Case 3:08-cv-01858-AET-JJH Document 1 Filed 04/16/2008 Page 1 of 35
William Emmett Dwyer NEW JERSEY PROTECTION
& ADVOCACY, INC. 210 South Broad Street, 3rd Floor Trenton, New Jersey 08608 (609) 292-9742
R. Scott Thompson Bernard J. Cooney LOWENSTEIN SANDLER PC 65 Livingston Avenue Roseland, New Jersey 07068 (973) 597-2500
Attorneys for Plaintiff

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

NEW JERSEY PROTECTION AND ADVOCACY, INC.,
Plaintiff:
v.
JENNIFER VELEZ, in her official capacity as Commissioner of the New Jersey Department of Human Services,
Defendant.

Civil Action No.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

PlaintitTNEW JERSEY PROTECTION AND ADVOCACY, INC., 210 South Broad Street, 3rd Floor, Trenton, New Jersey 08608, by and through its undersigned attorneys Lowenstein Sandler PC and New Jersey Protection & Advocacy, Inc., alleges as follows:
99999/1 0411612008220728901

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PRELIMINARY STATEMENT In 1999, the United States Supreme Court in Olmsteadv. L.e., 527 U.S. 581 (1999), held that Title II of the Americans with Disabilities Act requires states to provide services to individuals with developmental disabilities in the most integrated setting possible. The integration mandate of Olmstead requires the development of an array of community resources and services for individuals with developmental disabilities. States, however, have not been left only to their own resources to fund the development of their community services. The federal government has created a "waiver" program whereby states can apply for a waiver of the Medicaid requirement that an individual must reside in a developmental center in order to qualifY for federal funding. Under the home and community-based waiver program, states can submit a waiver application that details who they will serve and how these recipients, who would otherwise become institutionalized, will be served in the community. Upon the granting of a waiver application, states receive reimbursement for the cost of providing services to people in the community. New Jersey receives approximately one-half of the cost of such services from the federal Medicaid waiver program. However, there are certain requirements imposed on states that choose to participate in the waiver program. Federal law has long required states that use Medicaid funding to provide services to the developmentally disabled to do so with "reasonable promptness" once a qualifying individual has requested services. Despite these clear and unambiguous directions, more than 8,000 citizens in the State of New Jersey who have met all of the requirements for services are currently being denied access to home and communitybased services. Instead, they have been diverted to a so-called "wait-list" for such services with no guarantee, and little hope, that they will ever have access to the services that they need.
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Most of these individuals live at home or with relatives, with little or no assistance. Many have been on the waiting list for years. Despite the fact that they do not want or need institutionalization, many face the prospect of institutionalization because that is all the State of New Jersey offers. In fact, over the past three years approximately sixty individuals who were on the waiting list for residential placement in the community have instead become residents of New Jersey's developmental centers. As for those individuals who remain at home with their aging parents, the prospect of institutionalization becomes all the more real, and all the more frightening.
In this lawsuit, Plaintiff seeks a ruling by this Court that New Jersey's practice of "waitlisting" eligible citizens is not a substitute for providing services that the State is required to provide. Plaintiff asks this Court to direct Defendant to offer and provide home and community-based services with reasonable promptness to eligible individuals, instead of waitlisting any such citizen who refuses institutionalization. Plaintiff also asks this Court to direct Defendant to provide the community supports, programs, and other services which Defendant, in its waiver application to the federal government, has represented that it will provide to eligible citizens. These citizens want only the opportunity to live in a community setting with access to such services as they need, and they ask only that the State of New Jersey abide by the Constitution and laws of the United States.
JURISDICTION AND VENUE I. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 in that claims are asserted under the laws of the United States, and 28 U.S.c. § 1343 in that claims are asserted under laws providing for the protection of civil rights. 2. This Court has personal jurisdiction over Defendant in that she is a resident of the State of New Jersey.
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3. Plaintiffs claims are authorized by 42 U.S.c. § 1983,42 U.S.C. § 12132 and 29 U.S.C. § 794a.
4. Venue is appropriate in this District pursuant to 28 U.S.C. § 1391(b) as the matter arose in the District of New Jersey and all of the parties reside in this District.
5. Declaratory relief is authorized under 28 U.S.C. § 2201 et seq., and injunctive relief is authorized by 28 U.S.C. § 2202. Defendant's actions have resulted in irreparable injury to Plaintiff, for which there is no adequate remedy at law.

A. Plaintiff

PARTIES

6. Plaintiff New Jersey Protection & Advocacy, Inc. ("NJP&A"), a non-profit corporation, is the federally funded agency designated since 1994 to serve as New Jersey's protection and advocacy system for people with disabilities. Pursuant to this designation, NJP&A serves as the agency to implement, on behalf of the State of New Jersey, the Protection and Advocacy System for the Developmentally Disabled ("PADD") established pursuant to the Developmental Disabilities Assistance and Bill of Rights Act of2000, 42 U.S.c. § 15001 el seq.
7. NJP&A is part of a nationwide network of protection and advocacy agencies located in all fifty states, the District of Columbia, Puerto Rico, and the federal territories. The protection and advocacy system comprises the nation's largest provider of legally-based advocacy services for people with disabilities.

