Case 2:13-cv-00519-CG-B Document 74 Filed 10/14/14 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION

ALABAMA DISABILITIES ADVOCACY :

PROGRAM,

:

Plaintiff,

:

:

:

v.

: CIVIL ACTION NO. 13-0519-CG-B

:

SAFETYNET YOUTHCARE, INC.,

:

Defendant.

:

:

SAFETYNET YOUTHCARE, INC.,

:

Third Party Plaintiff,

:

v.

:

:

ALABAMA DEPARTMENT OF HUMAN :

RESOURCES,

:

Third Party Defendant.

:

DEPARTMENT OF JUSTICE STATEMENT OF INTEREST

Federal law is clear that protection and advocacy organizations (“P&As”) are entitled to reasonable unaccompanied access to residential programs that provide care and treatment to individuals with mental illness. Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI Act”), 42 U.S.C. §§ 10801–10851 (1991); 42 C.F.R. § 51.42 (1997). The PAIMI Act regulations define what constitutes a “facility,” what it means to provide “care and treatment,” and who is an “individual with a mental illness.” 42 C.F.R. § 51.2 (1997). Once a residential treatment program falls within the scope of the applicable federal regulations, the treatment

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program’s access obligation is triggered and the treatment program must allow the P&A to have access to the facility and its residents.
Defendant SafetyNet Youthcare, Inc. (“SafetyNet”)1 operates a residential treatment facility that fits squarely within the PAIMI Act regulations. SafetyNet provides care and treatment for a variety of mental health and emotional disorders. Indeed, SafetyNet has already conceded that plaintiff Alabama Disabilities Advocacy Program (“ADAP”) is entitled to access the part of its facility called the “Intensive Program.” Nevertheless, SafetyNet denied ADAP access to its “Moderate Program,” arguing that the children in it have less serious mental health and emotional disabilities than the children in the Intensive Program.
SafetyNet’s position is based on a misinterpretation of the PAIMI Act that would undermine the ability of P&As to protect individuals confined in residential treatment facilities. SafetyNet concedes it provides mental health care to some individuals: the children in the Intensive Program. Once the court finds as a matter of law that SafetyNet is a facility providing care and treatment to some individuals with mental illness, the PAIMI Act applies to SafetyNet and SafetyNet must comply in all respects.
This case presents a straightforward application of the PAIMI Act that is appropriate for disposition as a matter of law. SafetyNet exists for one purpose: to provide care and treatment for children with mental health and emotional disorders. Once a residential facility falls within the ambit of the PAIMI Act, the facility must provide access to all areas that “provide overnight care accompanied by treatment services . . . including all general areas as well as special mental health or forensic units.” 42 C.F.R. § 51.2. There could of course be situations in which a 1 SafetyNet claims it acted on the advice of the Alabama Department of Human Resources (“DHR”) and filed a third-party complaint against DHR for indemnification and contribution. SafetyNet Third Party Complaint at ¶¶ 12-14, 16-17. For simplicity, we refer to SafetyNet and DHR collectively as “SafetyNet.”
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covered facility includes such distinct and unrelated functions that those distinct functions might
fall outside the purview of the PAIMI Act – for example, a general hospital that includes a
psychiatric ward and also wards for completely separate patients not receiving mental health
care. This is not such a case. SafetyNet’s Intensive and Moderate Programs both exist to
provide for the care and treatment of children with mental health and emotional disabilities, and
SafetyNet is the type of facility Congress envisioned that the PAIMI Act would cover. The
PAIMI Act regulations should be interpreted to mean exactly what they say, and ADAP should
be granted reasonable unaccompanied access to SafetyNet’s facilities and residents.
INTEREST OF THE UNITED STATES The United States submits this Statement of Interest pursuant to 28 U.S.C. § 517 (1966),2
because this litigation involves the proper interpretation and application of federal law. As the United States has made clear in litigation across the country,3 it has a strong interest in the
interpretation of the PAIMI Act, 42 U.S.C. §§ 10801–10851. People living in psychiatric
residential treatment facilities are isolated from their families and communities, and their ability
to contact outside advocates is restricted. In addition, they are often unfamiliar with their rights
– including the right under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101
2 Section 517 provides that the “Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.” 28 U.S.C. § 517. A submission by the United States pursuant to this provision does not constitute intervention under Rule 24 of the Federal Rules of Civil Procedure. 3 See, e.g., Statement of Interest of the United States, Disability Rights Miss. v. Miss. Children’s Home Servs., 3:13-CV-547-HTW-LRA, (S.D. Miss. Feb. 5, 2014); Statement of Interest of the United States, Ga. Advocacy Office, Inc., v. Shelp 1:09-CV-2880-CAP (N.D. Ga. June 10, 2010); Statement of Interest of the United States, Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. Servs. Admin., No. 1:06-cv-1816 (S.D. Ind. June 16, 2008); Brief for Intervenor United States, Iowa Prot. & Advocacy Servs., Inc. v. Tanager Place, No. 04-4074 (8th Cir. May 11, 2005).
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(2008) (“ADA”), to avoid unnecessary institutionalization. See Olmstead v. L.C., 527 U.S. 581, 607 (1999). The Department of Justice has authority to enforce Title II of the ADA (42 U.S.C. §§ 12133, 12134) and the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 et seq. The national network of P&As with “access to facilities in the State providing care or treatment” (42 U.S.C. § 10805), play a significant role in ensuring compliance with those laws. See ADA.gov, Statement of the Department of Justice on the Integration Mandate of Title II of the ADA and Olmstead v. L.C., http://www.ada.gov/olmstead/q&a_olmstead.htm#_ftn10 (last updated June 22, 2011) (providing guidance for ADA and Olmstead enforcement). Therefore, the United States offers the court its understanding of the statutes and regulations at issue in this case.
FACTS ADAP is Alabama’s designated federally funded program authorized to protect and advocate for the civil rights of persons with disabilities in the state. Complaint at ¶ 5; Plaintiff ADAP’s Motion for Summary Judgment at ¶ 1 (filed Sept. 19, 2014) (“ADAP Motion”). Defendant SafetyNet is a licensed child care institution for males 10-18 years old. Defendant SafetyNet’s Response to Request for Admission No. 21 (Ex. A to ADAP Motion) (“SafetyNet Admission”). According to SafetyNet’s web site,4 it “provides psychiatric residential treatment services” and is a “residential program that offers long-term treatment for youth ages 10 to 18 with ongoing behavioral, emotional and/or psychiatric needs.” Safetynetbhc.com, http://safetynetbhc.com/about-us.html (last visited Oct. 2, 2014).
4 The court may take judicial notice of SafetyNet’s web site pursuant to Fed. R. Evid. 201. See Francarl Realty Corp. v. Town of E. Hampton, 628 F. Supp. 2d 329, 332 (E.D.N.Y. 2009) (court may take judicial notice of the contents of a website if its authenticity has not been challenged and it is capable of accurate and ready determination), affirmed in part, vacated in part on other grounds, 375 F. App'x 145 (2d Cir. 2010).
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A. SafetyNet Children Receive Care in a Residential Setting for Diagnosed Mental Health or Emotional Disorders.
SafetyNet offers an Intensive Program and a Moderate Program on its Minter, Alabama site. The Intensive Program houses 40 children and the Moderate Program houses 20 children. Safetynetbhc.com, http://safetynetbhc.com/locations.html (last visited Oct. 2, 2014). Both programs serve children with a variety of mental health and emotional disorders and provide an array of treatment services. Safetynetbhc.com, http://safetynetbhc.com/intensive-treatmentprograms.html (last visited Oct. 2, 2014); SafetyNet Admission Nos. 10, 13, 14, 17, 19, 20. A child’s treatment team can “at any time” determine a child’s placement, which “could mean a step up to an acute setting or a step down to a less restrictive setting.” Third Party Defendant DHR’s Brief in Support of Motion for Summary Judgment at ¶ 23 (filed Sept. 19, 2014) (“DHR Brief”); see also DHR Brief at 10 (the child’s treatment team “makes a determination of the continuing necessity for and appropriateness of the child’s placement”).
In their motions for summary judgment, ADAP and SafetyNet have submitted considerable evidence concerning the characteristics of SafetyNet’s Moderate and Intensive Programs. The United States will not repeat those assertions. The parties’ evidentiary submissions reveal one key area of agreement, however: All SafetyNet children are there to receive care in a residential setting due to diagnosed mental health or emotional disorders.
B. SafetyNet Has Denied ADAP Access to Residents and Facilities in its Moderate Program.
For over a year, ADAP repeatedly requested access to monitor SafetyNet’s facility pursuant to the PAIMI Act. ADAP Motion ¶ 17. Neither SafetyNet nor DHR “contest[ed] ADAP’s access to those children in SafetyNet’s Intensive Program.” DHR Brief at 1.
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Nevertheless, SafetyNet denied ADAP access to the Moderate Program. See SafetyNet Admission Nos. 5, 6, 7, 9. SafetyNet gave as the grounds for the refusal that “Moderate facilities are not Intensive treatment programs and are not considered a part of the Psychiatric Services for Individuals under the Age of 21.” Answer of Defendant SafetyNet at ¶ 30. SafetyNet stated that it would provide conditional access if there was “an incident or complaint made to ADAP as to the SafetyNet’s [sic] moderate program; or . . . there is probable cause to believe an incident has occurred at SafetyNet’s moderate program.” Exhibit 6 to Complaint (emphasis in original).
ARGUMENT Congress enacted the PAIMI Act because “individuals with mental illness are vulnerable to abuse and serious injury,” and “[s]tate systems for monitoring compliance with respect to the rights of individuals with mental illness vary widely and are frequently inadequate.” 42 U.S.C. § 10801. The purpose of the PAIMI Act is “to ensure that the rights of individuals with mental illness are protected and to assist States to establish and operate a protection and advocacy system that will (1) protect and advocate for the rights of those individuals; and (2) investigate incidents of abuse and neglect.” H.R. Rep. 102-319, November 15, 1991. It is imperative that P&As are able both to independently monitor facilities and to investigate claims of abuse and neglect, and the PAIMI Act regulations authorize broad access to facilities and their residents.
A. Under the PAIMI Act Regulations, SafetyNet is a Facility Providing Care or Treatment to Individuals with Mental Illness.
The PAIMI Act regulations state that “A P&A system shall have reasonable unaccompanied access to public and private facilities and programs in the State which render care or treatment for individuals with mental illness . . .” 42 C.F.R. § 51.42. In other words, if
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SafetyNet is a facility that renders care or treatment for individuals with mental illness, ADAP is entitled to access. The regulations define those terms 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.”
• “Individual with Mental Illness means an individual 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 1) Who is an inpatient or resident in a facility rendering care or treatment . . .”
• “Care or Treatment means services provided to prevent, identify, reduce or stabilize mental illness or emotional impairment such as mental health screening, evaluation, counseling, biomedical, behavioral and psychotherapies, supportive or other adjunctive therapies, medication supervision, special education and rehabilitation, even if only ‘as needed’ or under a contractual arrangement.”
42 C.F.R. § 51.2. SafetyNet does not dispute that it is a “facility.” Nor does it dispute that it provides “care
or treatment.” SafetyNet’s denial of P&A access is premised on the definition of “Individual with Mental Illness.” If some children do not meet the definition because their mental illness or emotional impairment is not “significant,” SafetyNet reasons, then ADAP cannot have access to those children.
SafetyNet’s position rests on a fundamental misunderstanding of the PAIMI Act regulations. The threshold inquiry is whether SafetyNet does or does not fit within the PAIMI Act based on the three definitions. If SafetyNet is operating a “facility” that provides “care or treatment” to “individuals with mental illness,” the PAIMI Act applies to SafetyNet. In that event, ADAP is entitled to access consistent with the PAIMI Act regulations.
The court should reject SafetyNet’s novel proposal that P&A access depends on evaluating the diagnoses of residents one-by-one. Nothing in the PAIMI Act compels a court to
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parse the residents of a facility into groups depending on the severity of their mental illness, and doing so would be impractical and counterproductive. That is especially so when SafetyNet can “at any time” change a child’s placement, which “could mean a step up to an acute setting or a step down to a less restrictive setting.” DHR Brief at ¶ 23; see also DHR Brief at 10 (the child’s treatment team “makes a determination of the continuing necessity for and appropriateness of the child’s placement”). Conditioning ADAP’s access on SafetyNet’s constantly shifting placement decisions would undermine ADAP’s ability to perform functions such as monitoring and providing information to residents.5
With a correct interpretation of the PAIMI Act regulations, this case can be decided as a matter of law without resolving the parties’ disagreement over the severity of each child’s mental health condition. SafetyNet concedes that the children in its Intensive Program “have been determined to have severe problems.” DHR Brief at 40. SafetyNet also concedes that ADAP is entitled to access the Intensive Program. DHR Brief at 1. Once SafetyNet’s facility fits within the PAIMI Act regulations, there is no need to parse children based on their disability or current program placement because the PAIMI Act regulations grant ADAP access to facility “residents.”
B. A P&A Is Entitled to Access if Some Facility Residents Fall Within the PAIMI Act.
SafetyNet’s admission that the PAIMI Act applies to its Intensive Program is dispositive of the cross-motions for summary judgment. Once the court concludes that “some” of a
5 P&As are authorized to, among other things, provide information to residents, monitor and take photographs. 42 C.F.R. § 51.42(c)(1-3). ADAP might wish to speak to groups of residents in a cafeteria or observe children in class, for example. Allowing access to some residents but not others based on SafetyNet’s dynamic classifications of the children’s conditions would make these P&A tasks difficult or impossible and introduce needless confusion and disruption.
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facility’s residents are covered by the PAIMI Act, that finding triggers the P&A’s access as a matter of law without a showing that all of the residents are covered.
Courts that have considered the issue in the context of records access have rejected the argument that access can be denied because only some residents have a serious mental illness. In Office of Protection and Advocacy for Persons with Disabilities v. Armstrong, 266 F. Supp.2d 303, 314 (D. Conn. 2003), the state Department of Corrections denied records access to a P&A on the ground that the P&A could not establish that the inmates in question “fit the definition of ‘individuals with a mental illness.’” Id. at 314. The Armstrong court rejected the idea that the P&A must make a threshold showing of mental illness to obtain access to inmates. Instead, “evidence 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 PAIMI to merit access by [P&As].” Id. at 314 (emphasis added).
The court in Michigan Protection & Advocacy Service, Inc. v. Miller, 849 F. Supp. 1202, 1208 (W.D. Mich. 1994), also rejected the argument that access should be denied because only some residents had a mental illness. There, the Michigan Department of Social Services denied P&A access because “the youth in the system have not recently been determined to be mentally ill or emotionally impaired by a mental health professional.” Id. at 1207. The P&A offered evidence that many Michigan state facilities had in the past housed minors with mental illness as well as recent evidence that “some current [Department of Social Services] residents may be mentally ill.” Id. (emphasis added). The court granted “full access” to the P&A because the state’s policy “defeats the very purpose of [PAIMI] . . . to provide effective protection and advocacy services to mentally ill . . . individuals.” Id.
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The heart of SafetyNet’s argument is that it can deny access if some residents do not have a significant mental health illness, even if other residents do. Defendants are incorrect as a matter of law. Armstrong and Miller establish that if “some” facility residents have a mental illness, that triggers the P&A’s right of access to monitor the entire facility and its residents to the extent the PAIMI Act regulations allow. In this situation, ADAP is entitled as a matter of law to monitor all areas of SafetyNet’s facility to which residents have access, including the Moderate Program.
C. Because the PAIMI Act Regulations Apply to SafetyNet, ADAP Is Entitled to Reasonable Unrestricted Access to All Facility Residents.
Once the court determines that the PAIMI Act applies to a residential treatment facility, the court must consider the permissible scope and purpose of the P&A’s access. The PAIMI Act regulations state that P&As are entitled to “reasonable unaccompanied access” to residents of the facility:
[A] P&A system shall have reasonable unaccompanied access to facilities including all areas which are used by residents, are accessible to residents, and to programs and their residents at reasonable times, which at a minimum shall include normal working hours and visiting hours. Residents include adults or minors who have legal guardians or conservators. P&A activities shall be conducted so as to minimize interference with facility programs, respect residents' privacy interests, and honor a resident's request to terminate an interview. 42 C.F.R. § 51.42(c). Put simply, P&A access is meant to encompass all areas of the facility and all its residents. “Facility” means the “residential setting that provides overnight care accompanied by treatment services . . . including all general areas as well as special mental health or forensic units.” 42 C.F.R. § 51.2. The regulations do not limit facility access based on the type of or level of disability – the sole consideration is whether the facility exists to provide overnight care
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and treatment. So long as the facility provides overnight care accompanied by treatment services, P&As are entitled to access to the residents.
SafetyNet’s position that facility “residents” can only mean “residents in the Intensive Program” is counter to the plain language of the regulations. The PAIMI Act regulations specify that access is to “residents.” 42 C.F.R. § 51.42. The drafters of the PAIMI Act regulations could have limited access to “individuals with significant mental illness,” but instead chose the broadest possible term: “residents.” When a court is confronted with a state agency's interpretation of a federal regulation, “the court must first consider whether the federal regulation clearly and unambiguously addresses the question at issue. If it does, then that is the end of the matter and the court must give effect to the unambiguous language of the regulation.” Yelder v. Hornsby, 666 F. Supp. 1518, 1520 (M.D. Ala. 1987) (finding that the regulatory phrase “actually exists” cannot be interpreted to mean “fictitious” or “imputed”). Because the regulations by the agency entrusted to administer the PAIMI Act program elucidate and give force to the statute, they are afforded great deference. See Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837, 843-44 (1984) (“We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations.”). Here, the plain meaning of “residents” is the children who reside at SafetyNet, and the court should use that meaning in applying the PAIMI Act regulations.
Allowing access to all SafetyNet residents is consistent with the purpose of the PAIMI Act. If courts interpreted “residents” narrowly to mean “only the most severely ill residents,” facilities could keep some residents off-limits simply by classifying them differently. Rather than rely on a facility’s unilateral determination of which residents will receive protection and
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advocacy, the drafters mandated that P&As have access to “residents” of the facility and placed no limitations on that term. This broad coverage is also clear from the PAIMI Act regulations’ definition of “care and treatment” to include services to “prevent” mental illness or emotional impairment, including “health screening [and] evaluation.” The regulations could have limited covered activities to those responding to existing significant mental illness, but, instead, chose to expand access to services, such as those provided in SafetyNet’s Moderate Program, which are designed to prevent children from developing more serious mental illness.
There could, of course, be some types of facilities that serve multiple functions, with some functions that fall within the PAIMI Act and other functions that do not. Hospitals, for instance, could be “facilities” within the PAIMI Act for some functions (e.g. psychiatric services) but outside of the PAIMI Act for other functions (e.g. oncology). In that case, the PAIMI Act would apply to that portion of the facility that provides mental health care, so the P&A would have access to the psychiatric services areas and general areas but could not venture into the oncology department. SafetyNet’s division of its facility into Intensive and Moderate Programs for children with mental disorders, however, does not take it outside of the reach of the PAIMI Act because both programs concern overnight care accompanied by mental health treatment services.
D. SafetyNet Cannot Place Conditions on ADAP’s Access or Dismiss ADAP’s Function as Superfluous.
After disclaiming ADAP’s access to the Moderate Program entirely, SafetyNet tried to impose conditions. It proposed that access to the SafetyNet Moderate Program be conditioned upon:
a) an incident or complaint made to ADAP as to SafetyNet’s moderate program; or
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b) there is probable cause to believe an incident has occurred at SafetyNet’s moderate program. Ex. 6 to Complaint (emphasis in original). SafetyNet’s position rests on a misreading of the regulations. One PAIMI Act regulation does grant access to P&As to investigate if there has been a reported incident, a complaint, probable cause or imminent danger. See 42 C.F.R. § 51.42(b). That access in subsection (b) is in addition to subsection (c) access for other purposes, such as monitoring and providing information to residents. See 42 C.F.R. § 51.42(c) (allowing access “[i]n addition to access as prescribed in paragraph (b) of this section . . .”) (emphasis added). Thus, ADAP is entitled to reasonable unaccompanied access for the purposes outlined in subsection (c) – providing information and training, monitoring compliance, and inspecting, viewing and photographing – without proof of an incident, complaint, probable cause or imminent danger that would trigger an investigation under subsection (b).6 SafetyNet’s position is also at odds with the purpose of the PAIMI Act. The Act was intended to protect individuals with mental illness by affording broad access rights to protection and advocacy organizations. A central function of these organizations is to conduct monitoring, even in the absence of abuse and neglect complaints from residents. Monitoring activities include facility visits and also unaccompanied opportunities to speak with residents of the facilities. The PAIMI Act is undermined if P&As are denied these rights, if they must litigate
6 SafetyNet cites Alabama Disabilities Advocacy Program v. J.S. Tarwater Dev. Ctr., 97 F.3d 492 (11th Cir. 1996), as the basis for its demand that ADAP demonstrate probable cause or receipt of a complaint. DHR Brief at 35. In Tarwater, the P&A sought access to records, which by statute is limited to situations in which the P&A demonstrates probable cause or receipt of a complaint. Id. at 497. ADAP is seeking access to monitor and does not seek records, so Tarwater does not justify the conditions SafetyNet has imposed.
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each time they seek access to a facility and its residents, or if facilities can avoid access by characterizing some residents as less seriously ill than others.
Despite the compelling need articulated by Congress for P&As to monitor facilities that provide care or treatment for individuals with mental illness, SafetyNet suggests that any monitoring ADAP might do is superfluous. SafetyNet argues that the involvement of parents, social workers and government is adequate protection for those children it has admitted for residential treatment – but whose issues SafetyNet deems to be only mild to moderate in severity. DHR Brief at 40-41. SafetyNet’s opinion about the merits of ADAP’s oversight is beside the point. Congress passed the PAIMI Act in 1991 to prevent the terrible abuses that can occur in facilities absent effective protection and advocacy. See H.R. Rep. 102-319, November 15, 1991. The need for thorough and active monitoring is as important now as it was then, and facilities cannot block PAIMI Act access simply because they claim no abuse is occurring.
CONCLUSION The PAIMI Act is a critical component in the system of legal protections for people with disabilities and its words must be given full force and effect. Congress unambiguously afforded protection and advocacy organizations the authority to access the facilities serving people with disabilities and the individuals themselves. This court should affirm that the PAIMI Act and regulations require facilities to permit reasonable unaccompanied access to all areas that are used by or are accessible to residents if the facility provides care and treatment to individuals with mental illness.
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Respectfully submitted,

MOLLY J. MORAN Acting Assistant Attorney General
EVE L. HILL Deputy Assistant Attorney General
/s/ Cynthia Coe JONATHAN M. SMITH, Section Chief MARY BOHAN, Deputy Chief CYNTHIA COE, Trial Attorney District of Columbia Bar No. 438792 U.S. Department of Justice 950 Pennsylvania Avenue, NW – PHB Washington, DC 20530 Telephone: 202-303-1121 cynthia.coe@usdoj.gov
For the United States of America

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CERTIFICATE OF SERVICE I hereby certify that on October 14, 2014 I electronically filed the United States’ Statement of Interest with the Clerk of the Court using the CM/ECF system which will automatically send email notification of such filing to the attorneys of record.
/s/ Cynthia Coe CYNTHIA COE, Trial Attorney District of Columbia Bar No. 438792 Special Litigation Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, NW – PHB Washington, DC 20530 Telephone: 202-303-111 cynthia.coe@usdoj.gov
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 Case 2:13-cv-00519-CG-B Document 78 Filed 12/12/14 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT
 FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION


ALABAMA DISABILITIES ADVOCACY PROGRAM,
Plaintiff,
vs.
SAFETYNET YOUTHCARE, INC.,
Defendant/Third-Party Plaintiff,
vs.
ALABAMA DEPARTMENT OF HUMAN RESOURCES,
Third-Party Defendant.

