohibiting the Defendants from implementing their plan during the pendency of this action. Doing so will prevent the Arc and its members from suffering irreparable harm and "preserve the status quo until the rights of the parties can be fairly and fully investigated and determined by strictly legal
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proofs and according to the principals of equity." Wetzel v. Edwards, 635 F.2d 283, 286 (4th CiT. 1980) (citation omitted).

II. RELEVANT FACTUAL BACKGROUND

A. Southeastern Virginia Training Center

SEVTC is located on a 120 acre compound in an isolated section of Chesapeake,

Virginia. See, Affidavit of Mark Stevens (hereinafter "Stevens Affidavit"), attached hereto and

made a part of this Memorandum as Exhibit A, '\[8. To enter SEVTC by car, one must tum off

of Military Highway 13 onto Smith Avenue and then snake through an industrial park, past "No

Trespassing" signs. Stevens Affidavit, '\['\[9-10

The SEVTC compound is segregated from the residential community on all sides:

•

SEVTC is segregated from the residential community on its Eastern

border by a trench that is approximately one quarter mile long, five feet

wide and two feet deep. Where the trench ends, SEVTC is segregated

from that community by an approximately six foot high fence. It is also

segregated from that community by multiple "No Trespassing" signs. All

of the "No Trespassing" signs face the community, telling community

members that they are not welcome at SEVTC.

•

The SEVTC compound is segregated from the industrial park along its

Northern border by "No Trespassing" signs.

•

The SEVTC compound is segregated from the community along its

Southern border by Interstate 64.

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•

The SEVTC compound is segregated from the business development

along its Western border by a six foot high fence.

Stevens Affidavit, ~~ 12-15

If visitors from the community can ford these boundaries, they then must report to

SEVTC's main office to request admission. Under SEVTC's visitation policy, it can deny any person or organization access to the compound, at its discretion. l This is true even if an SEVTC

resident has never been declared incompetent by a Court and wants to see the visitor. Stevens

Affidavit, ~~ 15-17.

SEVTC has used this authority to restrict residents' contacts with organizations it does

not approve of. For example, when the Arc formed a Chesapeake chapter to advocate for the

rights of its members and other SEVTC residents, its self-advocate went to SEVTC to give

residents information about the Arc and about their rights. The self-advocate also offered

SEVTC residents membership in the Arc. Stevens Affidavit, ~ 19; Affidavit ofJamie Trosclair

(hereinafter "Trosclair Affidavit"), attached and made a part of this Memorandum as Exhibit B,

~~ 19-21 .

When SEVTC's director, Robert D. Shrewsberry, Ph.D., found out about the Arc's visit,

he responded by barring the Arc and its staff from doing so. However, SEVTC allows members

of other groups - presumably ones that have Dr. Shrewsberry approval - to visit SEVTC, solicit

membership, distribute information and conduct meetings on the SEVTC compound. SEVTC

even provides advertising for one such group, known as "Parents and Friends ofSEVTC."

Stevens Affidavit, ~~ 19-21.

1 SEVTC cannot deny access to organizations that have a statutory right to visit the compound, such as the Virginia Office for Protection and Advocacy (VOPA).
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When Dr. Shrewsberry was asked why SEVTC provides such support to that group, he replied in a letter, "we see [Parents and Friends of SEVTCj as having a direct interest in the operation of the Center. The Arc does not enjoy such status." Stevens Affidavit, '1[22.
SEVTC also restricts residents' ability to leave the compound. For example, under SEVTC policy, it can, in its discretion, determine that a resident is not "competent" to leave the compound and deny bim or her the opportunity to see or mingle with members of the community at large. SEVTC can do so even when a person has not been found incompetent by a court of law. Stevens Affidavit, '1['1[23-24.
B. Facts Leading to This Action Approximately 150 Virginians with intellectual disabilities (formerly known as "mental retardation") live at SEVTC. There are members ofthe Arc who live at SEVTC and Arc members living in the community who are at risk of being admitted to SEVTC. Trosclair Affidavit, '1['1[11-12. In his proposed budget for 2010, Defendant, TimothyM. Kaine ("the Governor"), proposed closing SEVTC. In an interview, the Governor stated that money spent on that institution should be put "into community services to treat people with mental illness and mental retardation." The Governor further stated that SEVTC residents "don't need to be institutionalized." See, WAVY-TV, "Kaine on the economy and 'going green,'" available at http://www.wavv.comldpp/news/local wavy kaine budget update southeastern 20090112 After the Governor announced bis desire to close SEVTC and serve its residents in integrated community settings, Defendants James S. Reinhard ("the Commissioner") and
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! •
Marilyn B. Tavenner ("The Secretary of Health and Human Resources'') testified to the Virginia General Assembly and spoke publicly about the need to and benefits of closing that institution.
However, instead of closing SEVTC, the Virginia General Assembly passed Budget Bill Item 103.05(A)(I), which ordered that a new 75-bed "facility" be built. A copy of Budget Bill Item 103.05, which contains Item 103.05(A)(l), is attached to and made a part of this Memorandum as Exhibit C.
Budget Bill Item 103.05(A)(1) directs the Department of Mental Health, Mental Retardation and Substance Abuse Services ("DMHRMSAS," now known as the Department of Behavioral Health and Developmental Services ("DBHDS")) and the Department of General Services ("DGS") to "rebuild and resize the Southeastern Virginia Training Center to a 75-bed facility to serve profound and severely disabled clients" and allots $23,768,000.00 for construction.
The Commissioner and Deputy Commissioner ofDMHMRSASIDBHDS have publicly stated that they do not know how the General Assembly came up with the 75-bed census for the new institution. For example, Deputy Commissioner Heidi Dix publicly stated that the Department felt that number is "arbitrary, "not based on the needs of any SEVTC residents and was chosen because the General Assembly thought it was a "nice, round number." Trosclair Affidavit, ~~ 51-55. The Commissioner publicly stated that the number was not the result of any "science or study." Trosclair Affidavit. ~30-33.
The General Assembly also passed Budget Bill Item 103 .05(A)(3), which directs DGS and DMHMRSASIDBHDS to "build, acquire or renovate 12 community based Intermediate Care Facilities (ICF-MR) and 6 MR Homes" for people with intellectual disabilities.
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Despite his previously stated opposition to building a facility, and without having conducted or reviewed any individualized assessments concluding that a new segregated institution was necessary or appropriate, the Governor approved and signed the Commonwealth's budget for 2010, including Budget Bill Item 103.05(A)(I) and Budget Bill Item 103.05(A)(3). The Governor could have exercised his "line item veto" power to remove Budget Bill Item 103.05(A)(1), but chose not to do so.
Since that time, each of the Defendants - the Governor, the Commissioner, the Secretary of Health and Human Resources, Secretary of Administration Viola O. Baskerville ("the Secretary of Administration") and Director ofDGS Richard F. Sliwoski ("the Director") - have been implementing or working to implement Budget Bill Item 103.05(A)(1).
Two months after the Governor signed the Commonwealth's budget, the Governor received a study removing any justification for building a new institution. In June of 2009, a state-sponsored study concluded that all SEVTC residents "Can Be Served in the Community," confirming the Governor's beliefthat SEVTC residents "don't need to be institutionalized." The study was performed by the Human Services Resource Institute, pursuant to a contract with DMHMRSASIDBHDS (hereinafter "DBHDS"), and was based on medical records and evaluation data collected and kept by DBHDS. A copy of the study is attached to and made a part of this Memorandum as Exhibit D.
Despite having access to a report flatly stating that no SEVTC residents required institutionalization, Defendants continued to work on a plan to ensure that 75 SEVTC residents will be forced to live in the new segregated institution. Defendants also refused the Arc's request to suspend construction to further examine the issue in light of the study, its conclusions and recommendations: Trosclair Affidavit, ~~ 26-28.
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Indeed, Defendants moved to implement Budget Bill Item 103.05(A)(I) despite having no idea how many SEVTC residents, if any, actually required services in an institutional setting. For example, on 6 July 2009, the Commissioner responded to a request for information asking whether current SEVTC residents will make up the population of the new institution. The Commissioner stated "[TJhe process for determining the identity of the individuals who will be offered SEVTC beds is currently in development. No one has yet been selected as a candidate for an SEVTC bed at this date." A copy of the Commissioner's letter is attached to and made a part ofthis Memorandum as Exhibit E.
Similarly, on 19 August 2009, counsel for the Governor responded to a request for information by admitting that the Defendants did not have any "assessments, evaluations, studies or documents that were created or reviewed prior-to or leading to the conclusion that a new 75 bed institution is needed or appropriate." Counsel also admitted that the Defendants did not have "any individualized assessments ... indicating that a new institution is required to house people with disabilities" or any documents "indicating how, specifically, the 75 bed census was determined." A copy of counsel's letter is attached to and made a part of this Memorandum as Exhibit F.
Instead of performing such evaluations or assessments to determine the actual needs of SEVTC residents and forming a plan to meet those needs in the most integrated setting appropriate to them, as required by the ADA, Section 504 and Olmstead, the Defendants simply created a plan that will result in 75 people being placed in a new segregated institution. The Commissioner announced Defendants' plan on 13 August 2009, at a meeting of the SEVTC Advisory Council.
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Under the Defendants' plan, a new segregated 75-bed institution will be built on the SEVTC compound, under the auspices ofDGS and DBHDS. Trosclair Affidavit, ~ 31. In response to a question, the Commissioner admitted that the 75-bed census for the new institution was not arrived at through any "science or study." Trosclair Affidavit, ~ 33.
The Commissioner further stated that, under the Defendants' plan, all SEVTC residents will be evaluated. Based on the evaluations, the 65 that score the "lowest" will be placed in the new institution2 The other 10 beds in the new institution will be used by SEVTC residents who are transitioning from or to community settings. Trosclair Affidavit, ~~ 34-36.
Under the Defendants' plan, the remaining SEVTC residents will be permitted to live in the community-based Intermediate Care Facilities for the Mentally Retarded ("ICF-MRs") and MR homes provided for in Budget Bill Item 103.05(A)(3). Id. at_.
Subsequently, a DBHDS representative publicly admitted that there will be "very little" to no difference between the service needs ofthe residents forced to live in the new institution and the needs of those permitted to live in the community settings. Id. at __.
Under Defendants' plan, they will sign a contract for the construction in December of 2009 and construction on the new institution will begin in August 2010. Trosclair Affidavit, ~ 46.
2 Having a "lower" score in relation to other individuals is not an accepted way of determining whether an individual requires institutional services.
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III. ARGUMENT: THIS COURT SHOULD ENJOIN THE DEFENDANTS FROM IMPLEMENTING THEIR PLAN AND BUILDING A SEGREGATED INSTITUTION DURING THE PENDENCY OF THIS CASE.
A. Standard of Review Prohibitory Injunctions, like the one sought by the Arc, are aimed at "preserving the status quo so that the court can render a meaningful decision after a trial on the merits." Rum Creek Coal Sales, Inc. v. Caperton, et al., 926 F.2d 353,359 (4th Cir. 1991). To that end, the Fourth Circuit has held "where serious issues are before the court, it is a sound idea to maintain the status quo ante litem." Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189,194-195 (4th Cir. 1976). Blackwelder sets out the four factors a Court must consider when reviewing a Motion for a Preliminary Injunction:
(l)the likelihood of irreparable harm to the plaintiff if the preliminary injunction is denied;
(2) the likelihood of irreparable harm to the defendant if the requested relief is granted;
(3) the likelihood that the plaintiff will succeed on the merits; and (4) the public interest Blackwelder, 550 F.2d at 195-196. The Court should first compare the harms suffered by the parties. If the ''balance is struck in favor of the plaintiff," the Court should grant the Motion if "grave or serious questions are presented." Otherwise, the Court should grant the Motion if the plaintiff has shown a "likelihood of success" on the merits. Id at 196.
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B. The Arc's Motion Satisfies the Blackwelder Criteria and Should be Granted. 1. The Arc will suffer irreparable harm if its Motion is denied.
Both the Arc and its members will suffer irreparable harm if this Motion is denied. If Defendants are permitted to implement their plan and build a segregated institution, Arc members living at SEVTC or at risk of being admitted to SEVTC will face the imminent threat of "unjustified institutional isolation," in violation of their ADA and Section 504 rights. See, e.g., Olmstead, 527 U.S. at 600. As the Fourth Circuit has held, "a constitutional or federal statutory violation creates a special harm." Rum Creek, 926 F.2d at 361.
Similarly, as shall be seen in section 2, below, Defendants will suffer little or no harm if this Motion is granted. Therefore, this Court should be more likely to find that the Arc will suffer irreparable harm if its Motion is denied. Blackwelder, 550 F.2d at 196 ("the decision to grant preliminary relief cannot be intelligently made unless the trial court knows how much the precaution will cost the defendant. If it costs very little, the trial court should be more apt to decide that the threatened injury is "irreparable" for purposes of interlocutory relief.").
a. Arc members will suffer irreparable harm if this Motion is denied. It is undeniable that a state-sponsored study found that each and every SEVTC resident, necessarily including the Arc members at SEVTC, can be served in the community. Exhibit D. Therefore, SEVTC residents forced to live in the new segregated institution, by definition, will suffer irreparable harm because they will not be served in the most integrated setting consistent with his or her needs in violation of their rights under the ADA and Section 504. See, 28 C.F.R. § 35. 130(d) (ADA), 28 C.F.R. § 41.51 (Section 504). As the Commissioner has admitted, Defendants have not yet determined which SEVTC residents will be placed in the new
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institution. Exhibit E. Therefore, all SEVTC residents have a real, imminent and equal chance of being unnecessarily institutionalized, in violation oftheir federal rights.3
As set forth in section 4, below, this threat of unnecessary institutionalization violates the
ADA and Section 504 rights of the Arc members at SEVTC, including their right to be served in
the "most integrated setting." The Olmstead Court aptly describes the irreparable harm people
with disabilities suffer when they can live in the community but are forced to live in institutions:
a life that is "severely diminished" in areas including "family relations, social contacts, work
options, economic independence, educational advancement and cultural enrichment." 527 U.S. at
600. For these, among other, reasons, the Court concluded that "unjustified institutional
isolation of persons with disabilities is a form of discrimination." !d.
Arc members forced to live in the new segregated institution will also suffer the "special
harm" of additional violations of their rights under the ADA and Section 504. While 75 SEVTC
residents will be placed in the segregated institution, all other SEVTC residents will be placed in
the more integrated, community based ICF-MRs and MR Homes called for by Budget Bill Item
103.05(A)(3).
However, as a DBHDS representative stated, there is "very little" to no difference
between the service needs of the residents who will be placed in the institution and those who
3 If Defendants argue that this case is not ripe because they have not finally selected the SEVTC residents who will be placed in the new institution, that argument is without merit. "One does not have to await the consummation of threatened injnry to obtain preventative relief." Friends o/the Earth v. Gaston Cooper Recycling Corp., 204 F.3d 149,160 (4th Cir. 2000) (citations omitted). Furthermore, because the Arc seeks to prevent Defendants from constructing a new building, it must do so with "haste and dispatch." Quince Orchard Valley Citizens Association, Inc. v. Hodel, et al., 872 F.2d 75, 80 (4th Cir. 1989). If the Arc were to wait to file suit until the new segregated institution was completed and the people forced to live in it were chosen, it could harm the Defendants and the taxpaying citizens of the Commonwealth by causing costly "disruptions of origoing public planning and construction." Id. By taking action now, based upon the very real threat of institutionalization facing its members, the Arc is attempting to minimize the harm to the people it represents and to the Commonwealth.
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will live in community-based settings. Trosclair Affidavit, ~ 47. Therefore, Defendants' plan creates an unlawful disparity in services between those residents, including Arc members, who will be forced to live in the segregated institution and those that will be permitted to live in the community settings. This disparity irreparably harms those SEVTC residents, including Arc members, in violation oftheir rights under the ADA and Section 504. See, 28 C.F.R. § 35 .130(b)(1 )-(8) (detailing prohibited acts of discrimination under the ADA, including "Provid[ing] different or separate aids, benefits, or services than is provided to others when such action is not necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others."); 29 U.S.C. § 794 (detailing prohibited acts of discrimination under Section 504).
b. The Arc itself will suffer irreparable harm if this Motion is denied. In addition, the Arc, as an entity, will suffer irreparable harm if its Motion is denied. As is more fully described in the Trosclair Affidavit, the Arc has been forced to divert staff and monetary resources from previously planned proj ects and actions in order to oppose the Defendants' plan and Budget Bill Item 103.05(A)(l). This diversion of resources, and concomitant reduction of other work, will continue ifthis Motion is denied. The Fourth Circuit has held that organizations suffer irreparable harm when they "devote[] significant resources identifying and counteracting the defendant's ... discriminatory ... practices." Coles v. Havens Realty Corporation, et al., 633 F.2d. 384, 390 (4th Cir. 1980) affirmed sub nom Havens Realty Corporation, et al. v. Coleman, 455 U.S. 363 (1982). As set forth in the Trosclair Affidavit, the Arc has taken specific steps to oppose Defendants' plan and Budget Bill item 103.05(A)(1). To do so, the Arc has expended resources to advocate to the SEVTC Advisory Council that a segregated institution should not be built; to
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fonn a new chapter to serve members and other people in or at risk of being admitted to SEVTC; to issue oral and written statements opposing the new institution; and to advocate to policymakers, including some of the Defendants, that a segregated institution should not be built; Trosclair Affidavit, ~~ 59-64.
So that it could take these steps, the Arc has diverted resources from previously planned advocacy work including advocating for an end to the waiting list for Medicaid services for its members; educating policymakers about issues important to its members; and upgrading its intemet site to provide more infonnation to its members. Trosclair Affidaivt, ~~ 59-64. If this Motion is denied, the Arc will be forced to continue diverting its scarce resources in order to educate its members and other residents about their right to live in the most integrated setting, as opposed to the new institution, and to advocate that those residents should not be among the 75 placed in the new institution. Trosclair Affidavit, ~~ 59-64.
Consequently, "there can be no question" that Arc has and will be irreparably harmed if Defendants are pennitted to implement their plan to build and fully populate a new segregated institution. "Such concrete and demonstrable injury to the organization's activities - with the consequent drain on the organization's resources - constituted far more than simply a setback to the organizations social interests." Havens Realty, 455 U.S. at 379. Unless this Court grants the Arc's Motion, these injuries, which affect people with intellectual disabilities and the Arc's efforts on their behalf, will continue throughout the pendency of this action.
2. Defendants will not suffer irreparable harm if the Arc's Motion is granted. The Defendants will suffer little or no harm if the Arc's Motion is granted. At worst, the Defendants will have to delay spending $23,768,000.00 oftaxpayer funds on a new segregated institution. Given that the Defendants intend to build the new segregated institution on the
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SEVTC compound, they will not incur any financial hann from the delay because they already own the property that is the intended site of the construction. Similarly, this delay will not hann anyone at SEVTC - SEVTC residents can remain at SEVTC or be discharged through DBHDS' normal process. Finally, Defendants will also be able to build or acquire the community ICFMRs and MR Waiver homes called for by Budget Bill Item 103.05(A)(3) because the Arc is not seeking an Injunction preventing the Defendants from expanding community housing for SEVTC residents.
Indeed, Defendants and the citizens ofthis Commonwealth face a far greater threat of hann if this Court denies the Arc's Motion and the Arc subsequently prevails at trial. In that instance, Defendants will spend millions oftaxpayer dollars to begin building the institution only to have the work stopped - and the money wasted - when the Court finds for the Arc on the merits. See, e.g., Pacific Gas and Electric v. State Energy Resources Conservation Development Commission, 461 U.S. 190,201 (1983) (allowing a state agency to build a new facility without knowing if it would later be Ordered to stop construction "would pose a palpable and considerable hardship" on the agency "and may ultimately work hann on the citizens .").
If Defendants argue that granting the Arc's Motion will harm them by impairing their ability to enter into or fulfill a contract with one of the corporations bidding to build the new segregated institution, such an argument is without merit. First, an Injunction forbidding Defendants from entering into or complying with such a contract will protect Defendants from any claim by the bidders. "After all, the defendants could hardly be punished for complying with a federal Court Order." Wisconsin Coalition for Advocacy, Inc. v. Czaplewski, 131 F.Supp.2d 1039,1052 (D.Wis. 2001).
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Second, and more importantly, while Defendants certainly have a right to contract, they do not have a right to enter into contracts that violate federal law. See, e.g., Ewing v. National Airport Corporation, 115 F.2d 859, 860 (4th Cir. 1940) ("no court will lend its assistance in anyway toward carrying out the terms of an illegal contract."). Therefore, they will not be harmed if this Court prevents them from doing so.
3. The balance of hardships favors of the Arc. Therefore, the Arc need only show "grave or serious questions" in order to prevail in this Motion.
Based on the above, the balance of "the probable irreparable injury to [the Arc] without a decree and oflikely harm to [Defendants] with a decree . . . is struck in favor of the plaintiff." Blackwelder, 550 F.2d at 196. Therefore, in order to prevail on its Motion, the Arc need not show that it is likely to succeed on the merits of its case. Rather, "it is enough that grave or serious questions are presented." Id.
"Grave or serious questions" are present when "resolution is not immediately apparent. That is enough to say that [plaintiffs] have not embarked on frivolous litigation and thus interlocutory relief is not improper if [plaintiffs] can show a need for protection which outweighs any probably injury (to the defendant)." Blackwelder, 550 F.2d at 195-196 (quoting West Virginia Conservancy v. Island Creek Coal Co., 441 F.2d 232 (1971)). See, also, Bernhardt v. Los Angeles County, 339 FJd 920, 926-927 (9th Cir. 2003) ("serious questions are those which cannot be resolved one way or the other at the hearing on the injunction; they need not promise a certainty of success nor even present a probability of success.'') (internal punctuation and citation omitted).
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4. The Arc presents "grave and serious questions" and/or is likely to succeed on the merits.
The Arc presents "grave and serious questions" and, to the extent it is required to do so,
establishes that it is likely to succeed on the merits of this action. The Arc is prosecuting this
case on behalf of its members, alleging that Defendants have violated its members' rights, and in
its own right, alleging that Defendants' plan and Budget Bill Item I 03.05(A)(I), as passed or as
implemented by Defendants' plan, violate and are preempted by federal law. 4 In each instance,
the Arc can more than meet the Blackwelder standard.
a. On behalf of its members, the Arc presents "grave and serious questions" and/or is likely to succeed on the merits.
The Arc's cause of action on behalf of its members raises "grave and serious questions
for litigation" that merit this Court entering an Injunction "preserving the status quo so that the
court can render a meaningful decision after a trial on the merits." Rum Creek, 926 F.2d at 359.
The Arc asks this Court to enter a Declaratory Judgment that Defendants' plan and/or Budget Bill
Item 103.05(A)(I) violate or unlawfully threaten Arc members' rights under the ADA and
4 It is worth noting that this Court need not find that Budget Bill Item 103.05(A)(I), as passed, violates or is preempted by the ADA or Section 504 in order to grant the Arc's Motion or rule in the Arc's favor on the merits. The Budget Bill does not specifically call for the creation of a segregated institution, stating only that a "facility" should be built. A "facility" can be many things: for example, the current SEVTC is a "facility" made up of several buildings spread out over a large area. The "facility" called for in Budget Bill Item 103.05(A)(l) could just as easily be several buildings spread out over a large area located in a neighborhood or other community setting, as required by the ADA and Section 504. Only Defendants' plan to implement the Budget Bill Item specifically calls for the construction of a segregated institution. Hence, this Court can hold that it is Defendants' plan and the way it implements the Budget Bill Item that violates and is preempted by federal law - i.e. that the Budget Bill Item is unconstitutional "as applied" rather than as written. See, Anderson v. Babb, 632 F.2d 300, 308 (4th Cir. 1980) ("a court should avoid, if possible, that construction of a statute that would result in its constitutional invalidation.") (citing Lynch v. Overholser, 369 U.S. 705, 710-11 (1962)).
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Section 504. The Arc also asks for Preliminary and Permanent Injunctions prohibiting Defendants' from implementing their plan to build and fully populate the segregated institution.
In this Motion, the Arc asks that the Court enter a Preliminary Injunction prohibiting Defendants from implementing their plan to build and fully populate a segregated institution. Given Congress' finding that people with disabilities are often unjustly or unnecessarily institutionalized, 42 U.S.C. § 12101(a)(3), and the Olmstead Court's determination that "unjust institutionalized isolation ... is a form of discrimination," 527 U.S. at 600, the Arc's case and Motion raise "serious, substantial and worthy issues for litigation." Rum Creek, 926 F.2d at 366.
In addition, the Arc is more than likely to prevail on the merits of this action. Under the ADA and Section 504, the Arc members in or at risking of being admitted to SEVTC, like all SEVTC residents, have a right to receive services "in the most integrated setting" appropriate to their needs. See, 28 C.F.R. § 35.130(d) (ADA); 28 C.F.R. § 41.51 (Section 504). Therefore, Defendants must make an individualized assessment to determine what services they need and which, if any, require services in a segregated institution. See e.g., United States Department of Justice Commentary to 28 C.F.R. § 35.130 (Under the ADA, "public entities are required to ensure that their actions are based on facts applicable to individuals and not on presumptions as to what a class of individuals can or cannot do."); See, also, PGA Tour v. Martin, 532 U.S. 661 (2001) (Under the ADA, "an individualized inquiry must be made to determine" whether a particular person requires a particular service); School Board ofNassau County v. Arline, 480 U.S. 273 (1987) (Section 504 requires an individualized inquiry into a person with a disabilities need for services).
Defendants' plan and Budget Bill103.05(A)(l), to the extent it requires such a plan, do the very thing forbidden by the ADA and Section 504: they predetermine that 75 SEVTC
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residents will live in a new segregated institution - based not on the individual needs of those residents, but on their desire to fully populate the 75-bed institution they want to build. This scheme not only flies in the face of the ADA5 and Section 504, but is diametrically opposed to a state-sponsored survey finding that all SEVTC residents can be served in the community. Exhibit D.
Even the Defendants seem to realize the wrong-headedness of their plan and the Budget Bill Item. For example, the Governor stated that SEVTC residents "don't need to be institutionalized" and admitted that he the other Defendants do not possess any studies or individualized assessments showing that SEVTC residents require services in a new segregated institution. Exhibit F. Similarly, the Commissioner publicly admitted that the 75-bed census for the new institution was not based on any "science or study" while his Deputy publicly stated that it was "arbitrary" and not based on the individual needs of SEVTC residents. Trosclair Affidavit at ~~ 33, 53-54.
To make matters worse for the 75 people forced to live in the new segregated institution, the Defendants intend to provide services to the remaining SEVTC residents in more integrated settings such as the community rCF-MRs and MR Homes provided for by Budget Bill Item 103.05(A)(3). However, as DBHDS personnel have admitted, that there will be "very little" or no difference between the service needs ofthe people forced to live in the institutiou and those who will be discharged to more integrated settings. Trosclair Affidavit, ~ 47.
As a result, Defendants' plan and Budget Bill Item 103.05(A)(1), to the extent it requires such a plan, create an unlawful disparity in treatment between the SEVTC residents who will be forced to live in the segregated institution and those permitted to live in the community rCF-MRs
5 In fact, the Olmstead Court held that a state violates the ADA when it has a plan "controlled by the state's endeavors to keep its institutions fully populated." 527 U.S. at 605-606.
19

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 20 of 78 PageID# 87

and MR Homes. This disparity violates the ADA rights of the SEVTC residents who will be

institutionalized by:

(i) Denying them appropriate, individualized assessments to determine their needs - including which, if any, require services in a new segregated institution that cannot be provided in more integrated, community-based settings - before deciding to build and place them in anew, segregated institution;

(ii) Denying them the opportunity to participate in or benefit from an aid, benefit, or service including, but not limited to, services in a more integrated, community-based setting;

(iii) Affording them an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

(iv) Providing them with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;

(v) Providing them with different or separate aids, benefits, or services than is provided to others when such action is not necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others;

(vi) Otherwise limiting them in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or servIce;

(vii) Utilizing criteria or methods of administration that have the effect of subjecting them to discrimination on the basis of disability; and

(viii)

Imposing or applying eligibility criteria that screen out or tend to screen them out from fully and equally enjoying any service, program, or activity, without showing that such criteria can be shown to be necessary for the provision ofthe service, program, or activity being offered; and.

(ix) Denying them a full and equal opportunity to interact with nondisabled people due to the segregated and restricted nature of the new institution.
See, e.g., 28 C.F.R. § 35.130(b) (detailing prohibited acts of discrimination under the ADA).

20

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 21 of 78 PageID# 88
By the same token, Defendants' plan and Budget Bill Item 103.05(A)(l) violate the
Section 504 rights of the SEVTC residents who will be institutionalized by:
(i) Denying them appropriate, individualized assessments to determine their needs - including which, if any, require services in a new segregated institution that cannot be provided in more integrated, community-based settings - before deciding to build and place them in a new, segregated institution;
(ii) Excluding them, solely by reason of their disabilities, from services provided to others in a program receiving federal financial assistance including, but not limited to, services and treatment provided in more integrated, community-based settings;
(iii) Denying them, solely by reason of their disabilities, the benefits of services provided to others in a program receiving federal financial assistance; and
(iv) Subjecting them, solely by reason of their disabilities, to discrimination under a program receiving federal financial assistance.
(v) Denying them a full and equal opportunity to interact with nondisabled people due to the segregated and restricted nature of the new institution.
See, e.g.. 29 U.S.C. 794 (detailing prohibited acts of discrimination under Section 504).
b. On its own behalf, the Arc presents "grave and serious questions" and/or is likely to succeed on the merits.
The Arc's cause of action on its own behalf also raises "grave and serious questions."
That action asks this Court to enter a Declaratory Judgment that Defendants' plan and Budget
Bill Item 103.05(A)(l), as passed or as implemented by Defendants' plan, violate and are
preempted by the ADA and Section 504. The Arc also asks the Court to enter Preliminary and
Permanent Injunctions forbidding Defendants from implementing their plan and building a
segregated institution.
Specifically, the Arc alleges that Defendants' plan and/or the Budget Bill stand as an
obstacle to the accomplishment of the full purposes and objectives ofthe ADA and Section 504,
21

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 22 of 78 PageID# 89
including, but not limited to, the objective of ensuring that people with disabilities receive services in the most integrated setting appropriate to their needs. Consequently, they are preempted by the ADA and Section 504, pursuant to the Supremacy Clause of the Constitution of the United States. U.S. Const. art. VI, cl. 2. See, e.g" Verizon Maryland v. Public Ser. Comm 'n a/Md., 535 U.S. 635, 642-646 (2002) (discussing preemption); Equal Access Educ. v. Merten, 305 F.Supp.2d 585, 601 (E.D.Va. 2004) ("In assessing a Supremacy Clause challenge... courts must determine whether a particular state law or action is preempted by the Constitution itself or by a federal statue or regulation.").
It is undeniable that Congress and the Supreme Court - in the ADA, Section 504 and Olmstead - identified a statutory right to be free from "unjustified institutional isolation." Therefore, the Arc's cause of action and this Motion, which allege that the Defendants' plan and Budget Bill Item 103.05(A)(1) violate and are preempted by that right, raise "serious, substantial, and worthy issues for litigation." Rum Creek, 926 F.2d at 366.6
In addition, the Arc is likely to prevail on its Supremacy Clause challenge to Defendants' plan and Budget Bill103.05(A)(1). The Supremacy Clause "provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law ofthe land." Merten, 305 F.Supp. 2d at 601. Therefore, any state law, policy or action "however clearly within a State's acknowledged power, which interferes with or is contrary to a federal law, must yield." !d. (citing and quoting Gade v. Nat'! Solid Wastes Management Assoc., 505 U.S. 88, 108 (1992)); See, also, Bernhardt v. Los Angeles County, 339 F.3d 920, 929 (9th Cir. 2003) (government policy conflicting with federal law is preempted and unconstitutional).
6 Indeed, Rum Creek itself dealt with a Motion for a Preliminary Injunction raising a Supremacy Clause challenge to state action. There, the Fourth Circuit held that the Plaintiffs challenge presented "grave or serious questions for litigation" and, accordingly, held that the Plaintiffs Motion for a Preliminary Injunction should have been granted. Id. at 363.
22

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 23 of 78 PageID# 90
Defendants' plan and Budget Bill Item 103.05(A)(1), to the extent it requires such a plan, are preempted because they "stand as an obstacle" to accomplishing the purposes and objectives of the ADA and Section 504. See, e.g., Brinn v. Tidewater Transportation District Commission, 42 F.3d 227, 232-233 (4th Cir. 2001). When Congress passed the ADA, it found that "discrimination against individuals with disabilities persists in such critical areas as ... institutionalization." 42 U.S.C. l21Ol(a)(3). Congress stated that the purpose of the ADA is to "invoke the sweep of congressional authority ... to address the major areas of discrimination faced day-to-day by people with disabilities." 42 U.S.c. 12101 (b)(4).
Defendants' plan and the Budget Bill Item are diametrically opposed to this purpose because, rather than addressing and decreasing unnecessary institutionalization, they increase it. As the Governor stated and the state-sponsored study found, not one SEVTC resident "needs" to be in an institution - and if no SEVTC resident "needs" services in an institution, it is a violation of the ADA and Section 504 to force them to live in a new segregated institution. Nevertheless, the plan and Item mandate that 75 residents be chosen to live in the new segregated institution, in an open-ended state of "unjustified institutional isolation."
Moreover, the Defendants' plan and the Budget Bill Item require this result without conducting appropriate individualized assessments to determine the true needs of SEVTC residents, in direct conflict with the ADA and Section 504's purpose of requiring individualized assessments of people with disabilities before making such decisions. See, Commentary to 28 C.F.R. § 35.130 ("public entities are required to ensure that their actions are based on facts applicable to individuals"); PGA Tour v. Martin, 532 U.S. 661 (2001) (Under the ADA, "an individualized inquiry must be made to determine" whether a particular person requires a particular service); School Board o/Nassau County v. Arline, 480 U.S. 273 (1987)
23

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 24 of 78 PageID# 91
(Under Section 504, recipients of federal funding must make individualized inquiries into the needs of people with disabilities when making decisions or taking actions impacting those needs). As the Commissioner and his Deputy stated, the 75-bed census for the new segregated institution is "arbitrary," not based on any "science or study," and not "related to the needs of SEVTC residents." Trosclair Affidavit, ~~ 33, 53-55.
Similarly, Defendants' plan and Budget Bill Item I 03.05(A)(I) "stand as an obstacle" to the ADA and Section 504's purpose of ensuring that people with disabilities receive services in the "most integrated setting" appropriate to their needs. 28 C.F.R. § 35.130(d) (ADA); 28 C.F.R. § 41.51 (Section 504). Under the express terms of Defendants' plan, 75 SEVTC residents must now live in the new segregated institution - no matter what the "most integrated setting" for them maybe.
Finally, the Defendants' Plan and Budget Bill Item 103.05(A)(I) create an unlawful disparity in treatment between the SEVTC residents who will be forced to live in the segregated institution and those that will be discharged to community-based settings, in contravention ofthe purpose of the ADA and Section 504, which require equal treatment for people with disabilities. Even though a DBHDS representative stated that there is "very little" or no difference between the service needs of the two groups, Trosclair Affidavit, ~ 47, the Defendants' plan and Budget Bill Item allow one group to live in the "most integrated setting" while the other is forced to live in the segregated institution.
5. The public interest will be served by granting the Arc's Motion. Finally, ifthis Court grants the Arc's Motion it will serve the public'S interest in "the full participation ofthe disabled in the economic, social and recreational life of the community." Martin v. Metropolitan Atlanta Rapid Transit Authority, 225 F. Supp. 2d 1362, 1383 (N.D. Ga
24

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 25 of 78 PageID# 92
2002). It will also serve the public's interest, as identified by Congress and the Supreme Court, in reducing unnecessary institutionalization of people with disabilities. 42 U.S.c. 12101(a)(3); Olmstead.
Moreover, as the Blackwelder Court held, the "public interest is further enhanced where, as here, the private controversy may possibly vindicate public policy." 550 F.2d at 197. Here, the Arc's Motion, like its Complaint, seeks to vindicate the policies underlying the ADA, Section 504 and Olmstead against the Defendants' attempt to require institutionalization of people who do not, or at worst may not, require it. For that reason, "the presence of a federal statute both prohibiting the alleged acts of the defendant and supplying the gravamen of the complaint aligns [theArc] . . . on the side of the public interest." Id.
III. CONCLUSION For the reasons set forth above, the Arc respectfully requests that this Court: I. Grant its Motion and enter a Preliminary Injunction prohibiting Defendants from implementing their plan and from building a new segregated institution; 2. Grant its Motion and enter a Preliminary Injunction prohibiting the Defendants from otherwise implementing Budget Bill Item 103.05(A)(l); 3. Grant the Arc its attorneys' fees and costs, to the extent permitted by law; and 4. Grant it such other and further relief that to this Court seems just and proper.
25

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 26 of 78 PageID# 93
Dated: 27 October 2009
Respectfully Submitted:
The Arc of Virginia, Inc. by counsel
The Virginia Office for Protection and Advocacy 1910 Byrd Avenue, Suite 5 Richmond, VA 23230 Tele: (804) 225-2042 Fax: (804) 662-7431
V. Colleen Miller, Executive Director
.~"~,~Aft"~, Virginia State Bar Number: 37299 Virginia Office for Protection and Advocacy Attorney for Plaintiff 1910 Byrd Avenue, Suite 5 Richmond, VA 23230 Telephone: (804) 225-2042 Fax: (804) 662-7431 E-mail: lonathan.Martinis@VOPA.Virginia.Gov
~,_,. ~u'2.D . a C.M. Ek, Staff Attorney Virginia State Bar Number: 74858 Virginia Office for Protection and Advocacy Attorney for Plaintiff 1910 Byrd Avenue, Suite 5 Richmond, VA 23230 Telephone: (804) 225-2042 Fax: (804) 662-7431 E-mail: Kalena.Ek@VOPA.Virginia.Gov
26

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 27 of 78 PageID# 94
EXHIBIT A

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 28 of 78 PageID# 95

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

THE ARC OF VIRGINIA, INC.,
Plaintiff, v.
TIMOTHY M. KAINE, in his official capacity as Governor of the Commonwealth of Virginia, et aI.,
Defendants.