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8. As part of a nationwide network, NJP&A is required by 42 U.S.C. § 15043a(2)(D) to provide the public, including individuals with developmental disabilities, their representatives and, as appropriate, non-State agency representatives, with an opportunity to comment on the priorities and activities of the advocacy system. In order to implement this requirement, NJP&A has an advisory board composed of individuals who (i) have a developmental disability, (ii) are related to an individual who has a developmental disability, or (iii) are a professional who serves developmentally disabled individuals.
9. NJP&A has also established advisory boards to aid with advocacy activities and efforts undertaken in connection with the Protection and Advocacy for Individuals with a Mental Illness Act ("PAlMI") established under 42 U.S.C §§ 10801 et seq.
10. NJP&A's governing board of directors consists of the respective chairpersons from each of the advisory boards, along with developmentally disabled individuals, relatives of individuals with a disability, and professionals who serve the developmentally disabled community. 42 U.S.C. § 15044(a).
II. In addition to its board of directors and advisory boards, NJP&A is also statutorily required to maintain a grievance procedure for clients or prospective clients to ensure that individuals with developmental disabilities have full access to its services. 42 U.S.C. § 15043a(2)(E). It is the responsibility ofNJP&A's board of directors to be the final arbiter for all grievances filed on behalf of individuals who have a disability. The grievance procedure also provides for an opportunity to inform NJP&A's
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board of directors of significant issues that affect individuals who have a developmental disability, thereby helping to guide NJP&A in its work.
12. By virtue of its designation as an advocacy system, NJP&A has the statutory authority to pursue legal, administrative and other appropriate remedies to protect and advocate for the rights and interests of people with developmental disabilities who are or will be receiving care and treatment in New Jersey. 42 U.S.C. § 15043(a)(2)(A)(i). Similarly, NJP&A is obligated by the PAlMI Act, 42 U.S.C. § 10801 et seq., to pursue legal and administrative remedies for individuals who have a mental illness. NJP&A is presently fulfilling this obligation by, among other things, serving as the plaintiff in two actions that are pending in this District. In NJP&A et. al v. Velez, Docket No. 3-05-CV-04 723 (FLW/TJB), NJP&A is acting as an organizational plaintiff on behalf of approximately 2,000 individuals inappropriately institutionalized in New Jersey's developmental centers. In NJP&A v. Velez, Doc. No.: 05-01784 (FLW/TJB), NJP&A, acting as the sole plaintiff, is seeking the discharge of approximately 1,000 individuals who are inappropriately institutionalized in the State's psychiatric hospitals.
13. NJP&A is not only empowered under federal law to represent individuals who have disabilities, but also to ensure that a protection and advocacy program operates in the State of New Jersey. The allotment of federal funds to New Jersey is premised on the State's assurance that it has established a protection and advocacy system with authority to pursue legal, administrative, and other appropriate remedies to protect and advocate for the rights of individuals who have a developmental disability. 42 U.S.C. § 15043(a).
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14. NJP&A is pursuing this action to protect and advocate for the rights and interests of "individuals with developmental disabilities" as that term is defined in 42 U.S.c. § 15002, and for all individuals who are protected by the PAlMI Act due to having a dual diagnosis of a developmental disability and a mental illness. Specifically, NJP&A brings this action on behalf of individuals who reside in the community but who are in danger of unnecessarily being institutionalized in one of the State's seven large, congregate facilities (known as "developmental centers"), and who wish to reside in more integrated settings in the community. All of the individuals on whose behalf NJP&A brings this action are entitled to the right to be informed of alternatives to institutionalized care and the right to choose among alternatives to institutionalized care pursuant to 42 U.S.C. § 1396n(c)(2)(c) and (d)(2)(c).
15. These individuals have each suffered injuries, or will suffer injuries, that would allow them to bring suit in their own right against Defendant. Such individuals, including those described in the following section, could all bring suit in their own name.
B. Individuals Served Bv Plaintiff
16. All of the individuals named herein are Medicaid recipients and have disabilities within the meaning of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 (2), and Section 504 of the Rehabilitation Act ("Section 504"), 29 U.S.C. § 794. These individuals are eligible for and receive services from the New Jersey Department of Human Services, Division of Developmental Disabilities ("DOD") and meet the requirements for Medicaid's home and community-based waiver services ("HCS"). The HCS program offers services and supports that enable eligible individuals
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to remain at home, live independently, or live in a small home-like setting. As such, the HCS waiver program helps persons with disabilities avoid institutional settings, including a nursing facility, state school, or other type of intennediate care facility ("ICF").
17. All of the individuals named herein would be able to live in less restrictive settings with waiver supports and services provided with reasonable promptness. All of the individuals listed below are on a "wait-list" for services under the HCS waiver program. Though they have been on a "wait-list" for years, none of the individuals listed below have been infonned of their status on the list, or how much longer they will have to wait for the services to which they are entitled to.
The individuals consist of the following: (a) K.P. is 27 years old and lives with his mother and step-father in Lawrenceville, New Jersey. He has autism and severe obsessive compulsive disorder. K.P. has worked for many years in a supportive environment outside his home under the supervision of Project Higher. Exhibit ("Ex.") A, Declaration of Kathleen Moore. K.P.'s disabilities make life very difficult for his family and he needs constant supervision. Consequently, his mother must be present to care for K.P. when he arrives home from work. The family receives approximately $320 per month so that it may obtain respite care for K.P. Currently, these funds purchase approximately thirty hours of respite care per month for K.P. In addition to this respite care, K.P.'s mother devotes a significant amount of time to care for his needs. This demand for care limits the ability ofK.P.'s mother to secure employment as well as his step-father's career opportunities in areas outside of New Jersey. The family, due to the near-constant care required for K.P., is unable to move from the Lawrenceville area. Ex. A, Declaration of Kathleen Moore.
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K.P. was placed on the waiting list because he needs a community residence with some supervision. K.P.'s parents are aging and fear that he will be institutionalized if they are incapable of caring for him. K.P. has been on DDD's HCS wait-list since 1999, and his parents have received no indication that he will ever be given the opportunity to reside in a community-based residence. Ex. A, Declaration of Kathleen Moore.
(b) D.T. is 36 years old and lives with his parents in Voorhees, New Jersey. He has mild cerebral palsy, attention deficit disorder and obsessive compulsive disorder. In addition to working part-time at the Occupational Training Center, D.T. works seven hours a week for the New Jersey Self Advocacy Project as an advocate for people with disabilities. Ex. B, Declaration of D.T.
He has been on DDD's HCS wait-list since 1998 and has not been informed by DDD how much longer he must remain on the wait-list before he receives appropriate residential placement services. D.T.'s parents are aging and fear that he will be institutionalized if they are incapable of caring for him. D.T. has lived his entire life in a community and does not wish to be institutionalized. Ex. B, Declaration ofD.T.
D.T. has been offered three residential placements. Two of these placements, however, are inappropriate for D.T. He continues to remain on the wait-list for final placement in the third residence offered. D.T. was initially offered a placement in a group home. D.T., who does not have a guardian, wishes to maintain his independence and continues to work two jobs and arrange for his own transportation. The group home, which was inconveniently located far from D.T. 's employment, is tightly controlled and the residents are closely supervised. Such an environment is not suitable for D.T., who is in need of a supervised apartment. D.T. received a second offer for placement in a group
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home and rejected it for the same reasons. The latest offer for placement is in a supervised apartment. After visiting the apartment over a year ago, D.T. has still not received notification that he may reside in this apartment. Ex. B, Declaration ofD.T.
(c) R.F. is 18 years old and lives with parents, who are her guardians, in Randolph, New Jersey. She has attention deficit hyperactivity disorder, a chromosomal translocation and is severely developmentally delayed. In addition, she has anaphylactic and environmental allergies. R.F. currently attends the Midland School, a special education program serving the needs of children with developmental disabilities. She has been on DDD's HCS wait-list for a community residential placement since 2002 and has not been informed by DDD how much longer she will have to wait for a residential placement. Despite being on the waiting list for over five years, R.F. has not received any offers for placement in a residential setting. R.F.'s parents spend over approximately $33,000 per year to purchase additional services for R.F. because she is not receiving them from Defendant. R.F. would either receive these same services or would not need them if she were living independently in a community residence for which she is qualified. Ex. C, Declaration of D.F.
R.F.'s parents are aging and fear that she will be institutionalized if they are incapable of caring for her. She has lived her entire life in a community and does not wish to be institutionalized. R.F.'s mother has found the situation so stressful that she has required psychiatric counseling to address the anxiety and depression she experiences over her daughter's lack of services. Her condition prompted her psychiatrist to write to R.F.'s case manager in order to "preserve Mrs. [F's] mental stability." Ex. C, Declaration ofD.F. at 'Illl. Her psychiatrist wrote "[i]t is unlikely that [Mrs. F.] will be
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able to care for her daughter consistently for the indefinite future." Jd. Consequently, R.F.'s mother has executed a declaration supporting this Complaint and stating that her daughter's interests are represented by Plaintiff in this case. Ex. C, Declaration ofD.F.
(d) M.B. is 32 years old, has autism and is mentally retarded. M.B. is on medication to control his seizures and he lives with his parents, who are his legal guardians, in West Amwell, New Jersey. M.B. has ajob working at the Jewish Community Center in Flemington, New Jersey four days per week. M.B. has been a client of Defendant since August of 1989, and he has been on a waiting list for residential services for over six years. Ex. D, Declaration of Elaine Buchsbaum.
M.B. has been assessed by Defendant without consideration of his autism. As a result of this incorrect assessment, he has been offered programs that are not adequate for his needs. M.B. 's parents were informed of a program developed by Defendant called Real Life Choices C'RLC"). Despite being eligible for enrollment in RLC, the services that would be provided to M.B. are inadequate to meet his needs. In addition, M.B.'s parents were informed that should their son be enrolled in RLC, he would not be notified of residential placement openings. M.B.'s parents attempted to obtain written information about RLC but were told that none was available. A decision regarding whether to place M.B. in RLC, the parents were told by DDD, could only be based upon a conversation they had with his case manager. Ex. D, Declaration of Elaine Buchsbaum.
M.B.'s parents are concerned about M.B.'s future welfare as they grow older and one day become unable to care for him. They are concerned that he will be needlessly placed in an institution far from where he now lives and where he will not be able to continue with his job. Ex. D. Declaration of Elaine Buchsbaum.
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(e) S.G. is 31 years old and has autism and obsessive compulsive disorder. His parents are his legal guardians. With the help of a supported employment program, for the past fifteen years S.G. has worked for the Wawa chain of convenience stores. He works at several different Wawa stores, performing cleaning services and stocking shelves, and receives transportation to his job site from the employment program. Ex. E, Declaration ofN.G.
Because of his particular needs, and the fact that his parents were both 55 years old at the time, S.G. was placed on DDD's urgent waiting list for residential services in 2000. Specifically, S.G. is in need of a residential placement, either in a group home or a supported apartment setting. However, since being placed on the wait-list in 2000, Defendant has not offered S.G. a suitable placement and he remains at home while his parents grow older and worry about their inability to care for S.G. in the future. Ex. E, Declaration ofN.G.
S.G.'s parents know that unless S.G. is given a suitable community placement, he will likely be placed in a development center far from his home and will therefore be unable to continue his employment. Considering that he has have lived his entire life in the community, such institutionalization will be devastating to S.G. Placement in a developmental center will undo much of the progress that S.G. has achieved towards establishing a normal life for himself Yet, after approximately seven years on the waiting list for residential placement, S.G has not been informed of when he will be placed, his status on the waiting list, or what he can do to enhance his position on the waiting list. Ex. E, Declaration ofN.G.
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(f) M.W. is 49 years and lives in Clifton, New Jersey with her siblings. M.W. suffered a traumatic brain injury acquired at birth and is a client of Defendant. Her symptoms indicate that she has the mental capacity and functions at the level of a two year-old child. M. W. has several self-abusive behaviors which are triggered when she feels frustrated, afraid, misunderstood or unable to communicate. Ex. F, Declaration of Mary de Lourdes Winberry.
M.W. has been on the "urgent priority" waiting list since November 22,2002 for a residential placement. She continues to live in the house where she was raised by her family. Her mother, who was M.W.'s guardian, passed away on in April of 2007 at the age of 84. IfM.W.'s two brothers had not chosen to reside with M.W., she would have been placed in a developmental center operated by Defendant. Ex. F, Declaration of Mary de Lourdes Winberry.
M.W. is in a day program that does no! provide speech therapy, music therapy, or horticulture therapy. Instead, she remains in a program that is designed to train her for employment. Yet, M.W. is simply unable to perform many of the employment-related activities of the program. The program does not afford her with the appropriate opportunities to improve her speech abilities. Ex. F, Declaration of Mary de Lourdes Winberry.
M.W. needs assistance in developing the basic skills that will help her to enhance her life. She is in an environment that is designed for employment and where her peers often communicate verbally. M.W., however, does not possess the same language skills as her peers in the program. M. W. is not realizing her potential because the program is not designed to address her needs. She participates in the day program, however, because
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it is all that Defendant offers and she has no other option. Ex. F, Declaration of Mary de Lourdes Winberry.
When M. W. was a child, her parents were informed that she could only receive appropriate services ifshe was admitted to an institution. M.W.'s parents refused to have their daughter institutionalized and chose to raise her at home. M.W., who turned 45 years-old this past year, still does not receive the services she needs. Her siblings refuse to have her admitted to a developmental center. Instead, they seek a better life for their sister and want her to be provided with the services she has been entitled to receive for many years. Accordingly, as members of the group on whose behalf Plaintiff acts, M.W.'s siblings have chosen to support this Complaint. Ex. F, Declaration of Mary de Lourdes Winberry.
C. Interested Parties In addition to the individuals named above, there are a number of agencies and
professional associations that are also negatively impacted by the waiting list. These entities include the following:
(a) The New Jersey Association of Community Providers ("NJACP") is an organization of I00 member agencies that provides a broad range of services and support to approximately 35,000 individuals who have disabilities. The collective workforce of NJACP includes approximately 17,000 individuals who provide residential care, advocacy, education, healthcare, vocational training, job placement, supported employment, recreational activities, family support and self-directed services. NJACP is acutely aware of the impact of the waiting list on its clients. NJACP asserts that
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"individuals with developmental disabilities struggle with ready access to care and services and supports across a wide range of services ... The waiting list is an indicator that the system is not adequate to meet [the] need." Ex. G, Declaration of Kim Todd, CEO ofNJACP at ~ 6. NJACP believes that the wait-list is an "unacceptable option with quality of life repercussions" and has chosen to support its clients by supporting Plaintiff sease. Id at ~ 7.
(b) The New Jersey chapter of the American Association on Intellectual and Developmental Disabilities ('"AAIDD") is part of a national association that since 1876 has represented the interests of individuals who have a developmental disability. AAIDD submits that many of its constituents "remain on waiting lists for years after requesting needed services and supports." Ex. H, Declaration of Ethan Ellis, Hon. Chairman of New
Jersey Chapter, AAIDD, at '19. These individuals "fail to get on the waiting list or may
be waiting for inadequate or inappropriate services and supports ... Many are desperate and placed under extraordinary stress." Id at '110. Moreover, "[t]here are currently several thousand individuals in New Jersey who are on waiting lists for services they are entitled to but are not receiving." Id at ~ 18. As a result of not receiving needed services, individuals "are being discriminated against by having the doors of societal inclusion and participation closed to them. While it appears that [AAIDD's] constituents live in the community, in reality they live in seclusion because they are being denied opportunities for full participation." Id at ~ 18.
(c) The Alliance for the Betterment of Citizens with Disabilities ("ABCD") in New Jersey, is a statewide organization representing seventeen member agencies that provide a broad array of community-based services to more than 10,000 people with
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developmental disabilities and their families. ABeD member agencies provide services to a range of individuals with complex physical disabilities, including children and adults with cerebral palsy, spina bifida and muscular dystrophy. Many of these individuals use wheelchairs and have significant barriers to mobility. Ex. I, Declaration of Lowell Arye, Executive Director of ABeD.
Over the past decade, ABeD has raised concerns about the waiting list with the Department of Human Services and the New Jersey State Legislature. The waiting list continues to grow despite a statutorily mandated plan that provides for its eventual termination. This statutorily mandated plan, entitled "A plan to Eliminate the Waiting List by 2008," was published on January 30, 1998. The plan estimated that if Defendant did not act, by the year 2007 there would be approximately 7,035 individuals on the waiting list. That estimate has been exceeded. Today there are more than 8,000 people on the waiting list. Ex. I, Declaration of Lowell Arye, Executive Director of ABeD.
ABeD remains concerned that there are a number of individuals who, despite receiving letters of commitment for placements from the 2000-2002 Waiting List initiatives, have yet to receive placement. The budget for the 2008 fiscal year only provides funds for 124 people to move from the waiting list into homes over the next four years. ABeD believes that the State is not moving individuals from the waiting list at a reasonable pace. ABeD has always been concerned that these individuals' rights have been violated by the State. Ex. I, Declaration of Lowell Arye, Executive Director of ABeD.
Many of ABeD's member agencies serve these qualified individuals in day activities programs. The families of these individuals want and need residential services.
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Because of ABCD's concern and interest in the well-being of its clients, it has chosen to execute a declaration in support of this Complaint. Ex. I, Declaration of Lowell Arye, Executive Director of ABCD.
D. Defendant 18. Defendant Jennifer Velez is the Commissioner of the New Jersey
Department of Human Services ("DHS"), a public entity covered by, inter alia, Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131(1).
19. Defendant Velez is ultimately responsible for ensuring that New Jersey operates its delivery of services to individuals with disabilities in conformity with the Constitution of the United States, with the ADA and its implementing regulations, and with Section 504 of the Rehabilitation Act of 1973, 29 U.S.c. § 794, and its implementing regulations.
20. DHS is authorized to administer New Jersey's Medicaid program. 21. Defendant Velez is responsible for the establishment and maintenance of the New Jersey State plan for Medicaid services in compliance with federal law and regulations.
GOVERNING STATUTES A. The Anti-Discrimination Laws: The Americans with
Disabilities Act and Section 504 of The Rehabilitation Act 22. On July 26, 1990, the ADA was enacted, establishing the most
important civil rights law for persons with disabilities in our nation's history. 23. Title II of the ADA contains an integration mandate and non-
discrimination provisions. 42 U.S.C. §§ 12131-12134.
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24. Title II of the ADA prohibits public entities, such as that headed by Defendant, from discriminating against the individuals with disabilities whom they serve. 42 U.S.c. §§ 12131-12132.
25. Discrimination under the ADA includes the segregation of persons with disabilities from society as a result of unnecessary institutionalization.
26. The regulations promulgated under Title II specifically provide that a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. 28 C.F.R. § 35.130(d). The regulations prohibit Defendant from administering programs in a discriminatory manner. 28 C.F.R. § 35.130(b)(3)(i)-(ii).
27. The regulations also prohibit discrimination caused by providing different or separate services to individuals based on the severity of their disability, unless necessary for the services to be effective. 28 C.F.R. § 35. 130(b)(1)(iv).
28. Furthermore, the section of Title II of the ADA entitled, "Enforcement," explicitly states that the "remedies, procedures, and rights set forth in section 794a of [the Rehabilitation Act] shall be the remedies, procedures, and rights this subchapter provides." 42 U.S.C. § 12133. Section 504 ofthe Rehabilitation Act sets forth protections against discrimination by recipients of federal funds and also includes an integration mandate prohibiting unnecessary segregation. 29 U.S.c. § 794 et seq.; 45 C.F.R. §§ 84.4,41.51.
B. The Medicaid Act 29. The Medicaid program, established by Title XIX of the Social
Security Act, 42 U.S.C. § 1396 e/ seq., is a cooperative federal-state program designed to
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enable states to furnish medical assistance to families and individuals who are unable to meet the costs of necessary medical services.