) ) ) ) ) ) Civil Action No. 13-0519-CG-B ) ) ) ) ) ) ) ) ) ) ) ) )

ORDER This matter is before the Court on 1) the motion for summary judgment (Doc.63) filed by Plaintiff Alabama Disabilities Advocacy Program (“ADAP”) on its claim for declaratory and injunctive relief against Defendant SafetyNet Youthcare, Inc. (“SafetyNet”); 2) the motion for summary judgment (Doc. 62) filed by Defendant/Third-Party Plaintiff SafetyNet on ADAP’s claim against it; and 3) the motion for summary judgment (Doc. 64) filed by ThirdParty Defendant Alabama Department of Human Resources (“DHR”) on SafetyNet’s claims against it for indemnity and contribution. SafetyNet operates a residential facility, licensed by DHR, which

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provides services and treatment for males, from the age 10 years to the age of 18 years, who have certain behavioral and mental health needs. It provides both a Moderate Residential Service (“moderate program”) and an Intensive Residential Service (“intensive program”). ADAP is Alabama’s designated, federally funded program authorized by Congress to protect and advocate for the civil rights of persons with disabilities in Alabama.
The issues involved in the motions require the Court to determine whether ADAP may legally access SafetyNet’s moderate program over the objections of DHR. ADAP, seeking injunctive and declaratory relief, alleges SafetyNet failed or refused to provide ADAP access to monitor all programs at its facility, in violation of the Protection and Advocacy for Mentally Ill Individuals Act (“PAMII”), 42 U.S.C. §§ 10801 – 10851 (2012); the Protection and Advocacy for Individuals with Developmental Disabilities statutes (“PADD”), 42 U.S.C. §§ 15041 – 15045 (2012); and the Protection and Advocacy of Individual Rights statute (“PAIR”), 29 U.S.C. § 794e (2012). (Doc. 1, pp. 1 – 2, 10). SafetyNet answered ADAP’s complaint (Doc. 7) and filed a third-party complaint against DHR (Doc. 8), requesting indemnification and contribution from the state agency. SafetyNet alleges DHR told it not to allow ADAP access to the moderate program. (Doc. 8, p. 3). ADAP, SafetyNet, and DHR subsequently filed motions for summary judgment. (Docs. 62, 63, 64, 70). All three parties responded, opposing each other’s motions. (Docs. 71, 72, 73). SafetyNet and DHR then filed their replies. (Docs. 75, 76, 77). The
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Department of Justice filed a Statement of Interest supporting ADAP’s position. (Doc. 74). After careful consideration, the Court finds that ADAP’s motion for summary judgment is due to be granted for the reasons set forth herein, and SafetyNet’s motion for summary judgment and request for indemnification and contribution are due to be denied. DHR’s motion for summary judgment is also due to be denied.
I. FACTS The dispute began in October 2012, when ADAP sought access to a
state-licensed facility, SafetyNet, which provides residential care and treatment to male youths with behavioral health needs. (Doc. 62, Exh. 1, p. 2; Exh. 3, p. 1 – 5; Doc. 63, Exh. 2, p. 8). The parties agree ADAP is allowed access to the intensive program at the facility. (Doc. 65, p. 4). The dispute lies in whether ADAP may access the moderate program.
A. The Moderate Program The intensive and moderate programs at the SafetyNet facility provide a residential setting with overnight care for males ages 10- to 18-years-old. (Doc. 62, Exh. 1, p. 1). Residents in the intensive and moderate programs are housed separately at the facility. (Doc. 62, Exh. 1, p. 2). “Intensive residential services are provided in a more restrictive setting,” (Doc. 65, p. 12), whereas the moderate program is less restrictive. (Doc. 65, pp. 18 – 19). DHR generally “pursues the least restrictive setting … possible [for the child].”
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(Doc. 65, p. 12). According to the DHR Moderate Residential Services for Children
Request for Proposals (“RFP”), the moderate program is specifically intended to provide:
[R]oom, board and an array of services for a child with moderate and/or serious emotional and/or behavioral management problems that interfere with the child’s ability to function in the family, school and/or community setting in other than a residential environment. Moderate placement services are limited to children whose needs cannot be met in their own home, traditional foster home, basic residential care, or children who have reached their treatment goals in a more restrictive setting and are ready to be “stepped down.” (Doc. 66, Exh. 15, pp. 17, 36). Additionally, the moderate program serves only youth with a “Diagnostic & Statistical Manual, Fifth Edition (DSM-V) diagnosed mental illness from a psychological evaluation conducted within the past 24 months.” (Doc. 66, Exh. 15, pp. 17, 36).1 Individuals with a diagnosis of mental retardation are excluded from moderate programs, unless DHR makes an exception. (Doc. 65, p. 27; Doc. 66, Exh. 10, p. 8). Moderate programs also exclude individuals who pose a substantial risk to the safety of others, individuals who need frequent physical management because of aggressive behavior or require intensive behavioral modification strategies, and individuals identified as sex offenders. (Doc. 65, p. 27).
1 The 2009 RFP cited the Fourth Edition (DSM-IV) of the manual. (Doc. 66, Exh. 15, p. 17)
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In general, “[m]oderate residential facilities are rehabilitative and group home in focus where individual basic living skills and group and individual counseling are emphasized.” (Doc. 65, p. 25). To help care for moderate program residents, SafetyNet provides daily instruction on basic living skills. (Doc. 65, pp. 13, 18). SafetyNet also provides its moderate program residents with individual and group counseling, crisis intervention, psychiatric services, psychological testing, medication monitoring and administering, mental health consultations, constant adult supervision, and special education. (Doc. 63, Exh. 2, p. 8; Doc. 65, pp. 13, 18).
Between January 1, 2012, and August 31, 2014, the moderate program at SafetyNet housed forty-two children with a variety of diagnoses, which included: Bi-Polar Disorder, Major Depressive Disorder, Mood Disorder, Complex Post Traumatic Stress Disorder with mixed Disturbance of Emotions (anxiety) and Conduct, Generalized Anxiety Disorder, Oppositional Defiant Disorder, Persistent Depressive Disorder, Asperger’s Disorder, Disruptive Behavior Disorder, Pervasive Developmental Disorder, Disorder of Written Expression, Dysthymic Disorder, Reactive Attachment Disorder, Anxiety Disorder, Intermittent Explosive Disorder, Learning Disorder NOS, Attention Deficit Hyperactivity Disorder (ADHD), Depressive Disorder, Conduct Disorder, Adjustment Disorder with
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mixed disturbance of emotion and Conduct. (Doc. 70, pp. 2 – 3; Doc. 70, Exh. 1, pp. 4 – 7). Approximately 72% of the residents took medication to treat a psychiatric condition, mental disorder, emotional disorder, or a behavioral disorder during this period. (Doc. 63, Exh. 2, p. 10). Pursuant to the DSM-V, many of the listed disorders are not “static” but are diagnosed on a continuum from “moderate” to “severe.” (Doc. 65, p. 28; Doc. 72, p. 6). Thus depending on the individual needs of residents in the moderate program, it is possible that they can be “stepped up” to an acute setting or “stepped down” to a less restrictive setting following an evaluation. (Doc. 65, pp. 20 – 21).
B. Refusing ADAP Access to the Moderate Program From October 2012 to October 2013, ADAP wrote to SafetyNet, requesting, but never gaining, direct physical access to the moderate program. (Doc. 63, Exh. 2, p. 12; Doc. 72, p. 2). ADAP also tried to monitor the moderate program during this period. (Doc. 63, Exh. 2, p. 12). SafetyNet, adhering to “explicit instructions” from DHR, continuously denied ADAP access to the moderate program. (Doc. 8, p. 2; Doc. 62, Exh. 1, pp. 2 – 3). On October 7, 2013, ADAP sent a demand letter to SafetyNet (Doc. 62, Exh. 5, p. 1), threatening suit if SafetyNet again refused them access. SafetyNet called DHR to “confirm that it was still [DHR’s] position that ADAP did not have authority to access residents in the Moderate Program.” (Doc. 62, Exh. 1, p. 3). On October 10, 2013, Sharon Ficquette, DHR General
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Counsel, responded to ADAP in writing. (Doc. 62, Exh. 6, p. 1). Ficquette’s letter said “[DHR] and SafetyNet agree to access by ADAP to SafetyNet’s moderate program based upon Eleventh Circuit standard for intensive programs as set out in the case of Alabama Disabilities Advocacy Program v. J.S. Tarwater Developmental Ctr., 97 F.3d 492 (11th Cir. 1996).” (Doc. 62, Exh. 6, p. 1; Doc. 65, p. 5). Based on this case, the letter further stated, “access to the SafetyNet Moderate Program is conditioned upon” “an incident or complaint made to ADAP” about the program; or “probable cause to believe an incident has occurred” at the program. (Doc. 62, Exh. 6, p. 1). DHR also asserted, “Moderate facilities are not Intensive treatment programs and are not considered a part of the Psychiatric Services for Individuals under the Age of 21.” (Doc. 62, Exh. 6, pp. 2 – 3; Doc. 65, p. 7). Therefore, DHR did not believe ADAP had the right to access or monitor the moderate program. (Doc. 62, Exh. 6, p. 2).
DHR argues “[t]his case involves a fundamental difference in the concept and purpose of moderate residential services between ADAP and [DHR]. [DHR] maintains that the moderate services program is not accessible to ADAP.” (Doc. 65, p. 4). SafetyNet argues it is caught in a Catch22: it can either comply with ADAP and violate the orders of DHR, its licensing authority, or follow the advice of DHR and violate federal law. (Doc. 62, Exh. 1, p. 7). SafetyNet asserts it “does not, nor has it ever, objected to granting ADAP access to residents in SafetyNet’s Moderate Program.
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SafetyNet has and continues to comply with the explicit instructions of its licensing agency, [DHR].” (Doc. 62, Exh. 1, p. 5). ADAP states SafetyNet violated its federal right to access the facility, thereby preventing it from “conducting statutorily-authorized monitoring activities designed to protect the civil rights and safety of individuals with disabilities.” (Doc. 63, Exh. 2, p. 1 – 2). II. STANDARD OF REVIEW
The court may grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The substantive law applicable to the case determines what is material. Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004), cert. den., 534 U.S. 1081 (2005). If the nonmoving party fails to make “a sufficient showing on an essential element of her case with respect to which she has the burden of proof,” the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In evaluating the movant’s arguments, the court must view all evidence and resolve all doubts in the light most favorable to the nonmovant. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds might differ on the inferences arising from undisputed facts, then [the court] should deny summary judgment.” Hinesville Bank v. Pony Express Courier Corp., 868 F.2d 1532, 1535 (11th Cir. 1989). The basic
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issue before the court then is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). The mere existence of any factual dispute will not automatically necessitate denial of a motion for summary judgment; rather, only factual disputes that are material preclude entry of summary judgment. Lofton, 358 F.3d at 809. III. THE STATUTES AND REGULATIONS AT ISSUE
PADD, PAMII, and PAIR help protect and advance the interests of those with mental illness or developmental disabilities. Collectively, these laws grant a state’s protection and advocacy system (“P&A”) the powers to investigate allegations of abuse and neglect, respond to rights violations, and provide general advocacy services on behalf of state residents with disabilities or mental illness.2 See Ala. Disabilities Advocacy Program v. J.S. Tarwater Developmental Ctr., 97 F.3d 492, 497 (11th Cir. 1996) (discussing “broad remedial framework” of the P&A laws). The statutes grant each P&A certain rights and responsibilities, including the authority to “pursue legal,
2 The statutes authorizing the PAMII P&A systems are currently codified in 42 U.S.C. §§ 10801 – 10851, and the corresponding regulations are found in 42 C.F.R. part 51. The PADD P&A systems are currently codified in 42 U.S.C. §§ 15041 – 15045, and the corresponding regulations are found in 45 C.F.R. parts 1385, 1386, 1387, and 1388. The PAIR P&A systems are currently codified in 29 U.S.C. § 794e, and the corresponding regulations are found in 34 C.F.R. part 381. The United States Code is published every six years, so each citation to the statutes refers to the 2012 version unless otherwise stated. The Code of Federal Regulations is updated annually, so each citation to the regulations refers to the 2014 edition.
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administrative, and other appropriate remedies” on behalf of individuals with disabilities. 42 U.S.C. § 15043(a)(2)(A)(i); see also § 10805(a)(1)(B) (giving P&A the authority to “pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the State”).
To “carry out the purpose” of the laws, the statutes and regulations expressly provide each P&A with access authority to 1) individuals, 2) records, and 3) public and private facilities. 42 U.S.C. §§ 15043(a)(2)(H); 10805(a)(3) (authorizing “access to facilities in the State providing care or treatment”); see also Tarwater Developmental Ctr., 97 F. 3d at 497 (“It is clear that the Act provides express authority for P&As to gain broad access to records, facilities, and residents to ensure that the Act’s mandates can be effectively pursued.”). P&A access to individuals is authorized “at reasonable times . . . 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 also 42 C.F.R. § 51.42(c) (“a P&A system shall have reasonable unaccompanied access to facilities including all areas which are used by residents, are accessible to residents, and to programs and their residents at reasonable times, which at a minimum shall include normal working hours and visiting hours”) (emphasis added). P&A access to the records of individuals with mental illness or disabilities is also authorized; and, in certain situations, a P&A may access records without consent of either the individual or her legal
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guardian. 42 U.S.C. §§ 10805(a)(4); 15043(a)(2)(I). Additionally, P&A access to individuals and records is available at any time for the purposes of conducting a “full investigation of an incident of abuse or neglect.” 42 C.F.R. § 51.42(b); 45 C.F.R. § 1386.22(f). Where a P&A is not investigating a specific incident, it is entitled to access facilities “at reasonable times” for the purposes of general advocacy (for example, the distribution of information or routine health and safety monitoring). 42 C.F.R. § 51.42(c); 45 C.F.R. § 1386.22(g); see also 42 C.F.R. § 51.31(c) (a P&A “should establish an ongoing presence in residential mental health care or treatment facilities, and relevant hospital units”). Because the statutes and regulations applicable to this action are numerous, they are discussed in more detail below.
A. PADD In 1975, Congress passed the Developmental Disabled Assistance and Bill of Rights Act (the “DD Act”). Pub. L. 94-103, 89 Stat. 486 (1975). The DD Act offered federal funding to assist states in providing services to individuals with developmental disabilities. To receive this funding, states were required to establish a “system to protect and advocate the rights of persons with developmental disabilities.” 42 U.S.C. § 6012 (1975); Pub. L. 94-103, 89 Stat. 504. At that time, the DD Act defined developmental disability to include specific conditions (e.g., mental retardation and other conditions closely related to mental retardation, cerebral palsy, epilepsy, autism, and dyslexia), that originated prior to age 18, were expected to continue indefinitely, and
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constituted a substantial handicap. 42 U.S.C. § 6001(7) (1975). In 1978, Congress amended the DD Act by raising the age of onset to 22, deleted all references to specific handicapping conditions, and effectively broadened the definition of “developmental disabilities” by basing it on functional limitations. REHABILITATION, COMPREHENSIVE SERVICES, AND DEVELOPMENTAL DISABILITIES AMENDMENTS OF 1978, Pub. L. No. 95–602, Sec. 503, 92 Stat. 2955, 3005. Congress also made clear “the overall purpose” of the DD Act is “to assure that persons with developmental disabilities receive the care, treatment, and other services necessary to enable them to achieve their maximum potential through a system which coordinates, monitors, plans, and evaluates those services and which ensures the protection of legal and human rights of persons with developmental disabilities.” Id. at 3004.
In 2000, Congress repealed the 1975 DD Act and replaced it with the Developmental Disabilities Assistance and Bill of Rights Act of 2000. Pub. L. No. 106-402, 114 Stat. 1677 (codified as amended at 42 U.S.C. §§ 15001 – 15115 (2012)). In doing so, Congress specifically included the need for “protection and advocacy systems in each State to protect the legal and human rights of individuals with developmental disabilities” as one of the primary purposes of the law. 42 U.S.C. § 15001(b)(2). The 2000 DD Act redefined “developmental disability” and again framed it in terms of a person’s functional limitations, instead of referring to any specific diseases or
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causes. 42 U.S.C. § 15002(8);3 see also Tenn. Protection & Advocacy, Inc. v.
Wells, 371 F.3d 342, 347 (6th Cir. 2004) (discussing “how functional
limitations, i.e., the result of the condition, govern the determination of
whether a person falls under the Act’s protection, not medical history, i.e., the
cause”). The legislative history of the DD Act shows that Congress has
consistently sought to assist all developmentally disabled persons, and has
routinely acted to ensure P&As are empowered by law.
3 The statute defines “developmental disability” 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; (iv) results in substantial functional limitations in 3 or more of the
following areas of major life activity: (I) Self-care. (II) Receptive and expressive language. (III) Learning. (IV) Mobility. (V) Self-direction. (VI) Capacity for independent living. (VII) 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.
(B) An individual from birth to age 9, inclusive, who has a substantial developmental delay or specific congenital or acquired condition, may be considered to have a developmental disability without meeting 3 or more of the criteria described in clauses (i) through (v) of subparagraph (A) if the individual, without services and supports, has a high probability of meeting those criteria later in life. 42 U.S.C. § 15002(8).
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B. PAMII
In 1986, Congress enacted PAMII. PROTECTION AND ADVOCACY FOR
MENTALLY ILL INDIVIDUALS ACT OF 1986; Pub. Law 99–319, 100 Stat 478
(1986). Modeled after the DD Act,4 Congress crafted PAMII in response to
horrific reports of abuse and neglect in state psychiatric hospitals.5 As a
result, the Act is meant to “ensure that the rights of individuals with mental
illness are protected.” 42 U.S.C. § 10801(b).
Since its inception, Congress has amended PAMII four times.
PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS AMENDMENTS
ACT OF 1988, Pub. L No. 100-509, 102 Stat. 2543; PROTECTION AND
4 Congress intended that the PAMII Act “would provide for the same kind of assistance for institutionalized mentally ill patients as that which is now available for mentally disabled patients. It would do that by expanding the mandate of state protection and advocacy agencies to include services for the mentally ill.” 132 Cong. Rec. H204-03 (daily ed. Jan. 30, 1986) (statement of Rep. Anthony Beilenson (D-Cal.)). 5 Representative Lott noted, “(t)his legislation is the result of committee findings that the mentally ill have been subjected to serious abuse and neglect in institutions, including physical, emotional and sexual abuse.” 132 Cong. Rec. H204-03 (daily ed. Jan. 30, 1986) (statement of Rep. Trent Lott (RMiss.)); see also S. Rep. No. 99-109, at 2 (1985) (documenting the need for legislation). Sadly, numerous reports of abuse and neglect at institutions for mentally ill or disabled individuals still exist today. In 2007, for example, the Atlanta-Journal Constitution published a ten part series of articles concerning Georgia’s mental health system. The series revealed that from 2002 until 2007, more than 100 patients of Georgia’s state psychiatric hospitals had died under suspicious circumstances. See, e.g., Alan Judd & Andy Miller, Sarah Crider was among 115 patients in the state’s care who might have lived, (A Hidden Shame, Part One), THE ATLANTA JOURNALCONSTITUTION, Jan. 7, 2007; see also Joseph Shapiro, Abuse At Texas Institutions Is Beyond ‘Fight Club,’ NPR, Mar. 17, 2009 (detailing abuse by forcing patients to fight one another at a facility for the “entertainment” of hospital employees).
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ADVOCACY FOR MENTALLY ILL INDIVIDUALS AMENDMENTS ACT OF 1991, Pub. L. No. 102-173, 105 Stat. 1217; CHILDREN’S HEALTH ACT OF 2000, Pub. L. 106-310, 114 Stat. 1101, 1194; DEVELOPMENTAL DISABILITIES ASSISTANCE AND BILL OF RIGHTS ACT OF 2000, Pub. L. 106-402, 114 Stat. 1677, 1739. Originally, the statute contemplated only individuals who suffered from mental illness and resided in a facility providing treatment. PAMII’s current definition of “individuals with mental illness” includes anyone with “a significant mental illness or emotional impairment, as determined by a mental health professional” regardless of where that person resides. 42 U.S.C. § 10802(4).
Throughout PAMII’s legislative history, Congress has maintained and reiterated the importance of P&As for individuals with mental illness. See, e.g., PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS ACT OF 1986, S. Rep. No. 109, 99TH Cong., 1ST Sess. 1985, 1986 U.S.C.C.A.N. 1361, 1370 (“The Committee recognizes the need for full [P&A] access to facilities and clients and to their records in order to ensure the protection of mentally ill persons.”). Congress has clearly stated that it:
[E]xpects that facilities will provide the [P&A] system with reasonable access to all inpatients and residents in such facilities to enable the systems to inform all such individuals of their rights under Federal and State law and the U.S. Constitution and to explain the nature and scope of the system’s authority under the Act. Informing a mentally ill individual of his or her rights is a critical function of a protection and advocacy system. PROTECTION & ADVOCACY FOR MENTALLY ILL INDIVIDUALS ACT OF 1988, S.
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Rep. 100-454, at 11 (1988) reprinted in 1988 U.S.C.C.A.N. 3217, 3227; see also H.R. Rep. No. 102-319 (1991), reprinted in 1991 U.S.C.C.A.N. 777, 778 (discussing amendments and purpose of PAMII).
In addition to the statutes and corresponding legislative history, there are also regulations implementing PAMII. In 1997, the Department of Health and Human Services (“DHHS”) published the regulations in a final rule. SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION; REQUIREMENTS APPLICABLE TO PROTECTION AND ADVOCACY OF INDIVIDUALS WITH MENTAL ILLNESS; Final Rule, 62 Fed. Reg. 53,548-01 (Oct. 15, 1997) (to be codified at 42 C.F.R. part 51). When adopting the PAMII regulations, DHHS explained, “monitoring compliance with patient rights is an opportunity to prevent incidents from occurring and to ensure that facility staff, as well as residents, understand what their rights are.” 62 Fed. Reg. at 53,561. And, “while an investigation involves access to facilities, [P&A] systems have authority in their monitoring role to access facilities regardless of whether or not a complaint has been registered or probable cause exits.” 62 Fed. Reg. at 53,551 – 552. “Determination of ‘probable cause’ may result from P&A system monitoring or other activities, including observation by P&A system personnel, and reviews of monitoring and other reports prepared by others whether pertaining to individuals with mental illness or to general conditions affecting their health or safety.” 42 C.F.R. § 51.31(g).
DHHS further explained in the rule that “reasonable access” means
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access during all hours and shifts, and not only on weekdays during facility “business hours.” 62 Fed. Reg. at 53,561; see also 42 C.F.R. § 51.42(c) (discussing “reasonable access” to facilities). Access “should be to all areas used by residents or accessible to residents. Access is afforded [to the P&A] in order to monitor compliance with respect to the rights and safety of residents.” 62 Fed. Reg. at 53,561; see also 42 C.F.R. § 51.42(b) (discussing access to facilities). “Residents include adults or minors who have legal guardians or conservators.” 42 C.F.R. § 51.42(c). “The intent of the regulations” is clear, P&A systems must “have full unaccompanied access to residents and to all areas of the facility accessible to residents. In the interest of safety, access to certain nonpublic areas or to certain residents may be restricted by the facility but only in accordance with the procedures stipulated in section [42 C.F.R. section] 51.43 (Denial or Delay of Access).” 62 Fed. Reg. at 53,561.
C. PAIR PAIR extends P&A services to individuals not otherwise afforded PADD or PAMII protection. 29 U.S.C. § 794e(a)(1); 34 C.F.R. §§ 381.1, 381.5(b). Although enacted earlier, Congress fully funded the PAIR program in 1993. REHABILITATION ACT AMENDMENTS OF 1993, Pub. L. 103–73, 107 Stat. 718. PAIR grants the “same general authorities, including access to records and program income, as are set forth in [PADD]; [and] the authority to pursue legal, administrative, and other appropriate remedies or
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approaches to ensure the protection of, and advocacy for, the rights of [certain] individuals.” 29 U.S.C. § 794e(f)(2)–(3). The wide range of disabilities encompassed by PAIR may include, for example, certain persons with physical or sensory disabilities (such as blindness or deafness), some persons with traumatic head injuries incurred after age 22, individuals with neurological impairments such as muscular dystrophy or multiple sclerosis, or some persons with learning disabilities. See, e.g., Doe v. Stincer, 175 F.3d 879, 883 (11th Cir. 1999) (“PAIR authorizes [P&A] organizations . . . to provide services to individuals with disabilities who are not eligible for services under pre-existing [P&A] legislation, including PAMII.”); Tenn. Protection & Advocacy, Inc., 371 F.3d at 351 (discussing how individuals with traumatic brain injuries may be covered by the P&A statutory scheme). As a result, PAIR extends the reach of P&As, which allows them to serve more individuals. With these PADD, PAMII, and PAIR statutes and regulations in mind, the Court turns to the legal analysis. IV. ANALYSIS
A. JURISDICTION This Court has jurisdiction over this action because it arises under federal law. 28 U.S.C. § 1331. Furthermore, ADAP has standing because it seeks to establish that SafetyNet’s actions are causing injury to the P&A system itself. (Doc. 1, p. 10); Stincer, 175 F.3d at 884 (citing Tarwater Developmental Ctr., 97 F.3d 492).
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B. PADD, PAMII, and PAIR APPLY TO THE SAFETYNET FACILITY
Courts have found that P&A systems need not “make a threshold showing” of mental illness or developmental disabilities in order to exercise their access authority. See J.H. ex rel. Gray v. Hinds Cnty., Miss., No. 3:11CV-327-DPJ-FKB, 2011 WL 3047667, at *4 (S.D. Miss. July 25, 2011); Disability Rights Wash. v. Penrith Farms, No. CV-09-024-JLQ, 2009 WL 777737, at *3 (E.D. Wash. Mar. 20, 2009); Protection & Advocacy for Persons with Disabilities v. Armstrong, 266 F. Supp. 2d 303, 313 (D. Conn. 2003); Ky. Protection & Advocacy Div. v. Hall, No. CIV.A.3:01CV-538-H, 2001 WL 34792531, at *1 (W.D. Ky. Sept. 24, 2001); Mich. Protection & Advocacy Serv. v. Miller, 849 F. Supp. 1202, 1207 (W.D. Mich. 1994). Instead of requiring conclusive evidence that a particular person or persons qualifies as an individual with mental illness or developmentally disability for the purposes of PADD, PAMII, or PAIR, courts have held that a showing of “substantial evidence” suffices. Mich. Protection & Advocacy Serv. 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 [the P&A].’” Protection & Advocacy for Persons with Disabilities, 266 F. Supp. 2d at 314 (quoting Ky. Prot. & Advocacy Div., 2001 WL 34792531, at *3 (W.D. Ky. Sept. 24, 2001)).
There is no question that SafetyNet houses and treats individuals with
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mental illness in its intensive program, thus it is subject to PAMII. There is also evidence that some residents in the moderate program may suffer from mental illness or developmental disabilities based on the diagnoses of those residents and their need for involved, daily care and support. (Doc. 63, Exh. 2, p. 24; Doc. 70, pp. 2 – 4). Moreover, PAIR expands on the rights and protections created by PAMII and PADD, and includes individuals with disabilities who do not otherwise qualify for services under those statutes. 29 U.S.C. § 794e. If a child diagnosed with “major depressive disorder” or “pervasive developmental disorder,” for example, is not considered disabled for the purposes of PADD or to have a mental illness for the purposes of PAMII, that child may nevertheless be subject to PAIR. Regardless, ADAP is entitled access to the intensive and moderate programs at SafetyNet in accordance with PAMII.
DHR, however, tries to argue that “the plain meaning of the statutes” differentiates between “severe” and “moderate” mental illness or disability, and individuals with only “moderate” illness or disability are not afforded P&A protection. (Doc. 65, pp. 33 – 35). For this argument, DHR contends “significant mental illness,” 42 U.S.C. § 10802(4), and “severe, chronic disability,” 42 U.S.C. § 15002(8)(A), means “more than just a diagnosis.” (Doc. 65, pp. 31 - 36, 43; Doc. 72, pp. 13, 15). The Court disagrees, and finds that the statutes and regulations do not state that individuals with “moderate” mental illness or developmental disability are excluded from P&A services.
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Nothing in the legislative history of the P&A system suggests that Congress sought to restrict P&As from serving individuals with “moderate” mental illness or disabilities. To the contrary, the statutes and regulations speak of general access to residents and facilities, e.g., 42 C.F.R. § 51.42(c), and the definitions of mental illness and developmental disability are intentionally broad in scope. Congress also expanded P&A reach by enacting PAIR to specifically cover individuals not protected by PADD or PAMII. DHR’s argument that moderately ill or developmentally disabled individuals are excluded from P&A oversight is without merit.
Furthermore, assuming for the sake of argument that the law requires “more than just a diagnosis,” that heightened standard is met here. Residents in the moderate program receive regular care and instruction on “basic living skills for a minimum of 2 hours daily,” counseling, medication, mental consultations, bi-weekly contact with a therapist, and bi-weekly group therapy, among other things. (Doc. 65, pp. 18 – 19). Residents are placed in the moderate program because the “child’s needs can only be met in a more restrictive placement.” (Doc. 65, p. 12; Doc. 66, Exh. 15, pp. 17, 36). The residents thus need care that extends beyond a mere diagnosis, and they receive several treatment options and individualized service plans for their behavioral health needs.
Moreover, SafetyNet is operating a “facility” that provides “care or treatment” to “individuals with mental illness.” 42 C.F.R. § 51.42(b).
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SafetyNet is not, for instance, a hospital that is fixing broken bones on one side and providing some patients with psychiatric care on the other. (Doc. 74, p. 2). Indeed, SafetyNet exists for one purpose: to provide care and treatment for children with a variety of mental health and emotional disorders. This puts it squarely under the purview of PAMII. Nothing in the statutes, regulations, or legislative history suggests that P&A access is determined one resident at a time. Nor is P&A access limited to only those residents with the most severe mental illness, especially when SafetyNet can at any time change a child’s placement to a more or less restrictive setting.
DHR also relies on Alabama’s Medicaid statutes and regulations for its position. (Doc. 65, pp. 36 – 37; Doc. 77, pp. 5 – 7). The Medicaid rules do not trump PADD, PAMII, or PAIR, nor do the rules control the interpretation of these federal laws. States and state-licensed facilities must comply with federal law. See M’Culloch v. Maryland, 17 U.S. 316, 435 (1819) (discussing state laws in relation to the Supremacy Clause).
Additionally, DHR cannot successfully argue that PADD, PAMII, or PAIR do not apply to SafetyNet because certain Medicaid services are billed on an outpatient basis. (Doc. 65, p. 9). The statutes make clear that P&A systems are afforded monitoring and access rights to individuals with mental illness or disability even when they are not residing full-time in a facility. Congress designed PAMII to protect individuals with mental illness who live and receive treatment outside of inpatient treatment facilities. 42 U.S.C. §§
22


