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n UNITED STATES DISTRICT ~ljJ~Tr~
FOR THE DISTRICT OF CONNECficuJ'1' IU

1001\ ;,JG I I P 3: 30:

THE STATE OF CONNECTICUT OFFICE OF

)

PROTECTION AND ADVOCACY FOR PERSONS, r) .i':: j i: T CI~ l:',i:

WITH DISABILITIES, and JAMES MCGAUGHEY, )'-, ::l ! r;: '.1. (~1'.

Executive Director of The State of Connecticut Office )

Of Protection and Advocacy for Persons with Disabilities )

)

Plaintiffs,
v.

) ) )

v' ? CIVIL ACTION

NO, P 1 1/('
U,O,

/303cH

)

)

August 11, 2004

HARTFORD BOARD OF EDUCATION,

)

HARTFORD PUBLIC SCHOOLS, and

)

ROBERT HENRY, in his official capacity as the

)

Superintendent of Schools

)

)

Defendants.

)

COMPLAINT I. PRELIMINARY STATEMENT The plaintiffs, the State of Connecticut Office of Protection and Advocacy for Persons with Disabilities (hereinafter "OPA") and James McGaughey ("McGaughey") (collectively "Plaintiffs") bring this action for declaratory and injunctive relief pursuant to 42 U.S.C. §§ 10801-10827, the Protection and Advocacy for Individuals with Mental Illness Act of 1986 (PAlM!), the Developmental Disabilities Assi!ltance and Bill of Rights Act (hereinafter "DD Act), 42 U.S.C. § 15041 et ~ and the Protection and Advocacy of Individual Rights
1

(hereinafter "PAIR") 29 U.S.C. § 794e, et seq. OPA challenges the refusal of Defendants Hartford Board of Education (hereinafter "Board"), Hartford Public Schools (hereinafter "HPS") and Robert Henry (hereinafter "Henry"), (collectively "Defendants") to disclose certain directory infonnation regarding the identity of parents or guardians of students attending the Hartford Transitional Learning Academy (hereinafter HTLA), a school operated by Defendants. That directory infonnation, which consists of name:>, addresses and phone numbers, would enable the Plaintiffs to seek releases from those parents and guardians for the students' educational and other records so that OPA may conduct an investigation into serious allegations of abuse and neglect of students attending HTLA. OPA additionally challenges Defendants' refusal to allow OPA access to the HTLA facilities at times that the students are in attendance. These refusals by Defendants prevent OPA, the state and federally designated Protection and Advocacy System for persons with disabilities in Connecticut, from fulfilling its statutory mandates of investigating allegations of abuse and neglect as well as providing protection and advocacy services for individuals with disabilities. The actions of the Defendants further prevent OPA from detennining whether the rights of students to be free from abuse and illegal restraint are being violated and whether there are appropriate procedures in place to prevent incidents of abuse and neglect.
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II. JURISDICTION AND VENUE 1. This Court has jurisdiction over this action pursuant to 28 U.S.C. § l331. Plaintiffs' federal claims are made pursuant to PAIMI, 42 U.S.C. §§ 10801-10827, the DD Act, 42 U.S.C. § 15041 et ~ and PAIR, 29 U.S.C. § 794e, et seq. Declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201, 2202. 2. Venue is appropriate in this district pursuant to 28 U.S.C. § l391(b) as all of the events and omissions complained of below occurred in this district.
III. .pARTIES 3. Plaintiff OPA is the Connecticut Protection and Advocacy program designated by the Governor of the State of Connecticut to provide protection and advocacy services to individuals with disabilities. Conn. Gen. Stat. § 46a-10. It is also allotted federal funds pursuant to PAlMI, the DD Act, and PAIR and is thereby obligated to similarly provide protection and advocacy for persons with mental illness, developmental disabilities, and individuals with disabilities who are not eligible under PAlMI or the DD Act. 42 U.S.C. §§ 10803 - 04, 42 U.S.C. § 15041 et ~ 29 U.S.C. § 794e, et seq. Under these statutes OPA is also authorized to investigate suspected incidents of abuse and neglect and to pursue administrative, legal and other remedies on behalf of individuals with mental illness wherever programs for such individuals are operated within the State of Connecticut or within the state's control. OPA is located at 60B Weston Street, Hartford, CT 06120.
3
I.

4. Plaintiff James McGaughey is the Exel)utive Director of OPA. He is authorized to investigate and bring suit on behalf of persons with disabilities pursuant to Conn. Gen. Stat. § 46a-l1.
5. Defendant Hartford Board of Education is established pursuant to Conn. Gen. Stat. § 10218. Its responsibilities are designated in Conn. Gen. Stat. § 10-220(a) where it is mandated to "maintain good public elementary and secondary schools" and provide, inter alia, "a safe school setting." Defendant Board is located at 960 Main Street, 8th floor, Hartford, Connecticut 06103.
6. Defendant Hartford Public Schools is t:stablished pursuant to Conn. Gen. Stat. § 10-240. Its powers are designated in Conn. Gen. Stat. § 10-241. Defendant HPS is located at 960 Main Street, 8th floor, Hartford, Connecticut 06103.
7. Defendant Robert Henry is the Superintendent of School of the Hartford Public Schools. Pursuant to Conn. Gen. Stat. §10-157 Henry is responsible for the supervision of the schools and serves as the chief executive officer of Defendant HPS. Henry has executive authority over the school system and the responsibility for its supervision. As Chief of Staff for the Hartford Public Schools, Henry is responsible for general oversight ofthe operations areas ofthe district, including Finance and Business Services, Grants Administration, Human Resources, Security, Buildings and Grounds and other departments. He is being sued in his official capacity. Defendant Henry maintains offices at Hartford Public Schools, 960 Main Street, 8th floor, Hartford, Connecticut 06103.
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IV. FACTUAL ALLEGATIONS
8. Defendants operate the Hartford Transitional Learning Academy. HTLA is a school that, despite its label of "transitional," functions as a placement of last resort in the Hartford Public School system. HTLA primarily accepls children who have a label of "emotionally disturbed" and who have not experienced success at placements at other schools within the system, notably their local schools. Upon information and belief, students who are placed at HTLA have disabilities that include mental illness, developmental disabilities, brain injuries and other disabilities including cognitive disabilitil:s. Children also have a documented history of challenging negative behavior. In order to be placed at HTLA a student and his/her parents or guardians need to sign an agreement that permits the use of "time-out procedures and/or restraints." Students and their parents or guardians must also sign a form permitting the use of "reasonable physical force when [an HTLA staff person] believes it is necessary to (a) protect himsel:f1herself or others from immediate physJical injury; (b) obtain possession of a dangerous instrument or controlled substance upon or within the control of such student or (c) protect property from physical damage." (Emphasin added.) Attached hereto as Attachment 1. HTLA is located at 110 Washington Street, Hartford, CT 06106 with an additional facility at 150 Tower Avenue, Hartford, CT 06120. HTLA is a facility as defined in the DD Act, PAlMI and PAIR. 42 U.S.C. § 15043(a)(2)(A)(i) and 42 U.S.C. § 10802(4)(B)(ii), 29 U.S.C. § 794e(f)(2).
9. As part of its regular intake process, OPA has received complaints from parents of students at HTLA. These complaints have included allegations that the students have been
5

subjected to inappropriate restraint and seclusion at HTLA. Some of these allegations have included claims that the students were injured during the restraint process. Aff. of Centeno at '1[ 4-10. Attached hereto as Attachment 2. Upon information and belief, the students had a variety of disabilities including mental illness, developmental disabilities, and other cognitive impairments. On information and belief students were also placed at HTLA with brain injuries.
10. Students are also placed at HTLA without adequate information to determine what kind of programming is required for the student. For example, OPA learned that students with behavioral issues have not received a functional behavioral assessment to enable Defendants to develop a behavioral intervention plan. The only "plan" these students have is that contained in the "Hartford Transitional Learning Academy, Student and Parent Handbook" at 12. This handbook sets forth "Standards of Student BehaviorlBehavior Management Plans." Attached hereto as Attachment 3. This general plan violates the Individuals with Disabilities in Education Act (IDEA) in that it fails to provide an individualized plan for each particular child. 20 U.S.C. 1414(d)(3)(B). This violation ofIDEA places students at risk of inappropriate restraint and seclusion, and thus at risk of abuse and neglect. Aff. of Garrison at '1[18-20 . Attached hereto as Attachment 4.
II. As a result of the complaints as set forth in paragraph 9 supra and the information set forth in paragraph 10 supra, OPA determined that it had probable cause to suspect that these students with disabilities were being subjected to abuse and neglect. Based upon this probable
6

cause determination OPA decided to undertak,~ an investigation of HTLA pursuant to its federal authority under PAIMI, the DD Act, and PAIR.
12. In a letter dated February 3, 2004, OPA notified Defendant Henry that investigators from OPA and The Office of the Child Advocate (hereinafter "~CA") would be jointly investigating "alleged programmatic deficiencies and violations of students rights." This letter stated that investigators from both offices would make an initial visit to the HTLA facility located at 110 Washington Street on Tuesday, February 10, 2004 at 9:00 am. The letter further informed Defendant Henry that the investigation would include "policy review, record review, interviews and direct observation of practices." OPA and OCA assured Defendant Henry that the investigators would "make every effort not to disrupt the educational environment." See Letter from OPA and OCA to Defendant Henry, February 10, 2004. Attached hereto as Attachment 5.
13. On Tuesday, February 10, 2004 investigators from OPA and OCA arrived at HTLA. Faith VosWinkel from OCA and Bruce Garrison from OPA went into the school office at approximately 8:30 am, signed in and informed the clerk where they were from and that they wished to see Barbara Macauley, the principal ofHTLA. The clerk asked them to wait. Aff. of Garrison at ~ 8-10 and Aff. ofVosWinkel at ~ 8-10. Attached hereto as Attachment 6.
14. When Macauley arrived at the office approximately 25 minutes later, she asked Mr. Garrison and Ms. VosWinkel to come into her office where Ms. VosWinkel told Macauley that they were there to initiate an investigation into HTLA. Aff. of Garrison at ~ 12 and Aff. of VosWinkel at ~ 12.
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15. When Macauley expressed surprise and said she knew nothing about an investigation Ms. VosWinkel informed her that a letter had been sent to Defendant Henry. Aff. of Garrison at ~ 13 and Aff. ofVosWinkel at ~ 13. Macauley infonned Mr. Garrison and Ms. VosWinkel that she had not received a letter and asked what kind of investigation they intended to conduct. Ms. VosWinkel told her that they intended only to look at documents relating to policies, procedures and program descriptions ofHTLA during this particular visit. She also stated that they planned additional visits to observe the programs at HTLA and to talk to faculty. She told Ms. McCauley that they would not be going into confidential student areas on that day. Aff. of Garrison at ~ 14 and Aff. ofVosWinkel at ~ 14.
16. Macauley stated that before she could let Mr. Garrison and Ms. VosWinkel into the facility she needed to check with her administration. After leaving her office for approximately 10 minutes she returned and told them that she had spoken with Assistant Corporation Counsel Ann Bird who advised her not to let them into the facility or to review any documents. She then asked them to leave, which they did. Aff. of Garrison at ~ 16 and Aff. ofVosWinkel at ~ 16.
17. On or about April 7, 2004 OPA and OCA met with Defendant Henry and Macauley and other officials from Defendant HPS and with counsel for the Defendants to try to resolve the question of access to the HTLA facilities for the purpose of conducting the investigation. OPA explained the areas of concern it had and explained its· authority. OPA asked for directory information so that it could contact parents and guardians to seek consents for release of educational records and OPA renewed its request for access to the facilities. At the conclusion
8

of the meeting, OPA agreed that it would provide a letter to Defendants explaining its authority. On April 12, 2004 OPA wrote to counsel for Defendants and discussed the various statutes which provided this authority, and cited to case law. OPA renewed its request for both directory information and access to the facilities. See LI~tter from OPA to Aun Bird. Attached hereto as Attachment 7.
18. On May 3,2004 counsel for Defendants responded to OPA's letter and, citing privacy concerns refuted in OPA's letter, refused to allow OPA access to either the directory information
or the facilities. See Letter from Bird to OPA. Attached hereto as Attachment 8.
19. On July 20,2004 counsel for OPA wrote to counsel for Defendants attempting to resolve the matter and informing Defendants that should the matter not be resolved the case would have to be litigated. Attached hereto as Attachment 9.
20. Counsel for Defendants responded on July 22, 2004. In that letter Defendants continued to refuse to allow Plaintiffs access to the directory information. Defendants did state that they would allow Plaintiffs access to the HTLA facility, but only when the students were not present. Plaintiffs replied to this letter on July 27,2004 and informed Defendants that this offer was not acceptable. Attached hereto as Attachments 1() and 11.
21. To this date Defendants have allowed OPA only to have access to otherwise public documents. OPA was not permitted into the HTLA facilities to review these documents. Defendants continue to refuse OPA access to HTLA when the students are present, continue to
9

refuse OPA access to the directory information, and thus continue to deny OPA the ability to conduct it's lawful investigation.
V. CLAIMS FOR RELIEF First Claim for Relief - Violation of PAlMI 22. Plaintiffs incorporate and re-allege paragraphs 1 through 21, as if fully set forth herein. 23. OPA as Connecticut's designated Protection and Advocacy system has the authority to investigate incidents of abuse and neglect of individuals with mental illness to protect the rights of individuals with disabilities ifthere is probable cause to believe that the incidents occurred. 42 U.S.C. § 10805(a)(I)(A). 24. PAIMI specifically grants to OPA the authority to access facilities and residents that provide assistance to individuals with mental illness to protect the rights of those individuals. 42 U.S.C.§ 10805(a)(C)(3), 42 C.F.R. § 51.42. 25. OPA has authority to have access to reGords of individuals with mental illness, including directory information of parents and guardians of students to protect the rights of those individuals. 42 U.S.C. § 10806,42 C.F. R. § 51.41. 26. Defendants' refusal to permit OPA to have access to the HTLA facilities when the students are present, to have access to the directory information, or to conduct an investigation violates PAIML 27. Plaintiffs have no adequate remedy at law.
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Second Claim for Relh~f - Violation of the DD Act 28. Plaintiffs incorporate and re-alleges pruragraphs 1-21, as if fully set forth herein. 29. OPA as Connecticut's designated Protection and Advocacy system has the authority to investigate incidents of abuse and neglect of individuals with developmental disabilities to protect the rights of individuals with disabiliti(~s if there is probable cause to believe that the incidents occurred. 42 U.S.C. § l5043(a)(2)(EI). 30. The DD Act specifically grants to OPA the authority to access facilities and residents that provide assistance to individuals with developmental disabilities to protect the rights of those individuals. 42 U.S.C. § l5043(a)(2)(H), 45 C.F.R. § 1386.22(f) and (g). 31. OPA has the authority to have access to records of individuals with developmental disabilities, including directory information of parents and guardians of students to protect the rights of individuals with disabilities. 42 U.S.C. l5043(a)(2)(1) and (J). 45 C.F.R. § 1386.22(a)(e). 32. Defendants' failure to permit OPA to have access to HTLA facilities when students are present, to have access to the directory information and to conduct an investigation violates the DD Act. 33. Plaintiffs have no adequate remedy at law.
Third Claim for Relief - Violation of PAIR 34. Plaintiffs incorporate and re-allege para.graphs 1-21, as iffully set forth herein.
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35. OPA as Connecticut's designated Protection and Advocacy system has the authority to investigate incidents of abuse and neglect of individuals with disabilities under PAIR to protect the rights of individuals with disabilities ifthere is probable cause to believe that the incidents occurred. 29 U.S.C. § 794e(f)(2).
36. PAIR specifically grants to OPA the authority to access facilities and residents that provide assistance to individuals with disabilities to protect the rights of those individuals. 26 U.S.C. § 794e(f)(2).
37. OPA has the authority to have access to records of individuals with disabilities, including directory infonnation of parents and guardians of students to protect the rights of those individuals. 26 U.S.C. § 794e(f)(2).
38. Defendants' failure to pennit OPA to have access to HTLA facilities when students are present, to have access to the directory infonnation and to conduct an investigation violates PAIR.
VI. REQUESTS FQR RELIEF WHEREFORE, the Plaintiffs respectfully request that this Court:
A. Enter a declaratory judgment, in accordance with 28 U.S.C. § 2201, declaring that the Defendants' actions and failures to act violate lPAIMI, the DD Act, and PAIR by:
i) Denying the Plaintiffs access to HTLA facilities when students are present; and
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ii) Denying the Plaintiffs access to directory information of parents and/or guardians of
students at HTLA;
iii) Preventing OPA from fully perfomling its statutory duty to investigate incidents of
suspected abuse and neglect ofpen:ons all in violation ofPAIMI, the DD Act, and
PAIR;
B. Enter preliminary and thereafter permaaent injunctive relief, pursuant to 28 U.S.c. §
2202, requiring Defendants to provide OPA with access to HTLA when the students are
present, with access to directory information of parents and/or guardians of students at HTLA
and to permit OPA to conduct an investigation.
C. Retain jurisdiction over this action to ensure Defendants' compliance with the mandates
ofPAIMI, the DD Act and PAIR;
D. Order such other, further, or different relief as the Court deems equitable and just.
Respectfully submitted,
The Plaintiffs, The State of Connecticut Office ofProtection and Advocacy For Persons with Disabilities James McGaughey
\ -\...~Ct:tc~-£. E0~.R~<Q\
n and Advocacy For Persons with Disabilities 60B Weston Street Hartford, CT 06120 Fed. Bar. No. CT 21321
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(860) 297-4397 Fax: (860) 566-8714 nalisb g
Office ofProtection and Advocacy For Persons with Disabilities 60B Weston Street Hartford, CT 06120 Fed. Bar No. CT21556 Fax: (860) 566-8714 (860) 297-4329 paulette.annon@po.state.ct.us Attorneys for the Named Plaintiffs
DATED: _'_g'_I_I'D_'-,-Y_ _
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Hartford Public Schools

Robert Henry Superi11lende11l (~rSchools
Dr. Barbara D. Macauley Principal
Beverh' Coke." and Dwight Fleming • Assistant Principals

Hartford Transitional Learning Academy
110 Washington Street Hartford, CT 06106
Phone: (860) 695-6120 Fax: (860) 722-8285 e-mail: htla0"hartfordschools.org
&
150 Tower Avenue Hartford, CT 06120
Phone: (860) 695-6020 Fax: (860) 522-6219 e-mail: htla.annexla'hartfol-dschools.OI"g

USAGE OF THERAP.EUTIC PHYSICAL RESTRAINT TO MAINTAIN SAFETY

Please note the following important information:

1. The use of physical force (corporal punishment) as a 9isciplinary measure is not permitted In the Hartford Public Schools.

2.

In accordance with state statutes, a teacher, administrator, or other person entrusted with the care

and supervision of a student may use reasonable physical force when he/she believes it is

necessary to (a) protect himselflherself or others from immediate physical inJury;. (b) obtain

possession of a dangerous Instrument or controlled substance upon or within the control of such

student; or (e) protect property from phys·ical damage.

Legal Reference: CGS 53a-18 (P.A. 89-186)
Parent: Student: Date:
"HTLA on the Rise!"

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

THE STATE OF CONNECTICUT OFFICE OF

)

PROTECTION AND ADVOCACY FOR PERSONS ')

WITH DISABILITIES, and JAMES MOGAUGHEY, )

Executive Director of The State of Connecticut Office )

OfProtection and Advocacy for Persons with Disabilities )

)

Plaintiffs,

)

)

)

v.

)

)

HARTFORD BOARD OF EDUCATION,

)

HARTFORD PUBLIC SCHOOLS, and

)

ROBERT HENRY, in his official capacity as the

)

Superintendent of Schools

)

)

Defendants.

)

CIVIL ACTION NO.
August 11, 2004

AFFIDAVIT OF JOSE CENTENO
Jose Centeno, being duly sworn deposes and says:
1. My name is Jose Centeno. I am over 18 years of age and I understand the obligations of an oath.
2. I have been employed as a Human Services Advocate at the State of Connecticut Office of Protection and Advocacy for Persons with Disabilities (OPA) at 60B Weston Street, Hartford, CT 06120 since 1990. My area of specialization is Special Education. I have provided advocacy services for over 300 families and their children receiving special education and related services throughout the state ofConnecticut.

3. I have a Bachelor of Arts from Northwest College, Kirkland, Washington. 4. As part of my work as a Human Services Advocate, I have served children
who attended the Hartford Transitional Learning Academy [HTLA] At least two ofthese children were restJrained and secluded while at HTLA. 5. One of these children was restrained on numerous occasions. He complained that he was treated roughly, and he developed bruises as a result ofthe restraints. He also reported being held tightly enough to cause pain. 6. He also frequently placed in seclusion. On one occasion he complained that his armed was forced behind his back as he was escorted to the "time-out" room. 7. On information and belief, he developed panic attacks as a result of the stress of this situation. S. Another client also reported being restrained frequently. This child also suffered from bruising as a result of the restraints. 9. I have also heard reports that children served by Padres Abriendo Puertas, an agency housed in OPA offices, also reported being restrained. One such client reported on one occasion receiving rug burns on the face due to a prone restraint. On information and beliefthere are photographs documenting this InJury. 10. In 2002, on a professional visit to the HTLA facility at 110 Washington Street, I observed a child who was subject to a prone 4-point restraint in the middle of the school hallway. I have no reason to believe that the practices at HTLA regarding restraint have ,~hanged in 2002.
2

~&<'-C' () (~tj< ~/J SECENTENO . uman Services Advocate

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Report Cards

Grade Equivalents:

A+

97

C+

77

F

A

92

C

72

A- = 90

C-

70

59 and below

B+ = 87

B

82

B-

80

D+

67

D = 62

D- =

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High school credits will be detennined by the guidelines of the student's district school.

Standards of Student Behavior/Behavior Management Plans

HTLA is a therapeutic program for students with emotional and behavioral needs who have been referred, through the PPT process, to modify their behaviors so that they may experience success in their district school. As such, we have very high standards of behavior for our students. Simply put, there are rewards for good behavior and consequences for poor behavior.

All students will participate in a Points and Levels System which will enable them to earn an increasing number of rewards and privileges as they display appropriate behavior.

Immediate consequences for any display of negative behavior may be: • Verbal correction • Loss of Point(s) on a daily point sheet; lowering of placement on the levels system • Loss of privileges • After school make-up room for time and/or work missed • Time-out (see Time-Out section) • Physical restraint (for students losing self-control). (See Physical Restraint section). • Parent conference

Use of Time-Out Room

Controlled, monitored time-outs may be necessary to safely address aggressive and assaultive (verbal and physical) behaviors demonstrated by students during the school day. Time-out will be used as a last resort to remediate student behavior.

- 12 -

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

THE STATE OF CONNECTICUT OFFICE OF

)

PROTECTION AND ADVOCACY FOE~ PERSONS )

WITH DISABILITIES, and JAMES MCGAUGHEY, )

Executive Director of The State of Connecticut Office )

Of Protection and Advocacy for Persons with Disabilities )

)

Plaintiffs,

)

)

)

v.

)

)

HARTFORD BOARD OF EDUCATION,

)

HARTFORD PUBLIC SCHOOLS, and

)

ROBERT HENRY, in his official capacity as the

)

Superintendent of Schools

)

)

Defendants.

)

CIVIL ACTION NO.
August 11, 2004

AFFIDAVIT OJ? BRUCE GARRISON Bruce Garrison, being duly sworn deposes and says:
I. My name is Bruce Garrison. I am over 18 years of age and I understand the obligations of an oath.
2. I have been employed as a Human Services Advocate at the State of Connecticut Office of Protection and Advocacy for Persons with Disabilities (OPA) at 60B Weston Street, Hartford, CT 06120 for 17 years. My area of specialization is Special Education. I have provided advocacy services for over 600 families and their children receiving special education and related services throughout the state of Connecticut.

3. I have a Master's Degree in Education/Special Education from the University of Connecticut and have my teacher certification in the areas of regular and special education.
4. During the fall and winter of2003-2004 I was assigned to work as part of a team to investigate allegations of abuse and neglect at the Hartford Transitional Learning Academy. The team doing the investigation included staff from OPA as well as staff from the State of Connecticut, Office of Child Advocate (OCA).
5. On information and belief, Both OPA and OCA had received complaints alleging abuse and neglect coneeming the misapplication of restraints and seclusion at the HTLA facility. OPA therefore had probable cause to conduct an investigation under our federal mandates.
6. On information and belief, OPA has authority under those federal mandates to visit the HTLA facility and observe the students in their enviromnent.
7. On February 3, 2004 the Executive Director of OPA, James McGaughey and the Child Advocate, Jeanne Mi:lstein, sent a letter to Robert Henry, Superintendent of the Hartford Public Schools informing him that the offices would be conducting an investigation of the HTLA programs. The letter further informed Superintendent Henry that investigators would be making their initial visit to the HTLA facility at 110 Washington Street, Hartford, CT on Tuesday, February 10 at 9:00 am.
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8. On Tuesday, February 10, 2004 I met Faith Vos Winkel, an Assistant Child Advocate from OCA, and together we walked to HTLA where we arrived at approximately 8:30 am.
9. We entered the building and w<~nt directly to the school office where we signed in. We showed the clerk at the desk our ID's and Ms. Vos Winkel informed her that we were from the Office ofthe Child Advocate and from the Office of Protection and Advoc:acy. She requested that we meet with Barbara McCauley, the principal ofHTLA.
10. We were informed that Ms. Mc:Cauley was not in her office, and we were asked to take a seat and wait until she could be contacted.
11. While we waited we observed !ltudents, parents and teachers coming and going into the office. Although the office was a public area, we heard students referred to by name. We also observed a large "transportation roster" in the main corridor ofthe school that contained student names and bus routes. Finally, when we signed into the building, next to the sign-in book on the counter in the school office waH a schedule ofPPT's that were to be held that day listed by student name. Thl~re was no apparent effort to maintain the privacy of students in this public waiting area.
12. We waited for approximately 20-25 minutes. At that time Ms. McCauley entered the school office, greete:d us and invited us into her office. Once there, Ms. Vos Winkel informed her that we were there to initiate an investigation into HTLA.
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13. Ms. McCauley expressed surprise, and said that she had not been informed that we would be there that day. Ms. Vos Winkel informed her that a letter had been sent to Superintendent Henry by OCA and OPA and Ms. McCauley told us that she had not seen the letter nor been told anything about it. She then asked us what kind of investigation we were there to conduct.
14. Ms. Vos Winkel told her that today we wanted to look at documents relating to policies, procedures and program descriptions ofHTLA. She also stated that we would be setting up subsequent visits to observe the programs at HTLA and to talk to faculty. She further informed Ms. McCauley that we would not be looking at confidcmtial records on that day.
15. Ms. McCauley continued to express puzzlement as to why we were there. She pointed to a large stack of documents and stated that representatives from the Center for Children's Advocacy had just been there to review documents and she asked if we were connected to her investigation. We informed her that we were not and that we were conducting a separate investigation. Ms. McCauley then asked who had made the "referrals',' to us, and Ms. Vos Winkel told her that information was confidential, but that OCA had indeed received complaints.
16. Ms. McCauley told her that she didn't have a problem with oUI being there, but that she would have to check with the "administration." She left her office and returned some 10 minutes later. She informed us that she had spoken with Ann Bird, the Assistant Corporation Counsel, she advised her not to let
4

us into the facility until they cculd find the letter. Ms. McCauley then asked us to leave, and we did so without beginning our investigation. 17. To this date we have stilI not received permission to return to HTLA, and other than receiving certain doc;uments we have unable to conduct our investigation of the facility. 18. As part of my work as a Human Services Advocate at OPA, I learned that students are placed at Students are also placed at HTLA without having received a functional behavioral assessment or without having a behavioral intervention plan in their record. 19. The only "plan" these students have is that contained in the "Hartford Transitional Learning Academy, Student and Parent Handbook" at 12. This handbook sets forth "Standards of Student BehaviorlBehavior Management Plans." This general plan fails to provide a individualized plan for each particular child. 20. Based on my experience as a Human Services Advocate and based upon my educational experience, the failure to have an individualized behavioral intervention plan places students at risk of inappropriate restraint and seclusion, and thus at risk of abuse and neglect.
~2~
Human Services A vocate
5

--\b..
Signed and sworn to before me this:;;;""", day of
--=:i."'-'>\""''=s~-' 2004
~.~~~'-'<;--Commission
6

Jeanne Milstein
Child Advocate

STATE OF CONNECTICUT
OFFICE OF THE CHILD ADVOCATE 18-20 TRINITY STREET, HARTFORD, CONNECTICUT 06106

February 3, 2004

Robert Henry, Superintendent
Hartford Public Schools 960 Main Street, 8th floor
Hartford, CT OiSl 03

Re: Hartford Transitional Learning Academy

Dear Superintendent Henry:

We are writing to notify you that both the Office of the Child Advocate (OCA) and the Office of Protection and Advocacy for Perwns with Disabilities (OPA) have received complaints regarding the provision of educational and related services to Hartford students being served in the Hartford Transitional Learning Academy (HTLA) programs. We will be investigating jointly alleged programmatic deficiencies and violations of student rights pursuant to authority established in sections 46a-13 q and sections 46a-11 through 46a-13a of the Confiecticut General Statutes, and 42 U.S.C. § 15001 et. seq.; 42 U.S.C. § 15043; and 29 U.S.C. § 794(e) et. seq.

Investigators from OCA and OPA will be making their initial visit to the 110 Washington Street site ofHTLA on Tuesday, February 10, 2004 at 9 a.m. We anticipate the investigation to include policy review, record review, interviews and direct observation of practices. We will make every effort to not disrupt the educational environment.

Thank you in advance for your anticipated cooperation. If you have any questions, please

do not hesitate to call.

Sincerely,

~

~~.

~~c~o~

Jeanne Milstein

Jim McGaughey

Child Advocate

Executive Director, OPA

Phone: (860) 566-2106, (800) 994-0939 Fax: (860) 566-2251 www.oca.state.ct.us·jeanne.milstein@po.state.ct.us
An Affirmative Action/Equal Opportunity Employer

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

THE STATE OF CONNECTICUT OFFlCE OF

)

PROTECTION AND ADVOCACY FOR PERSONS )

WITH DISABILITIES, and JAMES MOGAUGHEY, )

Executive Director of The State of Connecticut Office )

Of Protection and Advocacy for Persons with Disabilities )

)

Plaintiffs,

)

)

)

v.

)

)

HARTFORD BOARD OF EDUCATION,

)

HARTFORD PUBLIC SCHOOLS, and

)

ROBERT HENRY, in his official capacity as the

)

Superintendent of Schools

)

)

Defendants.

)

CIVIL ACTION NO.
August 11, 2004

AFFIDAVIT OF FAITH VOSWINKEL Faith VosWinkel, being duly sworn deposes and says:
1. My name is Faith VosWinkel. I am over 18 years of age and I understand the obligations of an oath.
2. I have been employed at the Stat,e of Connecticut Office of the Child Advocate ("OCA") at 18-20 Trinity Street, Hartford, CT 06106 since August 10,2001. I currently am acting as an Assistant Child Advocate. In this position, my responsibilities include conducting fatality reviews/investigations regarding all unexplained unexpected child deaths and manage most of the casework related to special education issues and children with disabilities.

Previously, for approximately fifteen years, I worked at the State of Connecticut Office of Protection and Advocacy for Persons with Disabilities (OPA) at 60B Weston Street, Hartford, CT 06120 as an Assistant Program Director, supervising Human S,~rvice Advocates. For approximately four of those years, I was the Acting Program Director overseeing the investigatory and advocacy divisions. 3. I have a Bachelor's Degree from the University of Connecticut and currently am pursuing a master's degree in social work from the University of Connecticut. 4. During the fall and winter of2003-2004, OCA and OPA began discussions concerning allegations of program deficiencies, improper restraint and seclusion techniques and safety concerns at Hartford Transition Leaming Academy (HTLA). Numerous high level inter-agency meetings took place to discuss the manner in which these allegations might be investigated, culminating in OCA and OPA entering into a joint investigatory agreement. S. I was assigned as lead investigawr for OCA. Mr. Bruce Garrison, a Human Services Advocate at OPA, was named lead investigator for OPA. 6. On February 3, 2004 the Executive Director of OPA, James McGaughey and the Child Advocate, Jeanne Mii:;tein, sent a letter to Robert Henry, Superintendent ofthe Hartford Public Schools informing him that their offices would be conducting ajoint investigation of the HTLA programs. The letter further informed Superintendent Henry that investigators would be making

their initial visit to the HTLA Dicility at 110 Washington Street, Hartford, CT on Tuesday, February 10, 2004 at 9:00 a.m. 7. In order to conduct a proper investigation ofthe allegations at HTLA, it is imperative that we be allowed to observe students in their school environment. 8. On Tuesday, February 10,2004 I met Mr. Garrison, and together we walked to HTLA, arriving at approximately 9:00 a.m. 9. We entered the building and went directly to the school's office where we signed in. We showed the clerk at the desk our ID's and I informed her that we were from the Office ofthe Child Advocate and from the Office of Protection and Advocacy and rt'quested that we meet with Barbara McCauley, the principal ofHTLA. 10. We were informed that Ms. McCauley was not presently available, and we were asked to take a seat and wait until she could see us. 11. While we waited we observed students, teachers and other adults coming and going into the office. When we signed into the building, next to the sign-in book on the counter in the school office was a schedule of PPT' s that were to be held that day listed by student name. This schedule was in plain view. We also observed, in the main corridor of the school, a large "transportation roster" posted on one of the hallway's walls, that contained students' first and last names, home addresses and bus routes. I pointed this roster out to Mr. Garrison.

12. We waited for approximately 20-25 minutes. At that time Ms. McCauley greeted us and invited us into h~r office. Once there, I informed her that we were there to initiate an investigation into HTLA.
13. Ms. McCauley expressed surpri se, and said that she had not been informed that we would be there that day. I informed her that a courtesy letter had been sent to Superintendent Henry by OCA and OPA notifying him of our intention to investigate HTLA. I further :,tressed that this letter was a mere formality. Ms. McCauley told us that she had not seen the letter nor been told anything about it. She then asked us what kind of investigation we were there to conduct.
14. I told Ms. McCauley that today we wanted to look at documents relating to policies, procedures and program descriptions of HTLA. I also stated that we would be setting up subsequent visits to observe the programs at HTLA and to talk to faculty. I further informed Ms. McCauley that we would not be going into confidential student record~ on that day, although we would like a tour of the school building.
IS. Ms. McCauley continued to express puzzlement as to why we were there. She pointed to a large stack of documents and stated that representatives of the Center for Children's Advocacy had just been there to review documents and she asked if we were connected to that investigation. I informed her that we were not and that we were conducting a separate investigation. Ms. McCauley then asked who had made the "referrals" to us, and I told her that information was confidential, but that OCA had indeed received complaints.

16. Ms. McCauley told us that she didn't have a problem with our being there, but that she would have to check with the "administration." She left her office and returned some 10 minutes later. She informed us that she had spoken with Ann Bird, the Assistant Corporation Counsel, who advised her not to let us into the facility until they could find the letter. Ms. McCauley then asked us to leave, and we did so without beginning our investigation.
17. Prior to departing HTLA, I again tried to impress upon Ms. McCauley the parameters of the Child Advocate's statutory authority and that we did not intend to review confidential material that day.
18. To this date we still have not gained access into HTLA in order to properly conduct our investigation.
~~L ~ Vtt-~ I~
Faith VosWinkel Assistant Child Advocate
Th
Signed and sworn to before me thisdO day of
-i~'2004
~~ Commissio~r 0 e Superior Court IlACLLlY'een ~u.l~

STATE OF CONNECTICUT
OFFICE OF PROTECTION AND ADVOCACY FOR PERSONS WITH DISABILITIES
60B WESTON STREET, HARTFORD, CT 06120-1551
April 12, 2004
Ann F. Bird Assistant Corporation Counsel City of Hartford 550 Main Street - Room 210 Hartford, CT 06103
Dear Ms. Bird:
It was a pleasure meeting you on Wednesday, April 7 at the offices of the Child Advocate. I am pleased to provide you with information regarding the federal statutes that govern the work of the Office of Protection and Advocacy. I am certain that after you review these statutes that you will understand that we have the authority to have access to the facilities that comprise HTLA while the students are present. Furthermore, you will come to understand that we have the authority to obtain the names of the parents and guardians of these students so that we may seek authorization to obtain their records. Put more simply, our federal authority supercedes the privacy provisions of the Family Educational Rights and Privacy Act [FERPA].
As I mentioned during ourmeeting, there are three statutes that are relevant to the investigation being undertaken by OCA and OPA. They are the Protection and Advocacy for Individuals with Mental Illness Act [PAlMI], 42 U.S.C. §§ 1080110807, the Developmental Disabilitie:l Assistance and Bill of Rights Act [DD Act], 42 U.S.C. §§ 15041 - 15045, and the Protection and Advocacy of Individual Rights Act [PAIR], 29 U.S.C. 794e. PAlMI is implemented by regulations at 42 CPR Part 51, and the DD Act at 45 CPR 1386.20-25. PAIR provides that it shall have the same access as the DD Act. 29 U.S.C. 794e (0(2).
As a review of the case law will show you, courts have uniformly held that the P&A access authorities require facilit:les to permit the P&A to operate with broad discretion and independence in gaining access to facilities and records for investigative purposes. One case that I would particularly suggest that you read is Michigan Protection and Advocacy Service, Inc. v. Miller, 849 F. Supp. 1202 (W.D. Mich. 1994). Miller addresses the right of the Michigan P&A to obtain access to a juvenile facility and to records of individuals in that f2lCility notwithstanding objections from the facility. I would also suggest you read Office of Protection and Advocacy for Persons with Disabilities v. Armstrong, 266 F. Supp. 2d 202 (D. Conn. 2003). This case will
Phm,c:1/860-297-4300. 1/800-842-'1303: TDD: 1/860-566-2102: FAX: 1/860-560-8714
INTERNET SITE: www.state.ct.us/opapd
All Affirmative Action / Equal Opportfll1iry Employer

give you a good idea of how broadly P&A access has been construed by the one Connecticut Court that has had the opportunity to do so as yet.
Again, I am confident that after a review of the statutes and the case law, we will be permitted to conduct our investigatiion utilizing the full extent of our authority. Please be assured that this office will act with complete discretion and will comply with our requirements to maintain confidential all student information. I look forward to hearing from you.
Very truly yours,
'-1~~~nCaYgBi.ng
Cc: James McGaughey Jeanne Millstein MJ. McCarthy Amador Mojica
2

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JOHN ROSE, JR. Corporation Counsel email: RoscJOOI@<;i.hartford.ct.us

CITY OF HARTFORD
OFFICE OF TIm CORPORATION CO[JNSEL 550 MAIN SlREET
HARWORD, CONNECTICIJT 06103
TELEPHONE (860) 543-8575 FAX (860) 722-8114

I~AY - 5
CARL R. NASTa Deputy Corporation Counsel email: Cnasto@lci.hartford.ct.us
ANNF.BIRD Assistant Corpomtion COWlS e-mail: h~r.¢'!QQJ.@9.uMttlf.Qr4&!