30. States are not obligated to participate in the Medicaid program. However, if a state elects to participate, it must operate its program in compliance with federal statutory and regulatory requirements.
31. States that choose to participate in the Medicaid program receive federal matching funds for their Medicaid program. To receive federal funds, states must comply with the requirements of the federal Medicaid Act and with the federal regulations governing state Medicaid programs promulgated by the Center for Medicare and Medicaid Services ("CMS") of the United States Department of Health and Human Services, the agency that administers Medicaid at the federal level.
32. Each state participating in the Medicaid program must receive approval for its plan for providing services. States must include certain mandatory services, including, among other things, inpatient hospital services, physician's services, and nursing facility services. 42 U.S.C. §§ 1396a(a)(lO)(A) and 1396d(a).
33. In addition to mandatory services, a state may elect to provide optional services. 42 U.S.c. § 1396d(a). Optional services include funding for intermediate care facilities for the mentally retarded ("ICF/MR"). 42 U.S.C. §§ 1396a(a)(lO) and 1396d(a)(l5).
34. States that provide ICF/MR services may also implement a Medicaid waiver program. This alternative to ICF/MR services includes an array of home and community-based services for eligible recipients who, in the absence of waiver services, would require institutionalization in an ICF/MR. This program is known as the
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Medicaid home and community based waiver program ("the waiver program" or "the waiver"). 42 U.S.C. § 1396n(c). This program is called a "waiver" because CMS waives certain technical obligations otherwise incumbent on states electing to participate in the program.
35. Under the waiver program, if a state meets certain criteria, Medicaid requirements such as statewideness, 42U.S.C. § I 396a(a)(l), and comparability of services, 42 U.S.C. § 1396a(a)(lO)(B), may be waived to permit the state to provide a specific number of individuals within a defined disability group with services that provide such individuals with a community alternative to long-term institutional care. 42U.S.C. § 1396n(c)(3).
36. Title XIX requires that when a state agrees to provide Medicaid waiver services, it also provide assurances that, inter alia, individuals are evaluated for their need for the level-of-care provided by an ICF/MR, and iffound eligible for such a level-of-care, they are offered the option of Medicaid waiver services. 42 U.S.C. § I 396n(c)(2)(B)-(C); 42 C.F.R. § 441.302(c)-(d). States must assure HCFA that, "absent
the waiver, recipients in the waiver [program1would receive the appropriate type of
Medicaid-funded institutional care . . . that they require." 42 C.F.R. § 441.302(g). 37. New Jersey participates in the Medicaid program. 38. The New Jersey Medicaid program is administered by Defendant. 39. Among the optional Medicaid services Defendant provides are
ICF/MR services. These services are provided in institutions known in New Jersey as "developmental centers."
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Case 3:08-cv-01858-AET-JJH Document 1 Filed 04/16/2008 Page 21 of 35
40. In addition to mandatory and optional services, Defendant has received CMS approval to operate a home and community-based services waiver program for individuals with developmental disabilities. This allows Defendant to provide home and community-based services to a federally-approved maximum number of participants who require an ICF/MR level of care and who have applied for and received a waiver slot.
41. States must offer Medicaid services to eligible individuals with "reasonable promptness" and must give those interested in applying the opportunity to do so. 42 U.S.c. § 1396a(a)(8).
42. Persons with disabilities who live in or are at risk of being placed in an institution must be informed of and given a meaningful choice of institutional and community alternatives. They must also be permitted to receive services from any qualified provider. 42 U.S.C. §§ 1396a(a)(23)(A) and 1396n(c)(2)(c); 42 C.F.R. §§ 435.217 and 441.302(d)(l)-(2).
C. The Home and Community Based Waiver Program 43. The Medicaid waiver program, which includes the HCS program,
was adopted by Congress in order to allow individuals who would otherwise require care in a nursing home or ICF/MR to receive needed services in their own homes and in home-like settings. 42 U.S.C. § 1396n. See also Senate Report No. 97-139,1981 U.S.C.C.A.N. 396 and House Conference Report No. 97-208, 1981 U.S.C.C.A.N. 1010. The regulations state that "section 1915(c) [1396n] of the Act permits States to offer, under a waiver of statutory requirements, an array of home and community-based services that an individual needs to avoid institutionalization." 42 C.F.R. § 441.300.
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Case 3:08-cv-01858-AET-JJH Document 1 Filed 04/16/2008 Page 22 of 35
44. Federal law provides that the average cost per person in the community through the Medicaid waiver program must not exceed the average cost for the same level of services in facilities or institutions. 42 U.S.C. § 1396n (c)(2)(D).
45. Home and community-based waiver funds may not be used to support services to individuals who reside in an rCF/MR. 42 C.F.R. § 441.301(b)(1)(ii); 42 U.S.C. § 1396n.
46. Under a Medicaid waiver, a state can provide an array of services, including services that are not identified in Title XIX as approved optional services. 42 U.S.C. § 1396n (c)(4)(8); 42 C.F.R. § 440.180. For example, a state can provide habilitative services, vocational services, and respite services even though these services are not a specified optional service. Thus, Medicaid waiver programs give the state the right to receive federal reimbursement when it agrees to provide services that it would not otherwise be reimbursed for under Title XIX.
47. Medicaid waiver programs allow states to "waive" certain Title XIX requirements. Specifically, a state's waiver program may choose to provide services to specific groups of persons or in a limited geographic region, thus waiving comparability or statewideness requirements. 42 U.S.C. §§ 1396n(c)(3), (9)-(10).
48. In sum, the purpose of Title XIX's Medicaid waivers is to encourage states to provide services to assist individuals with disabilities to avoid being institutionalized. 42 C.F.R. § 441.300. Moreover, as long as Medicaid services vis-it-vis institutional services are "cost-neutral," the preference is to provide services in the community. See 42 U.S.c. § 1396n(c)(2)(D).
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Case 3:08-cv-01858-AET-JJH Document 1 Filed 04/16/2008 Page 23 of 35
D. New Jersey's Waiver Program 49. New Jersey has offered the HCS waiver since 1982. 50. Individuals are eligible for HCS waiver services if they meet the
standard of care for services in an ICF/MR, and are eligible for medical assistance. 51. Defendant's Division of Developmental Disabilities is the single
New Jersey State agency whose responsibility it is to administer the HCS waiver program.
52. The services provided under the HCS waiver include case management, respite care, habilitation, minor home modifications, skilled nursing, adaptive aids, counseling and therapies, dental treatment, and residential assistance, i.e., supported home living, foster/companion care, and residential support and residential services.
STATEMENT OF FACTS 53. New Jersey's HCS waiver program currently serves approximately 9,600 recipients. 54. There are approximately 8,000 additional people who have requested HCS waiver services. 55. Individuals on the waiting list have developmental disabilities such as mental retardation, autism, cerebral palsy, spina bifida, and traumatic brain injuries, and are clients of the Division of Developmental Disabilities. Although they qualify for placement in an ICF, they do not want, and do not need, such institutionalization. Instead, they wish to live in the community. Because they have not been offered
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Case 3:08-cv-01858-AET-JJH Document 1 Filed 04/16/2008 Page 24 of 35
placement in suitable residential community-based homes, they reside at home, usually with family.
56. Many of these people have been on the waiting list for more than five years. The average length of time these individuals have been on the waiting list is difficult to ascertain but, upon information and belief, it is in excess ofthree years.
57. In part because of the length of time that people stay on the waiting list, the family members and other caregivers for individuals on the waiting list are aging and will become unable to care for them with the passage of additional time.
58. New Jersey has not taken steps to insure that the waiting list decreases, or that those on the waiting list are kept informed about their status or prospects for placement in community residences.
59. In fact, according to the State's own figures, in September 2002 there were "almost 7,000" individuals on the waiting list, waiting for the State to provide HCS waiver services. Of this number, 4,000 were in the "urgent" category.
60. By December 31, 2004, the State had done nothing to alleviate the situation, despite its recognition in 2002 that "too many people are waiting for services." As of December 31, 2004, there were, according to the State's count, 7,447 people on the waiting list, with some 4,625 in a priority category.
61. As of January 31,2006, the State's count stood at 7,800 people on the waiting list. Of this number, 4,936 were in a priority category.
62. The New Jersey State Legislature has expressly determined that every person receiving treatment through the Division of Developmental Disabilities has
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Case 3:08-cv-01858-AET-JJH Document 1 Filed 04/16/2008 Page 25 of 35
a right to receive services in a setting and manner least restrictive of his or her right to personal liberty. N.J.S.A. 30:6D-9.
63. The manner in which Defendant operates her programs for eligible individuals violates Title II of the Americans with Disabilities Act and its implementing regulations, including the regulation requiring public entities to administer their programs in the most integrated setting appropriate to qualified individuals with disabilities, 28 C.F.R. § 35.130(d), and the requirement that services be provided with "reasonable promptness. "
64. Defendant fails to provide accurate and detailed assessments on a regular basis for all individuals wait-listed for services; fails to keep those waiting for services adequately informed about the availability of services; fails to provide services in the most integrated setting; and fails to provide services to all those entitled to services.
65. Despite Defendant's plan for compliance with Title II of the Americans with Disabilities Act, as interpreted by the United States Supreme Court in Olmstead, 527 U.S. 581, Defendant has not engaged in any significant activity that would provide services to those who have been wait-listed, and, as a result, the waiting list has grown over the last ten years. Those on the waiting list are increasingly at risk of institutionalization as their caregivers grow older.
66. In fact, over the past three years at least fifty-eight individuals residing in the community who were on the waiting list for a residential placement were unnecessarily institutionalized in a developmental center because the defendant did not have a suitable community placement for them. Those fifty-eight individuals have suffered an injury in fact. Legal efforts to have those individuals returned to the
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Case 3:08-cv-01858-AET-JJH Document 1 Filed 04/16/2008 Page 26 of 35
community, along with approximately 2,000 other individuals currently residing in the State's developmental centers, has been undertaken by NJP&A as the organizational plaintiff in the case NJP&A el. al v. Velez, Docket No. 3-05-CV-04723 (FLW/TJB), mentioned above in Paragraph 12 of this Complaint.
67. Upon information and belief, Defendant has not properly utilized Medicaid home and community-based waiver slots to comply with the integration mandate of the Americans with Disabilities Act and to end her ongoing discrimination against qualified individuals with developmental disabilities.
68. Defendant does not inform individuals of their right to choose integrated, less restrictive community supports and/or home and community-based waiver services. Defendant does not provide eligible individuals with the opportunity to reside in community settings with reasonable promptness.
69. The relief Plaintiff seeks on behalf of individuals with disabilities is readily achievable if Defendant changes the manner in which it operates its alreadyexisting programs without the creation of new programs.
70. Defendant's policies and practices have resulted in the failure to provide community living opportunities for individuals with disabilities in settings designed to maximize their potential in the least restrictive setting possible.
71. In short, Defendant has taken no steps to demonstrate a commitment to properly provide services to qualified individuals who seek waiver services rather than institutionalization. Instead, Defendant has used the waiting list as a way to forestall eligible, qualified individuals in need of services but unwilling to enter an ICF. The end results of these practices are (i) unequal access to services for those who
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Case 3:08-cv-01858-AET-JJH Document 1 Filed 04/16/2008 Page 27 of 35
are unwilling to live at an ICF; (ii) compelling eligible individuals to choose between institutionalization or inadequate services; which ultimately results in (iii) forced institutionalization of people who can and should live in community settings, and increasing unjustified isolation and segregation of qualified individuals with developmental disabilities, as prohibited by federal law.
CLAIMS FIRST CAUSE OF ACTION (Violation of the Americans with Disabilities Act) 72. Plaintiff incorporates and realleges the allegations contained in Paragraphs 1 through 71 of the Complaint. 73. People with developmental disabilities on the waiting list, including those on whose behalf this action is brought by Plaintiff, are "qualified individuals with a disability" within the meaning of 42 U.S.C. § 12131(2) (hereinafter referred to as "Qualified Individuals"). Qualified Individuals have a physical and/or mental impairment that substantially limits one or more major life activities, including their ability to live independently and without support. 74. Defendant violates the anti-discrimination provision of the ADA, 42 U.S.C. § 12132, by offering only institutional care instead of community-based care to Qualified Individuals who seek community-based care and who are appropriate for such care. The provision of community-based care would not entail a fundamental alteration of Defendant's programs, services, or activities. 75. Defendant discriminates against Qualified Individuals with developmental disabilities by failing to properly assess them for community-based
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Case 3:08-cv-01858-AET-JJH Document 1 Filed 04/16/2008 Page 28 of 35
services, and by failing to provide them with community living options. Instead, Defendant requires Qualified Individuals to accept confinement in segregated institutional facilities in order to receive the services they need.
76. Defendant does not have a comprehensive, effective working plan for serving Qualified Individuals with developmental disabilities in the most integrated setting appropriate to their needs.
77. As a result of Defendant's actions and inactions, Qualified Individuals are placed on a waiting list for needed services, and are forced to either forego services to which they are entitled or live in confinement in institutions rather than in the community. This constitutes a violation of Title II of the ADA and its implementing regulations.
SECOND CAUSE OF ACTION (Violation of Medicaid Rnles Regarding Provision of Services in a Reasonably
Prompt Manner and Choice of Services) 78. Plaintiff incorporates and realleges the allegations contained in Paragraphs 1 through 77 of the Complaint. 79. Defendant voluntarily participates in the federal Medicaid program under 42 U.S.C. § 1396 el seq. As a condition to participating, Defendant must ensure that medically necessary services for eligible individuals with developmental disabilities are provided in a reasonably prompt manner. Defendant's Medicaid program includes providing services to those individuals represented by Plaintiff through the HCS waiver program.
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Case 3:08-cv-01858-AET-JJH Document 1 Filed 04/16/2008 Page 29 of 35
80. Federal law requires that any State which elects to participate in the Medicaid program under 42 U.S.c. §§ 1396 et seq., provide all services, including HCS waiver services, to eligible individuals with reasonable promptness.
81. Plaintiffs constituents have not received these services despite applying for them years ago. Defendant has placed the individuals on a waiting list that includes all persons who have requested HCS waiver services but are waiting to receive such services.
82. Defendant has administered and continues to administer the State's Medicaid system in a manner that limits the availability ofHCS waiver services to persons with developmental disabilities, and that precludes providing these services to such persons, including those on whose behalf this action is brought by Plaintiff, in a reasonably prompt manner, in violation of 42 U.S.C. § 1396a(a)(8).
83. This failure to provide Medicaid waiver services under HCS waiver programs is the result of arbitrary and unreasonable policies, practices, and decisions.
84. Defendant's failure to provide HCS waiver services to eligible individuals in a reasonably prompt manner violates the rights of the individuals on whose behalf this action is brought under the Medicaid Act and its implementing regulations, the
I.e. ADA, Olmsleadv. ex reI. Zimring. 527 U.S. 581 (1999), Section 504 of the
Rehabilitation Act, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The violation of these rights creates a cause of action enforceable under 42 U.S.C. § 1983.
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Case 3:08-cv-01858-AET-JJH Document 1 Filed 04/16/2008 Page 30 of 35
85. Under federal Medicaid law and the assurances made by Defendant in the HCS waiver program, Qualified Individuals with developmental disabilities have the freedom to choose whether to receive Medicaid services in an ICF/MR or in a waiver program. The freedom to choose includes more than the mere right to select a choice, but also the right to receive the services chosen.
86. Under the HCS waiver program there are a variety of feasible alternatives to ICF/MR care including residential support and habilitation, day services, family support, respite services and transportation.
87. Defendant's administration of the Medicaid program denies freedom of choice to the individuals on whose behalf this action is brought by failing to both (I) inform them of their feasible alternatives to Medicaid-funded ICFIMR facilities, including HCS waiver programs, and (2) implement their choices for Medicaid services in violation of 42 U.S.c. § 1396n(c)(2)(C) and (d)(2)(c).
THIRD CAUSE OF ACTION (Americans with Disabilities Act and Section 504 of the Rehabilitation Act: Failure
to Comply With The Integration Mandate) 88. Plaintiff incorporates and realleges the allegations contained in Paragraphs I through 87 of the Complaint. 89. The ADA, 42 U.S.C. § 12101 et seq., mandates that public entities like Defendant's Department of Human Services, provide services to persons with disabilities in the most integrated setting appropriate to meet the needs of Qualified Individuals, rather than segregated settings. It also requires that public entities ensure that available services are offered on a nondiscriminatory basis. Section 504 of the
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Case 3:08-cv-01858-AET-JJH Document 1 Filed 04/16/2008 Page 31 of 35
Rehabilitation Act of 1973 contains a similar requirement for recipients of federal financial assistance. 29 U.S.C. § 794.
90. Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity." 42 U.S.C. § 12132. The regulations implementing Title II of the ADA and Section 504 require a public entity to administer its services, programs, and activities in the "most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35. 130(d).
91. Defendant's failure to provide the Qualified Individuals on whose behalf this action is brought by Plaintiff with community developmental disability habilitation and support services in the most integrated setting appropriate violates 42 U.S.C. § 12132 and 28 C.F.R. § 35. 130(d).
92. In addition to the above, Defendant's failure to provide HCS waiver services to Qualified Individuals in ICF/MRs leaves them in jeopardy of receiving services in an institution rather than in a more integrated and appropriate communitybased waiver program in violation of 42 U.S.C. § 12132,29 U.S.C. § 794, and 28 C.F.R. §§ 35. I 30(d) and 41.51.
93. By the actions set forth above, Defendant has failed and continues to fail to afford the Qualified Individuals on whose behalfthis action is brought by Plaintiff with residential services in the most integrated setting appropriate to the needs of the individuals with disabilities. in violation of the Americans with Disabilities Act, 42
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Case 3:08-cv-01858-AET-JJH Document 1 Filed 04/16/2008 Page 32 of 35
u.S.c. § 12115 et seq., 29 U.S.C. § 794 and the implementing regulations, and 28 C.F.R. §§ 35.130(d) and 41.51.
RELIEF REQUESTED
94. Plaintiff incorporates and realleges the allegations contained in Paragraphs I through 93 of the Complaint. Plaintiff brings this claim for declaratory relief pursuant to 28 U.S.C. § 2201.
95. An actual controversy exists between Plaintiff and Defendant with respect to the nature and extent of Plaintiff s rights under the Medicaid Act and its regulations, the ADA and its regulations, and Section 504 of the Rehabilitation Act and its regulations.
WHEREFORE, the Plaintiff respectfully requests that the Court: A. Declare the rights and obligations of the respective parties under applicable federal Medicaid law and regulations, the ADA and regulations, and Section 504 of the Rehabilitation Act and regulations. B. Declare, pursuant to 28 U.S.C. § 2201, that Defendant's practice of placing Qualified Individuals with developmental disabilities seeking services under the waiver program on a waiting list, instead of providing ICF/MR-level services in the most integrated setting appropriate to their needs with reasonable promptness, violates Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Title XIX of the Social Security Act. C. Issue a permanent injunction:
(i) requiring Defendant to inform individuals with developmentally disabilities who are eligible for services from the Division of
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Case 3:08-cv-01858-AET-JJH Document 1 Filed 04/16/2008 Page 33 of 35
Developmental Disabilities that they may be eligible for community services, that they have the choice of such services, and that the State will provide such services in accordance with specified reasonable timelines; (ii) requiring Defendant to promptly determine the eligibility for community services, including placement in community-based residences, of current and future individuals who are on the waiting list and informing them in writing of the determination; (iii) requiring Defendant to develop a community-based infrastructure that is responsive to individual needs through the use of individualized care plans that afford eligible Qualified Individuals the freedom to choose to reside in a preferred living arrangement in their community of choice; (iv) requiring Defendant to, at least six months prior to an eligible Qualified Individual's graduation from high school or other educational or vocational program, identify and provide the necessary information, referral and linkages to services for all eligible individuals with disabilities transitioning from the education system to adult services; (v) requiring Defendant to provide the necessary services and supports for the aging developmentally disabled population that affords continuity of care for individuals throughout their life span, maintaining preferred living arrangements in their communities, as appropriate; and (vi) requiring Defendant to eliminate the waiting list within three years and establish a plan with reasonable timelines for providing waiver services -- including placement in community-based residences for
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Case 3:08-cv-01858-AET-JJH Document 1 Filed 04/16/2008 Page 34 of 35