Case 2:13-cv-00519-CG-B Document 78 Filed 12/12/14 Page 23 of 33
10802(3), (4)(B); 10841(3)(C); Conn. Office of Prot. & Advocacy for Persons with Disabilities v. Hartford Bd. of Educ., 464 F.3d 229, 240 (2d Cir. 2006) (protecting school students from abuse and neglect within educational settings). The laws also protect patients in community-run programs like outpatient facilities, boarding and group homes, homeless shelters, and even the patient’s own home. 42 U.S.C. §§ 10802(3), (4)(B); 15043. The argument that ADAP cannot access the moderate program because some of the services provided by that program are considered “outpatient” services under the state Medicaid regulations fails.
It is also perplexing that DHR “thought it best to follow the Tarwater case to resolve issues with ADAP.” (Doc. 65, p. 38). Tarwater is a case about records, not facility access or monitoring, and it analyzed whether an anonymous telephone call implying that abuse or neglect may have caused death constituted a “complaint” and established probable cause for purposes of gaining record access. 97 F.3d 492, 496 (11th Cir. 1996).6 DHR and SafetyNet cannot claim that Tarwater applies to the moderate program, and yet deny ADAP access to monitor its facility and moderate program residents. In doing so, DHR and SafetyNet essentially decided they must comply only with some provisions of the P&A statutes and regulations. DHR and SafetyNet do not get to conveniently pick and choose which provisions of federal law they will ignore.
6 Notably, PAMII and its regulations have been amended since Tarwater. 23


Case 2:13-cv-00519-CG-B Document 78 Filed 12/12/14 Page 24 of 33
DHR also complains that giving ADAP “access to moderate really undermines” the work performed by SafetyNet and the state. (Doc. 72, p. 13). To be clear, the focus here is not on any party “undermining” the other. The priority remains the safety, health, and well being of SafetyNet’s residents, and all individuals served by the P&A system.
C. ADAP MAY ACCESS AND MONITOR THE MODERATE PROGRAM
Through PADD, PAMII, and PAIR, Congress created a nationwide system of organizations with a mandate to provide protection and advocacy for individuals with mental illness or disabilities. The access authority is one of the most important features of the P&A system. The three primary types of access - to individuals, their records, and the facilities or residences in which they live - are key to ensuring the P&A system fulfills its Congressional purpose. See, e.g., EXAMINING THE ISSUES RELATED TO THE CARE AND TREATMENT OF THE NATION’S INSTITUTIONALIZED MENTALLY DISABLED PERSONS: JOINT HEARINGS BEFORE THE SUBCOMM. ON THE HANDICAPPED OF THE S. COMM. ON LABOR AND HUMAN RESOURCES AND THE SUBCOMM. ON LABOR, HEALTH AND HUMAN SERVS., EDUC. AND RELATED AGENCIES OF THE COMM. ON APPROPRIATIONS, 99th Cong., 1st Sess. (1985) (Hr’g No. 99-50, pt. II). Courts have recognized that P&A access is fundamental, and P&A agencies have almost universally prevailed in litigation based on access.7
7 See, e.g., Disability Law Ctr. of Alaska, Inc. v. Anchorage Sch. Dist., 581 24


Case 2:13-cv-00519-CG-B Document 78 Filed 12/12/14 Page 25 of 33
F.3d 936, 940 (9th Cir. 2009) (FERPA does not bar a P&A from obtaining access to the name and contact information for a parent, guardian, or other legal representative); Ind. Protection & Advocacy Servs. v. Ind. Family & Soc. Servs. Admin., 603 F.3d 365, 380-81 (7th Cir. 2010) (affirming declaratory and injunctive relief for P&A); Conn. Office of Protection & Advocacy for Persons with Disabilities v. Hartford Bd. of Educ., 464 F.3d 229 (2d Cir. 2006) (affirming injunction in favor of state agency under PAMII); Disability Rights Wis., Inc. v. State of Wis. Dep’t of Pub. Instruction, 463 F.3d 719, 725 (7th Cir. 2006) (reversing denial of injunction where P&A sought records from state agency, and providing history of protection and advocacy legislation); Protection & Advocacy for Persons with Disabilities v. Mental Health & Addiction & Advocacy Servs., 448 F.3d 119 (2d Cir. 2006) (affirming injunction in favor of state agency to obtain access to patient records); Mo. Protection & Advocacy Servs. v. Mo. Dep’t of Mental Health, 447 F.3d 1021 (8th Cir. 2006) (affirming injunction requiring access to patient records); Center for Legal Advocacy v. Hammons, 323 F.3d 1262 (10th Cir. 2003) (reversing denial of injunction); Pa. Protection & Advocacy, Inc. v. Houstoun, 228 F.3d 423 (3d Cir. 2000) (affirming injunction requiring access to patient records); Miss. Protection & Advocacy Sys., Inc. v. Cotten, 929 F.2d 1054, 1059 (5th Cir. 1991) (upholding injunction in favor of P&A); Hawaii Disability Rights Ctr. v. Cheung, 513 F. Supp. 2d 1185, 1195 (D. Haw. 2007) (P&A has standing to sue and demand access to records); Ohio Legal Rights Service v. Buckeye Ranch, Inc., 365 F. Supp. 2d 877, 883–84 (S.D. Ohio 2005) (granting injunction under PAMII in favor of P&A against private caregiver); Equip for Equality, Inc. v. Ingalls Memorial Hosp., 292 F. Supp. 2d 1086 (N.D. Ill. 2003) (granting injunction against private caregiver under PAMII Act and state law); Iowa Protection & Advocacy Services, Inc. v. Gerard Treatment Programs, L.L.C., 152 F. Supp. 2d 1150 (N.D. Iowa 2001) (P&A entitled access to the records and patients in a psychiatric medical institution in connection with its investigation of possible abuse or neglect, even where the parents and guardians had indicated that they opposed such access); Wis. Coalition for Advocacy, Inc. v. Czaplewski, 131 F. Supp. 2d 1039, 1047–50 (E.D. Wis. 2001) (ordering both public and private caregivers to provide access to P&A under PAMII); Ariz. Ctr. for Disability Law v. Allen, 197 F.R.D. 689, 693 (D. Ariz. 2000) (P&A entitled to access records to make probable cause determination); Advocacy Ctr. v. Stalder, 128 F. Supp. 2d 358, 361 (M.D. La. 1999) (P&A entitled to access records); Mich. Protection & Advocacy Service, Inc. v. Miller, 849 F. Supp. 1202 (W.D. Mich. 1994) (state violated federal law by limiting P&A access to individuals and records in facilities); Robbins v. Budke, 739 F. Supp. 1479, 1487 (D.N.M. 1990) (“While 24–hour, unlimited access is not necessary to accomplish the purpose of the Act, P&A must be permitted to present regular informal patients’ rights education to all patients at [Las Vegas Medical Center] who are mentally ill
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Because PAMII applies to the SafetyNet facility, SafetyNet must comply with the P&A regulatory scheme. This means ADAP is authorized to monitor both the intensive and moderate programs. Furthermore, ADAP is allowed “reasonable access” to the facility as required by law. The regulations, discussed above, are helpful in outlining what is considered “reasonable.” To clarify, ADAP is entitled access to the residents and facilities at SafetyNet to perform its monitoring and educating functions, despite the lack of a court order, an investigation, or a complaint. DHR and SafetyNet thwarted the purpose of the P&A system by refusing to grant ADAP any access whatsoever to the moderate program. Such inaction clearly violates federal law.
P&A access is broad, but it is not unfettered. P&As must conduct their activities “so as to minimize interference with facility programs, respect residents’ privacy interests, and honor a resident’s request to terminate an interview.” 42 C.F.R. § 51.42(c). “Reasonable access” must also take into account the distinctions between the right of access to facilities versus the right of access to patients, as well as between the right of access for monitoring purposes versus the right of access for educating or advocacy purposes. When a P&A system exercises its monitoring function, reasonable access includes unannounced access. If it is monitoring the program, the P&A system may inspect, view, and photograph those areas to which it has access,
or developmentally disabled.”).
26

Case 2:13-cv-00519-CG-B Document 78 Filed 12/12/14 Page 27 of 33
and photograph patients under strict guidelines. When a P&A system exercises its educating function, reasonable access does not include unannounced access. Giving at least 24-hours notice before accessing facilities and exercising this function is reasonable. DHR complained that an ADAP representative interrupted a classroom session in the intensive program to announce her name and provide materials to the residents. (Doc. 77, pp. 15 – 16). When planning to engage with residents for educating purposes, ADAP should provide notice before entering the classroom and refrain from interrupting.
Finally, this Court ORDERS ADAP and SafetyNet to meet and prepare a protocol with respect to situations in which ADAP requests access but lacks a court order, a complaint, or an investigation. See, e.g., Protection & Advocacy Sys., Inc. v. Freudenthal, 412 F. Supp. 2d 1211, 1212 (D. Wyo. 2006) (submitting “Access Agreement” for court approval). This protocol must be submitted to the Court for approval no later than January 30, 2015. Furthermore, this Court strongly encourages ADAP and DHR to develop a standard protocol that will govern to what extent ADAP will request access to a facility, and to distribute the protocol to facilities ADAP serves within Alabama. In the end, the parties in this case have the same interests in mind—the best interests of the SafetyNet residents—and should work together to serve those common interests.
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Case 2:13-cv-00519-CG-B Document 78 Filed 12/12/14 Page 28 of 33
D. INJUNCTIVE RELIEF A plaintiff seeking a permanent injunction must satisfy a four-factor test before a district court may grant such relief. “A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (citations omitted). In this case, ADAP satisfies each factor. (Doc. 73, pp. 9 – 10). It has suffered an irreparable injury by being denied access to fulfill its statutorily authorized legal duty, monetary damages will not fix the problem, a remedy in equity is warranted, and the public interest is served by a permanent injunction. ADAP is awarded injunctive relief, and SafetyNet must give ADAP access to the moderate program in accordance with this Order.
E. COSTS ADAP and SafetyNet seek from each other an award of attorney’s fees and costs. (Doc. 62, Exh. 1, p. 9; Doc. 71, p. 3; Doc. 73, p. 11; Doc. 75, p. 4). Neither party provides legal authority for awarding fees and costs in this type of dispute. The P&A statutes and regulations are silent on this issue, though the regulations provide that a P&A system receives allotments that may be used to bring lawsuits in their own right to redress incidents of abuse
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or neglect, discrimination, and other violations. 45 C.F.R. § 1386.25. Generally, litigants are expected to bear their own attorney’s fees and costs pursuant to the “American Rule.” Mayer v. Wall St. Equity Grp., Inc., 514 F. App’x 929, 932 (11th Cir. 2013). Because neither party cites an applicable exception to this rule, the Court finds that each party must bear its own costs.
F. INDEMNIFICATION AND CONTRIBUTION SafetyNet is not entitled to indemnification and contribution from DHR as a matter of law.8 SafetyNet seeks indemnification and contribution from DHR because SafetyNet followed DHR’s instructions to deny ADAP access to the moderate program. To support its position, SafetyNet states, “ADAP has not and cannot provide any Alabama precedent or statutory authority that would legally compel SafetyNet to disregard instructions from [DHR], the governmental agency which licenses SafetyNet.” (Doc. 62, Exh. 1, pp. 5, 8). SafetyNet also argues DHR could have revoked SafetyNet’s license or refused to renew their contract should it fail to follow DHR’s directive. (Doc. 62, Exh. 1, p. 7). SafetyNet cites its contract with DHR to support the

8

Eleventh Amendment Immunity is not at issue here. The Supreme

Court “has consistently held that an unconsenting State is immune from

suits brought in federal courts by her own citizens as well as by citizens of

another State.” Edelman v. Jordan, 415 U.S. 651, 662–63 (1974) (internal

citations omitted). If properly raised, the Eleventh Amendment bars actions

in federal court against a state, state agencies, or state officials acting in

their official capacities. Id. at 663. By failing to raise this Eleventh

Amendment issue, DHR waived this non-jurisdictional defense. See Wisc.

Dep’t of Corrections v. Schacht, 524 U.S. 381, 389 (1998).

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Case 2:13-cv-00519-CG-B Document 78 Filed 12/12/14 Page 30 of 33
fact that it agreed “to adhere to DHR policies and requirements, which have been provided to [SafetyNet].” (Doc. 62, Exh. 1, p. 8). Because SafetyNet followed DHR’s instructions, SafetyNet argues equity and fairness favor awarding it indemnification and contribution from DHR.
The Court first notes SafetyNet is required to follow federal law. To argue indemnification is required because ADAP did not provide SafetyNet with any Alabama precedent or statutory authority saying it could ignore DHR’s instructions is erroneous. ADAP wrote to SafetyNet explaining its authority, and provided SafetyNet with citations to federal law supporting its position. ADAP cannot provide SafetyNet with Alabama precedent or statutory authority that contravenes the Supremacy Clause, i.e., telling SafetyNet it must adhere to instructions from a state agency even when those instructions violate federal law, because such precedent does not exist. See Const. Art. VI cl. 2; PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2577 (2011) (explaining when the Supremacy Clause of the U.S. Constitution mandates state law give way to federal statute); Iowa Protection & Advocacy Servs., Inc. v. Rasmussen, 206 F.R.D. 630, 639 (S.D. Iowa 2001) (“In the case of [PAMII], the state law is expressly preempted.”). Though it is unfortunate SafetyNet and DHR failed to understand the federal rules and regulations applicable to this dispute, this lack of understanding does not entitle SafetyNet to indemnification.
Second, nothing in the record supports the notion that DHR
30


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threatened retaliation against SafetyNet should it allow ADAP access to the moderate program. (Doc. 76). SafetyNet merely argues its contract with DHR requires compliance, “and non-compliance could result in [DHR] revoking SafetyNet’s license.” (Doc. 62, Exh. 2, p. 3). Nor does the record show SafetyNet objected to DHR’s instructions, or promptly sought independent legal counsel or mediation to help resolve this dispute. Instead, the record shows that for twelve months ADAP tried to gain access to the moderate program, only to have SafetyNet refuse them. SafetyNet was not without options. Only after a year of being denied access did ADAP file this lawsuit. Additionally, SafetyNet, as a behavioral health care facility, is responsible for understanding and following the federal and state laws that apply to its programs. It cannot use DHR’s flawed guidance as an impenetrable shield for its own violations.
Finally, the contract requires the parties to adhere to DHR policies and requirements. (Doc. 62, Exh. 1, p. 8). But the contract does not authorize the parties to violate federal law. To the contrary, the contract states more than once that SafetyNet must “comply with all federal, state, and local laws.” (Doc. 66, Exh. 16, pp. 6, 9, 11). Moreover, the contract and RFPs refer repeatedly to Alabama’s Medicaid manual and regulations, and Alabama’s Medicaid program must be administered in compliance with federal law.9

9

As the Eleventh Circuit has explained, “Medicaid is a cooperative

venture of the state and federal governments. A state which chooses to

participate in Medicaid submits a state plan for the funding of medical

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Simply put, SafetyNet and DHR cannot contract their way out of compliance with the applicable federal rules, and nothing in the record suggests that they attempted to do so. Instead it appears that DHR and SafetyNet did not understand the P&A broad remedial framework, and this led to violations of federal law. For the foregoing reasons, SafetyNet is not entitled to indemnity and contribution from DHR.
CONCLUSION After careful consideration, the Court finds that there is no genuine dispute as to any material fact and ADAP is entitled to judgment as a matter of law. SafetyNet’s complete refusal to allow ADAP to access its moderate program violates PAMII. ADAP is entitled to reasonable unaccompanied access to both programs at SafetyNet, as well as the patients and programs therein. ADAP’s motion for summary judgment is therefore GRANTED, and SafetyNet’s motion for summary judgment is DENIED. DHR’s motion for summary judgment is DENIED, but SafetyNet is not entitled to indemnification and contribution from DHR. ADAP and SafetyNet are required to meet and to develop a protocol consistent with this order for presentation to the Court no later than January 30, 2015. Declaratory judgment, therefore, is entered against SafetyNet, and SafetyNet is hereby
services for the needy which is approved by the federal government. The federal government then subsidizes a certain portion of the financial obligations which the state has agreed to bear. A state participating in Medicaid must comply with [the applicable federal laws]. Harris v. James, 127 F.3d 993, 996 (11th Cir. 1997) (citations and quotations omitted).
32

Case 2:13-cv-00519-CG-B Document 78 Filed 12/12/14 Page 33 of 33 permanently enjoined from denying ADAP reasonable access to its intensive and moderate programs located at the Minter, Alabama facility. A separate judgment will be entered. This Court retains jurisdiction to enforce the injunction.
DONE and ORDERED this 12th day of December, 2014. /s/ Callie V.S. Granade UNITED STATES DISTRICT JUDGE
33


 
 Case 2:13-cv-00519-CG-B Document 1 Filed 10/25/13 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA, NORTHERN DIVISION

ALABAMA DISABILITIES ADVOCACY PROGRAM, Plaintiff,
v.
SAFETYNET YOUTHCARE, INC. Defendant;-

) CIVIL ACTION NO.:

)

CV:13-519

)

)

)

)

)

")

)

)

)

COMPLAINT FOR INJUNCTivE AND DECLARATIVE RELIEF Preliminary Statement
1. The Alabama Disabilities Advocacy Program ("ADAP") is Alabama's designated, federally funded, program authorized by Congress to protect and advocate for the civil rights of persons with disabilities in Alabama. 2. ADAP seeks injunctive and declaratory relief against SafetyNet YouthCare, Inc., ("Defendant") for failing or refusing to provide ADAP access to monitor all programs of SafetyNet Academy, including its "Moderate Program," as authorized by law. SafetyNet Academy is operated by Defendant and is a child care facility licensed by the Alabama Department of Human Resources ("DHR"). ADAP files suit and seeks relief as described after making repeated efforts and failing to resolve this matter with Defendant in an agreed fashion.

1

Case 2:13-cv-00519-CG-B Document 1 Filed 10/25/13 Page 2 of 12

3. ADAP brings this action against SafetyNet Youth Care, Inc., pursuant to the Protection and Advocacy for Individuals with Mental illness Act of 1986 ("PAIMI Act"), 42 U.S.C. §§ 10801 et seq., and its implementing regulations, 42 C.F.R. §§ 51.1. et seq.; the Developmental Disabilities Assistance and Bill of Rights Act of 2000 ("PADD Act"), 42 U.S.C. §§ 15041 et seq., and its implementing regulations, 45 C.F.R. §§ 1386.19 et seq.; -the Protection-and-Advocacy-of Individual Rights-Program of 1993-(PAIR Act");-29 u~s.c~- ---­ §§ 794e, et seq., and its implementing regulations, 34 C.F.R. § 381.1 et seq.

4.

ADAP seeks preliminary and permanent injunctions preventing Defendant and its

agents from denying ADAP full, complete, and timely access to monitor all portions of its

facilities accessible to and used by individuals with disabilities, as authorized by the PAlMI

Act, PADD Act and PAIR Act.

PARTIES

5. ADAP is Alabama's designated federally funded program authorized by Congress to protect and advocate for the civil rights of persons with disabilities in Alabama. ADAP spends significant time and resources monitoring conditions and activities at licensed facilities like SafetyNet Academy, and advocating for the rights of children and youth with disabilities who reside in those facilities. ADAP files this complaint to address Defendant's failure to allow ADAP to monitor Defendant's facilities as authorized by law. 6. SafetyNet Academy is licensed by DHR, pursuant to Ala. Code§ 38-7-1, et seq. (1975), as a child care institution for males 10-18 years old. Defendant is registered with the Alabama

2

Case 2:13-cv-00519-CG-B Document 1 Filed 10/25/13 Page 3 of 12
I
Secretary of State as a domestic non-profit corporation formed on November 12, 2002 and its registered office for service is located at 80 Mel Bailey Drive, Minter, Alabama, located in Dallas County, Alabama. Defendant's website indicates its corporate offices are located in
2
Minter, Alabama. According to its filings with the Alabama Secretary of State, SafetyNet Academy is a "facility for troubled and needy boys and adolescents."3
7. Jurisdiction is proper in this court pursuant to 28 U.S.C. § 1331 as to the federal statutory claims.
VENUE 8. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b). Defendant resides and is registered to conduct business in Dallas County, Alabama.
STATEMENT OF FACTS ADAP's Access Authority and SafetyNet's Status as a "Facility"
9. In 1975, the PADD Act established the Protection and Advocacy ("P&A") System to monitor and investigate incidents of abuse and neglect and to pursue legal, administrative, and other appropriate remedies to safeguard the rights of individuals with developmental disabilities. Congress extended the protection and advocacy mandate to cover
1 Alabama Secretary of State, Government Records, http://arc-sos.state.al.us/cgi/corpname.mbr/input (Enter under Entity Name: SafetyNet YouthCare, Inc.) (last visited October 3, 2013). 2 SafetyNet Behavioral Healthcare, http:/safetynetbhc.com/locations.html (last visited October 3, 2013) "SafetyNet Academy in Minter, Alabama houses our corporate office and a moderate and intensive program for males. SafetyNet Academy can house 40 intensive students and 20 moderate students." 3 Alabama Secretary of State, Government Records, http://arc-sos.state.al.us/cgi/corpname.mbr/input (Enter under Entity Name: SafetyNet YouthCare, Inc.) (last visited October 3, 20 13)
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Case 2:13-cv-00519-CG-B Document 1 Filed 10/25/13 Page 4 of 12
individuals with mental illness with the enactment of the PAIMI Act in 1986. The scope of the P&A system was further expanded in 1993 when the PAIR Act was enacted. 10. To receive federal funding under the PAlMI, PADD and PAIR Acts, states must have in effect a P&A system. ADAP is designated as Alabama's P&A system. 11. Under the PAlMI Act, "any public or private residential setting that provides overnight - - ----- ----- c-are-accompanied--by-treatment services'_!_is-a-facilit-y-which a-P&A is-authorized to access and----monitor:
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. § 51.2 (emphasis added). 12. Under the PADD Act, facilities include "any setting that provides care, treatment, services and habilitation... Facilities include, but are not limited to the following: Community living arrangements... , day programs, juvenile detention centers, hospitals, nursing homes, homeless shelters, jails and prisons." 45 C.F.R. § 1386.19 (emphasis added). 13. Under the PAlMI Act, "care" and "treatment" are defined as services:
... provided to prevent, identify, reduce or stabilize mental illness or emotional impairment such as mental health screening, evaluation, counseling, biomedical, behavioral and psychotherapies, supportive or other adjunctive therapies, medication supervision, special education and rehabilitation, even if only "as needed" or under a contractual agreement. 42 C.F.R. § 51.2.
14. The PAlMI and PADD Acts provide ADAP reasonable unaccompanied access to all residents of a facility at reasonable times to provide P&A service and contact information, rights information, monitor compliance with respect to the rights and safety of service recipients, and to view and photograph all areas of the facility that are used by
4