Nancy B. Alisberg Managing Attorney Office of Protection and Advocacy
For Persons With Disabilities 60B Weston Street Hartford, CT 06120-1551

May 3,2004

Re: HTLA

Dear Attorney Alisberg:

Thank you for your letter of April 12, 2004. Now that I have reviewed the authorities provided in your letter and conducted additional research, I remain firmly convinced that neither these nor other legal authorities allow or require the Hartford Public Schools to provide your office with access to confidential student records or to the HTLA facility while students are attending.

Of the statutes you cited, The Protection and Advocacy for Individuals with Mental IIlness Act (PAlMI) would seem closest to applying to HTLA's students. That statute, however, addresses protection and advocacy for persons with significant mental illness who are inpatient or resident in a facility, or in the process of being admitted to a facility, or incarcerated. 42 CRF Section 51.2. The HTLA students generally do not meet this definition, as they are neither inpatient nor incarcerated, at least while attending HTLA.

Even if PAlMI did apply to the HTLA students, however, PAlMI provides that P&A may have access to records only under circumstances that do not apply here. P&A may have access to records of (a) persons who are clients of P&A and who have authorized such access; (b) persons whose mental condition prevents self authorization and who have no guardian or other representative who can give authorization and where P&A has a specific complaint or probable cause as to

Attorney Nancy B. Alisberg May 3,2004

Page 2

neglect or abuse; or (c) persons who have guardians or conservators who have not responded to requests for authorization and where P&A has a complaint or probable cause to believe there is a serious or immediate threat to health or safety. 42 U.S.C. Section 10805(a)(1 )(4). These conditions do not apply to HTLA students.
PAlMI also clearly does not require or permit Hartford Public Schools to provide P&A with access to the HTLA facility. Although PAlMI indicates that a P&A may "have access to facilities in the State providing care or treatment", the regulations clearly define "facility" to include only residential facilities. 42 CFR Section 51.2. HTLA is not a residential program and does not provide residential services. Students return to their parents or guardians each day after school.
Similarly, the Developmental Disabilities Assistance and Bill of Rights Act (DD Act) does not apply to HTLA students because they do not meet the definition of persons with a "developmental disability" under the Act. 42 U.S.C. Section 15002(8) defines developmental disability to mean "a severe, chronic disability of an individual that ... results in substantial functional limitations in 3 or more ... [defined] areas of major life activity." Although some HTLA students may have developmental deficits, these tend to be slight. Even if some HTLA students did had developmental disabilities, however, the DD Act's provision for access to records is very similar to PAlMI's provision, and does not apply here, in the absence of individualized authorization by a parent or adult student. See 42 U.S.c. Section l5043(a)(2)(I).
Finally, the Protection and Advocacy of Individual Rights Act (PAIR), provides funding for organizations such as yours, but does not vest your agency with additional powers or authority.
In addition, the judicial decisions that you cited, while interesting, all deal with situations very unlike HTLA's because they involve residential facilities, deceased disabled individuals, or severely disabled people who have no guardians and are incapable of seeking assistance or authorizing access to their own records by virtue of their disabilities.
HTLA's students are either capable of advocating for themselves or providing authorization for access or have parents or other guardians who are capable of advocating and consenting to access. Nor are HTLA students and their parents so disabled or isolated that they are unable to either seek assistance or to consent to access by P&A. Obviously, if any HTLA students are clients of P&A and P&A has received authorization for release of records, we will honor those authorizations. Otherwise, Hartford may not disclose records or identifY parents or guardians or

Attorney Nancy B. Alisberg May 3, 2004

Page 3

provide access to students at HTLA b,!cause to do so would violate FERPA and is not mandated by PAlMI, the DD Act or (PAIR).
Thank you for your courtesy and consideration in this regard.
Sincerely,
~64
Ann F. Bird Assistant Corporation Counsel
cc: Robert Henry Amador Mojica Jody S. Lefkowitz Barbara Macauley James McGaughey Jeanne Millstein M.J. McCarthy

STATE OF CONNECTICUT
OFFICE OF PROTECTION AND ADVOCACY FOR PERSONS WITH DISABILITIES
60B WESTON STREET, HARTFORD, CT 06 I 20- I55 I
Juily 20, 2004

AnnE Bird Assistant Corporation Counsel City of Hartford 550 Main Street - Room 210 Hartford, CT 06103
Re: Access to HTLA Facilities and Directory Information
Dear Ms. Bird:
This letter will serve as a demand letter regarding the refusal of the Hartford Public Schools to allow the Office of Protection and Advocacy to have access to the HTLA facilities and to directory information for~he parents and guardians of HTLA students.
As we informed you in our meeting on April 7, 2004 and again on April 8 by letter, OPA has state and federal authority to conduct an investigation ofHTLA. That investigatory authority includes the right to have access to the facilities and to the requested directory information. Your failure to comply with this authority constitutes a violation ofOPA's rights. We hope to bl~ able to settle this matter without resorting to litigation. We are prepared to file suit in Federal District Court by July 30,2004. If the issues are not completely resolved by that date we shall proceed to litigate the matter.
I look forward to prompt reply to this letter, and I look forward to resolving the Issues.

Cc: James McGaughey Robert Henry Amador Mojica

Very truly yours,
~Nan~cy B.~er£ g -~ Managing Attorney

Phone: 1/860-297-4300, If800-842-i :H),1: TDD: 1/86()-SM-2102: FAX: 1/860-566-8714
INTERNET SITE: www.state.ct.us/opapd
An Affirma({l'(, Actioll / Equal Opportunify Employer

J'i
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JOHN ROSE, JR. Corporation Counsel email: RoseJOOl@ci.hartford.ct.us

CITY OF HARTFORD
OFFICE OF lHE CORPORATION COUNSEL 550 MAIN STREET
HARTFORD, CONNECTICUT 06 \03
mLEPHONE (860) 543-8575 FAX (860) 722-81 14

CARL R. NASTO Deputy Corporation Counsel email: Cnasto@fi.hartford.ctus
ANNF.BIRD Assistant Corporation Counsel e-mail: 9.M~QQJ@9UW:.rtf.QI4,~Lw.!

Nancy B. Alisberg Managing Attorney State Office of Protection And Advocacy
For Persons With Disabilities 60B Weston Street Hartford, CT 06120-1551

July 22,2004

Re: Access to HTLA Faciliti(:s and Directory Information

Dear Attorney Alisberg:

Thank you for your letter of July 20, 2004. Your letter's claim that the Hartford Public Schools has refused the Office of Protection and Advocacy access to the HTLA facilities is inaccurate. As you know, during our meeting on April 7, 2004, Superintendent Henry made clear that access to the HTLA facility and administration (but not students) will be provided at a mutually convenient time upon request. Superintendent Henry asked that communications to arrange such access be made through Acting Superintendent Amador Mojica. In fact, I also confirmed this officer in a letter of April 30, 2004 to Faith Voswinkel, Protection and Advocacy's "co-investigator" from the Office of the Child Advocate.

I do not believe Protection and Advocacy has contacted Mr. Mojica to arrange liuch a meeting or access to the facility.

~s I also indicated during the April 7, 2004 meeting and in my letter to you of May 3, 2004, however, the Hartford Public Schools cannot allow access to the students themselves, absent individualized authorization, because to do so would violate its obligations under FERPA. I also provided a detailed explanation as to why the federal authorizing statutes for the Office of Protection and Advocacy do not authorize such access in my letter of May 3, 2004. You have not responded to my letter or otherwise indicated disagn:ement with its conclusions.

Attorney Nancy B. Alisberg

Page 2

July 22, 2004

Your claim that the Hartford Public Schools has denied the Office of Protection and Advocacy Directory information for the parents and guardians of HTLA students is also puzzling because that information has never actually been requested. The only documents that have been requested were requested by the Office of the Child Advocate, and those documents were provided. Even if a request had been made for a list of parents and guardians, however, FERPA also prohibits the Hartford Public SchooLs from providing that data. The Hartford Public Schools has not followed a practice of notifYing HTLA parents and guardians that their names and addresses would be disclosed upon request, and has not afforded them the opportunity to prevent that disclosure. Under those circumstances, FERPA prohibits disclosure of the names and addresses of parents and guardians.
Sincerely,
~1U
Ann F. Bird Assistant COfJ?oration Counsel
cc: Robert Henry, Superintendent of Schools Amador Mojica, Acting Assistant Superintendent Dr. Barbara Macauley, HTLA

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STATE OF CONNECTICUT
OFFICE OF PROTECTION AND ADVOCACY FOR PERSONS WITH DISABILITIES
60B WESTON STREET, HARTFORD, CT 06120-1551
July 27, 2904
AnnF. Bird Assistant Corporation Counsel City ofHartford 550 Main Street - Room 210 Hartford, CT 06103
Re: Letter of July 22, 2004
Dear Ms. Bird:
Thank you for your response to my July 20, 2004 letter. Unfortunately, it seems that we will not be able to resolve this matter short of litigation. OUf access authority to facilities Q:pressly permits us to have access to the individuals who are in the facilities.
Access to an empty school is simply far short of the access granted to us under our federal statute&' See 42 C.F.R. § 51.42(b) and 45 C.F.R. § 1386.22(g).
Secondly, if you reread my,April 12,2004 letter, you will note that we did indeed request directory information at that time. Nevertheless, since you have stated that you will not provide that information, further discussion seems fruitless.
I therefore interpret your letter as refusing to allow us to have the access rights to which we are entitled.

Cc: James McGaughey Robert Henry Amador Mojica Peter Tyrrell

Very truly yours,
~-~
Nancy B. Alis rg Managing Attorney

Phone: 1/860-297-4300, 1/800-842-7303: TDD: 1/860-566-2102: FAX: 1/860-56()-8714
INTERNET SITE: www.state.ct.us/opapd
An Affirmative Action / Equal Opportunity Employer

 
 UNITED STATJi:S DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

THE STATE OF CONNECTICUT OFFICE OF

)

PROTECTION AND ADVOCACY FOR F'ERSONS )

WITH DISABILITIES, and JAMES MCGAUGHEY, )

Executive Director of The State ofConnecticnt Office )

Of Protection and Advocacy for Persons with Disabilities )

)

Plaintiffs,

)

)

)

v.

)

)

HARTFORD BOARD OF EDUCATION,

)

HARTFORD PUBLIC SCHOOLS, and

)

ROBERT HENRY, in his official capacity aH the

)

Superintendent of Schools

)

)

Defendants.

)

ZOOlj IIUG I I P 3: 30
CIVIL ACTION
S(j'4C V1338
August II, 2004

MEMORANDUM OF LAW IN SUPFORT OF PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION
I. Introduction The State of Connecticut Office of Protection and Advocacy for Persons with Disabilities
(hereinafter "OPA") and its Executive Director, James McGaughey (hereinafter "McGaughey") (collectively "Plaintiffs") have instituted this action to redress the refusal by Defendants Hartford Board of Education (hereinafter "Board"), Hartford Public Schools (hereinafter "HPS") and Robert Henry (hereinafter "Henry") (collectively "Defendants") to permit OPA to conduct an investigation into allegations of abuse and neglect at the Hartford Transitional Learning Academy (hereinafter "HTLA"), a school run by the Defendants. Defendants have refused to disclose certain directory information regarding the identity of parents or guardians of students

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attending HTLA. 1 That directory infonnation would enable the OPA to seek releases from those parents and guardians for the students' educational and other records. OPA additionally challenges Defendants' refusal to aJIow OPA access to the HTLA facilities at times when the students are in attendance.2 This access authority is specifically granted to OPA pursuant to federal law.
These refusals by Defendants prevent OPA, the state and federally designated Protection and Advocacy System for persons with disabilities in Connecticut, from fulfilling its statutory mandates of investigating allegations of abuse and neglect as well as providing protection and advocacy services for individuals with disabilities. The actions ofthe Defendants further prevent OPA from detennining whether the rights of students to be free from abuse and iIJegal restraint are being violated and whether there are appropriate procedures in place to prevent continued incidents of abuse and neglect.
Congress drafted the Developmental Disabilities Assistance and BiJI of Rights Act ("DD Act"), 42 U.S.C. §ISOOI, et. seq., because oftne concern it had over instances of abuse of developmentally disabled persons such as those contained in the allegations in the instant matter. The DD Act established the Protection and Advocacy System ("P&A") to investigate and remedy abuse and neglect of persons with developmental disabilities, and to provide them with legal representation and advocacy services. The P&A system is a nationwide network of disability rights agencies that are mandated and designated for every state and territory ofthe United States. 42 U.S.C. § IS043(a)(2)(A)(i). To accomplish this goal, Congress granted broad investigative access authority to the P&As. In order to protect the rights of individuals with disabilities to be free from abuse and neglect, OPA, as the P&A for the State of Connecticut, has
1 This directory information consists of name, address and telephone numbers of the parents or guardians of students who attend HTLA.
2

the authority to obtain the directory information that is being requested and to visit the HTLA facilities at times when the students are in attmdance. 42 U.S.C. § 15043 (a)(2)(I)(i)-(iii), 42 U.S.C. § 15043(a)(2)(H), 45 C.F.R. § 1386.2?(f) and (g).
Similarly, the Protection and Advocacy for Individuals with Mental Illness Act of 1986 42 U.s.C. §§ 10801-10827 (PAIMI) was enacted in 1986 by Congress to establish independent protection and advocacy systems (P&As) nationwide with authority to protect individuals with mental illness from abuse and neglect. 42.U.S.C. § 10801(b)(2)(A), (B). Congress established P&As in response to the myriad accounts of abuse and neglect against individuals with mental illness that were substantiated by congressional investigations. Congress found that "individuals with mental illness are vulnerable to abuse and serious injury" as well as "neglect, including lack of treatment, adequate nutrition, clothing, health care, and adequate discharge planning." 42 U.S.C. § 10801(a)(I), (3). Moreover, Congresil found that "[sJtate systems for monitoring compliance with respect to the rights of individuals with mental illness vary widely and are frequently inadequate." 42 U.S.C. § (a)10801(4). Accordingly, Congress granted P&As the power to investigate incidents of abuse and neglect of persons with mental illness if the incidents are reported to P&As or P&As have probable cause to believe that incidents have occurred. 42 U.S.C. § 10805(1 )(A). Similar to the DD Act, PAlMI provides a P&A with the authority to seek records and have access to facilities at times service recipients (students) are present. 42 U.S.C. § 10806,42 U.S.C. § 10805(a)(3), 42 C.F.R. § 51.42. Additionally, the Protection and Advocacy of Individual Rights (hereinafter "PAIR") 29 U.S.C. § 794e, et seq., provides access to records and facilities in the same manner as the DD Act and PAlMI for individuals with other disabilities not specifically provided for by PAlMI and the DD Act.
2 HTLA maintains 2 facilities at two separate locations.
3

The authority of OPA to conduct investigations and to have access to records was recently upheld by the District of Connecticut in Office of Protection and Advocacy for Persons with Disabilities v. Annstrong, 266 F. Supp.2d 303 (D. Conn. 2003) (hereinafter Annstrong.). In Annstrong, the Court discussed the history of the DD Act and PAlMI and ruled that "PAMII [sic] specifically charges the State's P&A, which is an independent agency, with the duty to 'investigate incidents of abuse and neglect oLllldividuals with mental illness if the incidents are reported to the system or ifthere is probable cause to believe that the incidents occurred. '" Id. at 310.
If the Defendants do not release the directory information to OPA or provide OPA with access to HTLA when the students are present, OPA will suffer irreparable harm because it will not be able to fulfill its statutory obligation to investigate abuse and neglect, as well as to provide protection and advocacy services to students who have been, and may still be, at risk of abuse. There will be no harm to Defendants because the release of records to a P&A does not violate the confidentiality provisions of the Family Educational and Privacy Rights Act ("FERPA"), 20 U.S.C. § 1232g, or the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §1400 et. seq. The public interest will not be harmed, but rather furthered by OPA having access to the directory information and the facility to prevent continued harm to students at HTLA. This Court should issue a preliminary and thereafter permanent injunction in this matter because Plaintiffs have the statutory authority to fully access the directory information. Finally, OPA will be irreparably harmed if it is prevented from pursuing its right to access the directory information and to access the facility in pursuit of its statutory duty to investigate suspected incidents of abuse and neglect.
4

II. Statement of Facts Hartford Transitional Learning Academy (hereinafter "HTLA") is a school that, despite
its label of "transitional," functions as a placement oflast resort in the Hartford Public School system. HTLA primarily accepts children who have a label of "emotionally disturbed" and who have not experienced success at placements at other schools within the system, notably their local schools. Upon information and belief, students who are placed at HTLA have disabilities that include mental illness, developmental disabilities, brain injuries and other disabilities including cognitive disabilities.3 Children also have a documented history of challenging negative behavior. In order to be placed at HTLA a student and hislher parents or guardians need to sign an agreement that permits the us(~ of "time-out procedures and/or restraints." Students and their parents or guardians must also sign a form permitting the use of "reasonable force when [an HTLA staff person] believes it is necessary to (a) protect himselflherself or others from immediate physical injury; (b) obtain possession of a dangerous instrument or controlled substance upon or within the control of such student or (c) protect property from physical damage." (Emphasis added.) Attaehed hereto as Attachment 1. Hartford Public Schools "Usage of Therapeutic Physical Restraint to Maintain Safety."
As part of its regular intake process, OPA has received complaints from parents of students at HTLA. These complaints have included allegations that the students have been subjected to inappropriate restraint and seclm:ion. Some of these allegations have included claims that the students were injured during the restraint process. Aff. of Centeno at -,r 4-10. Attached hereto as Attachment 2. The students had a variety of disabilities including mental illness, developmental disabilities, and other r;ognitive impairments.
3 Children with brain injuries are served under the DD Act. Tennessee Protection & Advocacy, Inc. v. Wells, 371 F.3d 342 (6th Cir. 2004).
5

- - ~~-~~~--
investigators would "make every effort not to disrupt the educational environment." See Letter from OPA to Robert Henry, February 10, 2004. Attached hereto as Attachment 5.
On Tuesday, February 10, 2004 investigators from OPA and OCA arrived at HTLA. Faith VosWinkel from OCA and Bruce Garri~:on from OPA went into the school office at approximately 8:30 am, signed in and informe:d the clerk where they were from and that they wished to see Barbara Macauley, the principal ofHTLA. The clerk asked them to wait. Aff. of Garrison at ~ 8-10 and Aff. of VosWinkel at ~ 8-10 attached hereto as Attachment 6.
When Macauley arrived at the office approximately 25 minutes later, she asked Mr. Garrison and Ms. VosWinkel to come into her office where Ms. VosWinkel told her that they were there to initiate an investigation into HTLA. Aff. of Garrison at ~ 12 and Aff. of VosWinkel at ~ 12. When Macauley expressed surprise and said she knew nothing about an investigation Ms. VosWinkel informed her that a letter had been sent to Defendant Henry. Aff.
of Garrison at ~ 13 and Aff. ofVosWinkel at '113. Macauley informed Mr. Garrison and Ms.
VosWinkel that she had not received a letter and asked what kind of investigation they intended to conduct. Ms. VosWinkel told her that during this particular visit they intended only to look at documents relating to policies, procedures and program descriptions ofHTLA. She also stated that they planned additional visits to observe the programs at HTLA and to talk to faculty. She told Ms. McCauley that they would not be going into confidential student areas on that day. Aff. of Garrison at ~ 14 and Aff. of VosWinkel a~ 14.
Macauley stated that before she could let Mr. Garrison and Ms. VosWinkel into the facility she needed to check with her administration. After leaving her office for approximately 10 minutes she returned and told them that she had spoken with Assistant Corporation Counsel
7

Ann Bird who advised her not to let them into the facility or to review any documents. She then asked them to leave, which they did. Aff. of Garrison at 'll16 and Aff. ofVosWinkel at'll 16.
On or about April 7, 2004 staff from OPA and OCA met with Defendant Henry and Macauley and other officials from Defendant HPS and with counsel for the Defendants to try to resolve the question of access to the facility for the purpose of conducting the investigation. OPA explained the areas of concern it had and explained its authority for conducting the investigation. OPA asked for directory infornlation so that it could contact parents and guardians to seek consents for release of educational records and renewed its request for access to the facility. At the conclusion ofthe meeting, OPA agreed that it would provide a letter to Defendants explaining its authority. On April 12, 2004 OPA wrote to counsel for Defendants and discussed the various statutes which provided this authority, and cited to case law. OPA renewed its request for both directory information and access to the facility. See Letter from OPA to Ann Bird. Attached hereto as Attachment 7.
On May 3,2004 counsel for Defendants responded to OPA's letter and, citing the very privacy concerns refuted in OPA's letter, refused to allow OPA access to either the directory information or the facility. See Letter dated May 3, 2004 from Ann Bird to OPA. Attached hereto as Attachment 8. On July 20, 2004 counsel for OPA wrote to counsel for Defendants attempting to resolve the matter and informing Defendants that should the matter not be resolved the case would have to be litigated. Attached hereto as Attachment 9. Counsel for Defendants responded on July 22, 2004. In that letter Defmdants continued to refuse to allow Plaintiffs access to the directory information. Defendants did state that they would allow Plaintiffs access to the HTLA facility, but only when the students were not present. Plaintiffs replied to this letter
8

on July 27,2004 and infonned Defendants that this offer was not acceptable. Attached hereto as Attaclnnents 10 and II. III. Argument
OPA HAS MET THE REOUIREMJ8:NTS FOR INJUNCTIVE RELIEF AND IS ENTITLED TO A PRELIMINARY INJUNCTION Injunctive relief is available when there is no adequate remedy at law and the balance of equities favors the moving party. See II Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2944 at 394 (1973 and 1992 Supp.); accord N.Y. State National Organization for Women v. Terry. 704 F. Supp. 1247, 1262 (S.D.N.Y. 1989), affd on other grounds 886 F.2d 1339 (2d Cir. 1989). A plaintiff seeking preliminary injunctive relief in this Circuit must demonstrate: "(1) irreparable hann and (2) either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking the injunctive relief." Malkentzos v. DeBuono. 102 FJd 50, 54 (2d Cir. 1996), Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992), citing Resolution Trust Com. v. Elman, 949 F.2d 624, 626 (2d Cir. 1991). See also OPA v. Annstrong, 266 F. Supp.2d at 311. Ordinarily, the purpose of the injunction is to maintain the status quo pending a trial on the merits. Abdul WaH v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985). However, occasionally injunctive relief may change the status quo of1he parties. Id. This type of injunction is mandatory, rather than prohibitory. As a result, this Circuit has required the movant to meet a higher standard, a substantial or clear showing of likelihood of success on the merits. Furthennore, a mandatory injunction may also be issued upon a showing that "extreme or very serious damage will result" from a denial of injunctive relief. Id. This heightened standard is also required, whether the injunction is manda10ry or prohibitory, where injunctive relief will
9

provide the movant with substantially all the relief sought and that relief cannot be undone even if the defendant prevails at trial on the merits. Tom Doherty Assocs., Inc. v. Saban Int'l, 60 F.3d 27,34 (2d Cir. 1995), Forest City Daly Housing, Inc. v. Town of North Hempstead, 175 F.3d 144, 149 (2d Cir. 1999).
Such is this case. OPA must show a substantial or clear likelihood of success on the merits. If OPA is granted injunctive relief, Ddendants will be required to release directory information to allow OPA to seek consents for release of information from parents and guardians of students at HTLA, Defendants will be reqwired to provide OPA access to the HTLA facilities when the students are present, and Defendants will be required to permit OPA to conduct its investigation. This relief will provide OPA with substantially all the relief sought and that relief cannot be undone even if Defendants prevail at trial on the merits.
In the present case, no adequate remedy at law exists for OPA. OPA requested access to the directory information and the facility and was denied such access. It is clear that Plaintiffs cannot be made whole through money damages and will continue to suffer irreparable harm without injunctive relief. In view ofthe federal protection and advocacy mandates, OPA has a substantial likelihood of success on the merits of its claim. Indeed, in Armstrong the Court held that
[i]n this case, there can be no dispute that Connecticut P&A has no other adequate
remedy at law, and that it will be irreparably harmed if it is 'prevented from pursuing
fully its right to access records .. .in pursuit of its duty to investigate circumstances providing probable cause to believe abuse or neglect may be occurring.' Armstrong, 266 F. Supp. 2d at 311. Armstrong is not an anomaly. Most co~rts that have considered whether to grant an injunction in the DD Act and PAlMI context have held that the injunction should be granted.
See Alabama Disabilities Advocacy Program v. Tarwarter Developmental Ctr., aft"'d, 97 F.3d
10

492 (11 th Cir. 1996),894 F. Supp. 424 (M.D. Ala. 1995)(permanent injunction); Mississippi Prot. & Advocacy Sys. Inc. v. Cotton, 929 F.2d 1054 (5th Cir. 1991)(mandatory injunction); Iowa Prot. & Advocacy Serv., Inc. v. Gerard Treatment Programs L.L.C., 152 F. Supp.2d 1150 (N.D. Iowa June 25, 2001), modified July 27,2001 (preliminary injunction); Wisconsin Coalition For Advocacy v. Czaplewski, 131 F. Supp.2d 1039 (E.D. Wisc. 2001)(preliminary injunction); Washington Prot. & Advocacy Syst.. Inc. v. State of Washington, No. C98-5401 RJB (W.D, Wash. July 26, 1999); Advocacy Ctr. v. Stald(lr, 128 F. Supp. 358 (M.D. La. 1999)(permanent injunction); Oklahoma Disability LawCtr., Inc. v. Dillon Family & Youth Servs., Inc., 879 F. Supp. 1110 (N.D. Okla. 1995)(permanent injunction); Robbins v. Budke, 739 F. Supp. 1479 (D.N.M. I 990)(permanent injunction). This Court should likewise grant Plaintiffs injunctive relief, preliminary and permanent thereafter. 1. Irreparable Harm
"Irreparable injury is the sine qua non for the grant ofa preliminary injunctive relief." United States Postal Servo v. Brennan, 579 F.2d 188, 191 (2d Cir. 1978) (citations omitted). A showing of irreparable harm is considered perhaps the single most important requirement in satisfying the standard. Pinckney V. Bd. ofEduc. of the Westburv Union Free School Dist., 920 F. Supp. 393, 399 (E.D.N.Y. 1996). Ordinarily, "irreparable harm means injury for which a monetary award cannot be adequate compensation." Loveridge v. Pendelton Woolen Mills, Inc., 788 F.2d 914,917 (2d Cir. 1986), quoting Jackson Dairy, Inc., V. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). However, a showing of irreparable injury may be presumed in certain instances of civil rights violations. Therefore, "a traditional showing of irreparable harm is not required when a plaintiff seeks equitable relief to prevent the violation of a federal statute...."
11

McKinney v. Town Plan and Zoning Comm'll, 790 F. Supp.l197, 1207, (D. Conn. 1992). See also Connecticut Hosp. v. City of New London, 129 F. Supp.2d. 123, 128 (D. Conn. 2001).
To illustrate, one such context where irreparable harm may be presumed is where there is a showing of a violation ofthe Fair Housing Act. McKinney, 790 F. Supp. at 1207, Connecticut Hosp.,129 F. Supp.2d. at 128. Although the Second Circuit has yet to rule conclusively on this issue, other circuits have. Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423 (II th Cir. I984)(National Housing Act); Baxter v. City of Belleville, III., 720 F. Supp. 720, 734 (S.D. Ill. I 989)(Fair Housing Act); Bronson v. Crestwood Lake Section I Holding Corp., 724 F. Supp. 148, 153 (S.D.N.Y. I 989)(Fair Housing Act).
Irreparable harm may similarly be presumed in the present case as in McKinney and Connecticut Hospital. OPA seeks injunctive reliefto prevent violations of the DD Act, PAlMI, and PAIR, all federal civil rights statutes. OPA, like the plaintiffs in McKinney and Connecticut Hospital, presents facts sufficient to establish that its authority under these statutes has been violated. Both the courts in McKinney and Cgnnecticut Hospital found that irreparable injury could be presumed because the plaintiffs' rights had been violated under the Fair Housing Act. McKinney, 790 F. Supp. at 1207, Connecticut Hosp.l29 F. Supp.2d at 128. The conclusions reached in those cases should apply with equal force to the application ofthe federal P&A statutes. OPA has the statutory authority to the access it seeks. Since Defendants have not provided such access, OPA's rights have been violated under its federal statutes. Thus, this Court should find that OPA is per se irreparably injured. Armstrong, 266 F. Supp.2d at 311.
As the Court concluded in Armstrong, OPA continues to suffer irreparable harm. Id. The harm that OPA will suffer should this Court deny injunctive relief is quite serious. OPA will lose its ability to fulfill its statutory duty to invc:stigate suspected incidents of abuse and neglect
12

in pursuit of its federal mandate to protect and advocate for persons with disabilities. As stated at page 2 supra, Congress drafted the DD Act because of the concern it had over instances of abuse of developmentally disabled persons sw:h as those contained in the allegations in the instant matter. To respond to this concern, Congress granted broad investigative access rights to the P&As.
Similarly, in 1985, Congress concluded that the rights of individuals with mental illness were not being protected and PAlMI, 42 U.S.C. §§ 10801-10827, was enacted. Under PAlMI, state systems have the authority to independently investigate either upon a report or when it has probable cause to believe such an act of abuse or neglect has occurred. 42 U.S.C. § 10801 and 42 C.F.R. § 51.41. Thus, under PAlMI, the DD ACT and PAIR P&A's also have authority to pursue administrative, legal, and other appropliate remedies to insure protection of individuals with mental illness. 42 U.S.C. § 10805(a)(I), lmd 42 C.F.R. § 51.31,42 U.S.C. § 15043(a)(2)(A)(i).4 Therefore, ifOPA is not permitted to conduct its investigation and have access to the HTLA facilities at times students are present and to the directory information, OPA will be irreparably harmed in its ability to fulfill its statutory mandates.
Prior to Armstrong, the Eastern District of Wisconsin recognized the serious harm to a P&A's statutory duty to investigate suspected incidents of abuse and neglect if it were deprived of its statutory right to access requested record:; in pursuit of its mandate to investigate. In Wisconsin Coalition For Advocacy v. Czaplewski, the plaintiff successfully argued that the defendant's refusal to provide records which the plaintiff was entitled frustrated its ability to carry out its mandate to investigate abuse and neglect. Czaplewski, 131 F. Supp.2d 1039, 1050 (E.D. Wisc. 2001). The court in Czapleswki cited to a variety of specific harms to its ability to
4 PAIR is based upon the DD Act, this argument is also televant with respect to PAIR. 29 U.S.C. § 794e(I)(2).
13

conduct a timely investigation. Most relevant to the instant case the court held that "[p]erhaps most importantly, the residents on whose behalf it must act bear the risk of injury or death." Id. at 1051. The court was persuaded that the defl~ndant's refusal to provide the plaintiffwith records that it was entitled to review as part of its responsibilities "in a very real and readily identifiable way, posers] a threat to the plaintiffs being able to discharge its obligations. And no amount of damages will remedy that sustained harm." Id. In the instant case, OPA is, at this time, asking only for directory information and facility access, thus making the argument in favor of disclosure even more compelling.
Defendants have prevented OPA from performing its federal mandates and from taking steps to protect these young people from abuse and neglect. OPA has the authority and the obligation to investigate the allegations regarding HTLA. Interference with OPA's efforts to carry out its federal mandate harms OPA and the individuals it is .empowered to protect. If a P&A is denied records for a claim it is investigating, it suffers direct injury to its statutory interest. Armstrong, 266 F. Supp.2d at 311, Stalder, 128 F. Supp. 2d at 362. 2. Substantial Likelihood of Success on thE' Merits
The second step of the inquiry for injunctive relief requires that the plaintiff demonstrate a substantial or clear showing oflikelihood of success on the merits, where: (a) an injunction will alter, rather than maintain, the status quo, or (b) an injunction will provide the movant with substantially all the relief sought and that relief cannot be undone even if the defendant prevails at the trial on the merits. See Saban Int'l, 60 FJd at 34 and Abdul Wali, 754 F.2d at 1025. Here, OPA has met the requirement of showing a substantial likelihood that it will prevail on the merits.
14

OPA is a federally funded protection lmd advocacy system mandated to provide protection and advocacy services for persons with disabilities. See supra at 2-3. In pursuit of OPA's federal authority to investigate suspected incidents of abuse and neglect, PAIMI and the DD Act mandate that OPA be given access to records when incidents of abuse or neglect are reported, or when the P&A makes a probable cause determination that abuse or neglect may have occurred. 42 U.S.C. § 10805(a)(4)(A), (B), 42 U.S.C. § 15043(a)«I)(I), 29 U.S.C. § 794e(f)(2). In this case the only records OPA is seeking in the directory information so OPA may contact parents and guardians to seek consent for the release of records. Defendants have violated the DD Act, PAIMI and PAIR by refusing to provide OPA with this information.
In addition, both PAIMI and the DD Act provide that P&A's shall have access to facilities in order to conduct investigations. 42. U.S.C. § 10805(a)(C)(3), 42 U.S.C. § 15043(a)(2)(H),42 C.F.R. § 51.42,45 C.F.R. § 1386.22(f) and 29 U.S.C. § 794e(f)(2). This access to facilities expressly includes the right to have access to service recipients "at all times necessary to conduct a full investigation of an incident of abuse or neglect. This authority shall include the opportunity to interview... the person thought to be the victim of such abuse." 42 C.F.R. § 51.42(b). See also 45 C.F.R. § 1386.22(f) and (g). 5 This position has been supported by case law. See Mississippi Protection and Advocacy Syst. v. Cotten, 1989 WL 224953 (S.D. Miss. Aug. 7 1989) *8, Robbins v. Budke, 739 F. Supp. 1479, 1489 (D.N.M. 1990). Neither must the P&A seek permission of a parent or guardian before speaking to service recipient. Iowa Protection and Advocacy Serv., Inc. v. Res-Care Premier, Inc. No. 4-02-CV-10012 (S.D. Iowa July 8, 2002) (unpublished), slip opinion at 7-8, attached hereto as Attachment 12, Iowa
5 While both the DD Act and PAlMI speak in terms of "residents," neither statute requires that an individual must actually reside in a facility to receive services from a P&A. See text infra at 16-17.
15

Protection and Advocacy Syst., Inc. v. Gerard Treatment Programs L.L.C., IS2 F. Supp.2d IISO, 1171 (N.D. Iowa 2001).
In 1975, prior to enacting PAIMI, Congress adopted the Developmental Disabilities and Bill of Rights Act (DO Act) to protect the human and civil rights of individuals with developmental disabilities. 42 U.S.C. §§ . ISOOI et seq. Congress later enacted PAIMI in 1986 in response to congressional hearings and investigations evidencing abuse and neglect in state psychiatric facilities. 42 U.S.C. §§ 10801-10827. Protection and advocacy systems were established to ensure that these vulnerable populations were protected. Armstrong, 266 F. Supp.2d at 309.
OPA is designated as an "eligible system." 42 U.S.C. §10802(2), 42 U.S.C. § IS043(a), 29 U.S.C. § 794e(m), Conn. Gen. Stat. § 461-10. It is mandated to investigate and pursue legal remedies for abuse and neglect of persons with disabilities, and to provide them with legal representation and advocacy services. See, ~~ 42 U.S.C. § 1080S(a)(I)(A) and (B), 42 U.s.C. IS043(a)(2)(A)(i) and (B), § 29 U.S.C. § 794e(f)(3). Federal statutes and regulations require that protection and advocacy systems have access to facilities and to records of individuals with mental illness, developmental disabilities and other disabilities. See 42 U.S.C. § 1080S(a)(C)(3), 42 U.S.C. § 10806,42 U.S.C. § IS043(a)«I)(I), 42 U.S.C. § IS043(a)«I)(H), 42 C.F.R. § SI.41-42, 4S C.F.R. § 1386.22(f) 29 U.S.C. § 'l94e(f)(2).
Courts have consistently held that the DO and PAIMl Acts require states to permit the P&A agency to operate effectively, and with broad discretion and independence in gaining access to facilities and records.6 See supra text at 9-10 and accompanying citations. The court in Cotton expounded upon this obligation as follows:
6 It was Congress' intent that the DD and PAlMI Acts b" applied in a like manner. See S.Rep.No. 109, 99th Cong., I" Sess. 3 (1986); S.Rep. 113, looth Cong., I" Sess. 24 (1987), 1987 V.S.C.C.A.N. 781, 803-04; Alabama
16