those requesting such placement -- to all current and future residents deemed capable ofliving in the community; and requiring that such a plan be a viable integration plan that demonstrates the State's commitment to community placement, addresses the elements to effectuate such a plan, and includes provisions for Defendant to be held accountable to the Court, D. Grant such other relief as this Court deems appropriate, including an award of reasonable attorneys' fees, litigation expenses, and costs pursuant to 42 U.S.C. § 1988 and by any other operation of law.

Dated: April 16,2008

Respectfully submitted,
LOWENSTEIN SANDLER PC By: lsi R. Scott Thompson R. Scott Thompson
NEW JERSEY PROTECTION & ADVOCACY, INC. By: William Emmett Dwyer Attorneys/or Plaintiff

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Case 3:08-cv-01858-AET-JJH Document 1 Filed 04/16/2008 Page 35 of 35 VERIFICATION AND CERTIFICATION PURSUANT TO L. Civ. R.l1.2 I hereby verify that, to the best of my knowledge, information and belief formed
after a reasonable inquiry, this action is not being presented for any improper purpose; the claims defenses and other legal contentions are warranted by existing law; and the allegations and factual contentions have evidentiary support.
By: lsi R. Scott Thompson R. Scott Thompson
I hereby certify that the matter in controversy is not the subject of any other court, arbitration or administrative proceeding.
By: lsi R. Scott Thompson R. Scott Thompson
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 MAR-09-2009 14:32

LOWENSTEIN SANDLER~13

P.03/03

Case 3:08-cv-01858-AET -LHG Document 30 Filed 03/10/09 Page 1 of 1 PageID: 446

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

\ NEW JERSEY PROTECTION AND ADVOCACY, INC.,

Civil Action No. 08-1858 (AET) (JJH)

Plaintiff,
v.
JENNIFER VELEZ, in her oftical capacity as Commissioner of the New Jersey Department of Human Services,
Defendant.

ORDER CERTIFIYING TO THE ATTORNEY GENERAL OF THE UNITED STATES A CHALLENGE TO THE CONSTITUTIONALITY OF AN
ACT OF CONGRESS
RECEIVED

MAR 102009

ORDER

AT 8:30

M

WILLIAM T. WALSH

Pursuant to 28 U.S.C. § 2403(a), the Court hereby certifies to the Attorney General of the

United States that there is drawn in question in this case the constitutionality of the Americans

with Disabilities Act, 42 U.S.C. §§ 12101 et seq., and Section 504 ofthe Rehabilitation Act of

1973, as amended, 29 U.S.C. 794(a). In the event that the United States seeks to file a petition

~ tOt intervention, it shall do so no later than

2009. The Clerk of the Court is

directed to send a copy of this Order to (i) the United States Attorney for this District; (ii) the

Office of the Attorney General, 1350 Pennsylvania Avenue NW, Suite 409, Washington, DC

20004; and (iii) the United States Department of J\\stice, Civil Rights Division, Attn: Sarah

Harrington, 950 Pennsylvania Ave., NW, Appellate Section, RFK, Washington, DC 20530.

SO ORDERED:

Hon. Anne E. Thompson United States District Judge
1930012 03/0912009 11 03.3235. 1

TOTAL P.03

 
 - -----
Case 3:08-cv-01858-AET -LHG Document 33 Filed 04/08/09 Page 1 of 2 PageID: 471 •

RALPH J. MARRA, JR. Atting Unit.ed sta,tes AttO'rney
By: J. ANDREW RUYMANN Assistant U.S. Attorney 402 East State Street, Room 430 Trenton, New Jersey 08608 (609) 989-0563
Attorney for the Potel'tial Intervenor, United states of America

UNITED STATES DISTRICT COURT DISTRICT OF. NEW JERSEY

NEW JERSEY PROTECTION AND ADVOCACY, INC,

HONORABLE ANNE E. Tl!OMPSON Civil Action No, 08-1858

Plaintiff, v.

COIIISBWl' Clil'tDBR lIlX'l'S:HDDIG Tna:
'l'9 SBRYlI! :AIiD FILIi: RO'.!'ICB OJ'
~OH

JENNIFER VELEZ, in her

official capacity as

Commissioner of the New

Jersey Department of

,"

Human Services

Defendant.

This matter having cOme before "the COUIOt on the application

of potential intervenor United States of America, by and through

its counsel, the United States Atto~ney for the District of New

Jersey (by Assistant U.S. Attorney ~. Andrew Ruymannl, and on

consent of plaintiff New Jersey Prot,"ection and Advocacy, Inc., by

and through its counsel, R. S90tt Thompson, and defendant

Jennifer Velez, by and through her ~ounsel, the Attorney General

of New Jersey (by Kimberly E.' Jenkins), and for good cause

~ IT IS, THEREFORE, this

:daY of April, 2009

Case 3:08-cv-01858-AET -LHG Document 33 Filed 04/08/09 Page 2 of 2 PageID: 472

ORDERED that the United States be and hereby is granted
of leave to serve and file its Notice Intervention on or before
May 11, 2009.

We hereby consent to the ent.ry of the foregoing order.
R. SCOTT THOMPSON

United States District Judge
ANNE MILGRlIM Attorney General of New Jersey

Attorney for Plaintiff Dated:

By: Kimb
Attorney
Dated: --1/1109

, JR.
States Attorney

.'
RUYMANN
Assistant U. • Attorney Attorney f~rf7Pot(eDnt~al Intervenor

Dated:

, _ I

2
.'

 
 Case 3:08-cv-01858-AET -LHG Document 35 Filed 05/18/09 Page 1 of 3 PageID: 476

RALPH J. MARRA, JR. Acting United States Attorney By: J. ANDREW RUYMANN Assistant U.S. Attorney 402 East State Street, Room 430 Trenton, New Jersey 08608 (609) 989-0563 Attorney for the Intervenor, United States of America

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

NEW JERSEY PROTECTION AND ADVOCACY, INC.
Plaintiff,
v.
JENNIFER VELEZ, in her official capacity as Commissioner of the New Jersey Department of Human Services
Defendant.

: HONORABLE ANNE E. THOMPSON : : Civil Action No. 08-1858 : : : : : : : : : : : : : : :

UNITED STATES’ NOTICE OF INTERVENTION PURSUANT TO 28 U.S.C. 2403(a)
_____________________________________________________

The United States respectfully exercises its right to intervene in this matter pursuant to 28 U.S.C. 2403(a) to defend the constitutionality of (1) the federal statute removing States’ Eleventh Amendment immunity for private claims under Title II of the Americans with Disabilities Act of 1990 (ADA), as applied to cases implicating integration claims, and (2) the statutory provisions that condition a State’s receipt of federal financial

Case 3:08-cv-01858-AET -LHG Document 35 Filed 05/18/09 Page 2 of 3 PageID: 477
assistance on its agreement to waive its Eleventh Amendment immunity to private damages suits alleging violations of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794. The United States proposes to file a brief as intervenor and requests that it be permitted to file the brief in 40 days, on June 29, 2009.1
In support of intervention, the United States provides the following information:
1. Section 2403(a) of Title 28 provides that “[i]n any action, suit or proceeding in a court of the United States to which the United States * * * is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court * * * shall permit the United States to intervene * * * for argument on the question of constitutionality.” 28 U.S.C. 2403(a) (emphasis added). The United States has thus intervened in numerous cases to defend statutory provisions providing for the abrogation or the waiver of States’ Eleventh Amendment immunity. See, e.g., A.W. v. Jersey City Pub. Sch., 341 F.3d 234 (3d Cir. 2003); Koslow v. Commonwealth of Pa., 302 F.3d 161 (3d Cir. 2002), cert. denied, 537 U.S. 1232 (2003); Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474 (4th Cir. 2005); Shepard v. Irving, 2003 WL 21977963 (4th Cir. Aug 20, 2003) (unpublished),
1 Because the final day of the 40-day period falls on Saturday, June 27, 2009, the due date would be Monday, June 29, 2009. See Fed. R. Civ. P. 6(a).
2

Case 3:08-cv-01858-AET -LHG Document 35 Filed 05/18/09 Page 3 of 3 PageID: 478
cert. denied, 542 U.S. 959 (2004); Litman v. George Mason Univ., 186 F.3d 544 (4th Cir. 1999), cert. denied, 528 U.S. 1181 (2000); see also Chase v. Baskerville, 508 F. Supp. 2d 492 (E.D. Va. 2007), aff’d, 305 F. App’x 135 (4th Cir. 2008) (unpublished).
2. On December 31, 2008, defendant filed a motion to dismiss based in part on Eleventh Amendment immunity. The United States respectfully exercises its right pursuant to 28 U.S.C. 2403(a) to intervene in this case in order to defend the constitutionality of federal statutes.
Wherefore, the United States respectfully intervenes in this matter and seeks to file a brief on or before June 29, 2009, in response to defendant’s motion to dismiss.

Of Counsel:
JESSICA DUNSAY SILVER DIRK C. PHILLIPS Attorneys U.S. Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, D.C. 20044-4403 (202) 305-4876

Respectfully submitted,
RALPH J. MARRA, JR. Acting United States Attorney
/S J. Andrew Ruymann By: J. ANDREW RUYMANN Assistant U.S. Attorney Attorney for Intervenor

3

 
 Case 3:08-cv-01858-AET -LHG Document 36 Filed 06/29/09 Page 1 of 43 PageID: 481

RALPH J. MARRA, JR. Acting United States Attorney By: J. ANDREW RUYMANN Assistant U.S. Attorney 402 East State Street, Room 430 Trenton, New Jersey 08608 (609) 989-0563 Attorney for the Intervenor, United States of America

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

:

:

NEW JERSEY PROTECTION AND :

ADVOCACY, INC.

:

:

:

Plaintiff,

:

:

v.

:

:

JENNIFER VELEZ, in her

:

official capacity as

:

Commissioner of the New

:

Jersey Department of

:

Human Services

:

:

Defendant.

:

:

HON. ANNE E. THOMPSON Civil Action No. 08-1858

BRIEF OF THE UNITED STATES AS INTERVENOR IN SUPPORT OF THE CONSTITUTIONALITY OF SECTION 504
OF THE REHABILITATION ACT AND TITLE II OF THE AMERICANS WITH DISABILITIES ACT
__________________________________________________________

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TABLE OF CONTENTS
PAGE
STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT
I PLAINTIFF’S CLAIMS FALL WITHIN THE EXCEPTION TO ELEVENTH AMENDMENT IMMUNITY ESTABLISHED IN EX PARTE YOUNG. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
II THE STATE WAIVED ELEVENTH AMENDMENT IMMUNITY TO CLAIMS ARISING UNDER SECTION 504 OF THE REHABILITATION ACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
A. The State’s Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
B. If This Court Concludes That The State Waived Eleventh Amendment Immunity With Respect To Section 504 Claims, It Should Permit Plaintiff To Proceed Only On That Ground.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
III CONGRESS PROPERLY ABROGATED ELEVENTH AMENDMENT IMMUNITY WITH REGARD TO CLAIMS ARISING UNDER TITLE II OF THE ADA.. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A. Before Reaching The Abrogation Issue, This Court Must Follow The Steps Established In United States v. Georgia.. . . . . . . . . . . . . . . . . 14
1. United States v. Georgia.. . . . . . . . . . . . . . . . . . . . . . . . 14

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TABLE OF CONTENTS (continued):

PAGE

2. Defendant’s Attempt To Distinguish Olmstead Fails. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

B. Congress Properly Abrogated Eleventh Amendment Immunity For Title II Claims. . . . . . . . . . . . . . . . 16

1. Tennessee v. Lane. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2. Constitutional Rights Implicated. . . . . . . . . . . . . . . . . . 20

3. Historical Predicate.. . . . . . . . . . . . . . . . . . . . . . . . . . . 22

a. Lane Conclusively Established The Adequacy Of The Predicate For Title II’s Application To Discrimination In All Public Services. . . . . . . . . 22

b. Historical Discrimination Against People With Disabilities Subject To Institutionalization.. . . . . . . . . . . . . . . . . . . . . . . 24

4. Congruence And Proportionality. . . . . . . . . . . . . . . . . 30

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

CASES:

PAGE

A.W. v. Jersey City Publ. Sch., 341 F.3d 234 (3d. 2003)........................................ 10

Alexander v. Choate, 469 U.S. 287 (1985)............................................................. 25

Barnes v. Gorman, 536 U.S. 181 (2002). ................................................................. 4

Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448 (5th Cir. 2005)........... 14

Blodgett v. Holden, 275 U.S. 142 (1927). .............................................................. 12

Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001)....................... 20

Bowers v. National Collegiate Athletic Ass'n, 346 F.3d 402 (3d Cir. 2003). ......... 13

Bowers v. National Collegiate Athletic Ass'n, 475 F.3d 524 (3d Cir. 2007). ......... 13

Buck v. Bell, 274 U.S. 200 (1927). ......................................................................... 26

City of Boerne v. Flores, 521 U.S. 507 (1997). ...................................................... 18

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985).................. 20, 24-26

Clark v. Cohen, 794 F.2d 79 (3d Cir. 1986). .......................................................... 21

Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474 (4th Cir. 2005). ......................................................................... 7

Edelman v. Jordan, 415 U.S. 651 (1974). .............................................................. 10

Employees of Dep't of Pub. Health & Welfare v. Department of Pub. Health & Welfare, 411 U.S. 279 (1973). ...................................................... 25

Frederick L. v. Department of Pub. Welfare of the Commonwealth of Pa., 364 F.3d 487 (3d Cir. 2004). ........................................................................ 13

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CASES (continued):