Case 2:13-cv-00519-CG-B Document 1 Filed 10/25/13 Page 5 of 12
residents or are accessible to residents. 42 U.S.C. §10805(3); 42 C.F.R. § 51.42(c); 42 U.S.C. §15043(H); 45 C.F.R. §1386.22(g). 15. The PAlMI and PADD Acts provide ADAP unaccompanied access to residents of facilities, including the opportunity to meet and communicate privately with such individuals regularly, both formally and informally, by telephone, mail and in person. 42 C.F.R. § 51.42(d); . 45-C.ER~ §-1386-:22(h}. --- 16. ADAP has authority to interact regularly with those individuals who are current or potential recipients of protection and advocacy services. ADAP may use any appropriate techniques and pursue administrative, legal or other appropriate remedies to protect and advocate on behalf of, e.g., individuals with mental illness, to address abuse, neglect or other violations ofrights. 42 C.F.R. § 51.31(a)(d).4 17. The access provisions of the PAIMI, PADD, and PAIR statutes are interrelated and it is clear that Congress intended that they be applied in a consistent manner. The PAIR Act expressly incorporates by reference the authority regarding access to facilities and records as well as the other general authorities granted to P&As set forth in the PADD Act. See 29 U.S.C. § 794e (f). Moreover, the preamble to the PAlMI Act regulations states that it is the goal of the U.S. Department of Health and Human Services "to ensure that all facets of the P&A system administered by the Department [i.e., the PAlMI and PADD Acts] are subject to the same requirements." 62 Fed. Reg. 53549 (Oct. 15, 1997). 18. The PAlMI Act's implementing regulations state that a P&A entity such as ADAP has authority to access all residents of a facility where those with mental illness and emotional
4 ADAP also possesses the authority to investigate allegations of abuse/neglect. See 42 U.S.C. §15043(2)(B); 42 U.S.C. § 10805(l)(A). However, this Complaint addresses only enforcement of ADAP's authority to "monitor," not to "investigate."
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Case 2:13-cv-00519-CG-B Document 1 Filed 10/25/13 Page 6 of 12
disorders reside "despite the existence of any State or local laws or regulations which restrict informal access to minors and adults with legal guardians or conservators." 42 C.F.R. § 51.42(e). 19. SafetyNet Academy, including its Moderate Program, is a residential setting that provides overnight care accompanied by treatment services. SafetyNet Academy - - ---- constitutes a --~--facility~'-under both-the P-AlMI and PAUD Acts-and-their implementing-regulations. 42 U.S.C. §10802(3);42 C.F.R. § 51.2.2; 42 C.F.R. § 1386.19; 42 U.S.C. § 15043(a)(2)(H). 20. SafetyNet Academy is licensed to provide services to youth with emotional and behavioral disabilities in two programs at its Minter Campus: the Moderate Program and the Intensive Program. The Intensive Program is commonly known as a "psychiatric residential treatment facility for youth under the age of 21" ("PRTF"). Youths in either program may be diagnosed with such emotional and behavioral disabilities as Attention Deficit Hyperactivity Disorder, Depressive Disorder, Generalized Anxiety Disorder, Conduct Disorder, Bipolar
s
Disorders or Obsessive Compulsive traits.
ADAP's Requests for Access and Defendant's Denials of Those Requests 21. On numerous occasions in the past year ADAP communicated with SafetyNet Youth Care Inc.'s Chief Executive Officer, Mr. Lyn Wheatley, and Corporate Clincial Director, Ms. Sheila Hatfield, to describe ADAP's authority to monitor and to seek to gain access to all parts of the SafetyNet Academy facility that provide care and treatment of any persons with disabilities, regardless of what particular SafetyNet program may serve those persons.
5 SafetyNet Behavioral Health Services, http://safetynetbhc.com/intensive-treatment-programs.html; http://safetynetbhc.com/moderate-treatment-program.html (Last Visited October 3, 2013)
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Case 2:13-cv-00519-CG-B Document 1 Filed 10/25/13 Page 7 of 12
22. ADAP's efforts to monitor and gain access to all parts of the SafetyNet Academy facility that provide care and treatment of any persons with disabilities, including its Moderate Program, have been denied. 23. In an October 2, 2012, letter to Mr. Wheatley and Ms. Hatfield, ADAP provided citations to its federal statutory authority to conduct monitoring activities in all parts of - --- facilities providing care -and -treatment-of any individuals with disabiliti~s (Ex. l). +hat n~quest --- - - - to monitor was denied. 24. On January 14, 2013, ADAP wrote to SafetyNet Academy Clincial Director, Ms. Valerie Schroeder, notifying her of ADAP's intent to conduct a monitoring visit to SafetyNet Academy in Minter, Alabama, on January 22,2013, and informing her of ADAP' authority to monitor and gain access to SafetyNet's facilities. ADAP's January 14, 2013, letter explained in language similar to ADAP's October 2, 2012, correspondence ADAP's federal statutory authority to conduct monitoring activities, unaccompanied, in all parts of facilities like SafetyNet that provide care and treatment of any individuals with disabilities (Ex. 2). 25. On January 22, 2013, ADAP Senior Case Advocate Christy Johnson arrived at SafetyNet Acaemy and was told by Ms. Valerie Schroeder that she could meet with six boys who were outside playing Frisbee. After meeting with the residents playing Frisbee, Ms. Johnson asked Ms. Schroeder to allow her to meet with the residents assigned to the SafetyNet Moderate Program. Ms. Schroeder denied Ms. Johnson access to Defendant's Moderate program stating she was instructed not to allow ADAP to meet with the boys in the Moderate Program. Ms. Schroeder Ms. Schroeder stated ADAP was not allowed access to talk with Moderate Program residents because they do not receive psychiatric services. Ms. Johnson explained to Ms. Schroeder that the Protection and Advocacy Statutes allow ADAP broad access and allow ADAP to determine if a child meets the criteria to receive
7

Case 2:13-cv-00519-CG-B Document 1 Filed 10/25/13 Page 8 of 12
P&A services; therefore, a facility like SafetyNet must allow P&A access to all residents. Ms. Schroeder stated she read and understood ADAP's letter prior to the January 22, 2013, visit, but she did not have authority to make decisions regarding ADAP's access. Ms. Schroeder referred Ms. Johnson to the DHR legal division to address ADAP's access to SafetyNet. Ms. Schroeder again denied Ms. Johnson access to Defendant's Moderate Program. - ------ 26o- -Gn-.January-23, -201-3, AE>AP-wrote-Mr. Wheatley requesting-an-opportunity to discuss- - - - ADAP's access authority to monitor so that future visits would occur without complication. (Ex. 3) 27. On April 29, 2013, ADAP wrote Ms. Schroeder to inform her of ADAP's intent to monitor Defendant's facility on Wednesday, May 1, 2013. (Ex.4) 28. On May 1, 2013, Ms. Johnson arrived at Defendant's facility and informed Ms. Hatfield she would like to meet with all SafetyNet Academy residents during her monitoring visit that day. Ms. Hatfield stated she was instructed to deny ADAP access to Moderate Program residents. On May 1, 2013, ADAP was again denied access to SafetyNet's Moderate Program. 29. On October 7, 2013, ADAP wrote SafetyNet Chief Executive Officer, Lyn Wheatley, stating that despite ADAP's numerous efforts to resolve its access to Defendant's Moderate Program over the past year, the Defendant continued to deny ADAP its right to monitor Defendant's facility. ADAP informed Mr. Wheatley it sought to resolve Defendant's failure to provide access within 14 days so as to avoid litigation. (Ex. 5) 30. On October 10,2013, DHR wrote ADAP claiming ADAP has no legal basis to monitor Defendant's Moderate Program because: "Moderate facilities are not Intensive treatment programs and are not considered part of the Psychiatric Services for Individuals under the Age
8

Case 2:13-cv-00519-CG-B Document 1 Filed 10/25/13 Page 9 of 12
of21 ('Psych 21 ')."(Ex. 6) 31. On October 15, 2013, ADAP corresponded with Defendant's counsel to explain ADAP's authority under the PADD and PAlMI statutes, and their implementing regulations, to monitor facilities like Defendant's that provide care and treatment for individuals with disabilities. (Ex. 7)
32. On October 17,2013, ADAP arranged to meet with counsel for Defendant and DHR at Defendant's facility on Monday October 21, 2013, to address ADAP's access authority and to seek to be granted access to monitor Defendant's Moderate Program by 5:00PM on October 21, 2013. (Ex. 8) 33 On October 21,2013, ADAP met as arranged with counsel for Defendant and DHR, and with Defendant's Executive Director and Clinical Coordinator. ADAP explained again its authority to monitor Defendant's Moderate Program. ADAP again requested access to monitor Defendant's Moderate Program by 5:00PM on that date. Defendant, through its counsel and on the advice ofDHR counsel, again denied ADAP access to monitor Defendant's Moderate Program. 34. Defendant has repeatedly refused to provide ADAP with access to all parts of Defendant's facility that provide care and treatment of any individuals with disabilities in violation of federal law. 35. Despite ADAP's repeated attempts to resolve the dispute described herein, Defendant has refused to allow ADAP to have access to Defendant's facilities in violation of the federal statutes and regulations cited herein.
CAUSES OF ACTION
36. The actions of the Defendant, its agents, and employees, violate and continue to violate
9

Case 2:13-cv-00519-CG-B Document 1 Filed 10/25/13 Page 10 of 12
the ADAP's rights to exercise full, reasonable, and unaccompanied access to all residents of Defendant's facility at reasonable times to provide P&A service and contact information, rights information, monitor compliance with respect to the rights and safety of service recipients, and to view and photograph all areas of the facility which are used by residents or are accessible to residents in violation ofthe PAlMI, PADD, and PAIR Acts and their implementing regulations. 42 C.P.R.§ 51.42; 42 C.P.R.§ 1386.22; 34 C.P.R.§§ 381.1 et
Injunctive Relief 37. ADAP does not have an adequate remedy at law to redress Defendant's failure to provide ADAP with access to Defendant's facility in violation ofthe PAlMI, PADD, and PAIR Acts and their implementing regulations. 42 C.P.R.§§ 51.42; 42 C.P.R.§§ 1386.22; 34 C.P.R.§§ 381.1 et seq. 38. ADAP will be irreparably harmed if the Defendant is permitted to continue denying ADAP with access to all residents of Defendant's facility and to portions of Defendant's facility that are used and accessed by residents of Defendant's facility. Defendant's past and continuing refusal to allow access causes irreparable harm to ADAP by preventing it from carrying out its statutory mandate to monitor facilities like the Defendant's for compliance with respect to the rights and safety of residents and to provide residents with information and training about how residents may obtain ADAP's services.
39. The Defendant will not be harmed by the issuance of the requested injunctive and declaratory relief because the Defendant is required by law to grant ADAP access to monitor all areas of its facilities accessible to individuals for whom it provides treatment. 40. Granting ADAP access to all residents of Defendant's facility and to all parts of
10

Case 2:13-cv-00519-CG-B Document 1 Filed 10/25/13 Page 11 of 12
Defendant's facility where ADAP may lawfully gain access is in the public interest. ADAP must have full and unaccompanied access to residents of Defendant's facilities and to all areas that are used by residents and are accessible to residents so ADAP may fulfill its Congressional mandate to protect and advocate for the civil rights of persons, including children and youth, with disabilities. There is no lawful basis for -D~f~ndant'-s-refusal--to deny-ADAP-with-access-to-the residents-of-any program,-ineluding the Moderate Program, at Defendant's facility.
Declaratory Judgment 41. An actual controversy exists between ADAP and the Defendant regarding ADAP's authority to gain access to Defendant's Moderate Program located at Defendant's facility known as the SafetyNet Academy in Minter, Alabama. The controversy described is within the jurisdiction of this Court, and ADAP seeks a declaration of its right to gain access to Defendant's facilities, including Defendant's Moderate Program, pursuant to the relevant federal statutes and regulations identified in this Complaint.
PRAYER FOR BELIEF WHEREFORE, the Plaintiff prays that this Court will grant the following relief:
(A) Declare that ADAP shall have reasonable access under ADAP's federal access authority to all parts of Defendant's facility known as the SafetyNet Academy, including but not limited to the Moderate Program, which are used by and accessible to residents of Defendant's facility.
11

Case 2:13-cv-00519-CG-B Document 1 Filed 10/25/13 Page 12 of 12
(B) Declare that ADAP shall have reasonable access under ADAP's federal access authority to residents of Defendant's facility known as the SafetyNet Academy, including but not limited to the Moderate Program.
(C) Declare that Defendant's denial of access by ADAP to Defendant's facilities, including but not limited to the SafetyNet Academy Moderate Program, and to residents of-I)efendant-'s-facilities, is unlawful;---- - -- --~~ --- - - - - - - - -
(D) Issue a preliminary injunction enjoining the Defendant from further denying ADAP access to Defendant's facilities, including but not limited to the SafetyNet Academy Moderate Program, and to residents of Defendant's facilities including, but not limited to, the Moderate Program at SafetyNet Academy.
(E) After a trial on the merits, issue a permanent injunction enjoining the Defendant from further denying ADAP access to Defendant's facilities, including but not limited to, the SafetyNet Academy Moderate Program, and to residents of Defendant's facilities including, but not limited to, the Moderate Program at SafetyNet Academy.
(F) Award Plaintiff its costs and reasonable attorney fees; and (G) Grant Plaintiff such other relief as the Court deems necessary and just.
Respectfully Submitted, Is/ David Slawkowski David J. Slawkowski, ASB-0810D57S Email: dslawkowski@adap.ua.edu Alabama Disabilities Advocacy Program Box 870395 Tuscaloosa, AL 35487 Telephone: (205) 348-4928 Facsimile: (205) 348-3909
ATTORNEY FOR PLAINTIFF 12

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 1 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 1 of 34
EXHIBIT 1 CV-13-519

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 2 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 2 of 34

ALA llAMA DISM)O\ 1Hl 8
[!]
~~
AOVO(.A<:.Y PROC".RA,M

October 2, 2012
Mr. Lyn Wheatley Ms. Sheila Hatfield Safety Net Academy 80 Mel Bailey Drive Minter, AL 36761

Pro tection & Advocacy fm Persons with Developmental
Disabilities

RE: Alabama Disabilities Advocacy Program (ADAP) Access Authority to Monitor and Investigate
Dear Mr. Wheatley and Ms. Hatfield;

Protection & Advocacy for Individuals with Mentallllne~s
Protection & Advocacy of Individual Rights

During the last few years, ADAP has worked closely with the Alabama Department of Human Resources and the Alabama Medicaid Agency to fulfill the mandate of the Children's Health Act of 2000 to
investigate serious occurrences occurring in psychiatric residential

Protection & Advocacy for treatment facilities for youth under the age of 21 (PRTFs).

Assistive T(~chnolo!i)l

Protection & Advocacy for Individuals with
Traumatic Brain Injury

This mandate builds off of ADAP's primary mission as part of our nation's protection and advocacy (P&A) system to protect the safety and rights of persons with disabilities. Given that it has been a while since our active engagement with PRTFs ramped up in earnest, we

Protection & Advocacy for believe it might be helpful to reacquaint PRTF staff- and introduce Beneficiaries of Social Security new staff- to ADAP's federally-mandated monitoring and investigatory

Protection & Advocacy for role as the state's P&A agency.

Voting Accessibility
ADAP has served as Alabama's P&A agency since the system's creation

THE UNIVERSITY Of
ALABAMA

through Congress' enactment of the Developmental Disabilities Assistance and Bill of Rights Act of 1975, 42 U.S.C. § 6041 et ~- (DD Act) and its subsequent expansion under both the Protection and Advocacy for Individuals with Mental Illness Act of 1986, 42 U.S.C.

FOUNDED 1831 10801 et seq. (PAlMI Act), and the Protection and Advocacy for Individual Rights (PAIR) Program, Rehabilitation Act of 1973, 29 U.S.C.

794e.

500 Martha Parham West Box 870395
Tuscaloosa, Alabama 35487-039S (205)348-4928
(800)826-[675
FAX (20.5)348-3909
aclap@adap.ua.cdu
www.ADAP.net

Shocked by the inhumane conditions found at many of the nation's hospitals, training schools and institutions for persons with mental retardation, Congress enacted the DD Act in 1975 to protect the human and civil rights of this vulnerable population. Reauthorized in 2000, the DD Act mandates that each state establish a protection and advocacy system authorized to:

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 3 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 3 of 34
2
(i) pursue legal, administrative, and other appropriate remedies or approaches to ensure the protection of, and advocacy for, the rights of (individuals with developmental disabilities) ... and
(ii) provide information on and referral to programs and services addressing the needs of individuals with developmental disabilities;
(B) have the authority to 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. § 15043 (2000)
In 1986, the PAlMI Act was passed after congressional hearings and investigations substantiated numerous reports of abuse and neglect in state psychiatric facilities across the country. The PAlMI Act provides parallel protections for individuals with mental illness using the same mechanisms as the DD Act.
Under the Rehabilitation Act's PAIR program, P&As are authorized to use the same mechanisms as provided under the DD Act to serve persons with disabilities who are not eligible under either the DD Act or PAlMI Act. 29 U.S.C. § 794e.
Congress has continued to expand the mission of the P&A system beyond these three programs. Now, through a total of eight federally funded programs, P&As address a broad range of legal rights on behalf of persons with disabilities, whether those persons live in institutions or in community settings, including special education, employment preparation, healthcare access, architectural and programming accessibility, and voting.
Despite its expanded mission, the P&A system remains committed to ensuring the safety and well-being of persons with disabilities who live in institutional settings. In part, P&As carry out this work by conducting on~site facility monitoring and investigations, empowered by federal law providing the P&As with broad access rights to facilities and to their residents and staff members.
ADAP's monitoring work brings it to a variety of facilities that provide persons with disabilities services, support, care or treatment. These settings include, but are not limited to, public or private residential settings like residential and day schools, day treatment programs, 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.
The goals of ADAP's facility monitoring are :
• To provide information on programs addressing the needs of individuals with disabilities to facility residents,

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 4 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 4 of 34
3
• To provide information about individual rights and ADAP's advocacy services to facility residents, and
• To monitor compliance regarding the rights and safety of residents.
As found in the DO Act, PAlMI Act and Rehabilitation Act of 1973, and interpreted through case law over the last thirty years, the P&A access authority for monitoring and investigation can be summarized.as follows:_
• Persons with disabilities may not be aware of their state's P&A or be able to contact the P&A on their own. To ensure that persons with disabilities have access to the agency's protection and advocacy services, federal law provides P&As with the right to unaccompanied access to all residents of a facility at reasonable times (including, at a minimum, normal working hours and visiting hours) to provide information, training and referrals to facility residents.
• P&As have broad authority to conduct-- without probable cause to suspect abuse or neglect or other justification-- on-site monitoring of health and safety conditions in both institutional and community settings.
• Access to facility residents and staff to discuss issues relating to rights protections and treatment may not be restricted in most circumstances, and notice to a facility is generally not required prior to meeting with residents or staff.
• P&A staff have a right to have unaccompanied access to residents, which includes the opportunity to meet and communicate privately with them, both formally and informally, by telephone, mail and in person. The right of informal access applies to all residents of a facility, including those who may eventually be found not to meet the P&A eligibility criteria. The P&A is the final arbiter of what individuals served by a facility are, or are not, P&A clients and a facility may not require, as a condition of granting access to records or facilities, that the P&A make a definitive showing that particular individuals have a disability.
• Permission of a parent or guardian of a resident is not necessary for P&A staff to meet informally with any resident. However, the P&A staff must honor a resident's request to terminate an interview. A request to terminate an interview should not mean, however, that the P&A never again approaches the individual. Most advocates have worked with clients who will not talk with them one day, but welcome a respectful approach on the next.
• The P&A is allowed reasonable, unaccompanied access to facilities and community settings to investigate potential abuse or neglect. This access includes the right to

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 5 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 5 of 34
4
speak with any service recipient or staff member who may have knowledge of the incident being investigated.
• The P&A has the right to access the records of individuals, including investigation reports of other agencies, with consent of the individual or his guardian. Even without such consent, under certain circumstances, the P&A has a right to such records if it has probable cause to believe that an abuse or neglect incident has occurred or it has received a complaint. The P&A is the final arbiter regarding the cir.cumstances_tbat_amolJnUo pr.obable__cause._Qn_e_cir_cumstam:e_that_w_o_ul_d_allo_w. ...___ _ _ _ _ __ P&A to access records without consent involves individuals who do not have a legal guardian, conservator or other legal representative, or when the individual's guardian is the State or one of its political subdivisions.
• Records must be provided to the P&A within three days of a written request in most cases. However, in the case of an investigation of a death or suspicion of an immediate threat to health or safety, records must be provided within 24 hours. Under the DD Act (and the PAIR Program), access to records under these circumstances is mandated without the consent of any third party {e.g., a guardian). Under the PAlMI Act, access must be afforded without such consent in the case of a death investigation; in the case where there is an immediate threat to health or safety and the individual has a guardian, access shall be provided over the guardian's objection (so long as his or her consent was sought).
• The P&A is required to protect the confidentiality of records provided to it to the same extent required by the facility/provider.
I hope this brief summary of ADAP's access authority has been helpful. If you have any questions, please do not hesitate to contact our office.
With very best regards,
Nancy Anderson Attorney

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 6 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 6 of 34
EXHIBIT 2 CV-13-519

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 7 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 7 of 34

January 14, 2013

Ms. Valerie Schroeder Academy Clinical Director SafetvN~t Academy 80 Mel Bailey Drive Mfnter, Alabama 86761

Protection Persons with

D &:Ad~ vocac= y for

RE~ Alabama Disabilities Advocacy Program (ADAP) Access Authority to

Monitor arid Investigate

•

-

P.rotectlon &:.Amocacyfor Dear Ms. Schroeder: IndMduals with Mental IDness During the last few years, AQAP has worked closely with the Alabama
Protection &:Advocacy of Department of Human Resources and the Alabama Medicaid Agency Individual Rights to fulfill the mandate to the Children's Health Act of 2000 to
Protection It Advocacy for lnvestlpte serious occurrences occurring In psychiatric residential Asslstlve Technology treatment facilities for youth under the age of 21 (PRTFs).

Protection &Advocacy for Individuals·wlth

This mandate builds off of ADAP's primary mission as part of oul"

Traumatic Brain IDjury nation's protection and advocacy (P&A) system to protect the safety

and rights of persons with disabilities. We believe It might be helpful

Protection &:.Advocacy for
Beneficiaries of Social Secmfty

to reacquaint PRTF staff - and Introduce new staff - to ADAP's federally-mandated monitoring and Investigatory role as the state's

Protection &:Advocacy for P&Aagency. Votbls.AooesslbBity

ADAP has served as Alabama's P&A agency since the system's cre;nlon

through Congress' enactment of the Developmental Disabilities
THE UNIVERSITY O"F Assistance and Bill of Rights Act of 1975, 42 u.s.c. § 6041 ,at • · (DD
AlABAMA Act) and Its subsequent expansion under both the Protection and Advocacy for lndMduals with Mental Illness Act of 1986, 42 U.S.C.
FOUNDED 183 I 10801 .!! z . (PAlMI Act), and the Protection and Advocacy for

Individual Rights (PAIR) Program, Rehabilitation Act of 1973, 29 U.S.C.

794e.
500 Martha Parham West

Box870895 'IUecaloosa, Alabama 85487-

Shocked by the Inhumane conditions found at many of the nation's

0895 hospitals, training schools and Institutions for persons with mental

(205)848-4928 retardation, Congress enacted the DO Act In 1975 to protect the

(800)826-1675 FAX (aog)g48-3909

hum;;~n and civil rights of this vulnerable population. Reauthorized In

adap@adap.u.a.edu 2000, the DD Act mandates that each state establish a protection and

www.ADAP.11.et advocacy system authorized ~o:

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 8 of 34
Case 2:13:.cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 8 of 34

2
(I) pursue legal, administrative, and other appropriate remedies or approaches to ensure the protection of, and advocacy for, the rights of {Individuals with developmental disabilities) ... and {II) provide Information on and referral to programs and services addressing the needs of Individuals with developmental disabilities; (B) have the authority to Investigate Incidents of abuse and neslect of Individuals with developmental disabilities If the Incidents are reported to the system or ifthere .Is pr()bable ~-.tse to b~lleve that the incidents occurred;
42 u.s.c. § 15043 (2000)

sIanucrb1oss9ts8a6nth,tieathtecedouPnnAutlrMmy.IerATocuhteswPraeAsplMopraItssAscoetdf paarbofutvesidreecsaonnpdgarrneasellsesilloenpcartol ItnheecsatitoralnftlegsspfosaryncdInhdiIanivtvriiedcsutfaiaglscaitlwiitoieinthss mental Illness using the same mechanisms as the DD Act.

Under the Rehabilitation mechanisms as provided

Atrs under

PAIR program, the DO Act to

P&As serve

are authorized to use the same persons with disabilities who are

not eligible under. either the DD Act or PAlMI Act. 29 U.S.C. § 794e.

ICrpnarosnontggisteruraetomsiofssnle.hsgaNaoslorcrwIoing,nhctthtiosnrmouoeumndgubhtneoaihteytaoxlsfpteaoatlntfiondpgeftesrhs,iegoIhnnmstciflswuesddiitoiehnnrgadollsllsyfpatehfbucelnilaltdPlleee&sddA,upwscryhaostestioertahnmme, rebstem,hyPopo&slnoeAdyspmteahedresndsortenepsstrhseUrpaevaeebrIranotaiodn,
healthcare access, archrtectural and programming accessibility, and voting.

ofwDeueedtslel-tprhbaitieesl ilnawItgswooerpkxfrppboaeyvnricsddooiennndgsdmtuwhcieisttishnPiogd&nioAs,nast-hbwseiiltiitetPhie&fsabAcrwoislahiytdoystlaemivcmoecenrIsenitsmoIrnraiigsninhtgisttsuactntiooodmnfIaanmcvl Uisettelsetittedtigisnatgaotsinoe.dnnIstsno,upetrhimanergpti,rotPhwre&eesAsriesdadefcenabttyrsyryand and staff members.

aAspdenreDirdvtAveaipPcntese'tsisyorm,censhsoufiaiandptceirptiiocnloitrtrihiIetan,oslscs,sapwheritoteoatmirnloskger,bsltnerruesllniksrassetssimnhrIegeetsltnhtioedotr.emasne,Tvsthaiaa~enrlsidbeaeotjnaysadielrosddtftalafananynscddssilcpicithniraeiocsrsoleoultnsdhh,seoa,d,mtianbpyecurstlotur,evadciraoidentmegmnmpaoeeltnulrlgstnimoepitnnyriotseehgrwdoaraulittmoashir,snedp,gaiugs,sbajeuanlbisvceielwirotnaieerillslel as special mental health or forensic units.

The goals of ADAP's facility monitoring are:
• To provide Information on prosrams addressing the needs of Individuals with disabilities to facility residents,

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 9 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 9 of 34
3

• To provide Information about Individual rights and ADAP's advocacy services to facility residents, and

• To monitor compliance reprdlns the rights and Si.'fety of residents.

As found In the DD Act, PAlMI Act and Rehabilitation Act of 1973, and Interpreted through

---casa-laW-ovet-the-last-thlrty-yaars,-th&-P--&A-atce55-authorlty-for--monltorlng-and~lnvestlgatlo~a .__ _ __ __ _

be summarized as follows:

.