The Act not only describes the range of services to be provided by the protection and
advocacy systems, it also states that the systems must have the authority to perform
these services. The state cannot satisf:y the requirements ofthe [DD Act] by establishing a protection and advocacy system whi.;h has this authority in theory, but then taking action which prevents the system from. exercising that authority. Mississippi Prot. & Advocacy Sys. Inc. v. Cotton, 929 F.2d 1054, 1058 (5th Cir. 1991)(emphasis
in original). As the court noted in Alabama Disabilities Advocacy Program v. Tarwarter
Developmental Ctr., any other reading "would attribute to Congress an intent to pass an
ineffective law." Tarwater, 894 F. Supp. at 429. It is also clear that as a public school serving children with disabilities, HTLA is a
"facility" within the definition ofthe P&A statutes. The P&A Acts do not limit P&A access authority to any particular setting, such as residential facilities. For example, under the DD Act,
P&As have "access at reasonable times to any individual with a developmental disability in a
location in which services, supports, or other assistance are provided to such an individual, in order to carry out the purposes ofthis [Act]." 42 U.S.C. § l5043(a)(2)(H). PAlMI has a similar provision. 42 U.S.C. § 10805(a)(C)(3). Public non-residential schools fall within this definition
because they are "locations" providing "services, supports or other assistance" to children with disabilities.7 Moreover, P&As have the authOIity and duty to ensure the protection ofthe rights
of any individual with a developmental disability within a state, regardless of his or her living arrangement or location where the services are provided. 42 U.S.C. § l5043(a)(2)(A)(i).
Similarly, following amendments in 2000, the PAlMI Act extends coverage to persons residing in the community, repealing the former requirement that the individual must reside in a "facility"
Disabilities Advocacy Program v. Tarwater Developmental Ctr.. 894 F. Supp. 424, 428 (M.D. Ala. 1995), affirmed, ~7 F.3d 492 (11th Cir. 1996).
In addition to providing traditional classroom educational services to special education students school districts are required under IDEA to provide appropriate "related services" which include, but are not limited to, psychological services, physical and occupational therapy, counseling "ervices, health and social work services, and parent counseling and training. 34 C.F.R. § 300.24(a).
17

to receive P&A services. 42 U.S.C. § 10802(4)(B)(ii). Finally, as noted above, Congress expressly stated that P&As should be actively involved in monitoring and investigating the provision of education to students with disabilities. See 42 U.S.C. §§ 15001(a)(l) and 15002(2) and (10).
OPA, as the P&A, has the authority to have access to the names and contact infonnation of all the students' parents and guardians at HTLA and to have access to the facilities at times the students are present. 42 U.S.C. § 10806,42 US.C. § 15043(a)(I)(I), 42 C.F.R. §51.41 and 42, 45 C.F.R. 1386.22. Courts have found that P& A requests for infonnation such as names, address and phone numbers of individuals for whom the P&A has probable cause to believe have been or may be abused or neglected, are well within the access authority of P & As, as such infonnation is necessary in order for the P & A to effectively and fully carry out its mandate such investigations. See, e.g., Georgia Advocacy Office v. Borison, et al.. 520 S.E.2d. 701 (1999) (where Georgia P & A had probable cause to believe that drug trial participants had been abused and neglected, the appellate court remanded to superior court with instructions to release all relevant records, including the names, addresses and other contact infonnation for all relevant study participants to P & A).
Similarly, in Pennsylvania Protection & Advocacy, Inc. (PP&A) v. Royer- Greaves School for the Blind, 1999 WL 179797 (E.D. Pa. March 25, 1999), the Court held that the Pennsylvania Protection and Advocacy Inc. was entitled to a list of guardians provided by the school, even though the Protection and Advocacy Agency was unable to provide a sufficient basis of complaints or probable cause to warrant access, and the residents were not clients of the P&A. The Court ruled that even ifthere was masonable grounds for denial of records, the facility still had to provide the P & A with the names and contact infonnation for all of the
18

students' guardians. rd. at *10. The Court acl<nowledged that this was a broad power for the P&A, but also that requiring the facilities to turn over the guardians' contact information made sense. rd. In order to obtain authorization, "the P & A must be able to contact the guardian. But ifit does not have the guardians name and contact information, it cannot do so,leaving the P & A with no ability to obtain consent.8 Requiring that the facility release the contact information remedies this dilemma." rd.
Thus, in the instant case, HTLA is obligated to release the parent and guardian's contact information to OPA. While under the DO Act and PAIR, OPA has the authority to access this contact information without a sufficient basis of complaints or probable cause, in this case, OPA has received a complaint to the system, and has determined that there is probable cause. OPA has also determined there is probable cause to suspect abuse and neglect given the failure of HTLA to implement individualized behavioral intervention plans that would lessen the need to utilize restraint and seclusion. See Aff. of Ganison at ~ 18-20 and Aff. of Centeno at ~ 4-10. OPA thus meets the elements necessary to obtain the requested guardian contact information on several different legal bases.
Defendants claim they cannot release the directory information to OPA because of IDEA and FERPA. Letter of Bird to OPA at 2. Attaehment 8. However, case law holds that the P&A access authority prevails over FERPA's restrictions. The Court in Michigan Protection and Advocacy Service v. Miller, 849 F. Supp. 1202 (W.O. Mich. 1994), held that the defendant
8 The DD Act allows access to records without consent of a private non-state agency guardian as long as an effort was made to obtain consent, assistance was offered to resolve the situation and the guardian has failed or refused to act on behalf of the individual when the P&A has received a complaint or has probable cause to suspect abuse or neglect. 42 U.S.C. §15043(a)(2)(I)(iii)(I)-(V). IfOPA is able to obtain the guardian contact information, as noted above, it can still access the records even if a guardian refuses to authorize release of such records. 45 C.F.R. 1386.22(a)(3)(i)-(iii). As held in Disability Law Center v. Reil. 130 F. Supp. 2d 294 (D. Mass, 2001), OPA as the designated Protection and Advocacy agency for the State of Connecticut, has access rights to records mandated notwithstanding the "good faith" refusal of guardians to authorize the release of such records, At the cmrent time, OPA is not seeking such access,
19

could not rely on FERPA or the IDEA to deny a P&A access to records it needed to conduct an investigation. The Court noted that, "[FERPA] does prohibit federal finding to educational institutions which permit the release of records without parental consent. The DD, PAlMI and PAIR Acts, however, clearly mandate that organizations like [Michigan Protection and Advocacy System] have the authority to access DSS facilities and records in specific cases where the developmentally disabled and mentally ill individuals are involved. Defendant's reliance on the IDEA is misplaced." Id. at 1208.
Similarly, in the instant matter, as in Miller, OPA, as the Protection and Advocacy agency for the State of Connecticut, is seeking access to the facilities so that OPA can pursue its investigation of allegations of abuse and neglect at HTLA. As the P&A, OPA has a duty of confidentiality under §42 U.S.C. § 10806(a) and (b), 45 C.F.R. 1386.22(e)(1)-(3), for any information obtained by a P&A about clients or potential clients, barring any disclosure of such information to third-parties. Armstrong, 266 F. Supp.2d at 310-311. See also Czaplewski, 131 F. Supp.2d at 1052 (Court ruled that the resident!: of a nursing home would suffer no privacy harm because of confidentiality restrictions on P & As.)9 This facility access is part of the foundation of the P&A's authority, and has consistently been upheld. See Mississippi Prot. & Advocacy Sys. Inc. v. Cotton, 929 F.2d 1054 (5th Cir. 1991).
Thus, OPA is likely to win on the merits of this case because as part ofits investigation, OPA has the authority to the contact information of parents and guardians and the authority to access the facility. Additionally, as OPA is bound by the confidentiality provisions of the DD
9 Notably, there appears to be one case holding otherwise; however, both the lower court's decision and the one page order from the appellate court, affirming the trial court decillion, were unpublished with no precedential effect under the court's rules. Washington Protection and Adyocacy Svc v. Evergreen Sch. Dist, 71 Fed.Appx. 654, 2003 WL 21751827 (9th Cir. 2003) (P&A access authority did not trump FERPA's restrictions on releasing information). In addition, the Court's analysis was deficient because it did not address the fact that the regulations implementing the DD Act, 45 CFR
20

Act and PAlMI barring any third-party disclosure of such information there is no risk of any

harm to the students' privacy. Armstrong. 266 F. Supp. 2d. at 320. See also Arizona Ctr. for

Disability Law v. Allen, 197 F.R.D. 689, 692 (D. Ariz. 2000). Consequently, Defendants'

reliance on state and federal statutes and regulations dealing with disclosure of student

information is misplaced.

IV. Conclusion

For the foregoing reasons, Plaintiffs request that this Court issue a preliminary

injunction and thereafter a permanent injunction enjoining Defendants from continuing to refuse

Plaintiffs access to the HTLA facilities at times students are present and to the directory

information ofthe parents and guardians ofthe students in pursuit of its statutory obligation to

investigate suspected incidents of abuse and neglect. Furthermore, the Court should enjoin the

Defendants from engaging in similar acts in the future and order the Defendants to immediately

give Plaintiffs the access requested.

Respectfully submitted,

The Plaintiffs, The State of Connecticut Office of Protection and Advocacy For Persons with Disabilities J es McGaughey

By: NANCY

B.

AL

~B_CEoR0~..'>

Office ofProtect n and Advocacy

For Persons with isabilities

60B Weston Street

Hartford, CT 06120

Fed. Bar. No. CT 21321

(860) 297-4397

Fax: (860) 566-8714

I 386.22(i) themselves require that service providers turn over identities of guardians to P&As without any showing of probable cause.

21

Office of Protection and Advocacy For Persons with Disabilities 60B Weston Street Hartford, CT 06120 Fed. Bar No. CT21556 Fax: (860) 566-8714 (860) 297-4329 paulette.annon@po.state.ct.us
22

Hartford Public Schools

Robert Henry Superilllendem ofSchools
Dr. Barbara D. Macauley PrinciplI!
Beverly Coker and Dwight Fleming Assistant PI;ncipals .

Hartford Transitional Learning Academy
110 Washington Street Hartford, CT 06106
Phone: (860) 695-6120 Fax: (860) 722-8285 e-mail: ht:la(il'hartfordschools.org
&
150 Tower Avenue Hartford, CT 06120
Phone: (860) 695-6020 Fax: (860) 522-6219 e-mail: htla.anll€.xla.hartfordschools.ol-g

USAGE OF THERAPEUTIC PHYSICAL RESTRAINT TO MAINTAIN SAFETY

Please nole the following important information:

1.

The use of physical force (corporalllunishmenl) as a ~isciplinary measure is not permitted In the

Hartford Public Schools.

2.

In accordance with state statutes, a teadler, administrator, or other person entrusted with the care

and supervision of a student may use re21sonable physical force when he/she believes il is

necessary to (a) protect himselflherself or others from immediate physical injury; (b) obtain

possession of a dangerous instrument or control/ed substance upon or within the control of such

student; or (e) protect property from physical damage.

Legal Reference: CGS 53<>-18 (PA 89-186)
Parent: Student: Dale:
"HTLA on ithe Risel"

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

THE STATE OF CONNECTICUT OFFICE OF

)

PROTECTION AND ADVOCACY I'OR PERSONS .)

WITH DISABILITIES, and JAMES MCGAUGHEY, )

Executive Director of The State ofConnecticut Office )

Of Protection and Advocacy for Persoru; with Disabilities )

)

Plaintiffs,

)

)

)

v.

)

)

HARTFORD BOARD OF EDUCATION,

)

HARTFORD PUBLIC SCHOOLS, and

)

ROBERT HENRY, in his official capacity as the

)

Superintendent of Schools

)

)

Defendants.

)

CIVIL ACTION NO.
August 11, 2004

AFFIDAVIT OF JOSE CENTENO
Jose Centeno, being duly sworn deposes and says:
I. My name is Jose Centeno. I am over 18 years of age and I understand the obligations of an oath.
2. I have been employed as a Human Services Advocate at the State of Connecticut Office of Protection and Advocacy for Persons with Disabilities (OPA) at 60B Weston Street, Hartford, CT 06120 since 1990. My area of specialization is Special Edueation. I have provided advocacy services for over 300 families and their children receiving special education and related services throughout the state ofConnecticut.

3. I have a Bachelor of Arts from Northwest College, Kirkland, Washington. 4. As part of my work as a Human Services Advocate, I have served children
who attended the Hartford Transitional Learning Academy [HTLA] At least two of these children were restrained and secluded while at HTLA. 5. One of these children was restrained on numerous occasions. He complained that he was treated roughly, and he developed bruises as a result of the restraints. He also reported being held tightly enough to cause pain. 6. He also frequently placed in seclusion. On one occasion he complained that his armed was forced behind his back as he was escorted to the "time-out" room. 7. On information and belief, [Ie developed panic attacks as a result of the stress ofthis situation. 8. Another client also reported being restrained frequently. This child also suffered from bruising as a result of the restraints. 9. I have also heard reports that children served by Padres Abriendo Puertas, an agency housed in OPA offi,~es, also reported being restrained. One such client reported on one occasion re:ceiving rug bums on the face due to a prone restraint. On information and belief there are photographs documenting this lIlJUry. 10. In 2002, on a professionalllisit to the HTLA facility at 110 Washington Street, I observed a child who was subject to a prone 4-point restraint in the middle of the school hallway. I have no reason to believe that the practices at HTLA regarding restraint have changed in 2002.
2

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Report Cards

Grade Equivalents:

A+

97

C+

77

F

A = 92

C

=

72

A- = 90

C- =

70

59 and below

B+ = 87 B = 82 B- = 80

D+ =

67

D

=

62

D-

60

High school credits will be detennined by the guidelines of the student's district school.

Standards of Student Behavior/Beha.vior Management Plans

HTLA is a therapeutic program for students with emotional and behavioral needs who have been referred, through the PPT process, to modify their behaviors so that they may experience success in their district school. As such, we have very high standards of behavior for our students. Simply put, there are rewards for good behavior and consequences for poor behavior.

All students will participate in a Points and Levels System which will enable them to earn an increasing number of rewards and privileges as they display appropriate behavior.

Immediate consequences for any display of negative behavior may be: • Verbal correction • Loss of Point(s) on a daily point sheet; lowering of placement on the levels system
• Loss of privileges • After school make-up room for time and/or work missed • Time-out (see Time-Out section) • Physical restraint (for students losing self-control). (See Physical
Restraint section).
• Parent conference

Use of Time-Out Room

Controlled, monitored time-outs may be necessary to safely address aggressive and assaultive (verbal and physical) behaviors demonstrated by students during the school day. Time-out will be used as a last re:,ort to remediate student behavior.

- 12 -

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

THE STATE OF CONNECTICUT OFFICE OF

)

PROTECTION AND ADVOCACY FOR PERSONS )

WITH DISABILITIES, and JAMES MCGAUGHEY, )

Executive Director of The State ofComlecticut Office )

Of Protection and Advocacy for Persons with Disabilities )

)

Plaintiffs,

)

)

)

v.

)

)

HARTFORD BOARD OF EDUCATION,

)

HARTFORD PUBLIC SCHOOLS, and

)

ROBERT HENRY, in his official capacity as the

)

Superintendent of Schools

)

)

Defendants.

)

CIVIL ACTION NO.
August 11, 2004

AFFIDAVIT OF BRUCE GARRISON Bruce Garrison, being duly sworn deposes and says:
I. My name is Bruce Garrison. I am over 18 years of age and I understand the obligations of an oath.
2. I have been employed as a Human Services Advocate at the State of Connecticut Office of Protection and Advocacy for Persons with Disabilities (OPA) at 608 Weston Street, Hartford, CT 06120 for 17 years. My area of specialization is Special Education. I have provided advocacy services for over 600 families and their children receiving special education and related services throughout the state of Connecticut.

3. I have a Master's Degree in Education/Special Education from the University of Connecticut and have my teacher certification in the areas of regular and special education.
4. During the fall and winter of2003-2004 I was assigned to work as part of a team to investigate allegations of abuse and neglect at the Hartford Transitional Learning Academy. The team doing the investigation included staff from OPA as well as staff from the State of Connecticut, Office of Child Advocate (OCA).
5. On information and belief, Both OPA and OCA had received complaints alleging abuse and neglect concerning the misapplication of restraints and seclusion at the HTLA facility. OPA therefore had probable cause to conduct an investigation under our f<ederal mandates.
6. On information and belief, OPA has authority under those federal mandates to visit the HTLA facility and observe the students in their environment.
7. On February 3,2004 the Ex'ecutive Director ofOPA, James McGaughey and the Child Advocate, Jeanne Milstein, sent a letter to Robert Henry, Superintendent of the Hartford Public Schools informing him that the offices would be conducting an investigation of the HTLA programs. The letter further informed Superintendent Henry that investigators would be making their initial visit to the HTLA facility at 110 Washington Street, Hartford, CT on Tuesday, February 10 at 9:00 am.
2

8. On Tuesday, February 10,2004 I met Faith Vos Winkel, an Assistant Child Advocate from OCA, and together we walked to HTLA where we arrived at approximately 8:30 am.
9. We entered the building and went directly to the school office where we signed in. We showed the clerk at the desk our ID's and Ms. Vos Winkel informed her that we were from the Office of the Child Advocate and from the Office of Protection and Advocacy. She requested that we meet with Barbara McCauley, the principal ofHTLA.
10. We were informed that Ms. McCauley was not in her office, and we were asked to take a seat and wait until she could be contacted.
11. While we waited we observ,ed students, parents and teachers coming and going into the office. AlthoLlgh the office was a public area, we heard students referred to by name:. We also observed a large "transportation roster" in the main corridor of the school that contained student names and bus routes. Finally, when we signed into the building, next to the sign-in book on the counter in the school office was a schedule ofPPT's that were to be held that day listed by student name. There was no apparent effort to maintain the privacy of students in this public waiting area.
12. We waited for approximately 20-25 minutes. At that time Ms. McCauley entered the school office, greeted us and invited us into her office. Once there, Ms. Vos Winkel informed her that we were there to initiate an investigation into HTLA.
3

13. Ms. McCauley expressed surprise, and said that she had not been informed that we would be there that day. Ms. Vos Winkel informed her that a letter had been sent to Superintendent Henry by OCA and OPA and Ms. McCauley told us that she had not seen the letter nor been told anything about it. She then asked us what kind of linvestigation we were there to conduct.
14. Ms. Vos Winkel told her that today we wanted to look at documents relating to policies, procedures and program descriptions of HTLA. She also stated that we would be setting up subsequent visits to observe the programs at HTLA and to talk to faculty. She further informed Ms. McCauley that we would not be looking at confidential records on that day.
15. Ms. McCauley continued to express puzzlement as to why we were there. She pointed to a large stack of documents and stated that representatives from the Center for Children's AdvoGacyhadjust been there to review documents and she asked if we were connected to her investigation. We informed her that we were not and that we were conducting a separate investigation. Ms. McCauley then asked who bad made the "referrals'.' to us, and Ms. Vos Winkel told her that information was confidential, but that OCA had indeed received complaints.
16. Ms. McCauley told her that .she didn't have a problem with our being there, but that she would have to check with the "administration." She left her office and returned some 10 minutes later. She informed us that she had spoken with Ann Bird, the Assistant Corporation Counsel, she advised her not to let
4

us into the facility until they could find the letter. Ms. McCauley then asked us to leave, and we did so without beginning our investigation. 17. To this date we have still not received pennission to return to HTLA, and other than receiving certain documents we have unable to conduct our investigation of the facility. 18. As part of my work as a Human Services Advocate at OPA, I learned that students are placed at Students are also placed at HTLA without having received a functional behavioral assessment or without having a behavioral intervention plan in their re·~ord. 19. The only "plan" these students have is that contained in the "Hartford , Transitional Learning Academy, Student and Parent Handbook" at 12. This handbook sets forth "Standards of Student BehaviorlBehavior Management Plans." This general plan fails to provide a individualized plan for each particular child. 20. Based on my experience as ;a Human Services Advocate and based upon my educational experience, the failure to have an individualized behavioral intervention plan places students at risk of inappropriate restraint and seclusion, and thus at risk of abuse and neglect.
5

-t..
Bigned and sworn to before me this~"'\ day of
_-_:\.....>. =\":j="-_ _' 2004
~.~~~~-'<--Commission
6

Jeanne Milstein Child Advocate

STATE OF CONNECTICUT
OFFICE OF THE CHILD ADVOCATE 18-20 TRINITY ,sTREET, HARTFORD, CONNECTICUT 06106

February 3, 2004

Robert Henry, Superintendent
Hartford Public Schools 960 Main Street, 8th floor
Hartford, CT 06103

Re: Hartford Transitional Learning Academy

Dear Superintendent Henry:

We are writing to notify you that both the Office of the Child Advocate (OCA) and the Office of Protection and Advocacy for Persons with Disabilities (OPA) have received complaints regarding the provision of educational and related services to Hartford students being served in the Hartford Transitional Learning Academy (HTLA) programs. We will be investigating jointly alleged programmatic deficiencies and violations of student rights pursuant to authority established in sections 46a-13q and sections 46a-11 through 46a-13a of the COnilecticut General Statutes, and 42 U.S.C. § 15001 et. seq.; 42 U.S.C. § 15043; and 29 U.S.C. § 794(e) et. seq.

Investigators from OCA and OPA will be making their initial visit to the 110 Washington Street site ofHTLA on Tuesday, February 10,2004 at 9 a.m. We anticipate the investigation to include policy review, record review, interviews and direct observation of practices. We will make every effort to not disrupt the educational environment.

Thank you in advance for your anticipated cooperation. If you have any questions, please do not hesitate to call.

~e~

Jeanne Milstein Child Advocate

Jim McGaughey Executive Director, OPA

Phone: (860) 566-2106, (800) 994-0939 Fax: (860) 566-2251

www.oca.state.ct.us

jeanne.milstein@po.state.cLus

An Affirmative Action/Equal Opportunity Employer

"
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

THE STATE OF CONNECTICUT OFFICE OF

)

PROTECTION AND ADVOCACY FOR PERSONS )

WITH DISABILITIES, and JAMES MCGAUGHEY, )

Executive Director of The State ofComlecticut Office )

Of Protection and Advocacy for Persons with Disabilities )

)

Plaintiffs,

)

)

)

v.

)

)

HARTFORD BOARD OF EDUCATION,

)

HARTFORD PUBLIC SCHOOLS, and

)

ROBERT HENRY, in his official capa,~ity as the

)

Superintendent of Schools

)

)

Defendants. -

)

CIVIL ACTION NO.
August ll, 2004

AFFIDAVIT OF FAITH VOSWINKEL Faith VosWinkel, being duly sworn deposes and says:
I. My name is Faith VosWinkel. I am over 18 years of age and I understand the obligations ofan oath.
2. I have been employed at the State of Connecticut Office of the Child Advocate COCA") at \8-20 Trinity Street, Hartford, CT 06106 since August 10, 200 I. I currently am acting as an Assistant Child Advocate. In this position, my responsibilities include conducting fatality reviews/investigations regarding all unexplained unexpected child deaths and manage most of the casework related to special education issues and children with disabilities.

Previously, for approximately fifteen years, I worked at the State of Connecticut Office of Protection and Advocacy for Persons with Disabilities (OPA) at 60B Weston Street, Hartford, CT 06120 as an Assistant Program Director, supervising Human Service Advocates. For approximately four of those years, I was the Acting Program Director overseeing the investigatory and advocacy divisions. 3. I have a Bachelor's Degree from the University of Connecticut and currently am pursuing a master's degree in social work from the University of Connecticut. 4. During the fall and winter of 2003-2004, OCA and OPA began discussions conceming allegations of program deficiencies, improper restraint and seclusion techniques and safi:ty concerns at Hartford Transition Learning Academy (HTLA). Numerous high level inter-agency meetings took place to discuss the manner in which these allegations might be investigated, culminating in OCA and OPA entering into a joint investigatory agreement. 5. I was assigned as lead investigator for OCA. Mr. Bruce Garrison, a Human Services Advocate at OPA, was named lead investigator for OPA. 6. On February 3, 2004 the Executive Director of OPA, James McGaughey and the Child Advocate, Jeanne Milstein, sent a letter to Robert Henry, Superintendent of the Hartford Public Schools informing him that their offices would be conducting a joint investigation of the HTLA programs. The letter further informed Superintendent Henry that investigators would be making

their initial visit to the HTLA facility at 110 Washington Street, Hartford, CT on Tuesday, February 10,2004 at 9:00 a.m. 7. In order to conduct a proper investigation of the allegations at HTLA, it is imperative that we be allow(~d to observe students in their school environment. 8. On Tuesday, February 10,2004 I met Mr. Garrison, and together we walked to HTLA, arriving at approximately 9:00 a.m. 9. We entered the building and went directly to the school's office where we signed in. We showed the clerk at the desk our ID's and I informed her that we were from the Office of the Child Advocate and from the Office of Protection and Advocacy and requested that we meet with Barbara McCauley, the principal ofHTLA. 10. We were informed that Ms. McCauley was not presently available, and we were asked to take a seat and wait until she could see us. 11. While we waited we observed students, teachers and other adults coming and going into the office. When we signed into the building, next to the sign-in book on the counter in the school office was a schedule ofPPT's that were to be held that day listed by student name. This schedule was in plain view. We also observed, in the main corridor of the school, a large "transportation roster" posted on one of the hallway'S walls, that contained students' first and last names, home addresses and bus routes. I pointed this roster out to Mr. Garrison.

12. We waited for approximately 20-25 minutes. At that time Ms. McCauley greeted us and invited us into her office. Once there, I informed her that we were there to initiate an investigation into HTLA.
13. Ms. McCauley expressed surprise, and said that she had not been informed that we would be there that day. I informed her that a courtesy letter had been sent to Superintendent Henry by OCA and OPA notifYing him of our intention to investigate HTLA. I further stressed that this letter was a mere formality. Ms. McCauley told us that she had not seen the letter nor been told anything about it. She then asked us what kind of investigation we were there to conduct.
14. I told Ms. McCauley that today we wanted to look at documents relating to policies, procedures and program descriptions of HTLA, I also stated that we would be setting up subsequent visits to observe the programs at HTLA and to talk to facuIty. I further informed Ms. McCauley that we would not be going into confidential student records on that day, although we would like a tour of the school building.
IS. Ms. McCauley continued to express puzzlement as to why we were there. She pointed to a large stack of documents and stated that representatives of the Center for Children's Advocacy had just been there to review documents and she asked if we were connected to that investigation. I informed her that we were not and that we were conducting a separate investigation. Ms. McCauley then asked who had made the "referrals" to us, and I told her that information was confidential,. but that OCA had indeed received complaints.

16. Ms. McCauley told us that she didn't have a problem with our being there, but that she would have to check with the "administration." She left her office and returned some 10 minutes later. She informed us that she had spoken with Ann Bird, the Assistant Corporation Counsel, who advised her not to let us into the facility until they could find the letter. Ms. McCauley then asked us to leave, and we did so without beginning our investigation.
17. Prior to departing HTLA, I again tried to impress upon Ms. McCauley the parameters of the Child Advocate's statutory authority and that we did not intend to review confidential material that day.
18. To this date we still have not gained access into HTLA in order to properly conduct our investigation.
~~L ~ Wt-~ l(z~
Fa:ith VosWinkel As:,istant Child Advocate

Signed

and

sworn

to

before

me

this~()

TI\
day

of

_~'2004

~-1~~~~~~~~~~~____
Commissiolll(r 0 he Superior Court
IV\CluVeer\ ~ulo....

STATE OF CONNECTICUT
OFFICE OF PROTECTION AND ADVOCACY FOR PERSONS WITH DISABILITIES
60B WESTON STREET, HARTFORD, CT 06\20-\55\
April 12, 2004
Ann F. Bird Assistant Corporation Counsel City of Hartford 550 Main Street - Room 210 Hartford, CT 06103
Dear Ms. Bird:
It was a pleasure meeting you on Wednesday, April 7 at the offices of the Child Advocate, I am pleased to provide you with information regarding the federal statutes that govern the work of the Office of Protection and Advocacy. I am certain that after you review these statutes that you will understand that we have the authority to have access to the facilities that comprise HTLA while the students are present. Furthermore, you will come to understand that we have the authority to obtain the names of the parents and guardians of these students so that we may seek authorization to obtain their records. Put more simply, our federal authority iiUpercedes the privacy provisions of the Family Educational Rights and Privacy Act [FERPA].
As I mentioned during our meeting, there are three statutes that are relevant to the investigation being undertaken by OCA and OPA. They are the Protection and Advocacy for Individuals with Mental Illness Act [PAlMI], 42 U.S.c, §§ 10801 10807, the Developmental Disabilities Assistance and Bill of Rights Act [DD Act], 42 U,S.c, §§ 15041- 15045, and the Protection and Advocacy of Individual Rights Act [PAIR], 29 U.S,c, 794e, PAlMI is implemented by regulations at 42 CFR Part 51, and the DD Act at 45 CFR 1386.20-25. PAIR provides that it shall have the same access as the DD Act. 29 U.S.c, 794e (0(2).
As a review of the case law will show you, courts have uniformly held that the P&A access authorities require facilities to permit the P&A to operate with broad discretion and independence in gaining access to facilities and records for investigative purposes, One case that I would particularly suggest that you read is Michigan Protection and Advocacy Service, Inc. v. Miller, 849 F. Supp. 1202 (W.D. Mich. 1994). Miller addresses the right of the Michigan P&A to obtain access to a juvenile facility and to records of individuals in that facility notwithstanding objections from the facility. I would also suggest you read Office of Protection and Advocacy for Persons with Disabilities v. Armstrong, 266 F. SUpp. 2d 202 (D. Conn. 2003). This case will
Phone: 1/860-297-4300, 1/800-842-7303; TDD; 1/860-566-2102: FAX: 1/860-566-8714
INTERNET SITE: WWW.state.ct.us/opapd
An Affirnwtive ActIOn I Equal Opporfllnit\' Emplover

give you a good idea of how broadly P&A access has been construed by the one Connecticut Court that has had the opportunity to do so as yet.
Again, I am confident that after a review of the statutes and the case law, we will be permitted to conduct our investigation utilizing the full extent of our authority. Please be assured that this office will act with complete discretion and will comply with our requirements to maintain confidential all student information. I look forward to hearing from you.
Very truly yours,
'-f'f~~~nCaYgBi.ng
Cc: James McGaughey Jeanne Millstein M.J. McCarthy Amador Mojica
2

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JOHN ROSE, JR. Cmporation Counsel email: RoscJOOI@Ci.hartford.ct.us

CITY OF HARTFORD
OFFlCE OF TIlE CORPORATfON COUNSEL
550 MAIN SlREET
HARTFORD, CONNECTICUT 06103
rELEPHONE (860) 543-8575 FAX (1l6O) 722-8[[4

MAY - 5
CARL R.NASTO Deputy Corporation Counsel
email: Cnast<@ci.hartfurd.ctus
ANNF.BrRD As,gistant Corpomtion Couns e-mail: !?:k~.QQ.l@9.LJ.mtlf®:9!

Nancy B. Alisberg Managing Attorney Office of Protection and Advocacy
For Persons With Disabilities 60B Weston Street Hartford, CT 06120-1551

May 3,2004

Re: HTLA

Dear Attorney Alisberg:

Thank you for your letter of April 12, 2004. Now that I have reviewed the authorities provided in your letter and conducted additional research, I remain firmly convinced that neither these nor other legal authorities allow or require the Hartford Public Schools to provide your office with access to confidential student records or to the HTLA facility while students are attending.

Of the statutes you cited, The Protection and Advocacy for Individuals with Mental Illness Act (PAlMI) would seem closest to applying to HTLA's students. That statute, however, addresses protection and advocacy for persons with significant mental illness who are inpatient or resident in a facility, or in the process of being admitted to a facility, or incarcerated. 42 CRF Section 51.2. The HTLA students generally do not meet this definition, as they are neither inpatient nor incarcerated, at least while attending HTLA.

Even if PAlMI did apply to the HTLA students, however, PAlMI provides that P&A may have access to records only under circumstances that do not apply here. P&A may have access to records of (a) persons who are clients of P&A and who have authorized such access; (b) persons whose mental condition prevents self authorization and who have no guardian or other representative who can give authorization and where P&A has a specific complaint or probable cause as to

Attorney Nancy B. Alisberg May 3, 2004

Page 2

neglect or abuse; or (c) persons who have guardians or conservators who have not responded to requests for authorization and where P&A has a complaint or probable cause to believe there is a serious or immediate threat to health or safety. 42 U.S.C. Section 10805(a)(1X4). These conditions do not apply to HTLA students.
PAlMI also clearly does not require or permit Hartford Public Schools to provide P&A with access to the HTLA facility. Although PAlMI indicates that a P&A may "have access to facilities in the State providing care or treatment", the regulations clearly define "facility" to include only residential facilities. 42 CFR Section 51.2. HTLA is not a residential program and does not provide residential services. Students return to their parents or guardians each day after school.
Similarly, the Developmental Disabilities Assistance and Bill of Rights Act (DD Act) does not apply to HTLA students because they do not meet the definition of persons with a "developmental disability" under the Act. 42 U.S.C. Section 15002(8) defines developmental disability to mean "a severe, chronic disability of an individual that ... results in substantial functional limitations in 3 or more ... [defined] areas of major life activity." Although some HTLA students may have developmental deficits, these tend to be slight. Even if some HTLA students did had developmental disabilities, however, the DD Act's provision for access to records is very similar to PAlMI's provision, and does not apply here, in the absence of individualized authorization by a parent or adult student. See 42 U.S.C. Section 15043(a)(2)(I).
Finally, the Protection and Advocacy of Individual Rights Act (PAIR), provides funding for organizations such as yours, but does not vest your agency with additional powers or authority.
In addition, the judicial decisions that you cited, while interesting, all deal with situations very unlike HTLA's because they involve residential facilities, deceased disabled individuals, or severely disabled people who have no guardians and are incapable of seeking assistance or authorizing access to their own records by virtue of their disabilities.
HTLA's students are either capable Df advocating for themselves or providing authorization for access or have parents or other guardians who are capable of advocating and consenting to access. Nor are HTLA students and their parents so disabled or isolated that they are unable to either seek assistance or to consent to access by P&A. Obviously, if any HTLA students are clients of P&A and P&A has received authorization for release of records, we will honor those authorizations. Otherwise, Hartford may not disclose records or identity parents or guardians or

Attorney Nancy B. Alisberg May 3, 2004

Page 3

provide access to students at HTLA b'~cause to do so would violate FERPA and is not mandated by PAlMI, the DD Act or (PAIR).

Thank you for your courtesy and consideration in this regard.

cc: Robert Henry Amador Mojica Jody S. Lefkowitz Barbara Macauley James McGaughey Jeanne Millstein M.J. McCarthy

Sincerely,
~~
Ann F. Bird Assistant Corporation Counsel

1 ,

STATE OF CONNECTICUT
OFFICE OF PROTECTION AND ADVOCACY FOR PERSONS WITH DISABILITIES
60B WESTON STREET, HARTFORD, CT 06120-1551
July 20, 2004

AnnF. Bird Assistant Corporation Counsel City ofHartford 550 Main Street - Room 210 Hartford, CT 06103
Re: Access to HTLA Facilities and Directory Information
Dear Ms. Bird:
This letter will serve as a demand letter regarding the refusal of the Hartford Public Schools to allow the Office of Protection and Advocacy to have access to the HTLAfacilities and to directory information for the parents and guardians ofHTLA students.
As we informed you in our meeting on April 7, 2004 and again on April 8 by letter, OPA has state and federal authority to conduct an investigation ofHTLA. That investigatory authority includes the right to have access to the facilities and to the requested directory information. Your failure to comply with this authority constitutes a violation ofOPA's rights. We hope to b,! able to settle this matter without resorting to litigation. We are prepared to file suit in Federal District Court by July 30,2004. If the issues are not completely resolved by that date we shall proceed to litigate the matter.
I look forward to prompt reply to this letter, and I look forward to resolving the issues.

Cc: James McGaughey Robert Henry Amador Mojica

Very truly yours,
CN\ancy~B.~erb g -~ Managing Attorney

Phon(';1/~60-297-43()(), IIg()O-g42-~J03: TDD: I/H60-5M-1102: FAX: 1/860-5M-871-t
INTERNET SITE: WWw.state.ct.us/opapd
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JOHN ROSE, JR. Corporation Counsel email: RoseJ001@ci.hartford.ct.us

CITY OF HARTFORD
OFFICE OF TIlE CORPORATION COUNSEL 550 MAIN STREET
HARTFORD, CONNECTICUT 06103
TELEPHONE (860) 543-8575 FAX (860) 722-8114

CARL R. NASTO Deputy Corporation Counsel
email: Gnasto@lci.hartford.ct.us
ANNF.BIRD Assistant Corporation Counsel e·mail: Qir~Q.Ql@9i,Mrtf.Q!g&tw.!

Nancy B. Alisberg Managing Attorney State Office of Protection And Advocacy
For Persons With Disabilities 60B Weston Street Hartford, CT 06120-1551

July 22, 2004

Re: Access to HTLA Facilities and Directory Information

Dear Attorney Alisberg:

Thank you for your letter of July 20, 2.004. Your letter's claim that the Hartford Public Schools has refused the Office of Protection and Advocacy access to the HTLA facilities is inaccurate. As you know, during our meeting on April 7, 2004, Superintendent Henry made clear that access to the HTLA facility and administration (but not students) will be provided at a mutually convenient time upon request. Superintendent Henry asked that communications to arrange such access be made through Acting SupeIintendent Amador Mojica. In fact, I also confirmed this officer in a letter of April 30, 2004 to Faith Voswinkel, Protection and Advocacy's "co-investigator" from the Office of the Child Advocate.

I do not believe Protection and Advocacy has contacted Mr. Mojica to arrange iluch a meeting or access to the facility.

As I also indicated during the April 7, 2004 meeting and in my letter to you of
May 3, 2004, however, the Hartford Public Schools cannot allow access to the students themselves, absent individualized authorization, because to do so would violate its obligations under FERPA. [also provided a detailed explanation as to why the federal authorizing statutes for the Office of Protection and Advocacy do not authorize such access in my letter of May 3, 2004. You have not responded to my letter or otherwise indicated disagreement with its conclusions.

A, ttorney Nancy B. Alisberg

Page 2

July 22, 2004

Your claim that the Hartford Public Schools has denied the Office of Protection and Advocacy Directory information for the parents and guardians of HTLA students is also puzzling because that information has never actually been requested. The only documents that have been requested were requested by the Office of the Child Advocate, and those documents were provided. Even if a request had been made for a list of parents and guardians, however, FERPA also prohibits the Hartford Public Schools from providing that data. The Hartford Public Schools has not followed a practice of notii'ying HTLA parents and guardians that their names and addresses would be disclosed upon request, and has not afforded them the opportunity to prevent that disclosure. Under those circumstances, FERPA prohibits disclosure of the names and addresses of parents and guardians.
Sincerely,
~~4
Ann F. Bird Assistant Corporation Counsel
cc: Robert Henry, Superintendent of Schools Amador Mojica, Acting Assistant Superintendent Dr. Barbara Macauley, HTLA

I
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.. ~--~--~~--~~ -------~----------~-------------'--------.

STATE OF CONNECTICUT
OFFICE OF PROTECTION AND ADVOCACY FOR PERSONS WITH DISABILITIES
60B WESTON STREET, HARTFORD, CT 06 I20-1551
luly 27, 2004
AnnE Bird Assistant Corporation Counsel City ofHartford 550 Main Street - Room 210 Hartford, CT 06103
Re: Letter ofluly 22, 2004
Dear Ms, Bird:
Thank you for your response to my July 20, 2004 letter. Unfortunately, it seems that we will not be able to resolve this matter short of litigation, Our access authority to facilities expressly permits us to have accl~ss to the individuals who are in the facilities. Access to an empty school is simply far short of the access granted to us under our federal statutes, See 42 CF.R. § 51.42(b) and 45 CF:R. § 1386.22(g),
Secondly, if you reread my April 12,2004 letter, you will note that we did indeed request directory information at that time, Nevertheless, since you have stated that you will not provide that information, further discussion seems fruitless,
I therefore interpret your letter as refusing to allow us to have the access rights to which we are entitled,

Cc: James McGaughey Robert Henry Amador Mojica Peter Tyrrell

Very truly yours,
~-~
Nancy R Alis rg Managing Attorney

Phone: 1/860-297-4300, 11800-842-7303: TDD: 11860-566-2102: FAX: 1/860-566-8714
INTERNET SITE: WWW.state.ct.us/opapd
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FILED ;\::3 t·jQINES. IOWA

0211AR 22 AM 1/: 17

IN THE UNITED STATES DISTRICT COURT

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FOR THE SOUTHERN DISTRICT OF IOWA.;JJ1M:r:H DISTf,lCi d,;;

CENTRAL DMSION

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IOWA PROTECTION AND ADVOCACY )

SERVICES, INC.

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Plaintiff,

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CIVIL NO. 4-02-CV-I01l2

VS.

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RES-CARE PREMIER, INC, d/b/a VICTORIAN ACRES

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REHABILITATION, Defendant.

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ORDER

The Court has before it plaintiffIowa Protection and Advocacy Services, Inc.'s ("Iowa P & A") motion for temporary restraining order and preliminary injunction, filed contemporaneously with its complaint on February 26, 2002.1 The Court held a hearing on March 11, 2002, and defendant filed a resistance memorandum on March 13, 2002. The motion is fully submitted.