PAGE

Hawaii v. Office of Hawaiian Affairs, 129 S. Ct. 1436 (2009)................................. 5

Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997). ................................. 7

In re Deposit Ins. Agency, 482 F.3d 612 (2d Cir. 2007)........................................... 7

Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000)............................................. 17

Koslow v. Commonwealth of Pa., 302 F.3d 161 (3d Cir. 2002), cert. denied, 537 U.S. 1232 (2003)............................................................ 8-10

Lawson v. Shelby County, 211 F.3d 331 (6th Cir. 2000).......................................... 6

League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008). ......................................................................... 7

Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988). .................................................................................... 13

McCarthy v. Hawkins, 381 F.3d 407 (5th Cir. 2004). .............................................. 7

MCI Telecomm. Corp. v. Bell Atlantic-Pa., 271 F.3d 491 (3d Cir. 2001). ...................................................................... 5, 7

Missouri v. Jenkins, 491 U.S. 274 (1989)................................................................. 6

Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721 (2003)........................... 30, 32

O'Connor v. Donaldson, 422 U.S. 563 (1975). ................................................ 21, 31

Olmstead v. L.C., 527 U.S. 581 (1999). .......................................................... passim

Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir. 2005). .................. 11-12, 14

Palmore v. Sidoti, 466 U.S. 429 (1984).................................................................. 21

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CASES (continued):

PAGE

Parham v. J.R., 442 U.S. 584 (1979)...................................................................... 31

Pennsylvania Fed. of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310 (3d Cir. 2002). .......................................................................... 6

Pennsylvania Protection & Advocacy, Inc. v. Pennsylvania Dep't of Pub. Welfare, 402 F.3d 374 (3d Cir. 2005). ............................................. 13

Romer v. Evans, , 517 U.S. 620 (1996). ................................................................. 20

Sossamon v. Lone Star State of Tex., 560 F.3d 316 (5th Cir. 2009). ...................... 10

South Carolina v. Katzenbach, 383 U.S. 301 (1966). ............................................ 22

South Carolina Wildlife Fed'n v. Limehouse, 49 F.3d 324 (4th Cir. 2008). ........................................................................... 7

Spector Motor Serv. v. McLaughlin, 323 U.S. 101 (1944). .................................... 12

Storino v. Borough of Point Pleasant Beach, 322 F.3d 293 (3d Cir. 2003). .......................................................................... 5

Tennessee v. Lane, 541 U.S. 509 (2004). ........................................................ passim

Thomas S. by Brooks v. Flaherty, 902 F.2d 250 (4th Cir. 1990). ........................... 21

United States v. Georgia, 546 U.S. 151 (2006). ................................................ 14-15

United States v. Virginia, 518 U.S. 515 (1996). ..................................................... 33

Verizon Md., Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635(2002). .................................................................................... 6-7

Youngberg v. Romeo 457 U.S. 307 (1082). ...................................................... 21, 31

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STATUTES:

PAGE

Americans with Disabilities Act (ADA), 42 U.S.C. 12131 et seq. (Title II). .................................................................. 2 42 U.S.C. 12101(a)(3). ................................................................................. 23 42 U.S.C. 12131(1)(A). .................................................................................. 2 42 U.S.C. 12132. ............................................................................................ 2 42 U.S.C. 12133. ...................................................................................... 4, 13 42 U.S.C. 12134. ............................................................................................ 3

Civil Rights of Institutionalized Persons Act of 1980, 42 U.S.C. 1997 et seq.. ................................................................................. 27 42 U.S.C. 1997b(a). ...................................................................................... 27

Developmental Disabilities Act of 1984, 42 U.S.C. 6000 et seq.. ................................................................................ 27

Protection and Advocacy for Mentally Ill Individuals Act of 1986, 42 U.S.C. 10801 et seq.. ............................................................................... 27

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794. ............................................................................................. 3-4

42 U.S.C. 12202.................................................................................................. 4, 17

42 U.S.C. 2000d-7. ................................................................................................... 9

REGULATIONS:

28 C.F.R. 35.130(b)(1)(i).......................................................................................... 3

28 C.F.R. 35.130(b)(7)........................................................................................ 3, 11

28 C.F.R. 35.130(d). ............................................................................................... 11

28 C.F.R. 35.150(a)................................................................................................... 4

28 U.S.C. 2403(a). .................................................................................................... 1

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REGULATIONS (continued):

PAGE

29 U.S.C. 794(a). ...................................................................................................... 4

29 U.S.C. 794(b). ...................................................................................................... 4

LEGISLATIVE HISTORY:

2 Staff of the House Comm. on Educ. and Labor, 101st Cong., 2d Sess., Legislative History of Pub. L. No. 101-336: The Americans with Disabilities Act 1203 (Comm. Print 1990). ................................................................................ 26-27

3 Staff of the House Comm. on Educ. and Labor, 101st Cong., 2d Sess., Legislative History of Pub. L. No. 101-336: The Americans with Disabilities Act 2242 (Comm. Print 1990). ..................................................................................... 26

H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 30 (1990). ................................... 33

MISCELLANEOUS:

M. Burgdorf & R. Burgdorf, A History of Unequal Treatment, 15. ....................... 26

Note, Mental Disability and the Right to Vote, 88 Yale L.J. 1644 (1979).............. 26

Timothy M. Cook, The Americans with Disabilities Act: The Move to Integration. .............................................................................. 26

United States Commission On Civil Rights, Accommodating The Spectrum Of Individual Abilities (1983).................... 25

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On March 10, 2009, the Court issued an order certifying “to the Attorney General of the United States that there is drawn in question in this case the constitutionality of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA), and Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794(a).” Specifically, defendant asserts that she is immune under the Eleventh Amendment from private suits under Title II of the ADA and Section 504 of the Rehabilitation Act. As a result, the United States intervened in this matter pursuant to 28 U.S.C. 2403(a) in order to defend the constitutionality of (1) conditioning the receipt of federal financial assistance on a state’s waiver of its sovereign immunity to claims under Section 504 of the Rehabilitation Act; and (2) the abrogation of Eleventh Amendment immunity for claims under Title II of the ADA. The United States now respectfully submits this brief in opposition to the Eleventh Amendment arguments asserted in defendant’s motion to dismiss.
STATEMENT OF THE ISSUES 1. Whether plaintiff’s claims arising under Title II of the ADA and Section 504 of the Rehabilitation Act fall within the exception to Eleventh Amendment immunity established in Ex parte Young. 2. If the district court concludes that plaintiff’s Rehabilitation Act claim does not fall within the scope of the Ex parte Young exception, whether that claim may proceed because (a) the state waived Eleventh Amendment immunity by