.

• Persons with disabilities may not be aware of their stat~s P&A or be able to c:onMct

the P&A on their own. To ensure that persons with disabilities have access to the

agency's protection and advocacy services, federal law provides P&As with the rlsht

to unaccompanied access to all residents of afacility at reasonable times (including,

at a minimum, normal working hours and visiting hours) to provide Information, .

training and referrals to facility residents.

• P&As have broad authority to conduct- without probable cause to suspect abuse or neglect or other justification -on-site monltorlns of health and safety conditions In both Institutional and community settlnp.

• Access to facility residents and staffto discuss Issues relating to rights protections and treatment may not be restricted In most circumstances, and notice to a facility Is generally not required prior to meetlOJ with residents or staff.

• P&A staff have a rlght to have unaccompanied access to residents, which Includes the opportunity to meet and communicate privately with them~ both formally and
Informally~ by telephone, mall and In person. The rtght of Informal access applies to all residents of afacility, Including those who may eventually be found not to meet
the P&A ellslblllty c:rlterla. The P&A Is the final arbiter of what Individuals served by a facility are, or are not, PI&A clients and afadllty may not require, as a condition of granting access to records or facilities, that the P&A make a definitive showingthat
particular Individuals have a disability.

• Permission of a parent or suardlan of a resident Is not necessary for P&A staff to meet Informally with anv resident. However, the P&A staff must honor a resldenrs request to terminate an Interview. A request to terminate an Interview should not
mean, however, that the P&A never again approaches the Individual. Most advocates have worked with clients who will not talk with them one day, but welcome a
respectful approach on the next.

• The P&A Is allowed reasonable, unaccompanied access to facilities and community
settings to lnvestlsate potential abuse or neglec.t. This access !~eludes the rtsht to

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 10 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 10 of 34
4
speak with any service recipient or staff member who may have knowledge of the incident being Investigated.
• The P&A has the right to access the records of Individuals, Including Investigation
reports of other agencies, with consent of the Individual or his guardian. Even
without such consent, under certain circumstances, the P&A has a right to such records If It has probable cause to believe that an abuse or neglect Incident has
_____ .. o.ccurred or It has recehled a c;gmplalnt.•. The P&A Is the flnal arbiter regarding the
circumstances that amount to probable cause. One circumstance that would allow a
P&A to access records without consent Involves Individuals who d.o not have a legal guardian, conservator or other legal representative, or.when the Individual's guardii;in Is the State or one of Its political subdivisions.
• Records must be provided to the P&A within three days of a written request In most cases. However, In the case of an Investigation of a death or suspicion of an Immediate threat to health or safety, records must be provided within 24 hours. Under the DD Act (and the PAIR Program), access to records under these circumstances is mandated without the consent of any third party (e.g., a guardian). Under the PAlMI Act, access must be afforded without such consent in the case of a death Investigation; In the case where there is an Immediate threat to health or safety and the individual has a guardian, access shall be provided over the guardian's objection (so long as his or her consent was sought).
• The P&A is required to protect the confidentiality of records provided to It to the same extent required by the facility/provider.
I hope this brief summary of ADAP's access authority has been helpful. I would like to schedule a monitoring visit to the Minter campus Tuesday, January 22. I will contact you by phone to discuss any questions you may have and to schedule atime for this visit.
With Best Regar.ds,
c~~
Senior case Advocate
cc: Lyn Wheatley, CEO Sheila Hatfield, Corporate Clinical Director

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Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 11 of 34
EXHIBIT 3 CV-13-519

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 12 of 34 Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 12 of 34
From: Anderson, Nancy Sent: Wednesday, January 23, 2013 10:30 AM To: 'lyn@safetynetacademy.org'; 'sheilahatfield@safetynetacademy.org'; 'valerie.schroeder@safetynetacademy.org'; 'sheila .hatfield@safetynetacademy.org' Subject: ADAP access denied
Dear Mr. Wheatley, Ms. Hatfield, and Ms. Schroeder,
Please see attached letter (plus two referenced attachments) regarding ADAP's access authority
and the outcome of yesterday's monitoring visit.
Best Regards,
Nancy
Nancy Anderson Attorney Alabama Disabilities Advocacy Program (ADAP) The University of Alabama Box 870395 Tuscaloosa, AL 35487 205/348-6803 (desk) 205/348-4928 (main) 205/310-4784 (mobile) 205/348-3909 (fax)
nanderso@adap.y~.ed_t,~,
Web: www.adap.net Satisfaction Survey: http://www.adap.net/satisfaction.html
This email is Intended only for the person to whom it is addressed. Any review or other use of this information by persons or entities other than the intended recipient or any retransmission without the consent of the sender is prohibited. The views or opinions expressed by the sender of this email are not necessarily those of the Alabama Disabilities Advocacy Program or The University of Alabama.

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 13 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 13 of 34

January 23, 2013

Mr. Lyn Wheatley Executive Director Safety Net Academy 80 Mel Bailey Drive Minter, AL 36761

ADVOC ... C\' PROG<RAM

RE: Denial of Access at Safety Net/Minter

Dear Mr-.Wheatley: --
Protection & Advocacy for

Persons with Developmental ADAP Senior Case Advocate Christy Johnson went to Safety Net/Minter yesterday to Disabilities conduct a monitoring visit and was denied access to speak to all facility residents.

Clinical Director Valerie Schroeder told Ms. Johnson she was allowed to speak to
Protection & Advocacy for Intensive Program residents only and not to Moderate Program residents. Individuals with Mentallllnes~

As Ms. Johnson's main point of contact for this visit was going to be Ms. Schroeder
Protection & Advocacy of and since Ms. Schroeder is relatively new to Safety Net, we provided her on January
Individual Rights 14, 2013 with the same letter we sent to you in October 2012 outlining the scope of

ADAP's access authority to monitor and investigate (see attachments). Among the Protection & Advocacy ft1r key provisions of ADAP's access authority outlined in these letters is a description of
Assistivc Technology ADAP's right to unaccompanied access to ill! residents of a facility. In addition, I

Protection & Advocacy for
Individuals with Traumatic Brain Injury

spoke to Ms. Schroeder last week to confirm Ms. Johnson's visit and to answer any questions she had about ADAP's access authority in relation to the (then) approximately 22 youth on campus.

Protection & Advocacy for Bencficiarics of Social Security
Protection & Advocacy for Voting Accessibility
THE UNIVERSITY OF
ALABAMA

It appears that despite this outreach to you and your staff, there are lingering questions as to the scope of ADAP's access authority. I welcome the opportunity to clarify this matter so Ms. Johnson's subsequent monitoring visits occur without complication. I will contact you next Monday, January 28, to discuss this matter. In the meantime, as required under federal law, when ADAP's access to facilities, programs, residents or records is denied, a provider must promptly provide ADAP with a written statement of the reasons for the denial (see 45 C.F.R. Section 1386.22(i) and 42 C.F.R. Section 51.43). Please send this statement to me at the address below by Friday, January 25.
With very best regards,

FOUNDED 18:11

500 M~rtha Parham West Box 870395
Tuscaloosa, Alabama 35487-039.5 (205)348-4928 (800)826-1675
FAX (205)348-3909
adap@adap.wt.edtt www.ADAP.net

Nancy Anderson Attorney
cc: Valerie Schroeder Sheila Hatfield

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 14 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 14 of 34

October 2, 2012

ADVOCI'\CV PROGRAM

Mr. Lyn Wheatley Ms. Sheila Hatfield Safety Net Academy 80 Mel Bailey Drive Minter, AL 36761

Protection & Advocacy for Persons with Developmental
Disabilities

RE: AlabamaDJs_ab_ilities Adv.Pc._a.c;;yJ>r_ogr_a_rr:L(.8J2AP) Acc.ess. AYLhority_
to Monitor and Investigate
Dear Mr. Wheatley and Ms. Hatfield:

. ··---- __ ____ __

Protection & . Advocacy for Individuals with Mentalllln~ss
Protection & Advocacy of
Individual Ri~hts

During the last few years, ADAP has worked closely with the Alabama Department of Human Resources and the Alabama Medicaid Agency to fulfill the mandate of the Children's Health Act of 2000 to
investigate serious occurrences occurring in psychiatric residential

Protection & Advocacy for treatment facilities for youth under the age of 21 (PRTFs).

Assistivc Technology

Protection & Advocacy for Individuals with
Traumatic Brain Injury

This mandate builds off of ADAP's primary mission as part of our nation' s protection and advocacy (P&A) system to protect the safety and rights of persons with disabilities. Given that it has been a while since our active engagement with PRTFs ramped up in earnest, we

Protection & Advocacy for believe it might be helpful to reacquaint PRTF staff- and introduce Beneficiaries of Social Sccu rity new staff- to ADAP's federally-mandated monitoring and investigatory

Protection & Advocacy for role as the state's P&A agency.

Voting Accessibility
ADAP has served as Alabama's P&A agency since the system's creation

through Congress' enactment of the Developmental Disabilities

THE UNIVERSITY Or Assistance and Bill of Rights Act of 1975, 42 U.S.C. § 6041 et seq. (DD
ALABAMA Act) and its subsequent expansion under both the Protection and Advocacy for Individuals with Mental Illness Act of 1986, 42 U.S.C.

FOUNDED 1831 10801 et ~·(PAlMI Act), and the Protection and Advocacy for Individual Rights (PAIR) Program, Rehabilitation Act of 1973, 29 U.S.C.

794e.

500 Martha Parham West Box 870395
Tuscaloosa, Alabama 3.5487-0395 (20.5)348-4928 (800)826-1675
FAX (205)348-3909
adap@ad ap.ua.l~du
www.ADAP.nct

Shocked by the inhumane conditions found at many of the nation's hospitals, training schools and institutions for persons with mental retardation, Congress enacted the DD Act in 1975 to protect the human and civil rights of this vulnerable population. Reauthorized in 2000, the DD Act mandates that each state establish a protection and advocacy system authorized to:

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 15 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 15 of 34
2
(i} pursue legal, administrative, and other appropriate remedies or approaches to ensure the protection of, and advocacy for, the rights of (individuals with developmental disabilities} ... and
(ii) provide information on and referral to programs and services addressing the needs of individuals with developmental disabilities;
(B) have the authority to 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. § 15043 (2000}
In 1986, the PAlMI Act was passed after congressional hearings and investigations substantiated numerous reports of abuse and neglect in state psychiatric facilities across the country. The PAlMI Act provides parallel protections for individuals with mental illness using the same mechanisms as the DD Act.
Under the Rehabilitation Act's PAIR program, P&As are authorized to use the same mechanisms as provided under the DD Act to serve persons with disabilities who are not eligible under either the DD Act or PAlMI Act. 29 U.S.C. § 794e.
Congress has continued to expand the mission of the P&A system beyond these three programs. Now, through a total of eight federally funded programs, P&As address a broad range of legal rights on behalf of persons with disabilities, whether those persons live in institutions or in community settings, including special education, employment preparation, healthcare access, architectural and programming accessibility, and voting.
Despite its expanded mission, the P&A system remains committed to ensuring the safety and well-being of persons with disabilities who live in institutional settings. In part, P&As carry out this work by conducting on-site facility monitoring and investigations, empowered by federal law providing the P&As with broad access rights to facilities and to their residents and staff members.
ADAP's monitoring work brings it to a variety of facilities that provide persons with disabilities services, support, care or treatment. These settings include, but are not limited to, public or private residential settings like residential and day schools, day treatment programs, 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.
The goals of ADAP's facility monitoring are :
• To provide information on programs addressing the needs of individuals with disabilities to facility residents,

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 16 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 16 of 34
3
• To provide information about individual rights and ADAP's advocacy services to facility residents, and
• To monitor compliance regarding the rights and safety of residents.
As found in the DD Act, PAlMI Act and Rehabilitation Act of 1973, and interpreted through case law over the last thirty years, the P&A access authority for monitoring and investigation ---- c-an-be-summari-zed--as-follows:
• Persons with disabilities may not be aware of their state's P&A or be able to contact the P&A on their own. To ensure that persons with disabilities have access to the agency's protection and advocacy services, federal law provides P&As with the right to unaccompanied access to all residents of a facility at reasonable times (including, at a minimum, normal working hours and visiting hours) to provide information, training and referrals to facility residents.
• P&As have broad authority to conduct --without probable cause to suspect abuse or neglect or other justification-- on-site monitoring of health and safety conditions in both institutional and community settings.
• Access to facility residents and staff to discuss issues relating to rights protections and treatment may not be restricted in most circumstances, and notice to a facility is generally not required prior to meeting with residents or staff.
• P&A staff have a right to have unaccompanied access to residents, which includes the opportunity to meet and communicate privately with them, both formally and informally, by telephone, mail and in person. The right of informal access applies to all residents of a facility, including those who may eventually be found not to meet the P&A eligibility criteria. The P&A is the final arbiter of what individuals served by a facility are, or are not, P&A clients and a facility may not require, as a condition of granting access to records or facilities, that the P&A make a definitive showing that particular individuals have a disability.
• Permission of a parent or guardian of a resident is not necessary for P&A staff to meet informally with any resident. However, the P&A staff must honor a resident's request to terminate an interview. A request to terminate an interview should not mean, however, that the P&A never again approaches the individual. Most advocates have worked with clients who will not talk with them one day, but welcome a respectful approach on the next.
• The P&A is allowed reasonable, unaccompanied access to facilities and community settings to investigate potential abuse or neglect. This access includes the right to

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 17 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 17 of 34
4
speak with any service recipient or staff member who may have knowledge of the incident being investigated.
• The P&A has the right to access the records of individuals, Including investigation reports of other agencies, with consent of the individual or his guardian. Even without such consent, under certain circumstances, the P&A has a right to such records if it has probable cause to believe that an abuse or neglect incident has occurred or it has received a complaint. The P&A is the final arbiter regarding the
- - - -Gircumstances tl:lat-amount-to pr:obable-cause,- One-circumstance-that-would-allow a P&A to access records without consent involves individuals who do not have a legal guardian, conservator or other legal representative, or when the individual's guardian is the State or one of its political subdivisions.
• Records must be provided to the P&A within three days of a written request in most cases. However, in the case of an investigation of a death or suspicion of an immediate threat to health or safety, records must be provided within 24 hours. Under the DD Act (and the PAIR Program), access to records under these circumstances is mandated without the consent of any third party (e.g., a guardian). Under the PAlMI Act, access must be afforded without such consent in the case of a death investigation; in the case where there is an immediate threat to health or safety and the individual has a guardian, access shall be provided over the guardian's objection (so long as his or her consent was sought).
• The P&A is required to protect the confidentiality of records provided to it to the same extent required by the facility/provider.
I hope this brief summary of ADAP's access authority has been helpful. If you have any questions, please do not hesitate to contact our office.
With very best regards,
Nancy Anderson Attorney

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 18 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 18 of 34

January 14, 2013

Ms. Valerie Schroeder Academy Clinical Director SafetyNE!t Academy 80 Mel Bailey Drive Minter, Alabama 36761

Protection
Persons with

~&:~Admvotcaciy f~or

RE~ Alabama Disabilities Advocacy Program (ADAP) Access Author!W to

Monitor and Investigate

•

-

Protection &:.A.d\tocacyfor Dear Ms. Schroeder: Jndlvidua1s with Mental Illness During the last few years, AMP has worked closely with the Alabama
Protection&:Advocacy of Department of Human Resources and the Alabama Medicaid Agency Individual Rights to fulflll the mandate to the Children's Health Act of 2000 to
Protectfon ItA.dvoeacy for Investigate serious occurrences occurring In psychiatric residential .As81stive Technology treatment facilities for youth under the age of 21 (PRTFs)•

Protection &: Advocacy for Jndividua1s ·with

This mandate builds off of ADAP's primary mission as part of out

Traumatic Brain Injury nation's protection and advocacy (PBr.A} system to protect the safety

and rights of persons with disabilities. We believe It might be helpful

Protection &: .Advocacy for Beneficlarles ofSocfal Security

to reacquaint PRTF staff - and Introduce new staff - to ADAP's federally-mandated monitoring and Investigatory role as the state's

Protect:l.on &.Advocacy for P&A agency.

Voting .AccoaaibDity

ADAP has served as Alabama's P&A agencv since the svstern's creation

through Congress' enactment of the Developmental Disabilities
THE UNIVERSITY OF Assistance and Bill of Rights Act of 1975, 42 u.s.c. § 6041 11 ag. (DO
AlABAMA Act) and Its subsequent expansion under both the Protection and Advocacy for lndfvlduals with Mental Illness Act of 1986, 42 U.S.C.
FOUNDED 1831 10801 !1 UA· (PAlMI Act), and the Protection and Advocacy for
Individual Rights (PAIR) Program, Rehabilitation Ac;t of 1973, 29 u.s.c.

794e.

500 Martha Parham West

Box870395
Tuscaloosa, Alabama 35487-

Shocked by the Inhumane conditions found at many of the nation's

0395 hospitals, training schools and Institutions for persons with mental

(lilOS)SA8-49!18 retardation, Congress enacted the DD Act In 1975 to protect the

(800)826--1675 FAX C:W5)348-3909

human and civil rights of this vulnerable population.

Reauthorized In

adap@adap.~.edu 2000, the DD Act mandates that each state establish a protection and

www.A.tlAP.net advocacy system authorized ~o:

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 19 of 34 Case 2:13-cv-00519-CG-8 Document 1-1 Filed 10/25/13 Page 19 of 34

2
(f) pursue legal, administrative, and other appropriate remedies or approaches to ensure the protection of, and advocacy for, the rights of (Individuals with developmental disabilities) ... and (II) provide Information an and referral to programs and services addressing
the needs of Individuals with developmental disabilities;
(B) have the authority to lnvestlpte incidents of abuse and neglect of Individuals with developmental dlsabtlltles If the lnddents are reported to the
system or Ifthere Is probable cause to believe that the Incidents occurred;
42 u.s.c. § 15043 (2000)
In 1986, the PAlMI Act was passed after congressional hearings and Investigations ~ substantiated numerous reports of abuse and neglect In state psychlatrlt facilities across the country. The PAlMI Act provides parallel protections for Individuals with mental Illness using the same mechanisms as the DO Ac;t.

Under the Rehabilitation mechanisms as provided

Ac(s under

PAIR program, the DO Act to

P&As serve

are authorized to use the same persons with disabilities who are

not eligible under either the DD Act or PAlMI Act. 29 U.S.C. § 794e.

Congress has continued to expand the mission ofthe P&A system beyond these three programs. Now, through a total of eight federally funded prasrams, P&As address a broad
rInansgtiteuotiof nlesgaolrrIinghctosmomn ubneihtyalsfeotftinpgerss,oInnscluwditinhgdsllspaebcilalltlleesd,uwchaetiothne, retmhopsloeypmeersnotnpsrelivpearIantion,
healthcare access, architectural and programming accessibility, and voting.

Despite Its well-being

expanded mission, the P&A system of persons with disabilities who live

remains committed to ensurln& the s_afety and
In Institutional settings. In part, P&As carry

out this work by conducting an-site facility monJtorlns and Investigations, empowered by

federal law providing the P&As with broad access rights to facilities and to their residents

and staff members.

sAeDrAviPce'ssm, sounplptoorrltn,&cawreorokrbtrrelnastsmlettnot.aTvhaersieetyseottfifnagcsiliitniecslutdhea,tbpurot avirdeenpoetrlsfmonitsewd lttoh~

disabilities public or

private residential sett:lnss like residential and day schools, day treatment programs, seneral

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.

The goals of ADAP's facility monltorins are; • To provide Information on programs addressing the needs of Individuals with disabilities to faciUty residents~

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 20 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 20 of 34
3

• To provide Information about Individual rights and ADAP's advocacy services to facility residents, and

• To monitor compliance regarding the rights and safety of residents.

As found In the DO Act, PAlMI Act and Rehabilitation Act of 1973, and Interpreted through

c:a&e-laW-ovar-tha-last-thlrty-yaar5,-th~I&Jtaccess-authorltyJol'-monltorlng_andJrw.estlgatlon_can

be summarized as follows:

,

• Persons with disabilities may not be aware oftheir state-'s·P&A or be able to contact the P&A on their own. To ensure that persons with disabilities have access to the agency's protection and advocacy services, federal law provides PI&As with the right to unaccompanied access to all residents of afacility at reasonable times (Including, at a minimum, normal working hours and visiting hours) to provide Information,
training and referrals to facility residents.

• P&As have broad authority to conduct- without probable cause to suspect abuse or neglect or other justification - on-site monitoring of health and safety conditions In
both Institutional and community settings.

• Access to facility residents and staffto discuss Issues relatlns to rights protections and treatment may not be restricted In most circumstances, and notice to a faciiJty Is
generally not required prior to meeting with residents or staff.

• P&A staff have a right to have unaccompanied access to residents, which Includes the opportunity to meet and communicate privately with them, both formally and lnformally1 by telephone, mall and in person. The rfght of Informal acc~ss applies to all residents of afa(:llity, Including those who may eventually be found not to meet the P&A eligibility criteria. The P&A 19 the final arbiter of what Individuals served by a
facility are, or are not, P&A clients and afacility may not require, as a condition of
granting I(:Cess to records or facilities, that the P&A make a definitive showing that
particular Individuals have a disability.

• Permission of a parent or guardian of a resident Is not necessary for P&A staffto meet Informally with any resident. However, the P&A staff must honor a resldenrs request to terminate an Interview. A request to termlmtte an Jntervfew should not mean, however, that the P&A never again approaches the Individual. Most advocates have worked with clients who will not talk with them one day, but welcome a
respectful approach on the next.

•The P&A Is allowed reasonable, unaccompanied access to-facflrtles and communtty settings to Investigate potential abuse or neglect. This access ''"'eludes the rlsht to

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 21 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 21 of 34
4
speak with any service recipient or staff member who may have knowledge of the Incident being Investigated.
• The P&A has the right to access the records of Individuals, Including Investigation reports of other agencies, with consent ofthe lndlvldl!al or his guardian. Even
without such consent, under certain drcumstances, the P&A has a rlsht to such
records If It has probable cause to believe that an abuse or neglect Incident has - ·occurred_or It has received a complaint. The P&A.Is theJln.~J ~;~.rblt~r .reg~n:llog th~ ___
circumstances that amount to probable cause. One circumstance that would allow a
P&A to access records without consent Involves Individuals who d.o not have a legal guardian, conservator or other legal representative, or.when the Individual's guardian Is the State or one of Its political subdivisions.
• Records must be provided to the P&A within three days of a written request in most
cases. However, In the case of an Investigation of a death or suspicion of an Immediate threat to health or safety, records must be provided within 24·hours. Under the DO Act (and the PAIR Program), access to records under these circumstances is mandated without the consent of any third party (e.g., a guardian). Under the PAlMI Act, access must be afforded without such consent in the case of a death Investigation; In the case where there Is an lmm'edlate threat to health or safetv and the individual has a guardian, access shall be provided over the guardian's objection (so long as his or her consent was sought).
• The P&A is required to protect the confidentiality of records provided to It to the same extent required by the facility/provider.
I hope this brief summary of ADAP's access authority has been helpful. I would like to schedule a monitoring visit to the Minter campus Tuesday, January 22. I will contact you
by phone to discuss any questions you may have and to schedule a time for this visit.
With Best Regar:ds,
c~~
Senior Case Advocate
cc: Lyn Wheatley, CEO Sheila Hatfield, Corporate Clinical Director

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 22 of 34 Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 22 of 34
EXHIBIT 4 CV-13-519

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 23 of 34 Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 23 of 34

April 29, 2013

Sent VIa Email & U.S. Mall

Ms. Valerie Schroeder
Clinical Director SafetyNet Academy
BO Mel Bailey Drive Protection &Advocacy for Minter, Alabama 36761
Persons with Developmental
Disabilities RE: Monitoring & Investigation

Protection &Advocacy for
Individuals with Mental Dear Ms. Schroeder:·
Dlness

Protection&Advocacyof ADAP plans to conduct a monitoring visit and an Investigation on Individual Rights Wednesday, April 1 beginning at 10:00 a.m. at SafetyNet

Academy.
Protection & Advocacy for

Assistive Technology During the monitoring, ADAP plans to meet with all residents at

Protection &Advocacy for SafetyNet to Inform of ADAP's services. In addition, ADAP will

J Individuals with
Traumatic Brain Injury

conduct a record review and interviews with 0 M M U
and staff as necessary regarding a serious occurrence on 4/5/13.

Protection &Advocacy for
Beneficiaries ofSocial Security Please contact me should you have questions.

c~_j_(}flJ}--_ Protection &Advocacy for Voting Accessibility

With Best Regards,

.THE UNIVERSITY Of Christy Johftsb{)'
ALABAMA Senior Case Advocate
FOUNDED 1831 cc: Sheila Hatfield Lyn Wheatley

500 Martha Parham West
Box870395 Tuscaloosa, Alabama 35487-
0395 (205)348-4928 (800)826-1675 FAX (205)348-3909 adap@adap.•ua.edu www.ADAP.net

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 24 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 24 of 34
EXHIBIT 5 CV-13-519

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 25 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 25 of 34

VIA EMAIL & US MAIL October 7, 2013

Mr. Lyn Wheatley Chief Executive Officer SafetyNet Academy 80 Mel Bailey Drive Minter, Alabama 36761

ADVOCACY PROGRAM

RE: Alabama Disabilities Advocacy Program (ADAP) Access Authority to
Monitor and lnvcstigntc Safety Net' Progrnms

Dear Mr. Wheatley:

Protection & Advocacy f<.ll' Pt:r~ons with Dcvdoptnental
I)isR hi Ii tie.,

Since October 2012, ADAP has been attempting to work with SafelyNet Inc. to inform and educate you and your staff on its Jederalllccess authority to monitor and investigate all areas ofSaf'etyNet facilities used by and accessible

Prote(:tion & Advocacy for to individuals with disabilities. Specifically, ADAP has communicated with

Individuals with Ment<~l llhu:ss SafetyNet through numerous written conespondcnces and in person meetings

explaining its right to access the Moderate Program of SafetyNet Academy

Prot<:dion & Advoc;~cy of located in Minter, Alabama. Each time ADAP has requested access to the

Individual Rights Moderate Program, SafetyNel has refused ADAP access and has directed

ADAP to State DHR Legal Counsel for justif1cation for its denial.

l'rotecrion & Artv01:acy for

Assistive Techno loin' At this time, Sat'etyNet has left ADAP with no meaningful option other than

Protection & Advoc:~cy for lndividu~ls witb
Traumatic Bmin Injury

to take legal action to gain access to SafetyNet Academy's Moderate Program. A copy of ADAP's complaint is enclosed requesting a Declarato1y Judgment and Injunctive Relief against SafetyNet for its refusal to grant ADAP access to the Moderate Program and to award ADAP costs and

Protet:l ion & Advoc:•cy for Beneficiaries of Social Security

attomey's fees per 28 U.S.C. § 2202, 42 U.S.C. § 1988, and 45 C.F.R. §1386.25. ADAP intends to file this complaint with the U.S. District Court of the Southern District of Alabama within 14 days of the date of this letter.