AFFIDAVIT Case No.:

AFFIDAVIT OF MARK STEVENS, IN SUPPORT OF PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION
1. My name is Mark Stevens. I am a resident and domiciliary of the Commonwealth of Virginia.
2. I am employed as a Disability Rights Advocate by the Virginia Office for Protection and Advocacy. I have been so employed since September of 2006.
3. My office address is 1910 Byrd Avenue, Suite 5, Richmond, VA 23230 4. I offer this affidavit in support of Plaintiff's Motion for a Preliminary Injunction. 5. As part of my job, I provide information and referral, investigation and advocacy
services to residents of Southeastern Virginia Training Center (SEVTC). I visit SEVTC approximately two times per month. I last visited SEVTC on September 14, 2009. I am next scheduled to visit SEVTC on October 27,2009. 6. As a result, I am familiar with SEVTC and its compound. 7. As a part of my job, I am also required to review SEVTC policies. As a result, I am familiar with many of those policies.

1

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 29 of 78 PageID# 96
8. SEVTC is located on a 120 acre compound in an isolated section of Chesapeake, Virginia.
9. One can only enter SEVTC by car by turning off of Military Highway 13 onto Smith Avenue and then snaking through an industrial office park.
10. As I drive down Smith Avenue to enter SEVTC this way, I am confronted by signs saying "No Trespassing."
11. The SEVTC compound is further segregated, on all sides, from the community at large.
12. SEVTC is segregated from the residential community on its Eastern border by a long trench, that I estimate to be a quarter mile long, five feet wide and two feet deep. Where the trench ends, SEVTC is segregated from that community by a fence that I estimate to be six feet high. It is also segregated from that community by multiple "No Trespassing" signs. All of the "No Trespassing" signs face the community, which I believe would give a community member the feeling that he or she is not welcome at SEVTC.
13. The SEVTC compound is segregated from the industrial park along its Northern border by "No Trespassing" signs.
14. The SEVTC compound is segregated from the community along its Southern border by Interstate 64.
15. The SEVTC compound is segregated from the business development along its Western border by a fence that I estimate to be six feet high.
16. If people who wish to visit the compound can get past these boundaries, SEVTC policy then requires them to report to SEVTC's main office to request admission.
2

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 30 of 78 PageID# 97
17. Under its visitation policy, SEVTC can deny access to the compound, at its discretion, to any person or organization that does not have a statutory right to be there. This is true even if the SEVTC resident they wish to meet has never been declared incompetent and, in some circumstances, even if the resident has stated he or she wants to meet with that person or organization. See, SEVTC Instruction Number 2130, attached and made a part of this Affidavit as Exhibit A .
18. I believe that SEVTC has used this authority to restrict its residents' contacts with organizations it presumably does not approve of.
19. For example, when the Arc formed a new chapter to advocate for the rights of its members and other SEVTC residents, its self-advocate visited SEVTC to give residents information about the Arc and about their rights. I accompanied the self advocate on this visit.
20. The Director of SEVTC, Robert D. Shrewsberry, Ph.D., responded by telling me that the Arc was not allowed to provide brochures or other literature or to solicit membership at SEVTC.
21. This was surprising to me because SEVTC allows members of other groups to visit the compound, solicit membership at SEVTC and conduct meetings on the compound. SEVTC even provides advertising for one such group, known as "Parents and Friends of SEVTC."
22. I asked Dr. Shrewsberry why SEVTC provides support to that group but refused to let the Arc have similar access to the SEVTC compound. He replied in a letter, "we see [Parents and Friends of SEVTC] as having a direct interest in the operation of the
3

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 31 of 78 PageID# 98
Center. The Arc does not enjoy such status." A copy of Dr. Shrewsberry's letter is attached and made a part of this Affidavit as Exhibit B. 23. SEVTC also restricts residents' rights to travel off of the compound and interact with nondisabled people. 24. Under SEVTC policy, it can, in its discretion, determine that a resident is not "competent" to leave the compound - even if that resident has never been adjudicated by a Court or given a legal guardian. See, SEVTC Instruction Number 2060, attached and made a part of this Affidavit as Exhibit C. 25. I swear that the foregoing, consisting oftwenty-five (25) paragraphs, including this one, is true and accurate to the best of my knowledge.
COMMONWEALTH OF VIRGINIA CITY OF RICHMOND Sworn to before me this 26 day of October, 2009.
Date Notary Number: 352272 My commission expires: February 29,2012
4

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 32 of 78 PageID# 99
EXHIBIT A

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 33 of 78 PageID# 100

SOUTHEASTERN VIRGINIA TRAINING CENTER Chesapeake, Virginia

September 26, 2008

SEVTC INSTRUCTION NUMBER 2130

SUBJECT: On-Grounds Visitors

1. Purpose:

To maintain policies and procedures regarding on-grounds visitors for residents and employees.

2. Applicability:

All SEVTC Employees

3. Reference:

Rules And Regulations To Assure The Rights Of Individuals Receiving Services From Providers Licensed, Funded Or Operated By The Department Of Mental Health, Mental Retardation And Substance Abuse Services.

4. General:

It is essential that a cordial

be maintained throughout the

Center, and particularly at

Office, where visitors are received and

greeted. All visitors are asked to check-in at the Reception Office unless indicated

otherwise in this instruction.

The Virginia Human Rights regulations guarantee individuals the right to have or refuse visitors. 12 VAC 35-115-50 C 8. This right may be restricted by the individual, or under circumstances specified in the regulations 12 VAC 35-115-50.C 8 a,b. An individual's visitation may be limited when, in the judgment of a licensed professional(physician, licensed clinical psychologist, licensed clinical social worker) the visits may result in demonstrable harm to the individual or negatively impact the individual's treatment; or when the visitors are suspected of bringing contraband or are threatening harm to the individual in any other way. The merits of such requests will be discussed with the individual by the director or his designee and the human rights advocate will be informed of the reasons for any restriction prior to implementation. The restriction shall be reviewed by the Interdisciplinary Team on a monthly basis and documented in the individual service record. The individual always has the right to refuse visitors. The guardian, AR, and the resident will be asked to complete the Visitor Authorization form (SEVTC 57A) on admission and it will be reviewed at the time of the annual review for any changes with the guardian/AR and resident by the social worker., The Visitor Authorization form can be updated at any time changes are indicated. lt~e[p arp.!iiI,WApapeips b@hA/fNjlD
~sem;...,.wjS'A~"'\!J>otIil~~@ljlt_il.hGe·~ed .. bv,.jJa,e
~l!IIlliW!JIlltfi&.",

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 34 of 78 PageID# 101

SEVTC INSTRUCTION NUMBER2130

Page 2

5. Visitors for Staff Members:
A. Employees may have visitors as permitted by the policies and procedures of their work area and individual supervisors. Employees are responsible for compliance with the instructions of supervisors and with all written policies and procedures regarding visitation. ~,~IQ¥ees..FilIla~&t,J;Ja~i&oo(~<illeSifil~tia~s.witJll@.l!lt
.t;he~Gif,ja.a(il.~'~~i§g(.
B. The Reception Office will assist visitors as necessary. When an individual comes to the Reception office to visit an employee, the clerk will notify the employee. The Reception Clerk will follow the staff member's instructions in directing the visitors.
C. Employees are expected to guide visitors in compliance with Center policies and procedures. Any visitor who fails to comply with Center policies and procedures or who behaves in a disruptive or inappropriate manner will be asked to leave.
D. Former employees who have left employment with the agency involuntarily are not permitted on SEVTC grounds without the expressed consent of the Facility Director.
6. Visitors for Residents:
The following procedures will be utilized when someone's parent/relative, visitor, friend, or volunteer presents himself/herself, requesting a pass to visit a resident oncampus. If the visitor is unfamiliar to the Reception Clerk, the visitor must be asked to present identification.
A. If a volunteer is on-campus for a SEVTC sanctioned group activity (for example, a party that a volunteer is assisting with), an on-grounds pass is not necessary. However, if a volunteer is on-grounds to visit with a specific individual, then an on-grounds pass is to be obtained prior to the visit and the steps listed below must be followed.
B. Once the visitor presents to the Reception Office, the Reception Clerk will ask the visitor to wait, preferably in the lobby, while they confirm the individual resides here, if there are any visitor restrictions, and a resident visitation form is completed prior to preparing and issuing the on-grounds visit form.
C. If the individual resides here, has no restrictions, and the visitor is on the list, the clerk will notify the cottage to which the person resides of the visitor's name and the name of the person that they are requesting to visit to see if the resident would like to visit with them. If they want to visit, the Reception Clerk will prepare SEVTC Form No. 47, including the authorizing staff's name, position title, and the Reception Clerk's signature. The Reception Office will retain the copy of the two part form and forward the original with the visitor to the cottage. The visitor will present the on-grounds pass to the cottage staff, who will record the visit in the 10 notes of the Resident Record and then the pass is to be destroyed. If the resident does not want to visit at that time the visitor will be notified.

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 35 of 78 PageID# 102

SEVTC INSTRUCTION NUMBER 2130

Page 3

If the visitor is not on the visitor authorization list for the person, no information may be released to the visitor-including the fact that the person lives at SEVTC. The Reception Clerk should ask the visitor to continue to wait in the lobby and determine if the person has any restrictions in place and whether they have been determined to have the capacity to disclose confidential information. If he/she does have capacity, the Reception Clerk should contact the cottage the individual resides in and see if the person would like to visit and proceed according to his or her wishes. If the individual has been determined not to have capacity to disclose protected health information (name and location) the Social Worker must be contacted. The Social Worker must contact the ARlguardian to determine if the information may be disclosed to the visitor. If allowed to disclose the information the Form SEVTC 57A should be updated and signed and the person should be contacted to see if he or she would like to visit. If a social worker is not available, the Reception Clerk will offer to have the social worker contact the visitor as soon as possible. If the visitor is not satisfied with these steps, the Reception Clerk may contact the team leader, assistant program manager, shift supervisor, supervisor-on-call, or Assistant Director, Residential Services or Director to talk with the visitor.
Based upon the supervisor's judgment and without confirming that the resident resides at SEVTC, the supervisor may:
A. Again inform the visitor that the visit cannot be permitted and offer to have a social worker contact the visitor as soon as possible; or,
B. Contact the ARlguardian and determine whether he or she will authorize the disclosure of protected health information (name and location). The supervisor may request that the AR talk with the visitor. If disclosure is authorized the SEVTC 57A must be updated and signed. The resident will be contacted to determine if he/she would like to visit with the visitor.
C. If, at any time, a staff member questions the safety or well-being of the person during a visit, the above procedures should not prohibit staff from stopping, intervening, or requesting a supervised visit. A licensed professional (physician, licensed clinical psychologist, licensed clinical social worker) and the advocate should be notified as soon as possible of the restriction request so that proper procedures concerning restrictions can be followed.

7. Originator: Resident Records Director
8. Recision:

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 36 of 78 PageID# 103

SEVTC INSTRUCTION NUMBER 2130 SEVTC Instruction Number 2130, July 6, 2007

Page 4

Robert D. Shrewsberry, Ph.D. Director
Distribution: A, B, D, E, F Resident Records
Computer Network File: i:\sevtc\inst2130

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 37 of 78 PageID# 104
EXHIBITB

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 38 of 78 PageID# 105

v_ 210Q stepplaptcNIt SqIllK

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..-f...I..S..T..)..'...~..F..A,.X...,..

CO.\fMONWEALTHofVIR. GINIA
Department ofBeluzviol'lll Hellltl! Il1Id Developmental Services,
SOUI'HEASTERN VIRGINIA TRAJNINGCEN'I'ER
,

Ra1IIdD. SIn. '" ,.ft.[). !linda<

September 29, 2009

, Mark Stevens Disability Rights Advocate Virginia Office for Protection and Advocacy 1910 Byrd Avenue, Suite 5 Richmond, VA 23230

Dear Mr. stevens,

to you on the phone yesterday regarding your contact I did not say that the Center did not allow taxi cabs
having said anything remotely close to such a We have staff and relatives arriving in taxi cabs quite frequently.

As to whether visitors are alloWed on the campus, we'Bo require that all be registered at the reception office as a security measure, and we maintain a list of people whom the authorized representatives or guardians have approved to visit
their relative. It is our policy to inform AR's and guardians of any visitors who may wish to visit one of the residents.

The self-advocate, Ms.' Olson, was not challenged because she was'with you and I was informed by the Atrorney General's 'office that if.".,aspermitted. What
is not permitted is for'her to solicit residents orstaff by passing out literature as she was observed to be doing. As to our hosting the SEVTC Parent and Friends
on our website we see them has having a direct interest in the operation of the
'Center. The ARC does not enjoy such status.

I have sent Ms. Trosclair an e-mail regarding the self advocate and the interaction with_ _ _ as the father asked me to do.

'§inderet~, ~ ~ .