L BACKGROUND Iowa P & A is a private, non-profit corporation operating under three separate federal
statutes: the Developmental Disabilities Assistance and Bill of Rights Act of2000, 42 U.S.C. §§ 15041 et seq. ("PADD"); the Protection and Advocacy for Individuals with Mentallllness Act, 42 US.C. §§ 10801 et seq. ("PAIMI"); and the Protection and Advocacy ofIndividual Rights Act, 29 U.S.C. §§ 794e et seq. ("PAIR"). Iowa P & A's mission is to protect the rights of persons with developmental disabilities, mental illness disabilities and certain other disabilities. The State ofIowa has designated Iowa P & A as an appropriate agency for investigating allegations of abuse and neglect of person:; covered under these statutes.
Defendant Res-Care Premier, Inc. ("Res-Care") operates Victorian Acres Rehabilitation
1 Although the motion is styled as a temporary restraining order, the Court notes defendant participated in the hearing and was represented by counseL
1"I~1l1J ~.

("Victorian Acres"). Victorian Acres is II residential facility in Altoona, Iowa that cares for persons with traumatic brain injuries.
On December 30,2001, a Victorian Acres resident, to whom the Court shall refer as "r,"
was involved in an incident with a Victoriian Acres staff member. According to Res-Care, T had an outburst which required redirection from the staff member. While attempting to move T into a wheelchair, the staff member stumbled and both resident and staff member feU to the ground. Res-Care states that T sustained a "scratch on his buttock area." Victorian Acres did not immediately report the incident to the Iowa Department ofInspections and Appeals, ("DIA"), the licensing body for the State ofIowa, because it did not believe that any abuse had occurred.
In mid-January 2002, Res-Care mille the decision to terminate an employee by the name of"Irene" for alleged verbal abuse of residents. During her exit interview, Irene made a vague reference to an incident of abuse of resident T. Although Irene did not give a date on which the incident allegedly occurred, Victorian Acres administrators reviewed the records and determined Irene likely was referring to the December 30, 2001 incident. Both Res-Care, and DIA, whom Res-Care had contacted, then conducted independent investigations of the incident. The Veterans Administration, the agency responsible for payment ofT's care in the facility, also conducted an investigation. Res-Care clai ms that none of the three groups could confirm that abuse had occurred.
On or about January 29,2002, Iowa P & A received a complaint from a concerned individual that resident "T" had been physically assaulted.2 The version of events provided to Iowa P & A differs from those presented by Res-Care. According to Iowa P & A, a staff member dragged T outside of the building without his pants, which resulted in a five-inch wound to T's backside and buttocks. On January 31, 2002, David Parr, disability rights advocate and educator for Iowa P & A, contacted Victorian Acre!!, and spoke with Eric Cantu, then acting administrator.
2 Although the individual is known to plaintiff, the individual prefers to remain anonymous to defendant and/or the public to ensure no retaliatory action is taken against resident T.
2

Mr. Parr informed Mr. Cantu that Iowa P & A was authorized to investigate the alleged assault, and requested information regarding the incident. Mr. Cantu asked Mr. Parr to provide him with
a formal written request. He then told Mr. Parr that he did not have the authority to release
confidential patient records, but would gIlt back to him. Mr. Cantu stated during the hearing that after speaking with Res-Care management, he called Mr. Parr later in the day and told him Res-
Care was unable to release the information requested.
The following day, Mr. Parr, along with Marsha Gelina and Bonnie Kerns of the Iowa P & A, went to Victorian Acres to investigate the alleged assault. Mr. Cantu met the three individuals
in the parking lot. The individuals told Mr. Cantu they were investigators from the Iowa P & A, and that they had probable cause to believe that a physical assault had taken place at the facility, and planned to investigate. It appears only one of the Iowa P & A representatives produced a business card. Mr. Cantu asked the.three to leave.
Shortly thereafter, a woman named Melissa Gonzalez came out ofthe facility to speak with the individuals. 3 Mr. Parr produced Itwo form letters outlining the statutory authority on which Iowa P & A bases its right to access a facility, and purporting to announce the reason for this particular investigation. One of these letters, attached to the complaint as "Exhibit B," indicated that Iowa P & A intended to conduct a "routine monitoring" ofthe facility. The second letter, introduced during the hearing as Exhibit 1, indicated that Iowa P & A was investigating an alleged sexual assault at a Dallas County care facility. Ms. Gonzalez stated that shewould need to confer with the facility administrator and legal counsel regarding the letters. Meanwhile, Mr. Parr proceeded to take photographs of the facility grounds.
A woman identified only as "Julie" then came out of the facility and stated the three were on private property and must leave. Ms. Gelina asked if Julie understood the basis for Iowa P &A's authority, and Julie again stated the :individuals were on private property and should leave.
3 It appears that Ms. Gonzalez works in an unidentified capacity at Res-Care's corporate headquarters.
3

The three individuals left the property shortly thereafter.
Plaintifffiled its present complai~t seeking declaratory and injunctive relief on February
26, 2002. In its complaint, Iowa P & A urges this Court to declare that Res-Care's "policies, regulations, practices and conduct of interfering with and denying Iowa P &A proper and ~mediate access violates 29 U.S.C. section 794e and 42 U.S.C. section 105041, et seq," and to both preliminarily and permanently enjoin Res-Care from denying Iowa P & A its requested access. Complaint ~~ 35- 37.
In resisting Iowa P & A's requesl: for preliminary injunctive relief, Res-Care states it does not contest the agency's general authority to investigate allegations of abuse and neglect, but disputes that probable cause exists to initiate an investigation in the present case. It also seeks to
clarifY the parameters of any lawful investigation that may result.
n. APPLICABLE LAW AND DISCUSSION
A. Law Governing Preliminary Injunctive Relief In determining whether to grant preliminary injunctive relief, this Court must
consider the following factors: 1) plaintiffs' probability of success on the merits; 2) the threat of irreparable harm to plaintiffs; 3) the balance between this harm and potential harm to others if reliefis granted; and 4) whether an injunction serves the public interest. Sanborn Mfg. Co., Inc. v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d 484, 485 (8th Cir. 1993) (citing Dataphase Sys., Inc. v. C L Sys., Inc, 640 F.2d 109, 114 (8th Cir. 1981»). The same factors are used to evaluate a request for a temporary restraining order. See S.B. Mclaughlin & Co. v. Tudor Oaks Condominium Project, 877 F.2d 707, 708 (8th Cir. 1989); Sports Design & Development, Inc. v. Schoneboom, 871 F. Supp. 1158, 1162-65 (N.D. Iowa 1995).
B. Probability of Success on the Merits I. Whether Residents Covered by Iowa P & A Directives
The Eighth Circuit has held that although no one Dataphase factor is dispositive, see, e.g.,
4

Calvin Klein Cosmetics Corp. v. Lenox Lab., 815 F.2d 500, 503 (8th Cir. 1987), a plaintiff's probability of success should generally be given considerable weight. S & M Constructors, Inc. v. Foley Co., 959 F.2d 97, 98 (8th Cir. 1992); Tullos v. Parks, 915 F.2d 1192, 1196 (8th Cir. 1990). Accordingly, the Court will begin by addressing the merits ofplaintifi's complaint.
As set forth above, based on a complaint received in January 2002, Iowa P & A currently
seeks access to the records of resident T, whom it believes has been subject to neglect or abuse,
as well as those of all individuals residing in the Victorian Acres facility. Res-Care rejects Iowa P
& A's request on several grounds. Flfst, Res-Care argues that no showing has been made that the
federal authority under which Iowa P & A operates apply to the brain-injured individuals currently
residing in defendant's facility. Admittedly, the PADD and PAlMI programs are directed toward
individuals ~th developmental and mental. illness disabilities, respectively. See P ADD, 42 U.S.C. § 15041 (P ADD program created to protect the legal and human rights of individuals with developmental disabilities); PAJMI, 42 U.S.C. § 10803 (PAIMI Act designed to "protect and
advocate the rights of individuals with mental illness ...."). The PAIR program was created,
however, to provide the same protection and advocacy services for individuals with disabilities
who were otherwise ineligible for the services under either the PADD or PAlMI programs. 29
U.S.C. § 794e(a)(I)(A)-(B)(u)!
The statute does not expressly state that individuals with tranmatic brain injuries are
• Specifically, PAIR was enacted:
To protect the legal and human rights of individuals with disabilities who (A) need services that are beyond the scope ofservices authorized to be provided by the client assistance program under section 732 of this title; and (B)(i) are ineligible for proh:ction and advocacy programs IUlder subtitle C of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 [42 U.S.C.A. § 15041 el seq.] because the individuals do not have a developmental disability, as defined in section 102 of such Act; (42 U.S.C. § 6002); and (ii) are ineligible for services under the Protection and Advocacy for Mentally TIl Individuals Act of 1986 (42 U.S.C. § 10801 e/ seq.) because the individuals are not individuals with mental illness as defined in section 102 of such Act.
29 U.S.C. § 794e(a)(1 )(A)-(B)(ii).
5

covered under the PAIR program. Nevertheless, since this type of disability cannot

appropriately be categorized as mental ill[less, under PAIMl, or developmental, under PADD, the

Court finds that individuals with traumatic brain injuries fall within the scope of the PAIR

program.

2. Whether Iowa P & A is Entitled to Access Resident T's Records

Res-Care also argues that Iowa P & A has failed to fulfill the statutory directives which

would entitle it to access facility records. Specifically, Res-Care contends Iowa P & A failed to

establish probable cause to believe neglec11 or abuse had occurred. Res-Care also contends Iowa

P & A has failed to prove it contacted T's legal guardian before initiating its investigation.

Initially, the Court feels compelled to note that the Iowa P & A representatives' attempt to

enter the Victorian Acres facility on January 31,2002 was less than professional. The extensive,

intrusive nature of the representatives' request to investigate certainly carried with it the

responsibility to appropriately identiJy themselves, and to provide the facility with sufficient detail

of their probable cause to access facility records.

That having been said, however, the Court finds defendant no longer has a legal basis on

which to deny or delay access. Congress (:nacted the PAIR program to provide protection and

advocacy services to certain individuals with disabilities not covered under the PADD or PAIMl

Acts. See 29 U.S.C. § 794e(a). The PAIR statute further provides that an agency designated

under the Act shall have "the same general authorities, including access to records and program

income" as agencies designated under the PADD Act. Id § 794e(f)(2). The PADD Act provides

in tum that the desigrrated state agency, in tlus case Iowa P & A, shall have access to the records

of covered individuals in cases in which the individual, or the individual's legal guardian,

conservator or other legal representative ho:s authorized the system to have such access. 42

U.S.C. § 15043(a)(2)(I)(i)-(iii). In additior, Iowa P & A shall also have access to the individual's

records if:

(ii) (I) the individual, by reason of such individual's mental or physical condition, is unable to authorize the system to have such access;

6

(II) the individual does not have a legal guardian, conservator, or other legal representative, or the legal guardian of the individual is the State; and (III) a complaint has been received by the system about the individual with regard to the status ortreatment of the individual or, as a result of monitoring or other activities, there is probable cause to believe that such individual has been subject to abuse or neglect; and (Iii) any individual with a developmental disability in a situation in which (I) the individual has a legal guardian, conservator, or other legal representative; (II) a complaint has been received by the system about the individual with regard to the status or treatment of the individual or, as a result ofmonitoring or other activities,.there is probable cause to believe that such individual has been subject to abuse and neglect; (ill) such representative has been contacted by such system, upon receipt ofthe name and address of such representative; (IV) such system has offered assistance to such representative to resolve the situation; and
M such representative hal failed or refused to act on behalf of the individual.
42 U.S.C. § IS043(a)(2)(I)O){Iii). Because resident T has a legal guardian empowered to make
decisions regarding his care, the Court finds subsection (a)(2)(I)(iii) governs Iowa P & N.s right
of access to Ts facility records.
With regard to the issue of probable cause, the evidence shows that Iowa P & A received
a complaint that an individual entitled to protection under the PAIR Act was dragged outside in
the nIiddle of winter without his pants on by a Victorian Acres staff member, and suffered a five-
inch wound during the process. Based on this complaint, Iowa P & A deternIined it had probable
cause to believe the individual had been subjected to abuse or neglect. 29 U.S.C. § 794e(f)(2); 42
U.S.C. § lS043(a)(2)(I)(ii)(III).
In its resistance memorandum, Res·Care contends the fact that two other agencies, DIA
and the Veterans' Administration, fully investigated the incident and failed to find abuse prevents
plaintiff from establishing probable cause as a matter oflaw. This Court disagrees. First of all,
DIA had declined to release its report of the incident to plaintiff until forced to do so by court
order on March 12, 2002. See Iowa Protection & Advocacy Services, Inc. v. Rasmussen, No. 4-
02-CV-90004 (S.D. Iowa March 12, 2002} (pratt, J)'. Secondly, probable cause determinations
, Local Rule 3.1 (e) requires that parties identify on the civil cover sheet "all related cases of which the plaintiff or the plaintiff's counsel is aware that either are pending in any Iowa state or
7

are made by Iowa P & A exclusive of other investigative authorities. As reasoned by Judge Pratt in Rasmussen: "[p]rotection and advoca<:y systems are established as independent checks on state care and regulation of care for dependent adults. That independent check would become. meaningless ifa state was allowed to simply legislate away a protection and advocacy system's power to investigate by enacting restrictions." Rasmussen, slip op. at 14-16; see also Arizona
Ctr. For Disability Law v. Allen, 197 F.R,D. 689, 693 (D. Ariz. 2000) ("[A] P & A is the final
arbiter of probable cause for the purpose of triggering its authority to access all records for an individual that may have been subject to abuse or neglect. To conclude otherwise would frustrate the purpose ofthe P & A laws ...."). Based on the seriousness ofthe allegations contained in the complaint received by Iowa P & A, the Court finds Iowa P & A likely has a sound basis for determining it has probable cause for investigating the incident.
Res-Care also questions whether Iowa P & A appropriately contacted T's guardian as required by the statute. Iowa P & A asserts it did contact the guardian, and received consent to proceed with its investigation, but that the individual desires to remain anonymous. On March 20, 2002, Iowa P & A submitted to this Court in camera a document entitled, "Iowa Protection and Advocacy Services, Inc. Investigative Agrl~ent for Advocacy Services, " which is signed by T's guardian. This form confinns that T's guardian was in fact the individual who initially contacted Iowa P & A in January 2002, and that the guardian therefore had appropriate notice ofIowa P &
A's investigation. Absent a statutory or regulatory provision dictating the form of proof of
notification, the Court is satisfied Iowa P &: A has complied with section lS043(a)(2)(I)(iii) ofthe PADD statute."
federal court or were concluded in any Iowa state or federal court within the preceeding year." Recently, the Court has encountered many instances in which plaintiff's counsel have failed to list related cases. In the event of future litigation, plaintiff's counsel is urged to list this and prior court actions as related cases. After evaluating potential similarities in the legal and factual issues involved, the Court will make the appropriate judicial assignment.
• Iowa P & A argues alternatively that even ifthe Court finds it did not properly contact T's guardian, provisions contained in the PADD Act entitle it to have immediate access to facility records in situations in which it detennines "there is probable cause to believe that the health or safety ofthe
8

3. Whether Iowa P & A is Entitled to Investigate Facility as a Whole In addition to the care provided to T, Iowa P & A also seeks to investigate the care provided to Victorian Acres residents as a whole. In support ofthis request, Iowa P & A argues that Res-Care has admitted that some typ,~ of incident involving resident T did in fact occur in December 2001. Iowa P & A also notes that one staff member was found by Victorian Acres administrators to have verbally abused residents. That staffmember has since been tenninated, however, and there are no allegations of verbal abuse by other staff members. In evaluating plaintiff's request for broad-based access, the Court acknowledges that Iowa P & A is the final arbiter ofa finding ofprQbable cause to initiate an investigation. Rasmussen, slip op. at 14-16; Arizona Ctr. For Disability Law, 197 F.R.D. at 693. Nevertheless, the Court does not believe that Congress intended to allow the designated PADD, PAIMI or PAIR agency(s) unbridled llUthority to access facility records. Rather, a review ofthe legislation reveals that the statutory focus of the mandated protection and advocacy services is on alleged neglect or abuse of specific individuals. See 42 U.S.C. § 15043(a)(2)(I)(i)-(iii) (outlining procedures a PADD agency may use to gain access to individual records); see also 29 U.S.C. § 794e (f)(2) (indicating agencies empowered under PAIR shall have "the same general authorities" as set forth under the PADD Act). Unlike the situation in Gerard, ther'l is no allegation that"other residents" of [Victorian Acres] may also be in jeopardy ofbeing abused." Iowa Protection andAdvocacy Services v. Gerard Treatment Programs, L.L.c., 152 P. Supp.2d 1150, 1153 (N.D. Iowa 2001); see also Pennsylvania Protection & Advocacy, Inc. v. Royer-Greaves Schoolfor Blind, No. CIV. A. 983995, 1999 WL 179797 at *1 (ED. Pa. Mllr. 25, 1999) (protection and advocacy agency sought to investigate allegation of "systemic neglect" at school for mentally-challenged blind students).
•
individual is in serious and immediate jeopardy." 42 U.S.C. § IS043(a)(2)G)(ii)(I)-(II) (emphasis added). Although the Court does not want to diminish the seriousness ofthe allegations made against Victorian Acres, Iowa P & A's own delay in :filing the present complaint and request for preliminary injunctive relief belie any claim that it believes T is in immediate jeopardy.
9

There is no evidence in the present case to suggest any abuse is ongoing, that other residents have been affected, or that the alleged mistreatment resulted from a Victorian Acres policy or procedure. Accordingly, absent evidenc(: any resident is in immediate jeopardy, the Court declines to enable Iowa P & A to bypass the resident-specific procedures set forth under section 15043(a) ofthe PADD Act by initiating It broad-based investigation. If, after reviewing T's records, Iowa P & A representatives condude they have probable cause to believe that other covered individuals residing in Victorian Acres have been subject to abuse or neglect, they may initiate the appropriate procedures to gain access to those records as well.
4. Conclusion Regarding Probable Success on the Merits Based on the severity ofthe alleglttions made in the complaint received by Iowa P & A, the Court finds Iowa P & A is likely to succeed on the merits ofits claim that it has probable cause to believe that resident T was subjected to abuse or neglect. Nevertheless, absent evidence that any particular resident is in immediate jeopardy, or that an abusive individual remains on staff at Victorian Acres, the Court does not believe Iowa P & A is likely to succeed on the merits ofits request to obtain open access to all facility records. C. Threat of Irreparable Harm to Plaintiffs Although the Court's finding that plaintiffs are likely to succeed in part on the merits carries considerable weight, S & M ConstlUc/ors,lnc. v. Foley Co., 959 F.2d at 98, this finding does not eliminate the need to, at least cOll:lider the remaining three Dataphase factors. Calvin Klein Cosmetics Corp. v. Lenox Lab., 815 F.2d at 503. The first of the three remaining factors is whether a denial of preliminary injunctive relief will irreparably harm the plaintiff organization. Plaintiff contends the continued denial of access will irreparably harm its ability to comply with its congressional mandate to investiga.te the report of abuse of T, an individual covered by plaintifl's enabling statutes. This Court agrees, finding that although T may not be in immediate danger, plaintifl's ability to protect him from future harm is further compromised with each additional day it is denied access to facility records. See also Rasmussen, slip op. at 9;
10

Gerard, 152 F. Supp. 2d at 1168-72. As noted by the Court in Gerard:
[W]hether or not other investigatiions have already been conducted of alleged abuse and neglect ... and whethe:r or not any investigation already undertaken by [Iowa P & A] or likely to be und(:rtaken by [Iowa P & A] has or will reveal that no abuse or neglect has occurred ... [Iowa P & A] is still irreparably harmed by being prevented from pursuing fully its right to access records ... in pursuit ofits duty to investigate circumstances providing probable cause to believe abuse or neglect may be occurring.
Gerard, 152 F. Supp. 2d at 1173 (internal citation omitted). The Court therefore finds this factor
weighs in favor of granting preIiminary injunctive relief.
D. Balance of Harms
The Court must also consider the balance between this harm and potential harm to others
ifreliefis granted. Sanborn Mfg. Co., 997 F.2d at 485. In the present case, the only potential
harm cited by Res-Care in the event iIUunc:tive relief is granted is a breach ofclient confidentiality.
This argument is not persuasive, however, as the PAIR program requires Iowa P & A to conduct
all investigations in a confidential manner. Pursuant to the applicable regulations:
(a) all personal information about individuals served by any eligible system under this part, including liuts ofnames, addresses, photographs, and reconts ofevaluation, must be held confidential. (b) The eligible system's use of information and records concerning individuals must be limited only to purposes directly connected with the protection and advocacy program, including program evaluation activities ....
34 C.F.R. § 381.31 (2001). The Court therefore concludes this factor supports the issuance of
preliminary injunctive relief.
E. Whether Injunction Serves the Public Interest
Finally, the Court must consider whether the issuance of a preliminary iIUunction andlor
temporary restraining order serves the public interest. Sanborn Mfg. Co., 997 F.2d at 485. This
Court finds that it does. As noted in Rasmussen: "The PADD Act and the PAlMI Act set forth a
clear federal legislative mandate for protection and advocacy systems to review independently
care for dependent adults by state and privately run caregivers." Rasmussen, slip op. at 10. The
PAIR Act echoes this mandate for certain individuals with disabilities otherwise ineligible for
11

1-,

• \.

services under the PADD or PAlMI Acts. See 29 U.S.C. § 794e. Because plaintiff's ability to
protect T from future harm depends upon a timely investigation of the allegations at issue, the
Court finds granting preliminary relief is warranted.
Ill. CONCLUSION For the reasons outlined above, plaintiff's motion for a temporary restraining
order/preliminary injunction is granted as follows:
1. Defendant is immediately and temporarily enjoined from preventing or interfering with access by appropriately identified Iowa P & A representatives to defendant's records. concerning resident T.
2. As set forth above, if, after reviewing T's records, Iowa P & A representatives conclude they have probable cause to believ(l that other covered individuals residing in Victorian Acres have been subject to abuse or neglect, they may initiate the appropriate procedures to gain access to those records as welL IT IS FURTHER ORDERED that within ten (10) days from the date ofthis Order, the
parties should jointly contact the chambers of the Honorable Ross A Walters, ChiefMagistrate
Judge for the Southern District ofIowa, to establish an expedited briefing andlor trial schedule to resolve plaintiff's complaint for declarative and permanent injunctive relief.
IT IS ORDERE?P,
Dated thi~y of March, 2002.

12

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

THE STATE OF CONNECTICUT OFFICE OF

PROTECTION AND ADVOCACY FOR PERSONS

WITH DISABILITIES, and JAMES MCGAUGHEY,

Plaintiffs,

CASE

NO.

v

304CV1338(JCH)

.

HARTFORD BOARD OF EDUCATION,

HARTFORD PUBLIC SCHOOLS, and

ROBERT HENRY,

Defendants.

September 27,

2004

Defendants’ Objection To Motion For Permanent Injunction
Introduction Plaintiffs State of Connecticut Office of Protection and Advocacy for Persons With Disabilities (OPA) and James McGaughey (McGaughey), OPA’s executive director, seek an injunction requiring defendants Hartford Board of Education (HBOE) and Superintendent of Schools Robert Henry to allow OPA access to HBOE’s Hartford Transitional Learning Academy (HTLA) without parental notice or consent for the purpose of observing school activities and interviewing students and staff. In addition, OPA seeks an order requiring defendants to provide OPA with a list of HTLA parents and their contact information, again without their knowledge or consent.

During a conference with the Court on August 31, 2004, the parties and the Court agreed to merge proceedings on the plaintiffs’ request for a preliminary injunction with plaintiff’s request for a permanent injunction. The parties also agreed to jointly develop Stipulations of Fact for the purposes of these proceedings. Those Stipulations have been filed by the plaintiff, and are referred to herein.
In addition, defendants submit the attached Affidavit of Jody S. Lefkowitz, Affidavit of Sandra Cruz-Serrano and Affidavit of Gail Johnson in support of this Opposition.
Summary of the Facts HTLA is a public school providing a therapeutic educational program for students of all grade levels who have been identified as requiring special education and related services under the auspices of the Individuals with Disabilities in Education Act, 20 U.S.C. Section 1400 et seq. (IDEA). HTLA’s students all have an IDEA identifying label of "seriously emotionally disturbed." Most HTLA students also exhibit challenging behaviors. (Fact Stipulation No.7; Lefkowitz Affidavit, paras 4 and 5) HTLA is not a residential program and does not provide any overnight services. (Lefkowitz Affidavit para 6). HTLA students have parents or other family members who are responsible for making decisions
2

about their schooling. Some are in the legal custody of the Connecticut Department of Children and Families (DCF). (Lefkowitz Affidavit para 7).
Contrary to OPA’s claim, HTLA is not a program for students who have severe or chronic developmental disabilities that result in substantial functional limitations of major life activities. Nor is HTLA is a program for students who suffer from severe or disabling traumatic brain injuries. Students who suffer from severe or chronic developmental disabilities that result in substantial functional limitations of major life activities or from severe or disabling traumatic brain injuries are placed in other programs within HPS or in qualified and approved outside facilities, and not at HTLA. (Lefkowitz Affidavit paras 8-10).
The decision to place students at HTLA is made by the individual student’s Pupil Planning Team (PPT). Each student’s PPT team consists of the student’s parent as well as teachers, support staff and administrators who are familiar with the student’s needs. Parents are notified of all PPT team meetings, and every effort is made to afford parents and guardians a full opportunity to attend and participate in the decision making process. (Lefkowitz Affidavit para 11).
Individualized behavior intervention plans are developed for most HTLA students either before or shortly after their entry to HTLA. These plans are based on an individualized functional behavior assessment of each student’s needs. (Lefkowitz Affidavit para 12).
3

HPS has trained the HTLA teaching staff, as well as other special education teachers who work with special education students, concerning the development and implementation of behavior intervention plans. HTLA staff has also been trained to use appropriate and safe de-escalation and physical management procedures with students who lose control of their behavior. (Lefkowitz Affidavit paras 13-15).
Despite HTLA’s therapeutic environment and efforts to prevent disruptive behaviors, it is sometimes necessary to seclude students whose behavior is disruptive or dangerous and who cannot be immediately deescalated. Records are maintained of these seclusion incidents. (Lefkowitz Affidavit para 16).
In addition, it is sometimes necessary to physically restrain students whose behavior presents a risk of injury to themselves or others. Again, records are maintained of each restraint incident. (Lefkowitz Affidavit para 17). HTLA staff are trained and instructed that physical restraint is the last choice in responding to a student who loses control of his or her behavior and threatens injury to him or herself or others. (Lefkowitz Affidavit para 18). HTLA staff is also trained to use proper and safe physical restraint procedures when restraint is necessary as a last resort to prevent injury. (Lefkowitz Affidavit para 15).
4

Physical restraint is not child abuse or neglect - it is a sometimes necessary means to prevent a student from injuring himself or herself or others. (Lefkowitz Affidavit para 19).
HTLA parents are informed upon admission that their children will be restrained if necessary to avoid injury to the student or others. (Fact Stipulation Nos. 9 and 10 and Exhibits A and B).
HBOE has adopted a policy regarding student records in compliance with the Family Educational Rights and Privacy Act, 20 U.S.C. Section 1232g (FERPA). HPS does not provide notice to parents that parent names or contact information will be disclosed upon request without their individualized consent or that parents have the right to object to the release of such information without prior consent. (Cruz-Serrano Affidavit paras 4 – 5).
HPS takes allegations of child abuse or neglect in all of its schools very seriously. (Johnson Affidavit para 5). HPS’ Department of Human Resources has received reports of alleged misconduct involving potential abuse or neglect of HTLA students by staff both from HTLA administration and from DCF, whose responsibility it is to investigate incidents of potential child abuse or neglect. (Johnson Affidavit para 6).
HBOE’s Human Resources Department promptly investigates such reports of abuse or neglect. Where DCF is involved, the Human
5

Resources Department fully cooperates with DCF in a coordinated investigation. (Johnson Affidavit para 7).
DCF reports the findings of its investigations of alleged abuse or neglect to Superintendent Henry, who shares them with the Human Resources Department. (Johnson Affidavit para 8). HPS has taken and will continue to take1 corrective action in any case involving an HPS or DCF investigation that substantiates child abuse or neglect by HPS staff in any school. (Johnson Affidavit para 11).
At least over the past two years, DCF has not substantiated abuse or neglect in any incident at HTLA. In fact, as recently as June 29, 2004, DCF reported that it did not substantiate abuse or neglect in a reported incident at HTLA. (Johnson Affidavit paras 9 and 10).
In or before February 2004, Plaintiffs decided to investigate HTLA jointly with The Office of the Child Advocate (OCA). (Fact Stipulation No. 15). Plaintiff OPA and OCA sent Defendant Henry a letter dated February 3, 2004, notifying him of the investigation. (Fact Stipulation No. 16 and Exhibit D).
Representatives of Plaintiff OPA and OCA went to HTLA on February 10, 2004 announcing to the school's Principal their intentions.
1 Nearly all HPS employees are members of collective bargaining units and have the right to challenge disciplinary actions before a neutral arbitrator. In addition, the Teacher Tenure Act affords tenured teachers the right to a neutral hearing panel in all discharge cases. (Johnson Affidavit para 11).
6

Defendant Henry's representative, Principal Macauley, refused to allow Plaintiff OPA and OCA access to HTLA documents and did not allow Plaintiff OPA and OCA access to students at the HTLA facility for interviews or observations. (Fact Stipulation No. 17).
Plaintiff OPA, OCA and Defendant Henry, and representatives of each, met on April 7, 2004 to discuss the matter. At the meeting, Defendant Henry agreed to and later did provide Plaintiff and OCA with requested documents that did not contain personally identifiable information derived from HTLA student records. Defendant Henry, however, refused to provide OPA or OCA with the names, addresses and telephone numbers of parents of HTLA students. (Fact Stipulation No. 18).
At that meeting, Defendant Henry's representatives explained to plaintiff and OCA during the April 7, 2004 meeting their belief that the Family Educational Right to Privacy Act [FERPA], 20 U.S.C. Section 1232g, prevents the disclosure of student records and access to students for interviews and observations, absent parent consent. (Fact Stipulation No. 19).
Defendants' representatives and Plaintiffs' representatives exchanged correspondence concerning the matter during the following months, but were unable to come to a meeting of the minds. (Fact Stipulation No. 22 and Exhibits E, F, G, H, I and J). This suit followed.
7

In the meantime, on August 30, 2004 HPS delivered documents to OPA’s co-investigator, OCA, pursuant to a subpoena issued by OCA for HTLA secondary level student education records. (Lefkowitz Affidavit para 20). See Exhibit K. Included in the records that were provided were student Individualized Education Plans that identify the name of each student’s parent(s) along with address and telephone number. Also included among the documents provided pursuant to the subpoena were records of student restraint and seclusion at HTLA. (Lefkowitz Affidavit para 21).
Argument A. Standard for Issuing Permanent Injunction OPA’s burden here is to establish “the absence of an adequate remedy at law and irreparable harm if the relief is not granted” and that the balance of equities tips in favor of the moving party. N.Y. State Nat’l Org for Women v. Terry, 886 F.2d 1339, 1362 (2d Cir. 1989); Sierra Club v. Hennessey, 695 F.2d 643, 647 (2d Cir. 1982). In addition, because it is seeking a permanent injunction, OPA must show actual success on the merits of its claims. Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12 (1987). B. OPA Cannot Establish Success On the Merits
1. FERPA and IDEA Prohibit The Requested Access
8

Two federal statutes, the Family Educational Rights to Privacy Act,
20 U.S.C. Section 1232g (FERPA) and the Individuals with Disabilities in
Education Act, 20 U.S.C. Section 1400 et seq (IDEA) prohibit public school
systems from providing the information and the access requested by OPA without individualized and specific parent2 consent.
FERPA broadly mandates that educational institutions receiving
federal funding must implement a strictly defined policy to maintain the
confidentiality of “education records” and “information contained therein.” With exceptions that do not apply here3, schools may allow disclosure only
with specific parent consent.
FERPA provides, in part:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of educational records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a)) of students without the written consent of their parents to any individual, agency, or organization, other than to the following . . .”
20 U.S.C. Section 1232g(b).
2 For ease of discussion, the term “parent” consent is intended to include also the consent of a student’s legal guardian or an adult student. 3 FERPA allows disclosure without parental consent to school officials with an educational need for the information, school systems to which the student seeks to enroll, and the state education department for compliance purposes, among other things. 20 U.S.C. Section 1232g(b)(A) through (J). None of those exceptions applies in this case, however.
9

“Directory Information” is defined in paragraph (5) of subsection (a)
as follows:
(A) For the purpose of this section the term “directory information” relating to a student includes the following: the student’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student. (B) Any educational agency or institution making public directory information shall give public notice of the categories of information which has designated as such information with respect to each student attending the institution or agency and shall allow a reasonable period of time after such notice has been given for a parent to inform the institution or agency that any or all of the information designated should not be released without the parent’s prior consent.
“Education records” are defined broadly:
[T]hose records, files, documents and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a
person acting for such agency or institution
20 U.S.C. Section 1232g(a)(4)(A).
“Personally identifiable information” is defined in the FERPA
implementing regulations as follows:
Personally identifiable information includes, but is not limited to: (a) The student’s name; (b) The name of the student’s parent or other family member; (c) The address of the student or the student’s family; (d) A personal identifier, such as the student’s social security number or student number;
10

(e) A list of personal characteristics that would make the student’s identity easily traceable; or (f) Other information that would make the student’s identity easily traceable. 34 C.F.R. Section 99.3. HBOE has not notified parents, as FERPA would require for disclosure of “directory information,” that their names or contact information is subject to disclosure without consent4. (Cruz-Serrano Affidavit para 5). IDEA also mandates that the Secretary of Education “in accordance with the provisions of [FERPA] . . . assure the protection of the confidentiality of any personally identifiable data, information, and records collected or maintained by . . . local educational agencies pursuant to” . . . IDEA. 20 U.S.C. Section 1417(c). The OPA’s request for the names and contact information of HTLA parents as well its request for access to HTLA for interviews and observations of students and staff run afoul of the mandates of FERPA and IDEA. It is beyond dispute that the names and addresses and telephone numbers of HTLA students’ parents constitutes “personally identifiable” information concerning students that is contained in their “education records.” Even if HPS could legally disclose this information as
4 Section 1232g(a)(5) defining “directory information” suggests that an educational institution may not legally designate parent names and addresses as “directory information” subject to disclosure without specific consent.
11

“directory information,” it has not provided the mandatory notice to parents of its intention to do so and therefore may not disclose the information without parental consent.
In addition, the access that OPA requests to the HTLA school building for the purpose of observing and interviewing students and staff necessarily will involve disclosure of “personally identifiable” information contained in the students’ education records at the least because all of the students at HTLA are identified as requiring special education or related services under IDEA - a “personally identifiable” fact contained in their education records. Without question, any observation or interview of students or staff will also reveal or disclose student names or other personal characteristics that would make the students easily traceable.
Necessarily, such access would also reveal the students’ specific special education identification as “seriously emotionally disturbed” since all HTLA students fall within this category. In all likelihood, such access would also involve disclosure of the students’ specific special education programs, including for instance provisions for therapeutic services, language services and individual behavior intervention plans.5 Information reflected in the various evaluations and assessments of HTLA students’ academic, cognitive and emotional strengths and weaknesses would likely
5 Indeed, from OPA’s Memorandum in Support of Motion for Preliminary Injunction, it appears that OPA is particularly interested in the students’ individual behavior intervention plans. (Plaintiff’s Memorandum, p. 6).
12

be revealed through such interviews. The requested interviews would also likely involve disclosure of students’ academic achievement and disciplinary history.
All of this information – likely to be revealed through the requested access – is personally identifiable information contained in students’ education records and is protected from disclosure without parental consent under FERPA and IDEA.
Superintendent Henry made these facts clear to OPA and its coinvestigator OCA both during their meeting on April 7, 2004 and in subsequent correspondence. (Fact Stipulation No. 21 and Exhibits E, F, G, H, I and J)
2. OPA’s Statutory Jurisdiction Does Not Encompass The Requested Access Or Override FERPA and IDEA Mandates
OPA argues that its federal authorizing statutes, the DD, PAIMI and PAIR Acts6 (OPA Acts) permit the access it seeks and “trump” FERPA and IDEA. Both aspects of this argument are incorrect. None of the OPA Acts authorize the requested access in this case, and even if they did, FERPA and IDEA clearly take precedence.7
6 42 U.S.C. Sections 15041 et seq (DD Act); 42 U.S.C. Sections 10801 et seq (PAIMI Act); 29 U.S.C. Section 794e (PAIR Act). 7 Plaintiffs also seem to concede FERPA’s and IDEA’s role in their request when they argue that they will use parent names to obtain individualized consent for access to student records. See Plaintiff’s Memorandum, p. 10. The
13

OPA’s claim that the OPA Acts override or “trump” FERPA and IDEA essentially argues that the OPA Acts work a repeal by implication of FERPA and IDEA. The law is clear that when two federal statutes appear in conflict, the courts will only rarely find such a repeal by implication:
[T]he only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable. Morton v. Mancari, 417 U.S. 535, 550 (1974). The rarity with which [the Court] has discovered implied repeals is due to the relatively stringent standard for such findings, namely, that there be an irreconcilable conflict between the two federal statutes at issue.” Matsushita Elect. Industrial Co. v. Epstein, 516 U.S. 367, 381 (1996). This is not an appropriate case for implied repeal because the various federal statutes can be harmonized. As discussed below, the OPA Acts simply do not authorize the sweeping demands of OPA in this case. It is instructive and significant that, according to OPA’s papers8 and as far as defendants have been able to ascertain, the only court in the United States to address the precise issue presented here – whether the OPA is allowed access to personally identifiable information contained in public school education records without parental consent – has decided that OPA is not allowed such access.
argument is circular, however, because the parent names are also protected information under FERPA and IDEA. 8 Plaintiff’s Memorandum, p. 20.
14