ProI eel ion & Advocacy for
Votiu~ Acccs~ibillty

We hope to hear from you soon so that this issue can be resolved quickly and avoid Iitigation. You may contact me at (205) 348-7679 or at
!!.ln ixsq_u@odni!.Jl~,~du.

HIE UNIVERSITY Of

ALABAMA
F 0 lf N DE D I 8 3 I

'Sin/celrely., JAI~n~

'J,,:,:n?:Zixson
Staff Attomey 500 M~rtha Parham West
Box 870.395 Enc. Tuscaloma, Alabama 35487-0'395
(205)348-4928 CC: Mr. Dave Slawkowski, Esq. (800)826-167 5 FAX (205)348-3909
~dap@adap.ua.cdu
www.AJ)AP.net

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 26 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 26 of 34
EXHIBIT 6 CV-13-519

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 27 of 34

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 27 of 34

.·

State of Alabama

Department of Human Resources

ROBERT BENTLEY Govemor

S. Gordon Person~ Building ~0 Ripk-y Street P.o. F.li'JK 304000
Montgomery. Alabama 36 130•4000 (334) 242.-l.liO

Nnncy T. Buckner
C'ommi,~silmer

October 1(), 2013
VIA FASCIMILE & US MAIL
Honorable Andrea Mixson Alabama Disabilities Advocacy Program University of Alabama 500 Martha Patham West Tuscaloosal Alabama 35487-0395

RE; Altib(lmtr Disabilities Advocacy Progrom (ADAP) Request/or Acce,f$ tt> SafetyNet Moderate Programs
Dear Ms. Mixson:
The Alabama Department of Human Resources (''OHR'') is in receipt of correspondence from you to Lynn Wheatley, Director of SafetyNet Youth Care, Jnc. ("Safety Net") and the attach~d · Complaint for lnjwtctive and Declarative Relief against SafetyNet. In the Complaint~ you seck access to aJI the Moderate Programs of SafetyNet. Additionally, you indicate the intention to file the Complaint within fourteen (14) days of the letter dated October 7, 2013.

In an effort to resolve these issues DHR, as the licensing authority for SafetyNet is willing to implement a protocol for access to SafetyNet's moderate program. Neither D.HR nor SnfetyNet are admitting that any of the allegations in the Complaint are tn1e. DHR and SafetyNet agree to access by ADAP to SafetyNet1s moderate program based upon Eleventh Circuit standard for intensive programs set out in the case of Alabama DisabJiities Advocacy Program v. J.S. Tarwater Developmental Cti·., 97 F.3d 492 (ll th Cir. 1996). Therefore, access to the SafetyNet Moderate Program is· conditio1\ed upon:

a) an incident or complaint made to ADAP as to the Safe.tyNet's moderate: program; or b) ~here is probable cause to believe an incident has occurred at SafetyNet's moderate
program.

Please note that In accordance with ALA. CoDE § 26-14-3 (1975), reports of child abuse and neglect must be made to DHR immediately. "l'herefore, it is the expectation that ADAP. as a mandatory reporter under the statute; report to DHR any allegations of abuse or neglect.
DHR does not concede that ADAP ha.c; a sufficient legal basis for the telief sought should the complaint be filed. Moderate tacilities are not Intensive treatment programs and mre ribt

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 28 of 34 Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 28 of 34
-·Mi."kHm l..l!.ttrtr
ADAP
/0/J()/]()13
considered a part of the Psychiatric Services for Individuals under the Age of 21 ("Psych. 21 ;'). As st1ch, DHR Is willing to implement this protocol in good faith to resolve this matter as to
Sa:fetyNet.
The basic prern.ise of the protocol is stated above. H{)wever, we will submit a tbrrt'lal drf'lft for your review an.d suggestions if you agree with the proposed protocol for SafetyNet. Please advi!lc:: rne within seven {7} days if you agree. DHR is interested in resolving. this matter expedltlously.
I look forward to hearing from you sc.1on about the proposed protocol.
Sincerely.
bcq~~~
General Cou11sel Phone: (334) 242-9330 Fax: (334) 242·0689
Cc: Lyn Wheatley
Honorable Martha Thompson

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 29 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 29 of 34
EXHIBIT 7 CV-13-519

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 30 of 34 Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 30 of 34

VIA EMAIL (mlt@hfsllp.com) & US MAJL October 15, 2013

Ms. Martha Thompson, Esq. Huie, Fernombucq, & Stewart, LLP 280 I Highway 280 S. Suite 200 Birmingham, Alabama 3522:1-2484

ADVOCACY PROGRAM RE: Alnbnmu Disabilities Advocacy Program (ADAP') Accr..s!l Authority to Monitor and Investigate Safety Net P•·ograms

ProtN:tion & Advoc~cy for Dear Martha:

Persom with Develnllm cn ta l Disabilities
Protectio n & Advocm:y for
In clivicl n~ ls with Menmllllncss

I received correspondence dated October I0, 2013 from Alabama Department of Human Resources (DHR) General Coun8el Sharon Ficquctte regarding ADAP's access authority to monitor the Moderate Programs at SafetyNet Youth Academy. Given that your and Mr. Lyn Wheatley's names were on the distribution list, I assume you are representing SafetyNet, Inc . in this

PnJtectinn & Advocu:y of matter,

lndividu;d R igh ts

Protection & Advoc11 cy t(Jr
Assis tivc T echn ology
Protection & Advoc~cy for
Individ u;~ l$ wirh
Tr8lii1\Htic nra ill lujury
Protectio n & Advocacy to r Beneficia ries of Soda! Security
Pro tectio n & A dvocncy fo r

Ms. Ficquettc's correspondence fails tQ acknowledge the scope of ADAP's
access authority to facilities such as the SafetyNet Moderate Program.
ADAP's access authority as Alabama's Protection and Advocacy agency (P&A) agency is laid out in the Protection and Advocacy for Individuals with Mental Illness Act of 1986 (''PAlMI Act"), 42 lJ.S.C. §§ l0801 et. seq., and its implementing regulations at 42 C.F.R. §§ 51.1. et seq.; the Developmental Disabilities Assistance and Bill of Rights Act of2000 ("PADD Act"), 42 U.S.C. §§ 15001 ct seq., and its implementing regulations found at 45 C.F.R. §§ 13 85 et seq.; and the Protection and Advocacy of Individual Rights
Program of 1993 ("PAIR Act"), 29 U.S.C. §§ 794e, et seq ., and its implementing regulations at 34 C.F.R. §§ 381 .1 et seq.; and 42 U.S.C. § 1983.

Votillg Acn·ssihility
First, ADAP's access authority is not limited to investigation activities, but includes the following activities related to monitoring: interacting with all
res idents of a faci lity, providing ADA P contact in formation to residents, THE UNIVERSITY OF viewing and photographing facility areas used by and accessible to residents,
ALABAMA 1md physically observing all areas of u fac ility used by or accessible to residents. ee 42 U.S .C. § I0805; 42 C. .R. § 5 1.42(c)· 42 U.S.C. §15043;

fOUNDED I B 3 I 45 C.F.R. ~ 1386.22(g). A number of cases affirm a P&A's authority to

cond uct monitoring: Mississippi Protection cmd Advocacy System, Inc. v.

Cotten, 1989 WL 224953 (S. D. Mis ·.); Penn.)yh•ania Pro/ecfion and

Advocacy, Inc. v. Rt,yer-(jreuves. choolfor the Blind I~99 WL 1797 7

500 Martha Pnrham West (B. D. Pa.); Robbin.\· v. Budke, 7 9 F.Supp. 1479 (D.N.M . 1990); Kentucky

Box 87039S Protection and Advocm:1rl)ivision ''· Hall, No. 3:0 Icv-53 8-1I (W.D. 1 y.

Tuscaloosa , AlauBma 35487-0395 200 I ) (unpu blished); Michigan Protection and Advocacy Sen >lce, Inc. v.

(205)348-4928 (800)826- 16'1 5

Miller, 849 F. Supp. 1202 (W .D. Mi.1994).

FAX (205)348-'W09
lJd;~p(@Rdap.u;~ . edtt
www .A D A P.n N

Second, contrary to Ms. Ficquette's suggestion, ADAP's access authority to monitor facilities is not limited to facilities c;lassified as Intensive Treatment

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 31 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 31 of 34
Programs or Psychiatric Services for Individuals under the age of21. The PAlMI regulations broadly define the term "facility" as follows:
A!.lY. public or private P-"el'idential setting that provides _Q.~I:!!lgJtLJ.!_m:_e_accorni~U_lied by trentment
services. Facilities include but arc 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 forells ic units.
42 C.F.R. § 51.2 (emphasis mine)
Likewise, the terms "care" and "treatment" arc defined undel' the PAlM I regulations as those services:
Provided to prevent, idenlil)', reduce or stabilize mental illness or emotional impairment such as mental health screening, evaluation, counseling, biomedical, behavioral and psychotherapies, suppotiive or other adjunctive therapies, medication supervision, special education and rehabilitation, even if only "as needed" or under a contractual arrangement.
42. C. F.R. 51.2
Thus, under the PAlMI Act, facilities indudc any public and private entities that serve-in pat1 or whole- individuals with mental illness, and in which one or more individuals with mental illness reside or may reside, when those entities provide some care or treatment for person with mental illness, even ifthose services are only incidental to the primary function of the entity. SafetyNeL's Moderate Programs clearly fit within the PA IMI regulation's brood definition of fi1cilities and are accessible to ADAP for monitoring purposes as well as investigation purposes.
Whilt: Ms. Ficquelte states in her correspondence that DHR and SafetyNet are willing to implement a protocol for ADAP's access to SafetyNet's Moderate Program, ADAP will not enter into a protocol with SafctyNet that will place limits on the monitoring and investigative activities it is authorized under federal law to conduct.
ADAP has successfully detended our access rights across a variety of settings and involving a variety of defendants which also included the recovery of attomey's fees. If ADAP and SafetyNet cannot resolve this matter this week, ADAP illlends to tile its complaint against SafetyNet on October 21, 2013. We hope to hear from you soon so this issue can be resolved. You may contact me at (205) 3487679 Ol' at nm ixson(i't)adn(2:~111,5~du.
I)J:J~fl(A~ ·fl' t /
Andreaa;xson Staff Attorney
CC: Mr·. Lyn Wheatley Ms. Sharon Ficquette, Esq. Mr. Dave Slawkowski, Esq.
Letter toM . T - -;;o;:m ;;;-p;;~so;:;1;11 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pg. 2
10.15.2013

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 32 of 34 Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 32 of 34

Mixson, Andrea
From: Sent: To: Cc: Subject: Attachments:

Hackney, Christa Wednesday, October 16, 2013 12:34 PM mlt@hfsllp.com sharon .ficq uette@d hr. ala bama.gov; lyn@safetynetacademy.org Letter to MH Ltr to M Thompson (ADAP) 10 15 13.pdf

Please see attached.

Christa Hackney, LCSW Senior Case Advocate Alabama Disabilities Advocacy Program (ADAP) The University of Alabama Box 870395 Tuscaloosa, AL 35487-0395 205.348.3471 (direct) 205.348.4928 (main) 800.826.1675 (toll free) 205 .348.3909 (fax) chackney@adap.ua.edu Web: www.adap.net Satisfaction survey: htt p:Uwww.adap.net/satisfaction.html
This email is intended only for the person to whom it is addressed. Any review or other use of this information by persons or entities other than the intended recipient or any retransmission without the consent of the sender is prohibited. The views or opinions expressed by the sender of this email are not necessarily those of the Alabama Disabilities Advocacy Program or The University of Alabama.

1

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 33 of 34
Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 33 of 34
EXHIBIT 8 CV-13-519

Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 34 of 34 Case 2:13-cv-00519-CG-B Document 1-1 Filed 10/25/13 Page 34 of 34

Mixson, Andrea
From: Sent: To: Cc:
Subject:
Importance:

Mixson, Andrea Thursday, October 17, 2013 2:40 PM Martha Thompson (MThompson@huielaw.com) sharon.ficquette@dhr.alabama .gov; 'Tucker, James (jtucker@adap.ua.edu)'; Slawkowski, Dave; lyn@safetynetacademy.org Safety Net Access
High

Martha:
Thank you for your call this afternoon. ADAP will agree to meet with SafetyNet counsel, SafetyNet staff, DHR counsel, or any other representatives you and your client should delegate in your absence, no later than Monday, October 21, 2013 at the SafetyNet Minter Campus to: 1) discuss our federal access authority with you and 2) to be accorded access to monitor the SafetyNet Academy Moderate Program by 5:00PM on 10.21.2013.
We hope to hear from you soon.
Best Regards, Andrea
Andrea J. Mixson, Staff Attorney Alabama Disabilities Advocacy Program (ADAP) University of Alabama 526 Martha Parham West Box 870395 Tuscaloosa, AL 35487-0395
205-348-7679
205-348-3909 (fax) 1-800-826-1675 (toll-free) This email is intended only for the person to whom it is addressed. Any review or other use of this information by persons or entities other than the intended recipient or any retransmission without the consent of the sender is prohibited. The views or opinions expressed by the sender of this email are not necessarily those of the institution.

Tracking:

 
 Case: 2:13-cv-519 As of: 07/06/2017 09:40 AM CDT 1 of 9

U.S. District Court Southern District of Alabama (Selma) CIVIL DOCKET FOR CASE #: 2:13−cv−00519−CG−B

CLOSED2014

Alabama Disabilities Advocacy Program v. SafetyNet YouthCare, Inc. Assigned to: Senior Judge Callie V. S. Granade Referred to: Magistrate Judge Sonja F. Bivins Cause: Disability Act of 1990
Plaintiff

Date Filed: 10/25/2013 Date Terminated: 12/15/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Alabama Disabilities Advocacy Program

represented by David John Slawkowski P.O. Box 870395 Tuscaloosa, AL 35487 205−348−4928 Email: dslawkowski@adap.ua.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Ellen Anderson P.O. Box 870396 Tuscaloosa, AL 35487 205−348−4928 Email: nanderso@adap.ua.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea Jane Mixson Alabama Disabilities Advocacy Program P.O. Box 870395 Tuscaloosa, AL 35487 205−348−4928 Fax: 205−348−3909 Email: amixson@adap.ua.edu ATTORNEY TO BE NOTICED

William Van Der Pol , Jr. Box 870395 Tuscaloosa, AL 35487 205−348−4928 Email: wvanderpoljr@adap.ua.edu ATTORNEY TO BE NOTICED

V. Defendant SafetyNet YouthCare, Inc.

represented by Martha Leach Thompson Huie, Fernambucq &Stewart, LLP Three Protective Center 2801 Protective Center, Suite 200 Birmingham, AL 35223−2484 205−251−1193 Email: MLT@hfsllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stewart W. McCloud 2801 Highway 280 South Suite 200 Birmingham, AL 35223 205−251−1193

Case: 2:13-cv-519 As of: 07/06/2017 09:40 AM CDT 2 of 9
Email: smccloud@huielaw.com ATTORNEY TO BE NOTICED

V. Non−Party UNITED STATES OF AMERICA
ThirdParty Plaintiff SafetyNet YouthCare, Inc.

represented by Holly Lee Wiseman U.S. Attorneys Office 63 S. Royal St., Rm. 600 Mobile, AL 36602 251−441−5845 Fax: 251−441−5131 Email: holly.wiseman@usdoj.gov ATTORNEY TO BE NOTICED
represented by Martha Leach Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stewart W. McCloud (See above for address) ATTORNEY TO BE NOTICED

V.
ThirdParty Defendant
Alabama Department of Human Resources (DHR)

represented by Felicia Marshea Brooks State of Alabama, Department of Human Resources Legal Office P. O. Box 304000 50 North Ripley Montgomery, AL 36130 334−242−9330 Fax: 334−242−0689 Email: felicia.brooks@dhr.alabama.gov ATTORNEY TO BE NOTICED

Date Filed 10/25/2013
11/04/2013 11/05/2013 11/05/2013 11/19/2013

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $400 receipt number 1128−1502846, Online Credit Card Payment), filed by Alabama Disabilities Advocacy Program. (Attachments: # 1 Exhibit Exhibits 1−8, # 2 Waiver of Service, # 3 Civil Cover Sheet) (Slawkowski, David) (Attachment 1 replaced on 3/21/2014) (mjn). (Entered: 10/25/2013)
2 Service Notice issued 11/4/2013. Plaintiff's Notice of Service Efforts due by 12/9/2013 pursuant to Local Rule 4.1(c). (mab) (Entered: 11/04/2013)
3 NOTICE of Filing Proposed Summons by Alabama Disabilities Advocacy Program (Slawkowski, David) (Entered: 11/05/2013)
4 Summons Issued as to SafetyNet YouthCare, Inc. (NOTE TO COUNSEL: The Summons has been issued. Please print copies necessary for service.) (mab) (Entered: 11/05/2013)
5 SUMMONS Returned Executed by Alabama Disabilities Advocacy Program. SafetyNet YouthCare, Inc. served on 11/11/2013, answer due 12/2/2013. (Slawkowski, David) (Entered: 11/19/2013)

Case: 2:13-cv-519 As of: 07/06/2017 09:40 AM CDT 3 of 9

11/27/2013 12/02/2013 12/02/2013 12/03/2013
12/03/2013 12/10/2013 12/20/2013 12/20/2013 12/20/2013 12/22/2013 12/23/2013 01/08/2014 01/08/2014 01/08/2014 01/17/2014 01/20/2014 01/21/2014 01/22/2014
01/31/2014

6 NOTICE of Appearance by Andrea Jane Mixson on behalf of Alabama Disabilities Advocacy Program (Mixson, Andrea) (Entered: 11/27/2013)
7 ANSWER to 1 Complaint, by SafetyNet YouthCare, Inc.. (Thompson, Martha) (Entered: 12/02/2013)
8 THIRD PARTY COMPLAINT against Alabama Department of Human Resources (DHR), filed by SafetyNet YouthCare, Inc.. (Thompson, Martha) (Entered: 12/02/2013)
9 PRELIMINARY SCHEDULING ORDER entered. Rule 26 Meeting Report due by 1/17/2014.Signed by Magistrate Judge Sonja F. Bivins on 12/3/2013. (Attachment: # 1 consent form) (mab) (Main Document 9 replaced on 12/3/2013) (mab). (Entered: 12/03/2013)
10 Third−Party Summons Issued as to Alabama Department of Human Resources (DHR). (NOTE TO COUNSEL: The Third−Party Summons has been issued. Please print copies necessary for service.) (mab) (Entered: 12/03/2013)
11 SUMMONS Returned Executed by SafetyNet YouthCare, Inc.. Alabama Department of Human Resources (DHR) served on 12/4/2013, answer due 12/26/2013. (Thompson, Martha) (Entered: 12/10/2013)
12 NOTICE of Appearance by Felicia Marshea Brooks on behalf of Alabama Department of Human Resources (DHR) (Brooks, Felicia) (Entered: 12/20/2013)
13 Corporate Disclosure Statement filed by ThirdParty Defendant Alabama Department of Human Resources (DHR). (Brooks, Felicia) (Entered: 12/20/2013)
14 Document endorsed NOTED by Magistrate Judge Sonja F. Bivins: Corporate Disclosure Statement 13 filed by Alabama Department of Human Resources (DHR). (Bivins, Sonja) (Entered: 12/20/2013)
15 ANSWER to 8 Third Party Complaint by Alabama Department of Human Resources (DHR). (Brooks, Felicia) (Entered: 12/22/2013)
16 Document endorsed NOTED by Judge Callie V. S. Granade: Corporate Disclosure Statement 13 filed by Alabama Department of Human Resources (DHR) (McDermott, Elizabeth) (Entered: 12/23/2013)
17 Corporate Disclosure Statement filed by Defendant SafetyNet YouthCare, Inc.. (Thompson, Martha) (Entered: 01/08/2014)
18 Document endorsed NOTED by Judge Callie V. S. Granade: Corporate Disclosure Statement 17 filed by SafetyNet YouthCare, Inc. (McDermott, Elizabeth) (Entered: 01/08/2014)
19 Document endorsed NOTED by Magistrate Judge Sonja F. Bivins: Corporate Disclosure Statement 17 filed by SafetyNet YouthCare, Inc. (Bivins, Sonja) (Entered: 01/08/2014)
20 REPORT of Rule 26(f) Planning Meeting . (Mixson, Andrea) (Entered: 01/17/2014)
21 NOTICE of Endorsement by SafetyNet YouthCare, Inc. (Thompson, Martha) (Entered: 01/20/2014)
22 NOTICE of Endorsement by Alabama Department of Human Resources (DHR) (Brooks, Felicia) (Entered: 01/21/2014)
23 Order re: 20 Report of Rule 26(f) Planning Meeting filed by Alabama Disabilities Advocacy Program. Status Conference set for 2/4/2014 at 10:00 AM in US Courthouse, Courtroom 1A, 113 St. Joseph Street, Mobile, AL 36602 before Magistrate Judge Sonja F. Bivins. Signed by Magistrate Judge Sonja F. Bivins on 1/22/2014. copies to parties &emailed to CRD. (sdb) (Entered: 01/22/2014)
24 MOTION for William Van Der Pol, Jr. to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128−1538586, Online Credit Card Payment.) by Alabama Disabilities Advocacy Program. (Van Der Pol, William) (Entered: 01/31/2014)

Case: 2:13-cv-519 As of: 07/06/2017 09:40 AM CDT 4 of 9

01/31/2014
01/31/2014 02/04/2014 02/04/2014
02/18/2014 02/19/2014 02/20/2014 03/21/2014 04/11/2014
04/24/2014 05/05/2014 05/05/2014 05/07/2014
05/12/2014 05/29/2014

25 NOTICE of Filing Exhibits Application Documents for Pro Hac Vice Appearance by Alabama Disabilities Advocacy Program re: 24 MOTION for William Van Der Pol, Jr. to Appear Pro Hac Vice ( Filing fee $ 50, Receipt number 1128−1538586, Online Credit Card Payment.) filed by Alabama Disabilities Advocacy Program. (Van Der Pol, William) (Entered: 01/31/2014)
26 Notice of Filing Initial Disclosures filed by Alabama Disabilities Advocacy Program. (Mixson, Andrea) (Entered: 01/31/2014)
Minute Entry for proceedings held before Magistrate Judge Sonja F. Bivins: A status conference was conducted on 2/4/2014, with counsel for the parties attending by telephone. (kpt) (Entered: 02/04/2014)
27 RULE 16(b) SCHEDULING ORDER: Pretrial Conference set for 11/10/2014 at 1:30 PM in US Courthouse, Judge's Chambers, 113 St. Joseph Street, Mobile, AL 36602 before Judge Callie V. S. Granade. Motions for leave to amend pleadings due by 2/28/2014. Discovery cutoff 6/30/2014. Dispositive Motions due by 7/18/2014. Bench Trial set for the December 2014 trial term before Judge Callie V. S. Granade. ETT 3 days. Joint Position Regarding Settlement due by 6/30/2014. Joint Proposed Protective Order due by 2/18/2014. Signed by Magistrate Judge Sonja F. Bivins on 2/4/2014. (Attachment: # 1 Judge Granade's Standing Pretrial Order) (mab) (Entered: 02/04/2014)
28 NOTICE of Filing Proposed Order by Alabama Disabilities Advocacy Program re: 27 Scheduling Order,, Notice and Text of Joint Proposed Protective Order with Proposed Non−Disclosure Agreement (Mixson, Andrea) (Entered: 02/18/2014)
29 MOTION to Amend 28 Joint Proposed Protective Order and Non−Disclosure Agreement by Alabama Disabilities Advocacy Program. (Attachments: # 1 Text of Proposed Order) (Mixson, Andrea) (Entered: 02/19/2014)
30 AMENDED PROTECTIVE ORDER entered. Signed by Magistrate Judge Sonja F. Bivins on 2/19/2014. (srr) (Main Document 30 replaced on 5/9/2014) (mab). (Entered: 02/20/2014)
31 Notice of Filing Requests for Admisson filed by Alabama Disabilities Advocacy Program. (Mixson, Andrea) (Entered: 03/21/2014)
32 ENDORSED ORDER Denying, without prejudice [Doc. 24] Motion to Appear Pro Hac Vice filed by William Van Der Pol, Jr. Despite numerous requests from the court, counsel has failed to provide the requisite documentation. Accordingly, the motion is denied, without prejudice. Signed by Magistrate Judge Sonja F. Bivins on 4/11/2014. (kpt) (Entered: 04/11/2014)
33 NOTICE of Appearance by Nancy Ellen Anderson on behalf of Alabama Disabilities Advocacy Program (Anderson, Nancy) (Entered: 04/24/2014)
34 MOTION for Extension of Time to Complete Discovery by Alabama Disabilities Advocacy Program. (Mixson, Andrea) (Superseded by Doc. 35 .) (Entered: 05/05/2014)
35 Corrected MOTION for Extension of Time to Complete Discovery by Alabama Disabilities Advocacy Program. (Mixson, Andrea) (Entered: 05/05/2014)
36 ORDER, granting 35 MOTION for Extension of Time filed by Alabama Disabilities Advocacy Program. Plaintiff's expert disclosures due 5/12/2014. Defendants' expert disclosures due 6/12/2014. Discovery cutoff 7/15/2014., Dispositive Motions due by 7/31/2014. Joint Position Regarding Settlement due by 7/15/2014. All other deadlines contained in the 27 rule 16(b) scheduling order remain in full force and effect. Signed by Magistrate Judge Sonja F. Bivins on 5/7/2014. (mab) (Entered: 05/07/2014)
37 Notice of Filing Expert Witness Report filed by Alabama Disabilities Advocacy Program. (Mixson, Andrea) (Entered: 05/12/2014)
38 Notice of Filing Requests for Production filed by Alabama Disabilities Advocacy Program. (Mixson, Andrea) (Entered: 05/29/2014)