,,:', .• ";'''. ',:

~~~~ts··

'.

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 39 of 78 PageID# 106
EXHIBITC

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 40 of 78 PageID# 107
SOUTHEASTERN VIRGINIA TRAINING CENTER Chesapeake, Virginia
July 11, 2008
SEVTC INSTRUCTION NUMBER 2060
SUBJECT: Off Grounds Visit Pass
1. Purpose:
To prescribe policies and procedures to be followed when a resident will be away from SEVTC campus for a period of time less than 24 hours.
2. Applicability:
All SEVTC Employees
3. General:
It is essential that a cordial business like atmosphere be maintained throughout the Center, and particularly at the Reception/Information Office, where most visitors are received and greeted.
In accordance with HIPAA Regulations, no information may be disclosed (including . the admission and location of the resident) without authorization from a resident with
capacity to consent to release of protected health information or guardian/AR with the exception of disclosure for treatment, payment, healthcare operations and other exceptions as indicated in the regulation. To ensure confidentiality is maintained, all residents in coordination with their ARiguardian will be required to complete a Visitor Authorization Form (Form 57A) on admission, which authorizes disclosure of their presence and location at SEVTC.
The Virginia Human Rights regulations guarantee residents the right to visit with others of their choosing (12 VAC 35-115-1 OO.A.1.b). This right may be restricted by the resident, or under circumstances specified in the regulations (12 VAC 35-11550.C.8), by the Center. An individual's visitation may be limited when, in the judgment of a licensed physician or doctoral level psychologist, the visits result in demonstrable harm to the individual and sympathy impacts the individual's treatment; or when the visitors are suspected of bringing contraband or in any other way are threatening harm to the individual. Occasionally, parents or other interested parties request that the Center place restrictions on visitation rights. The merits of such requests will be considered by the resident or, the Center Director, as applicable. The Director will determine whether the request is consistent with facility policy and human rights regulations and act accordingly.
Authorization from the guardian/AR must be obtained for off campus visitation for all residents unless they are considered competent. This will be obtained using Form 57A-SEVTC Visitor Authorization.

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 41 of 78 PageID# 108

SEVTC INSTRUCTION NUMBER 2060

Page 2

If a resident lacks capacity to consent to the release of protected health information, is not competent and/or does not have an authorized representative or guardian, the Interdisciplinary Team and the resident shall meet and complete the SEVTC Visitor Authorization Form 57A, using its knowledge of past visiting for residents and others as they deem appropriate and not harmful to the residents well being. The Social Worker shall forward the completed form to Resident Records, who will then distribute it to the Reception Office and to the cottage.

4. Off Grounds Visit:

An off grounds visit pass is an authorized pass, without a staff escort, which generally occurs during the day but does not extend to overnight (DI 105).

5. Procedures:

If a resident's parent/relative, visitor, friend, or volunteer, presents himself/herself, requesting permission to take a resident off campus, on a day pass, the following procedures will be applied:

A. If the requester is unfamiliar to the reception clerk, the requester will be asked to present identification.

B. The reception clerk will check the resident's Visitor Authorization Form 57A for all authorized visitors and authorized off campus visits prior to preparing and issuing the off-campus pass.

C. If authorized, the reception clerk will prepare SEVTC Form No. 75, OffGrounds Pass. The form will include the name of the cottage staff, Team Leader, or the Shift Supervisor who authorized the leave, the signature of the reception clerk who released the pass, and the signature of the person taking the resident off campus. The OTC nurse will request the pass and pull the medications prepared by the pharmacy. An extra set of medication labels will be in the medication bag. The OTC staff will review the medication container with the medication labels for accuracy and apply the labels to the medication section of the pass. If treatments/supplies need to be picked up from the cottage, the OTC nurse will place those labels in that section of the pass to inform the staff of the specific items to give to the ARlVisitor. Once completed, the OTC staff will have the ARlVisitor sign the pass. Once signed, the OTC STAFF will place the original pass on the Risk Manager clip board and give a copy of the pass to the ARlVisitor. The ARlVisitor will take the copy of the pass to the cottage. Cottage staff will check the pass and provide the indicated items. Cottage staff will document in the record the time the visit begins and ends. If no medications/supplies are needed, Reception staff will check the no column for LOA medication and mark through the remainder of the pass. The ARlVisitor will sign only the signature of Escort section if no medications/supplies are needed.

D. The Team Leader/cottage staff should notify the Reception Office in advance of any scheduled resident off-campus visits. The ARlguardian/family

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 42 of 78 PageID# 109

SEVTC INSTRUCTION NUMBER 2060

Page 3

member may also call the Reception Office in advance to request that a pass be prepared.

E. A staff member (on duty) requesting to take a resident(s) off-campus must request an Off-Grounds Pass and sign as the escort. Staff members will document medication administration in the "medication passport" and staff member will apply the labels to the medication passport. Medication labels will not need to be applied to the off grounds pass.

F. If the visit is not authorized or restrictions are indicated, the requester will be informed accordingly and referred to the Team Leader, Social Worker or Shift Supervisor. The Team Leader/Social Worker/Shift Supervisor should notify the requester that the AR will be contacted by the Social Worker of the visitor's request and will take appropriate measures if authorized for future requests.

6. The Social Worker will review the authorized visitors and off campus authorization at the time of the annual review with the resident and AR for any changes or updates to the list. Changes will be sent to Resident Records once updated.

7. Medical Emergencies (Off-Campus Visits):

In case of a medical emergency, the resident should be returned to SEVTC or, if that is not possible, taken to the closest emergency room with notification to SEVTC as soon as possible.

8. Originator:

Resident Records Director

9. Recision:

SEVTC Instruction Number 2060, dated November 22, 2006

Robert D. Shrewsberry, Ph.D. Director

Distribution:

A, S, F, M: Resident Records (5)
Social Workers (4) Joanne Houck

Computer Network File: i:\sevtc\inst2060

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• •
EXHIBITB

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 44 of 78 PageID# 111

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

THE ARC OF VIRGINIA, INC.,
Plaintiff,
v.
TIMOTHY M. KAINE, in his official capacity as Governor of the Commonwealth of Virginia, et ai.,
Defendants.

AFFIDAVIT Case No.:

AFFIDAVIT OF JAMIE TROSCLAIR, IN SUPPORT OF PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION
1. My name is Jamie Trosclair. I am a resident and domiciliary of the Commonwealth of Virginia.
2. I offer this Affidavit in Support of Plaintiffs Motion for Preliminary Injunction. 3. I am the Executive Director of the Arc of Virginia, Inc. The Arc's offices are located at
2025 East Main Street, Suite 107, Richmond, Virginia 23223.

The Arc 4. The Arc of Virginia, Inc. ("the Arc"), is a not-for-profit corporation. The Arc is the
Virginia state Chapter of The Arc of the United States, the world's largest communitybased organization of and for people with intellectual and developmental disabilities. Along with the Arc of the United States and its over 780 state and local chapters, we are devoted to promoting and improving supports and services for all people with intellectual and developmental disabilities.
I

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 45 of 78 PageID# 112
5. The Arc's membership is comprised of people with intellectual disabilities, people with developmental disabilities, their family members other concerned citizens.
6. The Arc is governed by a Board of Directors, three of whom are people with intellectual disabilities. The Arc's Board of Directors meets at least four times each year.
7. Each local chapter has a representative on the Board. Local chapter representatives are selected by the local chapter's Board of Directors, many of which have members with intellectual disabilities. Each local chapter's Board is elected by its members.
8. The Arc's Mission Statement is "The Arc of Virginia advocates for the rights and full participation of all children and adults with intellectual and developmental disabilities. Together with our network of members and affiliated chapters, we improve systems of supports and services; connect families; inspire communities and influence public policy."
9. To fulfill our mission, we engage in activities including, but not limited to: advocating for changes to law and public policy to benefit people with intellectual and developmental disabilities; organizing and collaborating with individuals and organizations that advocate for changes to law and public policy to benefit people with intellectual and developmental disabilities; providing information to people with intellectual and developmental disabilities, their families and advocates about important issues; providing training for people with intellectual and developmental disabilities to become selfadvocates for issues important to them; providing information to the public, govemment and policymakers about issues that are important to people with intellectual and developmental disabilities; and holding an annual conference bringing together people with intellectual and developmental disabilities, family members, advocates and
2

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 46 of 78 PageID# 113
policymakers from across the state to discuss and influence issue important to our members and other people with intellectual and developmental disabilities. 10. In the recent past, we have focused our efforts on advocating for the end of the waiting list for Medicaid Waiver services for our members and other people with intellectual and developmental disabilities. We have also advocated for the retention and/or restoration of services that had been affected by state budget cuts. We have also advocated for increased community housing for our members and other people with intellectual and developmental disabilities. This year, we also planned to upgrade our internet so that we can provide more information and resources to our members, people with intellectual and developmental disabilities, family members, advocates and policymakers. II. There are Arc members living at SEVTC. 12. There are also Arc members at risk of being admitted to SEVTC. These members are on the Commonwealth's waiting list for Medicaid services. Each of them has been found, by representatives of the Commonwealth, to meet the criteria for institutionalization. Some have been found at "urgent" need of services in order to avoid institutionalization. If these individuals do not receive community-based services, they are at risk of being institutionalized and admitted to SEVTC.
3

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 47 of 78 PageID# 114
Facts Leading Up to this Action 13. We were excited when Governor Kaine, in his proposed budget for 2010, proposed closing SEVTC. We agree with Governor Kaine's comments that SEVTC residents do not need to be institutionalized and the money spent to operate SEVTC should be spent providing community based services for people with intellectual disabilities. We did, along with other advocates, contact the Governor with concerns about the speed with which he intended to close SEVTC, but fully supported his intention to close that institution. 14. We advocated that the General Assembly approve and implement the closure of SEVTC. 15. We were disappointed when the General Assembly proposed building a new "facility" to replace SEVTC. We advocated to support closure of the institution and opposed the creation of a new institution in its place. In doing so, we diverted resources from our work advocating for the end of the waiting list, opposing and preventing reductions in service for our members due to budget cuts; and advocating for increased community housing. We also deferred work upgrading our internet site, which would have provided more information and resources for our members, people with intellectual and developmental disabilities, their family members, advocates and policymakers. 16. We were pleased that our advocacy on behalf of our members and other people with intellectual and developmental disabilities led to us being included on the SEVTC Advisory Committee created and chaired by the Department of Mental Health, Mental Retardation and Substance Abuse Services ("DMHMRSAS," now known as the Department of Behavioral Health and Developmental Services ("DBHDS")). 17. Although we had to reduce our other work to do so, we took part in SEVTC Advisory
4

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 48 of 78 PageID# 115
Committee meetings, expending staff and monetary resources. We have consistently opposed, as members ofthe Committee, the creation of a new segregated institution to serve SEVTC residents. 18. So that we can serve SEVTC residents better, and advocate that they be served in the most integrated setting consistent with their needs, we initiated efforts to form a new Arc chapter in Tidewater to serve Chesapeake, Virginia, where SEVTC is located. This Chapter also will serve people at risk of being admitted to SEVTC and other people with intellectual and developmental disabilities in the area. 19. Forming the new Chapter required us to expend and divert additional resources, and decrease our other advocacy work accordingly. We are continuing to divert resources to organize and support the new Chapter. 20. So that we could better understand the issues facing SEVTC residents, and to help them know their rights, our self advocate toured SEVTC, giving information about the Arc to SEVTC residents. We offered Arc membership to residents who expressed an interest in our work. 21. Nine SEVTC residents asked to become Arc members, and have been granted membership in the Arc. We waived the membership fee for them because we did not want put a financial burden on them for joining the Arc. One has since withdrawn her membership. Therefore, there are currently eight members of the Arc living at SEVTC. 22. After our second trip to SEVTC, we were informed by SEVTC Director Dr. Shrewsberry that we were not permitted to give written information to SEVTC residents or to solicit membership at SEVTC. 23. Being essentially barred from going to the SEVTC compound to give information to our
5

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 49 of 78 PageID# 116
members and other SEVTC residents is very troubling to us because we believe it violates the rights of our members and of other SEVTC residents. Also, we know that other organizations are given access to the compound and SEVTC residents. For example, we know that one group, known as SEVTC Parents and Friends, is even allowed to meet on the SEVTC compound and that SEVTC provides advertising for it. 24. I have reviewed a letter where Dr. Shrewsberry defends this unequal treatment by saying
"we see [Parents and Friends1as having a direct interest in the operation of the Center.
The Arc does not enj oy such status." 25. Needless to say, this was very disappointing to us because we have an interest in
SEVTC's operation insofar as it affects our members who are SEVTC residents. Also, we have an interest in advocating for the rights of each and every SEVTC resident, including their right to be served in the most integrated setting appropriate to their needs. 26. I have reviewed the state-sponsored study of SEVTC residents that concluded that they all "Can Be Served in the Community," confirming the Governor's belief that SEVTC residents "don't need to be institutionalized." 27. After we reviewed the study, our President, Howard Cullum, wrote the Governor on behalf of the Arc and our members, asking him to defer construction on the new institution so that he could review the study and its recommendations. A copy of the letter, dated June 29, 2009, is attached to and made a part of this Affidavit as Exhibit A. 28. On or about July 9,2009, the Secretary Marilyn Tavenner responded on behalf of the Governor. She stated that the Governor would not delay building the new institution. A copy of the letter is attached to and made a part of this Affidavit as Exhibit B. 29. On August 13, 2009, I attended and participated in a meeting of the SEVTC Advisory
6

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 50 of 78 PageID# 117
Committee. At that meeting, the Commissioner Reinhard announced the Defendants' plan for implementing Budget Bill Item 103.05(A)(1) and took questions about it. 30. Approximately 50 other people attended the meeting and heard the Commissioner discuss the plan. 31. The Commissioner stated that under Defendants' plan, a 75-bed institution will be built by DBHD and DGS. 32. The Commissioner was asked how the 75-bed number was determined. 33. The Commissioner responded that the 75-bed number was not the product of any "science or study." 34. The Commissioner said that, in order to find 75 people to live in the new institution, all SEVTC residents will be evaluated using a number of factors. 35. He stated that 65 residents would be placed in the new institution while the other 10 beds would be used by SEVTC residents who were either transitioning to or from community placements .. 36. The Commissioner was asked if the process would result in the 65 residents who score the "lowest" being put in the new institution. 37. The Commissioner agreed that the process would be carried out in that way. 38. We were especially concerned by this answer, because the evaluation and factors the Commissioner discussed did not appear to be related to whether a person actually requires institutionalization in a segregated facility. For example, one of the factors was whether a person had limited use of their upper and lower extremities. This was disconcerting because there are many people with intellectual and developmental disabilities who also have quadriplegia and live successfully in community settings.
7

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 51 of 78 PageID# 118
39. We were further concerned because the Commissioner flatly stated that DBHDS would not use the Supports Intensity Scale (SIS) to determine whether any SEVTC residents would be put in the new institution. This was especially troubling to me because SIS is a nationally recognized assessment tool to determine people's needs for support and services.
40. The Commissioner indicated that, after 75 SEVTC residents were chosen to live in the new institution, the remaining SEVTC residents would live in the community ICFIMR and MR Horne placements called for in the budget.
41. The Commissioner stated that the community ICFIMRs would provide the same level and type of care as the new institution.
42. I also attended a meeting of the SEVTC Advisory Committee on September 24,2009. 43. Approximately 50 other people attended the meeting. 44. At that meeting, DBHDS gave an update on the selection process. 45. The DBHDS representative repeated that SEVTC residents would be evaluated and the
ones that score the "lowest" will be placed in the new institution. 46. The DBHDS representative also said that the new institution would be built on the
SEVTC compound. He stated that DBHDS and DGS had received bids from two firms to construct the new facility. He said that each bid called for construction on the SEVTC compound. He stated that a contract with a bidder would be signed in December of 2009 and that construction was scheduled to begin in August of2010. 47. In response to a question, the DBHDS representative stated that there would be "very little" to no difference between the needs of people who would be place in the new institution and the needs of the people put in the community-based placements.
8

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 52 of 78 PageID# 119
48. On October 13, 2009, I attended a meeting of Virginia's Community Integration Advisory Committee.
49. Approximately 15 other people attended the meeting. 50. At the meeting, DBHDS' Deputy Commissioner, Heidi Dix, gave a presentation on
Defendants' plan to build a new institution. 51. After her presentation, she was asked why the new institution would have 75 beds. 52. Deputy Commissioner Dix said that DBHDS had "the same question." 53. Deputy Commissioner Dix said that the 75-bed number seemed "arbitrary" to DBHDS. 54. Deputy Commissioner Dix said that the 75-bed number was not based on the actual needs
ofSEVTC residents. 55. Deputy Commissioner Dix stated that a member of the Virginia General Assembly told
her "off the record" that the number was based on the number of beds in Saint Mary's, an institution for children. She said that the General Assembly member told her that 75-beds seemed like "a nice round number." 56. On October 14, 2009, we had our attorneys send a letter to the Defendants giving them notice that we believe that their plan and Budget Bill Item 103.05(A)(l) violate federal law and the rights of our members. We told them that we would file a Complaint in Federal Court if we could not resolve this matter on or before October 26, 2009. 57. On October 21,2009, our attorneys met with representatives of the Defendants. We were unable to resolve this matter. We offered to have another meeting but did not receive a response.
9

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 53 of 78 PageID# 120
The Arc's Actions to Oppose the Defendants' Plan and Budget Bill Item 103 .05(A)(1l 58. We have opposed the Defendants' plan to build a new institution and Budget Bill Item 103.05(A)(I) since we first learned of them. 59. We have diverted resources from our other work in order to oppose the plan and Budget Bill Item. Our work to oppose the plan and Item has included, but is not limited to: advocating to the SEVTC Advisory Committee that a segregated institution should not be built; forming a new chapter to serve people in or at risk of being admitted to SEVTC; engaging in advocacy designed to prevent Defendants from building the new institution; issuing public statements, orally and in writing, opposing the construction of a new segregated institution; meeting with SEVTC residents who are Arc members; meeting with family members of SEVTC; and meeting with policymakers, including some of the Defendants, to educate them about the rights ofArc members and other people with intellectual disabilities to live in the most integrated setting and to urge them not to build a new segregated institution. 60. The work we have done to oppose the plan and Budget Bill has resulted in us having less staff and monetary resources to do work we planned to do this year. As a result, we have not been able to accomplish all of our goals for this year and have done less advocating on other issues important to our members and other people with intellectual and developmental disabilities. 61. For example, we have done less advocating for the reduction or elimination of the waiting list for Medicaid services for our members and other people with intellectual and developmental disabilities. We have done less advocating for the retention or restoration of services to our members and other people with intellectual and developmental
10

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 54 of 78 PageID# 121
disabilities; less advocating for and monitoring of the development of community housing for our members and other people with intellectual and developmental disabilities. We have also been unable to upgrade our internet site, because of our decreased resources. We had intended to improve the site so that it could provide more and more useful information to our members and their families, as well as other people with intellectual disabilities, their advocates and policymakers. 62. If Defendants are allowed to implement their plan and build a new institution, we will be forced to continue to divert our resources in order to provide advocacy and services to residents of the new institution and those at risk of being placed in the new institution. This is especially true because we understand that the SEVTC process is or will serve as a "template" for the rebuilding of other institutions. I have been told that Northern Virginia Training Center (NVTC) is already developing plans for a rebuilding project. 63. We hope that, if Defendants are permitted to implement their plan and build a new institution, our work will minimize the damages that the new institution will cause. We hope to educate our members and residents about their right to live in most integrated setting and to advocate for this right for themselves. We intend to advocate for our members to be discharged from the institution and into more integrated, community based settings. We intend to educate the public, including employees ofDBHDS and the new institution, about the benefits to our members and to the community at large if our members can live in community settings. 64. However, this work will further lessen the resources we have to do other work, including our advocacy to end the waiting list; our defending of existing community-based services from budget cuts; and our advocacy for more community housing. In preparation of
11

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 55 of 78 PageID# 122 having to divert resources, we have already indefinitely deferred the work on upgrading our internet site.
65. I swear that the foregoing, consisting of sixty-five (65) paragraphs, including this one, is true and accurate to the best of my knowledge.
COMMONWEALTH OF VIRGINIA CITY OF RlCHMOND Sworn to before me this 26 day of October, 2009.
~--------
Notary N.umher: 352272 My commissiOIiexpires: February 29,2012
12

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EXHIBIT A

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 57 of 78 PageID# 124

The
Arc

The Arc of Virginia
Advocating for people with intellectual and developmental disabilities and their families

Officers Howard Cullum, President Sue Sargeant, PresidenPElect Am.YYamch" Vice President Barba1"tiBamtt, Secretary Jeannie C'UllJmins, treasurer. Nita Grigna/,- Pa.rt-Fresident

June 29, 2009
The Honorable Timothy M. Kaine Patrick Henry Building, 3rd Floor 1111 East Broad Street Richmond, Virginia 23219

Local Chqptcrs The Arc ofAugusta
The Arc- ofCentral Vir;gilda
Danville. Arc The Arc-ofEastern Shore
The An: ofHal(fax Hanowr-Arc
The An: ofHarrisonbmgfRDckingham The Arc ofLcnowisco
The Arc ofLoudoun COPnry The ArcojNortfjern Shenandoah VaU'!}
The ArcojN'rthern Virginia The Arc ofVirginia Peninsula
TheAn: ofthe Piedmont The Arc ojGreaterPrince WiUiam
The Arc ofRnppahannwk The Greater. Ri.chmondArc The Arc a/Greater RDanoke Vallry
The Arc ofRDckbridge Sll1Jth Counry .(ire
The Arc ofWarrcn Counry The Arc ofGreater WilliamsbufJ!,

Re: Southeastern Virginia Training Center
Dear Governor Kaine:
The Arc of Virginia requests that you take the necessary actions to defer the rebuilding of the proposed 75-bed facility at the Southeastern Virginia Training Center (SEVTg in Chesapeake. The Arc's call for a deferral of the 75- bed facility is based on the just released detailed study of the needs of current SEVTC residents. The study concluded that all SEVTC residents could be served in small, community settings.
These study results represent important new information that was not available when you and the General Assembly approved the 75-bed rebuild plan. The Arc believes the study results demand our Commonwealth step back and review how Virginia will meet the needs of its citizens with intellectual disabilities.
As you know, the 2009 session's fInal state budget included funding to replace the SEVTC's current facility, now at a census of 156, with a 75-bed replacement at the Chesapeake site along with a series of small community homes. The community homes would be scattered throughout the Tidewater and Peninsula areas to serve residents with intellectual disabilities who would be discharged from SEVTC over the next year.

Your Administration has been undertaking a systematic process to implement the 75-bed facility rebuild and has made a signifIcant effort to include all parties impacted in this planning process. However, in light of the Human Services Research Institute (HSRJ) fIndings it would appear prudent from a public policy, fIscal and legal standpoint to step back and review the on-site 75-bed rebuild approach (nothing in the HSRI study suggests a delay of capital investments to community-housing).

HSRI is a nationally recognized research group with broad expertise in intellectual and developmental disabilities. It compared SEVTC residents with

The Arc of Virginia
2025 East Main Street- Suite 107, Richmond VA 23223 Phone (804) 649-8481 + Fax (804) 649-3585 + www.arcofva.org

Jamie Trosclair Executive Director

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 58 of 78 PageID# 125
1/:~lfcr ro (;o\\;.'rnnr K,\!f)c persons now being served by Virginia's community waiver program. The comparison used an assessment instrument called the Supports Intensity Scale (SIS). The SIS is a widely used method of determining how much support persons with intellectual disabilities require in terms of activities of daily living (dressing, eating, bathing, etc.) as well as their medical and behavioral needs. In view of the Olmstead decision direction, of the higher cost of institutional care, and of the MR waiver wait list that has now grown to 4,800 persons, The Arc believes it would be a policy mistake and fiscal folly to build a 75 bed state institution for persons who can be successfully served in the community. We ask you to initiate the necessary actions with the legislature to defer the rebuild concept at SEVTC. Thank you,
Howard Cullum President, The Arc of Virginia
CC: The Honorable Lacey Putney, Chairman, House Appropriations Committee The Honorable Charles Colgan, Chairman, Senate Finance Committee The Honorable Marilyn Tavenner, Secretary of Health and Human Resources The Honorable Viola Baskerville, Secretary of Administtation Commissioner James Reinhard, Department of Behavioral Health and Developmental Services Mr. Richard Sliwoski, Director, Department of General Services Mr. Mark Rubin, Counselor to the Governor Mr. Stephen Harms, Deputy Chief of Staff, Office of the Governor

The Arc of Virginia
2025 East Main Street - Suite 107, Richmond VA 23223 Phone (804) 649-8481+ Fax (804) 649-3585 + www.arcofva.org

Jamie Trosclair Executive Director

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EXHIBITB

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 60 of 78 PageID# 127

i.
i

r
COMMONWEALTH of VIRGINIA

Office of the Governor

Marilyn B. Tavermer Secretary of Health and Human Res~es

July 9, 2009

Mr. Howard Cullum, President

The Arc ofVirginia

2025 East Main Street, Suite 107

Richmond, Virginia 23223

i

Dear Mr. Cullum:

II '

This is in reply to your letter to Governor Kaine requesting that he act to defer rebuilding

r I

the proposed 75-bed facility at the Southeastern Virginia Traitting Center (SEVTC) in

I

Chesapeake. You have cited the findings of the HSRI report on the results of the Supports

I

Intensity Scale comparisons of residents at SEVTC and a sample of individuals living in

community settings.

While we know that the Home and Community Based Medicaid Waiver is serving some

individuals with high needs, we are also very much aware that there is a requirement to offer a

I

choice ofenvironments to individuals who qualifY for ICPIMR.: Many Virginians still choose the ICFIMR as the best place to meet their needs as opposed to the community waiver. The General Assembly has acted, and post-session, members and staff have affirmed that they want

r
I

us to build a 75-bed facility. We have received a proposal to build multiple cottages with 75

beds on a campus-like setting at the current site. We have no authority to delay Of change this

project.

I appreciate your advocacy on behalf of the individuals in Virginia with intellectual disabilities. We look forward to continuing our work with you as we struggle to meet the needs ofVirginia's citizens.

MBT/clp

Sincerely, <:::::~._"""'----'
\.~~ '~A_AUA-J

Marilyn B. T~~nner

.

I

" ' 1 ' ,"

I

r

Patrick Heruy Building' 1111 East Broad Street' Richmond, Virginia 23219 • (804) 786·7765' TTY (800) 828·1120 www.govemor.virginia.gov

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EXHIBITC

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LIS> Budget Bill > Item 103.05 > 2009 Session

http://legl.state. va.uslcgi-bin/legp504.exe?091 +bud+22-103.05

. • "

pdf view

Department of Mental Health, Mental Retardation and Substance Abuse Services (720)

103.05 (language only)

A. Notwithstanding any other provision of law, the following provisions shall be implemented:

1. The Department ofGeneral Services (DGS), with the cooperation and support of the Department ofMental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS), shall rebuild and resize the Southeastern Virginia Training Center to a 75-bedfacility to serve profound and severely disabled clients;

2. The Director, Department ofPlanning and Budget, shall tranifer $23, 768,000 ofthe amount appropriated in Chapter 1 and Chapter 2,2008 Acts ofAssembly, Special Session Ifor project 17458 (Repair/Replace Southeastern Virginia Training Center) for the purpose stated in paragraph A.1. of this item;

3. The Department of General Services, with the cooperation and support ofthe Department ofMental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS), shall build, acquire, or renovate 12 community-based Intermediate Care Facilities (ICF-MR) and 6 MR Homes in Health Planning Region V. Priority should be given to projects which can be completed on existing state-ownedproperty within Health Planning Region V;

4. The Director, Department ofPlanning and Budget shall transfer $8,438,160 ofthe amount appropriated in Chapter 1 and Chapter 2, 2008 Acts ofAssembly, Special Session Ifor project 17457, (Repair/Replace Central Virginia Training Center) for the purpose stated in paragraph A.3. ofthis item.

5. Ofthe remaining appropriation in Chapter 1 and Chapter 2, 2008 Acts ofAssembly, Special Session Ifor project 17457, (Repair/Replace Central Virginia Training Center), $]0,061,840 is designatedfor project 17733, (Construction of Community Housingfor Central Virginia).

6. The Governor, the Director, Department ofPlanning and Budget and the Director, Department of General Services, shall suspend the regular capital outlay process and initiate an expedited, fast track capital outlay process to ensure the timely availability ofboth the rebuilt and resized Southeastern Virginia Training Center and the 12 community-based Intermediate Care Facilities (ICF-MR) and 6 Mental Retardation Homes in Health Planning Region V. The Governor's expeditedprocess shall be submitted to the Chairmen ofthe House Appropriations and Senate Finance Committees for approval by July 15, 2009.

B. The Department of General Services (DGS), with the cooperation and support ofthe Department ofMental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS), shall examine the potential uses for the Southeastern Virginia Training Center property and report on such uses to Chairmen ofthe House Appropriations and Senate Finance Committees by November 1, 2009.

I I I I previous item next item new search table of contents home

lofl

10119/20092:52 PM

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EXHIBITD

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INFORMATION BRIEF

Virginia SIS Comparisons for SEVTC and Comprehensive Community Waiver Populations

June 23, 2009

Prepared by:

On Behalf of:

Jon Fortune Ed.D. & Karen J. Auerbach Ph.D.

C. Lee Price, Director

Human Services Research Institute

Office of

Developmental Services

7420 SW Bridgeport Road (#210)

The Department of Behavioral Health and

Developmental Services

Portland, OR 97224

PO Box 1707

Richmond, VA 23218-1797

Introduction

Virginia has used the Supports Intensity Scale (SIS) for years to write better individual service

plans for people in the community and to describe the support needs of the individuals being

served. In this HSRI Information Brief the results from the SIS assessments are described and

compared for individuals from Southeastem Virginia Training Center (SEVTC) and individuals

being served statewide by the state's comprehensive waiver.

\

Results - 1. All Individuals Can Be Served in the Community

Overall, the 156 people at SEVTC and a sample group of 521 people in the Virginia

comprehensive waiver have SIS results that can be easily compared. One main conclusion is

that these individuals with developmental disabilities are all clinically eligible for Medicaid and

each person can be served by the Virginia community comprehensive waiver. The Virginia

community ranges of scores for (1) the SIS Support Needs Index (SNI), (2) the sum of Section 1

ABE standard scores (A is Home Living Activities, B is Community Living Activities, and Eis Health

and Safety Activities) capturing key support needs, (3) the total Medical problems, and (4) the

total Behavioral problems for the individuals in the community encompass the range of scores

for all of the people at SEVTC. This means that there are people being successfully served with

SNI

mmunity who are like the people facing these challenges at SEVTC.

50

stitute

1

.( Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 65 of 78 PageID# 132 Comparison of Virginia SIS Results for SEVTC and the Comprehensive Waiver

The 521 people being served in the community include people with the same support needs, behavioral challenges, and medical problems -
80 90 100 110 120
m thA 1.,)t'. nAonlA livinn nt
Results - 2. People Currermy LIVing or .,~v I\" nove Considerable Needs for Support

Community Minimum Maximum

ABE

12

52

Medical

0

22

Behavior

0

20

SNI

60

143

SEVTC

ABE

27

42

Medical

0

22

Behavior

0

20

SNI

90

124

60 Support Needs Index

Support N .....d .. Index

The 156 individuals currently living at the SEVTC have considerable needs for support and are depicted on the graph on the right. Though smaller than the sample group from the community, the 156 people from SEVTC have a higher need for general support needs that staff members, family, and friends can help with. They have statistically higher needs in the key areas of Home Living Activities, Community Living Activities, and Health and Safety Activities and more medical problems than the community sample. The behavioral problems measured by the SIS are statistically the same for the community sample and the people currently living at SEVTC. In the following summary table the SIS results for people from SEVTC represent the greatest needs of all the various comparison groups offered.
SIS Norm Group and State Waiver SIS Results

I Group or State

I People I

Total Support

ABE

Medical Behavioral

Human Services Research Institute

2

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 66 of 78 PageID# 133 Comparison of Virginia SIS Results for SEVTC and the Comprehensive Waiver

SIS Norms SE Virginia Training Center (SEVTC) Sample from the Central Virginia Traininq Center
Virginia Waiver Oregon Colorado Georgia Nebraska Utah

Needs Index

1,306
156

(Range 38143)
100.00
111.96

Support Needs
(8-52) 30.00
35.37

Support

Support

(Range 032) 2.47
6.32

(Range 026) 4.99
5.25

75

108.95

34.73

3.72

Comprehensive Adult HCBS Waivers

521

101.74

30.56

401

101.00

29.95

3,631

99.88

29.14

5,206

98.20

28.72

288

100.42

30.11

3,759

100.09

29.96

2.43
3.27 2.83 1.95 3.23 2.29

3.80
4.77
4.98 6.13 3.79 4.81 4.36

Human Services Research Institute

3

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 67 of 78 PageID# 134 Comparison of Virginia SIS Results for SEVTC and the Comprehensive Waiver

Technical Notes
The SIS Support Needs Index (SNI) is an 10 like score representing support needs with an average of 100 and a standard deviation of 15. The sum of Section 1 ABE standard scores capturing key support needs is normed with the combined standard score of 30. The total Medical problems and total Behavioral problems are weighted-counts of the challenges people face in those important areas. The following tables provide more detailed comparisons of the SIS results from people at SEVTC and people using the Virginia community comprehensive waiver.

The range of these four SIS scores for the SEVTC institution group break into 3 roughly equal groups and the majority of scores of individuals in the Community group also fall into these 3 groups. These findings indicate that there are people in the Community with the same challenges as those faced by the people at SEVTC.

support Needs Index Scores

SNI SCORES Institution Group Community Group

90 to 108 30% 52%

109 to 114 34% 15%

115 to 124 36% 11 %

TOTAL 100%
78%

Sum of Section 1 ABE Scores

SUM ABE SCORES Institution Group Community Group

27 to 33 30% 42%

34 to 36 31% 18%

37 to 42 39% 10%

TOTAL 100%
70%

Section 3a Medical Scores

MEDICAL SCORES Institution Group Community Group

oto 2
28% 68%

3 to 7 39% 26%

8 to 22 33% 6%

TOTAL 100%
100%

Section 3b Behavioral Scores

BEHAVIORAL SCORES
Institution Group
Community Group

oto 2
35% 41%

3 to 7
35% 36%

8 to 20
30% 23%

TOTAL
100% 100%

Human Services Research Institute

4

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 68 of 78 PageID# 135 Comparison of Virginia SIS Results for SEVTC and the Comprehensive Waiver

Virginia Descriptive Statistics

Groups from Virginia

Minimu Maximu Averag std.

People m

m

e

Deviation

community Sum ABE Stand SUM 521

12

52

30.56

6.406

of ABE Standard

Score

Section3aTotai

521

0

Section 3a Medical

Total

22

2.43

3.138

Section3bTotal

521

0

20

4.77

4.592

Section 3b Behavior

Total Supports Needs

.

521

60

143 10l.74 13.441

Index

leaving institution

Sum ABE Stand SUM 156

27

of ABE Standard

Score

42

35.37

3.283

Section3aTotai

156

0

Section 3a Medical

Total

22

6.32

5.284

Section3b Total

156

0

Section 3b Behavior

Total

20

5.27

4.697

Support Needs Index 156

90

124 11l.96 6.569

Sum ABE Stand SUM of ABE Standard Score
Section3aTotai

Virginia Group Statistics

Groups from Virginia

Std. People Average Deviation

community

521

30.56

6.406

leaving institution

156 35.37

3.283

community

521

2.43

3.138

Std. Error Mean .281 .259
.137

Human Services Research Institute

5

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 69 of 78 PageID# 136 Comparison of Virginia SIS Results for SEVTC and the Comprehensive Waiver

leaving institution 156

6.32

5.284

.425

Section3bTotai

community

521

4.77

4.592

.201

Section 3b Behavior leaving institution 156

5.25

4.697

.378

Total

Support Needs Index community group

521

101.74

13.441

.589

leaving institution 156 111.96

6.569

.519

Sum ABE Equal

Stand SUM variances

of ABE

assumed

Standard Equal

Score

variances

not

assumed

Section3aT Equal otal Section variances 3a Medical assumed

Virginia Independent Samples Test

Levene's Test for Equality of Variances

t-test for Equality of Means

95% Confidence Interval of the Difference

F Sig. t

Sig.

Std.

2- Mean Error

taile Differ Differe

df d ence nce Lower Upper

48.888 .000 -9.109 674 .000 -4.862 .534 -5.909 -3.814

-12.733 517.08 .000 -4.862 .382 -5.612 -4.111 8

95.227 .000 -11 .449 674 .000 -3.918 .342 -4.590 -3.246

Human Services Research Institute

6

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 70 of 78 PageID# 137 Comparison of Virginia SIS Results for SEVTC and the Comprehensive Waiver

Equal variances not assumed

Section3b Total Section 3b Behavior Total

Equal variances assumed
Equal variances not assumed

Support Needs Index

Equal variances assumed

Equal variances not assumed

-8.774 187.33 .000 -3.918 .447 -4.799 -3.037 4

.508 .476 -1.191 674 .234 -.503 .423 -1.333 .326

-1.175 247.77 .241 -.503 .428 -1.346 .340 1

63.371 .000 -9.246

674 .000

- 1.117

- -8.131

10.324

12.516

-13.152 540.38 .000

- .785

- -8.782

2

10.324

11.866

Appendix: Validity Results of the SIS
y' Face Validity. Developed to measure the construct of supports, the SIS has greater face validity than the ICAP or other traditional assessments. The assessment of support needs using the SIS is done directly by persons with first-hand knowledge of the individual. The SIS directly measures the level of supports needed to enable an individual to participate successfully in the life of his or her community. It necessarily looks at more than skills and deficits, considering motivation, health, etiology, problem behavior, environment and other variables influencing the need for supports. By measuring individual support needs directly, it avoids the error inherent in inferring support needs statistically based on adaptive and maladaptive behavior scales. It is transparent. The SIS assessment of needed supports is more explicit and straightforward than other traditional instruments, and hence is a more open platform for the stakeholder deliberation and decision-making that attends individual resource allocation and payment processes. The SIS uses multi-point scales to rate the type (monitoring - full physical assistance), frequency (none to hourly) and intensity (no time to more than 4 hours in a 24 hour period) of supports needed by an individual to participate in 57 distinct aspects of life in their communities. Behavioral. health and other factors affecting support needs are considered.
y' Content Validity. To assure its content validity, the SIS was constructs were tested by 74 professionals working in the field of developmental disabilities. Using a Q-sort methodology, they narrowed the 130 candidate support indicators to 57, and reduced the 12 domains containing these indicators to seven. This makes the instrument more concise while still

Human Services Research Institute

7

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 71 of 78 PageID# 138