In Washington Protection and Advocacy System, Inc. v. Evergreen School District, C03-5062 FDB (W.Wash 2003) (attached), the district court denied the Washington OPA’s request for a preliminary injunction seeking student names and parent names and contact information for those participating in a special education program operated by the Evergreen public school district. As here, the Washington OPA claimed that it had probable cause to suspect abuse or neglect in the program based on complaints about a student’s special education program.
The Washington court denied the requested injunction in a thoughtful opinion noting, among other things, that the court “is not sufficiently satisfied that the [OPA Acts] override FERPA and IDEA.” (Id. at p. 4). The Court went on to find that the OPA had not demonstrated sufficient probable cause to believe that the school system was abusing or neglecting any student and that disclosure of contact information for all students in the special education program was not warranted. (Id. at p. 5 and 6.)
The Washington court relied in part on staff comments conceding that the DD Act does not supercede FERPA in a discussion of proposed implementing regulations:
Comments: several commenters requested including regulations to indicate that the provisions regarding access of records under the Developmental Disabilities Act and regulations take precedence over other Federal statutes and regulations. If that was not possible, commenters wanted
15

language to specifically reference the Federal Education Rights and Privacy Act (FERPA) which sets out certain restrictions on the release of records by educational institutions (20 U.S.C. 1232(g)) [sic]; 34 CFR part 99 Response: We did not include such a provision because such a requirement goes beyond the authority of the Developmental Disabilities Act and these regulations. However, we have included language comparable to the PAIMI provisions at Section 1386.22(i) on Delay or Denial of Access. If a system is denied access to facilities and its programs, individuals with developmental disabilities, or records covered by the Act or these regulations, it shall be provided promptly with a written statement of reasons, including, in the case of a denial for alleged lack of authorization, the name and address of the legal guardian, conservator, or other legal representative of an individual with developmental disabilities.9
61 FR 51142-01
The only other court to approach addressing the issue was the
district court in Michigan Protection and Advocacy Service, Inc. v. Miller,
849 F.Supp. 1202 (W.D.Mich 1994). There, the Michigan OPA sought
access to residential facilities for developmentally disabled and mentally ill
individuals operated by the Michigan Department of Social Services.
Although the Michigan OPA was not, as here, seeking information
contained in education records, but instead access to individuals in a
residential program, the district court held that such access was not barred
by IDEA.
9 The regulations to which staff refer do not purport to require public school systems to disclose the names or addresses of parents. See discussion at p. 2829 below.
16

Noting that “Section 1232g(b) [FERPA] does prohibit federal funding to educational institutions which permit the release of records without parental consent,” the court held that the DD and PAIMI Acts authorized the OPA access to the state facility. Michigan Protection & Advocacy Services Inc. v. Miller, 849 F.Supp. 1202, 1208 (W.D. Mich. 1994).
The Miller case is readily distinguishable from this situation because the facilities involved were residential programs, not educational institutions. The request apparently did not even implicate education records or personally identifiable information contained in education records governed by FERPA or IDEA, but instead sought access to individuals in residential programs. Moreover, and unlike HTLA, the residential facilities there housed individuals with developmental disabilities.10
3. The DD Act Does Not Apply To HTLA Students The DD Act would not authorize OPA’s requested access to the HTLA students or information concerning their parents even if there was probable cause to suspect abuse or neglect because HTLA students are
10 The DD Act, as discussed more fully below, does not apply to HTLA’s students because they do not suffer from developmental disabilities as defined there. Unlike the PAIMI Act, which addresses individuals with mental illness and arguably does apply to HTLA students, the DD Act authorizes broader investigatory “access” to clients without parental or guardian consent. See discussion at page 23 below.
17

not developmentally disabled as defined in the Act. The DD Act, at 42
U.S.C. Section 15043(a)(2) authorizes the OPA to:
(B) investigate incidents of abuse and neglect of individuals with developmental disabilities if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred.
42 U.S.C. Section 15043(a)(2)(emphasis added).
The DD Act further authorizes OPA to:
(H) have access at reasonable times to any individual with a developmental disability in a location in which services, supports, and other assistance are provided to such an individual, in order to carry out the purpose of this part;
(I) have access to all records of – (i) any individual with a developmental disability who is a client of the system [with consent of client or guardian]; (ii) any individual with a developmental disability [if individual cannot consent and does not have a guardian and a complaint has been received or there is probable cause to suspect abuse or neglect]; (iii)any individual with a developmental disability [if guardian fails or refuses consent and there is a complaint or probable cause to suspect abuse or neglect after the OPA offers assistance].
42 U.S.C. Section 15043(a)(2)(emphasis added).
“Developmental disability” is defined by the DD Act as follows:
(A) In general. The term “developmental disability” means a severe, chronic disability of an individual that – (i) is attributable to a mental or physical impairment or combination of mental and physical impairments; (ii) is manifested before the individual attains age 22 (iii) is likely to continue indefinitely;
18

(iv) results in substantial functional limitations in 3 or more of the following areas of major life activity: (J) Self-care. (K) Receptive and expressive language. (L) Learning. (M) Mobility. (N) Self-direction. (O) Capacity of independent living. (P) Economic self-sufficiency; and
(v) reflects the individual’s need for a combination and sequence of special, interdisciplinary, or generic services, individualized supports, or other forms of assistance that are of lifelong or extended duration and are individually planned and coordinated.
As the Lefkowitz Affidavit establishes, the HTLA students are not individuals with developmental disabilities or traumatic brain injuries as defined by the DD Act. Students who do have developmental disabilities are provided services at sites other than HTLA. (Lefkowitz Affidavit paras 8 - 10).
Accordingly, the DD Act simply would not authorize OPA access to either HTLA students or their records even if other required conditions for access were met.
4. The PAIMI Act Does Not Authorize the Requested Access
19

The PAIMI Act, upon which OPA also relies, comes closer to covering HTLA students11, but provides narrower investigatory power than the DD Act, and clearly does not authorize the access requested here.
11 Although their qualifying identification is “seriously emotionally disturbed” which carries a different definition under IDEA than the PAIMI Act’s definition of “mental illness,” most HTLA students probably qualify as individuals with mental illness for PAIMI’s purposes.
20

The PAIMI Act authorizes OPA to:
(1)(A) investigate incidents of abuse and neglect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred;
. . . (3) have access to facilities in the State providing care or
treatment;
(4) in accordance with section 10806 of this title, have access to all records of – (A) any individual who is a client of the system if such individual, or the legal guardian, conservator, or other legal representative of such individual, has authorized the system to have such access; (B) any individual . . . – (i) who by reason of the mental or physical condition of such individual is unable to authorize the system to have such access; (ii) who does not have a legal guardian, conservator, or other legal representative, or for whom the legal guardian is the State; and (iii)with respect to whom a complaint has been received by the system or with respect to whom as a result of monitoring or other activities (either of which result from a complaint or other evidence) there is probable cause to believe that such individual has been subject to abuse or neglect; and (C) any individual with a mental illness, who has a legal guardian, conservator, or other legal representative, with respect to whom a complaint has been received by the system or with respect to whom there is probable cause to believe the health or safety of the individual is in serious and immediate jeopardy, whenever – (i) such representative has been contacted by such system upon receipt of the name and address of such representative; (ii) such system has offered assistance to such representative to resolve the situation; and (iii)such representative has failed or refused to act on behalf of the individual.
42 U.S.C. Section 10805(a)(emphasis added).
21

OPA’s implementing regulations define “facility” for the purpose of Section 10805(a)(3)’s provision for “access to facilities in the State” as follows:
Facility includes any public or private residential setting that provides overnight care accompanied by treatment services. Facilities include, but are not limited to the following: general and psychiatric hospitals, nursing homes, board and care homes, community housing, juvenile detention facilities, homeless shelters, and jails and prisons, including all general areas as well as special mental health or forensic units. 42 C.F.R. Section 51.2 A review of the law makes plain that OPA is not authorized to have the requested access. First, OPA may not have access to the HTLA facility because HTLA clearly is not a “facility” for the purposes of Section 10805(a)(3) - HTLA is not a residential setting and does not provide overnight care. (Lefkowitz Affidavit para 6). Second, OPA may not have parent name or contact information for any individual student under subpart (A) of Section 10805(4) because OPA has not produced authorization for disclosure of such record information from any OPA client. Third, OPA may not have the name or contact information for any individual HTLA student under subpart (B) of Section 10805(4) because HTLA students have parents or others who are authorized to make decisions about their schooling. (Lefkowitz Affidavit para 7).
22

Fourth, OPA may not have the name or contact information for any individual HTLA parent under subpart (C) Section 10805(4) because it has not demonstrated that it has received a complaint with respect to any individual student and has not claimed or demonstrated that the health or safety of such individual student is “in serious and immediate jeopardy”12 and has not demonstrated that it has contacted such student’s representative, offered assistance, and that such representative has failed to act.
Finally, OPA may not have the parent name or contact information for HTLA students in general because Section 10805(a)(4) manifestly does not authorize disclosure in the face of generalized complaints or probable cause that are not specific to particular individuals. Each subpart of Section 10805(a)(4) makes reference to complaints regarding individuals and probable cause concerning individuals. The Act contains no provision for generalized access to records or the confidential information contained in them.
In summary, like the DD Act, the PAIMI Act simply does not authorize the access or disclosure that OPA seeks here. Even if the evidence supported OPA’s claim that it has probable cause to suspect that
12 OPA’s claim that some students have been injured during restraint, or have been secluded inappropriately or do not have individual behavior intervention plans is a far cry from evidence of serious and immediate jeopardy to safety or health.
23

HTLA students are being subject to abuse or neglect, OPA’s investigatory authority does not extend so far as it claims.
Significantly, Congress has provided more limited investigatory powers under the PAIMI Act than under the DD Act. While investigators under the DD Act may have access to any “location in which services, supports, and other assistance are provided,” (42 U.S.C. 15043(a)(2)) the PAIMI Act limits such access to “residential setting[s] that provide overnight care . . .” (42 C.F.R. Section 51.2). In addition, the PAIMI Act limits access to records without consent and where there is a guardian who does not cooperate to situations in which there is a threat that the “health or safety of the individual is in serious and immediate jeopardy.” (42 U.S.C. Section 10805(a)(4)(c)).
5. The PAIR Act Does Not Authorize The Requested Access
OPA’s final claim to authority is based on the PAIR Act. The Pair Act is a funding statute for OPA to provide services for individuals with a broader range of disabilities than those identified under the DD Act or the PAIMI Act. It manifestly does not mandate access to confidential education records or the information contained in them for such individuals.
24

6. HTLA Students Are Not Subject To Abuse or Neglect OPA’s investigatory powers under each of the OPA Acts hinges on the existence of probable cause to believe that an individual is being subjected to abuse or neglect. Here, the claim is based on the allegation that some HTLA students and parents have reported inappropriate physical restraint or seclusion and that some students have claimed physical injury as a result of restraint. In addition, OPA makes the unsupported allegation that HTLA students have not been adequately assessed before entering HTLA and/or that they are not provided with individualized behavior intervention plans. Defendants dispute the factual assumptions underlying all of these arguments. While it is true that some HTLA students have been physically restrained and/or secluded, there is no evidence that these steps were taken inappropriately. To the contrary, the investigations that have been conducted by DCF, a state agency charged with the responsibility to investigate reports of abuse or neglect, indicate otherwise. DCF has not substantiated abuse or neglect at HTLA in at least two years. (Johnson Affidavit para 9). It goes without saying that HPS takes allegations of alleged abuse or neglect very seriously. Although there have been no recent substantiated cases at HTLA, HPS certainly would take corrective action with any employee involved in such an incident. (Johnson Affidavit 11).
25

Nor can an inference be drawn that the mere existence of a restraint or seclusion constitutes abuse or neglect. Restraint procedures are sometimes necessary - as a last resort - to prevent injury. Seclusion is sometimes necessary to remove a child whose behavior is disruptive or dangerous and cannot be de-escalated. HTLA parents acknowledge that restraint may be necessary for their child upon admission to the program. (Lefkowitz Affidavit paras 16 – 19; Stipulation of Fact Nos. 9 and 10 and Exhibits A and B).
HTLA staff is trained in physical management and de-escalation procedures, as well as appropriate measures for physical restraint. Records are maintained of each incident of restraint or seclusion. This is not abuse or neglect. (Lefkowitz Affidavit paras 13-15 and 18 and 19).
In addition, the unsubstantiated claim that students are placed at HTLA without adequate evidence or assessment of their needs is belied by the facts. Each student’s placement at HTLA is determined by a team consisting of the student’s parent and school staff who are knowledgeable about the student’s needs. Parents are afforded every opportunity to participate in placement decisions. (Lefkowitz Affidavit para 11).
Finally, the majority of HTLA students do have individualized behavior intervention plans. These plans are based on a functional behavioral assessment of that student’s needs. (Lefkowitz Affidavit para 12). Thus, although all HTLA students are expected to comply with certain
26

minimum standards of conduct (Exhibit C), their behavior intervention plans are individualized. (Lefkowitz Affidavit para 12).
The evidence presented by OPA does not rise to the level of probable cause to suspect “abuse” or “neglect” as defined in the PAIMI or DD Acts.13 Although HTLA students have been restrained and some have claimed minor injury, this does not establish either abuse or neglect restraint is sometimes necessary precisely in order to prevent injury! Nor would the absence of behavior intervention plans or adequate assessments legally constitute or abuse or neglect, should they be proven.
Moreover, even if OPA had demonstrated that an individual HTLA student was subjected to abuse or neglect, this would not establish a generalized “probable cause” as to the entire school. Both the PAIMI and DD Acts speak only of probable cause to access records of individuals, not groups. Indeed, the decisions cited by OPA in support of a generalized access to information stand for just the opposite. In Pennsylvania Protection and Advocacy, Inc. v. Royer-Greaves School for the Blind, 1999 WL 179797 (E.D.Pa 1999), the court held that alleged general complaints
13 The definition of “abuse” is “any act or failure to act which was performed or which was failed to be performed, knowingly, recklessly, or intentionally, and which caused or may have caused, injury or death to an individual . . . .” 42 C.F.R Section 51.2 (PAIMI Act); 45 C.F.R. Section 1386.10 (DD Act). The definition of “neglect” is “a negligent act or omission by an individual responsible for providing treatment or habilitation services which caused or may have caused injury or death to an individual . . . or which placed an individual . . at risk of injury or death.” (Id.)
27

of unsafe conditions did not constitute sufficient individualized probable cause for release of individual records)14.
In Georgia Advocacy Office v. Borison, 520 S.E. 2d 701 (1999), the court held that an allegation that physicians conducted a fraudulent drug study was sufficient to support access only to records of particular study participates who fit within the OPA Act’s guidelines and who were subject to abuse or neglect. There, the court ordered the trial court to identify such individuals through an in camera review of the drug study records, and did not allow plaintiffs access to all records. Georgia Advocacy Office v. Borison, 520 S.E. 2d 701, 784 (1999).
7. OPA Has No Authority To Access Parent Names Or Contact Information
OPA’s claimed right to parent “directory information” is also beyond its authority. Ironically, the term “directory information” comes only from FERPA, which manifestly does not include parent names or contact information in its definition of that term. 20 U.S.C. Section 1232g(a)(5)(A). Washington Protection and Advocacy System, Inc. v. Evergreen School District, C03-5062 FDB (W.Wash 2003) (attached), p. 5 (parent names and contact information is not “directory information” under FERPA.)
14 Although the Royer-Greaves case also directed the defendant to provide a list of all guardians and contact information under the DD Act and its regulations, that portion of the decision is not applicable here. OPA is not entitled to parents names or addresses under the similar provisions of the PAIMI Act. See discussion at pages 28-29 below.
28

Moreover, even if it could, HBOE does not notify parents that their names or contact information will be disclosed without consent or provide an opportunity to prevent such disclosure. (Cruz-Serrano Affidavit para 6). Without such notice, HBOE may not disclose even directory information.
None of the OPA Acts mentions “directory information” or directs that such information be disclosed to OPA. Nor do any of the OPA Acts make any provision for disclosure of parent names or contact information.
The PAIMI Act’s regulations do state that “the P&A system shall be provided promptly with . . . in the case of a denial [of access to facilities or records covered by the Act] for alleged lack of authorization, the name, address and telephone number of the legal guardian, conservator, or other legal representative of an individual with mental illness.” C.F.R. Section 51.43. This regulation, however, has no application here because the access requested is not authorized under the Act, as discussed above.
In addition, as a general matter, HTLA parents are not the “legal guardian, conservator, or other legal representative of an individual with mental illness” as that term is defined in the regulations.15 Most HTLA students live with parents or other family members. (Lefkowitz Affidavit
15 42 CFR Section 51.2 states: “[L]egal guardian, conservator, and legal representative all mean an individual whose appointment is made and regularly reviewed by a State court or agency empowered under State law to appoint and review such officers, and having authority to consent to health/mental health care or treatment of an individual with mental illness. . . .”
29

para 7). For the remainder, OPA is free to seek consent from DCF for those students who are in the custody of DCF.
The PAIMI regulations clearly contemplate disclosure under situations that are very different than presented here – where individuals with mental illness are resident in institutions, have been determined to be incompetent and are under the guardianship of court appointed conservators or similar representatives. Unlike HTLA students who go home to families every day, the individuals contemplated by the regulations are at the mercy of their conservators because they cannot help themselves and are isolated from family, community and advocates like OPA.
HTLA students do not have “guardians” as contemplated in the regulation. They are children in the custody of their parents or other family members. They are not incompetent. They are not isolated. They are not helpless or at the mercy of “guardians.” Section 51.43 surely was not intended to address the situation of the HTLA students who have access to many resources, including advocates like OPA, to address potential incidents of abuse or neglect.
C. Adequate Legal Remedies Are Available; No Irreparable Injury Even if OPA could establish success on the merits of its claims, it cannot demonstrate the irreparable injury or the absence of an adequate remedy at law to protect students from abuse or neglect. Connecticut’s
30

child abuse and neglect laws, IDEA and other protections are available to protect students from alleged abuse and neglect.
Significantly, and unlike the severely disabled people who are isolated in residential treatment facilities for the mentally ill or developmentally disabled, the HTLA students are neither incompetent nor isolated. They go home every day to their parents and families. The students and their parents have access to community resources, like the OPA, the Hartford Police department and lawyers and advocates who can and will protect their interests.
The HTLA students and their parents have a broad array of remedies available to them in the event that they are abused or neglected. They can pursue criminal remedies for assault. See C.G.S. Section 53a59 (criminal assault). They can sue the school district for negligence. See Purzycki v. Town of Fairfield, 244 Conn. 101 (1998)(negligence action against school system). They can file a complaint with the Connecticut Department of Education to enforce the education laws. See C.G.S. Section 10-4b.
In addition, IDEA provides comprehensive procedural and substantive protections for special education students. See 20 U.S.C Section 1400 et. seq. The procedural safeguards available under IDEA include the right to examine records, the right to an impartial hearing to determine whether a student’s program is being implemented appropriately
31

or whether independent evaluations are necessary, the right to appeal, and the right to file a complaint with the United States Department of education. Notably, attorneys’ fees are also available to the prevailing party in administrative and litigation matters brought under IDEA. 20 U.S.C. Section 1415.
The United States Department of Education has implemented an extensive network of regulations to enforce IDEA. 34 C.F.R. Part 300. State law also protects special education students (C.G.S Section 10-76a et seq) and sets forth an administrative procedure for review of complaints regarding special education programs. C.G.S. Section 10-76h.
Any parent of an HTLA student who believes that the student’s program or placement at HTLA is not appropriate or is not based on sufficient evaluative data or is not being implemented correctly, may pursue adequate administrative remedies under IDEA. Any claim that a student has been inappropriately restrained or secluded may be addressed and remedied through the IDEA procedures. If a student requires an individualized behavior intervention plan and one has not been provided, the parent may pursue IDEA remedies. If a student has not been adequately assessed before placement at HTLA, the parent may pursue IDEA remedies.
In addition, Connecticut state law establishes a strict mechanism for investigating and remedying incidents of child abuse and neglect in,
32

among other places, public schools. C.G.S. Section 17a-101 et seq. Nearly all public school employees are mandated to report suspected child abuse or neglect to DCF. Id. Students, parents or others who suspect abuse or neglect are also free to report incidents to DCF. Penalties are imposed for failure of mandated reporters to report suspected abuse, and employers are prohibited from discriminating against those who make reports. C.G.S Section 17a-101a and 101e.
DCF, in turn, is mandated to investigate such reports within thirty days and, in the case of an incident involving a public school system, to report its findings to the Superintendent of Schools. C.G.S. Section 17a101i.
As the Affidavit of Gail Johnson establishes, HPS takes reports of child abuse or neglect seriously, investigating all incidents and taking appropriate corrective action with involved employees. HPS coordinates its investigations with DCF and receives completed DCF investigation reports. Although DCF has investigated reports of abuse or neglect at HTLA, its investigations have not substantiated abuse or neglect. (Johnson Affidavit paras 5 - 8). If DCF’s investigation or HPS’ own investigation had substantiated abuse or neglect, appropriate corrective action would have been taken. (Johnson Affidavit para 11).
In short, there are an abundance of legal remedies available to address incidents of abuse or neglect of HTLA students that do not require
33

the unauthorized disclosure of education records or information contained in them. OPA certainly has every right to pursue any of these remedies on behalf of its clients.
OPA’s focus on impediments to carrying out its own responsibilities as an OPA as “irreparable injury” misses the point. The only injury or harm that could stem from abuse or neglect of HTLA students is injury to the students themselves, not to OPA. Indeed, OPA recognizes this fact when it argues that the OPA Acts are “civil rights laws.” (Plaintiff’s Memorandum, p. 12). If the OPA Acts are civil rights laws, they are laws protecting the civil rights of the students, not the agency.
In light of the multitude of available remedies to correct incidents of abuse or neglect at HTLA, OPA cannot establish either irreparable injury or the absence of available legal remedies in support of its claim for injunctive relief.
D. OPA Has Access To Parents Through OCA Subpoena Significantly, OPA already has the names and contact information for HTLA’s secondary16 parents as a result of defendant Henry’s compliance with a recent subpoena issued by OPA’s co-investigator, the Office of the Child Advocate. (Lefkowitz Affidavit paras 20 and 21).
16 HTLA serves students in all school grades. OCA’s recent subpoena sought records only related to its secondary level students.
34

Although OCA has not served a subpoena for records relating to HTLA’s primary grade parents, nothing prevents it from doing so.
OPA and OCA are free to contact HTLA parents using the information provided in the subpoenaed documents to obtain access to students for the purposes of the interviews they seek. OPA’s effort here to undermine the rights of the HTLA parents to control access to their children and their education records is inappropriate and unnecessary. Parents do and should have the right to disclose or not disclose confidential information concerning their children. OPA should not be permitted to shut parents out of the process.
E. The Requested Access Would Disrupt HTLA Operations And Deny Parental Rights
The Court should also consider the tremendously disruptive impact on HTLA’s educational operation that granting OPA’s request would bring. Not only would the access take valuable time away from instruction HTLA’s important mission - but would inevitably undermine parent and student confidence in HTLA’s effectiveness and credibility.
Students and parents would certainly be confused, and might interpret the process as implying that their teachers, therapists and administrators have done something wrong or inappropriate. HTLA’s effectiveness would be undermined, to the detriment of the very students that OPA seeks to protect.
35

OPA’s request also ignores the legitimate and important interest of parents to control access to their children and their confidential information. Indeed, OPA’s demand is for access without notice to parents and even over parent objection! As the public policy underlying FERPA makes clear, parents have the right to control who knows what about their children, at least in the public schools.
In the absence of impropriety at HTLA and in light of the many other private and government watchdogs with responsibility for ensuring HTLA’s compliance with laws and regulations, the balance of hardships weighs heavily against allowing the disruption and violation of parental rights that OPA’s request would entail. Sierra Club v. Hennessey, 695 F.2d 643, 647 (2d Cir. 1982).
36

Conclusion For all of the foregoing reasons, defendants respectfully request that the Court deny the requested injunction.
DEFENDANTS HARTFORD BOARD OF EDUCATION AND ROBERT HENRY
By:______________________ John Rose, Jr. Federal Bar. No. 04228 Corporation Counsel Rosej001@ci.hartford.ct.us Ann F. Bird Federal Bar No. 305845 Assistant Corporation Counsel Birda001@ci.hartford.ct.us 550 Main Street Hartford, CT 06103 860 543-8575 Fax 860 722-8114
37

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

THE STATE OF CONNECTICUT OFFICE OF

PROTECTION AND ADVOCACY FOR PERSONS

WITH DISABILITIES, and JAMES MCGAUGHEY,

Plaintiffs,

CASE

NO

v

304CV1338(JCH)

.

HARTFORD BOARD OF EDUCATION,

HARTFORD PUBLIC SCHOOLS, and

ROBERT HENRY,

Defendants.

Affidavit of Jody S. Lefkowitz 1. I am Senior Director for Exceptional Children for the Hartford Public Schools (HPS). 2. I am over the age of eighteen and believe in the obligation of the oath. 3. My responsibilities include supervision of HPS’ Special Education Department. 4. The Hartford Transitional Learning Academy (HTLA) houses one of HPS’ programs for students in all grades who have been identified as requiring Special Education or Related Services pursuant to the Individuals with Disabilities in Education Act, 20 U.S.C. Section 1400 et seq.

5. HTLA is a program for students who are identified as “seriously emotionally disturbed” and require a therapeutic school environment.
6. HTLA is not a residential program and does not provide any overnight services.
7. Most HTLA students are in the custody of a parent or another family member. Although some are in the custody of the Department of Children and Families, this is the exception rather than the rule.
8. HTLA is not a program for students who have severe or chronic developmental disabilities that result in substantial functional limitations of major life activities.
9. HTLA is not a program for students who suffer from severe or disabling traumatic brain injuries.
10. Students who suffer from severe or chronic developmental disabilities that result in substantial functional limitations of major life activities or from severe or disabling traumatic brain injuries are placed in other programs within HPS or in qualified and approved outside facilities, and not at HTLA.
11. The decision to place students at HTLA is made by the individual student’s Pupil Planning Team (PPT) at a meeting in accordance with the requirements of IDEA. Each student’s PPT team consists of the student’s parents or guardian as well as teachers, support staff and
2

administrators who are familiar with the student’s needs. Parents and guardians are notified of all PPT team meetings, and every effort is made to afford parents and guardians a full opportunity to attend and participate in the decision making process.
12. Individualized behavior intervention plans have been developed for the majority of HTLA students either before or shortly after their entry to HTLA and are based on an individualized functional behavior assessment of the student’s needs.
13. HPS has trained the HTLA teaching staff, as well as other special education teachers who work with special education students, concerning the development and implementation of behavior intervention plans.
14. HTLA staff has also been trained to use appropriate and safe de-escalation and physical management procedures with students who lose control of their behavior.
15. HTLA staff has also been trained to use proper and safe physical restraint procedures as a last resort to prevent injury.
16. Based on the severity of behavior, it is sometimes necessary to seclude a student whose behavior is disruptive or dangerous and cannot be immediately de-escalated. Records are maintained of seclusion incidents.
3

17. In addition, based on the severity of behavior, it is sometimes necessary to physically restrain students whose behavior presents a risk of injury to themselves or others. Again, records are maintained of each restraint incident.
18. HTLA staff are trained and instructed that physical restraint is the last choice in responding to a student who loses control of his or her behavior and threatens injury to him or herself or others.
19. Physical restraint is not child abuse or neglect – it is sometimes a necessary means to prevent a student from injuring himself or herself or others.
20. On August 30, 2004 HPS delivered documents to the State of Connecticut Office of the Child Advocate pursuant to a subpoena issued for HTLA secondary level student records.
4

21. Included in the records that were provided were student Individualized Education Plans that identify the name of each student’s parent or guardian along with address and telephone number. Also included among the documents provided pursuant to the subpoena were records of student restraint and seclusion at HTLA.
________________________________ Jody S. Lefkowitz Senior Director for Exceptional Children Subscribed and sworn to before me this day of September, 2004 at Hartford, Connecticut. ________________________________ Commissioner Superior Court
5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

THE STATE OF CONNECTICUT OFFICE OF

PROTECTION AND ADVOCACY FOR PERSONS

WITH DISABILITIES, and JAMES MCGAUGHEY,

Plaintiffs,

CASE

NO

v

304CV1338(JCH)

.

HARTFORD BOARD OF EDUCATION,

HARTFORD PUBLIC SCHOOLS, and

ROBERT HENRY,

Defendants.

Affidavit of Sandra Cruz-Serrano

22. I am Director of Administration and Operations for the Hartford

Public Schools (HPS).

23. I am over the age of eighteen and believe in the obligation of

the oath.

24. My responsibilities include supervision of several of HPS’

operational functions.

25. The Hartford Board of Education has adopted a policy

regarding student records in compliance with the Family Educational

Rights and Privacy Act, 20 U.S.C. Section 1232g (FERPA).

26. HPS does not provide notice to parents that parent names or

contact information will be disclosed upon request without their

individualized consent or that parents have the right to object to the release of such information without prior consent.
________________________________ Sandra Cruz-Serrano Subscribed and sworn to before me this day of September, 2004 at Hartford, Connecticut. ________________________________ Commissioner Superior Court
2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

THE STATE OF CONNECTICUT OFFICE OF

PROTECTION AND ADVOCACY FOR PERSONS

WITH DISABILITIES, and JAMES MCGAUGHEY,

Plaintiffs,

CASE

NO

v

304CV1338(JCH)

.

HARTFORD BOARD OF EDUCATION,

HARTFORD PUBLIC SCHOOLS, and

ROBERT HENRY,

Defendants.

Affidavit of Gail Johnson

27. I am Director of Human Resources for the Hartford Public

Schools (HPS).

28. I am over the age of eighteen and believe in the obligation of

the oath.

29. My responsibilities include supervision of HPS’ personnel

functions.

30. My department is responsible for investigating employee

misconduct and taking or recommending that the Superintendent take

appropriate corrective action.

31. We take reports of alleged abuse or neglect of students very

seriously. We investigate each such incident promptly.

32. On occasion, my department receives reports of alleged

misconduct involving potential abuse or neglect of HTLA students by staff.

We receive these reports both from HTLA administration and from the Connecticut Department of Children and Families (DCF), whose responsibility it is to investigate incidents of potential child abuse or neglect.
33. When we receive such reports, my department promptly investigates them. Where DCF is involved, my department’s investigator fully cooperates with DCF in a coordinated investigation.
34. DCF reports the findings of its investigations to Superintendent Henry, who shares them with me.
35. DCF has not substantiated abuse or neglect in any incident at HTLA in at least the last two years.
36. In fact, DCF reported that it did not substantiate abuse or neglect in a reported incident at HTLA as recently as June 29, 2004.
2

37. HPS has taken and will continue to take17 corrective action in every case involving an HPS or DCF investigation that substantiates child abuse or neglect by HPS staff.
________________________________ Gail Johnson Director for Human Resources Subscribed and sworn to before me this day of September, 2004 at Hartford, Connecticut. ________________________________ Commissioner Superior Court
17 Nearly all HPS employees are members of collective bargaining units and have the right to challenge disciplinary actions before a neutral arbitrator. In addition, the Teacher Tenure Act affords tenured teachers the right to a neutral hearing panel in all discharge cases.
3

Certificate of Service This is to certify that the foregoing was served by placing a copy in the United States mail, postage prepaid, at Hartford Connecticut this 27th day of September 2004 addressed as follows: Nancy B. Alisberg Paulette G. Annon Office of Protection and Advocacy for Persons with Disabilities 60B Weston Street Hartford, CT 06120
___________________________ Ann F. Bird
4

 
 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

THE STATE OF CONNECTICUT

:

OFFICE OF PROTECTION AND

:

ADVOCACY FOR PERSONS WITH :

DISABILITIES and JAMES

:

MCGAUGHEY, Executive Director of :

The State of Connecticut Office Of :

Protection and Advocacy for Persons :

with Disabilities,

:

Plaintiffs

:

:

v.

:

:

HARTFORD BOARD OF EDUCATION, :

HARTFORD PUBLIC SCHOOLS,

:

and ROBERT HENRY, in his official :

capacity as the Superintendent of

:

Schools,

:

Defendants

:

:

:

CIVIL ACTION NO. 3-04-cv-1338 (JCH)
FEBRUARY 7, 2005

RULING ON PLAINTIFFS’ MOTION FOR A PERMANENT INJUNCTION [DKT. NO. 3]

Seeking declaratory and injunctive relief, the plaintiffs, the State of Connecticut

Office of Protection and Advocacy for Persons with Disabilities ("OPA") and its

Executive Director, James McCaughey, initiated this action against the defendants,

Hartford Board of Education, Hartford Public Schools, and Robert Henry, on August 11,

2004. On that same date, they filed a Motion for a Preliminary Injunction requesting

access to the Hartford Transitional Learning Academy ("HTLA") and directory

information for students and their parents or guardians for the purposes of conducting

an investigation into allegations of abuse and neglect at HTLA. [Dkt. No. 3]. The

plaintiffs claim that, pursuant to certain federal statutes, they are entitled to access

facilities treating persons with certain disabilities and mental illnesses for the purposes

1

of investigating allegations of mistreatment or abuse. 28 U.S.C. §794e; 42 U.S.C. §15001 et seq.; 42 U.S.C. §§ 10801-10827. On August 31, 2004, the parties agreed to merge the request for a preliminary injunction with the plaintiffs’ request for a permanent injunction. See FED. R. CIV. P. 65(a)(2). The parties also agreed to stipulate to certain facts for the purposes of the Motion for a Permanent Injunction. Stipulations of Fact [Dkt. No. 13]. The court heard oral argument on January 21, 2005. On that date, the defendants withdrew its then-pending Motion to Strike [Dkt. No. 16]. I. FACTS
The parties have stipulated certain facts. The Hartford Transitional Learning Academy is operated by the Hartford Board of Education for the purpose of providing a therapeutic educational program for students who require special education and related services and who are considered "seriously emotionally disturbed." Stipulations of Fact [Dkt. No. 13] at ¶¶ 6-7. The plaintiffs allege that they have received complaints that students at HTLA have been subjected to inappropriate restraint and seclusion and that in certain instances, students have suffered injury as a result. Id. at ¶ 12. The defendants concede that Hartford Public Schools policy allows teachers and administrators at HTLA to "use reasonable physical force when he/she believes it is necessary to (a) protect himself/herself or others from immediate physical injury; (b) obtain possession of a dangerous instrument or controlled substance upon or within the control of such student; or (c) protect property from physical damages." Usage of Therapeutic Physical Restraint to Maintain Safety [Dkt. No. 13, Ex. B]. As a result of complaints and other evidence, OPA has determined that probable cause exists to suspect that HTLA students are subjected to abuse and neglect. Stipulations of Fact
2

[Dkt. No. 13] at ¶ 14. Upon making this determination, OPA and the Office of the Child Advocate
initiated an investigation of HTLA. Id. at ¶ 15. On February 3, 2004, McGaughey and Joanne Milstein of the Office of the Child Advocate wrote to Defendant Henry to notify him that they would be investigating complaints received "regarding the provision of educational and related services to Hartford students" at HTLA. Letter, February 3, 2004 [Dkt. No. 13, Ex. D]. On February 10, representatives of OPA and the Office of the Child Advocate went to HTLA. Stipulations of Fact [Dkt. No. 13] at ¶ 17. They were denied access to students and to records. Id. Representatives of OPA and the Hartford Board of Education and Hartford Public Schools attempted to negotiate a resolution. Disputes regarding the applicability of OPA’s authorizing statutes to HTLA, as well as HTLA’s ability to provide the information requested by OPA in the face of federal law protecting students’ privacy and confidentiality, prevented such resolution. See Stipulations of Fact [Dkt. No. 13], ¶¶ 18-22. II. ANALYSIS
A. The Standards for a Permanent Injunction and Declaratory Relief The plaintiffs seek declaratory relief pursuant to section 2201 of Title 28 of the United States Code. That section provides that "any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. §2201. "[A] court must entertain a declaratory judgment action: (1) when the judgment will serve a useful purpose in clarifying and settling the legal
3

relations in issue, or (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding." Continental Cas. Co. v. Coastal Sav. Bank, 977 F.2d 734 (2d Cir. 1992) (citing Broadview Chem. Corp. v. Loctite Corp., 417 F.2d 998, 1001 (2d Cir.1969)).
The plaintiffs also seek a permanent injunction. "Generally, to obtain a permanent injunction a party must show the absence of an adequate remedy at law and irreparable harm if the relief is not granted." New York State Nat. Organization for Women v. Terry, 886 F.2d 1339, 1362 (2d Cir. 1989). In addition, the plaintiff must demonstrate actual success on the merits rather than a likelihood of success, as is required when a preliminary injunction is requested. Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12 (1987).
Courts have concluded that a protection and advocacy system’s inability to meet its federal statutory mandate to protect and advocate the rights of disabled people, see discussion, infra, section II.B., constitutes irreparable harm. See Office of Protection and Advocacy for Persons with Disabilities v, Armstrong, 266 F.Supp.2d 303, 310 (D.Conn. 2003) (citing cases). Should OPA demonstrate success on the merits, it is clear that there is no adequate remedy at law. Id. The only adequate relief would be to require the defendants to allow OPA access to HTLA and relevant records pursuant to the relevant statutes.
B. OPA’s Authority Under Federal Statute The OPA is established pursuant to Connecticut statute "for the protection and advocacy of the rights of persons with disabilities and developmentally disabled persons." Conn. Gen. Stat. §46a-10. It serves as the protection and advocacy system
4

for the purposes of three federal statutes described below, the Developmental Disabilities Assistance and Bill of Rights Act, the Protection and Advocacy of Individual Rights Act, and the Protection and Advocacy for Mentally Ill Individuals Act. The OPA is bound by state and federal law regarding confidentiality. Conn. Gen. Stat. §46a-11h; 42 U.S.C. §10806.
1. The Development Disabilities Assistance and Bill of Rights Act The Developmental Disabilities Assistance and Bill of Rights Act ("DD Act") provides for federal funding of state systems "to protect the legal and human rights of individuals with developmental disabilities. . . . ." 42 U.S.C. §15041; 42 U.S.C. §15042. In order to qualify for such funds, a state must have in place a system that is authorized to provide effective advocacy for and protection of the rights of developmentally disabled persons. 42 U.S.C. §15043(a)(2)(A). Further, such systems must "have access at reasonable times to any individual with a developmental disability in a location in which services, supports, and other assistance are provided to such an individual" as well as access to records of developmentally disabled individuals when certain factors arise. 42 U.S.C. §15043(a)(2)(H) - (I). Where a system is entitled to access to records, such records must be provided to the system "not later than 3 business days after the system makes a written request for the records involved." 42 U.S.C. §15043(J)(I). To the extent that developmentally disabled students attend HTLA, see discussion, infra, section II.C., the school is undoubtedly a "location in which services, supports, and other assistance are provided." 42 U.S.C. §15043(a)(2)(H) - (I).
5