Case: 2:13-cv-519 As of: 07/06/2017 09:40 AM CDT 5 of 9

06/26/2014 06/30/2014 07/07/2014
07/10/2014 07/11/2014 07/14/2014 07/14/2014
07/21/2014 07/30/2014 08/21/2014 08/21/2014 08/22/2014 08/28/2014

39 Notice of Filing Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action filed by Alabama Department of Human Resources (DHR). (Attachments: # 1 Exhibit) (Brooks, Felicia) (Entered: 06/26/2014)
40 MOTION for Protective Order Regarding Third Party Defendant DHR's SUBPOENA OR Motion to Quash Subpoena by Alabama Disabilities Advocacy Program. (Attachments: # 1 Exhibit 1, 2) (Mixson, Andrea) (Entered: 06/30/2014)
41 Objection re: 40 MOTION for Protective Order Regarding Third Party Defendant DHR's SUBPOENA OR Motion to Quash Subpoena OBJECTION TO PLAINTIFFS MOTION FOR PROTECTIVE ORDER BY THIRD−PARTY DEFENDANT filed by Alabama Department of Human Resources (DHR). (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D) (Brooks, Felicia) (Entered: 07/07/2014)
42 MOTION for Extension of Time by Alabama Disabilities Advocacy Program. (Mixson, Andrea) (Entered: 07/10/2014)
43 NOTICE of Hearing: Telephone Conference set for 7/14/2014 09:00 AM in US Courthouse, Courtroom 1A, 113 St. Joseph Street, Mobile, AL 36602 before Magistrate Judge Sonja F. Bivins. Counsel will be notified by separate e−mail the call in number and pass code to access the conference. (mjn) (Entered: 07/11/2014)
Minute Entry for proceedings held before Magistrate Judge Sonja F. Bivins: Telephone Conference held on 7/14/2014 re; motion for protective order 40 and motion for extension of time 42 ; Counsel participating by telephone; Nancy Anderson, Andrea Mixson, Martha Thompson and Felicia Brooks FTR Digital Audio Recording. (mjn) (Entered: 07/14/2014)
45 Order re: 40 MOTION for Protective Order filed by Alabama Disabilities Advocacy Program, and the parties' 42 MOTION for Extension of Time. Discovery conference conducted 7/14/2014. Non−party Alabama Department of Mental Health is ORDERED to produce for an in camera inspection the records as set out in order and deliver documents to chambers no later than 7/18/2014. Parties' motion for an extension is GRANTED in part, and DENIED in part. Pretrial Conference set for 2/9/2015 at 9:30 AM in US Courthouse, Judge's Chambers, 113 St. Joseph Street, Mobile, AL 36602 before Judge Callie V. S. Granade. Non−jury trial set for the March 2015 trial term. ETT 3 days. Discovery cutoff 8/29/2014. Dispositive Motions due by 9/19/2014. Joint Position Regarding Settlement due by 8/29/2014. Except as otherwise provided herein, all other deadlines contained in the 27 scheduling order entered on 2/42/014 remain in full effect.. Signed by Magistrate Judge Sonja F. Bivins on 7/14/2014. (Entered: 07/14/2014)
46 ORDER granting in part and denying in part 40 Motion for Protective Order or in the alternative motion to quash subpoena as set out in order. Signed by Magistrate Judge Sonja F. Bivins on 7/21/2014. (mab) (Entered: 07/21/2014)
47 NOTICE of Appearance by Stewart D. McCloud on behalf of SafetyNet YouthCare, Inc. (McCloud, Stewart) (Entered: 07/30/2014)
48 MOTION to Compel Production by Third Party Defendant, Alabama Department of Human Resources by Alabama Disabilities Advocacy Program. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (Mixson, Andrea) (Entered: 08/21/2014)
MOTIONS REFERRED: 48 MOTION to Compel Production by Third Party Defendant, Alabama Department of Human Resources Referred to Judge Sonja F. Bivins. (mab) (Entered: 08/21/2014)
49 Order re: Plaintiff's 48 MOTION to Compel Alabama Department of Human Resources ("DHR") to properly respond to Plaintiff's first production request. DHR is directed to file a response by 8/29/2014. Signed by Magistrate Judge Sonja F. Bivins on 8/22/2014. (mab) (Entered: 08/22/2014)
50 Joint Position Regarding Settlement filed by Alabama Disabilities Advocacy Program. (Mixson, Andrea) (Entered: 08/28/2014)

Case: 2:13-cv-519 As of: 07/06/2017 09:40 AM CDT 6 of 9

08/29/2014 08/29/2014
08/29/2014 09/02/2014 09/02/2014
09/03/2014 09/04/2014 09/04/2014 09/15/2014 09/15/2014 09/15/2014 09/16/2014 09/18/2014 09/18/2014

51 Document endorsed NOTED by Magistrate Judge Sonja F. Bivins: Position Regarding Settlement 50 filed by Alabama Disabilities Advocacy Program. (Bivins, Sonja) (Entered: 08/29/2014)
52 RESPONSE in Opposition re 48 MOTION to Compel Production by Third Party Defendant, Alabama Department of Human Resources filed by Alabama Department of Human Resources (DHR). (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8) (Brooks, Felicia) (Entered: 08/29/2014)
53 MOTION to Compel Discovery Against Defendant SafetyNet YouthCare, Inc. by Alabama Disabilities Advocacy Program. (Attachments: # 1 Exhibit A) (Mixson, Andrea) (Entered: 08/29/2014)
MOTIONS REFERRED: 53 MOTION to Compel Production of Documents Against SafetyNet YouthCare, Inc. referred to Judge Sonja F. Bivins. (tot) (Entered: 09/02/2014)
54 Order re: 53 MOTION to Compel Discovery Against Defendant SafetyNet YouthCare, Inc. filed by Alabama Disabilities Advocacy Program; Defendant Safetynet Youth Care, Inc. is directed to file a response by September 9, 2014. (Responses due by 9/9/2014). Signed by Magistrate Judge Sonja F. Bivins on 9/2/2014. (mjn) (Entered: 09/02/2014)
55 MOTION to Withdraw 53 MOTION to Compel Discovery Against Defendant SafetyNet YouthCare, Inc. by Alabama Disabilities Advocacy Program. (Mixson, Andrea) (Entered: 09/03/2014)
MOTIONS REFERRED: 55 MOTION to Withdraw 53 MOTION to Compel Discovery Against Defendant SafetyNet YouthCare, Inc. referred to Judge Sonja F. Bivins. (tot) (Entered: 09/04/2014)
56 ENDORSED ORDER granting [Doc. 55] Plaintiff's Motion to Withdraw its Motion to Compel. Signed by Magistrate Judge Sonja F. Bivins on 9/4/2014. (kpt) (Entered: 09/04/2014)
57 MOTION for Leave to File Excess Pages by Alabama Department of Human Resources (DHR). (Brooks, Felicia) (Entered: 09/15/2014)
58 NOTICE of Hearing: Telephone Conference set for 9/18/2014 11:00 AM in US Courthouse, Courtroom 1A, 113 St. Joseph Street, Mobile, AL 36602 before Magistrate Judge Sonja F. Bivins. Counsel will be notified by separate e−mail the call in number and pass code to access the conference. (mjn) (Entered: 09/15/2014)
MOTIONS REFERRED: 57 MOTION for Page Limit Extension for Brief in support of motion for summary judgment; Referred to Judge Callie V. S. Granade. (mab) (Entered: 09/15/2014)
59 ENDORSED ORDER, GRANTING 57 DHR's Motion For Page Limit Extension for Brief. DHR's brief in support of its motion for summary judgment shall not exceed fifty (50) pages. Signed by Judge Callie V. S. Granade on 9/16/2014. (mab) (Entered: 09/16/2014)
Minute Entry for proceedings held before Magistrate Judge Sonja F. Bivins: Telephone Conference held on 9/18/2014. Counsel participating by telephone: David Slawkowski, Nancy Anderson, Andrea Mixson, Stewart McCloud, and Felicia Brooks; FTR Digital Audio Recording. (mjn) (Entered: 09/18/2014)
61 ENDORSED ORDER granting in part and denying in part Plaintiff's Motion to Compel 48 . For the reasons stated on the record during the discovery conference conducted on September 18, 2014, Plaintiffs Motion to Compel is granted in part, and denied in part. Within ten (10) days, Third Party Defendant, the Alabama Department of Human Resources, is to review the MAP reports for children placed in SafetyNets Moderate Program between 2012 and 2014, and provide a verified statement listing the diagnoses provided for each child. Said verification shall not include any personal identifying information for said children. Signed by Magistrate Judge Sonja F. Bivins on 9/18/2014. (Bivins, Sonja) (Entered: 09/18/2014)

Case: 2:13-cv-519 As of: 07/06/2017 09:40 AM CDT 7 of 9

09/19/2014 09/19/2014
09/19/2014 09/19/2014 09/19/2014
09/22/2014
10/01/2014 10/01/2014 10/01/2014 10/10/2014 10/10/2014
10/10/2014 10/14/2014 10/24/2014 10/24/2014

62 MOTION for Summary Judgment by SafetyNet YouthCare, Inc.. (Attachments: # 1 Memorandum Brief in Support of Motion for Summary Judgment, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G) (Thompson, Martha) (Entered: 09/19/2014)
63 MOTION for Summary Judgment by Alabama Disabilities Advocacy Program. (Attachments: # 1 Supplement Certificate of Service, # 2 Supplement Memorandum, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Text of Proposed Order, # 10 Exhibit) (Mixson, Andrea) (Entered: 09/19/2014)
64 MOTION for Summary Judgment by Alabama Department of Human Resources (DHR). (Attachments: # 1 Text of Proposed Order) (Brooks, Felicia) (Entered: 09/19/2014)
65 Brief filed by Alabama Department of Human Resources (DHR) filed by Alabama Department of Human Resources (DHR). (Brooks, Felicia) (Entered: 09/19/2014)
66 Evidentiary Material filed by Alabama Department of Human Resources (DHR) re: 64 MOTION for Summary Judgment . (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16A, # 17 Exhibit 16B, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19) (Brooks, Felicia) (Entered: 09/19/2014)
67 Order re MOTIONs for Summary Judgment (Docs. 62 , 63 , &64 ), setting response time as follows: Responses to S/J due by 10/10/2014. Replies to Responses to S/J due by 10/24/2014. Motions to be taken under submission on 10/27/2014. Signed by Judge Callie V. S. Granade on 9/22/2014. (mab) (Entered: 09/22/2014)
68 MOTION to Supplement Motion for Summary Judgment by Alabama Disabilities Advocacy Program. (Attachments: # 1 Supplement Pl's. Supplemental Memo in Support of MSJ, # 2 Exhibit Pl's Ex. H) (Mixson, Andrea) (Entered: 10/01/2014)
69 ENDORSED ORDER, GRANTING 68 Plaintiff ADAP's Motion to Supplement its Motion for Summary Judgment. Signed by Judge Callie V. S. Granade on 10/1/2014. (mab) (Entered: 10/01/2014)
70 Supplement to Memorandum in Support of Its 63 MOTION for Summary Judgment, filed by Alabama Disabilities Advocacy Program. (Attachment: # 1 Exhibit H − Affidavit of Elizabeth "Betsy" M. King) (mab) (Entered: 10/02/2014)
71 RESPONSE to 64 MOTION for Summary Judgment , 63 MOTION for Summary Judgment filed by SafetyNet YouthCare, Inc.. (Thompson, Martha) (Entered: 10/10/2014)
72 Memorandum in Opposition re 63 MOTION for Summary Judgment , 70 Memorandum in Support filed by Alabama Department of Human Resources (DHR). (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Brooks, Felicia) (Attachment 3 replaced on 10/16/2014) (mab). (Entered: 10/10/2014)
73 Memorandum in Opposition re 62 MOTION for Summary Judgment , 65 Brief filed by Alabama Disabilities Advocacy Program. (Attachments: # 1 Appendix A, # 2 Exhibit Doc. 63−5 (Ex. D), # 3 Exhibit Doc. 63−6 (Ex. E), # 4 Exhibit Doc 68−2 (Ex. H)) (Mixson, Andrea) (Entered: 10/10/2014)
74 Department of Justice Statement of Interest filed by UNITED STATES OF AMERICA (Wiseman, Holly) (Entered: 10/14/2014)
75 RESPONSE to 73 Memorandum in Opposition, filed by SafetyNet YouthCare, Inc.. (Thompson, Martha) (Entered: 10/24/2014)
REFERRAL OF 62 MOTION for Summary Judgment, 73 Memorandum in Opposition, and 75 Reply to Judge Callie V. S. Granade. (mab) (Entered: 10/24/2014)

Case: 2:13-cv-519 As of: 07/06/2017 09:40 AM CDT 8 of 9

10/24/2014 10/24/2014 10/24/2014 11/03/2014 11/03/2014 12/12/2014
12/15/2014
12/29/2014 12/30/2014 01/13/2015 01/13/2015 01/13/2015 01/20/2015 01/21/2015

REFERRAL OF 74 Department of Justice Statement of Interest to Judge Granade. (mab) (Entered: 10/24/2014)
76 REPLY Brief filed by ThirdParty Defendant Alabama Department of Human Resources (DHR) re: 71 Response by SafetyNet to Motion for SJ filed by Alabama Department of Human Resources (DHR). (Brooks, Felicia) (Entered: 10/24/2014)
77 REPLY Brief filed by ThirdParty Defendant Alabama Department of Human Resources (DHR) re: 74 Brief, 71 Response, 73 Memorandum in Opposition, filed by Alabama Department of Human Resources (DHR). (Attachments: # 1 Text of Proposed Order) (Brooks, Felicia) (Entered: 10/24/2014)
REFERRAL OF 63 MOTION for Summary Judgment; 73 Memorandum in Opposition; 75 Reply by SafetyNet YouthCare, Inc.; and 76 Reply Brief by Alabama Department of Human Resources to Judge Callie V. S. Granade. (mab) (Entered: 11/03/2014)
REFERRAL OF: 64 MOTION for Summary Judgment; 71 Response; and 76 Reply Brief to Judge Callie V. S. Granade. (mab) (Entered: 11/03/2014)
78 ORDER, DENYING 62 Motion for Summary Judgment filed by SafetyNet Youthcare, Inc.; GRANTING 63 Motion for Summary Judgment filed by Alabama Disabilities Advocacy Program; and DENYING 64 Motion for Summary Judgment filed by Alabama Department of Human Resources. ADAP and SafetyNet are required to meet and to develop a protocol consistent with this order for presentation to the Court no later than January 30, 2015. Declaratory judgment is entered against SafetyNet, and SafetyNet is permanently enjoined from denying ADAP reasonable access to its intensive and moderate programs at the Minter, Alabama facility. A separate judgment will be entered. The Court retains jurisdiction to enforce the injunction. Signed by Judge Callie V. S. Granade on 12/12/2014. (mab) (Entered: 12/12/2014)
79 DECLARATORY JUDGMENT, entered in favor of Alabama Disabilities Advocacy Program, and against SafetyNet YouthCare, Inc. SafetyNet Youthcare, Inc. is PERMANENTLY ENJOINED from denying Alabama Disabilities Advocacy Program reasonable access to its intensive and moderate programs located at the Minter, Alabama facility. Signed by Judge Callie V. S. Granade on 12/15/2014. (mab) (Entered: 12/15/2014)
80 MOTION to Reconsider Court's 78 Order Regarding Attorney's Fees and Costs, and MOTION Requesting Reasonable Attorney's Fees and Costs, filed by Alabama Disabilities Advocacy Program. (Attachments: # 1 Memorandum, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C) (Mixson, Andrea). Added MOTION for Attorney Fees on 1/3/2015 (mab). (Entered: 12/29/2014)
81 Order re: 80 MOTION for Attorney Fees filed by Alabama Disabilities Advocacy Program. Any party opposing the motion must file response by 1/13/2015. Replies due by 1/20/2015. Motion to be taken under submission on 1/21/2015. Signed by Judge Callie V. S. Granade on 12/30/2014. (tot) (Entered: 12/30/2014)
82 RESPONSE in Opposition to ADAP's 80 MOTION to Reconsider Court's 78 Order Denying ADAP's Request for Attorneys' Fees and Costs, filed by SafetyNet YouthCare, Inc. (Thompson, Martha) (Entered: 01/13/2015)
83 RESPONSE in Opposition to ADAP's 80 MOTION to Reconsider Court's 78 Order Regarding Attorney's Fees, filed by Alabama Department of Human Resources (DHR). (Brooks, Felicia) (Entered: 01/13/2015)
REFERRAL OF 82 &83 RESPONSES in Opposition to ADAP's 80 MOTION to Reconsider Court's 78 Order Denying ADAP's Request for Attorneys' Fees and Costs to Judge Granade. (mab) (Entered: 01/13/2015)
84 REPLY Brief filed by Plaintiff Alabama Disabilities Advocacy Program re: 82 Response in Opposition to Motion filed by Alabama Disabilities Advocacy Program. (Attachments: # 1 Exhibit) (Mixson, Andrea) (Entered: 01/20/2015)
85 MOTION for Leave to File Sur−Reply to Correct Misstatements of Law &Fact by SafetyNet YouthCare, Inc.. (Thompson, Martha) (Entered: 01/21/2015)

Case: 2:13-cv-519 As of: 07/06/2017 09:40 AM CDT 9 of 9

01/21/2015 01/22/2015 01/26/2015 01/26/2015 01/30/2015 02/11/2015
02/18/2015

MOTIONS REFERRED: 85 MOTION for Leave to File Sur−Reply to Correct Misstatements of Law &Fact Referred to Judge Callie V. S. Granade. (mab) (Entered: 01/21/2015)
86 ENDORSED ORDER granting 85 Motion for Leave to File Sur−Reply to Correct Misstatements of Law and Fact. No further filings will be permitted. Signed by Judge Callie V. S. Granade on 1/22/2015. (tot) (Entered: 01/22/2015)
87 Sur−Reply in Opposition to ADAP's 80 Motion to Reconsider Court's Order Denying ADAP's Request for Attorneys' Fees, filed by SafetyNet YouthCare, Inc. (Thompson, Martha) (Entered: 01/26/2015)
REFERRAL OF 87 Sur−Reply in Opposition to ADAP's 80 Motion to Reconsider Court's Order Denying ADAP's Request for Attorneys' Fees to Judge Granade. (mab) (Entered: 01/26/2015)
88 NOTICE by Alabama Disabilities Advocacy Program re 78 Order on Motion for Summary Judgment,,,,,,,,,,, ADAP Access Procedures for SafetyNet Facilities (Attachments: # 1 Exhibit Access Protocol) (Mixson, Andrea) (Entered: 01/30/2015)
89 ORDER, GRANTING IN PART and DENYING IN PART, ADAP's 80 Motion for Reconsideration as set out in Order. Additionally, to ensure ongoing compliance to DHR and facilities situated similarly to SafetyNet, the Court ATTACHES to this Order EXHIBIT A. (Doc. 88, Exh. 1). Signed by Judge Callie V. S. Granade on 2/10/2015. (Attachment: # 1 Exhibit A − Access Protocol) (mab) (Entered: 02/11/2015)
90 NOTICE by SafetyNet YouthCare, Inc. re 89 Order on Motion for Reconsideration, Order on Motion for Attorney Fees,, (Compliance) (Thompson, Martha) (Entered: 02/18/2015)

 
 2014 WL 7146444 Only the Westlaw citation is currently available.
United States District Court, S.D. Alabama,
Northern Division.
ALABAMA DISABILITIES ADVOCACY PROGRAM, Plaintiff, v.
SAFETYNET YOUTHCARE, INC., Defendant/Third–Party Plaintiff, Alabama Department of Human Resources,
Third–Party Defendant.
Civil Action No. 13–0519–CG–B. |
Signed Dec. 15, 2014.
Attorneys and Law Firms
Andrea Jane Mixson, Alabama Disabilities Advocacy Program, David John Slawkowski, Nancy Ellen Anderson, William Van der Pol, Jr., Tuscaloosa, AL, for Plaintiff.
Martha Leach Thompson, Stewart D. McCloud, Huie, Fernambucq & Stewart, LLP, Birmingham, AL, for Defendant/Third–Party Plaintiff.

DECLARATORY JUDGMENT
CALLIE V.S. GRANADE, District Judge.
*1 In accordance with the Order entered on December 12, 2014, it is
ORDERED, ADJUDGED, and DECREED that DECLARATORY JUDGMENT is entered against SafetyNet Youthcare, Inc., and SafetyNet Youthcare, Inc. is hereby PERMANENTLY ENJOINED from denying Alabama Disabilities Advocacy Program reasonable access to its intensive and moderate programs located at the Minter, Alabama facility.
DONE and ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 7146444

1

 
 2015 WL 566946 Only the Westlaw citation is currently available.
United States District Court, S.D. Alabama,
Northern Division.
ALABAMA DISABILITIES ADVOCACY PROGRAM, Plaintiff, v.
SAFETYNET YOUTHCARE, INC., Defendant and Third–Party Plaintiff, v.
Alabama Department of Human Resources, Third–Party Defendant.
Civil Action No. 13–0519–CG–B. |
Signed Feb. 10, 2015. |
Filed Feb. 11, 2015.
Attorneys and Law Firms
Andrea Jane Mixson, Alabama Disabilities Advocacy Program, David John Slawkowski, Nancy Ellen Anderson, William Van Der Pol, Jr., Tuscaloosa, AL, for Plaintiff.
Martha Leach Thompson, Stewart D. McCloud, Huie, Fernambucq & Stewart, LLP, Birmingham, AL, for Defendant and Third–Party Plaintiff.
Felicia Marshea Brooks, State of Alabama, Department of Human Resources, Montgomery, AL, for Third–Party Defendant.
ORDER
CALLIE V.S. GRANADE, District Judge.
*1 This matter is before the Court on Alabama Disabilities Advocacy Program’s (“ADAP”) motion to reconsider the order denying attorneys’ fees and costs, and requesting reasonable attorneys’ fees and costs (Doc. 80), SafetyNet Youthcare Inc. (“SafetyNet”) and Alabama Department of Human Resources (“DHR”) responses to the motion (Docs.82, 83), ADAP’s reply (Doc. 84), and SafetyNet’s surreply (Doc. 87). For the reasons set forth herein, the motion is due to be GRANTED IN PART

and DENIED IN PART.
BACKGROUND
Each party in this action filed a motion for summary judgment, asking the Court to determine whether ADAP had federal authorization to access the moderate program for male youth at the SafetyNet facility. (Docs.62, 63, 64). The Court granted the motion for summary judgment filed by ADAP, finding federal law grants ADAP the right to access the program, and denied the motions filed by SafetyNet and DHR. (Doc. 78, p. 28). In the order granting summary judgment for ADAP, the Court denied its request for attorneys’ fees and costs. (Doc. 78, pp. 28– 29). The Court denied the request because ADAP did not raise an applicable exception to the American Rule, which states litigants are generally expected to bear their own attorneys’ fees and costs. (Doc. 78, p. 29).
In its motion for reconsideration, ADAP raises several arguments to support an award of attorneys’ fees and costs. First, ADAP relies on Federal Rule of Civil Procedure 54(d)(1) to show it is entitled to costs. (Doc. 80, p. 2). Second, ADAP asserts it acted as a private attorney general through this action to ensure that youth receiving treatment in the moderate program are informed of their right to be free from abuse and neglect and to monitor conditions in that program. (Doc. 80, p. 2). Third, ADAP argues SafetyNet acted in bad faith, and bad faith is an established exception to the American Rule. (Doc. 80, p. 2). Finally, ADAP contends the Declaratory Judgment Act and principles of equity entitle it to attorneys’ fees and costs in this matter. (Doc. 80, p. 2). ADAP then proceeds to document and explain its requested fees and costs. (Doc. 80, Exh. 1, pp. 7–14).
DHR responded to ADAP’s motion, noting that ADAP seeks only attorneys’ fees and costs from SafetyNet. (Doc. 83, p. 2). DHR also “adopts the arguments by SafetyNet in its objection (Doc. 82) to ADAP’s Motion.” (Doc. 83, p. 2). In its response, SafetyNet argues ADAP is not entitled to fees under a private attorney general framework (Doc. 82, p. 2), it did not act in bad faith (Doc. 82, p. 3), and ADAP’s request for attorneys’ fees is excessive and unreasonable. (Doc. 82, p. 7). These arguments are addressed below.
RECONSIDERATION STANDARD
1