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accepting federal funds, and (b) the statutory provision conditioning the receipt of federal funds on a state’s waiver of Eleventh Amendment immunity for suits under Section 504 is valid Spending Clause legislation.
3. If the district court concludes that plaintiff’s ADA claim does not fall within the scope of the Ex parte Young exception, whether plaintiff has stated a valid ADA claim, and, if so, whether the statutory provision abrogating Eleventh Amendment immunity for suits under Title II of the ADA is a valid exercise of Congress’s authority under Section 5 of the Fourteenth Amendment as applied in the context of institutionalization claims.
INTRODUCTION 1. This suit was brought under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. 12131 et seq. That Title provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. 12132. A “public entity” is defined to include “any State or local government” and its components. 42 U.S.C. 12131(1)(A) and (B). The term “disability” is defined as “a physical or mental impairment that substantially limits one or more major life activities of [an] individual; * * * a record of such an impairment; or
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* * * being regarded as having such an impairment.” 42 U.S.C. 12102(1). A “qualified individual with a disability” is a person “who, with or without reasonable modifications * * * meets the essential eligibility requirements” for the governmental program or service. 42 U.S.C. 12131(2).1
The discrimination prohibited by Title II includes, among other things, denying a government benefit to “a qualified individual with a disability” because of his disability, providing him with a lesser benefit than is given to others, or limiting his enjoyment of the rights and benefits provided to others. See, e.g., 28 C.F.R. 35.130(b)(1)(i), (iii), and (vii). In addition, a public entity must “make reasonable modifications in policies, practices, or procedures” if necessary to avoid the exclusion of individuals with disabilities if such modifications can be accomplished without “fundamentally alter[ing] the nature of the service, program, or activity.” 28 C.F.R. 35.130(b)(7). The Act does not normally require a public entity to make its existing physical facilities accessible. Public entities need only ensure that each “service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities,” unless to do so would fundamentally alter the program or impose an undue financial or
1 Congress instructed the Attorney General to issue regulations to implement Title II based on prior regulations promulgated under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794. See 42 U.S.C. 12134.
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administrative burden. 28 C.F.R. 35.150(a). However, facilities altered or constructed after the effective date of the Act must comply with the accessibility requirements set out in 28 C.F.R. 35.150(a) and 35.151.
Title II may be enforced through private suits against public entities. See 42 U.S.C. 12133. Congress expressly abrogated the states’ Eleventh Amendment immunity to private suits in federal court. See 42 U.S.C. 12202.
2. Plaintiff also alleges a violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794. That provision states that “[n]o otherwise qualified individual with a disability in the United States * * * shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. 794(a). The provision applies to a “program or activity,” a term defined to include “all of the operations” of, inter alia, “a department, agency * * * or other instrumentality of a State or of a local government” “any part of which is extended Federal financial assistance.” 29 U.S.C. 794(b). Section 504 may be enforced through private suits against states or state agencies providing programs or activities receiving federal funds. See Barnes v. Gorman, 536 U.S. 181, 185 (2002).
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3. According to the amended complaint, plaintiff seeks relief on behalf of “more than 8,000 citizens in the State of New Jersey who have met all of the requirements for services” that “are currently being denied access to home and community-based services.” First Am. Compl. 2. Plaintiff seeks prospective relief, together with attorney’s fees and costs. First Am. Compl. 30-32.
ARGUMENT I2
PLAINTIFF’S CLAIMS FALL WITHIN THE EXCEPTION TO ELEVENTH AMENDMENT IMMUNITY ESTABLISHED IN EX PARTE
YOUNG Under the doctrine of Ex parte Young, “individual state officers can be sued in their individual capacities for prospective injunctive and declaratory relief to end continuing or ongoing violations of federal law.” MCI Telecomm. Corp. v. Bell Atlantic-Pa., 271 F.3d 491, 506 (3d Cir. 2001). Here, the amended complaint seeks prospective relief against a state official for alleged ongoing violations of
2 Defendant has challenged plaintiff’s standing to bring this case. The United States takes no position with regard to this issue. However, this Court should address the threshold question of standing prior to analyzing defendant’s Eleventh Amendment arguments, and should reach the issues discussed in this brief only if it first concludes that plaintiff has standing. See Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 296 (3d Cir. 2003); see also Hawaii v. Office of Hawaiian Affairs, 129 S. Ct. 1436, 1442 (2009).
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federal law. See First Am. Compl. 25-32. Thus, it falls squarely within the Ex parte Young exception to the Eleventh Amendment.3
It is well established that federal courts need not – and should not – look beyond these allegations in addressing the Ex parte Young issue. See Verizon Md., Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (“In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.”) (internal quotation marks and citation omitted); Pennsylvania Fed. of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 324 (3d Cir. 2002) (“In determining whether the Ex parte Young doctrine avoids an Eleventh Amendment bar, the Supreme Court has made it quite clear that ‘a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly
3 Plaintiff also seeks attorney’s fees and costs, but this does not alter the Ex parte Young analysis. See Missouri v. Jenkins, 491 U.S. 274, 279 (1989) (“[A]n award of attorney’s fees ancillary to prospective relief is not subject to the strictures of the Eleventh Amendment.”); Lawson v. Shelby County, 211 F.3d 331, 335 (6th Cir. 2000) (holding that, under Ex parte Young, “[r]elief ancillary to injunctive relief, such as attorneys’ fees is also permitted”).
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characterized as prospective.’”) (citation omitted).4 In particular, “the inquiry into
whether suit lies under Ex parte Young does not include an analysis of the merits
of the claim.” Verizon, 535 U.S. at 646. See also McCarthy v. Hawkins, 381 F.3d
407, 415-416 (5th Cir. 2004).5
4 See also South Carolina Wildlife Fed’n v. Limehouse, 549 F.3d 324, 332 (4th Cir. 2008) (“For purposes of Eleventh Amendment analysis, it is sufficient to determine that [plaintiff] alleges facts that, if proven, would violate federal law and that the requested relief is prospective.”); League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 474 (6th Cir. 2008) (“The focus of the inquiry remains on the allegations only; it does not include an analysis of the merits of the claim.”) (internal quotation marks and citation omitted); In re Deposit Ins. Agency, 482 F.3d 612, 623 (2d Cir. 2007) (“When a court reviews the legal merits of a claim for purposes of Ex parte Young, it reviews only whether a violation of federal law is alleged.”); Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 496 (4th Cir. 2005) (“We do not consider the merits of the plaintiff’s claims; it is enough that the complaint alleges an ongoing violation of federal law.”).
5 In arguing against the application of Ex parte Young, defendant relies in part on Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997). See Reply Br. 2-3. This reliance is misplaced. As the Third Circuit has noted, “Justice Kennedy’s opinion in Coeur d’Alene cannot be read to establish the controlling standard for Young. Seven Justices rejected such a balancing and agreed that Young generally should apply when an action against a state officer alleges an ongoing violation of federal law and seeks prospective relief.” MCI Telecomm. Corp. v. Bell Atlantic-Pa., 271 F.3d 491, 507 (3d Cir. 2001). And this view subsequently was reinforced by the Supreme Court’s decision in Verizon. See 535 U.S. at 645 (citing concurring and dissenting opinions from Coeur d’Alene). Accordingly, Verizon – not Justice Kennedy’s opinion in Coeur d’Alene – provides the relevant standard for addressing the Ex parte Young issue presented in this case.
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Plaintiff’s claims fall squarely within the Ex parte Young exception. Accordingly, this Court should reject defendant’s Eleventh Amendment arguments and end its analysis without proceeding further. If the Court disagrees, it should follow the steps set forth in Sections II and III below.
II THE STATE WAIVED ELEVENTH AMENDMENT IMMUNITY TO CLAIMS ARISING UNDER SECTION 504 OF THE REHABILITATION
ACT A. The State’s Waiver
If this Court were to conclude that the Ex parte Young exception does not apply, it would proceed to analyze the state’s waiver of immunity. The Third Circuit already has considered a number of challenges to Section 504 of the Rehabilitation Act, including the following: (1) whether the state’s acceptance of federal funds “means it waived its Eleventh Amendment immunity for Rehabilitation Act suits against a department receiving those funds,” (2) “whether the Rehabilitation Act, especially 42 U.S.C. § 2000d-7, imposes an ‘unconstitutional condition’ on the [State’s] receipt of federal funds,” and (3) “whether the Rehabilitation Act is valid legislation under the Spending Clause.” Koslow v. Commonwealth of Pa., 302 F.3d 161, 167 (3d Cir. 2002), cert. denied, 537 U.S. 1232 (2003).
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The panel in Koslow concluded that (1) “if a state accepts federal funds for a specific department or agency, it voluntarily waives sovereign immunity for Rehabilitation Act claims against the department or agency – but only against that department or agency,” 302 F.3d at 171; (2) the Rehabilitation Act’s conditioning of receipt of federal funds upon waiver of Eleventh Amendment immunity is not an unconstitutional condition, id. at 174; and (3) the Rehabilitation Act is valid Spending Clause legislation, id. at 175-176. The ruling in Koslow is controlling.
Defendant argues that the state did not knowingly waive its Eleventh Amendment immunity to suit under the Rehabilitation Act because it could not foresee at the time it accepted federal funds that the ruling in Olmstead v. L.C., 527 U.S. 581 (1999), would be interpreted to cover services for persons with disabilities who already live in the community and seek to avoid institutionalization, as opposed to those who are institutionalized and seek to be integrated into the community. See Br. in Supp. of Mot. to Dismiss 23-25; Reply Br. 5-7. This argument fails.
The issue before the Court on the motion to dismiss is simply whether this suit can proceed against the state. The state was clearly put on notice (by 42 U.S.C. 2000d-7) that, by accepting federal funds, it was subjecting itself to suit in federal court for violations of Section 504. That is all the notice that is required
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for a valid waiver of immunity. The state need not know how Olmstead would be
interpreted nor have knowledge of every conceivable interpretation of the statute in order for its waiver to be knowing, as defendant’s argument implies.6 Rather,
the state must know that its acceptance of federal funds generally subjects it to suit
in federal court for violation of the statute at issue. See A.W. v. Jersey City Publ.
Sch., 341 F.3d 234, 240 (3d Cir. 2003) (“The state’s ‘acceptance of the funds
entails an agreement’ to the condition of consenting to suit in federal court.”)
(quoting College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd.,
527 U.S. 666, 686 (1999)); id. at 241 (“In the context of the gift of federal funds,
the clear congressional statement that entitlement to federal funds is conditioned
on the waiver of immunity, taken together with the state’s receipt of these funds,
constitute a declaration of the state’s submission to federal-court jurisdiction.”);
see also Sossamon v. Lone Star State of Tex., 560 F.3d 316, 330 (5th Cir. 2009)
6 Defendant’s argument with regard to this issue is based in part on the Third Circuit’s statement in Koslow that, “where a state participates in a federal financial assistance program ‘in light of the existing state of the law,’ the state is charged with awareness that accepting federal funds can result in the waiver of Eleventh Amendment immunity,” 302 F.3d at 172 (quoting Edelman v. Jordan, 415 U.S. 651, 687 (1974)). See Reply Br. 5. The United States respectfully submits that defendant construes this language too broadly; it should be read to require knowledge that the state may be subject to suit in federal court for violation of Section 504, not as a limitation of the waiver to only those types of Section 504 claims that had been litigated at the time the state accepted federal funds.
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(“When deciding the validity of a putative waiver of sovereign immunity through
a state’s participation in a Spending Clause ‘contract,’ we ask whether Congress
spoke with sufficient clarity to put the state on notice that, to accept federal funds,
the state must also accept liability for monetary damages.”); Pace v. Bogalusa City
Sch. Bd., 403 F.3d 272, 279 (5th Cir. 2005) (“In our reading of [Pennhurst State
Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981)], the only ‘knowledge’ that the
Court is concerned about is a state’s knowledge that a Spending Clause condition
requires waiver of immunity, not a state’s knowledge that it has immunity that it
could assert.”).7 Defendant’s argument therefore fails.8
7 Even if knowledge of potential interpretations of the statute were required, that standard is satisfied in this case. The primary point of Olmstead is the importance of integration, and the language of the opinion is broad enough to have put the state on notice that qualified individuals should not be institutionalized unnecessarily, regardless of their current situation. See 527 U.S. at 601. In addition, the relevant regulations also provide notice. See 28 C.F.R. 35.130(d) (“A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”); 28 C.F.R. 35.130(b)(7) (“A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.”). These principles are equally applicable whether the person already resides in an institution or, as here, is integrated into the community but is seeking community-based services so as to avoid institutionalization.
At bottom, defendant’s objection on this point goes more to cost than to (continued...)
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B. If This Court Concludes That The State Waived Eleventh Amendment Immunity With Respect To Section 504 Claims, It Should Permit Plaintiff To Proceed Only On That Ground
Considering a constitutional challenge to an act of Congress
is “the gravest and most delicate duty that [a] Court is called on to perform.”
Blodgett v. Holden, 275 U.S. 142, 147-148 (1927) (opinion of Holmes, J.). “If
there is one doctrine more deeply rooted than any other in the process of
constitutional adjudication, it is that we ought not to pass on questions of
constitutionality * * * unless such adjudication is unavoidable.” Spector Motor
Serv. v. McLaughlin, 323 U.S. 101, 105 (1944). Accordingly, a “fundamental and
longstanding principle of judicial restraint requires that courts avoid reaching
7(...continued) notice. However, cost-based objections are more properly dealt with as part of the inquiry into whether plaintiff has stated a Section 504 claim, not in the context of the state’s waiver of Eleventh Amendment immunity. To the extent defendant believes that providing community-based services to qualified individuals who already reside in the community will be unreasonably expensive, see Olmstead, 527 U.S. at 603-606 (discussing defense), she may raise that defense in her answer to the amended complaint.
8 If Congress has the power under the Fourteenth Amendment to abrogate a state’s Eleventh Amendment immunity to claims under Title II of the ADA, it has the same power with respect to claims under Section 504. See Pace, 403 F.3d at 301 n.5 (5th Cir. 2005) (Jones, J., concurring in part and dissenting in part) (citing cases). Accordingly, even if not waived, the state’s sovereign immunity to Section 504 claims was properly abrogated for the reasons stated in Section III.B. below with regard to the ADA.
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constitutional questions in advance of the necessity of deciding them.” Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988).
The substantive provisions of Section 504 and Title II are the same for purposes of establishing liability in this case. See Bowers v. National Collegiate Athletic Ass’n, 475 F.3d 524, 535 n.12 (3d Cir. 2007) (“Although the language of the ADA and Rehabilitation Act differs, the standards for determining liability under the two statutes are identical.”) (citing McDonald v. Commonwealth of Pa., Dep’t of Pub. Welfare, 62 F.3d 92, 94 (3d Cir. 1995)). This holds true with regard to the integration mandate. See Frederick L. v. Department of Pub. Welfare of the Commonwealth of Pa., 364 F.3d 487, 491-492 (3d Cir. 2004) (“[W]here appropriate for the patient, both the ADA and RA favor integrated, communitybased treatment over institutionalization.”); see also Pennsylvania Protection & Advocacy, Inc. v. Pennsylvania Dep’t of Pub. Welfare, 402 F.3d 374, 379 & n.3 (3d Cir. 2005). It also holds true with regard to remedies. See 42 U.S.C. 12133; Bowers v. National Collegiate Athletic Ass’n, 346 F.3d 402, 419 (3d Cir. 2003) (noting that Title II “provides that the remedies, procedures and rights applicable to Section 504 of the Rehabilitation Act also are applicable under Title II”) (citing 42 U.S.C. 12133).
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Thus, if this Court determines that plaintiff has stated a valid Section 504 claim9 it should allow plaintiff to proceed under Section 504 alone, and avoid reaching the constitutionality of Title II. That is, because plaintiff can secure any and all relief to which it is entitled under Section 504, there is no reason for this Court to pass on the constitutionality of Title II’s abrogation of immunity. See Pace, 403 F.3d at 287-289; Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448, 455 (5th Cir. 2005).
III CONGRESS PROPERLY ABROGATED ELEVENTH AMENDMENT IMMUNITY WITH REGARD TO CLAIMS ARISING UNDER TITLE II
OF THE ADA A. Before Reaching The Abrogation Issue, This Court Must Follow The Steps
Established In United States v. Georgia 1. United States v. Georgia If this Court determines that it must reach the ADA claim, the procedure for doing so is set forth in United States v. Georgia, 546 U.S. 151 (2006). Under Georgia, lower courts must “determine in the first instance, on a claim-by-claim basis, (1) which aspects of the State’s alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar
9 The United States takes no position with regard to whether plaintiff has stated a valid Section 504 claim.
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as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.” 546 U.S. at 159.
Thus, in order to resolve the immunity question in the present case, this Court first must determine whether plaintiff states a claim under Title II. The Court must then determine if any valid Title II claim would independently state a constitutional claim. And finally, if plaintiff has alleged a valid Title II claim that is not also a constitutional violation, only then should this Court consider whether the prophylactic protection afforded by Title II is a valid exercise of Congress’s authority under Section 5 of the Fourteenth Amendment as applied to the “class of conduct” at issue. Georgia, 546 U.S. at 159.10
2. Defendant’s Attempt To Distinguish Olmstead Fails Defendant argues that this case is different from Olmstead v. L.C., 527 U.S. 581 (1999), in part because the individuals at issue already live in the community, whereas the plaintiffs in Olmstead were institutionalized and seeking integration into the community. See Br. in Supp. of Mot. to Dismiss 16. At least with regard to the Eleventh Amendment issue, this is a distinction without a difference. To the
10 The United States takes no position with regard to whether plaintiff has stated a valid Title II claim or whether any such claim would independently state a constitutional violation.
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extent it is relevant at all, this argument goes more to the merits of whether plaintiff has stated a valid claim under Title II (the first step in the Georgia analysis) than to whether the abrogation of Eleventh Amendment immunity is valid in the context of institutionalization claims (the second step of the Georgia analysis).
This is the part of the inquiry that focuses on the specific allegations of plaintiff’s complaint. In contrast, the validity of the abrogation of immunity turns on whether there is a sufficient basis for Congress to act in the context of institutions generally, not on the position (i.e., institutionalized or not) of a plaintiff in any given case. Thus, the validity of Congress’s abrogation of Eleventh Amendment immunity with regard to institutionalization does not turn on whether the person seeking such services is institutionalized. Accordingly, the Court should address any claim that this case is distinguishable from Olmstead as part of its inquiry into whether plaintiff has stated a claim under Title II, not as part of the abrogation inquiry. B. Congress Properly Abrogated Eleventh Amendment Immunity For Title II
Claims If this Court determines that it is necessary to address defendant’s Eleventh
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Amendment arguments regarding the ADA claim, it should hold that the abrogation of immunity under Title II is a valid exercise of Congress’s powers under the Fourteenth Amendment.
1. Tennessee v. Lane Although the Eleventh Amendment ordinarily renders a state immune from suits in federal court by private citizens, Congress may abrogate states’ immunity if it “unequivocally expresse[s] its intent to abrogate that immunity” and “act[s] pursuant to a valid grant of constitutional authority.” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000). There is no question that Congress unequivocally expressed its intent to abrogate states’ sovereign immunity to claims under the ADA. See 42 U.S.C. 12202; Tennessee v. Lane, 541 U.S. 509, 517-518 (2004). Moreover, it is settled that “Congress can abrogate a State’s sovereign immunity when it does so pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment to enforce the substantive guarantees of that Amendment.” Lane, 541 U.S. at 518. Because Title II is valid legislation to enforce the Fourteenth Amendment in the context of institutionalization, the ADA abrogation provision is valid as applied to this case. In Lane, the Supreme Court considered the claims of two plaintiffs, George Lane and Beverly Jones, “both of whom are paraplegics who use wheelchairs for
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mobility” and who “claimed that they were denied access to, and the services of, the state court system by reason of their disabilities” in violation of Title II. 541 U.S. at 513. Lane was a defendant in a criminal proceeding held on the second floor of a courthouse with no elevator. Ibid. “Jones, a certified court reporter, alleged that she had not been able to gain access to a number of county courthouses, and, as a result, has lost both work and an opportunity to participate in the judicial process.” Id. at 514. The state argued that Congress lacked the authority to abrogate the state’s Eleventh Amendment immunity to these claims. The Supreme Court in Lane disagreed. See 541 U.S. at 533-534.
To reach this conclusion, the Court applied the three-part analysis for Fourteenth Amendment legislation established by City of Boerne v. Flores, 521 U.S. 507 (1997). The Court considered: (1) the “constitutional right or rights that Congress sought to enforce when it enacted Title II,” Lane, 541 U.S. at 522; (2) whether there was a history of unconstitutional disability discrimination to support Congress’s determination that “inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation,” id. at 529; and (3) “whether Title II is an appropriate response to this history and pattern of unequal treatment,” as applied to the class of cases implicating access to judicial services. Id. at 530.