2. The Protection and Advocacy of Individual Rights Act The Protection and Advocacy of Individual Rights Act ("PAIR") creates an identical framework with respect to the rights of individuals with disabilities. 29 U.S.C. §794e. PAIR applies to individuals with disabilities who are not entitled to protection or services under either the Protection and Advocacy for Mentally Ill Individuals Act or the DD Act. 29 U.S.C. §794e(a)(1)(B). In order to receive federal funds under PAIR, a state must "have in effect a system to protect and advocate the rights of individuals with disabilities" and such system must "have the same general authorities, including access to records and program income, as are set forth" in the DD Act. 42 U.S.C. §794e(f)(1)(2). Thus, while PAIR applies to a broader segment of the population of individuals with disabilities, it allows protection and advocacy systems the same breadth of investigative and advocacy authority allowed under the DD Act. Again, to the extent that students protected by PAIR attend HTLA, see discussion, infra, section II.C, the school must provide OPA with access to such students.
3. The Protection and Advocacy for Mentally Ill Individuals Act The Protection and Advocacy for Mentally Ill Individuals Act ("PAMII")1 provides an similar system for the purposes of protecting the rights of mentally ill individuals. 42 U.S.C. §10801-10807. The Act provides for federal funding: to assist States to establish and operate a protection and advocacy
1The parties sometimes refer to the Act as PAIMI. While 1988 amendments removed from the Act all use of the term "mentally ill individuals" and, instead, substituted "individuals with mental illness," the name of the Act itself was not changed. See Requirements Applicable to Protection and Advocacy of Individuals with Mental Illness; Final Rule, 62 Fed. Reg. 53548-01 (Oct. 15, 1997). Therefore, the Act will be referred to as "PAMII" in this Ruling.
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system for individuals with mental illness which will (A) protect and advocate the rights of such individuals through activities to ensure enforcement of the Constitution and Federal and State statutes; and (B) investigate incidents of abuse and neglect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred. 42 U.S.C. §10801(b)(2)(B). In order to be eligible for such funding, states must establish systems to "(1) protect and advocate the rights of individuals with mental illness; and (2) investigate incidents of abuse and neglect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred." 42 U.S.C. §10803(2). Such systems are authorized to "investigate incidents of abuse and neglect of individuals with mental illness" and "pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the state." 42 U.S.C. §10805(a)(1)(A)-(B). They are entitled to access to records where certain criteria are met. 42 U.S.C. §10805(a)(4). Such systems also must "have access to facilities in the State providing care or treatment." 42 U.S.C. §10805(a)(3). C. The DD Act, PAMII Act, and PAIR Act Authorize OPA to Investigate
Possible Abuse and Neglect at HTLA Courts have found that protection and advocacy systems need not "make a threshold showing of mental illness" in order to exercise their authority under PAMII. Office of Protection and Advocacy for Persons with Disabilities v. Armstrong, 266 F.Supp.2d 303, 313 (D.Conn. 2003); Michigan Protection and Advocacy Service v. Miller, 849 F.Supp. 1202, 1207 (W.D.Mich. 1994). A denial of access on the grounds that OPA has not made a conclusive showing that HTLA students are individuals with mental illness or developmentally disabled "prevents [OPA] from bringing in their own
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mental health professionals to ascertain whether any [students] do in fact suffer from mental illness. Such conduct . . . defeats the very purpose of PAMII and the DD Act to provide effective protection and advocacy services to mentally ill and developmentally disabled persons." Michigan Protection and Advocacy Service, 849 F.Supp. at 1207.
Instead of requiring conclusive evidence that a particular person or persons qualifies as an individual with mental illness or developmentally disabled for the purposes of a protection and advocacy system’s authorizing statutes, courts have held that a showing of "substantial evidence" must suffice in order for such systems to fulfill their statutory mandate. See id. at 1207. "‘[E]vidence that a facility has previously housed individuals who are mentally ill, as well as evidence that some current residents may be mentally ill[,] is sufficient under PAMII to merit access by [protection and advocacy systems].’" Office of Protection and Advocacy for Persons with Disabilities, 266 F.Supp.2d at 314 (quoting Kentucky Prot. & Advocacy Div. v. Hall, et al., No. 3:01cv-538-H, slip. op. (W.D.Ky. Sept. 24, 2001)) (emphasis added).
In order to be placed at HTLA, a child must first be designated "seriously emotionally disturbed." Stipulations of Fact [Dkt. No. 13] at ¶ 7. Defendants concede that "most HTLA students probably qualify as individuals with mental illness for PAMII’s purposes." Def.’s Objection to Mot. for Permanent Injunction [Dkt. No. 12] at n. 11. Indeed, PAMII’s definition of an "individual with mental illness" includes an "individual who has a significant . . . emotional impairment." 42 U.S.C. §10802(4)(A). That definition appears to be inclusive of individuals who are "seriously emotionally disturbed." Federal regulations define the term "serious emotional disturbance" to include the following:
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(1) A condition that has been confirmed by clinical evaluation and diagnosis and that, over a long period of time and to a marked degree, adversely affects educational performance and that exhibits one or more of the following characteristics: (i) An inability to learn that cannot be explained by intellectual, sensory, or health factors. (ii) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers. (iii) Inappropriate types of behavior under normal circumstances. (iv) A tendency to develop physical symptoms or fears associated with personal or school problems. (v) A general, pervasive mood of unhappiness or depression. (2) Schizophrenia, but does not include children who are socially maladjusted, unless it is determined that they are otherwise seriously emotionally disturbed.
Provision of Early Intervention Services to Eligible Infants and Toddlers with Disabilities
and Their Families, and Special Education Children with Disabilities Within the Section
6 School Arrangements, 32 C.F.R. § 80.3 (2004).
The defendants dispute, however, that students at HTLA ought to be considered
developmentally disabled for the purposes of the DD Act. The defendants provide the
Affidavit of Jody S. Lefkowitz, Senior Director for Exceptional Children for Hartford
Public Schools, which Affidavit claims that students with severe developmental
disabilities are not placed at HTLA but are placed at other facilities in and outside of the
Hartford Public School system. Affidavit of Jody S. Lefkowitz [Dkt. No. 12] at ¶¶ 8-10.
In response, OPA provides an affidavit from its Assistant Program Director attesting that
of OPA’s former and current clients who are or have been students at HTLA, many
have been developmentally disabled and that students who present symptoms of a
developmental disability are sometimes labeled "seriously emotionally disturbed."
PAIR expands on the rights and protections created by PAMII and the DD Act
and includes individuals with disabilities who do not qualify for services under either of
the other statutes. 29 U.S.C. §794e. If a child diagnosed as "seriously emotionally
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disturbed" is disabled for the purposes of section 794e but is not considered developmentally disabled for the purposes of the DD Act or to have a mental illness for the purposes of PAMII, that student may be subject to the protections of PAIR. The fact that all HTLA students are diagnosed as "substantially emotionally impaired" allows an inference that students fall under the protection of either the DD Act or PAIR, both of which provide OPA with identical investigative powers. These facts, considered alongside HTLA’s concession that its students are "individuals with mental illness" for the purposes of PAMII2, establish that OPA has met the standard set forth in Armstrong and is authorized by PAIR and PAMII to investigate incidents of abuse or neglect at HTLA. The court need not resolve the parties’ dispute regarding the applicability of the DD Act as PAIR provides OPA with the same authorities as does the DD Act. 42 U.S.C. §794e(f)(1)-(2).
D. OPA is Entitled to Access to HTLA PAIR requires that protection and advocacy systems "have access at reasonable times to any individual with a developmental disability in a location in which services, supports, and other assistance are provided to such an individual." 42 U.S.C. §15043(a)(2)(H); see 28 U.S.C. §794e(f)(1)-(2) (providing that systems created pursuant to PAIR "have the same general authorities, including access to records and program income, as are set forth" in the DD Act). Access under this provision is not limited to access to residential locations. To the extent that HTLA serves students covered under the DD Act and PAIR, it must provide reasonable access to such
2Without this concession, the court would have reached the same conclusion based on the record before it.
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students to OPA. Because OPA has made a sufficient showing that students at HTLA are entitled to its services under PAIR, OPA is authorized to access "any individual . . . in a location" as is reasonable under the statute. Id.
Rather than provide access to individuals as the DD Act and PAIR do, PAMII requires that protection and advocacy systems "have access to facilities in the State providing care or treatment." 42 U.S.C. §10805(a)(3). The defendants argue that they are not required to provide access to HTLA under PAMII because HTLA is not a "facility" for the purposes of the Act. The Act provides that "[t]he term ‘facilities’ may include, but need not be limited to, hospitals, nursing homes, community facilities for individuals with mental illness, board and care homes, homeless shelters, and jails and prisons." 42 U.S.C. §10802(4). Notably, while the statute does not limit use of the term "facilities" as such, all of the examples listed are residential institutions. Implementing regulations have defined the term "facilities" to include "any public or private residential setting that provides overnight care accompanied by treatment services." Requirements Applicable to the Protection and Advocacy for Individuals with Mental Illness Program, Definitions, 42 C.F.R. §51.2 (2004) (emphasis added). The plaintiffs argue that PAMII was recently amended to expand its purview to nonresidential facilities and, the regulations have not yet been updated accordingly. Pl.’s Reply Memo. to Def.’s Objection to Pl.’s Mot. for a Permanent Injunction [Dkt. NO. 14] at 8.
The court notes that PAMII was amended in 2000. Public Law 106-310 expanded the definition of the term "individual with mental illness." Prior to the 2000 amendment, the term applied only to individuals with "a significant mental illness or emotional impairment" who were inpatients or residents of facilities providing mental
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health services, in the process of being admitted to such facilities, or confined in a detention facility. An individual was not entitled to services under the act unless confined in a residential facility.
PAMII’s legislative history supported such an interpretation of the original act. The Labor and Human Resources Committee prepared the 1985 Senate Report which laid out the bases for its recommendation that Public Law 99-319 be passed. S. REP. NO. 99-109 (1985), reprinted in 1986 U.S.C.C.A.N. 1361. The legislation was drafted in response to concerns regarding "the care and treatment of institutionalized persons who are developmentally disabled, mentally retarded, or mentally ill." Id. at 1361. The report described the results of "a 9-month staff investigation of conditions in state-operated facilities for the developmentally disabled, mentally retarded and/or mentally ill." Id. According to the report, the bill "defines 'mentally ill person' to mean an individual for whom a primary diagnosis of mental illness has been made and who resides for 24 hours each day in a residential facility." Id.
In 2000, Public Law 106-310 amended PAMII’s definition of a mentally ill individual to include persons who live "in a community setting, including their own home." Children’s Health Act of 2000, Pub. L. No. 106-310, codified at 42 U.S.C. §10802(4). The 2000 amendment expanded the definition of a mentally ill individual for the purposes of PAMII. The Act currently includes in its definition of an individual with mental illness a person "who has a significant mental illness or emotional impairment, as determined by a mental health professional qualified under the laws and regulations of the State . . . and lives in a community setting, including their own home." 42 U.S.C. 10802(4). Thus, a protection and advocacy system must serve the needs of both
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mentally ill individuals who are institutionalized or otherwise treated in residential facilities and individuals who are mentally ill and live in their own home. Previously, an individual was considered "mentally ill" under the statute only if he suffered such an illness and resided in a facility providing treatment. In effect, the 2000 amendment rewrites PAMII’s definition of a mentally ill individual to include anyone with "a significant mental illness or emotional impairment, as determined by a mental health professional" without regard to where that person resides. Such person may reside in a facility providing treatment or "in a community setting, including their own home."
When applying a statute, this court is "required to ‘disfavor interpretations of statutes that render language superfluous.’" Connecticut ex rel. Blumenthal v. U.S. Dept. of the Interior, 228 F.3d 82, 88 (2d Cir. 2000) (quoting Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253 (1992)). Arguably, the interpretation suggested by OPA -that it is authorized under PAMII "to investigate incidents of abuse and neglect of individuals with mental illness" pursuant to section 10805(a)(1)(A) regardless of where those individuals reside -- renders part B of section 10802(4) superfluous. The definition of an "individual with mental illness" might as well be limited to part A of that section, without the conjunction "and" used to make additional requirements regarding an individual’s residence.
Nevertheless, "courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat’l Bank, 503 U.S. at 253-54. When Congress chose to revise the definition of "individual with mental illness," there was more than one way in which to do so. For example, it could have removed section 10802(4)(B) in its entirety. Instead, Congress chose to expand the
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definition by adding a subsection that explicitly adds an additional category of individuals subject to the rights and protections created by the statute. In the instant context, it would be clearly contrary to Congressional intent to excise that portion of statute in the interest of avoiding a reading that renders a section superfluous. It is "far more likely that Congress inadvertently created a redundancy," Connecticut Nat’l Bank, 503 U.S. at 256 (O’Connor, concurring), or added the subsection to expressly extend coverage, than that it intended to limit its definition of mentally ill individuals to those residing in facilities where the statutory language expressly provides that the definition ought to include individuals residing in their own homes. Therefore, PAMII authorizes protection and advocacy systems to investigate incidents of abuse and neglect and access an individual’s mental health records without regard to an individual’s residence. See 42 U.S.C. §10805(a)(1),(4).
The more difficult question that remains is whether PAMII authorizes a protection and advocacy system to have physical access to a non-residential program providing treatment to mentally ill persons. The statute requires that protection and advocacy systems, like OPA, must "have access to facilities in the State providing care or treatment." 42 U.S.C. §10805(a)(3). Current regulations limit the definition of "facilities" to residential institutions. 42 C.F.R. §51.2 (2004) ("Facility includes any public or private residential setting that provides overnight care accompanied by treatment services.") Those regulations, however, predate the 2000 amendments to PAMII. They were released in their final form on October 15, 1997, three years before Congress amended its definition of individuals with mental illness under PAMII. See 62 Fed. Reg. 53548. They do not, for example, take into account the explicit revision of the definition
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of an individual with mental illness and, instead, maintain the pre-2000 definition. That the regulations have not been revised to address a statutory revision is not unusual. Between the statute’s passage in 1986 and the 1991 amendments, no rules were promulgated pursuant to PAMII. H.R. REP. NO. 102-319 (1991), reprinted in 1991 U.S.C.C.A.N. 777, 785. Following 1991 amendments to PAMII that explicitly authorized rulemaking by the Department of Health and Human Services, final rules were not promulgated until October 1997, six years after those amendments were passed. See Requirements Applicable to Protection and Advocacy of Individuals with Mental Illness; Notice of Proposed Rulemaking, 59 Fed. Reg. 64367-01 (December 14, 1994); Requirements Applicable to Protection and Advocacy of Individuals with Mental Illness; Final Rule, 62 Fed. Reg. 53548 (October 15, 1997).
No regulations interpret PAMII in its current and applicable form. The court cannot defer to an agency interpretation that predates relevant amendments to the statute. Compare Helvering v. Winmil, 305 U.S. 79, 83 ("Treasury regulations and interpretations long continued without substantial change, applying to unamended or substantially reenacted statutes, are deemed to have received congressional approval and have the effect of law."). Therefore, the court must consider the plain language as well as the legislative intent underlying the relevant section, which requires protection and advocacy systems to "have access to facilities in the State providing care or treatment." 42 U.S.C. §10805(a)(3). The statute itself does not limit the term "facilities" to residential institutions. Generally, the provisions of section 10805(a) provide protection and advocacy systems with the particular tools necessary to "protect and advocate the rights of individuals with mental illness." 42 U.S.C. §10805(a). Fulfilling
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the responsibility to "investigate incidents of abuse and neglect" and "pursue administrative, legal, and other appropriate remedies" requires certain investigative powers. Id. These powers include access to records, 42 U.S.C. §10805(a)(4), independence from other state agencies, 42 U.S.C. §10805(a)(2), and the ability to access those institutions where individuals with mental illness are treated, 42 U.S.C. §10805(a)(3). If OPA’s mandate is to protect and advocate the rights of all individuals with mental illness, regardless of whether they are treated as inpatients or outpatients, its access cannot be limited to residential facilities but must extend to all facilities treating individuals with mental illness. To exclude facilities treating individuals who live in a community setting, including their own home, would be counter to the clear language of the statute, as well as its intent. Thus, HTLA, as a facility providing care or treatment, is subject to access by OPA, pursuant to PAMII’s grant of authority to that agency. 42 U.S.C. §10805(a)(4). Therefore, both PAIR and PAMII entitle OPA to physical access to HTLA.
E. OPA is Entitled to the Names and Contact Information Sought While OPA’s access to students’ records is not limited by the fact that HTLA is not a residential institution, that access is limited by statutory provisions that address authorization by an individual with mental illness or a developmental disability or that person’s legal representative. See 42 U.S.C. §10805(a)(4); 42 U.S.C. §15043(a)(2)(I). Defendants argue that OPA cannot, pursuant to its authorizing statutes, access the records sought from HTLA. Further, the defendants argue that if the statutes do authorize such access, OPA’s request must nonetheless fail because HTLA and the Hartford Board of Education are bound by confidentiality provisions in the Federal
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Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. §1232g, and the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §1400, et seq. FERPA limits federal educational funding to educational agencies and institutions that follow certain statutory mandates with respect to release of information and educational records. 20 U.S.C. §1232g. IDEA requires educational institutions and agencies receiving federal funds pursuant to that statute to abide by FERPA’s mandates. 20 U.S.C. §1417(c).
Section 10805, which authorizes OPA to access a person’s records under particular circumstances, does not define the term "records." It is sensible under these circumstances to incorporate the definition provided in section 10806, which references section 10805(a)(4) and provides standards regarding confidentiality and disclosure of records accessed by a protection and advocacy system pursuant to section 10805(a)(4). See Pennsylvania Protection & Advocacy, Inc. v. Houstoun, 228 F.3d 423, 426 n. 1 (3d Cir. 2000). Section 10806 provides that
"records" includes reports prepared by any staff of a facility rendering care and treatment or reports prepared by an agency charged with investigating reports of incidents of abuse, neglect, and injury occurring at such facility that describe incidents of abuse, neglect, and injury occurring at such facility and the steps taken to investigate such incidents, and discharge planning records. 42 U.S.C. §10806(b)(3)(A). OPA concedes that it cannot access staff reports and similar records under the requirements described in section 10805(a)(4). Instead, it seeks "directory information" so that it can contact the students’ legal representatives for the purposes of securing consent to review other records. PAMII allows access to records where OPA receives a complaint or has probable cause to believe that an individual’s health or safety is in
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serious and immediate jeopardy and OPA contacts the student’s representative "upon receipt of the name and address of such representative." 42 U.S.C. §10805(a)(4)(c). Similarly, the DD Act provides for access to records where a developmentally disabled individual has a legal representative; OPA has received a complaint or has probable cause to believe that such individual has been subject to abuse or neglect; and OPA contacts the individual’s legal representative, "upon receive of the name and address of such representative." 42 U.S.C. §15043(a)(2)(I)(iii). The circumstances under which OPA can obtain records are broader under the DD Act and PAIR. OPA need only have probable cause to believe that abuse or neglect has occurred or is occurring. Under PAMII, OPA must meet a higher burden, requiring it to have probable cause to believe that "the health or safety of the individual is in serious and immediate jeopardy." 42 U.S.C. §10805(a)(4)(c). The standard for finding that probable cause exists is lower for these purposes than it would be in the context of a criminal investigation. Alabama Disabilities Advocacy Program v. J.S. Tarwater Developmental Center, 97 F.3d 492, 498-99 (11th Cir. 1996). Furthermore, courts have found that the protection and advocacy system, in this case OPA, is the final arbiter of probable cause for these purposes. Office of Protection and Advocacy for Persons with Disabilities v. Armstrong, 266 F.Supp.2d 303, 321 (D.Conn. 2003); Center for Legal Advocacy v. Earnest, 188 F.Supp.2d 1251, 1257 (D.Colo. 2002), rev’d on other grounds, 320 F.3d 1107 (10th Cir. 2003); Arizona Center for Disability Law v. Allen, 197 F.R.D. 689 (D.Ariz. 2000). The court need not determine for these purposes whether OPA is in fact the final arbiter of probable cause because the court’s view is that probable cause exists in the instant circumstance.
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The language of the provisions authorizing access to records is far from clear. Were the phrase "upon receipt of the name and address of such representative", as used in both the DD Act and PAMII, to be construed to mean that a protection and advocacy system be required to contact that representative without HTLA providing the name and address, the phrase would be meaningless. Instead, the court reads the phrase to authorize a request by OPA for the names and addresses of students for whom there is the requisite degree of probable cause to demand records under PAMII and the DD Act. Upon receipt of such information, OPA can attempt to contact legal representatives of such individuals in order to obtain express permission to act on their behalf. Regulations promulgated pursuant to both the DD Act and PAMII support this interpretation of the statute. They use identical language to provide that a protection and advocacy system "shall be provided promptly . . . the name, address and telephone number of the legal guardian, conservator, or other legal representative of an individual” with developmental disabilities or mental illness where the system is denied access to facilities or records “for alleged lack of authorization." State System for Protection and Advocacy of the Rights of Individuals with Disabilities, 45 C.F.R. §1386.22 (2004) (DD Act); 42 C.F.R. §51.43 (2003) (PAMII).
While defendants contest the applicability of either PAMII or the DD Act to HTLA, they concede that the statutes and regulations create a responsibility on the part of an institution to provide contact information for an individual’s “legal guardian, conservator, or other legal representative”, where an institution refuses to release that individual’s records on the grounds that an individual or his legal representative has not authorized such release. Id. The defendants argue, however, that students at HTLA who are not in
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state custody do not have such a legal representative for the purposes of these
statutes. They cite regulations pursuant to both PAMII and the DD Act that provide a
limited definition of the terms “legal guardian, conservator, and legal representative.”
Legal Guardian, Conservator, and Legal Representative all mean an individual whose appointment is made and regularly reviewed by a State court or agency empowered under State law to appoint and review such officers, and having authority to consent to health/mental health care or treatment of an individual with mental illness. It does not include persons acting only as representative payee, persons acting only to handle financial payments, attorneys or persons acting on behalf of an individual with mental illness only in individual legal matters, or officials responsible for the provision of health or mental health services to an individual with mental illness, or their designees.
42 C.F.R. §51.2 (2004) (PAMII). The regulations pursuant to the DD Act are
substantially similar. 45 C.F.R. §1386.19 (2004).
The defendants argue that by the plain terms of the regulation, parents of a
minor do not qualify as a “Legal Guardian, Conservator, [or] Legal Representative.”
Therefore, HTLA is not required to turn over names and contact information for
students’ parents pursuant to the DD Act, PAMII, PAIR, or any of the regulations
pursuant to such statutes.
The defendants’ interpretation of the regulations is counter to that of the
promulgating agency, the U.S. Department of Health and Human Services. The final
rule appeared in the Federal Register on October 15, 1997. The accompanying
commentary included clarification of the definition of a “Legal Guardian, Conservator,
and Legal Representative.” While the Department confirmed that certain persons
responsible for mentally ill persons were excluded from the definition, “natural or
adoptive parents [of minor children] are legal guardians unless the State has appointed
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another legal guardian under applicable State law.” Substance Abuse and Mental Health Services Administration; Requirements Applicable to Protection and Advocacy of Individuals with Mental Illness; Final Rule, 62 Fed. Reg. 53548-01, 53552. Indeed, a 1991 amendment to PAMII emphasized the role of family members in the protection of and advocacy for mentally ill persons. See 42 U.S.C. §10801(a)(2). The Committee on Energy Commerce concluded that “the involvement of family members is crucial to the successful implementation of the PAMII Act and therefore family involvement should be welcomed and encouraged.” H.R. REP. NO. 102-319, reprinted in 1991 U.S.C.C.A.N. 777, 781.
The defendants argue that their interpretation of the regulations supports their contention that PAMII does provide for services, protection, or advocacy for minors with parents who maintain custody and guardianship, but the committee report is counter to that argument. That report provides that, “P&A staff should involve family members where the family member with a mental illness is a minor . . . .” Id. For the statute and its regulations to ignore parents’ roles as legal guardians of their children would run counter to statutory objectives. On this basis and crediting the agency’s interpretation of its own regulation, the court cannot conclude that parents are excluded from the definition of a “Legal Guardian, Conservator, and Legal Representative.” PAMII grants expansive powers to protection and advocacy systems to investigate incidents of neglect of abuse of individuals with mental illness. “In this regard, it is no less critical to access the records of those with natural parents as those with legal guardians. Without the disclosure by the facility of the parents’ names and addresses, it may be impossible for the P&A to contact those parents; at the very least, it might significantly delay the
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process.” Advocacy, Incorporated v. The Brown Schools, Inc., 2001 WL 1910563 at *4 (W.D.Tex. October 1, 2001).
The defendants argue that, even if OPA has the right to obtain the information it seeks, other statutes prohibit such release of HTLA records. FERPA provides that "[n]o funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information . . .) of students without the written consent of their parents to any individual, agency, or organization . . . ." 20 U.S.C. §1232g(b)(1). FERPA’s restrictions on access to educational records appear to conflict with the DD Act and PAMII’s grant of authority to protection and advocacy systems to access such information. Where the court "find[s] no ‘clear and manifest’ indication that Congress intended [one section] to repeal [another], it is our duty to harmonize the provisions, if possible." Auburn Housing Authority v. Martinez, 277 F.3d 138, 150 (2d Cir. 2002).
The defendants cite to Washington Protection and Advocacy System, Inc. v. Evergreen School District, C03-5062(FDB), to support their contention that, in light of FERPA, public schools cannot provide records requested by protection and advocacy systems organized pursuant to the DD Act, PAMII, and PAIR. In a ruling on a motion for a preliminary injunction, the Washington Protection and Advocacy System court determined that it was “not sufficiently satisfied that the P&A Acts override the FERPA and IDEA.” Id. at 3. No rationale was provided for this conclusion. Furthermore, that court considered only the plaintiff’s likelihood of success on the merits, not actual success on the merits. In addition, the conclusion that the Washington Protection and
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Advocacy System had not established a likelihood of success was based not only on FERPA and IDEA, but also on that court’s finding that the plaintiff did not have probable cause to believe that the child in question had suffered abuse and neglect. Id. at 5.
The Western District of Michigan, in Michigan Protection & Advocacy Service, 849 F.Supp. at 1208, supra, section II.C, appears to be the only other court to have considered the potential conflict between FERPA and IDEA, on one hand, and the DD Act and PAMII, on the other. That court concluded that, given the unequivocal statutory mandate afforded to protection and advocacy systems to access records in specific situations and the statutory responsibility of such organizations to keep such records confidential, FERPA and IDEA did not prevent educational institutions and agencies from providing such systems with records. Id. While the defendant urges the court not to consider the Michigan ruling persuasive because it addressed only physical access to an institution, the court notes that the ruling explicitly addressed documentary records as well. Id.
In reconciling the two statutes, it is important to note that the OPA is bound by state and federal law regarding confidentiality. Conn. Gen. Stat. §46a-11h; 42 U.S.C. §10806. State law provides that "all confidential records obtained by the office in the course of any such investigation shall be confidential and shall not be subject to disclosure under the Freedom of Information Act." Conn. Gen. Stat. §46a-11h. Federal law requires OPA to maintain the same standards with respect to confidentiality as does the institution from which it receives records.
An eligible system which, pursuant to section 10805(a)(4) of this title, has access to records which, under Federal or State law, are required to be maintained in a confidential manner by a provider of mental health
23

services, shall . . . maintain the confidentiality of such records to the same extent as is required of the provider of such services. 42 U.S.C. §10806(a). Thus, PAMII explicitly contemplates those instances in which a protection and advocacy system may request records that are confidential under federal law, in this case FERPA and IDEA. In such situations, PAMII requires that a protection and advocacy system "maintain the confidentiality of such records to the same extent as is required of the provider" by the applicable law. Id. OPA, therefore, is bound by the confidentiality provisions of FERPA and IDEA upon receipt of any educational records from the defendants. To allow protection and advocacy systems access to records in the limited circumstances provided for in the DD Act, PAMII, and PAIR does not contravene Congress’ intent to maintain parents’ and students’ confidentiality. In this case, allowing OPA to access parents’ names and contact information serves the purposes of all of the above statutes by allowing OPA to pursue its investigation as required by PAMII and PAIR while limiting its access to records until it receives authorization from students and parents, as is required by FERPA and IDEA. Thus, the court is able to harmonize the various statutes. This reading is preferable to a finding that one or more of the statutes repeals by implication one or more of the others where there is no indication that Congress intended such result. Thus, pursuant to PAMII and PAIR, OPA is entitled to names and contact information for parents and legal guardians of students at HTLA. III. CONCLUSION For the reasons discussed above, the court declares that the defendants’ refusal to provide the plaintiffs with physical access to HTLA when students are present and
24

with name and contact information for parents and legal guardians of HTLA’s students violates PAMII and PAIR. The defendants are hereby ordered to grant both physical access and names and contact information such that OPA can perform its statutory duty to investigate suspected abuse and neglect. The case is closed. The court retains jurisdiction to ensure compliance. SO ORDERED
Dated at Bridgeport, Connecticut this 7th day of February, 2005. /s/ Janet C. Hall Janet C. Hall United States District Judge
25

 
 355 F.Supp.2d 649 (2005)
The STATE OF CONNECTICUT OFFICE OF PROTECTION AND ADVOCACY FOR PERSONS WITH DISABILITIES and James McGaughey, Executive Director of The State of
Connecticut Office Of Protection and Advocacy for Persons with Disabilities, Plaintiffs v.
HARTFORD BOARD OF EDUCATION, Hartford Public Schools, and Robert Henry, in his official capacity as the Superintendent of Schools, Defendants
No. CIV.A.3-04-CV-1338 (JCH).
United States District Court, D. Connecticut.
February 7, 2005.
652 *652 Nancy B. Alisberg, Paulette G. Annon, State of Connecticut Office of Protection & Advocacy for Persons With Disabilities, Hartford, CT, for Plaintiffs.
Ann F. Bird, John Rose, Jr., Corporation Counsel's Office, Hartford, CT, for Defendants.
RULING ON PLAINTIFFS' MOTION FOR A PERMANENT INJUNCTION [DKT. NO. 3]
HALL, District Judge.
Seeking declaratory and injunctive relief, the plaintiffs, the State of Connecticut Office of Protection and Advocacy for Persons with Disabilities ("OPA") and its Executive Director, James McCaughey, initiated this action against the defendants, Hartford Board of Education, Hartford Public Schools, and Robert Henry, on August 11, 2004. On that same date, they filed a Motion for a Preliminary Injunction requesting access to the Hartford Transitional Learning Academy ("HTLA") and directory information for students and their parents or guardians for the purposes of conducting an investigation into allegations of abuse and neglect at HTLA. [Dkt. No. 3]. The plaintiffs claim that, pursuant to certain federal statutes, they are entitled to access facilities treating persons with certain disabilities and mental illnesses for the purposes of investigating allegations of mistreatment or abuse. 29 U.S.C. § 794e; 42 U.S.C. § 15001 et seq.; 42 U.S.C. §§ 10801-10827. On August 31, 2004, the parties agreed to merge the request for a preliminary injunction with the plaintiffs' request for a permanent injunction. See FED. R. CIV. P. 65(a)(2). The parties also agreed to stipulate to certain facts for the purposes of the Motion for a Permanent Injunction. Stipulations of Fact [Dkt. No. 13]. The court heard oral argument on January 21, 2005. On that date, the defendants withdrew its then-pending Motion to Strike [Dkt. No. 16].
I. FACTS
The parties have stipulated certain facts. The Hartford Transitional Learning Academy is operated by the Hartford Board of Education for the purpose of providing a therapeutic educational program for students who require special education and related services and who are considered "seriously emotionally disturbed." Stipulations of Fact [Dkt. No. 13] at ¶¶ 6-7. The plaintiffs allege that they have received complaints that students at HTLA have been subjected to inappropriate restraint and seclusion and that in certain instances, students have suffered injury as a result. Id. at ¶ 12. The defendants concede that Hartford Public Schools policy allows teachers and administrators at HTLA to "use reasonable physical force when he/she believes it is necessary to (a) protect himself/herself or others from immediate physical injury; (b) obtain possession of a dangerous instrument or 653 controlled substance upon or within the control of such student; or (c) *653 protect property from physical damages." Usage of Therapeutic Physical Restraint to Maintain Safety [Dkt. No. 13, Ex. B]. As a result of

complaints and other evidence, OPA has determined that probable cause exists to suspect that HTLA students are subjected to abuse and neglect. Stipulations of Fact [Dkt. No. 13] at ¶ 14.
Upon making this determination, OPA and the Office of the Child Advocate initiated an investigation of HTLA. Id. at ¶ 15. On February 3, 2004, McGaughey and Joanne Milstein of the Office of the Child Advocate wrote to Defendant Henry to notify him that they would be investigating complaints received "regarding the provision of educational and related services to Hartford students" at HTLA. Letter, February 3, 2004 [Dkt. No. 13, Ex. D]. On February 10, representatives of OPA and the Office of the Child Advocate went to HTLA. Stipulations of Fact [Dkt. No. 13] at ¶ 17. They were denied access to students and to records. Id. Representatives of OPA and the Hartford Board of Education and Hartford Public Schools attempted to negotiate a resolution. Disputes regarding the applicability of OPA's authorizing statutes to HTLA, as well as HTLA's ability to provide the information requested by OPA in the face of federal law protecting students' privacy and confidentiality, prevented such resolution. See Stipulations of Fact [Dkt. No. 13], ¶¶ 18-22.
II. ANALYSIS
A. The Standards for a Permanent Injunction and Declaratory Relief
The plaintiffs seek declaratory relief pursuant to section 2201 of Title 28 of the United States Code. That section provides that "any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 2201. "[A] court must entertain a declaratory judgment action: (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, or (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding." Continental Cas. Co. v. Coastal Sav. Bank, 977 F.2d 734 (2d Cir.1992) (citing Broadview Chem. Corp. v. Loctite Corp., 417 F.2d 998, 1001 (2d Cir.1969)).
The plaintiffs also seek a permanent injunction. "Generally, to obtain a permanent injunction a party must show the absence of an adequate remedy at law and irreparable harm if the relief is not granted." New York State Nat. Organization for Women v. Terry, 886 F.2d 1339, 1362 (2d Cir.1989). In addition, the plaintiff must demonstrate actual success on the merits rather than a likelihood of success, as is required when a preliminary injunction is requested. Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987).
Courts have concluded that a protection and advocacy system's inability to meet its federal statutory mandate to protect and advocate the rights of disabled people, see discussion, infra, section II.B., constitutes irreparable harm. See Protection and Advocacy for Persons with Disabilities v. Armstrong, 266 F.Supp.2d 303, 310 (D.Conn.2003) (citing cases). Should OPA demonstrate success on the merits, it is clear that there is no adequate remedy at law. Id. The only adequate relief would be to require the defendants to allow OPA access to HTLA and relevant records pursuant to the relevant statutes.
B. OPA's Authority Under Federal Statute
654 The OPA is established pursuant to Connecticut statute "for the protection and *654 advocacy of the rights of persons with disabilities and developmentally disabled persons." Conn. Gen.Stat. § 46a-10. It serves as the protection and advocacy system for the purposes of three federal statutes described below, the Developmental Disabilities Assistance and Bill of Rights Act, the Protection and Advocacy of Individual Rights Act, and the Protection and Advocacy for Mentally III Individuals Act. The OPA is bound by state and federal law regarding confidentiality. Conn. Gen.Stat. § 46a-11h; 42 U.S.C. § 10806.

1. The Development Disabilities Assistance and Bill of Rights Act
The Developmental Disabilities Assistance and Bill of Rights Act ("DD Act") provides for federal funding of state systems "to protect the legal and human rights of individuals with developmental disabilities....." 42 U.S.C. § 15041; 42 U.S.C. § 15042. In order to qualify for such funds, a state must have in place a system that is authorized to provide effective advocacy for and protection of the rights of developmentally disabled persons. 42 U.S.C. § 15043(a)(2)(A). Further, such systems must "have access at reasonable times to any individual with a developmental disability in a location in which services, supports, and other assistance are provided to such an individual" as well as access to records of developmentally disabled individuals when certain factors arise. 42 U.S.C. § 15043(a)(2)(H)0907(I). Where a system is entitled to access to records, such records must be provided to the system "not later than 3 business days after the system makes a written request for the records involved." 42 U.S.C. § 15043(J)(I). To the extent that developmentally disabled students attend HTLA, see discussion, infra, section II.C, the school is undoubtedly a "location in which services, supports, and other assistance are provided." 42 U.S.C. § 15043(a)(2)(H)0907(I).
2. The Protection and Advocacy of Individual Rights Act
The Protection and Advocacy of Individual Rights Act ("PAIR") creates an identical framework with respect to the rights of individuals with disabilities. 29 U.S.C. § 794e. PAIR applies to individuals with disabilities who are not entitled to protection or services under either the Protection and Advocacy for Mentally III Individuals Act or the DD Act. 29 U.S.C. § 794e(a)(1)(B). In order to receive federal funds under PAIR, a state must "have in effect a system to protect and advocate the rights of individuals with disabilities" and such system must "have the same general authorities, including access to records and program income, as are set forth" in the DD Act. 29 U.S.C. § 794e(f)(1)-(2). Thus, while PAIR applies to a broader segment of the population of individuals with disabilities, it allows protection and advocacy systems the same breadth of investigative and advocacy authority allowed under the DD Act. Again, to the extent that students protected by PAIR attend HTLA, see discussion, infra, section II.C, the school must provide OPA with access to such students.
3. The Protection and Advocacy for Mentally III Individuals Act
655 The Protection and Advocacy for Mentally III Individuals Act ("PAMII")[1] provides *655 an similar system for the purposes of protecting the rights of mentally ill individuals. 42 U.S.C. § 10801-10807. The Act provides for federal funding:
to assist States to establish and operate a protection and advocacy system for individuals with mental illness which will (A) protect and advocate the rights of such individuals through activities to ensure enforcement of the Constitution and Federal and State statutes; and (B) investigate incidents of abuse and neglect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred.
42 U.S.C. § 10801(b)(2)(B). In order to be eligible for such funding, states must establish systems to "(1) protect and advocate the rights of individuals with mental illness; and (2) investigate incidents of abuse and neglect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred." 42 U.S.C. § 10803(2). Such systems are authorized to "investigate incidents of abuse and neglect of individuals with mental illness" and "pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the state." 42 U.S.C. § 10805(a)(1)(A)(B). They are entitled to access to records where certain criteria are met. 42 U.S.C. § 10805(a)(4). Such systems also must "have access to facilities in the State providing care or treatment." 42 U.S.C. § 10805(a)(3).