Comparison of Virginia SIS Results for SEVTC and the Comprehensive Waiver
asking the right questions. Efforts have been made to see the efficacy of the SIS in predicting extraordinary support needs [N=274)1.
,/ Intemal Consistency. The SIS is intemally consistenP. It has good inter-item reliability [all items or subscales in the measure are measuring the same construct). The intemal consistency reliability coefficients for all the SIS subscales, computed using Cronbach's Alpha method3, exceeded .90, which is the level widely accepted as demonstrating an acceptable level of internal consistency in assessment scales. The SIS also has a high degree of inter-rater reliability4: the SIS Index [total score) correlation coefficient was .87 [same interviewer, different respondent), .90 [different interviewer, same respondents), and .85 [different interviewer and different respondents) [N=40).
,/ Construct and criterion validity. The high correlation of SIS subscale scores with one another shows that the SIS measure has good construct validity, meaning that scores on the SIS are highly correlated with scores on measures of other constructs [for example, adaptive behavior and intelligence) that are believed to be correlated with the construct measured by the SIS. To establish its criterion validity, the SIS measures of support needs were correlated with an independently constructed "criterion measure" - a Likert-type scale of support needs. All correlation coefficients exceeded the .35 minimum level required to demonstrate criterion-related validitys. Support for the construct validity of the Supports Intensity Scale based on clinician rankings of need [N=50) was explored in Ontario Canada in 2009.6

I Wehmeyer, M., Chapman, T. E., Little, 1D., Thompson, J. Roo Shalock, Roo and Tasse, M. J. Efficacy of the Supports Intensity Scale (SIS) to Predict Extraordinary Support Needs. American Journal of Intellectual and Developmental Disabilities, 114( 1}, 3-14.
2 Tasse, M. J. Thompson, J. R. & McLaughlin, C. (2006). Inter-interviewer and inter-respondent concordance on the Supports Intensity
Sco/e. Poster presentation at the International Summit for the Alliance on Social Inclusion. May 3-5. Montreal, Canada.
3 Cronbach, L.J. (1951). Coetficient alpha and the internal structure of tests. Psychometrika, 16(3}, 297-334. 4 Thompson, J. ( Feb 21, 2006). SIS reliability: preliminary findings and procedures. Email from J. Thompson to J. Ashbaugh.
5 Hammill, 0.0./ Brown, l., and Bryant, B.R. (1992). A consumer guide to tests in print. Austin, TX: Pro-Ed.
6 Weiss, J. A.. Lunsky, Yoo Tasse, M. Joo & Durbin, J. (2009). Support for the construct validity of the Supports Intensity Scale based on clinician ran kings of need. Research in Developmental Disabilities. 3D, 933-941.

Human Services Research Institute

8

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 72 of 78 PageID# 139
,
EXHIBITE

. FILE No.7C8a6se073/:0069-c'0v9-01066:8067-REIPD:DMDHoMcRuSmASent 3 Filed 10/27/09FAXP:a80g4e3771366o3f878 PageID# 14P0AGE 1/ 3

JAMES S. REfNHARD, M.D. COMMISSIONER

COMMONWEALTH o/VIRGINIA
DEPARTMENt OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES
Post Offire Box 1797 Richmond. Virginia 23218·1797
July 6, 2009

Telephone (804) 786-3921 Vo;.,.rroD (804) 371·8977
www.dbhds.virginia.gov

Jonathan G. Martinis, Managing Attorney Virginia Office for Protection and Advocacy 1910 ByrdAvenue, Suite 5 Richmond, Virginia 23230
Dear Mr. Martinis:
I am responding to your information request submitted via facsimile on June 26, 2009. I trust my response finds you well, too. Your letter requested the following information:
(T)he committee agreed to the following wording thr the tlrst statement:
Provide services and supports for individuals who present complex medical and/or behavioral needs that cannot be met in traditional community homes, with goals and efforts to attain appropriate community services.
Will you please identify who these "individuals" are anticipated to be and trom where they will come'? In other words, will current SEVTC residents make up this group or will the "'individuals" be drawn from other institutions/the community'!
The answer to this question is that the process/or determining the identity oflhe individuals who will he offered SEVTC heds is currenrly under development. No one has yet heen selected as a canditkttefi)r an SEVTC hed atlhis date.
You asked uS to provide YOIJ with a copy of the "purpose statement" discussed in the Summary. Attached is a copy of the statement "Future Role/Purpose ofSEVTC."
Please feel free to contact me if you have any questions.
Sincerely,
"--w r?~J
James S. Reinhard, M.D

FILE, No.7C8a6se073/0:069-'c0v9-01066:8068-REIPD:DMDHoMcRuSmASent 3 Filed 10/27/0F9AXP:8a0g4e3771466o3f878 PageID# 14PA1GE 2/ 3
SEVTC Advisory Committee - May 16, 2009 Final Approved by Committee 5/26/09
Future Role/Purpose of SEVTC • Provide services and supports for individuals who present complex medical
and/or behavioral needs that cannot currently be met in traditional community homes, with goals and efforts to attain appropriate community services.
• Provide services and supports for individuals who present behavioral challenges that require short-term, intensive intervention to return to the community
• Provide services and supports for individuals that require short-term respite and/or stabilization
• Provide services and supports for individuals that require short-term medication stabilization
• Provide services and supports for facility and community residents through the Regional Community Support Center

,FILE• NoC.7a8s6e 037:0/096-cv'0-9001668:60-8REPID:DDMoHcMuRmSAeSnt 3 Filed 10/27/09FAPXa:g80e4737516o6f3788 PageID# 142PAGE 3/ 3

ToB Frt;C AssiSlance \·800.552-3962
(TTY Or Voice)

CQMMONWE H of VIRGINIA
Virginia Office f, r Protecti 1910Byr Avenue, 'te5
Richrnon VA 2323
2S Jun 2009

(804) ll5·Z04Z FAX (804, d6Z·10S7
'wWW.vopa.StMc.Vfl..~:!

Dr. James Rei.llhard, Comjnissioner

\

Virginia Department ofl\4ental Health, Mental Retardation

And Substance Abuse Services

\

1220 Bank Street

Richmond, VA23219 .

Dear Dr. Reinhard:

I hope this letter finds yoil. well. I am writing to request information about the 75 bed institution your Department plans to buil~ as a replacement for Southeastern Virginia Training Center (SEVTq.

I have reviewed the SEVTC Advisory Committee Meeting Sll1lllllaty for the May 26, 2009 meeting (copy attached). Page three of the Summary references the "Updated Statement on the Future RoIe/PUIpose of SEVTC;" The document states:

[T]he committee agreed to the following wotding for the first statement:

Provide services and supports for individuals who present oomplex medical andior behaviora;I needs that cannot be met in traditional co=unity homes, with goals and efforts to attain appropriate community services.

Will you please identify who these "individuals" are anticipated to be and from where they will come?
In olher wordS, will cl.llT~nt S:eVTC reaidents make up this group or will the "individuals" be drawn from other institutionslt!?-e community? Finally, pJease provide me with a copy of the "pUIpose
statement" discussed in the Surmnaty. If the statement is only a draft, please so state.

Thank you for you courtesy and cooperation with regard to this matter. If you have any questions COnCemlllS this request, :please feel free to contact me at (804) 662-7306.

l,,'d

Virginia's Protection and Advocacy System

Serving Persuns with Disabilities

88891L86 OJ. 1817" 299 1708

I:IdO() !J::l Wd 15;:2

6002 92 Nnr

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 76 of 78 PageID# 143
EXHIBITF

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 77 of 78 PageID# 144

Mark E. Rubin
Counselor to the Governor

COMMONWEALTH of VIRGINIA
Office of the Governor
August 18,2009

V. Colleen Miller, Esquire Executive Director Virginia Office for Protection and Advocacy 1910 Byrd Avenue, Suite 5 Richmond, VA 23230
Dear Ms. Miller:
Governor Kaine is in receipt of your request for records made to him as well as Secretaries Tavenner and Baskerville made in accordance with the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).
Your request for information is as follows:
" ... we ask that you, Secretary Tavenner and Secretary Baskerville forward us copies of all assessments, evaluations, studies or documents that were created or reviewed prior -to or leading to the conclusion that a new 75 bed institution is needed or appropriate. These should include any individualized assessments (please redact the names or personal identifying information of any persons with disabilities) indicating that a new institution is required to house people with disabilities and any documents indicating how, specifically, the 75 bed census was determined."
We completed a thorough search of our records, including those within the Department of General Services and the Department of Behavioral Health and Developmental Services. There are no documents in the possession ofthe Governor's office, Secretary Tavenner or Secretary Baskerville that are responsive to your request.
As you are aware, Governor Kaine proposed to close Southeastern Virginia Training Center (SEVTC) by June 30, 2009 in the budget he submitted to the 2009 General Assembly. It was the General Assembly that established the Appropriations Act
Patrick Henry Building· 1111 East Broad Street· Richmond, Virginia 23219· (804) 786-2211 • TTY (800) 828-1120 Mark.Rubin@governor.virginia.gov • www.governor.virginia.gov

Case 3:09-cv-00686-REP Document 3 Filed 10/27/09 Page 78 of 78 PageID# 145 V. Colleen Miller, Esquire August 18, 2009 Page 2
language to construct a new 75 bed facility at SEVTC. Should you have any questions or would like to discuss this matter further, please do not hesitate to contact me.
Sincerely,
Mark E. Rubin c: The Honorable Marilyn B. Tavenner, Secretary of Health and Human Resources
The Honorable Viola O. Baskerville, Secretary of Administration James B. Reinhard, MD, Commissioner, Department of Behavioral Health &
Developmental Services Rich Sliwoski, Director, Department of General Services

 
 Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 1 of 20 PageID# 168

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION

THE ARC OF VIRGINIA, INC., Plaintiff,
v.
TIMOTHY M. KAINE, Governor of Virginia, et al., Defendants,

) ) ) ) Civil Action No.: 3:09cv686 ) ) ) ) )

MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION Defendants Governor Kaine, Secretary Baskerville, Secretary Tavenner, Commissioner Reinhard and Director Sliwoski, by counsel, submit this memorandum of law in opposition to Plaintiff's motion for preliminary injunction. Plaintiff, The Arc of Virginia, Incorporated ("Arc"), an organization purporting to represent unidentified citizens with intellectual and developmental disabilities, seeks to enjoin these government officials from implementing a budget bill item enacted by the 2009 Virginia General Assembly, which directs Commissioner Reinhard and Director Sliwoski, as heads of two state agencies, to build a new, state-of-the-art facility to accommodate the needs of seventy-five (75) individuals with intellectual disabilities. For the reasons set forth below, Defendants ask this Court to deny Plaintiffs Motion for Preliminary Injunction on the following grounds: I) Arc does not have standing to file this lawsuit or to request a preliminary
injunction;

Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 2 of 20 PageID# 169
2) Even if Arc had standing to properly request an injunction, this case is not yet ripe for adjudication on its merits;
3) Because Arc has no standing to file this lawsuit and because this case is not ripe for adjudication on its merits, Arc cannot provide any evidence, much less a "clear showing that it is likely to succeed on the merits and likely to be irreparably harmed," warranting an injunction. I. FACTS
The Southeastern Virginia Training Center ("SEVTC"), built in 1975, is one of five regional facilities operated by the Virginia Department of Behavioral Health and Developmental Services (DBHDS) that serves individuals with intellectual disabilities.! The facility provides rehabilitative, educational and health services to the individuals residing there, as well as respite and emergency care to individuals with intellectual disabilities residing in the community. Commissioner Reinhard is the head of DBHDS. Compl. ~ 21.
Given the age of the facility and its current physical condition, SEVTC is in dire need of maintenance and repairs that are essential to meet life safety standards and the needs of its residents. The 20 cottages comprising SEVTC, each of which houses eight to ten residents, require a complete overhaul with replacement of mechanical systems including heating, ventilation and air conditioning, plumbing fixtures, kitchens equipment, and renovations to make the cottages more accessible to residents with physical limitations. See Department of Behavioral Health and Developmental Services,
1 See "Community Living Services," Report to House and Human Services Subcommittee of House Appropriations, January 19, 2009, found at: http://hac.virginia.gov/subcommitteeihealth human resources/files/01-19-09/SEVTC--0 1-19-09-print. pdf.
2

Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 3 of 20 PageID# 170

Second Advisory Committee Meeting at SEVTC Gym, Questions Posed by Parents &

Friends of SEVTC Presented by Ann Marie Sivertson 1-2 (February 26, 2009), attached

as Exhibit A.

In the fall of 2008, faced with a huge budget shortfall, Governor Kaine instructed

all state agencies to submit plans to reduce their budgets. Realizing that the costs to

repair and maintain SEVTC were greater than at other training centers, DBHDS proposed

the closure of the facility and Governor Kaine included the closure in his budget plan

presented to the General Assembly. As the General Assembly considered closing

SEVTC, it heard argrnnents for and against that proposal. See, e.g., Tim Early, Petition

Against

Closure

of

SEVTC,

available

at

http://www.petitiononline.com/SVETC/petition.html. attached as Exhibit B. Out of this

passionate debate, the General Assembly crafted Budget Bill-Item 103.05. Plaintiff's

Exhibit C.

This compromise legislation directs the Virginia Department of General Services

("DGS"), with the cooperation and support of DBHDS, to rebuild and resize SEVTC to a

75-bed facility (Compi. 'If 44) to serve clients with profound and severe intellectual

disabilities and to build, acquire, or renovate twelve community-based intermediate care

facilities (ICF-MR) and six MR homes (for individuals with intellectual disabilities)

(Compi. 'If'lf 45, 71). The result of this compromise is that individuals with intellectual

disabilities and their families will have more options available and greater choice in

determining where they wish to live. The legislature appropriated nearly $24 million for

this new facility to be built on the same land as SEVTC. Compi. 'If'lf 45,63.

3

Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 4 of 20 PageID# 171
The proposed new, downsized training center will be built on the portion of the existing SEVTC campus next to a residential neighborhood. The proposed training center will consist of fifteen individual homes that will each house no more than five individuals. All of the homes will have their own driveway, mailbox, garage, and yard. See Letter from Marilyn Tavenner, Secretary of Health and Human Resources, to Carter Harrison, Chair, Commnnity Integration Advisory Commission 2 (October 28, 2009), attached as Exhibit C. According to the Complaint, the contract for the new facility will be awarded in December 2009 and construction of the new facility is to begin in August 2010. Compl. '1[88.
With this downsizing, SEVTC's purpose and role will also change. Under Budget Item 315.CC.I, set out more fully below the Commissioner of DBHDS established the SEVTC Advisory Committee, a state and community planning team to develop a plan for the rebuilding and resizing of SEVTC. This Committee considered what the future role and purpose of SEVTC should be and determined that the new SEVTC will provide services and support for: (I) individuals presenting complex medical and/or behavioral needs that cannot currently be met in the community with the goal to attain appropriate community services; (2) individuals with behavioral challenges that require short-term, intensive intervention to return to the community; (3) individuals that require short-term respite or stabilization; (4) individuals that require short-term medication stabilization; and (5) facility residents and individuals living in the community through the Regional Community Support Center. See SEVTC Advisory Committee, Future Role/Purpose of SEVTC (May 26, 2009), attached as Exhibit D.
4

Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 5 of 20 PageID# 172
Given this directive, SEVTC's role will shift from long-term to short-term residential and non-residential services designed to help individuals move to and remain in the community. The long-term goal is for all state training centers to be regional safety nets for Virginia's most vulnerable citizens in need of intensive services, allowing those individuals to return to the community. See Department of Behavioral Health and Developmental Services, Item 315CC.I - A Preliminary Plan and Timeline for Downsizing Southeastern Virginia Training Center (July 1, 2009), p. 2, attached as Exhibit E.
The centers will also serve as resources to the community to provide care for individuals with intellectual disabilities who are experiencing behavioral problems, need additional medical oversight and supervision, or need services that will allow them to return to the community within 90 to 360 days. ld. With the increase in community residential options made possible by Budget Bill Item 103.105, current residents of the SEVTC will have greater choice to decide if they wish to reside in the resized SEVTC or in a community home.
Notably, at this time, no one has been selected to reside in the new SEVTC. See Letter from James S. Reinhard, Commissioner, DBHDS, to Jonathan Martinis, Managing Attorney, VOPA (July 6,2009), attached as Exhibit F. The process to determine which current residents may continue to reside at the new SEVTC will involve a thorough needs assessment of each individual using a variety of tools such as the Supports Intensity Scale ("SIS") assessment,2 service treatment plans, and medical history. See Ex. Eat 2.
2 The Supports Inteusity Scale is an assessmeut used to quantifY the support needs ofpeople with disabilities.
5

Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 6 of 20 PageID# 173
A study conducted by Human Services Research Institute (HSRI) comparing the SIS assessments of the residents of SEVTC with those of individuals living in the community receiving services through Virginia's comprehensive Medicaid waiver found that although SEVTC residents are eligible for waiver services, their needs are statistically higher in the key areas of home living activities, community living activities, and health and safety activities than those of individuals currently living in the community, but it did not determine where the needs of SEVTC residents could best be met, nor did it take into account the residents' choices and preferences regarding where they live and receive services. See Plaintiffs Exhibit D. Determinations of where an individual resides will be made based on the individual's choice, his medical and support needs, the availability of family supports and the availability of an appropriate community bed. In no circumstance will an individual who chooses to reside in the community be forced to move to the new SEVTC. See Exhibit C.
Indeed, legislation passed at the same time as Budget Bill Item 103.05 states expressly that resident choice will guide the placement of the citizens in question:
CC.1. Notwithstanding the provisions of Section 37.2-316, the Commissioner, Department of Mental Health, Mental Retardation and Substance Abuse Services shall establish a state and community planning team for the purpose of developing a plan for the rebuilding and resizing of Southeastern Virginia Training Center (SEVTC) ...The state and community planning team, under the direction of the commissioner, shall develop a timeline to appropriately transition 88 state facility consumers beginning in fiscal year 2010 to community services in the locality of their residence prior to admission or the locality of their choice after discharge or to another state facility if individual assessments and service plans have been completed, appropriate community housing is available and consumer choice has been considered.
6

Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 7 of 20 PageID# 174
The commissioner shall provide the preliminary plan and timeline to the Governor and the General Assembly by July 1, 2009 and a progress report regarding the plan for resizing and rebuilding the facility by October 1, 2009 and quarterly thereafter until the new facility and community facilities have been constructed and are complete. The final report shall outline the location where patients are discharged and any cost savings associated with the facility resizing and community transition. 2009 Appropriation Act, Item 315 (CC.l), p. 5 (emphasis added), attached as Exhibit G.3
In fact, through working with the current residents and their families, it has
become evident that the biggest challenge DBHDS faces is accommodating those
individuals who wish to remain at the new training center. See Exhibit C. Because it is
expected that there will be more than 75 current residents of SEVTC who choose to stay,
DBHDS has focused efforts on educating individuals and their family members regarding communI. ty optw. ns.4
II. LEGAL STANDARD
The decision to grant a preliminary injunction is discretionary with the district
court. Winter v. Natural Resource Defense Council, Inc., 129 S.Ct. 365, 374-76 (2008).
A preliminary injunction is an extraordinary remedy afforded prior to trial at the
discretion of the district court that grants reliefpendente lite of the type available after the trial. In re Microsoft Antitrust Litig., 333 F.3d 517, 524-26 (4th Cir. 2003). In each case,
3 Tills document is available online at: http://legl.state.va.us/cgi-binllegp504.exe?091+bud+21315. 4 Two other disability rights organizations, Voices of the Retarded ("VOR") and Parents and Friends of SEVTC, strongly support the construction of the new facility. See Letter from Peter Kinzler, Chair ofVOR's Legislative Committee and Jane Anthony, VOR Virginia State Coordinator to Governor Timothy Kaine (October 23, 3009) attached as Exhibit H; and Letter to Commissioner Reinhard Re: "Arc and VOPA SEVTC Advisory Committee Membership" (October 24,2009), attached as Exillbit 1. Arc by no means speaks for all of the current residents at SEVTC.
7

Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 8 of 20 PageID# 175
courts "must balauce the competiug claims of iujury and must consider the effect au each party of the granting or withholding of the requested relief." Winter at 376.
Under current Fourth Circuit law, a plaintiff seeking preliminary injunctive relief must allege facts, not just cursory statements or legal conclusions, establishing the following in order to obtain a preliminary injunction: (1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest. Real Truth About Obama v. Federal Election Commission, 575 F.3d 342, 346-47 (2009); Winter at 374. Additionally, the Winter decision requires that the plaintiff make a "clear showing" that it is likely to succeed and likely to be irreparably harmed. Id. at 375.
III. ARGUMENT A. Plaintiff Has No Standing to Bring These Claims
1. Individual Standing A threshold question this Court must consider is whether Arc has standing to sue the Defendants. The irreducible constitutional minimum of standing in federal court is composed of three elements. First, the plaintiff must have suffered injury in fact. Second, there must be a genuine nexus between a plaintiffs injury and a defendant's illegal conduct. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. See Friends of the Earth v. Gaston Copper, 204 F.3d 149 (2000); Allen v. Wright, 468 U.S. 767, 750-51 (1984). Arc's allegations do not suffice to satisfy any of these three elements in a standing inquiry. First, while individual, named plaintiffs may allege potential harm in the future
8

Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 9 of 20 PageID# 176
when the new SEVTC building is built if they are not provided with a choice of whether or not to live in the facility or in a community setting, without knowing who any of these individuals are, if and how they are being harmed, and without any injury in fact, Arc in and of itself cannot claim to have suffered any injury. "Petitioners must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent." Warth v. Seldin, 422 U.S. 490, 502 (1975).
Second, the Defendants in this case are merely charged with carrying out the Acts of the General Assembly, which is presumed to have acted constitutionally,5 and they have been directed to construct a facility to care for persons with intellectual disabilities, an act that is not unconstitutional or discriminatory under the Americans with Disabilities Act (ADA) or the Rehabilitation Act.6 Moreover, the Supreme Court in Olmstead, which has been cited as Arc's authority for a violation of the ADA and the Rehabilitation Act in this case, specifically stated, "We emphasize that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or
benefit from community settings." Olmstead v. L.c., 527 U.S. 581, 601-02 (1999).
Therefore, Arc cannot properly claim that the Defendants have engaged in any illegal conduct, and because Arc has not articulated any injury to itself due to the Defendants' conduct or actions, the constitutional nexus requirement of standing is fatally lacking in Arc's allegations.
5 Laws enacted by the state legislatures are presumptively constitutional. Kennedy v. Louisiana, 128 S.Ct. 2641, 2675 (2008). 6 Absent a qualification by treatment professionals, it would be iuappropriate to remove a patient from a more restrictive setting. 28 C.F.R § 35.l30(d); Olmstead at 602.
9

Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 10 of 20 PageID# 177
Finally, this Court cannot redress any injury that has not yet occurred to Arc, and Arc literally cannot provide a shred of evidence that it has been or is being harmed by unknown, future actions of the Defendants. Without "an invasion of a legally protected right which is a) concrete and particularized, and b) actual or imminent, not conjectural or hypothetical," a plaintiff has no standing to sue in a federal court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). See also L.A. v. Lyons, 461 U.S. 95 (1983). Not only is Arc not a proper party to this suit, its allegations are replete with nothing more than conjecture and hypotheticals.
Arc's only argument appears to be that it has expended some resources opposing the construction of the new facility, based on the Affidavit of Jamie Trosclair, Executive Director of the Arc of Virginia. That affidavit provides no details (in dollars or number of hours spent) on the alleged "expenditures." It states that Arc has engaged in advocacy on this issue, started work to form a new chapter near the facility, met with SEVTC residents and their families, and met with policy makers. Trosclair Aff. ~ 59. The law is clear, however, that organizations cannot point to litigation-related activities to support standing. Maryland Minority Contractors Assoc., Inc. v. Lynch, Record Nos. 98-2655 and 99-1272, 2000 U.S. App. LEXIS 1636, *14 (4th Cir. Feb. 7, 2000)(citing Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Dir. 1990)).
Arc relies on Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) to support its contention that it has standing to sue the Defendants. However, in Havens, the Court found that HOME, the plaintiff organization, had standing to sue because the racially discriminatory actions of the defendants had "perceptibly impaired" HOME's ability to provide counseling and referral services to its clients. Id. at 379. Additionally, HOME
10

Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 11 of 20 PageID# 178
spent significant resources to counteract the defendant's discriminatory practices. Not only has there been no discemable discrimination causing Arc any "perceptible impairment" in this case, as supported by the findings in the Olmstead case, as more fully set out below, Arc has not alleged that its advocacy for persons with intellectual disabilities has been hindered in any fashion due to the actions of the Defendants in carrying out the orders of the General Assembly. Therefore, Arc's contention that the Havens case supports its having standing in this case is too broad.
2. Associational Standing In a representative capacity, an organization or association may have standing to redress its members' injuries when: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. United Food and Commercial Workers Union v. Brown Group, 517 U.S. 544, 545 (1996) (citing Hunt v. Washington State Apple Advertising Comm 'n, 432 U.S. 333 (1977)). Arc has failed to meet the first and third prongs of the associational standing analysis. Regarding the first prong, while Arc alleges that it is an organization whose purpose is to advocate for persons with intellectual disabilities and that eight of its members are current residents at SEVTC, it fails to identifY any of these members. Moreover, it fails to allege facts to establish that any of its members have standing to sue as individuals. The Fourth Circuit has rejected generalized references to associations with persons with disabilities or to advocacy groups for persons with disabilities alleging
11

Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 12 of 20 PageID# 179
discrimination under the ADA. See Freilich v. Upper Chesapeake Health Inc., 313 F.3d. 205,216 (2002).
The relief requested by Arc in this case requires the participation of its purported members. Without the participation of its members, Arc cannot allege any harm subject to redress by this Court. Therefore it must associate with known members who have allegedly suffered concrete harm before it can properly maintain this lawsuit. See Tenn. Prot. & Advocacy, Inc. v. Bd. ofEduc., 24 F.Supp. 2d 808, 815-16 (M.D. Tenn. 1998); Mo. Prot. & Advocacy Servs., Inc. v. Carnahan, 499 F.3d. 803, 809-12 (8th Cir. 2007). See also A Helping Hand, LLC v. Baltimore County, 515 F.2d 356, 363 n.3 (4th Cir. 2008)(associationa1 standing requires showing of injury done, not just feared, by one or more members of that association). B. Arc's Claims Are Not Ripe
The question of standing bears close affinity to questions of ripeness: whether the harm asserted has matured sufficiently to warrant judicial intervention. Warth, 422 U.S at 499. The facts set forth above show that this matter is not ripe because there has been no assigmnent of individuals in the current SEVTC for placement in the new planned facility. See Exhibit C.
Arc argues in its Motion for Preliminary Injunction at 14-15 that it should be allowed to sue before the new facility is built in order to avoid unnecessary expenditures on that building. However, none of its purported members has yet been assigned to the not-yet-built facility, and its claims are therefore premature. See Lyons 461 U.S. at 10205. Moreover, becanse residents will voluntarily choose to live in the facility, there is no "harm" to which Arc can point. See Exhibits C and G; Texas v. United States, 523 U.S.
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Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 13 of 20 PageID# 180
296 (1998) (affinning dismissal of declaratory relief action due to lack of ripeness). In Olmstead, as more fully set out below, known plaintiffs suffered a definitive harm, the harm was concrete and without conjecture, and an appropriate redress was available. Olmstead v. L.e., 527 U.S. 581 (1999). None of that exists here. Arc's unripe allegations are based on tenuous, unknown fears and its claims should be dismissed. 7 C. The Arc's Claims Do Not Meet the Standard for Injunctive Relief
A federal court will not issue an injunction unless the right to relief is clear and ripe, and a plaintiff cannot establish a right to a federal remedy without meeting the requirement of standing. Hoepfl v. Barlow, 906 F. Supp. 317, 320 (E.D. Va. 1995). A preliminary injunction is an extraordinary remedy afforded prior to trial at the discretion of the district court that grants reliefpendente lite of the type available after the trial. In re Microsoft Antitrust Litig., 333 F.3d 517, 524-26 (4tl> Cir. 2003). In each case, courts "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Winter 129 S.Ct. at 376.
Arc contends that the future harm it may endure when the new facility is built meets the criteria set forth in Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1976). However, the Fourth Circuit's Blackwelder "balance-ofhardship" test is no longer the acceptable analysis with which this Court can evaluate a motion for a preliminary injunction. The Supreme Court's decision in Winter articulates
7 Arc contends that the Friends ofthe Earth case supports its position regarding the ripeness of a threatened injury, but in that case the Fourth Circuit found there was an actual injury to one of the named plaintiffs when they lost the enjoyment of their lake, which included the reduced enjoyment of fishing from, swinuning in and boatiug on the lake. While the actual extent of the environmental damage from the defendant recycling company's chemical discharge into the lake was not known, the harm to the named family in the loss of their enjoyment of the property did indeed exist and was sufficient to the court. 204 F.3d. at 152-53.
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Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 14 of 20 PageID# 181
a different, stricter standard for injunctive relief which the Fourth Circuit has now adopted in Real Truth About Obama, 575 F.3d at 346-47, and Winter at 374-76.
The Winter and Real Truth About Obama cases require a plaintiff to establish the following in order to obtain a preliminary injunction: (1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest. Winter at 374; Real Truth About Obama at 345-46. Additionally, the Winter decision requires that the plaintiff make a "clear showing" that it is likely to succeed and likely to be irreparably harmed. Winter at 375.
This requirement differs substantially from the Blackwelder test, which permitted the plaintiff to demonstrate only a "possibility" of success and the "possibility" of irreparable injury. Real Truth About Obama at 346-47. The Winter case eliminates a federal court's ability to grant injunctive relief based upon unripe, speculative claims of events that mayor may not occur in the future. Winter at 375-76; Real Truth About Obama at 347. Finally, Winter emphasizes that all four of these elements must be present, and it rejects the theory of a "flexible interplay" of the four elements under the Blackwelder test. Winter at 374; Blackwelder at 196. Under this standard, Arc's demands for injunctive relief fail.
1. Arc Is Unlikely to Succeed on the Merits Arc cannot succeed on the merits of this case. Not only is Arc without standing in this case, Arc's motion is replete with unripe and unfounded allegations that current SEVTC residents will be forced at some point in the future against their will to live at the new facility. Arc argues that these acts of the Defendants would be a violation of the
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Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 15 of 20 PageID# 182
ADA and the Rehabilitation Act as interpreted in Olmstead v. L.e., 527 U.S. 581 (1999). However, nothing in the ADA or the Rehabilitation Act prohibits the construction of a new facility. Olmstead at 601-02. Moreover, Arc alleges no factual basis ofa current or ongoing injury, and Arc cannot produce a shred of evidence to support it. In fact, all of the individuals currently at SEVTC will be evaluated, and those who wish to live in the co=unity may, while those who desire to remain in the new facility will be considered for placement there. Indeed, after working with the current residents and their families, DBHDS believes that more than seventy-five (75) current residents of SEVTC will choose to live in the new facility.
The Olmstead decision specifically held that the proscription of a placement for a person with mental disabilities in a facility rather than in a community setting is a violation of the anti-discrimination provision of Title II of the ADA if the following three events have occurred: (1) the state's treatment professionals have determined that co=unity placement is appropriate, (2) the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and (3) the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with mental disabilities. Olmstead at 587.
Not only is the first element of the Olmstead analysis above missing from Arc's argument (because it has not yet occurred and is not ripe for adjudication), Arc has audaciously and quite unfortunately failed to take into account the second most critical element of the Olmstead analysis: the choice of the individuals to live in a communitybased setting or to continue to reside at a state-operated ICF/MR facility. Without facts to support a current or i=ediate threat that SEVTC residents will be deprived of a lack
15

Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 16 of 20 PageID# 183
of choice, Arc's allegations on behalf of the residents are not ripe and cannot succeed on the merits.
2. Arc Cannot Establish Irreparable Harm Regarding the second element of injunctive relief, Arc alleges that its members "will" be harmed and that there is a "threat of harm" if the new facility is constructed. Conspicuously, Arc does not allege any present or ongoing harm to the individuals who are currently residing at SEVTC in an old and deteriorating building. Arc further alleges that when the new facility is built, Defendants will be in violation of the ADA, the Rehabilitation Act and the Olmstead decision. While Arc attempts to draw a parallel between the facts of the present case and those of the Olmstead case, Arc's allegations could not be more unlike those in the Olmstead case. In Olmstead, two disabled women were determined by their treatment teams to be better suited for community living than for an institutional setting. The State of Georgia failed to afford the women the least restrictive environment long after the treatm.ent team's determination and kept the women in an institutional setting. As a result of the failure of Georgia to move the women to a community setting, the Court found that the state had discriminated against them in violation of the ADA. Olmstead, 527 U.S. at 587-88. In Olmstead, a defmitive harm had been committed to known plaintiffs; the harm was concrete and without conjecture; and an appropriate redress was available. None of that exists in this case. Here, Arc's unripe allegations are based on tenuous, unknown fears about the future, a harm that is not currently occurring, and a harm that is not likely to be committed against Arc or any unnamed plaintiffs. In the Winter case, as in the
16

Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 17 of 20 PageID# 184
present matter, Arc's allegations are merely speculative, and the Winter case specifically rejects granting injunctive relief to prevent the possibility of some remote future injury. "Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief" Winter, 129 S.Ct. at 375-76. Because Arc bases its request for injunctive relief on a remote, future activity that mayor may not harm unnamed individuals, its motion for an injunction should be denied.
3. The Balancing of the Equities and the Public Interest Favor the Defendants
Arc also fails to satisfY the thlrd and fourth elements of the Winter analysis. A balancing of the equities clearly favors the Defendants as a result of the analysis of the first two elements above. Equity should favor the residents of SEVTC, not Arc's urnnistakable mission to derail the rebuilding of SEVTC, thus causing irreparable harm to the residents who will be forced to live in an old and deteriorating building. Moreover, the individuals for whom SEVTC provides care will be irreparably harmed if they are denied their choice to live in the community or to continue to reside in an institutional setting. Equity should favor the provision of community settings for those who can and do want them; equity should not reward the salacious yet unfounded allegations of discrimination that has not yet occurred and that is not likely to occur.
Moreover, the public interest is not served by granting this injunction. The General Assembly allocated almost $24 million of the Commonwealth's budget to accommodate the needs and critical choices of current SEVTC residents. The General Assembly, as the public's elected representatives, balanced the public policy and
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Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 18 of 20 PageID# 185
economic needs of the Commonwealth in deciding whether to close SEVTC, an old and deteriorating facility, or to build a smaller, community-focused state-of-the-art replacement facility and 18 additional community facilities and homes to provide a broader choice of service settings to persons with intellectual disabilities. The public iuterest in upholding the laws enacted by its representatives, who have closely examined the policy choices about how best to meet the needs of its citizens with disabilities, outweighs any remote or speculative interest on the part of Arc. Furthermore, in purporting to represent itself and eight other unnamed individuals at SEVTC, Arc ignores the interests of the other 147 SEVTC residents, many of whom may choose to reside in the rebuilt facility. The public interest demands that their interests also be considered.
Arc's motion for preliminary injunction fails on each of the four required elements under the Winter analysis, and the Court should deny the injunction.
IV. CONCLUSION For the reasons stated above, Defendants Governor Kaine, Secretary Baskerville, Secretary Tavenner, Commissioner Reinhard and Director Sliwoski respectfully request this Court to deny Plaintiff Arc's motion for preliminary injunction. The Defendants reserve the right to introduce factual testimony and exhibits as may be necessary.
Respectfully submitted,

By

lsi

Ishneila LG. Moore, VSB #42280

Attorney for Defendants

Office of the Attorney General

Health Services Section

900 East Main Street

Richmond, Virginia 23219

(804) 371-6019

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Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 19 of 20 PageID# 186

The Honorable William C. Mims Attorney General of Virginia
David E. Johnson Maureen Riley Matsen Deputy Attorneys General
Jane D. Hickey Peter R. Messitt Allyson K. Tysinger Senior Assistant Attorneys General
Ishneila Moore Stephen M. Hall Assistant Attorneys General Office of Attorney General 900 East Main Street Richmond, VA 23219 Phone: (804) 371-6019 Fax: (804) 371-8718

(804) 371-8718 (Fax) imoore@oag.state.va.us

CERTIFICATE OF SERVICE
I hereby certifY that on fue l2fu day of November, 2009, I electronically filed fue
foregoing with the Clerk of the Court using the CM/ECF system, which will send a
notification of such filing (NEF) to the following:
Jonafuan Martinis Virginia Office for Protection and Advocacy 1910 Byrd Avenue, Suite 5 Richmond, VA 23230 (804) 225-2042 (804) 662-7057 (Fax) Jonafuan.Martinis@vopa.virginia.gov.

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Case 3:09-cv-00686-REP Document 9 Filed 11/12/09 Page 20 of 20 PageID# 187
Isl
Ishneila LG. Moore, VSB #42280 Attorney for Defendants Office of the Attorney General Health Services Section 900 East Main Street Richmond, Virginia 23219 (804) 371-6019 (804) 371-8718 (Fax) imoore@oag.state.va.us
20

 
 ~
IN THE UNITED STATES DISTRICT COURT

DEC I 7 2009

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

CLERK. U.S. DISTRICT COURT RICHIJIOiJD. VA

THE ARC OF VIRGINIA, INC. Plaintiff,
v. TIMOTHY M. KAINE, et al.
Defendants.

Civil No. 3:09cv686

MEMORANDUM OPINION This matter is before the Court on Plaintiff's MOTION FOR PRELIMINARY INJUNCTION and Defendants' MOTION TO DISMISS. For the reasons set forth below, the MOTION TO DISMISS {Docket No. lO} will be granted and the MOTION FOR PRELIMINARY INJUNCTION {Docket No.2} will be denied.

BACKGROUND The Plaintiff, The Arc of Virginia, Inc. ("The ARC" or \\ARC") is a not-for-profit corporation of and for people with intellectual and developmental disabilities. (Compl. at ~ 6.) ARC's mission is to advocate for \\the rights and full participation of all children and adults with intellectual and developmental disabilities. II (Id. at ~ lO.) To fulfill this mission, ARC advocates for changes in public policy, provides training to its members, and

provides information to the public about issues important

to people with intellectual and developmental disabilities.

(Id. at ~ 11.)

The Southeastern Virginia Training Center ("SEVTC") is

a state institution which provides housing and services for

Virginians with intellectual disabilities.

SEVTC is

located on a 120 acre compound in Chesapeake, Virginia and

is segregated from the community on all sides of the

compound.

(Id. at ~~ 25, 27.)

In his proposed 2010

budget, Governor Timothy M. Kaine ( "Governor Kaine" )

proposed closing SEVTC, stating that SEVTC residents "don't

need to be institutionalized." (Id. at ~ 41.) Governor

Kaine's proposed 2010 budget redirected funds earmarked for

SEVTC to build community-based housing for people with

intellectual disabilities. (Id. at ~ 42.) Secretary of

Health and Human Services Marilyn B. Tavenner ("Secretary

Tavenner") and Commissioner of the Department of Behavioral

Heal th and Developmental Services ( "DBHDS" ) James Reinhard

("Commissioner Reinhard") supported Governor Kaine's plan

to close SEVTC and build community-based housing. (Id. at

~ 43.)

Instead of closing SEVTC, the General Assembly, after

hearing from thousands of citizens who were, or were

related to, individuals with disabilities, passed Budget

2

Bill Item 103.05(A) (1) (the "Budget Bill Item"), which allotted $23,768, 000.00 to rebuild and resize SEVTC to a 75-bed facility. (Id. at ~~ 44-45.) At the same time, the General Assembly also passed Budget Bill Item 103.05 (A) (3) which directs the Department of General Services (DGS) and the Department of Mental Health, Mental Retardation and Substance Abuse Services ( \\ DMHMRSAS" ) to build 12 community-based Intermediate Care Facilities (ICF-MR) and 6 MR homes. (Id . at ~ 49.) In April 2009, Governor Kaine approved and signed the budget, including Budget Bill Items 103.05(A) (1) and 103.05(A) (3). (Id. at ~ 50.)