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With respect to the first question, the Court found that Title II enforces rights under the Equal Protection Clause as well as an array of rights subject to heightened constitutional scrutiny under the Due Process Clause of the Fourteenth Amendment. See Lane, 541 U.S. at 522-523. With respect to the second question, the Court conclusively found a sufficient historical predicate of unconstitutional disability discrimination in the provision of public services to justify enactment of a prophylactic remedy pursuant to Congress’s authority under Section 5 of the Fourteenth Amendment. See id. at 523-529. And finally, with respect to the third question, the Court found that the congruence and proportionality of the remedies in Title II should be judged on a category-by-category basis in light of the particular constitutional rights at stake in the relevant category of public services. See id. at 530-531.
The Supreme Court declined to “examine the broad range of Title II’s applications all at once, and to treat that breadth as a mark of the law’s invalidity.” Lane, 541 U.S. at 530. Instead, the Court concluded that the only question before it was “whether Congress had the power under § 5 to enforce the constitutional right of access to the courts.” Id. at 531.
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Viewed in light of Lane, Title II is valid Fourteenth Amendment legislation
as applied to cases relating to institutionalization.11
2. Constitutional Rights Implicated
Title II enforces the Equal Protection Clause’s “prohibition on irrational
disability discrimination,” as well as “a variety of other basic constitutional
guarantees, infringements of which are subject to more searching judicial review.”
Lane, 541 U.S. at 522-523. In the context of this case, Title II acts to enforce the
Equal Protection Clause’s prohibition against arbitrary treatment based on
irrational stereotypes or hostility,12 as well as the heightened constitutional
11 The Court in Lane did not examine the congruence and proportionality of Title II as a whole because the Court found that the statute was valid Section 5 legislation as applied to the class of cases before it. Because Title II is valid Section 5 legislation in the institutionalization context, this Court need not consider the validity of Title II as a whole. The United States continues to maintain, however, that Title II as a whole is valid Section 5 legislation because it is congruent and proportional to Congress’s goal of eliminating discrimination on the basis of disability in the provision of public services – an area that the Supreme Court in Lane determined is an “appropriate subject for prophylactic legislation” under Section 5. 541 U.S. at 529.
12 Even under rational basis scrutiny, “[m]ere negative attitudes, or fear” alone cannot justify disparate treatment of those with disabilities. Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985)). A purported rational basis for treatment of the disabled will also fail if the state does not accord the same treatment to other groups similarly situated, see id. at 366 n.4; City of Cleburne, 473 U.S. at 447-450, if it is based on “animosity,” see Romer v. Evans,
(continued...)
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protection applied to the “treatment of disabled persons by state agencies in a variety of settings, including unjustified commitment, e.g., Jackson v. Indiana, 406 U.S. 715 (1972); [and] the abuse and neglect of persons committed to state mental health hospitals, Youngberg v. Romeo, 457 U.S. 307 (1982).” Id. at 525. See also O’Connor v. Donaldson, 422 U.S. 563, 573-576 (1975) (unconstitutional institutionalization); Thomas S. by Brooks v. Flaherty, 902 F.2d 250 (4th Cir. 1990) (confinement when appropriate community placement available); Clark v. Cohen, 794 F.2d 79 (3d Cir. 1986) (same).
As was true of the right of access to courts at issue in Lane, “ordinary considerations of cost and convenience alone cannot justify” institutionalization decisions or the denial of institutionalized persons accommodations necessary to ensure their basic rights. Lane, 541 U.S. at 533; see e.g., O’Connor, 422 U.S. at 575-576; Youngberg, 457 U.S. at 324-325. Finally, as described below, the integration mandate of Title II assists in the prevention of constitutional violations throughout the range of government services, many of which implicate fundamental constitutional rights. See Lane, 541 U.S. at 540 (Rehnquist, C.J., dissenting).
12(...continued) 517 U.S. 620, 634 (1996), or if it simply gives effect to “private biases,” see Palmore v. Sidoti, 466 U.S. 429, 433 (1984).
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3. Historical Predicate “Whether Title II validly enforces these constitutional rights is a question that ‘must be judged with reference to the historical experience which it reflects.’” Lane, 541 U.S. at 523 (quoting South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966)). Accordingly, in Lane, the Court reviewed the historical experience reflected in Title II and concluded that “Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights.” 541 U.S. at 524. The Court remarked on the “sheer volume of evidence demonstrating the nature and extent of unconstitutional discrimination against persons with disabilities in the provision of public services,” id. at 528, and concluded that it is “clear beyond peradventure that inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation,” id. at 529.
a. Lane Conclusively Established The Adequacy Of The Predicate For Title II’s Application To Discrimination In All Public Services
Although Lane ultimately upheld Title II as valid Fourteenth Amendment legislation only as applied to access to courts, its conclusions regarding the historical predicate for Title II are not limited to that context. The Supreme Court
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did not begin its “as-applied” analysis until it reached the third step of the Boerne
analysis addressing the Act’s congruence and proportionality. See Lane, 541 U.S.
at 530-532. At the second step, the Court considered the record supporting Title II
in all its applications and found the record included not only “a pattern of
unconstitutional treatment in the administration of justice,” id. at 525, but also
violations of constitutional rights in the context of voting, jury service, the penal
system, public education and institutionalization, id. at 524-525. That record, the
Court concluded, supported prophylactic legislation to address discrimination in “public services” generally. Id. at 529.13
Thus, the adequacy of Title II’s historical predicate to support prophylactic
legislation addressing discrimination in public services is clear. Likewise, there is
an ample historical basis for extending Title II to disability discrimination relating
to institutionalization.
13 In describing the adequacy of the historical predicate, the Court also spoke in general terms, remarking, for instance, on “the sheer volume of evidence demonstrating the nature and extent of unconstitutional discrimination against persons with disabilities in the provision of public services.” Lane, 541 U.S. at 528 (emphasis added). In concluding that “the record of constitutional violations in this case * * * far exceeds the record in Hibbs,” id. at 529, the Court specifically referred to the record of “exclusion of persons with disabilities from the enjoyment of public services,” ibid. (emphasis added), rather than to the record of exclusion from judicial services in particular. See also ibid. (relying on congressional finding in 42 U.S.C. 12101(a)(3) and italicizing phrase “access to public services” rather than specific examples of public services listed in the finding).
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b. Historical Discrimination Against People With Disabilities Subject To Institutionalization
Of particular relevance to this case, the Supreme Court expressly acknowledged and cited the well-documented pattern of unconstitutional treatment of and discrimination against persons with disabilities in the context of institutionalization. See Lane, 541 U.S. at 524-525 (“The historical experience that Title II reflects is also documented in this Court’s cases, which have identified unconstitutional treatment of disabled persons by state agencies in a variety of settings, including unjustified commitment * * * [and] the abuse and neglect of persons committed to state mental health hospitals.”) (citations omitted); see also id. at 525 n.10 (“The undisputed findings of fact in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981), provide another example of such mistreatment. See id. at 7 (‘Conditions at Pennhurst are not only dangerous, with the residents often physically abused or drugged by staff members, but also inadequate for the ‘habilitation’ of the retarded’).”) (parallel citations omitted).
Indeed, the Supreme Court has long acknowledged the nation’s “history of unfair and often grotesque mistreatment” of persons with disabilities. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 454 (1985) (Stevens, J., concurring) (citation omitted); see also Olmstead, 527 U.S. at 608 (Kennedy, J.,
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concurring) (“[O]f course, persons with mental disabilities have been subject to historic mistreatment, indifference, and hostility.”).
During the early twentieth century, the eugenics movement labeled persons with mental and physical disabilities as “sub-human creatures” and “waste products” responsible for poverty and crime. United States Commission On Civil Rights, Accommodating The Spectrum Of Individual Abilities 20 (1983) (Spectrum). A cornerstone of that movement was forced institutionalization directed at separating individuals with disabilities from the community at large.14 “A regime of state-mandated segregation” emerged in which “[m]assive custodial institutions were built to warehouse the retarded for life; the aim was to halt reproduction of the retarded and ‘nearly extinguish their race.’” Cleburne, 473 U.S. at 462 (Marshall, J., concurring in part and dissenting in part) (internal quotations omitted).15 State statutes provided for the involuntary
14 See Spectrum 19-20; see also Employees of Dep’t of Pub. Health & Welfare v. Department of Pub. Health & Welfare, 411 U.S. 279, 284 n.2 (1973) (noting that “the institutionalization of the insane became the standard procedure of the society” and a “cult of asylum swept the country”) (quoting D. Rothman, The Discovery of the Asylum 130 (1971)).
15 See also Cleburne, 473 U.S. at 463 n.9 (noting Texas statute, enacted in 1915 (and repealed in 1955), with stated purpose of institutionalizing the mentally retarded to relieve society of “the heavy economic and moral losses arising from the existence at large of these unfortunate persons”).
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institutionalization of persons with disabilities.16 Additionally, many states accompanied institutionalization with compulsory sterilization and prohibitions of marriage. Cleburne, 473 U.S. at 462-463 (Marshall, J., concurring in part and dissenting in part); see also Buck v. Bell, 274 U.S. 200, 207 (1927) (upholding compulsory sterilization law “in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. * * * Three generations of imbeciles are enough.”).17
In considering the ADA, Congress also heard testimony regarding unconstitutional treatment and unjustified institutionalization of persons with disabilities in state facilities. See, e.g., 2 Staff of the House Comm. on Educ. and Labor, 101st Cong., 2d Sess., Legislative History of Pub. L. No. 101-336: The Americans with Disabilities Act 1203 (Comm. Print 1990) (Leg. Hist.) (Lelia
16 See Spectrum 19; Timothy M. Cook, The Americans with Disabilities Act: The Move to Integration, 64 Temp. L. Rev. 393, 400 (1991); see also Note, Mental Disability and the Right to Vote, 88 Yale L.J. 1644 (1979).
17 See also 3 Staff of the House Comm. on Educ. and Labor, 101st Cong., 2d Sess., Legislative History of Pub. L. No. 101-336: The Americans with Disabilities Act 2242 (Comm. Print 1990) (James Ellis); M. Burgdorf & R. Burgdorf, A History of Unequal Treatment, 15 Santa Clara Lawyer 855, 887-888 (1975).
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Batten) (state hospitals are “notorious for using medication for controlling the behavior of clients and not for treatment alone. Seclusion rooms and restraints are used to punish clients.”); id. at 1262-1263 (Eleanor C. Blake) (detailing the “minimal, custodial, neglectful, abusive” care received at state mental hospital, and willful indifference resulting in rape); see also Spectrum 32-35. In addition, Congress drew upon its prior experience investigating institutionalization in passing the Civil Rights of Institutionalized Persons Act of 1980, 42 U.S.C. 1997 et seq., the Developmental Disabilities Act of 1984, 42 U.S.C. 6000 et seq., and the Protection and Advocacy for Mentally Ill Individuals Act of 1986, 42 U.S.C. 10801 et seq.
Moreover, the Department of Justice’s investigations in the 1980s under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. 1997 et seq., further documented egregious and flagrant denials of constitutional rights by state-run institutions for individuals with disabilities.18 Unconstitutional uses of physical and medical restraints were commonplace in many institutions. For example, investigations found institutions strapping mentally retarded residents to their beds
18 In the years immediately preceding enactment of the ADA, the Department of Justice found unconstitutional treatment of individuals with disabilities in state institutions for the mentally retarded or mentally ill in more than 25 states. The results of those investigations were recorded in findings letters required by 42 U.S.C. 1997b(a).
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in restraints for the convenience of staff.19 One facility forced mentally retarded
residents to inhale ammonia fumes as punishment for misbehavior.20 Residents in
other facilities lacked adequate food, clothing and sanitation.21 Many state
facilities failed to provide basic safety to residents, resulting in serious physical
19 See Notice of Findings Regarding Los Lunas Hospital and Training School 2 (1988); Notice of Findings Regarding Fairview Training Center 4-5 (1985) (residents frequently placed in physical restraints and medicated in lieu of being given training or treatment); Notice of Findings Regarding Westboro State Hospital 7 (1986) (“Our consultant found numerous incidents where bodily restraint was inappropriately used as punishment for antisocial behavior, for the convenience of staff, or in lieu of treatment, in violation of the residents’ constitutional rights.”).
20 See Notice of Findings Regarding Los Lunas Hospital and Training School 2 (1988).
21 See, e.g., Notice of Findings Regarding Hawaii State Hospital 2-3 (1990) (residents lacked adequate food, had to wrap themselves in sheets for lack of clothing, and were served food prepared in a kitchen infested with cockroaches); Notice of Findings Regarding Westboro State Hospital 3 (1986) (investigation found that the “smell and sight of urine and feces pervade not only toilet areas, but ward floors and walls as well * * *. Bathrooms and showers were filthy. Living areas are infested with vermin. There are consistent shortages of clean bed sheets, face cloths, towels, and underwear.”); Notice of Findings Regarding Fairview Training Center 6, 9 (1985) (due to lack of adequate staffing, many residents suffer from “the unhealthy effects of poor oral and other bodily hygiene. We observed several residents who were laying or sitting in their own urine or soiled diapers or clothes,” while 35% “had pinworm infection, a parasite which is spread by fecal and oral routes in unclean environments”).
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injuries, sexual assaults, and even deaths.22 Others were denied minimally
adequate medical care, leading to serious medical complications and further
deaths.23
This record demonstrates that “Congress was justified in concluding that
this ‘difficult and intractable proble[m]’ warranted ‘added prophylactic measures
22 Notice of Findings Regarding Los Lunas Hospital and Training School 3 (1988) (facility failed to provide minimally adequate supervision and safety, and as a result “a woman was raped, developed peritonitis and died”); Notice of Findings Regarding Rosewood Center 4 (1982) (inadequate supervision of residents contributed to rapes and sexual assaults of several residents; profoundly retarded resident left unsupervised drowned in bathtub; another died of exposure after leaving the facility unnoticed); Notice of Findings Regarding Fairview Training Center 3 (1985) (Department found “numerous residents with open wounds, gashes, abrasions, contusions and fresh bite marks” due to lack of training for residents); Notice of Findings Regarding Northville Regional Psychiatric Center 2-3 (1984) (one resident died after staff placed him in a stranglehold and left him unconscious on seclusion room floor for 15-20 minutes before making any effort to resuscitate him); id. at 3 (several other residents found dead with severe bruising, many other incidents of “rape, assault, threat of assault, broken bones and bruises” found).
23 See, e.g., Notice of Findings Regarding Enid and Pauls Valley State Schools 2 (1983) (inadequate medical care and monitoring contributed to deaths of six residents); Notice of Findings Regarding Manteno Mental Health Center 4 (1984) (investigation of state mental health facility found “widespread occurrence of severe drug side-effects” that could be “debilitating or life-threatening” going “unmentioned in patient records, unrecognized by staff, untreated, or inappropriately treated”); Notice of Findings Regarding Napa State Hospital 2-3 (1986) (facility staff “violated all known standards of medical practice by prescribing psychotropic medications in excessively large daily doses” and by failing to monitor patients for serious, potentially irreversible side effects).
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in response.’” Lane, 541 U.S. at 531 (quoting Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 737 (2003)).
4. Congruence And Proportionality “The only question that remains is whether Title II is an appropriate response to this history and pattern of unequal treatment.” Lane, 541 U.S. at 530. To answer that question, this Court must decide whether Title II is congruent and proportionate legislation as applied to the class of cases implicating the constitutional rights of institutionalized persons. As was true of access to courts, the “unequal treatment of disabled persons” in the area of institutions “has a long history, and has persisted despite several legislative efforts.” Lane, 541 U.S. at 531; see id. at 527-528; Olmstead, 527 U.S. at 599-600 (describing prior statutes). Thus, Congress faced a “difficult and intractable proble[m],” Lane, 541 U.S. at 531, which it could conclude would “require powerful remedies.” Id. at 524. Nonetheless, the remedy imposed by Title II is “a limited one.” Lane, 541 U.S. at 531. Even though it requires states to take some affirmative steps to avoid discrimination, it “does not require States to compromise their essential eligibility criteria,” requires only “‘reasonable modifications’ that would not fundamentally alter the nature of the service provided,” id. at 532, and does not require states to
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“undertake measures that would impose an undue financial or administrative burden * * * or effect a fundamental alteration in the nature of the service,” ibid. See also Olmstead, 527 U.S. at 603-606 (plurality).
Title II’s carefully-circumscribed integration mandate is consistent with the commands of the Constitution in this area. Congress was well aware of the long history of state institutionalization decisions being driven by insufficient or illegitimate state purposes, irrational stereotypes, and even outright hostility toward people with disabilities. See Section III.B.3.b., supra. Title II provides a proportionate response to that history, congruent with the requirements of the Due Process and Equal Protection Clauses, by requiring the state to treat people with disabilities in accordance with their individual needs and capabilities. Compare Olmstead, 527 U.S. at 602, with O’Connor, 422 U.S. at 575-576 (requiring individualized assessment prior to involuntary commitment); Parham v. J.R., 442 U.S. 584, 600, 606-607 (1979) (same for voluntary commitment of a child); Youngberg, 457 U.S. at 321-323 (requiring individualized consideration in context of conditions of confinement within institutions).
Moreover, given the history of unconstitutional compulsory institutionalization, Congress was entitled to conclude that there exists a real risk that some state officials may continue to make placement decisions based on
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hidden invidious class-based stereotypes or animus that would be difficult to detect or prove. See Hibbs, 538 U.S. at 732-733, 735-736 (addressing gender discrimination). Title II appropriately balances the need to protect against that risk and the state’s legitimate interests. Olmstead generally permits a state to limit services to an institutional setting when treating professionals determine that a restrictive setting is necessary for an individual patient, or when providing a community placement would impose unwarranted burdens on the state’s ability to “maintain a range of facilities and to administer services with an even hand.” 527 U.S. at 605 (plurality). But when a state persistently refuses to follow the advice of professionals and is unable to demonstrate that its decision is justified by sufficient administrative or financial considerations, the risk of unconstitutional treatment is sufficient to warrant Title II’s prophylactic response. Compare Hibbs, 538 U.S. at 736-737 (Congress may respond to risk of “subtle discrimination that may be difficult to detect on a case-by-case basis” by “creating an across-theboard, routine employment benefit for all eligible employees.”).24
24 The integration mandate is also a proportionate response to the history of “abuse and neglect of persons committed to state mental health hospitals.” Lane, 541 U.S. at 525. Congress could justifiably respond to this record of unconstitutional treatment within institutions by requiring reasonable steps to remove from such settings those who can be adequately treated in community settings. The reasonable modification and other Title II requirements further
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Title II also serves broader remedial and prophylactic purposes. The integration accomplished by Title II is a proper remedy for the continuing segregative effects of the historical exclusion of people with disabilities from their communities, schools, and other government services. See Lane, 541 U.S. at 524525; United States v. Virginia, 518 U.S. 515, 547 (1996) (“A proper remedy for an unconstitutional exclusion * * * aims to eliminate so far as possible the discriminatory effects of the past and to bar like discrimination in the future.”) (citation and internal punctuation omitted). It is also a reasonable prophylaxis against the risk of future unconstitutional discrimination in government services. “[I]nstitutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Olmstead, 527 U.S. at 600. Much of the discrimination Congress documented occurred in the context of individual state officials making discretionary decisions driven by just such “false presumptions, generalizations, misperceptions, patronizing attitudes, ignorance, irrational fears, and pernicious mythologies.” H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 30 (1990). Congress could reasonably expect that Title II’s
24(...continued) ensure that those who remain in state care are afforded the individualized treatment that is often necessary to ensure basic safety and humane conditions.
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integration mandate would reduce the risk of unconstitutional state action by ameliorating one of its root causes through “increasing social contact and interaction of nonhandicapped and handicapped people.” Spectrum 43.
Thus, the integration mandate plays an important role in Title II’s larger goal of relieving the isolation and invisibility of people with disabilities that is both a legacy of past unconstitutional treatment and a contributor to continuing denials of basic constitutional rights. Accordingly, in the context presented by this case, Title II “cannot be said to be so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” Lane, 541 U.S. at 533 (citation and internal quotation marks omitted).
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CONCLUSION If it reaches the issue, this Court should hold that the Eleventh Amendment does not bar plaintiff’s claims arising under Title II of the ADA and Section 504 of the Rehabilitation Act.