C. The DD Act, PAMII Act, and PAIR Act Authorize OPA to Investigate Possible Abuse and Neglect at HTLA
Courts have found that protection and advocacy systems need not "make a threshold showing of mental illness" in order to exercise their authority under PAMII. Protection and Advocacy for Persons with Disabilities v. Armstrong, 266 F.Supp.2d 303, 313 (D.Conn.2003); Michigan Protection and Advocacy Service v. Miller, 849 F.Supp. 1202, 1207 (W.D.Mich.1994). A denial of access on the grounds that OPA has not made a conclusive showing that HTLA students are individuals with mental illness or developmentally disabled "prevents [OPA] from bringing in their own mental health professionals to ascertain whether any [students] do in fact suffer from mental illness. Such conduct ... defeats the very purpose of PAMII and the DD Act to provide effective protection and advocacy services to mentally ill and developmentally disabled persons." Michigan Protection and Advocacy Service, 849 F.Supp. at 1207.
Instead of requiring conclusive evidence that a particular person or persons qualifies as an individual with mental illness or developmentally disabled for the purposes of a protection and advocacy system's authorizing statutes, courts have held that a showing of "substantial evidence" must suffice in order for such systems to fulfill their statutory mandate. See id. at 1207. "`[E]vidence that a facility has previously housed individuals who are mentally ill, as well as evidence that some current residents may be mentally ill[,] is sufficient under PAMII to merit access by [protection and advocacy systems].'" Protection and Advocacy for Persons with Disabilities, 266 F.Supp.2d at 314 (quoting Kentucky Prot. & Advocacy Div. v. Hall, et al., No. 3:01cv-538-H, slip. op. (W.D.Ky. Sept. 24, 2001)) (emphasis added).
In order to be placed at HTLA, a child must first be designated "seriously emotionally disturbed." Stipulations of Fact [Dkt. No. 13] at ¶ 7. Defendants concede that "most HTLA students probably qualify as individuals with 656 mental illness for *656 PAMII's purposes." Def.'s Objection to Mot. for Permanent Injunction [Dkt. No. 12] at n. 11. Indeed, PAMII's definition of an "individual with mental illness" includes an "individual who has a significant ... emotional impairment." 42 U.S.C. § 10802(4)(A). That definition appears to be inclusive of individuals who are "seriously emotionally disturbed." Federal regulations define the term "serious emotional disturbance" to include the following:
(1) A condition that has been confirmed by clinical evaluation and diagnosis and that, over a long period of time and to a marked degree, adversely affects educational performance and that exhibits one or more of the following characteristics: (i) An inability to learn that cannot be explained by intellectual, sensory, or health factors, (ii) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers, (iii) Inappropriate types of behavior under normal circumstances, (iv) A tendency to develop physical symptoms or fears associated with personal or school problems, (v) A general, pervasive mood of unhappiness or depression. (2) Schizophrenia, but does not include children who are socially maladjusted, unless it is determined that they are otherwise seriously emotionally disturbed.
Provision of Early Intervention Services to Eligible Infants and Toddlers with Disabilities and Their Families, and Special Education Children with Disabilities Within the Section 6 School Arrangements, 32 C.F.R. § 80.3 (2004).
The defendants dispute, however, that students at HTLA ought to be considered developmentally disabled for the purposes of the DD Act. The defendants provide the Affidavit of Jody S. Lefkowitz, Senior Director for Exceptional Children for Hartford Public Schools, which Affidavit claims that students with severe developmental disabilities are not placed at HTLA but are placed at other facilities in and outside of the Hartford Public School system. Affidavit of Jody S. Lefkowitz [Dkt. No. 12] at ¶¶ 8-10. In response, OPA provides an affidavit from its Assistant Program Director attesting that of OPA's former and current clients who are or have been students at HTLA, many have been developmentally disabled and that students who present symptoms of a developmental disability are sometimes labeled "seriously emotionally disturbed."
PAIR expands on the rights and protections created by PAMII and the DD Act and includes individuals with disabilities who do not qualify for services under either of the other statutes. 29 U.S.C. § 794e. If a child

diagnosed as "seriously emotionally disturbed" is disabled for the purposes of section 794e but is not considered developmentally disabled for the purposes of the DD Act or to have a mental illness for the purposes of PAMII, that student may be subject to the protections of PAIR. The fact that all HTLA students are diagnosed as "substantially emotionally impaired" allows an inference that students fall under the protection of either the DD Act or PAIR, both of which provide OPA with identical investigative powers. These facts, considered alongside HTLA's concession that its students are "individuals with mental illness" for the purposes of PAMII[2], establish that OPA has met the standard set forth in Armstrong and is authorized by PAIR and PAMII to investigate 657 incidents of abuse or neglect at HTLA. The court need not resolve the parties' dispute regarding the *657 applicability of the DD Act as PAIR provides OPA with the same authorities as does the DD Act. 29 U.S.C. § 794e (f)(1)(2).
D. OPA is Entitled to Access to HTLA
PAIR requires that protection and advocacy systems "have access at reasonable times to any individual with a developmental disability in a location in which services, supports, and other assistance are provided to such an individual." 42 U.S.C. § 15043(a)(2)(H); see 29 U.S.C. § 794e(f)(1)-(2) (providing that systems created pursuant to PAIR "have the same general authorities, including access to records and program income, as are set forth" in the DD Act). Access under this provision is not limited to access to residential locations. To the extent that HTLA serves students covered under the DD Act and PAIR, it must provide reasonable access to such students to OPA. Because OPA has made a sufficient showing that students at HTLA are entitled to its services under PAIR, OPA is authorized to access "any individual ... in a location" as is reasonable under the statute. Id.
Rather than provide access to individuals as the DD Act and PAIR do, PMII requires that protection and advocacy systems "have access to facilities in the State providing care or treatment." 42 U.S.C. § 10805(a)(3). The defendants argue that they are not required to provide access to HTLA under PAMII because HTLA is not a "facility" for the purposes of the Act. The Act provides that "[t]he term `facilities' may include, but need not be limited to, hospitals, nursing homes, community facilities for individuals with mental illness, board and care homes, homeless shelters, and jails and prisons." 42 U.S.C. § 10802(4). Notably, while the statute does not limit use of the term "facilities" as such, all of the examples listed are residential institutions. Implementing regulations have defined the term "facilities" to include "any public or private residential setting that provides overnight care accompanied by treatment services." Requirements Applicable to the Protection and Advocacy for Individuals with Mental Illness Program, Definitions, 42 C.F.R. § 51.2 (2004) (emphasis added). The plaintiffs argue that PAMII was recently amended to expand its purview to nonresidential facilities and, the regulations have not yet been updated accordingly. Pl.'s Reply Memo, to Def.'s Objection to Pl.'s Mot. for a Permanent Injunction [Dkt. NO. 14] at 8.
The court notes that PAMII was amended in 2000. Public Law 106-310 expanded the definition of the term "individual with mental illness." Prior to the 2000 amendment, the term applied only to individuals with "a significant mental illness or emotional impairment" who were inpatients or residents of facilities providing mental health services, in the process of being admitted to such facilities, or confined in a detention facility. An individual was not entitled to services under the act unless confined in a residential facility.
PAMII's legislative history supported such an interpretation of the original act. The Labor and Human Resources Committee prepared the 1985 Senate Report which laid out the bases for its recommendation that Public Law 99-319 be passed. S. REP. No. 99-109 (1985), reprinted in 1986 U.S.C.C.A.N. 1361. The legislation was drafted in response to concerns regarding "the care and treatment of institutionalized persons who are developmentally disabled, mentally retarded, or mentally ill." Id. at 1361. The report described the results of "a 9-month staff investigation of conditions in state-operated facilities for the developmentally disabled, mentally retarded and/or 658 mentally ill." Id. According *658 to the report, the bill "defines `mentally ill person' to mean an individual for whom a primary diagnosis of mental illness has been made and who resides for 24 hours each day in a residential facility." Id.
In 2000, Public Law 106-310 amended PAMII's definition of a mentally ill individual to include persons who live "in a community setting, including their own home." Children's Health Act of 2000, Pub.L. No. 106-310, codified at 42

U.S.C. § 10802(4). The 2000 amendment expanded the definition of a mentally ill individual for the purposes of PAMII. The Act currently includes in its definition of an individual with mental illness a person "who has a significant mental illness or emotional impairment, as determined by a mental health professional qualified under the laws and regulations of the State ... and lives in a community setting, including their own home." 42 U.S.C. 10802(4). Thus, a protection and advocacy system must serve the needs of both mentally ill individuals who are institutionalized or otherwise treated in residential facilities and individuals who are mentally ill and live in their own home. Previously, an individual was considered "mentally ill" under the statute only if he suffered such an illness and resided in a facility providing treatment. In effect, the 2000 amendment rewrites PAMII's definition of a mentally ill individual to include anyone with "a significant mental illness or emotional impairment, as determined by a mental health professional" without regard to where that person resides. Such person may reside in a facility providing treatment or "in a community setting, including their own home."
When applying a statute, this court is "required to `disfavor interpretations of statutes that render language superfluous.'" Connecticut ex rel. Blumenthal v. U.S. Dept. of the Interior, 228 F.3d 82, 88 (2d Cir.2000) (quoting Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)). Arguably, the interpretation suggested by OPA0907that it is authorized under PAMII "to investigate incidents of abuse and neglect of individuals with mental illness" pursuant to section 10805(a)(1)(A) regardless of where those individuals reside0907 renders part B of section 10802(4) superfluous. The definition of an "individual with mental illness" might as well be limited to part A of that section, without the conjunction "and" used to make additional requirements regarding an individual's residence.
Nevertheless, "courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank, 503 U.S. at 253-54, 112 S.Ct. 1146. When Congress chose to revise the definition of "individual with mental illness," there was more than one way in which to do so. For example, it could have removed section 10802(4)(B) in its entirety. Instead, Congress chose to expand the definition by adding a subsection that explicitly adds an additional category of individuals subject to the rights and protections created by the statute. In the instant context, it would be clearly contrary to Congressional intent to excise that portion of statute in the interest of avoiding a reading that renders a section superfluous. It is "far more likely that Congress inadvertently created a redundancy," Connecticut Nat'l Bank, 503 U.S. at 256, 112 S.Ct. 1146 (O'Connor, concurring), or added the subsection to expressly extend coverage, than that it intended to limit its definition of mentally ill individuals to those residing in facilities where the statutory language expressly provides that the definition ought to include individuals residing in their own homes. Therefore, PAMII authorizes protection 659 and advocacy systems to investigate incidents of abuse and neglect and access an individual's *659 mental health records without regard to an individual's residence. See 42 U.S.C. § 10805(a)(1),(4).
The more difficult question that remains is whether PAMII authorizes a protection and advocacy system to have physical access to a non-residential program providing treatment to mentally ill persons. The statute requires that protection and advocacy systems, like OPA, must "have access to facilities in the State providing care or treatment." 42 U.S.C. § 10805(a)(3). Current regulations limit the definition of "facilities" to residential institutions. 42 C.F.R. § 51.2 (2004) ("Facility includes any public or private residential setting that provides overnight care accompanied by treatment services.") Those regulations, however, predate the 2000 amendments to PAMII. They were released in their final form on October 15, 1997, three years before Congress amended its definition of individuals with mental illness under PAMII. See 62 Fed.Reg. 53548. They do not, for example, take into account the explicit revision of the definition of an individual with mental illness and, instead, maintain the pre-2000 definition. That the regulations have not been revised to address a statutory revision is not unusual. Between the statute's passage in 1986 and the 1991 amendments, no rules were promulgated pursuant to PMII. H.R. REP. No. 102-319 (1991), reprinted in 1991 U.S.C.C.A.N. 777, 785. Following 1991 amendments to PAMII that explicitly authorized rulemaking by the Department of Health and Human Services, final rules were not promulgated until October 1997, six years after those amendments were passed. See Requirements Applicable to Protection and Advocacy of Individuals with Mental Illness; Notice of Proposed Rulemaking, 59 Fed. Reg. 64367-01 (December 14, 1994); Requirements Applicable to Protection and Advocacy of Individuals with Mental Illness; Final Rule, 62 Fed.Reg. 53548 (October 15, 1997).
No regulations interpret PAMII in its current and applicable form. The court cannot defer to an agency interpretation that predates relevant amendments to the statute. Compare Helvering v. Winmill, 305 U.S. 79, 83,

59 S.Ct. 45, 83 L.Ed. 52 (1938) ("Treasury regulations and interpretations long continued without substantial change, applying to unamended or substantially reenacted statutes, are deemed to have received congressional approval and have the effect of law."). Therefore, the court must consider the plain language as well as the legislative intent underlying the relevant section, which requires protection and advocacy systems to "have access to facilities in the State providing care or treatment." 42 U.S.C. § 10805(a)(3). The statute itself does not limit the term "facilities" to residential institutions. Generally, the provisions of section 10805(a) provide protection and advocacy systems with the particular tools necessary to "protect and advocate the rights of individuals with mental illness." 42 U.S.C. § 10805(a). Fulfilling the responsibility to "investigate incidents of abuse and neglect" and "pursue administrative, legal, and other appropriate remedies" requires certain investigative powers. Id. These powers include access to records, 42 U.S.C. § 10805(a)(4), independence from other state agencies, 42 U.S.C. § 10805(a)(2), and the ability to access those institutions where individuals with mental illness are treated, 42 U.S.C. § 10805(a)(3). If OPA's mandate is to protect and advocate the rights of all individuals with mental illness, regardless of whether they are treated as inpatients or outpatients, its access cannot be limited to residential facilities but must extend to all facilities treating individuals with mental illness. To exclude facilities 660 treating individuals *660 who live in a community setting, including their own home, would be counter to the clear language of the statute, as well as its intent. Thus, HTLA, as a facility providing care or treatment, is subject to access by OPA, pursuant to PMII's grant of authority to that agency. 42 U.S.C. § 10805(a)(4). Therefore, both PAIR and PAMII entitle OPA to physical access to HTLA.
E. OPA is Entitled to the Names and Contact Information Sought
While OPA's access to students' records is not limited by the fact that HTLA is not a residential institution, that access is limited by statutory provisions that address authorization by an individual with mental illness or a developmental disability or that person's legal representative. See 42 U.S.C. § 10805(a)(4); 42 U.S.C. § 15043(a) (2)(I). Defendants argue that OPA cannot, pursuant to its authorizing statutes, access the records sought from HTLA. Further, the defendants argue that if the statutes do authorize such access, OPA's request must nonetheless fail because HTLA and the Hartford Board of Education are bound by confidentiality provisions in the Federal Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g, and the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. FERPA limits federal educational funding to educational agencies and institutions that follow certain statutory mandates with respect to release of information and educational records. 20 U.S.C. § 1232g. IDEA requires educational institutions and agencies receiving federal funds pursuant to that statute to abide by FERPA's mandates. 20 U.S.C. § 1417(c).
Section 10805, which authorizes OPA to access a person's records under particular circumstances, does not define the term "records." It is sensible under these circumstances to incorporate the definition provided in section 10806, which references section 10805(a)(4) and provides standards regarding confidentiality and disclosure of records accessed by a protection and advocacy system pursuant to section 10805(a)(4). See Pennsylvania Protection & Advocacy, Inc. v. Houstoun, 228 F.3d 423, 426 n. 1 (3d Cir.2000). Section 10806 provides that
"records" includes reports prepared by any staff of a facility rendering care and treatment or reports prepared by an agency charged with investigating reports of incidents of abuse, neglect, and injury occurring at such facility that describe incidents of abuse, neglect, and injury occurring at such facility and the steps taken to investigate such incidents, and discharge planning records.
42 U.S.C. § 10806(b)(3)(A).
OPA concedes that it cannot access staff reports and similar records under the requirements described in section 10805(a)(4). Instead, it seeks "directory information" so that it can contact the students' legal representatives for the purposes of securing consent to review other records. PAMII allows access to records where OPA receives a complaint or has probable cause to believe that an individual's health or safety is in serious and immediate jeopardy and OPA contacts the student's representative "upon receipt of the name and address of such representative." 42 U.S.C. § 10805(a)(4)(c). Similarly, the DD Act provides for access to records where a developmentally disabled individual has a legal representative; OPA has received a complaint or has probable

cause to believe that such individual has been subject to abuse or neglect; and OPA contacts the individual's legal representative, "upon receive of the name and address of such representative." 42 U.S.C. § 15043(a)(2)(I) 661 (iii). The circumstances under which OPA can obtain records *661 are broader under the DD Act and PAIR. OPA need only have probable cause to believe that abuse or neglect has occurred or is occurring. Under PAMII, OPA must meet a higher burden, requiring it to have probable cause to believe that "the health or safety of the individual is in serious and immediate jeopardy." 42 U.S.C. § 10805(a)(4)(c). The standard for finding that probable cause exists is lower for these purposes than it would be in the context of a criminal investigation. Alabama Disabilities Advocacy Program v. J.S. Tarwater Developmental Center, 97 F.3d 492, 498-99 (11th Cir.1996). Furthermore, courts have found that the protection and advocacy system, in this case OPA, is the final arbiter of probable cause for these purposes. Protection and Advocacy for Persons with Disabilities v. Armstrong, 266 F.Supp.2d 303, 321 (D.Conn. 2003); Center for Legal Advocacy v. Earnest, 188 F.Supp.2d 1251, 1257 (D.Colo. 2002), rev'd on other grounds, 320 F.3d 1107 (10th Cir.2003); Arizona Center for Disability Law v. Allen, 197 F.R.D. 689 (D.Ariz.2000). The court need not determine for these purposes whether OPA is in fact the final arbiter of probable cause because the court's view is that probable cause exists in the instant circumstance.

The language of the provisions authorizing access to records is far from clear. Were the phrase "upon receipt of the name and address of such representative", as used in both the DD Act and PAMII, to be construed to mean that a protection and advocacy system be required to contact that representative without HTLA providing the name and address, the phrase would be meaningless. Instead, the court reads the phrase to authorize a request by OPA for the names and addresses of students for whom there is the requisite degree of probable cause to demand records under PAMII and the DD Act. Upon receipt of such information, OPA can attempt to contact legal representatives of such individuals in order to obtain express permission to act on their behalf. Regulations promulgated pursuant to both the DD Act and PAMII support this interpretation of the statute. They use identical language to provide that a protection and advocacy system "shall be provided promptly ... the name, address and telephone number of the legal guardian, conservator, or other legal representative of an individual" with developmental disabilities or mental illness where the system is denied access to facilities or records "for alleged lack of authorization." State System for Protection and Advocacy of the Rights of Individuals with Disabilities, 45 C.F.R. § 1386.22 (2004) (DD Act); 42 C.F.R. § 51.43 (2003) (PAMII).

While defendants contest the applicability of either PAMII or the DD Act to HTLA, they concede that the statutes and regulations create a responsibility on the part of an institution to provide contact information for an individual's "legal guardian, conservator, or other legal representative", where an institution refuses to release that individual's records on the grounds that an individual or his legal representative has not authorized such release. Id. The defendants argue, however, that students at HTLA who are not in state custody do not have such a legal representative for the purposes of these statutes. They cite regulations pursuant to both PAMII and the DD Act that provide a limited definition of the terms "legal guardian, conservator, and legal representative."

Legal Guardian, Conservator, and Legal Representative all mean an individual whose

appointment is made and regularly reviewed by a State court or agency empowered under State

law to appoint and review such officers, and having authority to consent to health/mental health

662

care or treatment of an individual *662 with mental illness. It does not include persons acting only

as representative payee, persons acting only to handle financial payments, attorneys or persons

acting on behalf of an individual with mental illness only in individual legal matters, or officials

responsible for the provision of health or mental health services to an individual with mental

illness, or their designees.

42 C.F.R. § 51.2 (2004) (PAMII). The regulations pursuant to the DD Act are substantially similar. 45 C.F.R. § 1386.19 (2004).

The defendants argue that by the plain terms of the regulation, parents of a minor do not qualify as a "Legal Guardian, Conservator, [or] Legal Representative." Therefore, HTLA is not required to turn over names and contact information for students' parents pursuant to the DD Act, PAMII, PAIR, or any of the regulations pursuant to such statutes.

The defendants' interpretation of the regulations is counter to that of the promulgating agency, the U.S. Department of Health and Human Services. The final rule appeared in the Federal Register on October 15, 1997.

The accompanying commentary included clarification of the definition of a "Legal Guardian, Conservator, and Legal Representative." While the Department confirmed that certain persons responsible for mentally ill persons were excluded from the definition, "natural or adoptive parents [of minor children] are legal guardians unless the State has appointed another legal guardian under applicable State law." Substance Abuse and Mental Health Services Administration; Requirements Applicable to Protection and Advocacy of Individuals with Mental Illness; Final Rule, 62 Fed.Reg. 53548-01, 53552. Indeed, a 1991 amendment to PMII emphasized the role of family members in the protection of and advocacy for mentally ill persons. See 42 U.S.C. § 10801(a)(2). The Committee on Energy Commerce concluded that "the involvement of family members is crucial to the successful implementation of the PAMII Act and therefore family involvement should be welcomed and encouraged." H.R. REP. NO. 102-319, reprinted in 1991 U.S.C.C.A.N. 777, 781.
The defendants argue that their interpretation of the regulations supports their contention that PAMII does provide for services, protection, or advocacy for minors with parents who maintain custody and guardianship, but the committee report is counter to that argument. That report provides that, "P & A staff should involve family members where the family member with a mental illness is a minor...." Id. For the statute and its regulations to ignore parents' roles as legal guardians of their children would run counter to statutory objectives. On this basis and crediting the agency's interpretation of its own regulation, the court cannot conclude that parents are excluded from the definition of a "Legal Guardian, Conservator, and Legal Representative." PAMII grants expansive powers to protection and advocacy systems to investigate incidents of neglect of abuse of individuals with mental illness. "In this regard, it is no less critical to access the records of those with natural parents as those with legal guardians. Without the disclosure by the facility of the parents' names and addresses, it may be impossible for the P & A to contact those parents; at the very least, it might significantly delay the process." Advocacy, Incorporated v. The Brown Schools, Inc., 2001 WL 1910563 at *4 (W.D.Tex. Oct. 1, 2001).
The defendants argue that, even if OPA has the right to obtain the information it seeks, other statutes prohibit 663 such release of HTLA records. FERPA provides that "[n]o funds shall be made available *663 under any
applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information ...) of students without the written consent of their parents to any individual, agency, or organization ...." 20 U.S.C. § 1232g(b)(1). FERPA's restrictions on access to educational records appear to conflict with the DD Act and PAMII's grant of authority to protection and advocacy systems to access such information. Where the court "find[s] no `clear and manifest' indication that Congress intended [one section] to repeal [another], it is our duty to harmonize the provisions, if possible." Auburn Housing Authority v. Martinez, 277 F.3d 138, 150 (2d Cir.2002).
The defendants cite to Washington Protection and Advocacy System. Inc. v. Evergreen School District, C03-5062 (FDB), to support their contention that, in light of FERPA, public schools cannot provide records requested by protection and advocacy systems organized pursuant to the DD Act, PAMII, and PAIR. In a ruling on a motion for a preliminary injunction, the Washington Protection and Advocacy System court determined that it was "not sufficiently satisfied that the P & A Acts override the FERPA and IDEA." Id. at 3. No rationale was provided for this conclusion. Furthermore, that court considered only the plaintiff's likelihood of success on the merits, not actual success on the merits. In addition, the conclusion that the Washington Protection and Advocacy System had not established a likelihood of success was based not only on FERPA and IDEA, but also on that court's finding that the plaintiff did not have probable cause to believe that the child in question had suffered abuse and neglect. Id. at 5.
The Western District of Michigan, in Michigan Protection & Advocacy Service, 849 F.Supp. at 1208, supra, section II.C, appears to be the only other court to have considered the potential conflict between FERPA and IDEA, on one hand, and the DD Act and PAMII, on the other. That court concluded that, given the unequivocal statutory mandate afforded to protection and advocacy systems to access records in specific situations and the statutory responsibility of such organizations to keep such records confidential, FERPA and IDEA did not prevent educational institutions and agencies from providing such systems with records. Id. While the defendant urges the court not to consider the Michigan ruling persuasive because it addressed only physical access to an institution, the court notes that the ruling explicitly addressed documentary records as well. Id.

In reconciling the two statutes, it is important to note that the OPA is bound by state and federal law regarding confidentiality. Conn. Gen.Stat. § 46a-11h; 42 U.S.C. § 10806. State law provides that "all confidential records obtained by the office in the course of any such investigation shall be confidential and shall not be subject to disclosure under the Freedom of Information Act." Conn. Gen.Stat. § 46a-11h. Federal law requires OPA to maintain the same standards with respect to confidentiality as does the institution from which it receives records.
An eligible system which, pursuant to section 10805(a)(4) of this title, has access to records which, under Federal or State law, are required to be maintained in a confidential manner by a provider of mental health services, shall ... maintain the confidentiality of such records to the same extent as is required of the provider of such services.
42 U.S.C. § 10806(a). Thus, PAMII explicitly contemplates those instances in which a protection and advocacy 664 system *664 may request records that are confidential under federal law, in this case FERPA and IDEA. In such
situations, PAMII requires that a protection and advocacy system "maintain the confidentiality of such records to the same extent as is required of the provider" by the applicable law. Id. OPA, therefore, is bound by the confidentiality provisions of FERPA and IDEA upon receipt of any educational records from the defendants. To allow protection and advocacy systems access to records in the limited circumstances provided for in the DD Act, PAMII, and PAIR does not contravene Congress' intent to maintain parents' and students' confidentiality. In this case, allowing OPA to access parents' names and contact information serves the purposes of all of the above statutes by allowing OPA to pursue its investigation as required by PAMII and PAIR while limiting its access to records until it receives authorization from students and parents, as is required by FERPA and IDEA. Thus, the court is able to harmonize the various statutes. This reading is preferable to a finding that one or more of the statutes repeals by implication one or more of the others where there is no indication that Congress intended such result. Thus, pursuant to PAMII and PAIR, OPA is entitled to names and contact information for parents and legal guardians of students at HTLA.
III. CONCLUSION
For the reasons discussed above, the court declares that the defendants' refusal to provide the plaintiffs with physical access to HTLA when students are present and with name and contact information for parents and legal guardians of HTLA's students violates PAMII and PAIR. The defendants are hereby ordered to grant both physical access and names and contact information such that OPA can perform its statutory duty to investigate suspected abuse and neglect. The case is closed. The court retains jurisdiction to ensure compliance.
SO ORDERED
[1] The parties sometimes refer to the Act as PAIMI. While 1988 amendments removed from the Act all use of the term "mentally ill individuals" and, instead, substituted "individuals with mental illness," the name of the Act itself was not changed. See Requirements Applicable to Protection and Advocacy of Individuals with Mental Illness; Final Rule, 62 Fed.Reg. 53548-01 (Oct. 15, 1997). Therefore, the Act will be referred to as "PAMII" in this Ruling.
[2] Without this concession, the court would have reached the same conclusion based on the record before it.
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CLOSED, EFILE
U.S. District Court United States District Court for the District of Connecticut (New Haven)
CIVIL DOCKET FOR CASE #: 3:04-cv-01338-JCH

Protection & Advocacy for Persons With Disabilities et al v. Hartford Bd of Ed et al Assigned to: Judge Janet C. Hall Cause: 29:0794 Job Discrimination (Handicap)

Date Filed: 08/11/2004 Date Terminated: 02/08/2005 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Protection & Advocacy for Persons With Disabilities State of CT

represented by Nancy B. Alisberg State Of Connecticut Office Of Prot. & Adv. For Handicapped 60B Weston St. Hartford, CT 06120 800-842-7303 Fax: 860-566-8714 Email: nancy.alisberg@po.state.ct.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
James McGaughey Exec Dir, State of CT Ofc of Protection & Advocacy for Persons with Disabilities

Paulette G. Annon State of Connecticut Office of Protection & Advocacy for Persons with Disabilities 60B Weston St. Hartford, CT 06120-1551 860-297-4329 Email: paulette.annon@po.state.ct.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nancy B. Alisberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paulette G. Annon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Hartford Bd of Ed

represented by Ann F. Bird Corporation Counsel's Office 550 Main St.

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Defendant Hartford Public Schools
Defendant Robert Henry Supt of Schools, /O

Room 303 Hartford, CT 06103 860-543-8575 Fax: 860-722-8085 Email: birda001@hartford.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Rose, Jr. Corporation Counsel-City of Hartford 550 Main St. Hartford, CT 06103 860-543-8575 Fax: 860-722-8114 Email: RoseJ001@hartford.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ann F. Bird (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Rose, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ann F. Bird (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Rose, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/11/2004
08/11/2004 08/11/2004

#

Docket Text

1 COMPLAINT against Hartford Bd of Ed, Hartford Public Schools, Robert Henry ( Filing fee $ 150 receipt number H013377.), filed by James McGaughey, Protection & Advocacy for Persons With Disabilities. (Attachments: # 1 Exhibits 1-6# 2 Exhibits 7-11)(Ferguson, L.) (Entered: 08/13/2004)

Summons Issued as to Hartford Bd of Ed, Hartford Public Schools, Robert Henry. (Ferguson, L.) (Entered: 08/13/2004)

2 Order on Pretrial Deadlines: Motions to Dismiss due on 11/11/04. Amended Pleadings due by 10/10/2004. Discovery due by 2/10/2005. Dispositive Motions due by 3/12/2005. (Ferguson, L.) (Entered: 08/13/2004)

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08/11/2004 08/11/2004
08/19/2004 08/19/2004 08/19/2004 08/23/2004 08/26/2004
08/30/2004 08/31/2004 09/13/2004 09/27/2004 09/28/2004
10/08/2004 10/08/2004

3 MOTION for Preliminary Injunction by James McGaughey, Protection & Advocacy for Persons With Disabilities.Responses due by 9/1/2004 (Ferguson, L.) (Entered: 08/13/2004)
4 Memorandum in Support re 3 MOTION for Preliminary Injunction filed by James McGaughey, Protection & Advocacy for Persons With Disabilities. (Attachments: # 1 Exhibits 1-6# 2 Exhibits 7-12# 3 Exhibit 12 cont'd)(Ferguson, L.) (Entered: 08/13/2004)
5 SUMMONS Returned Executed by James McGaughey, Protection & Advocacy for Persons With Disabilities. Hartford Public Schools served on 8/13/2004, answer due 9/2/2004. (Candee, D.) (Entered: 08/19/2004)
6 SUMMONS Returned Executed by James McGaughey, Protection & Advocacy for Persons With Disabilities. Hartford Bd of Ed served on 8/13/2004, answer due 9/2/2004. (Candee, D.) (Entered: 08/19/2004)
7 SUMMONS Returned Executed by James McGaughey, Protection & Advocacy for Persons With Disabilities. Robert Henry served on 8/13/2004, answer due 9/2/2004. (Candee, D.) (Entered: 08/19/2004)
8 NOTICE RE: INTENT TO DESIGNATE AS AN ELECTRONICALLY FILED CASE. Response due by 9/7/2004. Signed by Judge Janet C. Hall on 8/23/04. (Cody, C.) (Entered: 08/23/2004)
NOTICE TO COUNSEL RE: E-FILE CALENDAR. THIS IS THE ONLY NOTICE COUNSEL WILL RECEIVE. TELEPHONIC STATUS CONFERENCE set for 8/31/2004 2:00 PM before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 5795554. (Szczygiel, G.) (Entered: 08/26/2004)
9 NOTICE of Appearance by John Rose Jr., Ann F. Bird on behalf of Hartford Bd of Ed, Hartford Public Schools, Robert Henry (Candee, D.) (Entered: 08/31/2004)
10 Minute Entry for proceedings held before Judge Janet C. Hall : Status Conference held on 8/31/2004. (Court Reporter Fidanza.) (Boroskey, C.) (Entered: 09/01/2004)
11 ORDER DESIGNATING CASE AS E-FILED CASE. Signed by Judge Janet C. Hall on 9/13/04. (Cody, C.) (Entered: 09/13/2004)
12 OBJECTION re 3 MOTION for Preliminary Injunction filed by Hartford Bd of Ed, Hartford Public Schools, Robert Henry. (Exhibit 1 submitted in paper form.) (Candee, D.) (Entered: 09/28/2004)
13 Statement of Material Facts re 3 MOTION for Preliminary Injunction filed by James McGaughey, Protection & Advocacy for Persons With Disabilities. (Attachments: # (1) Exhibits A-D #(2) Exhibit E-G #(3) Exhibits H-K) with Notice of Manual Filing. (Candee, D.) (Entered: 09/30/2004)
14 REPLY to Response to 3 MOTION for Preliminary Injunction filed by James McGaughey, Protection & Advocacy for Persons With Disabilities. (Alisberg, Nancy) (Entered: 10/08/2004)
15 AFFIDAVIT of Elizabeth Daly re: 3 MOTION for Preliminary Injunction filed by James McGaughey, Protection & Advocacy for Persons With Disabilities. (Attachments: # 1Copy of Reply to Response 14)(Alisberg, Nancy) Modified on 10/14/2004 (Cody, C.). (Entered: 10/08/2004)

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Document #15 corrected to identify Affidavit with attachment as document filed. (Cody, C.) (Entered: 10/14/2004)
16 MOTION to Strike Letter of November 12 by Hartford Bd of Ed, Hartford Public Schools, Robert Henry.Responses due by 12/10/2004 (Bird, Ann) (Entered: 11/19/2004)
17 RESPONSE re 16 MOTION to Strike Letter of November 12 filed by James McGaughey, Protection & Advocacy for Persons With Disabilities. (Attachments: # 1 Affidavit)(Alisberg, Nancy) (Entered: 11/23/2004)
18 REPLY to Response to 16 MOTION to Strike Letter of November 12 filed by James McGaughey, Protection & Advocacy for Persons With Disabilities. (Attachments: # 1 Affidavit of Nancy B. Ailsberg)(Candee, D.) (Entered: 12/01/2004)
19 NOTICE TO COUNSEL RE: E-FILE CALENDAR. THIS IS THE ONLY NOTICE COUNSEL WILL RECEIVE. ORAL ARGUMENT RE: Motion for Preliminary/Permanent Injunction set for 1/4/2005 11:30 AM, U.S. District Court, 915 Lafayette Blvd.,Courtroom 2, Bridgeport, CT before Judge Janet C. Hall. All persons entering the courthouse must present photo identification.(Szczygiel, G.) (Entered: 12/22/2004)
20 NOTICE TO COUNSEL RE: E-FILE CALENDAR. THIS IS THE ONLY NOTICE COUNSEL WILL RECEIVE. ORAL ARGUMENT RE: Motion for Preliminary/Permanent Injunction set for 1/21/2005 02:00 PM (rescheduled from 1/4/05), U.S. District Court, 915 Lafayette Blvd.,Courtroom 2, Bridgeport, CT before Judge Janet C. Hall. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION.(Szczygiel, G.) (Entered: 12/23/2004)
21 Minute Entry for proceedings held before Judge Janet C. Hall : Motion Hearing held on 1/21/2005 re 3 MOTION for Preliminary Injunction filed by Protection & Advocacy for Persons With Disabilities, James McGaughey, 16 MOTION to Strike Letter of November 12filed by Hartford Bd of Ed, Hartford Public Schools, Robert Henry. (Court Reporter Fidanza.) (Boroskey, C.) (Entered: 01/21/2005)
22 NOTICE OF ELECTRONIC ORDER. THIS IS THE ONLY NOTICE THE COURT WILL ISSUE. ORDER taking under advisement 3 Motion for Preliminary Injunction, withdrawing 16 Motion to Strike Letter of November 12. Signed by Judge Janet C. Hall on 1/21/05. (Boroskey, C.) (Entered: 01/21/2005)
23 NOTICE of INTENTION to CITE to SUPPLEMENTAL AUTHORITY by James McGaughey, Protection & Advocacy for Persons With Disabilities ( ATTACHMENTS SUBMITTED IN PAPER FORM ) (Simpson, T.) (Entered: 01/25/2005)
24 RULING ON PLAINTIFFS' 3 Motion for Permanent Injunction . The defendants are ordered to grant physicial access, names and contact information such that OPA can perform its statutory duty to investigate suspected abuse and neglect. Signed by Judge Janet C. Hall on 2/7/05. (Cody, C.) (Entered: 02/10/2005)
25 NOTICE OF APPEAL as to 24 RULING ON PLAINTIFFS' 3 Motion for Permanent Injunction. The defendants are ordered to grant physicial access, names and contact information such that OPA can perform its statutory duty to investigate suspected abuse and neglect. by Robert Henry, Hartford Bd of Ed, Hartford Public Schools. Filing fee $ 255, receipt number B009748. Certified copy of docket and copy of NOA mailed to USCA. (Simpson, T.) (Entered: 03/09/2005)

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26 Index to Record on Appeal by Robert Henry, Hartford Bd of Ed, Hartford Public Schools re 25 Notice of Appeal, (Bird, Ann) (Entered: 03/16/2005)
27 TRANSCRIPT of Proceedings held on 1/21/05 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. (Simpson, T.) (Entered: 03/18/2005)
28 Acknowledged Receipt of NOA at USCA on 3/15/05 re 25 Notice of Appeal (Simpson, T.) (Entered: 03/21/2005)
29 Index to Record on Appeal by Robert Henry, Hartford Bd of Ed, Hartford Public Schools re 25 Notice of Appeal, (Bird, Ann) (Entered: 03/24/2005)
30 USCA Scheduling Order as to 25 Notice of Appeal, filed by Hartford Bd of Ed,, Hartford Public Schools,, Robert Henry,. USCA Number: 05-1240cv (Fazekas, J.) (Entered: 04/07/2005)
31 MANDATE of USCA dated 10/18/06 Affirming the judgment of the District Court re 25 Notice of Appeal, filed by Hartford Bd of Ed, Hartford Public Schools, Robert Henry, (Candee, D.) (Entered: 10/20/2006)