In June 2009 a state-sponsored study of SEVTC residents concluded that, under certain circumstances, all residents could be served in the community. (Id. at ~ 53.) The 2009 study conditioned its conclusion on the assumption that a variety of services necessary for the care of the persons relocated to community-based facilities would be available. Contrary to the assertions of ARC, the 2009 study did not establish that those necessary services would be available either generally or for the specific individuals then residing at the SEVTC. (See Compl. at Ex.
B. )
DBHDS headed an Advisory Committee of stakeholders, of which ARC was a member, to discuss ways to implement the
3

Budget Bill Item. (Id. at ~~ 58-59.) On August 13, 2009,

Commissioner Reinhard presented a summary of the

implementation plan to the Advisory Committee. (Id. at ~

60.) According to Commissioner Reinhard, it is expected

that some of the current SEVTC residents will reside in the

new facility but will be evaluated by trained professionals

before they are deemed qualified for residency there. (Id.

at ~ 67. )

Other individuals, including people who

hereafter come to live at SEVTC before the new facility is

completed, will be eligible to live there. They too will

have to be evaluated for eligibility. Based on these yet

to be performed evaluations, DBHDS will identify 65

individuals who are qualified to live in the new

institution. Those who are not eligible to live in the

replacement facility will be relocated to the community-

based facilities which are to be built as instructed under

Budget Bill Item 103.05(A) (3), if, of course, they are

capable of living in such a setting. (Id. at ~~ 69, 71.)

Commissioner Reinhard has stated that \\ [tJ he process

for determining the identity of the individuals who will be

offered SEVTC beds is currently in development. No one has

yet been selected as a candidate for an SEVTC bed at this

date." (Id. at ~ 57.) Additionally, in an October 28,

2009 letter, Secretary Tavenner wrote that "individual

4

choice is a hallmark of this entire project. No one will be forced to transfer to these new homes on the training center campus if they would prefer to live in another communi ty location. II (Def. Opp' n at Ex. C. ) (emphasis added)
In sum, the Complaint alleges that Virginia is developing a plan for housing and serving its citizens with disabilities in several different settings, one of which is a facility to replace the inadequate SEVTC facility with a similar facility that provides institutional rather than community-based living arrangements and related services. Sixty-five people will be able to live at the new facility if they are qualified to do so and if they, or their lawful representatives, make the choice to live there. The plan also provides for the building of more community-based living facilities for those, including current residents of SEVTC, who can function in such facilities and choose to do so.
The plan which is the subject of this action is but one part of Virginia's program to provide living arrangements and other services to its citizens with disabilities. The particular aspect of the plan at issue here was created by Virginia's legislature after hearing from many of its citizens with disabilities, their lawful
5

representatives, and groups, including ARC, that advocate for the disabled. Thereafter, the administrative agencies charged with implementing the Budget Bill Items and integrating the new program with the Commonwealth's existing programs set to work on planning how best to achieve implementation of the new and integrating it with existing programs. That work was still underway when this action was filed.
On October 27, 2009, eight months after the Budget Bill Item was passed and two months after the outlines of Virginia's proposed plan was announced, ARC filed this action against Governor Kaine, Secretary of Administration
Viola o. Baskerville ("Secretary Baskerville"), Secretary
Tavenner, Commissioner Reinhard, and Director of the Department of General Services Richard F. Sliwoski ("Director Sliwoski") (collectively the "Defendants"). All of the Defendants are sued in their official capacities. ARC seeks a declaratory judgment against the Defendants, alleging that the allocation of money to build the new facility violates the Americans with Disabilities Act ("ADA"), Section 504 of the Rehabilitation Act (\\§ 504") and the Supremacy Clause. The ARC also seeks to enjoin the Defendants from building the new facility.
6

In the Complaint, the ARC refers to its claims as

"Causes of Action" and designates them as "First" through

"Sixth," respectively.

For ease of reference, those

designations will be referred to as Counts 1 through 6.

In Counts 1 and 2, ARC sues in its organizational

capacity, seeking declaratory relief that the Budget Bills

Item and the plan to build the facility to replace SEVTC

violates its members' rights under the ADA and § 504,

respectively.

In Counts 4 and 5, ARC sues in its

organizational capacity to enjoin the violations of ADA and

§ 504 rights that are sought to be declared in Counts 1 and

2. In each instance, the parallel claims for injunction

and declaratory relief are substantively the same and are

based on the assertion that the Budget Bill Item and the

plan to build the replacement facility violate the ADA and

§ 504, respectively, and for the same reason. In Counts 3

and 6, ARC sues in its own right seeking, respectively,

declaratory relief (Count 3) and injunctive relief (Count

6) on the theory that the Budget Bill Item and the plan to

build the replacement facility violate the ADA and § 504

and hence the Supremacy Clause.

At the core of all six counts of the Complaint is the

allegation that Virginia is discriminating against persons

with disabilities by replacing a dilapidated 120 room

7

institution with a new one about half that size as part of

a plan which involves building that facility as well as

community-based facilities. The linchpin of ARC's claim,

in each count, is that the "unjustified institutional

isolation of persons with disabilities is a form of

discrimination

., II citing Olmstead v. L.C. ex rel.

Zimring, 527 U.S. 581, 600 (1999).

Because there is no case or controversy that is ripe

for decision, the Court has no jurisdiction to decide the

subject matter of this action and thus it must be

dismissed.

DISCUSSION

I. The Legal Standard

A motion to dismiss for lack of subject matter

jurisdiction under the doctrine of ripeness is assessed

pursuant to the principles of Fed. R. Civ. P. 12{b) (1). Of

course, it is the burden of the party bringing a case to

prove the existence of subject matter jurisdiction.

Richmond, Fredericksburg & Potomac Railroad Co. v. United

states, 945 F.2d 765, 768 (4th Cir. 1991). Where, as here,

documents are referred to in, and incorporated in, the

Complaint, the Court can consider all of those documents

when deciding the matter of subject matter jurisdiction.

See id. Here, the defendants assert that the lack of

8

jurisdiction appears on the face of the Complaint considered in perspective of the documents to which it refers, which it incorporates by reference, and which are attached to it as exhibits.
Accordingly, Rule 12(b) (1) will serve as the guidepost for the assessment of the issue of ripeness which is asserted as the predicate for the motion to dismiss the Complaint for lack of subject matter jurisdiction. In this case, the principles of justiciability control the analysis and that concept is discussed briefly below before assessing the details of the ripeness argument. II. Justiciability
Article III of the United States Constitution limits the jurisdiction of the federal courts to actions which present actual cases and controversies. U.S. CONST" Art. III, § 2. Thus, the threshold question in every action is whether the court has the power to entertain the action, i. e. whether "the plaintiff has made out a case or controversy between himself and the defendant within the meaning of Art. III." Warth v. Seldin, 422 U.S. 490, 498 (1975) .
9

III. Ripeness
As one commentator has aptly put it:
The ripeness doctrine concerns the timing of the suit. It asks whether the case has been brought at a point so early that it is not yet clear whether a real dispute to be resolved exists between the parties.
15 Moore's Federal Practice § 101. 70 [2) {Matthew Bender 3d
ed. } Of course, \\ [t] he question of ripeness goes to
whether the district court has subject matter
jurisdiction." Id. at § 101.70[1].
Ripeness is a justiciability doctrine \\drawn both from
Article III limitations on judicial power and from
prudential reasons for refusing to exercise jurisdiction."
Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U.S.
803, 808 (2003). It must be remembered that:
[T] he ripeness requirement furthers the interests of judicial restraint by avoiding possible judicial interference with the other branches of government that would ultimately prove unnecessary if a live dispute were never to develop. Moreover, unless a case is ripe, a court cannot be assured that the facts have been sufficiently developed and the matter sufficiently concrete for the court to render a decision that will resolve the dispute and affect the conduct of the parties. The ripeness doctrine therefore prevents the courts from becoming entangled in purely abstract or theoretical disagreements.
10

15 Moore's Federal Practice § 101.70 [2] (Matthew Bender 3d

ed. )

When a case presents issues arising out of actions

taken by administrative agencies, the doctrine serves to

"prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract

disagreements over administrative policies, and also to

protect the agencies from judicial interference until an

administrative decision has been formalized and its effect

felt in a concrete way by the challenging parties. 1I

Pacific Gas and Electric Co. v. State Energy Resources

Conservation & Dev. Comm'n, 461 U.S. 190, 200 (1983).

Likewise, where a case presents a constitutional question,

the ripeness doctrine helps to make sure that there is a

genuine constitutional issue that necessarily must be

decided and, therefore, the ripeness doctrine helps to

avoid

premature

or

unnecessary

constitutional

adjudications.

The concept of ripeness is a central guiding precept

in the "case - or - controversyll requirement of Article III

of the Constitution which, of course, is "equated with a

prohibition on the issuance of advisory opinions, decisions

based on hypothetical facts, or attempts to address

11

abstract issues that lack a concrete basis. II 15 Moore's Federal Practice § 101.75 (Matthew Bender 3d ed.)
As the treatise puts it: Three basic factors are required for the matter to constitute a controversy: • A legal dispute that is real and not hypothetical; • A concrete factual predicate so as to allow for a reasoned adjudication; and
• A legal controversy that can sharpen the issues for judicial resolution. A hypothetical or underdeveloped set of facts or an abstract issue without a concrete dispute that affects the individual parties in a specific manner will not satisfy these criteria. Id. Ripeness requires consideration of "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. II Texas v. United States, 523 U.S. 296, 300-01 (1998) (internal citations omitted). The burden of demonstrating that an action is ripe for adjudication falls on the party asserting the existence of jurisdiction. Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006).
12

A. Fitness
Fitness is a most important jurisdictional assessment because, unless an issue is "fit" for judicial review,
there is no actual case or controversy. As explained in an
authoritative practice treatise, " [t] he critical question
concerning fitness for review is whether the claim involves uncertain and contingent events that may not occur as
anticipated or may not occur at all." 15 Moore's Federal
Practice § 101.76 (Matthew Bender 3d ed.) Accordingly, the examination of fitness requires consideration of such
factors as: finality of the issue presented for review, definiteness of the threat of harm, and the extent to which resolution of the matter depends on facts not yet developed. An underlying consideration is whether putting off a decision may avoid the need to make a decision al together, preserving judicial resources and comporting with the court's role as the governmental branch of last resort, which should not make unnecessary decisions.
Id. It also is true that \\ [a] case is fit for judicial
decision when the issues are purely legal and when the action in controversy is final and not dependent on future uncertainties." Miller, 462 F.3d at 319. The foregoing principles guide the fitness inquiry here.
13

In each count of the Complaint, ARC asserts that the Budget Bill Item authorizing and funding the building of the replacement facility,l offends federal law. In Counts 1 and 4, the ADA rights of ARC's members are allegedly violated by that bill. In Counts 2 and 5, the § 504 rights of ARC's members are allegedly violated by that bill. In Counts 3 and 6, it is alleged that the Budget Bill Item violates the ADA and § 504 and, in so doing, offends the Supremacy Clause. In addressing the fitness issue, ARC asserts that whether the authorization and funding provision, i.e., the Budget Bill Item itself, violates the ADA, §504 or the Supremacy Clause present a purely legal question that is fit for judicial review.
However, those assertions ignore the text of the Complaint and the core position being asserted in it. Throughout the Complaint, ARC asserts that the implementation of the Virginia plan, of which the building of the facility is a part, is the conduct that offends the ADA and § 504, and by offending those statutes also violates the Supremacy Clause. Although it is true that the Complaint, on occasion, attacks the Budget Bill Item
ARC does not attack the other Budget Bill Item {Item 103.05 {A} {3}} which authorizes and funds the building of the other facili ties that are to be part of virginia's expanded program to serve the mentally disabled.
14

"and/or" the plan, the substance of the Complaint reveals the obvious reality that it is the plan to place people in the building that lies at the substantive heart of the Complaint.
That is underscored by the legal precepts on which the Complaint is based and which are repeated in all the briefs as the legal predicate of the claims. Specifically, the core legal principles on which each count of the Complaint rests are the statutory and regulatory provisions2 which disfavor institutionalizing persons with disabilities and the part of the decision in Olmstead that defines discrimination to include unwarranted, unsupported institutionalization of the mentally disabled. As the Complaint makes clear, it is Virginia's plan which allegedly achieves that result, not the Budget Bill which authorizes, and funds the building of, the replacement facility. Hence, upon consideration of the substantive allegations of the Complaint and the documents that are attached to it or incorporated in it by reference, the
2 42 U.S.C. § 12132; 29 U.S.C. § 794; 28 C.P.R. § 35.130; 28 C.F.R. § 35.130{d); 28 C.P.R. § 41.51.
15

Court concludes that the attack on the Budget Bill Item is not a purely legal issue. 3
In the Complaint, ARC asserts that, by planning to place any current or future resident of SEVTC in the replacement facility, the Virginia plan will offend Olmstead and the cited statutes and regulations. And, says ARC, that plan will be made possible of achievement if the replacement facility is built. ARC's case is centered on the following cite from Olmstead: "[u]njustified isolation [of persons with mental disabilities], we hold, is properly regarded as discrimination based on disability" 527 U.S. at 597. However, the Complaint, and all of ARC's papers ignore the sentence in Olmstead that follows the part of Olmstead on which ARC relies. In that sentence, the Supreme Court held:
But, we recognize, as well, the States' need to maintain a range of facilities for the care and treatment of persons with diverse mental disabilities, and the States' obligation to administer services with an even hand. Id.
3 As explained later in the op~n~on, to the extent that the attack on the Budget Bill Item could be regarded as a purely legal issue, ARC has nonetheless failed to satisfy the hardship facet of the ripeness analysis.
16

That passage is important in deciding the fitness issue presented in this case because, in that part of its opinion, the Supreme Court recognized the inevitability that States are obligated to maintain facilities that enable them to provide care and services for a diverse population of persons with mental disabilities and to do so on the basis of the particular disability and the needs thereby presented.
Later, in the opinion, the Supreme Court made clear that the placement decision must be made on the basis of determination of the States' treatment professionals and in perspective of the affected person's choice, all to be accomplished after "taking into account the resources available to the State and the needs of others with mental disabilities." Id. at 587. The statutes which the ARC asserts are violated by the plan contain essentially the same requirements. This ensures that individuals are placed in the most appropriate setting available. To achieve that result federal law obligates the States to make a variety of carefully informed decisions in making placement decisions and those decisions involve individual assessments of each individual's needs and wishes, as well as the needs of other persons with mental disabilities to which the States have similar obligations.
17

The record here establishes that those decisions have not yet been made as to ARC members in SEVTC or any other residents there. To begin, not a single person currently residing at SEVTC has been selected for placement at the new facility. In fact, the process by which residents will be selected has just begun. Significantly, individual assessments have not yet been undertaken. The 2009 study simply did not do that. It made conclusions based on the assumption that the current residents could be accommodated in community-based facilities while Olmstead requires that the States' professionals conclude that such a placement actually can be reasonably accommodated. Id. And, that decision has not been made yet either.
A reading of the Complaint and other properly considerable documents show, without doubt, that Virginia is in the process of making placement decisions and is doing so, at least as of now, in the mode required by Olmstead and federal law. The record also is clear that no person will be required to live in the replacement facility unless that person, or his or her lawful representative, chooses to do so.
Of course, it is possible that the placement decisions, when made, may offend federal law. But, that will depend on future actions and there is no indication
18

now that Virginia's decisional process is unlawful or that persons will be placed in settings that are inappropriate to their individual needs or at odds with their choice.
The record also shows that Virginia's plan contemplates converting the replacement facility to one that can provide other services when, and if, it is possible to make community-based accommodations available to those who want them (of course, assuming that institutionalized living is not necessary). There is no way now to tell whether those pending decisions will offend the ADA, § 504, or the rule of Olmstead.
Finally, the reality of fiscal circumstances may intercede and affect virginia's plan, including whether the replacement facility is built and, if so, what its capacity may be. Like almost all States, Virginia is suffering great economic distress. Its income is declining and it even now is considering more reductions in State services. In the General Assembly session that begins in January, decisions will be made on a wide range of fiscal issues.
Although Virginia does not now intend to abandon plans to build the replacement facility and is now in the process of contracting to that end, it would be unrealistic not to recognize that the Commonwealth's fiscal circumstances
19

could precipitate a change that could render it unnecessary

to decide the issues raised in ARC's Complaint.

In sum, all of ARC's claims involve "uncertain and

contingent events that may not occur as anticipated or may

not occur at all." 15 Moore's Federal Practice § 101.76

(Matthew Bender 3d ed.) There is no definite threat of

harm. And, putting off a decision may, and indeed, likely

will, avoid the need to entangle the federal judiciary in

affairs entrusted to the State government and its

administrative agencies.

It also will avoid lending a judicial hand to the real

objective behind the action which, as ARC's counsel

expressed at oral argument, is to eliminate all

institutional housing of persons with mental disabilities

anywhere. Whether that is, or is not, a desirable goal is

beyond the purview of the courts. And, the Supreme Court

has held that "nothing in the ADA or its implementing

regulations condones termination of institutional settings

for persons unable to handle or benefit from community

settings."

Olmstead, 527 U.S. at 601-02.

Indeed,

throughout the remainder of the opinion, the Supreme Court

acknowledged that such facilities likely would continue to

be required. Those teachings of Olmstead also counsel in

favor of the conclusion that the action is not now fit for

20

judicial review where, as here, a litigant seeks a premature judicial intervention in aid of an objective not yet subscribed to by Congress or the Supreme Court.
The United States, through the Department of Justice, moved for leave to intervene to file a brief amicus curiae in support of ARC. The United States posits two arguments to support its contention that the action is not based on mere contingencies and thus is fit for review. First, the United States argues that the mere risk of institutionalization creates the basis for impending injury and, therefore, a ripe claim. (United States' Mem. at 14.) ARC echoed that argument at oral argument on the motions, stating that the Defendants plan calls for 65 beds in the new facility to be filled by current SEVTC residents. (See Trosclair Aff. At ~~ 35, 40). According to the Uni ted States, this shows that there is a real risk of institutionalization, creating a ripe claim. ARC shares that view.
In Fisher v. Oklahoma Health Care Authority, the Tenth Circuit held that an individual need not be institutionalized before he could challenge a discriminatory law or policy. 335 F. 3d 1175, 1181 (10th Cir. 2003). In that case, the plaintiffs argued that a change in law regarding access to free prescription
21

medications violated the ADA and § 504 because it effectively forced them out of their communities and into nursing homes in order to receive the free prescriptions that they needed. Id. at 1179. Fisher is distinct from this case, however, because there, the plaintiffs stated that they would "rather die" than reside in a nursing home. Id. at 1184. Here, there is evidence that shows that many individuals will choose to live in the new facility. In fact, at least 84 of the 155 legal representatives of the current SEVTC residents have made formal pleas to permit their loved ones to remain in the new facility rather than be placed in community housing. (Shrewsberry Declaration at 11 7; Dix Declaration at 1111 7 -10. ) Thus, the argument made by ARC and the United States regarding the risk of institutionalization fails to account for a key principle in the Olmstead decision: personal choice. And here, where more residents desire to remain in institutional care than the new facility can provide for, there is little to no risk of institutionalization for those whose needs do not require it and who do not desire it.
The United States also argues that a mere allocation of resources favoring institutional settings over community-based settings is actionable, and renders this action fit for adjudication. (United States' Mem. at 11.)
22

In support of this contention, the United States cites

Disability Advocates, Inc. v. Paterson, 598 F.Supp.2d 289

(E.D.N.Y 2009), where the court held that "unjustified

segregation of individuals with disabilities in

institutions is [] prohibited in the administration of

state programs," including allocation of state resources.

5 98 F. Supp . 2d 289, 317-18 (E . D. N. Y. 2009). However, in

Disability Advocates, the plaintiff sued on behalf of

individuals currently residing in institutions. Thus, that

case dealt with a current injury which resulted from the

allocation of resources in respect of the extant housing of

the plaintiffs and is simply inapposite to the facts in

this case.

More importantly, in Disability Advocates, the

"administration" of state services at issue was the State's

past supervision of state-licensed adult homes and whether

the State was assuring that the homes were being operated

in a way that complied with the "most integrated setting"

requirements of the ADA and with Olmstead.

Thus,

Disability Advocates did not involve a challenge to the

validity of a plan that was still in the making, nor to a

legislative enactment authorizing the funding for or the

building of a facility that was but one part of the plan.

23

And, the case did not even address the fitness component of

the ripeness doctrine. 4

The United States and ARC seek to extend the decision

in Disability Advocates and, in so doing, they distort its

holding and ignore the context in which the case was

decided. The invitation to make the requested extension is

declined.

For the foregoing reasons, the allegations of the

Complaint and the documents attached to it and incorporated

by reference in it make clear that the claims here

presented are not yet fit for judicial decision.

B. Hardship

Having thusly decided the fitness issue, it arguably

is not necessary to assess the "hardship" facet of the

ripeness doctrine. However, it is possible to consider

that, to the extent the Complaint challenges the validity

of the Budget Bill Item, it presents a purely legal

question.

If that be the case (which, for reasons

previously explained, it does not), then the fitness

component would be satisfied. It thus would be necessary

to examine the question of hardship because both the

fitness and hardship components ordinarily must be

4 Disability Advocates did address associational standing. And, on occasion, standing and ripeness are related but that was not the case in Disability Advocates.

24

satisfied to establish ripeness.

15 Moore's Federal

Practice § 101.76[3] (Matthew Bender 3d ed.)

To decide the ripeness question, it is necessary to

consider the hardship that would be created if decision of

the issue was withheld because it was not ripe for

decision. To assess hardship:

[t]he court must inquire whether the subject of the challenge presents a true dilemma for the parties, or whether their course of action would be unlikely to be altered regardless of any decision that the court could render.

The hallmark of cognizable hardship is

usually direct and immediate harm. The

hardship analysis is unconcerned with wholly

contingent harm.

The greater the

anticipated harm, the more likely the court

will deem the matter ripe for resolution.

Id. at § 101.76[2].

The hardship facet of the ripeness analysis is

measured by "the immediacy of the threat and the burden

imposed" on the plaintiff. Miller, 462 F.3d at 319.

"Because the hardship factor requires a threat of direct and immediate harm, a mere uneasiness on the part of the plaintiff about potential implications of an anticipated action is not sufficient to establish a ripe controversy. The fact that an action, if taken, could possibly produce a harm, or that a regulation or ordinance could be interpreted in such a way as to cause hardship is insufficient to warrant judicial review if there is no indication that the action is, in fact, about to be taken, or that the regulation will be

25

interpreted or implemented in the manner feared by the plaintiff.

15 Moore's Federal Practice § 101.76 [2] (Matthew Bender 3d

ed.) ARC posits several arguments directed to the type of

hardship that it, its members, and the public will suffer

if the Court declines to decide this action now. None of

those arguments actually establish hardship.

First, ARC argues that it will suffer harm if this

case is not decided because it will be required to continue

to devote resources to advocating against the construction

of the new facility. 5 This argument is of little moment

because it is ARC's very mission and function to advocate

for the rights of persons with intellectual and

developmental disabilities.

Indeed, ARC's mission

statement reads: "The Arc of Virginia advocates for the

rights and full participation of all children and adults

with intellectual and developmental disabilities." (Compl.

at ~ 10.) Because ARC functions in large measure to

5 ARC's argument that this constitutes a burden is distinct from the type of burden usually considered by courts during a ripeness analysis. See e. g. Texas, 523 U. S. at 301 (finding no hardship where the parties were not "required to engage in, or to refrain from, any conduct"); Retail Industry Leaders Ass'n v. Fielder, 475 F.3d 180, 188 (4th Cir. 2007) (finding a case ripe because the challenged law subj ected a party to new reporting requirements, requiring it to change its internal accounting procedures and spending immediately in order to comply with the law) .
26

advocate, it cannot be heard to assert that engaging in advocacy is a burden.
Second, ARC asserts that its members face a threat because of the risk that they will be placed in the new facility. (Pl. Opp'n at 14.) This threat is not immediate because the Defendants have not yet chosen any individuals for placement in the new facility. Furthermore, there is no indication in the record that any of ARC's members do not wish to live in the replacement facility. In fact, while the desires of ARC's members are unknown, the record shows that more residents wish to remain at SEVTC then there will be space to accommodate. Moreover, the record shows that those who are determined to be eligible to live in the new facility will be given a choice in the matter. Thus, it is not possible to find that ARC members face any hardship.
Finally, ARC argues that the citizens of Virginia face a hardship should the Court decline to decide this case and the Defendants continue to move forward with their plan. 6
6 Whether the Court should even consider this argument is unclear as courts have consistently framed this analysis in terms of hardship to the parties. See Texas, 523 U.S. at 300-01 ("Ripeness requires us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.") (emphasis added) i see also Devia v. Nuclear Regulatory Comm'n, 492 F.3d 421, 427 (D.C. Cir. 2007) (questioning whether an
27

In that case, ARC argues, the Defendants will be permitted to spend millions of dollars on a facility that they will later be forbidden to use. This argument distorts the Supreme Court's holding in Olmstead. While ARC would seemingly prefer the Olmstead decision to hold that institutional care is never allowed, the Court's holding, in fact, held that institutional care was inappropriate only in certain instances, leaving no question that institutions still serve an important need. See Olmstead, 527 U.S. 581, 601-02. Thus, under the current lawI no blanket prohibition on populating the facility could be issued even if the case is decided now.
Of course, it is distantly possible that the Defendants will build a new facility and individuals will not be placed there because they do not need or desire institutional care under Olmstead. The record, however, indicates that more current SEVTC residents desire to reside in the replacement facility than there will be space for once the facility is completed. This alleviates any fears that millions of taxpayers dollars will be expended on a facility that will not be used even if that is a
intervenor may assert hardship for purposes of ripeness); but see Pacific Gas & Electric Co., 461 U.S. at 201-02 (finding that there was hardship to the parties in delaying adjudication of the case but also noting that delaying a decision may "work harm on the citizens of California.")
28

legally cognizable basis for a finding of hardship. It also is important to note that Virginia plans to design the facility so that it can be converted readily to alternate uses as needed. That rather completely forecloses the argument that building the facility will waste money.
Because ARC has not met its burden of showing hardship, none of ARC's claims are ripe for adjudication, even if Counts 3 and 6 are considered to present purely legal issues and thus satisfy the fitness aspect of the ripeness doctrine. Because the action is not ripe, the Court does not have subject matter jurisdiction over this action.
CONCLUSION For the reasons set forth above, the MOTION TO DISMISS (Docket No. 10) will be granted and the MOTION FOR PRELIMINARY INJUNCTION {Docket No.2} will be denied as moot. The action will be dismissed without prejudice. It is so ORDERED.
/s/
Robert E. Payne Senior United States District Judge
Richmond, Virginia Date: December 16, 2009
29

 
 Case 3:09-cv-00686-REP Document 10 Filed 11/12/09 Page 1 of 3 PageID# 224

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION

THE ARC OF VIRGINIA, INC., Plaintiff,
v.
TIMOTHY M. KAINE, et al., Defendants,

) ) ) ) Civil Action No.: 3:09cv686 ) ) ) )

MOTION TO DISMISS

For the reasons stated more fully in the accompanying Memorandum of Law, Defendants

Governor Kaine, Secretary Baskerville, Secretary Tavenner, Commissioner Reinhard and

Director Sliwoski respectfully request this Court to dismiss all claims against them. The

Defendants believe that the legal and few factual issues dispositive for this Motion are clear and

so do not request a hearing on this Motion.

Respectfully submitted,

The Honorable William C. Mims Attorney General of Virginia

By

/s/

Ishneila Moore, VSB No. 42280

Assistant Attorney General

Attorney for Defendants

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

Phone: (804) 786-1586

Fax: (804) 371-2087

imoore@oag.state.va.us

Case 3:09-cv-00686-REP Document 10 Filed 11/12/09 Page 2 of 3 PageID# 225 David E. Johnson Maureen Riley Matsen Deputy Attorneys General Jane D. Hickey Peter R. Messitt Allyson K. Tysinger Senior Assistant Attorneys General Ishneila Moore Stephen M. Hall Assistant Attorneys General Office of Attorney General 900 East Main Street Richmond, VA 23219 Phone: (804) 786-1586 Fax: (804) 371-2087
2

Case 3:09-cv-00686-REP Document 10 Filed 11/12/09 Page 3 of 3 PageID# 226 CERTIFICATE OF SERVICE
I hereby certify that on the l2tll day of November, 2009, I will electronically file the foregoing with the Clerk of the Court using the CM/ECF system.
lsi Ishneila Moore
3

 
 Case 3:09-cv-00686-REP Document 11 Filed 11/12/09 Page 1 of 20 PageID# 227

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION

THE ARC OF VIRGINIA, INC., Plaintiff,
v. TIMOTHY M. KAINE, et aI.,
Defendants,

) ) ) ) Civil Action No.: 3:09cv686 ) ) ) )

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

In this suit, Plaintiff, The Arc of Virginia ("Arc"), an organization purporting to represent unidentified citizens with intellectual disabilities, seeks to enjoin several state government officials from implementing a law which requires the construction of a state-of"the-art facility to accommodate 75 such individuals. Arc alleges that the new facility, to be placed at the same location as the current facility housing these citizens, will impermissibly "segregate" those people in violation of the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act.
For the reasons stated below, Defendants Governor Kaine, Secretary of Administration Baskerville, Secretary of Health and Human Resources Tavenner, Commissioner Reinhard and Department of General Services ("DGS") Director Sliwoski, by counsel, ask the Court to dismiss this action under Rule 121 because: (1) Arc has no standing either by itself or in a representative capacity; (2) this matter is not ripe for adjudication because nobody has been chosen to live in the new facility, let alone any Arc member; (3) the only persons who will reside at the new

I If the Court decides it must convert this to a Rule 56 motion on the issues of ripeness and standing, the Defendants would ask for leave to file a subsequent Rule 56 motion on other matters following discovery, if that is needed.

Case 3:09-cv-00686-REP Document 11 Filed 11/12/09 Page 2 of 20 PageID# 228
facility are persons who choose to live there after they are properly evaluated, undennining this
entire suit under Olmstead v. L.c. by Zimring, 527 U.S. 581 (1999)(lack of choice critical factor
in finding ADA violation); (4) because of these defects in Arc's claims, Arc fails to state proper claims under Ex Parte Young; and (5) Ex Parte Young claims against Governor Kaine and Secretary Baskerville are otherwise improper because those Defendants lack the necessary relationship to the decision being challenged here.
Put simply, because Arc cannot allege that any of its members have been selected to live in the new facility, and nobody will be selected who does not want to live there, there is now, and will be, no controversy over which Arc can sue. This means that this entire suit is without merit. The facts establishing these simple points can be established without discovery through the attachments here or, if necessary, through affidavits.
I. FACTS The Southeastern Virginia Training Center ("SEVTC"), built in 1975, is one of five regional facilities operated by the Virginia Department of Behavioral Health and Developmental Services (DBHDS) that serves individuals with intellectual disabilities.2 The facility provides rehabilitative, educational and health services to the individuals residing there, as well as respite and emergency care to individuals with intellectual disabilities residing in the community.
Commissioner Reinhard is the head ofDBHDS. Compl. 'If 21.
In addition, the SEVTC operates a Regional Commuuity Support Center which provides community support services, such as psychological consultation and dental services, for individuals with intellectual disabilities who live in the commuuity. According to the Complaint,
2 See "Co=unity Living Services," Report to House and Human Services Subco=ittee of House Appropriations Committee, January 19,2009, found at: http://hac.virginia.gov/subco=itteeihealth human resources/files/01-19-09/SEVTC--0 1-19-09-print.pdf.
2

Case 3:09-cv-00686-REP Document 11 Filed 11/12/09 Page 3 of 20 PageID# 229
SEVTC is located on a 120 acre campus in Chesapeake, Virginia. Compi. ~ 25. The facility maintains 200 beds but has a current census of 155. Compi. ~ 61.
Given the age of the facility and its current physical condition, SEVTC is in dire need of maintenance and repairs. The 20 cottages comprising SEVTC, each of which houses eight to ten residents, require a complete overhaul with replacement of mechanical systems including heating, ventilation and air conditioning, plumbing fixtures, kitchen equipment, and renovations to make the cottages more accessible to residents with physical limitations. See Department of Behavioral Health and Developmental Services, Second Advisory Committee Meeting at SEVTC Gym, Questions Posed by Parents & Friends of SEVTC at 1-2 (February 26, 2009), attached as Exhibit A. This document and others cited herein are publically available and relate to Arc's claims and allegations. Therefore, they can be considered under Rule 12 without converting this to a motion for summary judgment. See Gasner v. County of Dinwiddie, 162 F.R.D. 280, 282 (E.D. Va. 1995).
In the fall of 2008, faced with a huge budget shortfall, Governor Kaine instructed all state agencies to submit plans to reduce their budgets. Realizing that the costs to repair and maintain SEVTC were greater than at other training centers, DBHDS proposed the closure of the facility, and Governor Kaine included the closure in his budget plan presented to the General Assembly. As the General Assembly considered closing SEVTC, it heard arguments for and against that proposal. See, e.g., Tim Early, Petition Against Closure of SEVTC, available at http://www.petitiononline.com/SVETC/petition.html. attached as Exhibit B. Out of this passionate debate, the General Assembly crafted Budget Bill Item 103.05. Plaintiff's Exhibit A.
This compromise legislation directs the Virginia Department of General Services ("DGS"), with the cooperation and support ofDBHDS, to rebuild and resize SEVTC to a 75-bed
3

Case 3:09-cv-00686-REP Document 11 Filed 11/12/09 Page 4 of 20 PageID# 230
facility (Compl. ~ 44) to serve clients with profound and severe intellectual disabilities and to build, acquire, or renovate twelve community-based intennediate care facilities (ICF-MR) and six MR homes (for individuals with intellectual disabilities) (Compl. ~~ 45, 71). The result of this compromise is that individuals with intellectual disabilities and their families will have more options available and greater choice in determining where they wish to live. The legislature appropriated nearly $24 million for this new facility to be built on the same land as the SEVTC.
Compl. mr 45,63.
The proposed new, downsized training center will be built on the portion of the existing SEVTC campus next to a residential neighborhood. The proposed training center will consist of fifteen individual homes that will each house no more than five individuals. All of the homes will have their own driveway, mailbox, garage, and yard. See Letter from Marilyn Tavenner, Secretary of Health and Human Resources, to Carter Harrison, Chair, Community Integration Advisory Commission 2 (October 28, 2009), attached as Exhibit C. According to the Complaint, the contract for the new facility will be awarded in December 2009, and construction of the new facility is to begin in August 2010. Compl. ~ 88.
With this downsizing, SEVTC's purpose and role will also change. Under Budget Item 315.CC.I, the Commissioner of DBHDS established the SEVTC Advisory Committee, a state and community planning team, to develop a plan for the rebuilding and resizing of SEVTC. This Committee considered what the future role and purpose of SEVTC should be and det=ined that the new SEVTC will provide services and support for: (1) individuals presenting complex medical and/or behavioral needs that cannot currently be met in the community with the goal to attain appropriate community services; (2) individuals with behavioral challenges that require short-t=, intensive intervention to return to the community; (3) individuals that require
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short-term respite or stabilization; (4) individuals that reqUIre short-term medication stabilization; and (5) facility residents and individuals living in the community through the Regional Community Support Center. See SEVTC Advisory Committee, Future Role/Purpose of SEVTC (May 26, 2009), attached as Exhibit D.
Given this, SEVTC's role will shift from long-term to short-term residential and nonresidential services designed to help individuals move to and remain in the community. The long-term goal is for all state training centers to be regional safety nets for Virginia's most vulnerable citizens in need of intensive services, allowing those individuals to return to the community. See Department of Behavioral Health and Developmental Services, Item 315CC.l A Preliminary Plan and Timeline for Downsizing Southeastern Virginia Training Center at 2 (July I, 2009), attached as Exhibit E.
The centers will also serve as resources to the community to provide care for individuals with intellectual disabilities who are experiencing behavioral problems, need additional medical oversight and supervision, or need services that will allow them to return to the community within 90 to 360 days. Id. With the increase in community residential options made possible by Budget Bill Item 103.105, current residents of the SEVTC will have greater choice to decide if they wish to reside in the resized SEVTC or in a community home.
Notably, at this time, no one has been selected to reside in the new SEVTC. See Letter from James S. Reinhard, Commissioner, DBHDS, to Jonathan Martinis, Managing Attorney, VOPA (July 6, 2009), attached as Exhibit F. The process to determine which current residents may continue to reside at the new SEVTC will involve a thorough needs assessment of each
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individual using a variety of tools such as the Supports Intensity Scale ("SIS") assessment,3 service treatment plans, and medical history. See Ex. E at page 2.
A study conducted by Human Services Research Institute (HSRI) comparing the SIS assessments of the residents of SEVTC with those of individuals living in the community receiving services through Virginia's comprehensive Medicaid waiver found that although SEVTC residents are eligible for waiver services, their needs are statistically higher in the key areas of home living activities, community living activities, and health and safety activities than those of individuals currently living in the community, but did not determine where the needs of SEVTC residents could best be met, nor did it take into account the residents' choices and preferences regarding where they live and receive services. Plaintiffs Exhibit B. Determinations of where an individual resides will be made based on the individual's choice, his medical and support needs, the availability of family supports and the availability of an appropriate community bed. In no circumstance will an individual who chooses to reside in the community be forced to move to the new SEVTC. See Exhibit C.
Indeed, legislation passed at the same time as Budget Bill Item 103.05 states expressly that resident choice will guide the placement of the citizens in question:
3 The Supports Intensity Scale is an assessment used to quantifY the support needs of people with disabilities.