“In the interests of finality and conservation of scarce judicial resources, reconsideration of an order is an extraordinary remedy and is employed sparingly.” Gougler v. Sirius Products, Inc., 370 F.Supp.2d 1185, 1189 (S.D.Ala.2005) (citations omitted); Spellman v. Haley, 2004 WL 866837, *2 (M.D.Ala. Feb. 22, 2002) (“litigants should not use motions to reconsider as a kneejerk reaction to an adverse ruling”) (citations omitted). The grant or denial of a motion to reconsider is left to the discretion of the trial court. Chapman v. AI Transport, 229 F.3d 1012, 1023–24 (11th Cir.2000) (en banc). Such a motion may not be used as a vehicle to inject new arguments into the underlying motion, or to submit evidence previously available but not properly presented on the underlying motion. Mays v. U.S. Postal Service, 122 F.3d 43, 46 (11th Cir.1997). Nor may it be used to “relitigate old matters.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir.2009) (internal quotes omitted). Instead, “[a] motion to reconsider is only available when a party presents the court with evidence of an intervening change in controlling law, the availability of new evidence, or the need to correct clear error or manifest injustice.” Gibson v. Mattox, 511 F.Supp.2d 1182, 1185 (S.D.Ala.2007) (citation omitted).
ANALYSIS
*2 ADAP does not argue that an intervening change in controlling law or the availability of new evidence supports its motion for reconsideration. Instead, ADAP implies the denial of attorneys’ fees and costs is a clear error or manifest injustice. (Doc. 80, Exh. 1, pp. 3–6).
A. COSTS The Court first reconsiders an award of costs pursuant to Federal Rule of Civil Procedure 54(d)(1). Rule 54(d)(1) is straightforward. It provides, in relevant part: “Unless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” Fed.R.Civ.P. 54(d)(1). The word “should” makes clear that the decision whether to award costs ultimately lies within the sound discretion of the district court. Marx v. Gen. Revenue Corp., 133 S.Ct. 1166, 1172 (2013).1
Because Rule 54(d)(1) encourages awarding costs to the prevailing party (costs “should be allowed”), and ADAP is the prevailing party in this case, the Court reconsiders its earlier ruling and awards ADAP its reasonable costs. Although the decision to award costs is discretionary with the Court, it may only tax those items specifically

enumerated in 28 U.S.C. § 1920, absent alternative statutory authority. EEOC v. W & O, Inc., 213 F.3d 600, 620 (11 Cir.2000). The particular items that may be taxed as costs are set out in 28 U.S.C. § 1920 as follows: (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
Here, ADAP seeks an award of costs for its depositions and filing fees. (Doc. 80, Exh. 1, pp. 12–13). For deposition costs, ADAP seeks $3,286.95 (Doc. 80, Exh. 1, p. 13), which includes $2,821.95 for deposition transcripts as invoiced by Freedom Court Reporting. (Doc. 84, p. 9, Exh. 1). Taxation of deposition expenses is authorized by 28 U.S.C. § 1920(2). Id. However, “[w]here the deposition costs were merely incurred for convenience, to aid in thorough preparation, or for purposes of investigation only, the costs are not recoverable.” Id. (citation omitted). Whether the costs for a deposition are taxable depends on “whether the deposition was wholly or partially necessarily obtained for use in the case.” Id. at 621 (citation omitted).
The Court finds the depositions were not necessary in this case; therefore the costs are not recoverable. A central issue involved whether SafetyNet’s moderate program treated youth with disabilities and behavioral health care needs (Doc. 80, Exh. 1, p. 13), which ADAP proved through affidavits, interrogatories, and other means. Indeed, ADAP did not attach any deposition testimony to its motion for summary judgment, its supplement to that motion, or its response. (Doc. 63, Exhs.1–10, Doc. 70, Exh. 1, Doc. 73, Exhs.1–4). Nor did ADAP rely on any deposition testimony in its motion. This shows the depositions were merely for purposes of investigation and thorough preparation. Accordingly, ADAP’s request for deposition costs is DENIED.
*3 ADAP also seeks $350 in filing fees. (Doc. 80, Exh. 1, p. 13, Doc. 84, p. 9). Filing fees are clearly allowed under 28 U.S.C. § 1920. ADAP’s request for filing fees is GRANTED.
ADAP also seeks travel expenses pursuant to 42 U.S.C. § 1988.2 (Doc. 80, Exh. 1, p. 12). Notably, 42 U.S.C. § 1988 provides for the discretionary awarding of attorneys fees in certain federal cases, which may include reasonable
2

travel expenses. Cullens v. Georgia Dep’t of Transp., 29 F.3d 1489, 1494 (11th Cir.1994) (citing Dowdell v. City of Apopka, 698 F.2d 1181, 1192 (11th Cir.1983)). ADAP did not bring this action under Section 1988, or any of the statutes cited within that provision. ADAP filed its complaint seeking declaratory judgment and injunctive relief to enforce ADAP’s authority pursuant to the Protection and Advocacy for Mentally Ill Individuals Act (“PAMII”), 42 U.S.C. §§ 10801–10851 (2012); the Protection and Advocacy for Individuals with Developmental Disabilities statutes (“PADD”), 42 U.S.C. §§ 15041–15045 (2012); and the Protection and Advocacy of Individual Rights statute (“PAIR”), 29 U.S.C. § 794e (2012). (Doc. 1, pp. 2, 10–12). Accordingly, ADAP’s request for travel expenses is DENIED.
B. ACTING AS PRIVATE ATTORNEY GENERAL FOR ATTORNEYS’ FEES ADAP argues it acted as a private attorney general vindicating a policy Congress considers a high priority. (Doc. 80, Exh. 1, p. 2). ADAP relies on two civil rights cases, and dicta from a concurring opinion in a Seventh Circuit case to support its argument. (Doc. 80, Exh. 1, pp. 2–3). The statutes and regulations underlying this case, however, do not support awarding attorneys’ fees under a private attorney general theory.
In drafting and enacting legislation, Congress has the power and judgment to pick and choose among its statutes and to allow attorneys’ fees under some, but not others. Without legislative guidance, it is difficult for courts to consider some statutes important and others unimportant and to allow attorneys’ fees only in connection with the former. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 263–64 (1975). Certainly the protection and advocacy of vulnerable populations is important, which Congress recognized when it funded agencies in each state to ensure the rights of such individuals. Nevertheless, the Supreme Court makes clear:
Courts are not free to fashion drastic new rules with respect to the allowance of attorneys’ fees to the prevailing party in federal litigation or to pick and choose among plaintiffs and the statutes under which they sue and to award fees in some cases but not in others, depending upon the courts’ assessment of the importance of the public policies involved in particular cases. Nor should the

federal courts purport to adopt on their own initiative a rule awarding attorneys’ fees based on the private-attorney-general approach when such judicial rule will operate only against private parties and not against the Government. Id. at 269.
*4 Heeding this advice, the Court does not find that an award of attorneys’ fees under a private attorney general approach proper in this case.
C. BAD FAITH EXCEPTION ADAP argues the Declaratory Judgment Act (“DJA”) supports awarding it attorneys’ fees as “further necessary and proper relief .” (Doc. 80, Exh. 1, p. 2). Section 2202 of the Federal DJA provides that “[f]urther necessary or proper relief based on a declaratory judgment or decree may be granted ... against any adverse party whose rights have been determined by such judgment.” Section 2202 thus accords a district court some measure of flexibility to enter subsequent orders to effectuate the intent of an earlier § 2201(a) judgment. See, e.g., Burford Equip. Co., Inc. v. Centennial Ins. Co., 857 F.Supp. 1499, 1502 (M.D.Ala.1994). Further, the provision “has been interpreted as providing for ‘supplemental’ relief which may be granted in a proceeding [even] subsequent to the original [declaratory judgment].” Horn & Hardart Co. v. Nat’l R.R. Passenger Corp., 659 F.Supp. 1258, 1261 (D.D.C.1987), aff’d 843 F.2d 546 (D.C.Cir.), cert. denied, 488 U.S. 849 (1988).
On its face, the DJA does not mention fee shifting. Federal courts follow the American Rule in the absence of fee-shifting congressional legislation. See Alyeska Pipeline Serv. Co., 421 U .S. at 247. However, an award of attorneys’ fees under 28 U.S.C. § 2202 is permitted pursuant to a court’s equitable powers in “cases of bad faith, vexation, wantonness, or oppression relating to the filing or maintenance of the action.” Mercantile Nat’l Bank v. Bradford Trust Co., 850 F.2d 215, 218 (5th Cir.1988); see also Kreager v. Solomon & Flanagan, P.A., 775 F.2d 1541, 1543 (11th Cir.1985) (discussing bad faith exception for acts preceding and during litigation). A finding of bad faith is warranted where an attorney knowingly or recklessly raises a frivolous argument. Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir.1998). A party also demonstrates bad faith by delaying or disrupting the litigation or hampering enforcement of a court order. Id. In assessing whether an award is proper under the bad faith standard, “the inquiry will focus primarily on the conduct and motive of a party, rather than on the validity of the case.” Rothenberg v.
3

Security Mgmt Co., Inc., 736 F.2d 1470, 1472 (11th Cir.1984).
When a court awards attorneys’ fees based on a finding of bad faith, the “underlying rationale of fee shifting is, of course, punitive.” Chambers v. NASCO, Inc., 501 U.S. 32, 53 (1991). Thus the court must exercise its inherent powers to award sanctions with restraint and discretion. Barnes, 158 F.3d at 1215. A primary aspect of that discretion is the ability to fashion an appropriate sanction for conduct that abuses the judicial process. Chambers, 501 U.S. at 44–45 (internal citation omitted).
The record does not show SafetyNet acted in bad faith during this litigation, or that it raised frivolous defenses knowingly and recklessly. SafetyNet recognized it was opening itself up to litigation, but that does not necessarily mean it proceeded in bad faith. (Doc. 80, Exh. 1, p. 4). The record instead shows SafetyNet vigorously and timely defended itself alongside DHR. (Doc. 87, pp. 2–3). DHR raised a novel, though misguided argument, which SafetyNet followed. Actors’ Equity Ass’n v. Am. Dinner Theatre Inst., 802 F.2d 1038, 1045 (8th Cir.1986) (novel arguments should not be sanctioned absent a showing of bad faith). DHR argued primarily “[t]his case involves a fundamental difference in the concept and purpose of moderate residential services between ADAP and [DHR]. [DHR] maintains that the moderate services program is not accessible to ADAP.” (Doc. 65, p. 4). SafetyNet argued it was caught between its state licensing authority and ADAP. Thus it could either comply with ADAP and violate the orders of DHR, or follow the advice of DHR and violate federal law. (Doc. 62, Exh. 1, p. 7). SafetyNet, DHR, and ADAP had an unsuccessful and seemingly contentious settlement conference. (Doc. 80, Exh. 1, p. 6). But these defenses and actions do not amount to bad faith.
*5 ADAP also unfortunately sent SafetyNet mixed messages when it focused primarily on the intensive program at a training session in April 2010, and then changed its stance later to include the moderate program. (Doc. 66, Exh. 6, pp. 6–8, 84–134). Although the Court clearly agrees ADAP can monitor the moderate program, the record shows there was some confusion among all of the parties regarding initial oversight of the moderate program. SafetyNet complied with ADAP when ADAP sought access to and monitored the intensive program. SafetyNet did not violate or ignore any court orders. Following the summary judgment stage, SafetyNet and ADAP timely submitted their access protocol as required by this Court. (Docs.78, 88). In sum, the Court does not find SafetyNet acted in bad faith.
For the foregoing reasons, the Court also finds principles

of equity do not favor awarding ADAP its attorneys’ fees. ADAP’s request for attorneys’ fees is therefore DENIED. Because the Court declines to award attorneys’ fees, there is no need to determine which fees are reasonable or excessive.
ACCESS PROTOCOL
ADAP states that it is “concerned that when it might seek to access another one of DHR’s contract facility types, DHR may choose, instead, to litigate the access questions at play in this litigation, thus further draining ADAP of valuable resources to fulfill its Congressional mandate.” (Doc. 80, Exh. 1, p. 6). Although this may be a concern going forward, it is not a concern that requires a punitive award of attorneys’ fees against SafetyNet in this case. ADAP now has an Eleventh Circuit ruling, Ala. Disabilities Advocacy Program v. J.S. Tarwater Developmental Ctr., 97 F.3d 492 (11th Cir.1996), and a lengthy District Court order on its side, Ala. Disabilities Advocacy Program v. SafetyNet Youthcare, Inc., No. CIV.A. 13–0519–CG–B, 2014 WL 7012710, (S.D.Ala. Dec. 12, 2014). Should DHR unlawfully block ADAP access again, there is now precedent to support an award of attorneys’ fees or other appropriate sanctions. See Fairley v. Patterson, 493 F .2d 598, 605 (5th Cir.1974) ( “When a suit alleging violation of clearly established law in a particular area is filed, and the defendants, in the face of evident violation of this law, persist in forcing the plaintiffs to expend efforts in preparing and/or conducting a trial, then attorneys’ fees may appropriately be awarded.”) (citations omitted). See also Wrenn v. Gould, 808 F.2d 493, 505 (6th Cir.1987) (a litigant’s prior record in court is relevant in determining whether bad faith warrants awarding attorneys’ fees).
Additionally, to ensure ongoing compliance and to provide notice to DHR and facilities situated similarly to SafetyNet, the Court ATTACHES to this Order EXHIBIT A. (Doc. 88, Exh. 1). Exhibit A is the access protocol developed by SafetyNet and ADAP, which complies with this Court’s previous order describing the broad remedial framework Congress established for the protection and advocacy system. (Doc. 78). As a result, ADAP and DHR may use Exhibit A as an example of a court-approved protection and advocacy access agreement.
CONCLUSION
4

*6 After careful consideration, ADAP’s motion for reconsideration (Doc. 80) is GRANTED IN PART and DENIED IN PART. The Court concludes its denial of reasonable costs to ADAP, the prevailing party, was error. ADAP is GRANTED its filing fees for this litigation. The Court also concludes ADAP is not entitled to attorneys’ fees under the DJA, a private attorney general theory, or the bad faith exception to the American Rule. Accordingly, the Court finds its previous denial of attorneys’ fees did not amount to clear error or manifest injustice, and ADAP’s request for such fees is DENIED. Each party must bear its own fees related to the motion
Footnotes

for reconsideration, responses, and development of the access protocol. DONE and ORDERED.
All Citations Not Reported in F.Supp.3d, 2015 WL 566946

1

Though not an issue here, a statute may nevertheless limit a court’s discretion in several ways, and it need not expressly state

that it is displacing Rule 54(d)(1) to do so. For instance, a statute providing that “plaintiffs shall not be liable for costs” is contrary

to Rule 54(d)(1) because it precludes a court from awarding costs to prevailing defendants. Id. 133 S.Ct. at 1173.

2

42 U.S.C.A. § 1988 provides:

In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of

Public Law 92–318 [20 U.S.C.A. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C.A. § 2000bb et

seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S .C.A. § 2000cc et seq.], title VI of the Civil

Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the

prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action

brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held

liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.

5

 
 Case 2:13-cv-00519-CG-B Document 8 Filed 12/02/13 Page 1 of 7

IN THE UNITED STATES DISTICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA, NORTHERN DIVISION

ALABAMA DISABILITIES ADVOCACY )

PROGRAM,

)

)

Plaintiff,

)

v.

)

)

SAFETYNET YOUTHCARE, INC.,

)

)

Defendant.

)

SAFETYNET YOUTHCARE, INC.,

)

)

Third-Party Plaintiff,

)

v.

)

)

ALABAMA DEPARTMENT OF HUMAN )

RESOURCE

)

)

Third-Party Defendant.

)

Civil Action No.
cv 2013-519
Civil Action No.
cv 2013-519

THIRD-PARTY CLAIM
Defendant, SafetyNet Youthcare, Inc. ("SafetyNet"), pursuant to Rule 14(a) of the Federal Rules of Civil Procedure, asserts the following third-party claim against Alabama Department of Human Resources ("DHR"), in the above action, as follows:
FACTUAL INFORMATION
1. At all material times, SafetyNet was and is a domestic nonprofit corporation, with its principal place of business located in Dallas County, Alabama.

2. Third-party Defendant, Alabama Department of Human Resources, was created in 1935 to administer to the assistant programs that are part of the Social Security Act, with its mission to provide for the protection, well-being, and selfsufficiency of children and adults. Alabama Code Title 38, 26, 42.

3. DHR is the licensing authority for SafetyNet.

4. Defendant brings this action pursuant to Rule 22 of the Federal Rules of Civil Procedure which permits a Defendant to file an interpleader action where there is

{01852124.1}

Case 2:13-cv-00519-CG-B Document 8 Filed 12/02/13 Page 2 of 7
more than one person with claims that may expose the Defendant to double or multiple liabilities.
JURISDICTION AND VENUE
5. Jurisdiction is proper in this court pursuant to 28 U.S.C. § 1331 as to the Federal statutory claims.
6. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b). Defendant DHR is headquartered in Montgomery, Alabama, and has offices and employees throughout all sixty-seven (67) of Alabama's counties.
STATEMENT OF FACTS
7. As outlined in ADAP's Complaint of October 25, 2013, SafetyNet has repeatedly referred ADAP to the DHR Legal Division to address ADAP's access to Safety Net.
8. Furthermore, on October 10, 2013, DHR wrote ADAP stating that ADAP does not have sufficient legal basis for the relief sought. (See correspondence of October 10,2013, from Alabama Department of Human Resources to ADAP, attached as Exhibit "1 ").
9. On October 21, 2013, counsel for SafetyNet and DHR met with ADAP. ADAP, at that time, requested access to monitor Defendant's Moderate Program; however, on the advice of DHR counsel, and its reading of the federal statutes, SafetyNet denied ADAP access to monitor SafetyNet's Moderate Program.
CAUSES OF ACTION- INDEMNIFICATION 10. SafetyNet adopt and incorporates by reference as if fully set forth herein Paragraphs 1 through 9 of its Third-Party Claim. 11. SafetyNet denies that it has violated and continues to violate ADAP's rights to exercise access to all residents of SafetyNet's facilities. 12. If SafetyNet was found to be in violation of ADAP's rights, which SafetyNet vehemently denies, then SafetyNet alleges that said violations were not
{01852124.1}

Case 2:13-cv-00519-CG-B Document 8 Filed 12/02/13 Page 3 of 7
proximately caused by any fault, negligence, or want of due care on the part of SafetyNet, but rather was caused by the fault, negligence, and want of due care on the part of DHR.
13. Additionally, if SafetyNet was held to be in violation of ADAP's rights or for any part or all of the prayer for relief alleged by ADAP, which violation is vehemently denied, then SafetyNet alleges that it is without fault and that its violation would be vicarious, derivative, constructive, on the part of DHR.
14. DHR is the licensing authority for SafetyNet and any decisions made by SafetyNet with regard to ADAP's access has been made at the direction of the Alabama Department of Human Resources and therefore, SafetyNet is entitled to indemnification from DHR for any recovery obtained by ADAP against SafetyNet.
WHEREFORE, SafetyNet prays that this Court will enter judgment in its favor and against Alabama Department of Human Resources for any and all judgments, damages, awards, or injunctive relief which may be rendered against SafetyNet in the ADAP case, if any, and for all costs and fees, including attorney's fees, incurred by SafetyNet in defending the claims asserted by ADAP in prosecuting this matter, and for any further relief this Court deems just and proper.
CONTRIBUTION
15. SafetyNet adopt and incorporates by reference as if fully set forth herein Paragraphs 1 through 15 of its Third-Party Claim.
16. If SafetyNet is held responsible for any and all parts of the prayer for relief sought by ADAP, which violation is vehemently denied, then SafetyNet alleges that the Alabama Department of Human Resources is a joint tortfeasor and SafetyNet may have to pay more than the proper share of any liability is found to have to ADAP.
17. SafetyNet hereby demands contribution from Alabama Department of Human Resources for any prayer for relief or obligations to ADAP in excess of SafetyNet's proper share.
WHEREFORE, SafetyNet prays that this Court will enter judgment in its favor and against Alabama Department of Human Resources for any and all judgments, damages, awards, or injunctive relief which may be rendered against SafetyNet in the ADAP case, if any, and for all costs and fees, including attorney's fees, incurred by SafetyNet in defending the claims asserted by ADAP in prosecuting this matter, and for any further relief this Court deems just and proper.
{01852124.1}

Case 2:13-cv-00519-CG-B Document 8 Filed 12/02/13 Page 4 of 7
Respectfully Submitted, Is/ Martha Leach Thompson Martha Leach Thompson Attorney for Defendant, SafetyNet Youthcare, Inc. OF COUNSEL: HUIE, FERNAMBUCQ & STEWART, LLP Three Protective Center 2801 Highway 280 South, Suite 200 Birmingham, AL 35223-2484 (205) 251-1193
CERTIFICATE OF SERVICE I hereby certify that on December 2, 2013, I have electronically filed the foregoing pleading with the Clerk of the Court which will send notification of the filing to:
Alabama Department of Human Resources P 0 Box 304000
50 Ripley Street, Suite 2122 Montgomery, AL 36130-4000
David Slawkowski Alabama Disabilities Advocacy Program
Box 870395 Tuscaloosa, AL 35487
/§/Martha Leach Thompson Of Counsel
{01852124.1}

Case 2:13-cv-00519-CG-B Document 8 Filed 12/02/13 Page 5 of 7
Exhibit ''1''

Case 2:13-cv-00519-CG-B Document 8 Filed 12/02/13 Page 6 of 7

•'
. ~·
ROBERT BENTtEV Governor

State of Alabama
Department of Ruman Resources
S. Gordon Pers(ln~ Building ~0 R!pi!!)' $tree! P.o. Bmc 304000
Montgon1ery, AlabamB 361 30•4000 (334) 242·UlO
'illt..'!J././1LHI2.tl#.m!hl!!&

Nnncy T. Buckner
CtJmmi,~.rloner

VIA Ft\S~IMILE & US MAIL
Honorable Andrea Mixson Alabama Disabilities Advocacy Program University of Alabama 500 Manha Patham West Tuscaloosa, Alabama 35487-0395
RE~ Alabama Disabilities Advocacy Progrt~m (ADAP) Requestfor Accen fb SafetyNet MtJdttah! Programs
Dear Ms. Mixson:
The Ala.bama Department of Human Resources ("OHFt) is in receipt of correspondertce.from you to Lynn Wheatley, Director of SafetyNet Youth Care, Inc. ("Safety Net") and the attach~d Complaint for Injunctive and Declaralive Relief against SafetyNet. In the Complaint, you seck access to all the Moderate Programs of SafetyNet. Additionally, you indicate the intention to file the Complaint within fourteen (14) days of the letter dated October 7, 2013.
In an effort to resolve these issues DHR, as the licensing authority for SafetyNet is willing to
implement a protocol for access to SafetyNet's moderate program. Neither OHR nor SnfetyNet are. admitting that any of tht allegations in the Cmnplaint are tn1e. DHR a.nd SafetyNet agree to access by ADAP to SafetyNet's modccrate prograa, based upon Eleventh Circuit standard for intensive programs set out in the case of Alabama Disabilities Advocacy Program v. J.S. ,Tarwater Developmental Ci'r., 97 F.3d 492 (11th Cir. 1996). ''rherefore, access to the SafetyNet Moderate Pr'?gram is· conditioned upon:
a) an incident or corrtplaint made to ADAP as to the Safe.tyNet's moderate program; or b) ~here is probable cause to believe an incident has occurred at SafetyNet's moderate
program.
Please note that in accordance with ALA. CoDE § 26-14-3 (1975), reports of child abuse. and neglec:t mttst be rnade to DHR immediately. 'rherefore, it is the expectation that ADAP, as a mandatory reporter under the statute; report to DHR any allegations of abuse or neglect. ·
DHR does !'lOt concede that ADAP ha.<; a sufficient legal basis fot·the telief sought should the complaint be filed. Moderate tacllitles are not Intensive treatment programs and are ribt

•,

Case 2:13-cv-00519-CG-B Document 8 Filed 12/02/13 Page 7 of 7
.
MLuon l..t!.tttrr
ADAP 10/10/;/()tJ
considered a pnrt of the Psychiatric Services for Individuals under the Age of 21 ("Psych. 21 "). As such, DHR Is wUlil'li to Implement this protoool in sood faith to resolve this matter as to
Safety Net.
The basic premise of the protocol is sto.ted above. However, we will submit a fonna.l drnft for your review and suagestions If you agree with the proposed protocol for SafetyNet. Please advise me within seven {7} days if you agree. DHR is interested in resolving. this tnatter
expedltfously.
I look forward to hearing from you soon about the proposed protocol.
Sincerely.
~ t.~·rPuliJtiL
Sharon E. Ficquett;,---p---
GeneraJ CoW1sel
Phone: (334) 242-9330 Fax: (334) 242~0689
Cc: Lyn Wheatley
Honorable Martha lbompson

 
 Case 2:13-cv-00519-CG-B Document 88 Filed 01/30/15 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION

ALABAMA DISABILITIES ADVOCACY PROGRAM, Plaintiff,
vs.
SAFETYNET YOUTHCARE, INC., Defendant.
SAFETYNET YOUTHCARE, INC., Third Party Plaintiff,
vs.
ALABAMA DEPARTMENT OF HUMAN RESOURCES, Third Party Defendant.

CIVIL ACTION NO. 13-0519-CG-B

NOTICE OF FILING ALABAMA DISABILTIES ADVOCACY PROGRAM (ADAP) MONITORING, VISITATION AND RECORD ACCESS PROCEDURES FOR SAFETYNET YOUTHCARE, INC. (SAFETYNET) FACILITIES
COME NOW, the Plaintiff (ADAP) and Defendant, SafetyNet and pursuant to this Court’s December 12, 2014 Order (Doc. No. 78) hereby notice and confirm that they have met and agreed to a protocol for ADAP’s access to all SafetyNet facilities, attached as Exhibit A. SafetyNet has consented to the filing of this protocol by ADAP. As the Court has not required the Third-Party Defendant, the Alabama Department of Human Resources (DHR), to participate in the protocol between ADAP and SafetyNet, DHR will receive a copy of this protocol as a party to this litigation.

1

Case 2:13-cv-00519-CG-B Document 88 Filed 01/30/15 Page 2 of 3

Respectfully Submitted,

Dated: January 30, 2015

Signature: /s/Martha L. Thompson (BY CONSENT) Martha Leach Thompson, Esq. Stewart McCloud, Esq. Attorneys for Defendant, SafetyNet Youthcare, Inc. HUIE, FERNAMBUCQ & STEWART, LLP Three Protective Center 2801 Highway 280 South, Suite 200 Birmingham, AL 35223-2484 Telephone: (205) 251-1193 COUNSEL FOR THE DEFENDANT

Signature: /s/Andrea J. Mixson Andrea J. Mixson, ASB-2155R79M David J. Slawkowski, ASB-0810D57S Attorneys for Plaintiff, Alabama Disabilities Advocacy Program Box 870395 Tuscaloosa, AL 35487 Telephone: (205) 348-4928 Facsimile: (205) 348-3909 Email: amixson@adap.ua.edu COUNSEL FOR THE PLAINTIFF

2

Case 2:13-cv-00519-CG-B Document 88 Filed 01/30/15 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that on January 30, 2015, I have served on Third-Party Defendant’s counsel below in this matter by filing via CM/ECF system with the Court, email, and U.S. mail. Felicia M. Brooks, Deputy Attorney General Attorney for Third-Party-Defendant, State of Alabama Department of Human Resources P.O. Box 304000 Montgomery, Alabama 36130-4000 Telephone: (334) 242-9330 Fax: (334) 242-0689
/s/Andrea J. Mixson One of Attorneys for Plaintiff
3