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 464 F.3d 229 (2006)
STATE OF CONNECTICUT OFFICE OF PROTECTION AND ADVOCACY FOR PERSONS WITH DISABILITIES and James McGaughey, Executive Director, State of Connecticut,
Office of Protection & Advocacy for Persons with Disabilities, Plaintiffs-Appellees, v.
HARTFORD BOARD OF EDUCATION, Hartford Public Schools and Robert Henry, Supt. of Schools, Defendants-Appellants.
Docket No. 05-1240 CV.
United States Court of Appeals, Second Circuit.
Argued: February 28, 2006. Final Submission: June 20, 2006.
Decided: September 15, 2006.
23012 *230 *231 *232 Nancy B. Alisberg, Managing Attorney, Office of Protection & Advocacy for Persons with Disabilities, Hartford, Connecticut, for Plaintiffs-Appellees.
Ann F. Bird, Assistant Corporation Counsel, City of Hartford, Hartford, Connecticut, for Defendants-Appellants.
Peter D. Keisler, Assistant Attorney General, United States Dept. of Justice, Washington, D.C.; Kevin J. O'Connor, United States Attorney for the District of Connecticut, New Haven, Connecticut; Gregory G. Katsas, Deputy Assistant Attorney General; Mark B. Stern and Sharon Swingle, Attorneys, Civil Division, United States Dept. of Justice, Washington, D.C., for Amici Curiae the Department of Education and the Department of Health and Human Services.
Saul P. Morgenstern, Kaye Scholer LLP, New York, New York, for Amicus Curiae National Association of Protection and Advocacy Systems, Inc.
Kelly Balser, Senior Staff Attorney, Connecticut Association of Boards of Education, Wethersfield, Connecticut, for Amicus Curiae Connecticut Association of Boards of Education.
Before: SOTOMAYOR and RAGGI, Circuit Judges, and CEDARBAUM, District Judge.[*]
SOTOMAYOR, Circuit Judge.
This appeal raises the question of whether the Protection and Advocacy for Individuals with Mental Illness Act 233 ("PAIMI"), 42 U.S.C. §§ 10801-10851 (2000),[1]*233 the Developmental Disabilities Assistance and Bill of Rights
Act of 2000 ("DD Act"), 42 U.S.C. §§ 15001-15115 (2000), and the Protection and Advocacy of Individual Rights Act ("PAIR"), 29 U.S.C. § 794e (2000) (collectively, the "P & A Acts") authorize plaintiffs-appellees the State of Connecticut Office of Protection and Advocacy ("OPA") and its executive director, James McGaughey, (1) to observe and interview students at the Hartford Transitional Learning Academy (the "Academy"), a therapeutic school for students who are seriously emotionally disturbed, in order to investigate complaints of abuse and neglect at the school, and (2) to obtain a directory of students with contact information for their parents or guardians. For the reasons that follow, we hold that the P & A Acts authorize OPA to access the Academy during school hours and to obtain a directory of students and contact information for their parents or guardians.
Defendants-appellants Hartford Board of Education, Hartford Public Schools, and Superintendent of Schools Robert Henry (collectively, "defendants") initially argued on appeal that, even if the P & A Acts authorize OPA to access the Academy and its students and to obtain a list of students and contact information for their parents or guardians, the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g (2000 & Supp. IV), and the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1487 (2000 & Supp. IV), nonetheless bar their compliance with OPA's requests. Following oral argument and the submission of a joint amicus brief by

the United States Departments of Education and Health and Human Services, however, defendants abandoned their arguments based on FERPA and the IDEA, and we therefore do not address them. We affirm the injunction.
BACKGROUND
I. Factual Background
The Academy is a public school in Hartford, Connecticut, that is under defendants' authority. The Academy provides a "therapeutic educational program" for children who are seriously emotionally disturbed and who present challenging behavioral problems. All students enrolled at the Academy have been identified as requiring special education or related services under the IDEA. The parents or guardians of students enrolled there are required to sign a document acknowledging the school's use of physical restraints and seclusion.
OPA is a state-created agency that is authorized to investigate suspected abuse or neglect of individuals with disabilities or mental illness in Connecticut and to advocate on their behalf. See Conn. Gen.Stat. §§ 46a-10 to 46a-11 (2004). It serves as Connecticut's protection and advocacy system ("P & A system") for purposes of PAIMI, 42 U.S.C. § 10801(b)(2), the DD Act, id. § 15043(a), and PAIR, 29 U.S.C. § 794e(f), which provide federal funding only for states with qualifying P & A systems that monitor the care of and advocate on behalf of individuals with mental illness and developmental or other disabilities. See 29 U.S.C. § 794e(a)(1), (f); 42 U.S.C. §§ 10801, 15001.
OPA alleges that it received complaints from parents of students at the Academy about the inappropriate use of physical restraints and seclusion at the school.[2] Parents also complained that students had been injured during 234 the restraint process. *234 As a result of these complaints, as well as allegations that students had been placed at the Academy without proper behavioral assessments or adequate individualized educational plans as required by the IDEA, OPA determined that it had probable cause to suspect that Academy students had been, or were at risk of being, subject to abuse and neglect. In conjunction with the State of Connecticut Office of the Child Advocate ("OCA"), OPA opened an investigation into possible abuse and neglect at the Academy. OCA is a statecreated agency charged with monitoring services provided to children by the State of Connecticut or by organizations, such as school districts, that receive state funds, and with reviewing complaints about those services. See Conn. Gen.Stat. § 46a-131(a)(1)-(3) (2004).
On February 3, 2004, OPA and OCA sent Superintendent Henry a letter informing him that they had received complaints about the treatment of students at the Academy and would be investigating the alleged "programmatic deficiencies and violations of student rights" pursuant to their authority under federal and state law. The letter further informed Superintendent Henry that OPA and OCA intended to make an initial visit to the Academy at nine o'clock on the morning of February 10, 2004, and that the investigation would include "policy review, record review, interviews and direct observation of practices."
On February 10, 2004, representatives from OPA and OCA visited the Academy as promised. The Academy refused them access to the facility, the students, and the documents they had requested. Representatives from OPA, OCA, and defendants, including Superintendent Henry, met to discuss the matter on April 7, 2004. At the meeting, defendants agreed to, and later did, provide certain documents to OPA and OCA. These documents, however, did not contain any personal information regarding Academy students. Specifically, defendants did not provide the directory information 0907 a list of students and contact information for their parents or guardians 0907 that OPA sought. Defendants also refused to allow OPA and OCA access to the Academy during school hours to observe or interview students. They claimed that access to students and the disclosure of directory information was not authorized by the P & A Acts and was prohibited by FERPA and the IDEA.
II. Procedural History
A. The District Court
On August 11, 2004, OPA filed suit in the United States District Court for the District of Connecticut (Janet C. Hall, J.) seeking (1) a declaration that it was entitled to observe and interview students at the Academy during school

hours and to obtain a list of the names and contact information for all the students and their parents and (2) a corresponding injunction. Because the parties stipulated to the relevant facts, the district court consolidated the hearings on the preliminary and permanent injunctions. See Conn. Office of Prot. & Advocacy for Persons with Disabilities v. Hartford Bd. of Educ., 355 F.Supp.2d 649, 652 (D.Conn.2005) ("OPA").
In a thorough and thoughtful opinion, the district court granted the relief OPA sought. Courts have concluded that a P & A system's inability to meet its federal statutory mandate to protect and advocate for the rights of individuals with disabilities is an irreparable harm for purposes of injunctive relief. Id. at 653. With respect to the 235 merits, the district court first concluded that the Academy students fall within the protections of the P & A Acts *235 on the basis of defendants' concession that most students would be classified as individuals with mental illness within the definition of PAIMI, and OPA's reasonable belief that some, if not most, of the students had developmental or other disabilities given that all the students are diagnosed as "substantially emotionally impaired" and in need of special education and related services. Id. at 665-66. The court next held that the Academy was a "facility" under PAIMI that OPA is authorized to access. Id. at 657-60. In doing so, the court rejected defendants' assertion that PAIMI does not apply to non-residential facilities or to individuals with disabilities who live at home. Id. at 658-59.
The court further held that, under the P & A Acts, OPA is entitled to a list of students and the contact information for their parents or guardians. Id. at 661-64. The court concluded that a minor student's parents can be considered his or her "legal guardian[s]" for purposes of the P & A Acts so that OPA can contact them in order to secure consent to view that student's records. Id. at 661-62. Finally, the district court held that neither FERPA nor the IDEA bars OPA from obtaining the names and contact information of students and their parents or guardians. Id. at 662-63.
The district court thus declared that defendants' refusal to provide OPA with the names and phone numbers of Academy students violated PAIMI, PAIR and the DD Act. It entered a permanent injunction ordering defendants "to grant both physical access and names and contact information such that OPA can perform its statutory duty to investigate suspected abuse and neglect." Id. at 664.
Defendants thereafter filed this timely appeal, but they did not seek a stay of the injunction and have complied with its terms.
B. The Appeal
On appeal, defendants assert that the district court erred in concluding that the Academy is a "facility" to which OPA is entitled to have reasonable access under PAIMI because the implementing regulations limit the term "facility" to residential facilities, which the Academy is not. They also claim that even if the Academy is a facility for purposes of PAIMI, OPA cannot access it or speak with students without the consent of the students' parents or guardians. They further challenge the district court's holding that the P & A Acts authorize OPA, once it has probable cause to believe that abuse or neglect has occurred at the facility, to obtain a general list of Academy students and the contact information for their parents or guardians. Defendants also maintain that the P & A Acts authorize OPA to obtain contact information only for Academy students about whom they have received a specific complaint.
Initially, defendants also asserted that FERPA and the IDEA prohibited them from allowing OPA to access the Academy, its students or the students' contact information. Specifically, they argued that, regardless of any authority OPA might have under the P & A Acts, FERPA and the IDEA prohibit them from allowing OPA to be present at the Academy during school hours or to interview Academy students without the consent of their 236 parents or guardians.[3] Similarly, without such permission, *236 defendants asserted, the release of the names of students and contact information for their parents or guardians is prohibited by FERPA. For the reasons we will explain, defendants have since abandoned these arguments.
Following oral argument, we invited the United States Departments of Education ("DOE") and Health and Human Services ("HHS") to file amicus briefs in this case providing their interpretations of the relevant statutory provisions. DOE and HHS accepted our invitation and filed a joint brief with the Court, which, in significant part, rejects defendants' arguments. With respect to defendants' FERPA defense, the agencies explain that FERPA's

non-disclosure requirements are limited to tangible records and information derived from records and that FERPA does not prohibit an OPA representative from observing a classroom or speaking with students. They note that DOE has previously adopted this interpretation in informal guidance. Brief for Amici Curiae Department of Education & Department of Health & Human Services ("United States Br.") at 12-13 & n. 5 (citing Dep't of Educ., Dec. 8, 2003 Letter to S. Mamas). DOE and HHS also explain that, to the extent FERPA prohibits defendants from releasing the names and contact information for students who OPA has probable cause to believe were subject to abuse or neglect, the P & A Acts should be construed "as a limited override of FERPA's non-disclosure requirements" in the circumstances presented by this case. United States Br. at 18.
In response to the agencies' submission, defendants notified this Court that, although they do not agree with the view articulated in the joint amicus brief, they will defer to the agencies' interpretation of FERPA. In light of the fact that they are already in compliance with the district court's injunction, defendants state that they consider this appeal to be moot and consent to its dismissal. Bird Letter, June 20, 2006, at 2. Defendants' letter, however, neither makes reference to the agencies' arguments based on the P & A Acts nor expresses similar deference to the agencies' interpretation of those statutes.
OPA responds that the case is not moot. It claims that it still needs the ability to access the Academy and monitor conditions at the school in the future. It also asserts that defendants' prosecution of the appeal, at least until their receipt of the agencies' joint amicus brief, indicates that defendants do not want OPA to have access to the Academy and that absent a ruling on defendants' arguments, they would be free to interpose their objections to OPA's investigations at the Academy based on FERPA in the future. Alisberg Letter, June 20, 2006, at 3-4.
DISCUSSION
This Court reviews a permanent injunction for abuse of discretion, see Advance Pharm., Inc. v. United States, 391 F.3d 377, 398 (2d Cir.2004), which occurs when a district court relies on clearly erroneous findings of fact or an error of law, see S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 237 (2d Cir.2001). Questions of statutory construction and the appropriate level of deference to accord an agency's interpretation of a statute are questions of law, which we review de novo. See Prot. & Advocacy for Persons with Disabilities v. Mental Health & Addiction Servs., 448 F.3d 119, 123 (2d Cir.2006).
I. Mootness
The first question we must address is whether defendants' deference to DOE's view of FERPA and their consent to dismiss the appeal moots the appeal. We address the latter question first.
237 *237 Under Federal Rule of Appellate Procedure 42(b), parties may seek the voluntary dismissal of a docketed appeal in two ways. Parties may obtain a voluntary dismissal by signing and filing a "dismissal agreement specifying how costs are to be paid and pay[ing] any fees that are due." Fed. R.App. P. 42(b). Alternatively, an appeal may be dismissed on appellant's motion "on terms agreed to by the parties or fixed by the court." Id. Here, there is no signed dismissal agreement and defendants have not moved to dismiss the appeal. Their letter to the Court consenting to dismissal is therefore insufficient to dismiss, and thus moot, the appeal. Cf. British Int'l Ins. Co. v. Seguros La Republica, S.A., 354 F.3d 120, 123 (2d Cir.2003) (finding that an appeal was not moot because the parties had failed to file a signed stipulation with the Clerk of the Court as required by Rule 42(b)).
That we do not view defendants' letter as a motion to dismiss their appeal, however, does not address the question of whether their deference to DOE's views now moots the appeal. "The mootness doctrine provides that `an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.'" Id. at 122 (quoting Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 n. 10 (1974)). "That the dispute between the parties was very much alive when suit was filed, or at the time [the court of appeals rendered judgment], cannot substitute for the actual case or controversy" the Constitution requires in order for us to exercise our jurisdiction. Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). A case does not become moot, however, if an appellant retains some interest in the case so that a favorable decision could redound to its favor. See Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 569-70, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984); Stolt-Nielsen SA v. Celanese AG, 430 F.3d 567, 576 n. 6 (2d Cir.2005).

Here, because defendants continue to press their arguments with respect to the P & A Acts, the parties remain adverse with respect to at least some of the issues on appeal. There is no question that if we were to render a favorable decision for defendants, they would obtain relief because they would no longer have to comply with the terms of the injunction, which, as noted, requires defendants "to grant both physical access and names and contact information such that OPA can perform its statutory duty to investigate suspected abuse and neglect" and thus has a continuing effect. See Tory v. Cochran, 544 U.S. 734, 737, 125 S.Ct. 2108, 161 L.Ed.2d 1042 (2005) (explaining that a case is not moot where it "appears from [the] `terms' of the injunction that it is `still in force' and `unless set aside must be complied with'" (quoting Firefighters Local Union No. 1784, 467 U.S. at 569, 104 S.Ct. 2576)). Hence, defendants' deference to DOE's view of FERPA does not moot their appeal.
Although defendants' agreement to defer to the views of DOE does not moot the appeal, it does serve to abandon certain arguments that defendants advanced initially on appeal 0907 that FERPA should be read to bar OPA from accessing the Academy and its students during school hours and from obtaining directory information for students. Accordingly, we do not address defendants' arguments with respect to FERPA (and the IDEA).[4] 238 See 24/7 *238 Records, Inc. v. Sony Music Entm't, Inc., 429 F.3d 39, 43 (2d Cir.2005) (declining to consider arguments abandoned on appeal). We therefore turn to defendants' remaining claims on appeal.
II. Access to the Academy
Defendants contend that the district court erred in finding that the P & A Acts authorize OPA to access the Academy and speak with its students for investigatory purposes. They argue that PAIMI authorizes OPA to have reasonable access only to residential facilities and that PAIR and the DD Act do not authorize the investigation of an entire school.
A. PAIMI
PAIMI authorizes P & A systems such as OPA to "investigate incidents of abuse and neglect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred." 42 U.S.C. § 10805(a)(1)(A). It further provides that a P & A system "shall . . . have access to facilities in the State providing care or treatment." Id. § 10805(a)(3). Under PAIMI, the term "facilities" "may include, but need not be limited to, hospitals, nursing homes, community facilities for individuals with mental illness, board and care homes, homeless shelters, and jails and prisons." Id. § 10802(3).
Defendants do not dispute that the Academy is a facility that provides care or treatment to individuals with mental illness 0907 specifically, children who are seriously emotionally disturbed. Instead, defendants argue that, on the basis of the statute's plain language and its implementing regulations, the term "facilities" under PAIMI includes only residential facilities. They point to the illustrative list of facilities at § 10802(3), which they claim consists solely of residential facilities.
Defendants assert further that we must defer to HHS's regulation defining a "facility" under PAIMI as "any public or private residential setting that provides overnight care accompanied by treatment services." 42 C.F.R. § 51.2. Defendants contend that this definition is reasonable because, unlike residential facilities such as hospitals or jails, day facilities like the Academy do not isolate students from their families or the community such that they would require the services of a P & A system. Defendants further note that school children have a number of sources of protection and advocacy available to them, including the rights conferred on parents by the IDEA and the requirement that teachers and most school district employees report suspected cases of abuse.
239 OPA responds that this argument does not acknowledge that, after HHS promulgated *239 its regulatory interpretation of the term "facilities" in 1997, Congress amended PAIMI in 2000 to extend its protection to individuals with mental illness who live in the community. See Children's Health Act of 2000, Pub.L. No. 106-310, § 3206(b)(1)(B), 114 Stat. 1101, 1194 (2000). That is, prior to 2000, the definition of an "individual with mental illness" for purposes of the Act was limited to individuals who were inpatients or residents of a care or treatment facility. See Pub.L. No. 99-319, Title I, § 102(3)(B), 100 Stat. 478, 479 (1986). In 2000, however, Congress amended the definition of "an individual with mental illness" under the Act to include "an individual 0907(A) who has a significant mental illness or emotional impairment, as determined by a mental health professional qualified under

the laws and regulations of the State; and . . . (ii) . . . lives in a community setting, including [his or her] own home." 42 U.S.C. § 10802(4).
OPA contends that these amendments make clear that PAIMI's protections extend to individuals who attend day programs like the one at the Academy. Because the Academy is a "community facilit[y] for individuals with mental illness" that "provid[es] care or treatment," id. §§ 10802(3), 10805(a)(3), OPA argues, it is a facility to which OPA is empowered to have reasonable access under PAIMI.
HHS, which is charged with issuing regulations interpreting and implementing PAIMI, see id. § 10826, also maintains that the term "facilities" in the statute includes non-residential facilities that provide care and treatment of individuals with mental illness. The amicus brief HHS filed with DOE in this case states that it "interprets the investigatory authority of a P & A pursuant to the PAIMI Act as extending to any facility providing care and treatment to the mentally ill, regardless of whether the facility is residential." United States Br. at 10. It asserts that this interpretation is most consistent with the text of PAIMI and the legislative purpose of the 2000 amendments, which were passed to "strengthen community-based mental health services and enable children with severe emotional disturbances to `remain in local communities rather than being sent to residential facilities.'" United States Br. at 9 (quoting S.Rep. No. 106-196, at 6 (1999)). In consequence, HHS rejects defendants' argument that the definition of "facility" codified at 42 C.F.R. § 51.2 controls here.
Where, as here, an agency advances a statutory interpretation in an amicus brief that has not been articulated before in a rule or regulation, we do not apply the high level of deference due under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See In re New Times Sec. Servs., Inc., 371 F.3d 68, 80, 82 (2d Cir.2004) (concluding that an informal opinion in an amicus brief by the SEC does not have the force of law and therefore does not warrant Chevron deference). That does not mean, however, that we give no deference to the agency's view. See United States v. Mead Corp., 533 U.S. 218, 234-35, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). Rather, a reasonable agency determination, when advanced in an amicus brief that is not a "post hoc rationalizatio[n]," Auer v. Robbins, 519 U.S. 452, 462, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (internal quotation marks omitted), may be entitled to some deference on account of the "specialized experience" and information available to the agency. Skidmore v. Swift & Co., 323 U.S. 134, 139, 65 S.Ct. 161, 89 L.Ed. 124 (1944); see also Mead, 533 U.S. at 234-35, 121 S.Ct. 2164; In re New Times Sec. 240 Servs., 371 F.3d at *240 82-83. Under Skidmore, the weight we give an agency's judgment is based on "the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." 323 U.S. at 140, 65 S.Ct. 161.
Evaluating the Skidmore factors here, we conclude that HHS's interpretation merits deference. The definition of "facilities" set forth in § 10802(3) does not distinguish between residential and day facilities. Although many of the examples of facilities included in Congress's illustrative list are of a residential character, Congress also included "community facilities for individuals with mental illness." The rubric "community facilities" does not appear, on its face, to be limited to residential programs. Moreover, reading the facility-access provision as limited to residential facilities is contrary to Congress's clearly expressed intent to provide protection and advocacy services for individuals with mental illness living in their own homes. See 42 U.S.C. § 10802(4). We therefore conclude that the regulatory interpretation of "facilities" HHS promulgated in 1997 is no longer consistent with PAIMI after the 2000 amendments. We defer instead to the reasonable interpretation advanced by HHS in this case 0907 that the term "facilities" for purposes of PAIMI includes non-residential facilities that provide care or treatment to individuals with mental illness.
Here, the Academy is a school that provides a therapeutic educational program for students who are seriously emotionally disturbed. It is therefore a facility to which OPA must have reasonable access under PAIMI.
B. PAIR and the DD Acts
PAIR and the DD Act also grant access to certain facilities providing services to individuals with developmental disabilities. The DD Act provides that a P & A system must "have access at reasonable times to any individual with a developmental disability in a location in which services, supports, and other assistance are provided to such an individual, in order to carry out the purpose of this part." 42 U.S.C. § 15043(a)(2)(H). The Act provides

further that the "purpose of this part is to provide for allotments to support a protection and advocacy system . . . in each State to protect the legal and human rights of individuals with developmental disabilities in accordance with this part." Id. § 15041. PAIR incorporates these provisions of the DD Act. See 29 U.S.C. § 794e(f) (providing that a P & A system has the same authority under PAIR as under the DD Act for individuals who are disabled but neither have mental illness within the meaning of PAIMI nor developmental disabilities within the meaning of the DD Act).
Defendants argue that § 15043(a)(2)(H) authorizes a P & A system to speak only with specific individuals in a service location, and not to all individuals served by that location. That is, they contend that, because § 15043(a) (2)(H) provides OPA with access to "any individual . . . in a location . . . in order to carry out the purpose of this part" and that the purpose of this part is to "`investigate incidents of abuse and neglect of individuals,'" Appellant's Br. at 14 (quoting 42 U.S.C. § 15043(a)(2)(B)), OPA has authority only to observe or speak with those students it has reason to believe have been subject to abuse or neglect. In short, they maintain, the DD Act does not give OPA generalized access to the Academy facility and its students. We disagree.
Defendants conflate § 15043(a)(2)(B) with § 15043(a)(2)(H). The former subsection provides P & A systems 241 access to *241 facilities and permits them to speak with individuals in order to investigate specific incidents of
suspected abuse or neglect. The latter subsection provides more generalized access to any individual with a disability in a location that provides services in order to carry out the statutory purpose of protecting the rights of such persons. Defendants' argument that a P & A system has the authority to access a service location under § 15043(a)(2)(H) only for the purpose of investigating a specific incident 0907 a right conferred by § 15043(a)(2)(B) 0907 would render § 15043(a)(2)(H) meaningless because it would authorize only those activities authorized by subsection (B). We decline to read the statute in a way that would create a redundancy. See Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ("It is . . . a cardinal principle of statutory construction that we must give effect, if possible, to every clause and word of a statute." (citation and internal quotation marks omitted)).
In addition, the DD Act's implementing regulations clearly provide that P & A systems have the authority to interview all individuals at a particular facility:
A system shall have reasonable unaccompanied access to public and private facilities which provide services, supports, and other assistance for individuals with developmental disabilities in the State when necessary to conduct a full investigation of an incident of abuse or neglect under section 142(a)(2)(B) of the [DD] Act. This authority shall include the opportunity: to interview any facility service recipient, employee, or other person, including the person thought to be the victim of such abuse, who might be reasonably believed by the system to have knowledge of the incident under investigation; and to inspect, view and photograph all areas of the facility's premises that might be believed by the system to have been connected with the incident under investigation.
45 C.F.R. § 1386.22(f); see also id. § 1386.22(g) (noting that the system "shall have unaccompanied access to all residents of a facility at reasonable times, which at a minimum shall include normal working hours and visiting hours" for the purposes of fully investigating alleged abuse and neglect).[5]See Alabama Disabilities Advocacy Program v. J.S. Tarwater Developmental Ctr., 97 F.3d 492, 497 (11th Cir. 1996) ("It is clear that [the DD] Act 242 provides express authority for P & As to gain broad access to records, facilities, and residents *242 to ensure that the Act's mandates can be effectively pursued."); Pennsylvania Prot. & Advocacy, Inc. v. Royer-Greaves Sch. for the Blind, 1999 WL 179797, at *6 (E.D.Pa. Mar.25, 1999) (holding that "reasonable access includes general facility access without notice, and patient access with twenty-four hour notice"); Mississippi Prot. & Advocacy System, Inc. v. Cotten, 1989 WL 224953, at *8-9 (S.D.Miss. Aug.4, 1989) (noting that P & A systems must have "frequent personal contact" with individuals receiving services, and that "[c]entral to the concept of authority to investigate is the ability to interview witnesses"), aff'd, 929 F.2d 1054, 1059 (5th Cir.1991) (noting court's "full accord" with district court's conclusions regarding necessity of P & A access to individuals).
Moreover, the "purpose" of this part of the DD Act is not as limited as defendants maintain, but rather aims to protect the legal and human rights of individuals with developmental disabilities. Id. § 15041 (defining the "purpose of this part"). To this end, the statute provides access to service recipients for both investigatory and

monitoring purposes, i.e., to investigate past instances of suspected abuse or neglect and to monitor to ensure current respect for the rights and safety of service recipients. Id. § 15043(a)(2)(B), (H). Simply put, the requirement in § 15043(a)(2)(B) that a P & A system have the authority under the Act to investigate specific incidents does not limit a P & A system to that power alone.
The records-access provision of the DD Act also supports the view that a P & A system has the authority to have physical access to a location and to observe and speak with service-recipients for monitoring purposes. It provides that a P & A system may view the records of an individual with a disability when, inter alia, "as a result of monitoring or other activities, there is probable cause to believe that such individual has been subject to abuse or neglect." 42 U.S.C. § 15043(a)(2)(I)(iii)(II) (emphasis added). This language indicates that Congress intended P & A systems not simply to respond to reports of maltreatment, but also to monitor facilities in order to prevent abuse or neglect.
In sum, to the extent that the Academy is a location that provides care or treatment to individuals with disabilities within the meaning of PAIR and the DD Act, OPA is authorized to have reasonable access to the Academy and its students during school hours both to investigate specific allegations and to monitor whether the school is respecting students' rights and safety.
C. Parental Permission
Defendants next argue that even if PAIMI, PAIR and the DD Act generally authorize OPA to access a facility such as the Academy, OPA cannot do so here without permission from the students' parents or guardians. For this argument, they rely on the P & A Acts' records-access provisions, which require a P & A system, except in certain emergency situations, to obtain consent from the individual, if he or she is an adult and can consent, or the individual's legal guardian prior to obtaining an individual's records. See 42 U.S.C. §§ 10805(a)(4) (PAIMI), 15043 (a)(2)(I) (DD Act).
This argument need not detain us long. The DD Act and PAIMI distinguish between a P & A system's authority to speak with an individual and its authority to obtain an individual's records. As discussed above, the DD Act provides that a P & A system must have reasonable access to individuals. See 42 U.S.C. § 15043(a)(2)(H). 243 Similarly, PAIMI provides that OPA must have reasonable access to individuals in facilities that provide *243 care or treatment for individuals with mental illness. See 42 U.S.C. § 10805(a)(3). Nothing in the statutory language of either the DD Act or PAIMI conditions this access on the consent of an individual's parents or guardians.
That parental consent is not required is also supported by the regulations interpreting and implementing this section. PAIMI's implementing regulations define "reasonable access" for monitoring purposes to include reasonable unaccompanied access to programs and individuals in order to ensure that their rights are being protected, including the right to speak or otherwise communicate with individuals, including minors. 42 C.F.R. § 51.42(c). As noted in the previous section, this regulation refers to "residents," which reflects the statutory definition of an "individual with mental illness" at the time the regulation was promulgated. In the joint amicus brief, HHS reads this provision to apply to Academy students, who plainly are not "residents" of the facility. United States Br. at 12 ("Under the statute and implementing regulations, a P & A's authority to access individuals or facilities is not conditioned on parental notification or consent." (citing 42 C.F.R. § 51.42(d)-(e))). We read this regulation consistently with HHS's interpretation in the joint amicus brief. See generally In re New Times Sec. Servs., Inc., 371 F.3d at 82-83; accord McCormick ex rel. McCormick v. Sch. Dist., 370 F.3d 275, 290 (2d Cir.2004) (noting that courts generally defer to an agency's reasonable interpretation of its regulation).
Contrary to the access provisions, PAIMI and the DD Act are very explicit about what type of authorization is required for a P & A system to view an individual's records: they detail from whom a P & A system must have authority to access records and when prior consent is necessary. See 42 U.S.C. §§ 15043(a)(2)(I), 10805(a)(4). That Congress provided explicit and detailed authorization provisions with respect to an individual's records but did not do so with respect to a P & A system's right to access a facility suggests that it did not intend to require a P & A system to obtain authorization prior to visiting a facility to observe conditions or interact with the individuals receiving services in that facility. See Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion

or exclusion." (quotation marks and citation omitted; alteration in original)); see also Burlington N. & Santa Fe Ry. Co. v. White, ___ U.S. ___, ___, 126 S.Ct. 2405, 2412, 165 L.Ed.2d 345 (2006) (explaining that where Congress uses different words, it is presumed that Congress intended the different words to make a legal difference). We therefore decline defendants' invitation to read a parental-consent provision into the statute where none exists.
III. Parent/Guardian Contact Information
Defendants next argue that the district court erred in ordering it to release to OPA a directory of students containing contact information for their parents or guardians. The only arguments they press on appeal are that the P & A Acts do not require the release of this information and that, even if they do, the district court erred in requiring them to release the information for all students. We consider these arguments in turn.
A. The P & A Acts Authorize the Disclosure of Contact Information
244 Defendants assert that the district court erred in requiring them to give OPA *244 the names and contact information for Academy students because the P & A Acts do not expressly require them to disclose this information.
The DD Act, PAIR and PAIMI each permit OPA to access records in certain situations. Although there are some differences among the Acts, they require, broadly speaking, that a P & A system have access to an individual's records upon the consent of the individual or his or her guardian and in certain emergency situations. See 42 U.S.C. §§ 10805(a)(4), 15043(a)(2)(I)-(J). They also permit a P & A system to have access to an individual's records if the individual's representative fails to act after a P & A system has received contact information for the representative, contacted that person concerning possible abuse or neglect of the individual, and offered assistance in resolving the situation. Specifically, the DD Act provides that a P & A system must have access to an individual's records where there is probable cause to believe that the individual has been subject to abuse or neglect, the individual's representative "has been contacted by such system, upon receipt of the name and address of such representative; . . . such system has offered assistance to such representative to resolve the situation; and . . . such representative has failed or refused to act on behalf of the individual." 42 U.S.C. § 15043 (a)(2)(I)(iii)(III)-(V). PAIMI has a similar provision, but requires that a P & A system have probable cause to believe that the "health or safety of the individual is in serious and immediate jeopardy." 42 U.S.C. § 10805(a)(4) (C). The implementing regulations for the DD Act and PAIMI further provide that if a P & A system is denied access to an individual's records for, inter alia, alleged lack of authorization, it shall be provided with the name of the guardian of that individual. 42 C.F.R. § 51.43; 45 C.F.R.. § 1386.22(i).
OPA concedes that none of the P & A statutes explicitly requires that the Academy give it a list of students and contact information for their parents or guardians. Nonetheless, it contends that because a P & A system cannot obtain consent to access a student's records from the student's guardian without the guardian's name or contact information, but it can obtain the guardian's name if it is denied access to an individual's records for lack of authorization pursuant to the governing regulations, it is therefore entitled to a list of students and contact information for their parents or guardians. OPA further asserts that the Academy's failure to disclose this information impedes its statutory duty under the P & A Acts and is contrary to the clear spirit, if not the exact letter, of the laws.
In the joint amicus brief filed in this case, HHS and DOE take the position that the records-access provisions of the P & A Acts "expressly contemplate that a school or other facility will provide contact information to a P & A in order to allow the P & A to carry out its responsibility to investigate abuse or neglect." United States Br. at 14. The agencies assert that, to the extent that OPA has made the requisite probable cause determinations, OPA has a clear right to contact information for those students' parents or guardians. Id. at 14-15.
We find persuasive the agencies' view that Congress intended a P & A system to be able to obtain the names and contact information for the parents or guardians of students at the Academy. By conditioning access on the consent of an individual or, if the individual cannot consent, his or her legal guardian or representative, the Acts require that P & A systems contact the guardians of individuals with disabilities or mental illness if they have the 245 requisite prior cause to believe that abuse or neglect *245 is occurring at the facility. This interpretation is consistent with Congress's view that "family members of individuals with mental illness play a crucial role in being

advocates for the rights of individuals with mental illness where the individuals are minors." 42 U.S.C. § 10801(a) (2). Hence, we conclude that OPA is authorized under PAIMI, the DD Act and PAIR to obtain the names of Academy students and contact information for their parents or guardians.[6]
B. Scope of the Injunction
Similar to its argument with respect to whether OPA can speak with students, defendants maintain that the district court erred in requiring that they disclose the names and contact information for all Academy students. Defendants assert that the P & A Acts require the release of the names and contact information only for those particular individuals whom OPA has reason to believe have been victims of an incident of abuse or neglect, not for an "entire school of individuals." In short, they contend that the injunction is overly broad in scope.
District courts have broad authority in crafting equitable remedies such as injunctions. Bano v. Union Carbide Corp., 361 F.3d 696, 716 (2d Cir.2004) (citing Lemon v. Kurtzman, 411 U.S. 192, 200, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973)). Accordingly, "appellate review is correspondingly narrow." Lemon, 411 U.S. at 200, 93 S.Ct. 1463. The question, therefore, is whether the district court exceeded its allowable discretion in ordering defendants to disclose the names and contact information of all Academy students.
Here, the district court concluded that OPA had probable cause to obtain the disclosure of this information. See OPA, 355 F.Supp.2d at 661. Defendants do not advance any arguments that this determination was in error, and we see none. Although OPA presumably did not receive a specific complaint about each student, it submitted evidence that it had complaints about the operation of particular policies that led to inappropriate restraint and seclusion and that those policies operated school-wide. Given that these allegations are system-wide, OPA could have reason to believe that all students at the school had been, were being, or were at risk of being neglected or abused.
246 Further, although the P & A Acts speak in terms of the "individual" or "an individual," *246 nothing in the statute suggests that OPA cannot seek authorization for a number of individuals if it has made a probable cause determination that multiple individuals have been subjected to abuse or neglect at a facility. As HHS has noted, "neither the Act nor case law imposes an individual-specific probable cause requirement," and a probable cause determination could be made on the basis of "general conditions or problems that affect many or all individuals in a facility." Substance Abuse and Mental Health Services Administration; Requirements Applicable to Protection and Advocacy of Individuals with Mental Illness; Final Rule, 62 Fed.Reg. 53,548, 53,559 (Oct. 15, 1997); see also Pa. Prot. & Advocacy, Inc. v. Royer-Greaves Sch. for Blind, 1999 WL 179797, at *9-10 (E.D.Pa. Mar.25, 1999) (finding that a P & A system was authorized to obtain a list of the names and addresses of the guardians of the students at a residential school for children with developmental disabilities and blindness where the P & A system had received complaints of "systemic neglect" at the school); see also Iowa Prot. & Advocacy Servs., Inc. v. Gerard Treatment Programs, L.L.C., 152 F.Supp.2d 1150, 1171-72 (N.D.Ia.2001) (suggesting that probable cause to believe that widespread abuse is occurring justifies generalized access to records).
Finally, defendants' assertion that the district court erred in ordering the disclosure of the names of all Academy students and the contact information for their parents and guardians rings hollow in light of their simultaneous argument that OPA must have parental consent prior to undertaking any investigative or monitoring activities at the school. Given that the vast majority of Academy students are minors whose parents or guardians have a strong interest in the protection of their rights and well-being, see 42 U.S.C. § 10801(a)(2), we cannot say that the district court abused its discretion in requiring defendants to provide the names and contact information for all Academy students.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
[*] The Honorable Miriam Goldman Cedarbaum, United States District Judge for the Southern District of New York, sitting by designation.

[1] Enacted in 1986 as the "Protection and Advocacy for Mentally Ill Individuals Act of 1986," Pub.L. No. 99-319, 100 Stat. 478 (May 23, 1986), the Act was commonly referred to by the acronym "PAMII." See, e.g., Ctr. for Legal Advocacy v. Hammons, 323 F.3d 1262, 1263 (10th Cir.2003). In 1991, amendments to the Act substituted "individuals with mental illness" for "mentally ill individuals" wherever it appeared in the Act. See Pub.L. No. 102-173, § 10(2), 105 Stat. 1217, 1219 (Nov. 27, 1991). The short title, however, remained unchanged. In 2000, Congress amended the short title so that the Act is now known as the "Protection and Advocacy for Individuals with Mental Illness Act" or "PAIMI." See Pub.L. No. 106-310, 114 Stat. 1101, 1193-94 (Oct. 17, 2000).
[2] Under regulations promulgated pursuant to PAIMI and the DD Act, the use of excessive force when placing an individual in physical restraints is considered to be abuse. See 42 C.F.R. § 51.2 (PAIMI); 45 C.F.R. § 1386.19 (the DD Act).
[3] The IDEA requires schools that receive federal funds for special education, such as the Academy, to abide by the terms of FERPA. See 20 U.S.C. § 1417(c). It does not impose any further non-disclosure requirements. We therefore discuss defendants' non-disclosure argument only with reference to FERPA.
[4] OPA's apparent concern that defendants' abandonment of their FERPA claims on appeal will allow defendants to challenge the injunction or similar requests for access and information by OPA on this ground in the future seems misplaced. As an initial matter, we note that defendants' deference to DOE and their abandonment of their FERPA arguments on appeal mean that they do not challenge so much of the district court ruling as rejected those claims.
Moreover, although a determination of whether defendants are precluded from raising FERPA to refute any of OPA's future requests to investigate allegations of abuse or neglect must abide that event, we note that defendants' abandonment of their FERPA arguments on appeal does not alter the fact that the FERPA arguments have been litigated in this case, were decided by the district court, were necessary to the judgment on the merits, and were not challenged on appeal. See Uzdavines v. Weeks Marine, Inc., 418 F.3d 138, 146 (2d Cir.2005) ("[I]ssue preclusion[] applies where: (1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to support a valid and final judgment on the merits." (internal quotation marks and citation omitted)).
[5] Like PAIMI, the DD Act was amended by Congress after this regulation was promulgated to extend its protections to individuals not living in residential facilities. See Developmental Disabilities Assistance and Bill of Rights Act of 2000, Pub.L. No. 106-402, § 143(a)(2)(H), 114 Stat. 1677, 1715 (2000). The prior version of the DD Act, pursuant to which HHS promulgated its regulation, limited a P & A system's access to residents of a facility for persons with disabilities. See 42 U.S.C. § 6042(a)(2)(H) (1994) (repealed) (providing that P & A systems shall "have access at reasonable times and locations to any resident who is an individual with a developmental disability in a facility that is providing services, supports, and other assistance to such resident"). To the extent that HHS's regulation interprets the statute's former language to limit P & A systems' access only to individuals with developmental disabilities in residential locations, the regulation has been superseded by congressional enactment and is not controlling.
In the joint amicus brief, HHS implicitly reads the regulation promulgated at 45 C.F.R. § 1386.22(g) to provide access to any individual with a developmental disability in a location that provides services, regardless of whether the individual is a resident of the location. Although we are not called upon to defer to this interpretation, we note that it is consistent with the plain language of the DD Act, as amended, which authorizes OPA to have physical access to all individuals in the location for monitoring purposes.
[6] In the district court, defendants also asserted that the access provisions discussed in the text do not apply because Academy parents are not the legal guardians, conservators or legal representatives of the Academy students. See 42 C.F.R. 51.2 (defining these terms under PAIMI to include only those persons whose appointment is made and regularly reviewed by the State); 45 C.F.R. § 1386.19 (same under the DD Act). But see 62 Fed. Reg. 53,548, 53,552 (Oct. 15, 1997) (explaining in the comments to the final rule that, with respect to minor children, the "natural or adoptive parents are legal guardians unless the State has appointed another legal

guardian under applicable State law"). "[C]rediting the agency's interpretation of its own regulation," and noting that the P & A Acts expressly contemplated a role for family members, the district court held that it could not conclude that "parents are excluded from the definition of a `Legal Guardian, Conservator, and Legal Representative.'" OPA, 355 F.Supp.2d at 662.
On appeal, defendants initially asserted that the district court erred in this holding because it conflicts with FERPA's prohibition on the disclosure of parental identities without giving notice to parents and an opportunity for them to request that their identities not be disclosed. Because defendants abandoned their FERPA arguments after oral argument in this case, and advance no other argument with respect to the district court's reasoning, we also deem this argument abandoned and do not address it further. See State St. Bank & Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 172 (2d Cir.2004).
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