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CC.l. Notwithstanding the provisions of Section 37.2-316, the Commissioner, Department of Mental Health, Mental Retardation and Substance Abuse Services shall establish a state and community planning team for the purpose of developing a plan for the rebuilding and resizing of Southeastern Virginia Traiuing Center (SEVTC) ...The state and community planning team, under the direction of the commissioner, shall develop a timeline to appropriately transition 88 state facility consumers beginning in fiscal year 2010 to community services in the locality of their residence prior to admission or the locality of their choice after discharge or to another state facility if individual assessments and service plans have been completed, appropriate community housing is available and consumer choice has been considered. The commissioner shall provide the preliminary plan and timeline to the Governor and the General Assembly by July I, 2009 and a progress report regarding the plan for resizing and rebuilding the facility by October I, 2009 and quarterly thereafter until the new facility and commuuity facilities have been constructed and are complete. The final report shall outline the location where patients are discharged and any cost savings associated with the facility resizing and community transition. 2009 Appropriation Act, Item 315 (CC.I), p. 5 (emphasis added), attached as Exhibit G.4
In fact, through working with the current residents and their families, it has become
evident that the biggest challenge DBHDS faces is accommodating those individuals who wish
to remain at the new training center. See Exhibit C. Because it is expected that there will be
more than 75 current residents of SEVTC who choose to stay, DBHDS has focused efforts on
educating individuals and their family members regarding community options.
II. LEGAL STANDARD
Under Rule 12(b)(1), jurisdiction once challenged by the Defendant must be proven by
the proponent of jurisdiction. Marks v. United States Social Security Administration, 906 F.
Supp. 1017 (E.D. Va. 1995), aff'd in part and vacated in part, 92 F.3d 1180 (4th Cir. 1996). A
trial court may go beyond the allegations of the complaint and consider additional evidence
necessary to determine if there is in fact jurisdiction. See Adams v. Bain, 697 F.2d 1213 (4th Cir.
1982). A Rule 12(b)(1) motion may contend either that the complaint fails to allege facts
sufficient to establish jurisdiction, or that the alleged jurisdictional facts are untrue. ld. at 1219.
4 This document is available online at: http://legl.state.va.us/cgi-binllegp504.exe?091+bud+2l-3l5.
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"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations ... a plaintiffs obligation to provide the 'grounds' of his 'entit1e[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007)(internal citations omitted). "[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief, 'this basic deficiency should ... be exposed at the point of minimum expenditure of time and money by the parties and the court." Id. at 558 (internal citations omitted).
The Supreme Court's decision in Twombly was explained further by that Court in Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009), where the Court noted that there were two working principles set forth in Twombly: "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice ... . Rule 8 ... does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss .... [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not 'show[n], -- 'that the pleader is entitled to relief. '" (Emphasis added).
A court may consider matters of public record without converting the motion to one for summary judgment and can take judicial notice of pleadings in its own records. Papasan v. Allain, 478 U.S. 265, 286 n.15 (1986). Non-judicial records outside the complaint may also be considered under Rule 12(b)(6). "[WJhen a plaintiff fails to introduce a pertinent document as part of his complaint, the defendant may attach the document to a motion to dismiss the
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complaint ... not only documents quoted, relied upon, or incorporated by reference in the complaint, but also official public records pertinent to the plaintiffs' claims." Gasner, 162 F.R.D. at 282.
III. ARGUMENT A. Arc Has No Standing on Its Own or in a Representative Capacity
I. Arc Has No Standing on Its Own A threshold question this Court must consider is whether Arc has standing on its own to sue the Defendants. The irreducible constitutional minimum of standing in federal court is composed of three elements: (1) the plaintiff must have suffered injury in fact; (2) there must be a genuine nexus between a plaintiffs injury and a defendant's illegal conduct; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. .See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir. 2000); Allen v. Wright, 468 U.S. 737, 750-51 (1984). Arc's allegations do not suffice to satisfy these three elements. First, while individual,
named plaintiffs may allege potential hann when the new SEVTC building is built, if they are
not provided with a choice of whether or not to live in the facility or in a community setting, Arc itself cannot claim to have suffered any injury. "Petitioners must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent." Warth v. Seldin, 422 U.S. 490,502 (1975).
Second, the Defendants in this case are merely charged with carrying out the Acts of the General Assembly, which is presumed to have acted constitutionally,5 and they have been
5 Laws enacted by the state legislatures are presumptively constitutional. Kennedy v. Louisiana, 128 S.Ct. 2641,2675 (2008).
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directed to construct a facility to care for the intellectually disabled, an act that is not unconstitutional or discriminatory under the ADA or the Rehabilitation Act6 Therefore, Arc cannot properly claim that the Defendants have engaged in any illegal conduct. This is particularly so where, as permitted by law, transfers to institutional care are not opposed by the affected individuals and the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with mental disabilities. Olmstead, 527 U.S. at 587. (The High Court in Olmstead also held that "nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings." !d. at 601-02. That is the case here, although the fact that all new facility residents will be there voluntarily should make inquiry on this point unnecessary.)
Finally. this Court cannot redress any injury that has not yet occurred to Arc, and Arc literally cannot provide a shred of evidence that it has been or is being harmed by unknown, future actions of the Defendants. Without "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical," a plaintiff has no standing to sue in a federal court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)(internal citations omitted). See also L.A. v. Lyons, 461 U.S. 95 (1983). Not only is Arc not a proper party to this suit, its allegations are ultimately merely hypotheticals.
Arc relies on Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) to argue that it has standing in its own right simply because it has expended resources opposing the new facility. A plaintiff cannot refer to resources expended on the case at bar to support standing, and must show a "sufficiently concrete injury." Maryland Minority Contractors Association, Inc. v.
6 Absent a qualification by treatment professionals, it would be inappropriate to remove a patient from a more restrictive setting. 28 C.F.R § 3S.130(d); Olmstead at 602.
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Lynch, Record Nos. 98-265~ and 99-1272, 2000 U.S. App. LEXIS 1636, *12, *14 (4th Cir. 2000)(citing Spann v. Colonial Village. Inc.• 899 F.2d 24, 27 (D.C. Cir. 1990».
In support of this argument, Arc relies upon the Affidavit of Jamie Trosclair, Executive Director of Arc of Virginia, attached as Exhibit B to ARC's Motion. That Affidavit provides no details (in dollars or number of hours spent) on the alleged "expenditures" involved. It states that Arc has engaged in advocacy on this issue, started work to fonn a new chapter near the current and proposed facility, met with SEVTC residents and their families, and met with policy makers. Trosclair Aff. ~ 59.
In order for these efforts to support standing, the Court would have to find that they were not related to the instant litigation. Lynch, 2000 U.S. App. LEXIS at * 14 (citing Spann). Even if the Court finds. as such, an organization's unnecessary and misdirected advocacy does not give it standing to sue. This is especially true where none of its members can claim hann by tills decision now, and where the only residents who will reside in the new facility will be there by choice, undennining Arc's claims under Olmstead. Otherwise, any organization whose members experience no harm and cannot claim harm later could still have standing. This would leave the door opened in Havens Realty open too wide.
2. Arc Has No Associational Standing In a representative capacity, an organization or association may have standing to redress its members' injuries when: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are gennane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. United Food and Commercial Workers Union Local 751 v. Brown
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Group, 517 U.S. 544, 545 (1996) (citing Hunt v. Washington State Apple Advertising Comm 'n, 432 U.S. 333 (1977)). Arc has failed to meet the first and third prongs ofthis test.
Regarding the first prong, while Arc alleges that it advocates for the disabled and that eight of its members are current residents at SEVTC, it fails to identifY any of these members. Moreover, it fails to allege facts establishing that any of its members have standing to sue as individuals. The Fourth Circuit has rejected generalized references to associations with disabled persons or to advocacy groups of disabled persons for discrimination under the ADA. See Freilich v. Upper Chesapeake Health Inc., 313 F.3d 205, 216 (4th Cir. 2002). Without alleging specific facts about Arc members, Arc states nothing more than an impermissible legal conclusion when it comes to associational standing, in violation of the pleading standard in Twombly and Iqbal.
The relief requested by Arc in this case requires some harm to its purpose. Without facts showing actual harm to its members, Arc cannot obtain redress by this Court. It must associate with known members who have allegedly suffered concrete harm before it can maintain this lawsuit. See Tennessee Protection & Advocacy, Inc. v. Board. ofEduc., 24 F.Supp. 2d 808,81516 (M.D. Tenn. 1998); Mo. Prot. & Advocacy Servs., v. Carnahan, 499 F.3d 803, 809-12 (8th Cir. 2007). Because Arc alleges no facts showing that any of its members will be harmed by the new facility, since nobody has been selected for that facility and only people who want to be there will be placed there, Arc cannot establish associational standing. A Helping Hand, LLC v. Baltimore County, 515 F.3d 356,363 n.3 (4th Cir. 2008)(associational standing requires showing of injury done, not just feared, by one or more members of that association). B. Arc's Claims Are Not Ripe
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The questiou of standing bears close affinity to questions of ripeness: whether the hanu asserted has matured sufficiently to warrant judicial intervention. Warth v. Seldin, 422 U.S. 490, 499 (1975). The facts set forth above show that this matter is not ripe because there has been no assigmnent of persons in the current SEVTC for placement in the new planned facility. See Exhibit F.
Plaintiff tries to argue in its Motion for Preliminary Injunction at 14-15 that it should be allowed to sue before the new facility is built in order to avoid unnecessary expenditures on that building. But given none of its members has been assigned to that facility, its claims are premature. See id. Moreover, since residing in the new facility will be voluntary, there is and will be no "hanu" to which Arc can point. This makes this suit subject to dismissal on ripeness gronnds. See Texas v. United States, 523 U.S. 296 (1998) (affinning dismissal of declaratory relief action due to lack of ripeness).
. Arc tries to rely on Olmstead for much of its case, but in Olmstead, a known plaintiff suffered a definitive hanu, the hanu was concrete and without conjecture, and an appropriate redress was available. 527 U.S. at 593-607. None of that exists here. Arc's unripe allegations are based on tenuous, unknown fears and its claims should be dismissed.7 C. Arc Fails to State Claims under Olmstead
Not only is Arc without standing, Arc's suit is premised upon unfounded allegations that current SEVTC residents will be forced against their will to live at the new facility. But that is
7 Friends ofthe Earth, cited by Arc, does not support its position regarding the ripeness of a threatened injury. There, the Fourth Circuit found there was an actual injury to one of the named plaintiffs when they lost the enjoyment of their lake, which included the reduced enjoyment of fishing from, swimming in and boating on the lake. While the actual extent of the environmental damage from the defendant recycling company's chemical discharge into the lake was not known, the hann to the named family in the loss of their enjoyment of the property did indeed exist and was sufficient to confer standing. 204 F.3d. at 152-53.
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flatly inaccurate as shown by Exhibits C and G, which show that the only people who will reside in this new facility are persons choosing to do so.
The Olmstead decision holds that placing a person with intellectual disabilities in a facility rather than in a community setting is not a violation of Title II of the ADA if the following three events have occurred: (1) the state's treatment professionals have detennined that community placement is appropriate, (2) the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and (3) the placement can be reasonably acccimmodated, taking into account the resources available to the state and the needs of others with mental disabilities. Olmstead, 527 U.S. at 587, 607. In other words, an individualized assessment can pennit placement in a facility. And facilities are necessary for persons in that situation. Arc's request for a "one size fits all" court-ordered mandate is unsupported by Olmstead.
The first element of the Olmstead analysis is missing from Arc's argument because it has not yet occurred and is not ripe for adjudication. Moreover, Arc has failed to take into account the second, very critical piece of the decision: the choice of the individuals and their families or guardians. Without facts to support a current or immediate threat of institutionalization and lack of individual choice, Arc's allegations on behalf of the residents are not ripe and cannot succeed, supporting dismissal.
While Arc attempts to draw a parallel between the facts of the present case and those of the Olmstead case, Arc's allegations could not be more unlike those in Olmstead. In Olmstead, two disabled women were determined by their treatment teams to be better suited for community living than for an institutional setting. The State of Georgia failed to afford the women the least restrictive environment long after the treatment team's determination and kept the women in an
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institutional setting. Because of Georgia's failure to move the women to a community setting, the Court found that the state had discriminated against them in violation of the ADA. Olmstead, 527 U.S. at 587-88. D. Because of Ripeness, Standing and Other Infirmities, These Ex Parte Young Claims
Should Be Dismissed Generally speaking, the Eleventh Amendment bars suits against a state government in federal court. It provides: The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state. U.S. Const. Amend. XL "Although by its t=s the [Eleventh] Amendment applies only to suits against a State by citizens of another State, our cases have extended the Amendment's applicability to suits by citizens against their own States." Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001). In short, "[t]he ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court." fd. (internal citation omitted). Moreover, "[t]he Eleventh Amendment does not exist solely in order to 'preven[t] federal-court judgments that must be paid out of a State's treasury;' it also serves to avoid 'the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties.'" Seminole Tribe v. Florida, 517 U.S. 44, 58 (1996) (citations omitted). As such, a suit against state officials or state agencies that, in fact, is a suit against the state is barred regardless of whether it seeks damages or injunctive relief. fa.; Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 101-02 (1984). At a minimum, however, the Ex Parte Young exception to Eleventh Amendment immunity requires that the case be free from other procedural defects. In United States v.
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Georgia, 546 U.S. 151, 159 (2006), the High Court held that before a court addresses questions of sovereign immunity, the court should determine whether litigant has stated a proper claim. See also Haas v. Quest Recovery Servs., 549 U.S. 1163, 1164 (2007) (Ginsburg, J., concurring in the decision and suggesting that the lower court should not have addressed the sovereign immunity issue after concluding that litigant failed to state a claim).
In other words, to invoke Ex Parte Young, it must be appropriate for this Court to entertain the Plaintiffs action, and the Plaintiff must state a claim for which relief can be granted. Resolution of these issues is a necessary component of Ex Parte Young analysis. Because of the standing, ripeness and other infirmities set forth above, Arc cannot state claims under Ex Parte Young. E. Plaintiff Otherwise Fails to State Proper Ex Parte Young Claims against Guvernor
Kaine and Secretary Baskerville Under the Ex Parte Young doctrine, federal courts generally may enjoin individual state officers, in their official capacities, to conform their conduct to federal law. See Frew v. Hawkins, 540 U.S: 431, 437 (2004). The Ex Parte Young doctrine ensures "that the doctrine of sovereign immunity remains meaningful, while also giving recognition to the need to prevent violations of federal law." Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 269 (1997). However, that doctrine applies only where there is an on-going violation of federal law. DeBauche v. Trani, 191 F.3d 499, 505 (4th CiT. 1999). It does not apply when the alleged violation of federal law occurred entirely in the past. Green v. Mansour, 474 U.S. 64,68 (1985). Moreover, the Ex Parte Young exception to Eleventh Amendment immunity is limited to suits against individual state officials who have a specific duty to enforce the statute or program at issue. See Waste Management Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th CiT. 2001). "Ex Parte Young requires a 'special relation' between the state officer sued and the challenged
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statute to avoid the Eleventh Amendment's bar." Id. (citing Ex Parte Young, 209 U.S. 123, 157 (1908». "General authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law." Id. (quoting Children's Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th Cir. 1996» (internal quotation marks omitted). "Thus, the mere fact that a governor is under a general duty to enforce state laws does not make him a proper defendant in every action attacking the constitutionality of a state statute." Id. (citing Shell Oil Co. v. Noel, 608 F.2d 208,211 (1st Cir. 1979».
I. Ex Parte Young Claims against the Governor Are Improper In Waste Management, the Fourth Circuit applied these principles where the plaintiffs challenged the constitutionality of state statutes and named the Governor of Virginia as a defendant in their federal court action. The Court vacated a judgment against the Governor and remanded the matter with instructions that the district court dismiss him as a defendant. According to the Court: Although Governor Gilmore is under a general duty to enforce the laws of Virginia by virtue of his position as the top official of the state's executive branch, he lacks a specific duty to enforce the challenged statutes. . .. The fact that he has publicly endorsed and defended the challenged statutes does not alter our analysis. The purpose of allowing suit against state officials to enjoin their enforcement of an unconstitutional statute is not aided by enjoining the actions of a state official not directly involved in enforcing the subject statute. Id. (emphasis added). The Waste Management decision mandates dismissal of Governor Kaine as a defendant in this suit. The challenged statute does not impose any specific duty on Governor Kaine to enforce its provisions. Plaintiff's argument that the Governor's failure to exercise his line-item veto makes him culpable is meritless, since under that reasoning, any statute not edited by that veto would still leave the Governor as a proper party defendant. Such an exclusion (from the
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rule in Gilmore) would swallow the rule. Under the Waste Management decision, Governor

Kaine should be dismissed.

2.

Ex Parte Young Claims against Secretary Baskerville Are Also Improper

In addition to the Governor, Secretary of Administration Baskerville is not a proper party

under the Ex Parte Young doctrine because she lacks the required "special relation" to the alleged

violation of federal law. See Ex Parte Young, 209 U.S. at 157; Waste Management, 252 F.3d at

331. As noted, where a state law is challenged as unconstitutional, a defendant must have "some

connection with the enforcement of the act" in order to properly be a party to the suit. Lytle v.

Griffith, 240 F.3d 404, 409 (4th Cir. 2001) (quoting Ex Parte Young, 209 U.S. at 157). State

officials sued under Ex Parte Young have to have proximity to and responsibility for the

s.c. challenged state action.

Wildlife Fed'n v. Limehouse, 549 F.3d 324, 333 (4th Cir. 2008).

Plaintiff alleges no facts establishing a nexus between Secretary Baskerville and the actions challenged here, supporting dismissal of claims against her.8

8 The Defendants also question whether DGS Director Sliwoski is a proper defendant under Ex Parte Young. DGS, like the federal General Services Administration, builds and maintains state facilities as requested by other departments. See Va. Code §§ 2.2-1100 et seq. DGS's functions are "primarily for the support of other state agencies in carrying out their programs." Va. Code § 2.2-1100(B). This includes responsibility to maintain state buildings. Va. Code § 2.2-1129. But DGS Director Sliwoski is not responsible for the decision regarding the planned location of the challenged facility. The Complaint alleges no facts establishing otherwise. Compl. '1f'1f 17, 23. Simply because DGS must execute the law authorizing the construction of the new facility does not make DGS or Secretary Baskerville proper parties under Ex Parte Young. The First Circuit in Deters (a decision cited by the Fourth Circuit in Waste Management) stated: "Holding that a state official's obligation to execute the laws is a sufficient connection to the enforcement of a challenged statute would extend Young beyond what the Supreme Court has intended and held." Deters, 92 F.3d at 1416 (citation omitted). Any ruling striking down or suspending part of Budget Bill Item 103.05(A)(1), will stop construction ofthe new facility, so dismissing claims against Director Sliwoski should not prejudice the Plaintiff.
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IV. CONCLUSION For the reasons stated above, Defendants Governor Kaine, Secretary Baskerville, Secretary Tavenner, Commissioner Reinhard and Director Sliwoski respectfully request this Court to dismiss all claims against them.
Respectfully submitted,

The Honorable William C. Mims Attorney General of Virginia
David E. Johnson Maureen Riley Matsen Deputy Attorneys General
Jane D. Hickey Peter R. Messitt Senior Assistant Attorneys General
Ishneila Moore Stephen M. Hall Assistant Attorneys General Office ofAttorney General 900 East Main Street Richmond, VA 23219 Phone: (804) 371-6019 Fax: (804) 371-8718

By

lsi

Ishneila Moore, VSB No. 42280

Assistant Attorney General

Attorney for Defendants

Office ofthe Attorney General

900 East Main Street

Richmond, Virginia 23219

Phone: (804) 786-1586

Fax: (804) 371-2087

imoore@oag.state.va.us

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CERTIFICATE OF SERVICE I hereby certify that on the 12th day of November, 2009, I electronically filed the foregoing with the Clerk of the Court using the CMlECF system, which will send a notification of such filing (NEF) to the following: Jonathan Martinis Virginia Office for Protection and Advocacy 1910 Byrd Avenue, Suite 5 Richmond, VA 23230 (804) 225-2042 (804) 662-7057 (Fax) J onathan.Martinis@vopa.virginia.gov.
/s/ Ishneila LG. Moore, VSB #42280 Attorney for Defendants Office of the Attorney General Health Services Section 900 East Main Street Richmond, Virgiuia 23219 (804) 371-6019 (804) 371-8718 (Fax) irnoore@oag.state.va.us
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 Case 3:09-cv-00686-REP Document 16 Filed 11/19/09 Page 1 of 28 PageID# 369

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

THE ARC OF VIRGINIA, INC.,

Plaintiff,

MEMORANDUM IN OPPOSITION

v.
TIMOTHY M. KAINE, et ai.,

Case No.: 3:09cv686

Defendants.

PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS

I. INTRODUCTION Allegedly in an effort to implement Budget Bill Item l03.05(A)(l), Defendants intend to
build and fully populate a new segregated institution to house 75 residents of Southeastern Virginia Training Center ("SEVTC").
Defendants' plan comes despite a state-sponsored study concluding that all SEVTC resident "Can Be Served In The Community" and despite their own admissions that the new institution is "arbitrary," not a product of any "science or study," is not related to the actual needs ofSEVTC residents and that SEVTC residents "don't need to be institutionalized." Defendants also admit that they did not conduct any individualized assessments to determine which, if any, SEVTC residents actually require institutionalization before predetermining that 75 would be placed in a new segregated institution. 1

1 In their Memorandum in Support, Defendants do not deny making these admissions. 1

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The Arc of Virginia, Inc. ("the Arc") filed this action alleging (I) that Defendants' plan and Budget Bill Item 103.05(A)(I), to the extent it requires such a plan, violate the rights of Arc members residing at SEVTC and (2) that the plan and Item conflict with and are preempted by federal law.
This Memorandum responds to Defendants' Motion to Dismiss. Defendants' arguments contesting the Arc's standing, the ripeness of the Arc's causes of action and the legal sufficiency of the Arc's claims are without merit.
Missing from Defendants' Motion and Memorandum is any substantive discussion of their obligations under the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act of 1973 ("Section 504"). Significantly, Defendants do not deny that the Acts require them to provide services to people with disabilities in the most integrated setting appropriate to their needs and to conduct individualized assessments to determine those needs.
The state-sponsored study, Defendants' admissions, and their failure to conduct individualized assessments before deciding to institutionalize 75 SEVTC residents prove that their plan and Budget Bill Item 103.05(A)(I), to the extent it requires such a plan, violate, conflict with and are preempted by the ADA and Section 504. In addition, the plan and Item threaten Arc members with "unjustified institutional isolation" in violation of their rights.
Accordingly, the Arc enjoys both individual and associational standing; its causes of action are ripe and legally sufficient; and the Governor and Secretary of Administration, who have a "special relation" to Defendants' plan and Budget Bill Item 103.05(A)(I), are proper Defendants. Therefore, Defendants' Motion should be Denied.
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II. RELEVANT FACTUAL BACKGROUND A. Southeastern Virginia Training Center SEVTC is located on a 120 acre compound in an isolated section of Chesapeake,
Virginia. See, Affidavit of Mark Stevens (hereinafter "Stevens Affidavit"), attached hereto and
made a part of this Memorandum as Exhibit A, ~ 8. The SEVTC compound is segregated from the community, on all sides, by barriers including a trench, barbed-wire topped fences , and "No Trespassing" signs. Stevens Affidavit, ~~ 12-15
B. Facts Leading to This Action Approximately 150 Virginians with intellectual disabilities (fonmerly known as "mental retardation") live at SEVTC. 8 members of the Arc live at SEVTC and other Arc members are at risk of being admitted to SEVTC. Affidavit of Jamie Trosclair, attached to and made a part of this Memorandum as Exhibit B ("Trosclair Affidavit"), ~~ 11-12. In his proposed budget for 2010, Defendant, Timothy M. Kaine ("the Governor"), proposed closing SEVTC. In an interview, the Governor stated that SEVTC residents "don't
need to be institutionalized." See, WAVY-TV, "Kaine on the economy and 'going green, '"
http ://www.wavy.comldpp/news/local wavy kaine budget update southeastern 20090112 Instead of closing SEVTC, the Virginia General Assembly passed Budget Bill Item
103.05(A)(l), which ordered that a new 75-bed "facility" be built. A copy of Budget Bi ll Item 103.05, is attached to and made a part of this Memorandum as Exhibit C.
Budget Bill Item 103.05(A)(l) directs the Department of Mental Health, Mental Retardation and Substance Abuse Services ("DMHRMSAS," now known as the Department of Behavioral Health and Developmental Services ("DBHDS"» and the Department of General
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Services ("DGS") to "rebuild and resize the Southeastern Virginia Training Center to a 75-bed facility" and allots $23,768,000.00 for construction.
The Commissioner and Deputy Commissioner ofDMHMRSASIDBHDS have publicly stated that they do not know how the General Assembly came up Budget Bill Item 103.05(A)(1), requiring a 75-bed facility. For example, Deputy Commissioner Heidi Dix publicly stated that DBHDS feels that it is "arbitrary, " not based on the needs of any SEVTC residents and was chosen because the General Assembly thought it was a "nice, round number." Trosclair Affidavit, 'I~ 51-55. The Commissioner publicly stated that the 75-bed institution was not the result of any "science or study." Trosclair Affidavit. ~30-33.
Each of the Defendants - the Governor, the Commissioner, the Secretary of Health and Human Resources, Secretary of Administration Viola O. Baskerville ("the Secretary of Administration") and Director of DGS Richard F. Sliwoski ("the Director") - is implementing or working to implement Budget Bill Item 103.05(A)(1).
Two months after the Governor signed the Commonwealth's budget, Virgi nia received a study removing any justification for building a new institution. In June of2009, a statesponsored study concluded that all SEVTC residents "Can Be Served in the Community." The study was performed by the Human Services Resource Institute, pursuant to a contract with DMHMRSASIDBHDS (hereafter "DBHDS"), and was based on medical records and evaluation data collected and kept by DBHDS. A copy ofthe study is attached to and made a part of this Memorandum as Exhibit D.
Despite having a report flatly stating that no SEVTC residents required institutionalization, Defendants continued to work on a plan to institutionalize 75 SEVTC
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residents. Tellingly, Defendants did not even attempt to conduct assessments to determine which, if any, SEVTC residents actually required institutionalization.
Defendants' failure to do so is shown by a 19 August 2009 letter from counsel for the Governor. Responding to a request for information, counsel admitted that the Defendants did not have any "assessments, evaluations, studies or documents that were created or reviewed prior-to or leading to the conclusion that a new 75 bed institution is needed or appropriate." Counsel also admitted that the Defendants did not have "any individualized assessments ... indicating that a new institution is required to house people with disabilities" or any documents "indicating how, specifically, the 75 bed census was determined." A copy of counsel 's letter is attached to and made a part of this Memorandum as Exhibit E.
Instead of conducting assessments to determine the actual needs of SEVTC residents and forming a plan to meet those needs in the most integrated setting appropriate to them, Defendants created a plan calling for 75 peop le to be placed in a segregated institution. The Commissioner announced Defendants' plan on 13 August 2009, at a meeting of the SEVTC Advisory Council. A copy of the plan is attached to and made a part of this Memorandum as Exhibit F.
Under the Defendants' plan, a new segregated 75-bed institution will be built on the SEVTC compound, under the auspices ofDGS and DBHDS. Trosclair Affidavit, '\131, 46. In response to a question, the Commissioner admitted that the 75-bed institution was not arrived at through any "science or study." Trosclair Affidavit, '\133 .
The Commissioner further stated that, under the Defendants' plan, all SEVTC residents will be evaluated. Based on the evaluations, the 65 that score the "lowest" will be placed in the new institution. The other 10 beds in the new institution will be used by SEVTC residents who are transitioning from or to community settings. Trosclair Affidavit, '\1'\1 34-36.
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Under Defendants' plan, they will sign a contract for the construction in December of 2009 and construction on the institution will begin in August 2010. Trosclair Affidavit, ~ 46.
II. ARGUMENT At the outset, it should be noted that the vast majority of Defendants ' Memorandum
repeats, in some cases verbatim, arguments they made in their Memorandum of Law in Opposition to the Arc's Motion for a Preliminary Injunction. Therefore, of necessity, a great deal of this Memorandum will track the arguments made in the Arc's Reply Memorandum in Support of it Motion. The Arc apologizes for any repetition but has elaborated on its arguments, where appropriate, to more fully respond to Defendants ' Motion to Dismiss.
A. The Arc Enjoys Standing in its Own Right to Challenge the Constitutionality of Defendants ' Plan and Budget Bill Item 103.5(A)(1)
Counts III and VI of the Arc's Complaint challenge the constitutionality of Defendants' plan to build and fully populate a new segregated institution and of Budget Bill Item I03.05(A)(1), to the extent it requires such a plan. In their Memorandum, Defendants incorrectly argue that the Arc does not have standing to bring these causes of action.
Defendants' argument fails because an organization suffers an "injury in fact" and has "standing to sue in its own behalf if the defendant's illegal acts impair its ability to engage in its proj ects by forcing the organi zation to divert resources to counteract those illegal acts." Common Cause/Georgia, et al. v. Billups, et al., 554 F.3d 1340, 1350-51 (11 th Cir. 2009) (citing Havens Realty Corp v. Coleman, 455 U. S. 363 (1982». "[T]he fact that the added cost [to the organization] has not been not been estimated and may be slight does not affect standing, which requires only a minimal showing of injury." Crawford v. Marion County Election Board, 472
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F.3d 949 (7th Cir. 2007), afj'd 553 US. _,128 S. Ct. 1610 (2008) (citing Friends a/the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 US . 167, 180-842000)).
Here, the Arc alleges that it has been forced to divert its resources, and expects to continue doing so, in order to oppose and counteract the damage caused by Defendants' plan and Budget Bill Item 103.05(A)(l). See, generally, Complaint ~~ 142-147; 175; Trosclair Affidavit, ~~ 59-64. Thus, like the organizational Plaintiffs in Havens Realty and Common Cause/Georgia, the Arc has standing to challenge the Defendants' illegal acts .
Defendants' arguments to the contrary are without merit. First, their contention that the Arc has not suffered an injury in fact fails based upon Havens Realty and its progeny. While Defendants try to distinguish Havens Realty, they fail to note that the Supreme Court found that the Havens Plaintiff had standing based upon a single paragraph in its Complaint alleging that it "had to devote significant resources to identify and counteract the ... [Defendant's] practices." Havens Realty, 455 US. at 379. Based on that allegation alone, the Court held "If, as broadly alleged, petitioners' steering practices have perceptibly impaired HOME's ability ... there can be no question that the organization has suffered injury in fact." Id.
The Arc has gone far beyond the "broad allegations" made by the Plaintiff in Havens Realty. The Arc has given specific examples of efforts it undertook, resources it diverted and work it was forced to delay or abandon in order to oppose Defendants' plan and Budget Bill Item 103 .05(A)(l). See, Trosclair Affidavit, ~~ 59-64. The Arc's diversion of its resources demonstrates "concrete and demonstrable injury to the organization's activities - with the consequent drain on the organization's resources" sufficient to give the organization standing to bring its causes of action. Havens Realty, 455 U.S. at 379.
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Because the Arc has been injured by the diversion of its resources to oppose Defendants' plan and Budget Bill Item 103.05(A)(l), it has standing to challenge the constitutionality of the plan and Item. In Common Cause/Georgia, a case from 2009, the 11 th Circuit held that the NAACP had standing to contest the constitutionality of a Georgia voting registration law because it had diverted resources, and anticipated continuing to do so, to oppose the statute. Common Cause/Georgia, 554 F.3d at l350-5l. The Court held that the NAACP's diversion of resources to oppose the law and educate clients about it "established an injury sufficient to confer standing to challenge the statute." Id.
Contrary to Defendants' argument, the resources diverted by the Arc were not "litigationrelated." The Arc has not claimed that any time or monetary resources it expended in this litigation - such as time spent meeting with attorneys, filing fees, or any other litigation activities- give it standing to sue. Rather, the Arc bases its standing on the resources it has and will divert to oppose the plan and Budget Bill through administrative, educational and advocacy means and the planned actions it was forced to delay or abandon as a result2 Trosclair Affidavit, ~~ 59-64. This is exactly the type of resource diversion found to confer standing in Havens Realty and Common Cause/Georgia. See, also, Liberty Resources Inc., et al. v. Southeastern Pennsylvania Transportation Authority, 155 F. Supp. 2d 242, 251 (E.D.Pa. 2001) (organization
2 The Arc is willing to provide more details regarding the resources it diverted even though it does not believe that doing so is necessary to establish standing (especially at this stage of the litigation). See, e.g., Smith v. Pacific Properties and Development Corporation, 358 F.3d 1097, 1105-06 (9th Cir. 2004). However, should the Court believe that more details are required, the Arc respectfully requests an opportunity to amend its Complaint.
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had standing because it diverted resources to meet with defendants and to assist clients)]
Next, Defendants incorrectly argue that the Arc lacks standing because Defendants are
"merely charged" with carrying out an Act of the General Assembly. However, as Defendants
admit in their Memorandum in Support of their Motion, Plaintiffs may challenge State laws or
actions by suing government officials who have a "special relation" to them. See, e.g, Waste
Management Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir. 2001); Defendants'
Memorandum in Support, p. 17-18. Thus, the fact that Defendants are allegedly carrying out the
General Assembly's wishes does not relieve them of liability or deny standing to the Arc 4
Defendants' quotation from Olmstead - "nothing in the ADA or its implementing
regulations condones termination of institutional settings for persons unable to handle or benefit
from community settings" - supports both the Arc's standing and its case. The Arc is
chall enging Defendants' plan because they intend to build and fully populate a segregated
3 Defendants make a last attempt to disparage the Arc's diversion of resources by calling its advocacy "unnecessary and misdirected" and claiming that such efforts cannot confer standing. Of course, by so stating, they admit that the Arc has, in fact, diverted its resources to advocate against Defendants' plan and Budget Bill Item 103.05(A)(I). Therefore, this Court should find that the Arc has standing to challenge the plan and Item. As to Defendants' characterization, the Arc imagines that any Defendant faced with advocacy or legal action against it would consider that action to be "misdirected." More to the point, the Arc knows of no cases holding that a Court must perform a valuative analysis ofan organization's diversion of resources as a precursor to finding that those efforts gave it standing to sue, and Defendant cite none.
4 It is worth noting that this Court can hold that Budget Bill Item 103.05(A)(I) does not require the Defendants' plan and, therefore, does not violate the ADA or Section 504. The Item does not call for the creation of a segregated institution, stating only that a "facility" should be built. A "facility" can be many things: for example, SEVTC is a "facility" made up of several buildings spread out over a large area. The "facility" called for in Budget Bill Item 103.05(A)(l) could be made up of several buildings spread out over an integrated community setting. Hence, this Court can hold that Defendants were not charged to create a plan to build and full y populate a segregated institution and have, therefore, violated the Act they claim to be following as well as the ADA and Section 504. Such a holding would be in keeping with precedent holding that "a court should avoid , if possible, that construction of a statute that would result in its constitutional invalidation." Anderson v. Babb, 632 F.2d 300, 308 (4th Cu. 1980) (citation omitted).
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institution for people who, according to the state-sponsored study, are able to handle and would benefit from living in community settings and because they have not conducted individualized assessments to determine the actual needs of SEVTC residents. Consequently, the Arc alleges, Defendants' plan violates the ADA and Section 504. The Arc's previous and future diversion of resources to oppose the plan gives it standing to mount this challenge. Common Cause/Georgia, 554 F.3d at 1350-51.
To the extent that Defendants claim this Court lacks jurisdiction to hear the Arc 's challenge, that contention fails based upon Verizon Maryland Inc. v. Public Service Commission ofMaryland, et al., 535 U.S. 645 (2002). In Verizon Maryland, the Court reversed the Fourth Circuit and held that federal courts can hear Supremacy Clause challenges to state laws or actions. 535 U.S. at 642-43. The Court also held that the Eleventh Amendment does not bar challenges brought, like this one, against state officials in their official capacity. Id. at 645-46.
B. The Arc Enjoys Associational Standing to Prosecute its Causes of Action on Behalf of its Members.
Defendants' conclusory arguments against the Arc's associational standing are without merit. First, the fact that the Arc has not identified, by name, its members residing at SEVTC does not divest the Arc of standing to bring an action on their behalf. The Arc admits it has not identified, by name, the SEVTC residents who are Arc members. This is because the Arc reasonably fears that if the identity of its members becomes public knowledge, its members will be subject to intimidation by people opposed to this case. The Arc has good reason for its concern: one SEVTC resident readily agreed to join the Arc and became an Arc member. However, when the resident's father found out about the membership, the Arc received threats and demands that the resident's membership be rescinded. In addition, the resident reacted with
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great fear when the Arc next visited SEVTC. See, Second Affidavit of Jamie Trosclair, attached to and made a part of this Memorandum as Exhibit G, ~~ 4-12.
More to the point, the Arc is unaware of any cases requiring an organization to identify its members by name, at least at this stage of the litigation, and Defendants have cited none. However, should the Court require the Arc to produce the names of its members, it will ask that the Court issue an appropriate Protective Order and/or receive the information in camera.
Even so, Defendants are simply wrong when they say that the Arc has not properly alleged that its members have standing to sue. The Arc has stated that, based on the statesponsored study, its members living at SEVTC do not "need" institutionalization. Complaint, ~'I 94 -114; 11 8-137. The Arc has alleged that its members living in SEVTC are nevertheless at risk of being placed in the new segregated institution because Defendants have arbitrari ly chosen to place 75 SEVTC residents in it. s Id. These allegations establish a threat to Arc members' ADA and Section 504 rights, including their right to receive services in the most integrated setting appropriate to their needs, giving them standing to sue. See, e.g., Friends ofthe Earth, Inc. v. Gaston Copper, 204 F.3d 149,160 (4th Cir. 1999) (increased risk of injury causes injury in fact) Contrary to Defendants' assertion, the Arc need not wait until one of its members is actually placed or selected for placement in the new institution before filing suit because "one does not have to await the consummation ofthreatened injury to obtain preventative relief." !d.
The remainder of Defendants' argument against the Arc's associational standing alleges that the Arc cannot show harm to its members unless and until one of them is placed in the
5 As discussed more fully below, Defendants' self-serving statement that they will only place people in the new institution who choose to live there should not be given any weight and actually contradicts Defendants' plan. See, infra, at pp.15-17.
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segregated institution. This argument is the same one they make when claiming that the Arc's causes of action are not ripe. Therefore, it will be addressed in section C, immediately following.
C. The Arc's Claims are Ripe for Adjudication Defendants incorrectly argue that the Arc's causes of action are unripe because they have not yet chosen the 75 SEVTC residents who will be placed in the new institution. This argument necessarily attacks the ripeness of the Arc's causes of action brought in their own right (Counts III and VI) and those brought pursuant to its associational standing (Counts I, II, IV and V). The Arc will address each separately.
1. The Arc's causes of action in its own right are ripe. With regard to the Arc's causes of action in its own right - Counts III and VI challenging the constitutionality of the Defendants' plan and Budget Bill Item 103.05(A)(I) - Defendants' argument fails completely. In general, causes of action that are "predominantly legal," like the Arc's constitutional challenge, are "more likely to be found ripe. " Fielder, 475 F.3d at 188. Specifically, the Arc contends that Budget Bill Item 103.05(A)(I) and Defendants ' plan conflict with and are preempted by the ADA and Section 504. Complaint, ~~ 138-164. These claims are ripe because the Defendants have "not suggested that [their plan or the Item] will not be enforced." Miller v. Brown, 462 F.3d 312, 321 (4th Cir. 2006) (citing Virginia v. Am. Booksellers Ass 'n, 483 U.S. 383,393 (1988) (Plaintiff had standing to challenge a statute where there was no evidence it would not be enforced». Furthermore, it is hardly rare for a Court to hear challenges to state laws before their full implementation. See, e.g., Fielder, 475 FJd at 180. In Fielder, Maryland passed a law requiring certain retailers to pay a tax to fund health care. The law required the State to promulgate
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regulations to implement the statute. Before any regulations were issued, the organizational Plaintiff filed suit to enjoin enforcement of the statute. The Defendants argued that the cas e was not ripe because regulations were not yet promulgated and, therefore, there was no way to know whether its members would be injured by the statute. The Court held that the Plaintiffs case was ripe because the lack of regulations did "not alter the Act's provisions . .. that [Plaintiff] claims are invalid." Fielder, 475 F.3d at 188.
The same is true here. The fact that Defendants have not yet chosen the specific people who will populate the institution does not alter the provisions of Defendants' plan or Budget Bill Item 103.05(A)(I) that the Arc "claims are invalid." These provisions include the building of a segregated institution for 75 SEVTC residents despite a state-sponsored study finding that all SEVTC residents can be served in the community and without Defendants conducting assessments to determine if any SEVTC residents actually require institutionalization. Therefore, pursuant to Fielder, the Arc's challenge to those requirements is ripe for adjudication.
2. The Arc's causes of action brought on behalf of its members are ripe. With regard to the Arc's causes of action on behalf of its members, Defendants' argument is without merit because neither the Arc nor its members must wait until a threatened injury actually occurs before taking steps to prevent it. Friends ofthe Earth, 204 F.3d at 160. Under Defendants' argument, the Arc could not file suit to enjoin the building and population of a segregated institution until the segregated institution is actually built and populated. Such a rule would "eliminate the claims of those who are directly threatened but not yet engulfed by an unlawful" action. Friends ofthe Earth, 204 F.3d at 160. It would also allow the Defendants to
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moot the Arc's case seeking to prevent construction of the segregated institution simply by delaying naming the people who will populate the new facility until it completes construction.
In fact, the Arc's association standing case is ripe because it has members living in SEVTC and 75 SEVTC residents will be placed in the new institution - even though the statesponsored study concludes that no SEVTC residents require institutionalization and Defendants did not perfonn individualized assessments to detennine if any do. Therefore, all SEVTC residents, including Arc members, are at risk of being among the 75 people who will be placed in the new institution in violation oftheir ADA and Section 504 rights to receive services in the most integrated setting appropriate to their disabilities and to receive individualized assessments to detennine those needs. See, 28 C.F.R. § 35.130(d) (ADA); 28 C.F.R. § 41.51 (Section 504); United States Department of Justice Commentary to 28 C.F.R. § 35.130 (Under the ADA, "public entities are required to ensure that their actions are based on facts applicable to individuals and not on presumptions as to what a class of individuals can or cannot do. "); PGA Tour v. Martin, 532 U.S. 661, 688 (2001) (Under the ADA, "an individualized inquiry must be made to detennine" whether a particular person requires a particular service or accommodation); School Board ofNassau County v. Arline, 480 U.S. 273, 287-88 (1987) (Section 504 requires an individualized inquiry into a person's needs and abilities).
Consequently, Arc members living at SEVTC are threatened with "unjustified institutional isolation" in violation of their rights. Olmstead, 527 U.S. at 600. The Arc's causes of action to challenge that threat are ripe. Friends ofthe Earth, 204 F.3d at 160.
Defendants attack this claim by insisting that "residing in the new facility will be voluntary." In support of their position, Defendants cite a letter from the Secretary of Health,
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Defendant Marilyn Tavenner, saying that only people who want to live in the new institution will be placed there. Exhibit C to Defendants' Memorandum in Support of their Motion.6
Because Secretary Tavenner's letter is self-serving and unsupported by other evidence, and actually contradicts Defendants' plan, it should not be given any weight by this Court. At the outset, this case marks the first time Defendants have publicly taken this position. Such a statement does not appear in Budget Bill 103.05(A)(l), Exhibit C; in the plan they submitted to the SEVTC Advisory Committee on 13 August 2009, Exhibit F; in the Commissioner's testimony to the General Assembly on 21 September 2009, attached and made a part ofthis Memorandum as Exhibit H; or in the update Defendants submitted to the SEVTC Advisory Committee on 24 September 2009, attached and made a part of this Memorandum as Exhibit I.
Instead, this new position appears only in Secretary Tavenner's letter, which was sent after the Defendants had actual knowledge of the Arc's position7 Additionally, Secretary Tavenner's letter contradicts Defendants' plan, which states, "Personal preference is an important consideration but will not be the sole basis for selection." See, Exhibit F, p.2.
Hence, Secretary Tavenner's letter is nothing more than an uncorroborated and selfserving statement, which is contradicted by the facts, and should not be given any weight. See,
6 Defendants also allege that their Exhibit G, a separate state law, establishes that they will only place people in the new segregated institution who wish to live there. Even a cursory reading of Exhibit G shows that it does not address or involve placement in the new institution. Furthermore, the law does not make a person's choice the determinative factor in his or her placement, saying only that consumer choice will be "considered." Therefore, even if the law addressed admission to the new institution, which it does not, it would not allay the threat that Arc members will be chosen to live in the new segregated institution. 7 Secretary Tavenner's letter is dated 28 October 2009. On 14 October 2009, the Arc sent Defendants final notice of their claims, including their claim that Arc members are at risk of placement in the new facility. Complaint, '1[89. Also of note is that Secretary Tavenner' s letter is dated the day after this action was filed.
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e.g., Filler Products, Inc. v. NL.R.B., 376 F.2d 369, 379 (4th Cir. 1967) (holding that Plaintiffs self-serving statement in support of its position was not entitled to weight and did not "warrant a finding offact.,,).8
This is all the more true because her statement cannot be relied upon. "Estoppel does not apply to the government in the discharge of its governmental functions." Gwinn v. Alward, 235 Va. 616,621 (1988). Therefore, if Defendants or the next administration withdraw their position, Arc members will be unable to hold the Commonwealth to it. Consequently, Arc members at SEVTC remain at risk of placement in the new institution.
3. Even if the Arc's causes of action for an Injunction on behalf of its members are not ripe, its causes of action for Declaratory Judgments on behalf of its members are ripe 9
The Arc's causes of action for Declaratory Judgments on behalf of its members are ripe, even ifits causes of action for Injunctions on behalf of its members are not, because the Arc's prayers for Declaratory relief are its "central claim." Norfolk and Western Railway Company, et al. v. Brotherhood afRailroad Signalmen, et al., 164 F.3d 847, 856 (4th Cir. 1998). Defendauts' ripeness challenge is essentially a claim that Arc members do not face imminent injury because no one has been selected to live at the new segregated institution. However, the Fourth Circuit has held that a lack of imminence will not defeat standing when a party's central claim is for Declaratory relief and its prayer for au Injunction is ancillary to it. Id.
8 Additionally, because Secretary Tavenner's letter contradicts Defendauts' plan, it should, at best, be considered au example of "voluntary cessation of illegal activity." Such actions do not render a Plaintiffs case challenging the illegal activity either moot or unmeritorious. United States v. WT Grant Co., 345 U.S. 629, 632 (1953). 9 This section applies only to the Arc's causes of action on behalf of its members (Counts I, II, IV and V). The Arc's causes of action in its own right were addressed in section 1, supra.
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In Norfolk and Western Railway, the Plaintiff and Defendant disagreed as to whether one law superseded another. The Plaintiff sought a Declaratory Judgment that its view of the law was controlling and an Injunction preventing the Union from engaging in a strike. The Union argued that the Plaintifflacked standing because no strike was imminent. The Court held:
If the railroads had only sought injunctive relief and the threat of the strike sought to be enjoined had not been imminent, then the railroads would indeed have lacked standing .... But the case before us does not depend, in a constitutional sense, on the claim for injunctive relief. The railroad's request for an injunction was ancillary to the remedy they sought on their central claim - a declaratory judgment that the ICA supersedes the RLA ... Accordingly, we conclude that the controversy . .. presents us with a live case in the constitutional sense and that the declaratory judgment remedy ... was an appropriate exercise by the district court of its Article III power. Jd. at 856. The case ~t bar is analogous to Norfolk Railway. As in Norfolk Railway, the Arc's central claims are for Declaratory Judgments. See, e.g., Complaint, Preliminary Statement ("Plaintiff, The Arc of Virginia, Inc., prays that this Court hold that Defendants' plan, and/or the state Budget Bill Item that precipitated it, violate federal law and the rights of Arc members."). The vast majority of the Arc's causes of action on behalf of its members relate to its requests for Declaratory Judgments. Compare, Complaint, ~~ 92-137 (Counts I and II seeking Declaratory Judgments) with Complaint, ~~ 165-170 (Counts IV and V seeking Injunctions). Furthermore, in Counts I and II, the Arc first asks that the Court enter Declaratory Judgments setting forth its members' rights under the ADA and Section 504 "to receive appropriate services from the Defendants ... including their right to receive services in the most integrated setting appropriate to their needs." These prayers can and do stand apart from any prayers for an Injunction and go directly to the heart of this case: the Arc's claim that Defendants
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unlawfully plan to build a segregated institution in the face of a state-sponsored survey finding that all SEVTC residents can be served in the community and without conducting assessments to determine if any SEVTC residents, including Arc members, actually require institutionalization.
D. The Arc's Causes of Action are Legally Sufficient. In their Memorandum , Defendants contend that the Arc fails to state claims under Olmstead. Specifically, Defendants argue that the Arc has not met the three-prong test for an Olmstead case seeking the discharge of a person from an institution. Defendants' position is unavailing because it counters a cause of action the Arc has not put forth . None of the Arc's claims seek a discharge. 10 Therefore, Defendants' analysis of Olmstead, which is incomplete and incorrect at any rate, is irrelevant. Instead, the Arc claims, in its own right, that Defendants' plan and Budget Bill Item 103.05(A)(I) conflict with and are preempted by the ADA and Section 504 (Counts III and VI) and, on behalf of its members, that Defendants plan and Budget Bill Item 103.05(A)(l) violate its members' ADA and Section 504 rights (Counts I, II, IV and V) . Defendants do not argue that these Counts fail to state a cause of action. Therefore, this Court should hold that Defendants have conceded that they do .
10 In its Prayer for Relief for Counts IV and V, the Arc asks that the Court Order Defendants to individually assess SEVTC residents and meet their needs in the most integrated setting appropriate to them. Defendants have already admitted that they did not conduct such assessments. See, Exhibit E. By their express terms, these prayers do not call for any person to be discharged. Rather, they ask for assessments to determine the needs of SEVTC residents, including Arc members. If an assessment determines that an SEVTC resident should be discharged, that individual would have standing to bring an Olmstead claim, to which the elements cited by Defendants would apply. However, those issues are not before this Court because, as Defendants admit, the assessments have not been done.
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If, however, Defendants now claim that they do not think the Arc has properly stated such causes of action, their arguments are without merit.
1. The Arc's causes of action in its own right state claims upon which relief can be granted.
Counts III and VI of the Arc's Complaint properly states claims that Defendants' plan and Budget Bill Item i03.05(A)(l) conflict with the ADA and Section 504 and, therefore, the plan and Item are preempted and invalidated by the Supremacy Clause. This Court has the ability and authority to grant the Declaratory and Injunctive relief sought by the Arc in these Counts. See, Verizon Maryland. 535 U.S. at 642-647 (federal courts have subject matter jurisdiction to hear Supremacy Clause challenges to state laws and the authority to enjoin laws that conflict with federal law) .
In Counts III and VI, the Arc alleges that the Defendants' plan and Budget Bill Item i03.05(A)(I) , to the extent it requires such a plan, conflict with and stand as an obstacle to the ADA and Section 504. Complaint, ~~ 138-164 (Count III); 174-175 (Count VI). The Arc further alleges that it has diverted resources to oppose and counter the damage caused by the plan and Item. Complaint, 'I~ 139-147; 175; Trosclair Affidavit, 'I~ 59-64.
Pursuant to Havens Realty and Common Cause/Georgia, the Arc's allegations "established an injury sufficient to confer standing to challenge the statute. " See, Common Cause/Georgia, 554 F.3d at 1350-51. Moreover, the uncontroverted evidence submitted by the Arc establishes that the plan and Item directly conflict with the requirements of the ADA and Section 504, including Defendants' obligations to provide services in the most integrated setting appropriate to the needs of individuals with disabilities and to conduct individualized assessments to determine those needs. See, 28 C.F.R. § 35.130(d) (ADA); 28 C.F.R. § 41.51
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(Section 504); United States Department of Justice Commentary to 28 C.F.R.§ 35.130 (Under the ADA, "public entities are required to ensure that their actions are based on facts applicable to individuals and not on presumptions as to what a class of individuals can or cannot do."); PGA Tour v. Martin, 532 U.S. 661,688 (2001) (Under the ADA, "an individualized inquiry must be made to determine" whether a particular person requires a particular service or accommodation); School Board ofNassau County v. Arline, 480 U.S. 273,287-88 (1987) (Section 504 requires an individualized inquiry into a person's needs and abilities).
To supports its contention, the Arc submits and cites the following: • The state-sponsored study concluding that all SEVTC residents "Can Be Served in the Community." Exhibit D; • The admissions of the Commissioner and his Deputy that the new 75-bed institution is "arbitrary," not based on any "science or study," and not related to the actual needs of SEVTC residents. Trosclair Affidavit, ~~ 33, 53-55; • The Governor's statement that SEVTC residents "don't need to be institutionalized;" See, WAVY-TV, "Kaine on the economy and 'going green,'" http://www.wavy.comldpp/news/local wavy kaine budget update southeastern 20090112; and • Defendants admission that they do not have any individualized assessments showing that any SEVTC residents "need" institutionalization or any documents showing that a new institution is needed or appropriate. Exhibit E.
In their Memorandum, Defendants' further prove the Arc's point by stating that the individuals currently at SEVTC "will" be evaluated" and that such evaluations "have not yet occurred." Defendants' Memorandum in Support, p. 5, 14.
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Therefore, the evidence in this case establishes that Defendants predetermined that 75 SEVTC residents will be institutionalized and have chosen to build an institution on the segregated SEVTC compound to house them. I I This plan is diametrically opposite to federal law. "If anything, federal law requires Defendants to consider community placement ... to determine whether the individual's total needs are such that his or her needs can be met in an appropriate community setting. .. [I]f the inpatient care is appropriate and desired but the [institution] is not the appropriate setting for meeting the individual's needs . . another setting such as an ICF/MR (including small, community based facilities)" is appropriate. Holland v. Patrick, 562 F. Supp. 2d 176, 185 (D.Mass. 2008) (internal punctuation and citations omitted).
Defendants' plan also violates the ADA's mandate that States create an "effectively working plan for placing qualified persons with mental disabilities in less restrictive settings ... not controlled by the State's endeavors to keep its institutions fully populated." Olmstead, 527 U.S. at 605-06. Instead of doing so, Defendants plan to fully populate a new institution, regardless of whether 75 SEVTC residents actually require institutional services.
The arbitrary and unnecessary nature of the segregated institution is further proved by the Commissioner's presentation to the General Assembly in January of2009, copy attached to and made a part of this Memorandum as Exhibit J. In his presentation, Commissioner Reinhard supported closing SEVTC. He testified that a maximum of 55 SEVTC residents may need institutionalization but that they could be served in existing state facilities. Exhibit J, p. 5. Therefore, contrary to Defendants' assertion that SEVTC residents need a new institution due to
II While Defendants seem to argue that the new institution will be integrated, their contentions are belied by the trenches, barbed-wire topped fences, and No Trespassing signs separating the SEVTC compound from the community. See, Exhibit A, ' 1'1111-16.
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the condition of SEVTC, the Commissioner's admission proves that there are ample institutional placements for SEVTC residents who require them and do not want to stay at SEVTC.
2. The Arc 's causes of action on behalf of its members state causes of action upon which relief can be granted.
In Counts I, II, IV and V of their Complaint, the Arc alleges that Defendants' plan and Budget Bill Item 103.05(A)(l) violate its members ' rights Wlder the ADA and Section 504. These counts properly state causes of action upon which relief can be granted.
In general, to state a cause of action Wlder the ADA and Section 504, a plaintiff must allege (l) that slhe is a person with a disability; (2) that slhe is otherwise qualified for the service or benefit he or she seeks; and (3) that slhe was denied or threatened with denial of that service or benefit due to his or her disability. 12 See, generally, 42 U.S.C. § 12132; 29 U.S.C. §794; Baird v. Rose, 192 F.3d 462, 467 (4th Cir., 1999).
The Arc's causes of action on behalf of its members satisfy this standard. The Arc has alleged that its members are people with disabilities and that they are qualified to receive the benefits they seek. Complaint, ~~ 97-99 (Count I); 121-123 (Count II); 165 (Count IV); 168 (Count V) . The Arc has also alleged that its members were denied access, due to their disabilities, to services and benefits - including placement in the most integrated setting appropriate to their needs and individualized assessments to determine those needs. Complaint, ~~ 103-114 (Count I); 125-137 (Count II); 165-167 (Count IV); 168-170 (Count V).
12 Section 504 also requires that the denial be "solely" due to the Plaintiffs disability and that the defendant is a recipient of federal funds. The Arc has met alleged both. Complaint, ~~ 116-11 7, 137 (Count II); 168-170 (COWlt V).
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Thus, the Arc's Complaint states causes of action upon which relief can be granted. The Defendants' arguments to the contrary, including their allegations that the Arc's claims are not ripe or that the Arc lacks standing to bring them, are without merit and were addressed supra.
E. Defendants do not have Eleventh Amendment Immunity to the Arc's Causes of Action. To the Extent it Must do so, the Arc Properly Invokes Ex Parte Young. 1. Defendants' generalized Eleventh Amendment arguments are without merit.
The Defendants next argue that the Eleventh Amendment bars all of the Arc's causes of action and that the Ex Parte Young exception is not applicable. It should be noted, first, that the Arc need not rely on Ex Parte Young for its causes of action arising under Section 504 - Counts II and IV - because Virginia has waived its Eleventh Amendment immunity to Section 504 actions. A "provision of the Civil Rights Act of 1964 [states] that 'a state shall not be immune under the Eleventh amendment of the Constitution of the United States from suit in Federal Court for a violation of Section 504 of the Rehabilitation Act. ", Bruggeman by Bruggeman, et al. v. Blagojevich, et aI., 324 F.3d 906, 912 (7th Cir. 2003) (citing 42 U.S.c. § 2000d-7(a)(1)). Citing 42 U.S.c. § 2000d, the Fourth Circuit held that Virginia waived its sovereign immunity to Section 504 claims in cases where, as here, Virginia accepted federal funding. Litman v. George Mason University, 186 F.3d 544 (4th Cir. 1999)13
The remainder of Defendants' Eleventh Amendment arguments do not claim that, as a general rule, they are immune to ADA or Supremacy Clause causes of action or that Ex Parte
]] As stated, the Arc has alleged that Defendants receive federal funding. Complaint, ~~ 116-117. Defendants do not deny that they are "recipients" for the purposes of Section 504.
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Young is not generally applicable to such c1aims.14 Rather, they claim that they are immune, and that Ex Parte Young does not apply, because the Arc allegedly lacks standing; the Arc's causes of action are allegedly unripe; and the Arc's causes of action allegedly fail to state claims under Olmstead.
Defendants' arguments fail because their underlying assumptions are incorrect. The Arc addressed and disproved each of Defendants' arguments to the contrary, supra.
2. Defendants' Eleventh Amendment arguments regarding the Governor and the Secretary of Administration are without merit.
Finally, Defendants argue that the Governor and the Secretary of Administration are immune from the Arc's causes of action and that the Ex Parte Young exception does not appl y to them. Defendants' arguments fail because the Governor and the Secretary of Administration have a "special relation" to Defendants' plan and Budget Bill Item 103.05(A)(1). Therefore, they are proper Defendants to the Arc's causes of action. See, e.g., Waste Management Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir. 2001).
In its Complaint, the Arc alleges that each of the Defendants is "implementing or working to implement Budget Bill Item 103.05(A)(1). Complaint, ~ 52. The Arc also alleges that each Defendant will playa role in selecting the contractor that will build the new segregated institution. Complaint, ~ 88.
t4 It is worth noting that Verzon Maryland holds that the Ex Parte Young exception applies to Supremacy Clause cases. 535 U.S. at 645-6457. Also, several Courts have held that the Ex Parte Young exception applies in ADA cases where, as here, Plaintiff seeks prospective injunctive relief against state officials in their official capacity. See, e.g. , Board of Trustees v. Garrett, 531 U.S. 356, 374 n. 9, (2001); Bruggerman, 324 F.3d at 912-13 ; Carten v. Kent State University, 282 F.3d 391, 396-97 (6th Cir. 2002).
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While these allegations, alone, should be enough to establish that the Governor and Secretary of Administration have a "special relation" to Defendants' plan and Budget Bill Item 103.05(A)(1), at least at this stage of the litigation, the Arc offers the Declaration ofV. Colleen Miller, attached to and made a part of this Memorandum as Exhibit K, to further elaborate on the "special relation" Secretary Baskerville and Governor Kaine have to Defendants' plan and Budget Bill Item 103.05.
Ms. Miller states that she attended a briefing on Budget Bill Item 103.05(A)(1) given to approximately 20 interested parties. At the briefing, which was given in part by Deputy Commissioner Heidi Dix ofDBHDS and in part by DGS representatives, the attendees were told how DGS and DBHDS intended to implement the Budget Bill Item. They were told that bids would be solicited from contractors. They were told that a committee, made up in part by Defendants Secretary Tavenner, Secretary Baskerville and/or their designees, would review the bids and submit a "decision brief' to the Governor recommending one of the bids. The Governor would then review the decision brief, review the bids, and choose one of the bidders to build the new institution. Miller Declaration, ~~ 5-11.
Thus, this case is not analogous to Waste Management Holdings, where Governor Gilmore did not have a "special relation" or specific duties to enforce or implement a state law. Instead, the Governor and Secretary of Administration have specific roles to play and have taken specific responsibilities to implement Budget Bill Item 103.05(A)(I) and Defendants' plan. As stated in the briefing attended by Ms. Miller, the Item cannot be implemented unless Governor Kaine selects a bidder. Governor Kaine cannot select a bidder until Secretary Baskerville and the other committee members submit their "decision brief."
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Thus, unlike Governor Gilmore in Waste Management Holdings, Governor Kaine and Secretary Baskerville have specific responsibilities to implement Defendants' plan and Budget Bill Item 103.05(A)(l). These responsibilities establish that they have a "special relation" to the plan and Item and, therefore, that they are proper Defendants to the Arc's causes of action. 15
V. CONCLUSION For the reasons set forth above, Plaintiff respectfully requests this Court Deny
Defendants' Motion to Dismiss and grant them the relief sought in their Complaint. The Arc also prays that this Court Order the Defendants to pay their attorneys' fees and costs, to the extent permitted by law, and for such other and further relief that to this Court seems just and proper.
15 In a footnote, Defendants suggest that Director Sliwoski may not be a proper Defendant. Budget Bill Item 103.05 specifically makes DGS, the agency headed by the Director, responsible for ensuring that the new institution is built. Therefore, even more than Secretary Baskerville or Governor Kaine, the Director has the requisite "special relation" with Defendants' plan and Budget Bill Item 103.05(A)(l).
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Dated: 19 November 2009
Respectfully Submitted:
The Arc of Virginia, Inc. by counsel
The Virginia Office for Protection and Advocacy 1910 Byrd Avenue, Suite 5 Richmond, VA 23230 Tele: (804) 225-2042 Fax: (804) 662-7431
V. Colleen Miller, Executive Director
/s Jonathan G. Martinis, Managing Attorney Virginia State Bar Number: 37299 Virginia Office for Protection and Advocacy Attorney for Plaintiff 1910 Byrd Avenue, Suite 5 Richmond, VA 23230 Telephone: (804) 225-2042 Fax: (804) 662-7431 E-mail: Jonathan.Martinis@VOPA.Virginia.Gov
/s Kalena C.M. Ek, Staff Attorney Virginia State Bar Number: 74858 Virginia Office for Protection and Advocacy Attorney for Plaintiff 1910 Byrd Avenue, Suite 5 Richmond, VA 23230 Telephone: (804) 225-2042 Fax: (804) 662-7431 E-mail:Kalena.Ek@VOPA.Virginia.Gov
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CERTIFICATE OF SERVICE I hereby certify that on the 19th day of November, 2009, I electronically filed the
foregoing with the Clerk of the Court using the CMIECF system, which will send a Notice of
such Filing (NEF) to the following:
Ishneila LG. Moore Office of the Attorney General Health Services Section 900 East Main Street Richmond, Virginia 23219 (804) 371-6019 (804) 371-8718 (Fax) imoore@oag.state.va.us
Is Jonathan G. Martinis, Managing Attorney Virginia State Bar Number: 37299 Virginia Office for Protection and Advocacy Attorney for Plaintiff 1910 Byrd Avenue, Suite 5 Richmond, VA 23230 Telephone: (804) 225-2042 Fax: (804) 662-7431 E-mail: Jonathan.Martinis@VOPA.Virginia.Gov
Is Kalena C.M. Ek, Staff Attorney Virginia State Bar Number: 74858 Virginia Office for Protection and Advocacy Attorney for Plaintiff 1910 Byrd Avenue, Suite 5 Richmond, VA 23230 Telephone: (804) 225-2042 Fax: (804) 662-7431 E-mail: Kalena.Ek@VOPA.Virginia.Gov
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 Case 3:09-cv-00686-REP Document 24 Filed 11/24/09 Page 1 of 22 PageID# 541

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION

THE ARC OF VIRGINIA, INC.,

)

)

Plaintiff,

)

v.

)

)

TIMOTHY M. KAINE, et al,

)

)

Defendants.

)

)

Civil Action No.: 3:09cv686

UNITED STATES’ MEMORANDUM OF LAW AS AMICUS CURIAE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
The United States of America, by counsel and pursuant to the Order of the Court entered November 23, 2009, submits the following Memorandum of Law as Amicus Curiae in Opposition to Defendants’ Motion to Dismiss: I. INTRODUCTION
This lawsuit challenges the decision by Defendant Timothy M. Kaine, Governor of the Commonwealth, and other Commonwealth officials, to proceed with plans to build a large staterun facility to care for approximately seventy-five adults with disabilities who have been independently evaluated and found eligible to live in the community with assistance. Using state funds to build a new, segregated state-run facility under these circumstances violates the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 and is in direct contravention of the requirement to integrate persons with disabilities into the community as mandated by the Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999).
Plaintiffs allege a claim under Olmstead based on the continued placement of Southern Virginia Training Center (“SEVTC”) residents in segregated, institutional settings when all of the facility’s residents have been found to be qualified to receive services in less restrictive settings and the State has alleged no fundamental alteration. Olmstead at 607. Furthermore, a State can violate Olmstead’s integration mandate based on the manner it chooses to administer the services its provides to individuals with disabilities, including “plan[ning] the settings in

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which mental health services are provided, and allocat[ing] resources within the mental health service system.” Disability Advocates Inc. v. Paterson, 598 F.Supp.2d 289, 318 (E.D.N.Y. 2009). Rather than building capacity for community-based services, the State is exacerbating its existing failure to comply with Olmstead by choosing to allocate its resources in a way that ignores the needs of the individuals with disabilities that it serves and perpetuates the institutional bias that the Court recognized in Olmstead. Olmstead at 601 (citing to Brief for United States as Amicus Curiae 6-7, 17). Plaintiffs thus allege an existing title II violation based on the State’s failure to move individuals into community settings where they have been found qualified for such settings and alternatively based on the risk created for perpetuating such unnecessary segregation through the expenditure of significant sums to construct an institution while failing to build the State’s community services. In its November 23rd Order, this Court approved the United States’ request to participate as amicus curiae in this case, and based upon that ruling, the United States argues, herein, that Defendants’ motion to dismiss should be denied.
Defendants have filed a motion to dismiss the Complaint pursuant to Rule 12, Fed. R. Civ. P., on several grounds: (1) The ARC of Virginia (“ARC”) has no standing either by itself or in a representative capacity; (2) this matter is not ripe for adjudication because no one has been selected to live in the new facility; (3) the only persons who will reside at the new facility are persons who choose to live there after they are properly evaluated; (4) the Complaint fails to state claims under Ex parte Young, 209 U.S. 123 (1908); and (5) Ex parte Young claims against Defendants Governor Kaine and Viola O. Baskerville, Secretary of Administration of the Commonwealth of Virginia, are otherwise improper.1 At this early stage of the case, Plaintiff is entitled to have the Court presume that all well-pleaded facts are true and the Court should draw reasonable inferences in favor of Plaintiff. The facts alleged demonstrate that the ARC has associational standing, and has presented claims that meet the requirements of the ripeness
1As Defendants do not contest Plaintiff’s ability to bring claims against Defendants Reinhard and Tavenner, the United States does not take a position on Defendants’ Ex parte Young arguments involving remaining Defendants.
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doctrine. Further, the ARC may sue the Defendants because the organization is entitled to sue state defendants pursuant to Ex parte Young. II. SUMMARY OF FACTS
The current Southeastern Virginia Training Center (“SEVTC”) is a state institution for Virginians with intellectual and developmental disabilities located on a 120-acre compound in an isolated section of Chesapeake, Virginia. Complaint ¶ 25. It is segregated from the neighboring properties on all sides. Complaint ¶ 27. There are multiple “No Trespassing” signs on the SEVTC property. Complaint ¶¶ 26, 28, 29.
The SEVTC, which is operated by the Virginia Department of Behavioral Health and Developmental Services (DBHDS), currently houses approximately 156 individuals with intellectual and developmental disabilities. Complaint ¶ 61.
In his proposed budget for 2010, Defendant Kaine proposed closing SEVTC and redirecting money that had been earmarked for construction at SEVTC to build communitybased housing for people with intellectual disabilities. Complaint ¶¶ 41, 42. The Complaint alleges that Defendant Kaine stated that SEVTC residents “don’t need to be institutionalized”. Complaint ¶ 41. Other Commonwealth officials publicly supported the Governor’s proposed plan to close SEVTC and to provide persons located at SEVTC with community-based services. Complaint ¶ 43.
In 2009, the Virginia General Assembly passed several budget items related to this matter. Budget Items 103.05(A)(1)and (2) directed Commonwealth Departments and officials to rebuild and resize the SEVTC to a 75-bed facility “to serve profound and severely disabled citizens” and directed that certain appropriated funds in the amount of $23,768,000 be transferred for that purpose. Complaint ¶ 45. In addition, Budget Item 103.05(A)(3) directed Commonwealth Departments to build, acquire, or renovate 12 community-based Intermediate Care Facilities (ICF-MR) and 6 MR Homes in Health Planning Region V. This budget item stated that priority should be given to projects that could be completed on existing state owned property within Health Planning Region V. Complaint, Exhibit A. Budget item 103(A)(6) directed the Governor and other Commonwealth officials to “initiate an expedited, fast track
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capital outlay process to ensure the timely availability of both the rebuilt and resized” SEVTC and the 12 community-based Intermediate Care Facilities (ICF-MR) and 6 Mental Retardation Homes in Health Planning Region V.” Complaint ¶ 49.
Meanwhile, on June 23, 2009, the State’s contractor, Human Services Research Institute (“HSRI”) of Portland, Oregon, prepared a report entitled Information Brief for the Virginia Office of the Department of Behavioral Health and Developmental Services of Virginia SIS Comparisons for SEVTC and Comprehensive Waiver Populations. Complaint ¶ 53. The Institute used the Supports Intensity Scale (SIS) to assess and compare 156 people housed in the SEVTC and a sample group of 521 people in the Virginia’s comprehensive waiver program. “Virginia has used the Supports Intensity Scale (SIS) for years to write better individual service plans for people in the community and to describe the support needs of individuals being served.” Complaint, Exhibit B at 1. HSRI’s assessment concluded that all the individuals with developmental disabilities assessed, including the 156 residents living at the SEVTC, are “all clinically eligible for Medicaid and each person can be served by the Virginia comprehensive waiver.” Complaint, Exhibit B.
ARC is a not-for-profit corporation and the Virginia chapter of The ARC of the United States. Complaint ¶ 6. It is devoted to advocacy on behalf of persons with intellectual and developmental disabilities and to “promoting and improving supports and services for all people with intellectual disabilities.” Complaint ¶ 6. Its membership consists of people with intellectual disabilities. Complaint ¶ 7.
Some ARC members currently reside in SEVTC. Complaint ¶ 94. There are also ARC members “at risk of being admitted to SEVTC.” Complaint ¶ 12. These members are on the Commonwealth’s waiting list for Medicaid services. Complaint ¶ 95. Each of these individuals has been found by representatives of the Commonwealth to meet the State’s criteria for institutionalization; some have been found in “urgent” need of services in order to avoid institutionalization; if these individuals do not receive community-based services, they are at risk of being institutionalized and admitted to SEVTC. Complaint ¶ 95. ARC alleges that this case
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has been brought on behalf of ARC members who are “qualified individuals with disabilities” within the meaning of the ADA. Complaint ¶ 99.
ARC opposes plans to build a new segregated institution and has been actively advocating that SEVTC residents be provided with community-based services. Complaint ¶¶ 6, 59, 139. On or about June 29, 2009, following the issuance of the HSRI report, ARC wrote to the Governor and asked that he defer building the new institution so that he could first study the results of the survey, a request that was subsequently denied by the Virginia Secretary of Health and Human Services. Complaint ¶ ¶ 54, 55. A subsequent request that Commonwealth officials defer construction of the new segregated facility and explore other alternatives for implementing Budget Item 103.05(A)(1) so as to provide benefits and services to SEVTC residents in the most integrated setting appropriate to their needs has not been acted upon. Complaint ¶ 90.
ARC has alleged that it is pursuing this action “to protect the rights of its members who are or may become residents of SEVTC and are, therefore, threatened with being placed in a new segregated institution rather than in the most integrated setting appropriate to their needs.” Complaint ¶ 12. ARC further alleges that “these individuals have each suffered injuries, or are threatened with injuries . . . that would allow them to bring suit against the Defendants in their own right.” Id. ARC is also pursuing this action “in its own right because it has had to divert resources from its previously planned projects and efforts in order to oppose the Defendants’ plan.” Complaint ¶ 13. ARC’s efforts to oppose the budget directives at issue have resulted in a decrease of staff and monetary resources which the ARC planned to use in support of other priorities. Complaint ¶ ¶ 140-147.
The Defendants are proceeding to implement a plan to construct the new 75-bed facility on the SEVTC compound that will be populated by current and future SEVTC residents. Complaint. ¶ ¶ 44, 45, 52. The Commissioner of DBHDS announced this plan at the meeting of the SEVTC Advisory Committee in August 2009, and in testimony to the General Assembly in September 2009. Under Defendants’ plan, all of the current residents will be evaluated and their needs and supports will be assessed. Declaration of Heidi R. Dix (“Dix Dec.”) ¶ 10 (attached as Exh. A to “Defendants’ Notice of Filing” Exhibits A-E in support of their Memorandum of Law
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In Opposition to Plaintiff’s Motion for Preliminary Injunction and Motion to Dismiss filed November 23, 2009 (Dkt. 20)). Defendants have indicated that they will not use the Supports Intensity Scale (SIS), a nationally recognized assessment tool, to determine the support needs of the SEVTC residents with intellectual disabilities. Complaint ¶ 67. The Commissioner of DBHDS, however did state that each resident will be evaluated “at least annually to determine if they meet criteria to continue to reside at the existing SEVTC facility or have the ability to live in the community.” Dix Declaration ¶ 10.
In accordance with Defendants’ plan, 65 SEVTC residents will be chosen to live in the new facility whether or not those persons actually need to reside in an institutional setting and receive services there. Complaint ¶ 69. The remaining 10 beds in the new facility will be filled with SEVTC residents “who are transitioning from or to community settings.” Complaint ¶ 70. The current SEVTC residents who are not placed at the new facility will be placed in the Intermediate Care Facilities and the MR homes provided by Budget Bill Item 103.05(A)(3) or in other community placements. Complaint ¶¶ 70, 71.
In a letter dated July 6, 2009, the Commissioner for the Department of Behavioral Health and Development Services, James S. Reinhard, M.D., advised Plaintiff’s counsel that the “process for determining the identity of the individuals who will be offered SEVTC beds is currently under development” and that no resident had been selected as a candidate for an SEVTC bed at that time. Complaint ¶ 57.
Defendants have received two proposals to build a separate and segregated 75-bed facility. Complaint ¶ 87. At the November 20, 2009 hearing before this Court, Defendants’ counsel reiterated that the State will proceed with entering a final contract to build the new facility in December. The Defendants will sign a contract with one bidder for the construction of the building in December 2009. Complaint ¶ 88. Construction is expected to begin in August 2010. Complaint ¶ 88.
The Complaint challenges the basis and justification for the Commonwealth’s plan to build the new facility on SEVTC property. For example, Plaintiff alleges that the Defendant Commissioner stated that the 75-bed census for the new facility was not arrived at through any
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“science or study.” Complaint ¶ 64. A DBHDS representative admitted that there will be very little or no difference between the service needs of those who will be selected to live at the new facility and those who will be transitioned to community-based facilities. In October 2009, a Deputy Commissioner of DBHDS, stated that the 75-bed census was not based on the individualized needs of the SEVTC residents and that the 75-bed census seemed “arbitrary.” Complaint ¶¶ 83-85. III. ARGUMENT
Olmstead held that States are required to provide community-based treatment for individuals with disabilities “when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Olmstead 527 U.S. at 607. The State of Virginia has already determined that all of the current residents of SEVTC are qualified to receive services in less restrictive settings (Complaint, Exhibit B), yet the State has not moved these individuals to more integrated settings and instead is charging ahead with the construction of another segregated institution for SEVTC’s residents to reside. The State has not raised a fundamental alteration defense, and indeed by spending additional funds on another segregated facility, the State would be hard pressed to raise this defense.
Furthermore, as the court in Disability Advocates Inc. v. Paterson articulated, a state’s administration of services for individuals with disabilities is included within the purview of title II: an Olmstead claim can be rooted in “a public entity’s obligation to make reasonable modifications2 to its service system to enable individuals with disabilities to receive services in the most integrated setting appropriate to their needs.” Disability Advocates, Inc. 598 F.Supp.2d at 317. Specifically, the Court in Disability Advocates pointed to the way in which the State administered its mental health service system by “plan[ning] the settings in which mental health
2This obligation derives from the ADA title II reasonable-modification regulation. 28 C.F.R. § 35.130(b)(7).
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services are provided, and allocat[ing] resources within the mental health service system.” Id. at 318. Plaintiffs allege that Virginia’s administration of services for individuals with intellectual disabilities creates a substantial risk that individuals with disabilities will be placed in unnecessarily segregated institutions. Complaint ¶ 113 . Rather than building community capacity, the State is exacerbating its existing failure to comply with Olmstead by choosing to allocate its resources in a way that ignores the needs of the individuals with disabilities which it serves and perpetuates the institutional bias that the Court recognized in Olmstead. Olmstead at 601 (citing to Brief for United States as Amicus Curiae 6-7, 17). Such allegations state a claim for a title II violation under the ADA.
A. This Case is Ripe for Review. Defendants posit that this case is not ripe for adjudication because no individual with a disability has yet been assigned to the new 75-bed SEVTC facility. Memorandum of Law in Support of Motion to Dismiss at 5. Defendants argue that because none of the current SEVTC residents, including ARC members, have been assigned to the facility, ARC’s claims are premature. Id. at 13. In addition, Defendants argue that because the only persons who will reside in the new facility will be those who choose to live there once they are properly evaluated, Plaintiff cannot point to any present, direct harm to the residents. Id.
1. The Case is Fit for Review and The Court Need Not Await Further Action by De fendants To Rule on Legal Questions In This Case.
The ripeness doctrine is “ ‘designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.’ ” Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807-08 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967)). Determining ripeness, the Court must “balance ‘the fitness of the issues for judicial decision with the hardship to the parties of withholding court consideration.’” Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006), citing Franks v. Ross, 313 F.3d 184, 194 (4th Cir. 2002); see also McInnis-Misenor v. Maine
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Medical Center, 319 F.3d 63 (1st Cir. 2003) citing Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967).
Notwithstanding Defendants’ claims to the contrary, this case is ripe for adjudication for several reasons. The issues are fit for review because the Court is bound by the Supreme Court decision in Olmstead that requires States to integrate individuals with disabilities into the community if they are found capable of community placement unless the State can prove that such placement would lead to a fundamental alteration of the State’s services for persons with disabilities. Olmstead, 527 U.S. at 607. The current residents of the SEVTC have all been found eligible for community placement by an independent evaluation process ordered by the State. Complaint ¶ 53. Placing those persons into a newly constructed, large segregated state-run facility, when at a minimum, the State could elect to use the money to build new smaller facilities in the community, directly contravenes the Supreme Court’s decision in Olmstead and violates the ADA. Olmstead, 527 U.S. at 607. This Court was assured at the November 20th conference by Defendant’s counsel that the decision to contract to build the large segregated facility is final. Thus, the state legislature’s approval of funds for such a facility presents a decision ripe for review. When, as here, the paramount issue confronting the Court requires it to resolve a conflict between state and federal law, there is no abstract disagreement between the parties and thus the Court is free to resolve the pending legal question. The Court need not await construction of the new facility and actual placement of the SEVTC residents in order to determine that the case is ripe for review.
a. All of the current residents of SEVTC sat isfy Olmstead requirements for community placement, and the State is precluded from placing t hem in a segregated institution unless there is a fundamental alteration defense.
Plaintiff’s allegations should be analyzed under the framework adopted by the Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999). In Olmstead, the Supreme Court held that a violation of ADA Title II’s “integration mandate” is a form of discrimination that violates the statute. This mandate requires that “when a state provides services to individuals with disabilities, it must do so ‘in the most integrated setting appropriate to their needs.’ 28 C.F.R.
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35.130(d); 28 C.F.R. 41.51(d).” Olmstead, 527 U.S. at 607. The Court in Olmstead explained the contours of the ADA’s integration mandate, recognizing that “unjustified isolation . . . [is] discrimination based on disability.” Id. at 597. As the Court explained, “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life . . . and institutional confinement severely diminishes individuals’ every day activities.” Olmstead, Id. at 600. A State’s obligation to provide services in the most integrated setting is not unlimited, however, and may be excused in instances where a state can prove that the relief sought would result in a “fundamental alteration” of the State’s service system. Id. at 601-03.
Olmstead thus signaled a clear departure from States unnecessarily relying on institutional placements for individuals with disabilities. Plaintiff’s Complaint alleges facts suggesting an administrative decision by the Commonwealth that clearly disregards the integration mandate: a decision to devote significant state resources to the construction of a segregated facility, in direct contravention of the needs of the individuals with disabilities and the ability for such individuals to be served in more integrated settings.
Plaintiff’s Complaint alleges that all of SEVTC residents (including ARC members) “can be served in the community” and that Defendants’ plan for placement puts all residents of SEVTC at risk for placement in the new, segregated facility. Complaint ¶¶ 53, 136. Defendants argue in their Motion to Dismiss that “[i]n no circumstance will an individual who chooses to reside in the community be forced to move to the new SEVTC.” Motion to Dismiss at 6. However, to contend that individuals with disabilities will have such a “choice” requires that community-based services be available and that individuals are fully informed of these opportunities. Defendants attempt to reassure this Court that it will not place individuals in the new facility if they would prefer to live in the community, however, no support is offered for how the State would ensure this commitment is fulfilled. Motion to Dismiss at 6. Defendants bear the burden of demonstrating that Plaintiff’s concerns about unnecessary institutionalization are unfounded, as another Court noted:
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Defendants claim that Plaintiffs are not at risk of institutionalization because ... some might find care through som e other com munity-based service. However, Defendants bear the ultimate responsibility for ensuring the State’s compliance with federal disability law. ‘Thus, to the extent that Defendants are claiming that alternative services satisfy t heir obligations under the integration mandate, Defendants certainly bear the burden of ensuring more than a ‘theoretical’ availability of such services. Brantley, 2009 W L 2941519, at *10. V.I. v. Wagner, ___ F. Supp. 2d ___, 2009 WL 3486708 at *11 (N.D. Ca. Oct. 23, 2009) (copy attached). Allegations that the Defendants’ administration of services discriminates against individuals with disabilities because the Defendants’ allocation of their resources favoring institutional settings over community-based settings was found to state an actionable title II claim in Disability Advocates Inc. v. Paterson, 598 F. Supp. 2d 289, 319 (E.D.N.Y. 2009). The Court there found “if Defendants allocated their resources differently, [plaintiffs] could receive services in a more integrated setting.” Disability Advocates at 319. The Court went on to state: Title II of the ADA applies to the claim s in this case. An Olmstead claim concerns a public entity’s obligation to make reasonable modifications to its service system to enable individuals with disabilities to receive services in the most integrated setting appropriate to their needs. Defendants, as required by New York law, adm inister the State’s m ental health service system, plan the settings in which mental health services are provided, and allocate resources within the mental health service system.... Discrimination, in the f orm of unjustified segregation of individuals with disabilities in institutions, is thus prohibited in the administration of state programs. The statutory and regulatory framework governing the administration, funding, and oversight of New Yorks' mental health services--including the allocation of State resources...at issue he re--involves “administration” on the part of Defendants. Id. at 317-18 (emphasis added). Plaintiff here alleges that Defendants’ expenditure of significant resources to construct a segregated facility is contrary to the State’s obligations to ensure that individuals with disabilities receive services in the most integrated setting appropriate to their needs, thus stating a claim under title II of the ADA.
b. Resolution of a pure legal question,such as the supremacy of the ADA and Olmstead over state decisions about how to provide services does not need to aw ait the construction and actual placement of the persons in the new facility.
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In this case, the Court is presented with the paramount question of whether title II of the ADA, section 504 of the Rehabilitation Act, and the Olmstead integration ruling can supersede Virginia’s plans to build a segregated facility. This case satisfies both prongs of the ripeness doctrine because it presents this purely legal issue and because delayed review will present significant harm to ARC and its resident members. Miller v. Brown, 462 F. 3d at 319; Nebraska Pub. Power Dist. v. MidAmerican Energy Co., 234 F.3d 1032 (8th Cir. 2000) reh’g and suggestion for reh’g en banc denied (holding that case was ripe for adjudication because it raised a purely legal question about the meaning of a contract, all the facts necessary to the resolution of the case had been established, and delayed adjudication would only work significant hardship on parties.)
This case is ripe for adjudication because the building of the facility is not contingent upon “speculative contingencies” that may in some cases defeat a claim of ripeness. The legislative directives in the budget item are mandatory and appear to leave nothing to the discretion of Virginia officials. The core provisions of the budget item are mandatory, e.g., “shall build and resize the [SEVTC] to a 75-bed facility to serve profound and severely disabled clients;” “shall transfer $23,768,000" for this purpose; “shall ... initiate an expedited, fast track capital outlay” for both a 75-bed facility and the ICF-MR and the MR facilities. Complaint, Exhibit A.
In Miller v. Brown, 462 F.3d 312 (4th Cir. 2006), the Fourth Circuit held that the case was ripe for review because the only issue was a legal one regarding whether Virginia’s open primary provisions barring voters from voting for candidates in more than one party was a violation of the First Amendment. In reaching its decision, the court rejected the arguments of the Board of Elections that there were too many uncertainties in the case to permit resolution. Although the Court recognized that there was some uncertainty as to whether another candidate would file to run for office during a specific window of time, it rejected the Defendant’s argument that the case was not ripe for review. The court reasoned that a failure by the Court to render a timely decision in the context of this set of facts would significantly affect the parties, non-parties and the election process itself.
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Case 3:09-cv-00686-REP Document 24 Filed 11/24/09 Page 13 of 22 PageID# 553
The district court also based its ripeness decision on the fact“[t]he Board has made no forma l decisions concerning the 2007 election.” J.A. 111. The Board is charged with carrying out Virginia’s election laws . See Va.Code Ann. § 24.2-103 (detailing the Board's duties). At no point has the Board, or any other State actor, suggested that t he open primary law will not be enforced. See Virginia v. Am. Book sellers Ass’n, 484 U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988) (finding standing to seek pre-enforcement review of statute where no evidence that law would not be enfor ced). The Board’s February 9, 2005, letter and the Assistant Attorney General’s concession at oral argument are further evidence the law will be enforced.
Id., 462 F.3d at 321. In Texas Midstream Gas Services, LLC, v. City of Grand Prairie, 2008 WL 5000038
(N.D. Tex. Nov. 28, 2008) (copy attached), a natural gas company (TMGS) sought to enjoin the city’s application of a city development code provision that required TMGS to obtain a specific use permit (SUP) to build a compressor station. TMGS alleged that the code provision was expressly preempted by federal law and that the city was violating the Constitution, and federal and state law merely by requiring a permit pursuant to its code. The city countered by arguing that TMGS’s claims were not ripe because the permitting process had not been completed, it could not be determined if the city would enforce the local code provision at that stage, and it was undetermined as to whether TMGS would suffer any injury if it did. In rejecting the city's argument, the district court held that the Complaint was ripe for review because the issue of preemption was a “predominantly legal” issue concerning the city's authority to require the permit, it was clear that TMGS intended to begin construction soon, and the company's claims did not rely on “unforeseeable future events.” 2008 WL 5000038 at *3. The Court also noted the harm that would ensue if it were to defer action on the request for injunctive relief. The Court therefore granted injunctive relief with respect to the preemption issue.
Likewise, in this case, the issue before the Court is actually whether the State’s decision to build a facility that will segregate individuals unnecessarily is in violation of law, and the conclusion is inexorable that in the face of evaluations of current residents who are able to live in the community with assistance, the creation of a new, segregated institution violates federal law.
2. Even the risk of institutionalization provides a basis for a title II claim and should not present ripeness problems.
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Case 3:09-cv-00686-REP Document 24 Filed 11/24/09 Page 14 of 22 PageID# 554
Finally, it is clear that the mere risk of institutionalization of an individual with a disability also supports a claim that title II of the ADA and section 504 have been violated. In Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (2003), the Tenth Circuit rejected defendants’ challenge that plaintiffs could not make an integration mandate challenge until they were placed in the institutions. The Court reasoned that the protections of the integration mandate “would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation....nothing in the Olmstead decision supports a conclusion that institutionalization is a prerequisite to enforcement of the ADA’s integration requirements.” Id. at 1181. The Court went on to conclude that “Olmstead does not imply that disabled persons, who, by reason of a change in state policy, stand imperiled with segregation, may not bring a challenge to the state policy under the ADA’s integration regulation without first submitting to institutionalization.” Id. at 1182. See also M.A.C. v. Betit, 284 F.Supp. 2d 1298, 1309 (D. Ut. 2003) (adopting Fisher’s position that a plaintiff need not currently be institutionalized to bring integration regulation claim); Brantley v. Maxwell-Jolly, ___ F. Supp. 2d. ___, 2009 WL 2941519, *7 (N.D.Cal. Sep. 10, 2009) (copy attached) (allowing plaintiffs to bring title II claim that statutory cuts in adult day health care services would put individuals currently residing in community at risk of institutionalization).
In a recent ruling on a request for a preliminary injunction in V.L. v. Wagner, 2009 WL 3486708 (N.D. Ca. 2009), the Court reached this conclusion:
Although Olmstead addressed ongoing institutionalization, plaintiffs who currently reside in community settings may assert ADA integration claims to challenge state actions that give rise to a risk of unnecessary institutionalization. See Fisher v. Oklahoma Health Care Auth ., 335 F.3d 1175, 1181-82 (10th Cir.2003) (im position of cap on prescription medications placed participants in community-based program at high risk for premature entry into nursing hom es in violation of ADA); Ball v. Rogers, 2009 WL 1395423, at *5 (D.Ariz.) (failure to provide them with needed services “threatened Plaintiffs with institutionalization, prevented themfrom leaving institutions, and in som e instances forced them into institutions in order to receive their necessary care” in violation of the ADA and Rehabilitation Act); Mental Disability Law Clinic v. Hogan , 2008 W L 4104460, at *15 (E.D.N.Y.) (“even the risk of unjustified segregation may be sufficient under Olmstead” ).
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Case 3:09-cv-00686-REP Document 24 Filed 11/24/09 Page 15 of 22 PageID# 555
Id. at * 11. In an even more attenuated fact pattern, the court in Martinez v. Schwarzenneger, 2009
WL 3353227 * 5 (N.D. Ca. Oct. 15, 2009) (copy attached) found that the impending possibility of wage cuts to care providers two months following the court’s Order, and without consideration of possible alternatives that might have intervened before the State’s statute took effect, were sufficient to allege a ripe claim.
“Plaintiffs allege that the implementation of Section 12306.1(d)(6) and associated wage reductions will f orce Plaintiffs who wish to remain in their homes, and are able to do so with the help ofin-home care, to enter institutions. Pl aintiffs depend upon the services of IHSS providers in order to m aintain their social and econom ic independence. These allegations suf ficiently state disability discrimination claims under Olmstead.” Id. at * 5. 3. The Court should not permit the construction of the building before ruling because the balance of hardsh ip on the parties w eighs heavily against postponing a decision here. The Court must balance the hardships on the parties of a decision at this juncture versus postponing a decision until the final brick is laid in the new facility. The harm to individuals at risk of placement in that facility against their wishes and the potential financial and job loss associated with aborting the plans at some mid-point in the process, or even upon completion of the facility, weigh in favor of this Court adjudicating this case immediately. All relevant steps leading up to the building of the new facility have been set in place by virtue of the passage of the budget items and the mandatory nature of its directives to Virginia officials and their respective departments. Complaint ¶¶ 87, 88. Moreover, the Commonwealth has signaled its clear intention to execute these directives in this lawsuit. The Court may decide that the construction of such a facility has been set in motion and completion of the facility will cause more harm than benefit to persons and entities impacted by the decision to build the facility and may enjoin the construction at this stage. It is beyond peradventure that threatened injury can satisfy Article III standing requirements. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979). “One does not need to await the consummation of a threatened injury to obtain preventative relief. If
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Case 3:09-cv-00686-REP Document 24 Filed 11/24/09 Page 16 of 22 PageID# 556
the injury is certainly pending, that is enough.” Id.; see also Massachusetts v. EPA, 549 U.S. 497 (2007). The Seventh Circuit held that the Sierra Club had standing and a ripe claim to challenge construction of a power plant that it argued would increase air pollution, and that it need not wait until the plant was completed and operational to make claims ripe for adjudication to stop the plant from being built. Sierra Club v. Franklin County Power, 546 F.3d 918 (7th Cir. 2008), cert. denied, 129 S.Ct. 2866 (June 29, 2009). “As a practical matter, it makes sense for the Sierra Club to challenge the validity of the Company’s permit now, rather than waiting until the plant is operational.” Id. citing LeFleur v. Whitman, 300 F.3d 256, 270 (2d Cir. 2002). Defendants in Sierra Club argued that the plaintiffs had to wait until actual construction began on the plant before the claim was ripe for review, but the court there rejected that argument.
A claim may be considered ripe in situations such as this where the legislature has directed funds to be allocated, and other formal agency decisions have been made. Because Virginia has allocated funds for the project there are no “speculative contingencies” that would prevent Virginia from acting in accordance with state law. The court in Cardenas v. Anzai, 311 F.3d 929 (9th Cir. 2002), held that the case was ripe for review because Hawaii had actually created a dedicated fund to distribute tobacco settlement proceeds as part of a multi-state tobacco settlement and had allocated its first payment. The court found that there was no longer any abstract disagreement about whether or when the distributions might occur in the future, despite the State’s claim that a challenge would not be ripe until all the funds were distributed after many years.
B. The ARC Complaint Satisfies Federal Pleading Requirements. When considering a motion to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the court must accept as true all material allegations of the complaint and construe them in the light most favorable to the plaintiff. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Warth v. Seldin, 422 U.S. 490, 501(1975).
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Case 3:09-cv-00686-REP Document 24 Filed 11/24/09 Page 17 of 22 PageID# 557
Under Fed.R.Civ.P. 8, a pleading that states a claim for relief must contain a short and plain statement of the grounds for the Court’s jurisdiction; a short and plain statement showing that the pleading party is entitled to relief; and a demand for the relief sought. The current standard for an adequately pled complaint was set out in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Under Twombly, to state a claim, the pleading party’s factual allegations must state a claim for relief that rises above the speculative level. 550 U.S. at 545. The Supreme Court recently reaffirmed and clarified the Twombly standard in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, t o “state a claim to relief that is plausible on its face.” [Twombly,] at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows thecourt to draw the reasonable inference that the def endant is liable f or the m isconduct alleged. Id., at 556. The plausibility standard is not akin to a“probability requirement,” but it asks for more than a sheer possibility that a def endant has acted unlawf ully. Id. Where a com plaint pleads facts that are “m erely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id., at 557 (brackets omitted). 129 S.Ct at 1949-1950; See also Feeley v. Total Realty Management, ___ F. Supp. 2d ___, 2009 WL 2902505 (E.D. Va. Aug. 28, 2009) (copy attached). The Complaint in this action sets forth a very detailed set of factual allegations that the Defendants have failed to comply with the mandates of title II of the ADA and section 504 of the Rehabilitation Act. At this stage of the proceedings, the Court must treat all material allegations as true and construe these allegations in favor of plaintiff. Warth v. Seldin 422 U.S. at 501. Contrary to Defendants’ argument, the Plaintiff does allege concrete harm that exists because residents with intellectual and developmental disabilities presently reside in a segregated setting in violation of federal law and there is no question that under the plan proposed by the Commonwealth, some of those residents will be placed in the segregated institution whether they are eligible for community placements or not. C. ARC Has Standing to Bring This Action on Its Own Behalf and
On Behalf of Its Members. It is well settled that to establish standing under Article III, the litigants must establish an “irreducible constitutional minimum of standing.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
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560 (1992). This “irreducible constitutional minimum of standing” contains three elements: (1) plaintiffs suffered actual or threatened injury; (2) the condition complained of caused the injury or threatened injury, and (3) the requested relief redressed the alleged injury. Lujan, 504 U.S. at 560-61. These three basic requirements are referred to as injury-in-fact, causation/traceability, and redressability. When examining whether plaintiffs suffered actual or threatened injury, the inquiry focuses on whether the injury-in-fact is (1) “concrete and particularized,” and (2) actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan, 504 U.S. at 560.
Defendants argue that ARC lacks standing under the ADA and the Rehabilitation Act as the representative of its members on the grounds that its members do not have standing to sue in their own right and the claims asserted and the relief sought would require the participation of its individual members. However, an association may have standing solely as the representative of the people who it serves. Warth v. Seldin, 422 U.S. at 511.
In Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333 (1977), Supreme Court established the three-pronged test for associational standing:
[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seek s to protect are germ ane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. 432 U.S. at 343.3 See also United Food and Commercial Workers Union Local 751 v. Brown Group Inc., 517 U.S. 544, 551-53 (1996) (finding that the first and second prongs of the Hunt test were of constitutional character but the third prong was not). ARC’s Complaint satisfies each of the three Hunt prongs. Under the first prong, ARC’s members who reside at SEVTC would otherwise have standing to sue in their own right. ARC
3The Hunt test was subsequently reaffirmed in International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America v. Brock, 477 U.S. 274 (1986), where that Court specifically noted that very often an organization will present an especially efficient vehicle for litigation from the perspective of both the litigants and the judicial system. “[A]n association suing to vindicate the interests of its members can draw upon a pre-existing reservoir of expertise and capital.” Brock, 477 U.S. at 289.
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Case 3:09-cv-00686-REP Document 24 Filed 11/24/09 Page 19 of 22 PageID# 559
alleges that some of its members, though unnamed, currently reside in SEVTC. Since all of the approximately 156 residents residing in SEVTC have been determined by qualified professionals to be eligible for community-based services, the resident ARC members are currently suffering a very direct, personal injury by being denied access to a more integrated setting appropriate to their needs. The Supreme Court explicitly held that “[u]njustified isolation ... is properly regarded as discrimination based on disability.” Olmstead, 527 U.S. at 597. Furthermore, ARC alleges that ARC and its staff were barred by SEVTC from soliciting membership in ARC and/or providing written information to SEVTC residents. Complaint ¶¶ 33-36. Action limiting opportunities of SEVTC residents to enjoy contact with non-disabled persons, coupled with the unnecessary segregation of SEVTC residents, allegations all deemed to be true at this stage, “severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment” prohibited by Olmstead. 527 U.S. at 601.
Under the second prong of Hunt, as Defendants concede, there is no question that the interests ARC seeks to protect are germane to its purposes. As an organization that advocates on behalf of individuals with intellectual and developmental disabilities, ARC clearly meets that test.
The third prong of the Hunt test asks whether the claim asserted or the relief requested by ARC requires the participation of any of its members injured by Defendants’ actions. It satisfied the Hunt test that some ARC members reside in a segregated facility and that they have been denied the opportunity to reside in community-based facilities in the past, despite evaluations showing that they could be successfully integrated into the community. Rather than offering them community placements, the State is contracting to build another segregated facility, which states the requisite injury in fact and should not require the testimony of any member about the harm they suffer. This is particularly so because ARC seeks only declaratory and injunctive relief. Accordingly, because ARC can satisfy the three-pronged test, ARC has representational
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standing under the ADA and the Rehabilitation Act to bring this action on behalf of its members with disabilities.4
D. Defendants’ Ex parte Young Claim Lacks Merit. The United States believes that ARC’s claim is ripe for adjudication and that ARC has sufficiently alleged standing to bring this suit (See III A, C), thus Defendants’ argument that such “procedural defects” prevent a plaintiff from invoking Ex Parte Young lack merit. Motion to Dismiss at 16. IV. CONCLUSION Based upon the foregoing arguments and authority cited in support thereof, the United States, as amicus curiae, urges this Court to deny Defendants’ motion to dismiss and set this action on a schedule for discovery and final judgment. Plaintiff ARC has demonstrated that the Complaint satisfies all constitutional and prudential pleading requirements and that actions by / / / / / / / / / / / /
4Defendant also challenges ARC’s reliance on Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) and ARC’s claim that it has standing to sue on its own behalf. Among other things, Defendants allege that ARC has failed to show a “sufficiently concrete injury” to confer Article III standing, citing an unpublished opinion, Maryland Minority Contractors Association, Inc. v. Lynch, 203 F.3d 821 (4th Cir. 2000 ) that cited Spann v. Colonial Village, Inc., 899 F. 2d 24, 27 (D.C. Cir. 1990), cert. denied, 498 U.S. 980 (1990) for the proposition that the plaintiff cannot rely on resources spent on this litigation to support standing. However, as the Court in Spann also made clear, an organization can establish injury in fact if “it alleges that purportedly illegal action increases the resources the group must devote to programs independent of its suit challenging the action.” Spann, 899 F.2d at 27. ARC has alleged similar injuries in fact, i.e., a drain on its time, resources, and expenditures in opposing the construction of the new facility.
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Case 3:09-cv-00686-REP Document 24 Filed 11/24/09 Page 21 of 22 PageID# 561 the State of Virginia violate the ADA and the Rehabilitation Act of 1973, and as such the Court has authority to grant Plaintiff the relief that it seeks in this matter.
DATED this 24 day of November, 2009. Respectfully submitted, THOMAS E. PEREZ Assistant Attorney General SAMUEL R. BAGENSTOS Deputy Assistant Attorney General JOHN L. WODATCH, Chief PHILIP L. BREEN, Special Legal Counsel RENEE M. WOHLENHAUS, Deputy Chief SHEILA K. DELANEY, Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, NW (NYA) Washington, D.C. 20530 (202) 307-6309 NEIL H. MACBRIDE United States Attorney
By: /s/ Robert P. McIntosh Virginia Bar Number 66113 Attorney for the United States of America United States Attorney’s Office 600 East Main Street, Suite 1800 Richmond, Virginia 23219 Telephone: (804) 819-5400 Facsimile: (804) 819-7417 Email: Robert.McIntosh@usdoj.gov
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Case 3:09-cv-00686-REP Document 24 Filed 11/24/09 Page 22 of 22 PageID# 562
CERTIFICATE OF SERVICE
I hereby certify that on the 24 day of November , 2009, I will electronically file the foregoing UNITED STATES’ MEMORANDUM OF LAW AS AMICUS CURIAE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following:
Ishneila I. G. Moore Office of the Attorney General Email: imoore@oag.state.va.us Jonathan Gerald Martinis Virginia Office for Protection and Advocacy Email: jonathan.martinis@vopa.virginia.gov Kalena Cimone Marie Ek Virginia Office for Protection and Advocacy Email: Kalena.Ek@VOPA.Virginia.Gov
And I hereby certify that I will mail the document by United States mail, first-class postage prepaid, to the non-filing user(s) addressed as follows:
/s/ Robert P. McIntosh Virginia Bar Number 66113 Attorney for the Defendant United States Attorney’s Office 600 East Main Street, Suite 1800 Richmond, Virginia 23219 Telephone: (804) 819-5400 Facsimile: (804) 819-7417 Email: Robert.McIntosh@usdoj.gov
-22-

 
 Case 3:09-cv-00686-REP Document 31 Filed 12/17/09 Page 1 of 1 PageID# 702

IN THE UNITED STATES DISTRICT COURT

? I~~-~I -------:EC

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

CLERK, u.s. DISTRICT COURT
RICHMOND, VA

THE ARC OF VIRGINIA, INC.

Plaintiff,

v.

Civil No. 3:09cv686

TIMOTHY M. KAINE, et al.

Defendants.

ORDER

For the reasons set forth in the accompanying

Memorandum Opinion, it is hereby ORDERED that the

Defendant's MOTION TO DISMISS (Docket No. 10) is granted

and the Plaintiff's MOTION FOR PRELIMINARY INJUNCTION

(Docket No.2) is denied.

The dismissal is without

prejudice.

It is so ORDERED.

/s/ Robert E. Payne Senior United States District Judge
Richmond, Virginia Date: December 16, 2009

 
 Case: 3:09-cv-686 As of: 02/04/2013 11:06 PM EST 1 of 5
U.S. District Court Eastern District of Virginia − (Richmond) CIVIL DOCKET FOR CASE #: 3:09−cv−00686−REP

CLOSED

Arc of Virginia, Inc., The v. Kaine et al Assigned to: District Judge Robert E. Payne Case in other court: 10−01005 Cause: 42:12101 Americans with Disabilities Act
Plaintiff

Date Filed: 10/27/2009 Date Terminated: 12/17/2009 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Arc of Virginia, Inc., The a not−for−profit corporation

represented by Jonathan Gerald Martinis Virginia Office for Protection and Advocacy 1910 Byrd Ave Suite 5 Richmond, VA 23230 (804) 225−2042 Email: jonathan.martinis@vopa.virginia.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kalena Cimone Marie Ek Virginia Office for Protection and Advocacy 1910 Byrd Ave Suite 5 Richmond, VA 23230 804−225−2042 Fax: 804−662−7057 Email: Kalena.Ek@VOPA.Virginia.Gov ATTORNEY TO BE NOTICED

Defendant
Timothy M. Kaine in his official capacity as Governor of the Commonwealth of Virginia

represented by Ishneila I. G. Moore Office of the Attorney General (Richmond) 900 E Main St Richmond, VA 23219 804−786−2071 Fax: 804−786−1991 Email: imoore@oag.state.va.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Viola O. Baskerville in her official capacity as Secretary of Administration of the Commonwealth of Virginia

represented by Ishneila I. G. Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Marilyn B. Tavenner in her official capacity as Secretary of Health and Human Resources of the Commowealth of Virginia

represented by Ishneila I. G. Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Dr. James S. Reinhard in his official capacity as Commissioner

represented by Ishneila I. G. Moore (See above for address)

Case: 3:09-cv-686 As of: 02/04/2013 11:06 PM EST 2 of 5

of the Department of Behavioral Health and Developmental Services of the Commonwealth of Virginia

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
P.E. Richard F. Sliwoski in his official capacity as Director of the Department of General Services of the Commonwealth of Virginia

represented by Ishneila I. G. Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant United States Of America

represented by Debra Jean Prillaman Office Of The U.S. Attorney 600 East Main Street Suite 1800 Richmond, VA 23219 (804) 819−5400 Email: debra.prillaman@usdoj.gov

Robert P. McIntosh United States Attorney's Office 600 E Main St 18th Fl Richmond, VA 23219 (804) 819−5400 Email: Robert.McIntosh@usdoj.gov ATTORNEY TO BE NOTICED

Sheila Katherine Delaney U S Department of Justice Civil Rights Division 950 Pennsylvania Ave NW PHB 4022 Washington, DC 20530 **NA** 202−307−6309 Fax: 202−305−9775 Email: sheila.k.delaney@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 10/27/2009
10/27/2009 10/27/2009 10/27/2009
10/28/2009 11/03/2009

# Docket Text
1 COMPLAINT against Timothy M. Kaine, Viola O. Baskerville, Marilyn B. Tavenner, James S. Reinhard, Richard F. Sliwoski (Filing fee $350.00 receipt number 34683005759) filed by Arc of Virginia, Inc., The (Attachments: # 1 Civil Cover Sheet, # 2 Receipt)(lsal) (Entered: 10/27/2009)
2 MOTION for Preliminary Injunction by Arc of Virginia, Inc., The. (lsal) (Entered: 10/27/2009)
3 Memorandum in Support of 2 MOTION for Preliminary Injunction filed by Arc of Virginia, Inc., The. (lsal) (Entered: 10/27/2009)
4 Summons Issued as to Timothy M. Kaine, Viola O. Baskerville, Marilyn B. Tavenner, James S. Reinhard, Richard F. Sliwoski; attorney telephoned for pickup as instructed; (lsal) (Entered: 10/27/2009)
5 NOTICE by Arc of Virginia, Inc., The re 3 Memorandum in Support Substitute Page 9 (Martinis, Jonathan) (Entered: 10/28/2009)
6 NOTICE of Appearance by Ishneila I. G. Moore on behalf of Ishneila I.G. Moore (Moore, Ishneila) (Entered: 11/03/2009)

Case: 3:09-cv-686 As of: 02/04/2013 11:06 PM EST 3 of 5

11/03/2009 11/06/2009 11/09/2009
11/12/2009
11/12/2009 11/12/2009
11/12/2009 11/13/2009 11/13/2009 11/16/2009
11/19/2009 11/19/2009 11/19/2009 11/19/2009

Notice of Correction re 6 Notice of Appearance. Counsel has been asked to contact the Clerk's Office for proper instructions on how to file a Notice of Appearance as soon as possible (kyou, ) 11−4−09 Notice of Appearance has been corrected by Clerk's Office (Entered: 11/03/2009)
7 MOTION for Extension of Time to File Response to 2 MOTION for Preliminary Injunction by Timothy M. Kaine, Viola O. Baskerville, Marilyn B. Tavenner, James S. Reinhard, Richard F. Sliwoski. (Moore, Ishneila) (Entered: 11/06/2009)
8 SUMMONS Returned Executed: Timothy M. Kaine served on 10/26/2009, answer due 11/16/2009; Viola O. Baskerville served on 10/26/2009, answer due 11/16/2009; Marilyn B. Tavenner served on 10/26/2009, answer due 11/16/2009; James S. Reinhard served on 10/26/2009, answer due 11/16/2009; Richard F. Sliwoski served on 10/26/2009, answer due 11/16/2009 (lsal) (Entered: 11/09/2009)
9 Memorandum in Opposition re 2 MOTION for Preliminary Injunction filed by Timothy M. Kaine, Viola O. Baskerville, Marilyn B. Tavenner, James S. Reinhard, Richard F. Sliwoski. (Attachments: # 1 Exhibit Advisory Committee Mtg, # 2 Exhibit Petition Against Closure of SEVTC, # 3 Exhibit Letter, # 4 Exhibit SEVTC Advisory Committee, # 5 Exhibit DBHDS Preliminary Plan and Timeline for Downsizing SEVTC, # 6 Exhibit Letter, # 7 Exhibit Budget Bill Item 315, # 8 Exhibit Letter, # 9 Exhibit Letter)(Moore, Ishneila) (Entered: 11/12/2009)
10 MOTION to Dismiss by Timothy M. Kaine, Viola O. Baskerville, Marilyn B. Tavenner, James S. Reinhard, Richard F. Sliwoski. (Moore, Ishneila) (Entered: 11/12/2009)
11 Memorandum in Support re 10 MOTION to Dismiss filed by Timothy M. Kaine, Viola O. Baskerville, Marilyn B. Tavenner, James S. Reinhard, Richard F. Sliwoski. (Attachments: # 1 Exhibit Advisory Committee Meeting, # 2 Exhibit Petition Against Closure of SEVTC, # 3 Exhibit Letter, # 4 Exhibit SEVTC Advisory Committee, # 5 Exhibit DBHDS Preliminary Plan and Timeline for Downsizing SEVTC, # 6 Exhibit Letter, # 7 Exhibit Budget Bill Item 315)(Moore, Ishneila) (Entered: 11/12/2009)
for proceedings held before District Judge Robert E. Payne: Telephone Conference held on 11/12/2009. (sneal, ) (Entered: 11/24/2009)
Set/Reset Hearings: Motion Hearing set for 11/30/2009 at 10:00 AM before District Judge Robert E. Payne. (sneal, ) (Entered: 11/13/2009)
for proceedings held before District Judge Robert E. Payne: Telephone Conference held on 11/13/2009. (sneal, ) (Entered: 11/24/2009)
12 ORDER that defendants shall file an Answer by 11/19/09; plaintiff shall file a reply to defendant's Memorandum in Opposition to Motion for Preliminary Injunction by 11/19/09; further ORDERED that plaintiff shall file a response to the Motion to Dismiss by 11/19/09; defendant shall file reply by 11/23/09; further ORDERED that oral arguments on motions are SET for 11/30/09 at 10:00 a.m.; Signed by District Judge Robert E. Payne on 11/13/09. (lsal) (Entered: 11/16/2009)
13 ANSWER to 1 Complaint, and Ground of Defense by Timothy M. Kaine, Viola O. Baskerville, Marilyn B. Tavenner, James S. Reinhard, Richard F. Sliwoski.(Moore, Ishneila) (Entered: 11/19/2009)
14 REPLY to Response to Motion re 2 MOTION for Preliminary Injunction filed by Arc of Virginia, Inc., The. (Attachments: # 1 Exhibit G, # 2 Exhibit H, # 3 Exhibit I, # 4 Exhibit J, # 5 Exhibit K, # 6 Exhibit L)(Ek, Kalena) (Entered: 11/19/2009)
15 ORDER DENYING as MOOT 7 Motion for Extension of Time to File Response to plaintiff's Motion for Preliminary Injunction; Signed by District Judge Robert E. Payne on 11/18/09. (lsal) (Entered: 11/19/2009)
16 Memorandum in Opposition re 10 MOTION to Dismiss filed by Arc of Virginia, Inc., The. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Ek, Kalena) (Entered: 11/19/2009)

Case: 3:09-cv-686 As of: 02/04/2013 11:06 PM EST 4 of 5

11/20/2009 11/20/2009 11/23/2009 11/23/2009
11/24/2009 11/24/2009
11/24/2009 11/24/2009
11/25/2009 11/25/2009 11/25/2009 11/26/2009 11/30/2009
12/17/2009 12/17/2009 12/28/2009 12/28/2009 12/29/2009

17 MOTION for Leave to Participate as Amicus Curiae filed by United States; (lsal) (Entered: 11/20/2009)
18 Memorandum in Support of 17 MOTION for Leave to Participate as Amicus Curiae filed by United States (lsal) (Entered: 11/20/2009)
19 RESPONSE in Support re 10 MOTION to Dismiss filed by Timothy M. Kaine, Viola O. Baskerville, Marilyn B. Tavenner, James S. Reinhard, Richard F. Sliwoski. (Moore, Ishneila) (Entered: 11/23/2009)
20 NOTICE by Timothy M. Kaine, Viola O. Baskerville, Marilyn B. Tavenner, James S. Reinhard, Richard F. Sliwoski of Filing (Attachments: # 1 Affidavit of Dix, # 2 Affidavit of Shrewsberry, # 3 Affidavit of Sivertson, # 4 Affidavit of Seward, # 5 Affidavit of Banks)(Moore, Ishneila) (Entered: 11/23/2009)
21 Notice of Substitution of Counsel of Debra J. Prillaman by Robert P. McIntosh on behalf of United States Of America (McIntosh, Robert) (Entered: 11/24/2009)
22 ORDER granting 17 Motion for Leave to Participate as Amicus Curiae; the United States shall file a brief by November 24, 2009; the Plaintiff and the Defendant shall file any responses by November 27, 2009. Signed by District Judge Robert E. Payne on 11/23/09. (kyou, ) (Entered: 11/24/2009)
23 MOTION for Pro hac vice for Sheila Katherine Delaney by United States Of America. (kyou, ) (Entered: 11/24/2009)
24 Memorandum in Opposition re 10 MOTION to Dismiss filed by United States Of America. (Attachments: # 1 Exhibit Wagner (case), # 2 Exhibit, # 3 Exhibit Martinez (case), # 4 Exhibit Feeley (case), # 5 Exhibit Brantley (case))(McIntosh, Robert) (Entered: 11/24/2009)
25 So Ordered re 23 MOTION for Pro hac vice for Sheila Katherine Delaney filed by United States Of America. Signed by District Judge Robert E. Payne on 11/24/09. (kyou, ) (Entered: 11/25/2009)
26 Response to the United States' Memorandum of Law filed by Timothy M. Kaine, Viola O. Baskerville, Marilyn B. Tavenner, James S. Reinhard, Richard F. Sliwoski. (Moore, Ishneila) (Entered: 11/25/2009)
27 NOTICE by Timothy M. Kaine, Viola O. Baskerville, Marilyn B. Tavenner, James S. Reinhard, Richard F. Sliwoski (Attachments: # 1 Affidavit Second Declaration of Dix)(Moore, Ishneila) (Entered: 11/25/2009)
28 Response to 24 Memorandum in Opposition, filed by The United States filed by Arc of Virginia, Inc., The. (Martinis, Jonathan) (Entered: 11/26/2009)
29 Minute Entry for proceedings held before District Judge Robert E. Payne: Motion Hearing held on 11/30/2009. Arguments had on Deft's Motion To Dismiss. Arguments had on Plaintiff's Motion for a Preliminary Injunction. Motions taken under advisement by the Court. (Court Reporter Diane Daffron, OCR.) (sneal, ) (Entered: 11/30/2009)
30 MEMORANDUM AND OPINION. Signed by District Judge Robert E. Payne on 12/16/09. (kyou, ) (Entered: 12/17/2009)
31 ORDER denying 2 Motion for Preliminary Injunction; granting 10 Motion to Dismiss without prejudice. Signed by District Judge Robert E. Payne on 12/16/09. (kyou, ) (Entered: 12/17/2009)
32 NOTICE OF APPEAL as to 31 Order on Motion for Preliminary Injunction, Order on Motion to Dismiss, 30 Memorandum &Opinion by Arc of Virginia, Inc., The. (Martinis, Jonathan) (Entered: 12/28/2009)
33 USCA Appeal Fees received $ 455 receipt number 34683006528 re 32 Notice of Appeal filed by Arc of Virginia, Inc., The (lbre, ) (Entered: 12/29/2009)
34 Transmission of Notice of Appeal to US Court of Appeals re 32 Notice of Appeal (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (lbre, ) (Entered: 12/29/2009)

Case: 3:09-cv-686 As of: 02/04/2013 11:06 PM EST 5 of 5

01/05/2010 03/18/2010
03/22/2010 10/12/2010 10/12/2010

USCA Case Number 10−1005, Case Manager R.Sewell, for 32 Notice of Appeal filed by Arc of Virginia, Inc., The. (lbre, ) (Entered: 01/05/2010)
35 TRANSCRIPT of proceedings for the date of November 30, 2009, before Judge Robert E. Payne, re 32 Notice of Appeal, USCA Case Number Court Reporter Diane Daffron, Telephone number 804 916−2267. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/19/2010. Redacted Transcript Deadline set for 5/18/2010. Release of Transcript Restriction set for 6/16/2010.(daffron, diane) (Entered: 03/18/2010)
36 Notice of Filing of Official Transcript re 35 Appeal Transcript of hearing held on November 30, 2009 (kyou, ) (Entered: 03/22/2010)
37 ORDER of USCA as to 32 Notice of Appeal filed by Arc of Virginia, Inc.: Upon consideration of the joint motion to dismiss, the Court dismisses this appeal, upon such terms as have been agreed to by the parties, pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure.(lbre, ) (Entered: 10/15/2010)
38 USCA Mandate re 32 Notice of Appeal : This Court's order dismissing this appeal pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure takes effect today. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. (lbre, ) (Entered: 10/15/2010)