LORETTA KING Acting Assistant Attorney General
JESSICA DUNSAY SILVER DIRK C. PHILLIPS
Attorneys U.S. Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, D.C. 20044-4403 (202) 305-4876

Respectfully submitted,
RALPH J. MARRA, JR. Acting United States Attorney
s/ J. Andrew Ruymann By: J. ANDREW RUYMANN
Assistant U.S. Attorney Attorney for Intervenor

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 Case 3:08-cv-01858-AET -LHG Document 37 Filed 07/23/09 Page 1 of 7 PageID: 526

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

NEW JERSEY PROTECTION AND ADVOCACY, INC.,
Plaintiff,
v.
JENNIFER VELEZ, in her official capacity as Commissioner of the New Jersey Department of Human Services,
Defendant.

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Civil No. 08-1858 (AET)

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MEMORANDUM AND ORDER

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THOMPSON, U.S.D.J.

INTRODUCTION

This matter comes before the Court upon Defendant’s Motion to Dismiss [20], filed

pursuant to Fed. R. Civ. P. 12 (b)(1) and Fed. R. Civ. P. 12(b)(6). The Court has decided the

motion based upon the submissions of the parties, without oral argument, pursuant to Fed. R.

Civ. P. 78. For the reasons stated below, Defendant’s motion is denied.

BACKGROUND

A. Factual Background

Plaintiff New Jersey Protection & Advocacy (“NJP&A”) is a federally-funded non-profit

corporation, designated by the State of New Jersey (“State”), to serve as the State’s protection

and advocacy system for the disabled. Defendant Jennifer Velez is sued in her official capacity

as the Commissioner of the New Jersey Department of Human Services (“DHS”). Plaintiff

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brings this suit as an associational plaintiff on behalf of qualifying disabled individuals who allege that the DHS neglected its statutory obligations under Title II of the Americans with Disabilities Act (“Title II” or “ADA”), as well as Section 504 of the Rehabilitation Act (“Section 504”).
Plaintiff contends that New Jersey participates in a federally-funded home and community-based waiver program whereupon the State receives Medicaid reimbursement for services provided to disabled individuals living within the community, as opposed to those placed in development centers (i.e., institutions). Plaintiff alleges that many of the individuals who have not had their cases handled get placed on a waiting-list. Plaintiff contends that these individuals usually have development disabilities such as mental retardation, autism, cerebral palsy, and other traumatic brain injuries. NJP&A contends it brings this suit on behalf of individuals who reside in the community but who are in danger of being unnecessarily institutionalized in one of the State’s seven, large, congregate facilities (known as “development centers”), and who wish to reside in more integrated settings in the community.
Plaintiff contends that a requirement of participating in Title II is that the State must provide requested services to individuals with reasonable promptness. Plaintiff alleges DHS has failed to act in the manner that Title II requires. Specifically, Plaintiff alleges that more than 8,000 individuals have had their requests for community-based services indefinitely wait-listed. This, Plaintiff contends, violates Title II and Section 504.
In lieu of an Answer, Defendant filed the instant motion. For the purposes of the instant motion, Defendant accepts the facts outlined in the Amended Complaint but not the legal conclusions. For its part, Defendant contends Plaintiff’s Complaint should be dismissed because
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Plaintiff does not have standing to assert claims on behalf of its constituents. Furthermore, Defendant maintains that, irrespective of any standing arguments, the suit is constitutionally barred because Congress failed to abrogate the State’s Eleventh Amendment sovereign immunity and that the State did not waive its sovereign immunity by accepting federal monies under Section 504. B. Procedural Background
On April 16, 2008, NJP&A filed the instant suit [1]. On September 9, 2008, the Court granted Defendant’s Motion for a More Definite Statement [15], and to strike portions of the Complaint. On September 26, 2008, Plaintiff filed a First Amended Complaint [16]. On December 31, 2008, Defendant filed the instant motion [20].
On February 23, 2009, pursuant to Local Civil Rule 24.1(a) and 28 U.S.C. § 2403(a), Defendant notified the Court [25] that the instant motion questions the constitutionality of two acts of Congress. On March 10, 2009, the Court issued an Order [30] certifying to the Attorney General of the United States a challenge to the constitutionality of two Congressional acts. On May 28, 2009, the United States (“the government” or “Intervenor”) submitted a Notice of Intervention [35], and later a brief [36] in support of intervention.
DISCUSSION A. Standing
Defendant files the Motion to Dismiss under Fed. R. Civ. P. 12(b)(6). However, since Defendant’s standing argument implicates the Court’s subject matter jurisdiction over this case, the Court will construe that portion of Defendant’s motion discussing standing as being brought pursuant to Fed. R. Civ. P. 12(b)(1). Defendant alleges this Court lacks subject matter
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jurisdiction because Plaintiff does not have standing to bring the suit, and therefore dismissal is appropriate. Plaintiff contends that it has associational standing because it brings this suit on behalf of certain disabled individuals, for whom NJP&A advocates.
In order to establish associational standing, a Plaintiff must demonstrate: “(1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Washington State Apple Advertising Com'n, 432 U.S. 333, 343 (1977).
Here, Plaintiff meets the first element of the Court’s associational standing analysis because its members have standing to sue in their own right. Id. In order to have standing under Article III of the Constitution, (1) the plaintiff must have suffered an injury in fact–an invasion of a legally protected interest which is concrete and particularized; and actual or imminent; (2) there must be a causal connection between the injury and the conduct complained of; and (3) it must be likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
Here, NJP&A’s constituents could sue in their own right. Their injury is premised on the denial of social services otherwise due to constituents. Furthermore, because the DHS is responsible for the placement of certain NJP&A’s constituents, there appears a causal connection between the injury and conduct complained of. And, lastly, should the individual constituents receive a favorable decision in this Court, their injury would likely be redressed, thereby satisfying the final element of the Lujan standing analysis. Id. Therefore, because the Court concludes members of NJP&A have fulfilled the three-pronged Lujan test, and could sue in their
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own right, they have satisfied step one of the associational standing framework outlined in Hunt. The second step of the Court’s associational standing analysis requires that the interests
an association seeks to protect are germane to the association’s interests. Hunt, 432 U.S. at 343. Plaintiff, here, also meets that step. NJP&A is an organization formed to serve individuals with certain disabilities, some of whom suffer from serious injuries. NJP&A brings this suit to effectuate better care and service within the State’s DHS on behalf of those individuals. These interests are germane to the interests of the NJP&A. Therefore, it appears to the Court that NJP&A meets the second step of the Hunt associational standing framework.
The final step of the associational standing analysis necessitates an analysis of whether the relief sought requires the participation of individual members of the group. Id. The Supreme Court has explained that, “in a proper case, where the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured.” Id. Here, Plaintiff seeks injunctive and declaratory relief, the results of which are intended to produce better care for certain NJP&A constituents. The Court is satisfied that this relief will inure to the benefit of Plaintiff’s constituents. Therefore, it meets this third step of the Hunt associational standing analysis. The Court therefore concludes Plaintiff has associational standing to bring this suit and that portion of Defendant’s motion premised on subject matter jurisdiction is denied. B. Sovereign Immunity
Defendant avers that, irrespective of Plaintiff’s allegations, the State enjoys sovereign immunity and therefore cannot be sued. Both Plaintiff and Intervenor contend that the instant suit falls within the Ex parte Young exception, and that the suit should proceed. Plaintiff further
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contends that, should the Court choose not to accept its Ex parte Young argument, the State is still liable for alleged violations of Title II and Section 504 because either Congress abrogated the State’s sovereign immunity, or the State waived immunity when it accepted federal funds for use within the State’s DHS.
The Supreme Court has explained that, under Ex parte Young, individual state officers can be sued in their [official] capacities for injunctive and declaratory relief to end continuing or ongoing violations of federal law. Verizon Md., Inc. v. Comm’n of Md., 535 U.S. 635, 645 (2002). In other words, to determine the applicability of an Ex parte Young bar to Eleventh Amendment sovereign immunity, “a court need only conduct a straightforward inquiry into whether a complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Id.
In this case, Plaintiff seeks injunctive and declaratory relief for alleged violations of Title II and Section 504. Plaintiff contends NJP&A’s constituents are not treated with reasonable promptness, in contravention of federal law. This relief meets the Court’s straightforward inquiry test articulated in Verizon. Id. It may be true that, ultimately, NJP&A will be unable to meet its burden of persuasion. But at this phase of the proceedings, the Court need not address the merits of Plaintiff’s case. For the purposes of surviving that portion of Defendant’s motion brought pursuant to Fed. R. Civ. P. 12(b)(6), it appears that Plaintiff has met its burden.
Because Plaintiff brings this suit alleging an ongoing violation of federal law, and because the relief sought is injunctive and prospective in nature, the Court concludes Defendant’s Eleventh Amendment arguments do not override Ex parte Young considerations. Accordingly, Plaintiff’s suit seeking prospective, injunctive relief, alleging violations of Title II and Section
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CONCLUSION For the reasons given above, and for good cause shown, It is on this 20th day of July 2009, ORDERED that Defendant Jennifer Velez’s Motion to Dismiss [20] is DENIED.
s/ Anne E. Thompson ANNE E. THOMPSON, U.S.D.J.
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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

____________________________________

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NEW JERSEY PROTECTION

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& ADVOCACY, INC.,

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Plaintiff,

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v.

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JENNIFER VELEZ, in her official capacity :

as Commissioner of the New Jersey

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Department of Human Services,

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Defendant.

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____________________________________:

Civil Action No. 08-1858 (AET) MEMORANDUM & ORDER

THOMPSON, U.S.D.J.

This matter comes before the Court on behalf of Defendant Jennifer Velez’s Motion for a More Definite Statement, and Motion to Strike [10]. The Court has decided this motion based upon the submissions of the parties, without oral argument, pursuant to Fed. R. Civ. P. 78. For the reasons stated below, Defendant’s motion is granted.
BACKGROUND Plaintiff New Jersey Protection & Advocacy, Inc., (“NJPA”) is a non-profit agency designated to act as New Jersey’s protection and advocacy agency for persons with disabilities. Defendant Jennifer Velez is the Commissioner of the New Jersey Department of Human Services. On April 16, 2008, Plaintiff filed a Complaint seeking declaratory and injunctive relief on behalf of disabled individuals who have allegedly requested, but not received, home and

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community-based services from Defendant. Plaintiff asserts that instead of receiving services for which they are eligible, these individuals are placed on a “wait-list.” Therefore, Plaintiff argues that Defendant’s practice of “wait-listing” eligible citizens is not a legally acceptable substitute for providing services in the least restrictive setting that the State of New Jersey is required to provide under federal law.
In its Complaint, Plaintiff includes descriptions of six individuals, identified only by their initials, as persons who have been placed on the waiver wait-list. On May 28, 2008, Defendant filed a Motion for a More Definite Statement, seeking to compel Plaintiff to disclose the full identity of these six individuals. Further, Defendant also moves to strike portions of Plaintiff’s Complaint as immaterial, impertinent, and prejudicial.
DISCUSSION A. Defendant’s Motion for a More Definite Statement
Under Fed. R. Civ. P. 12(e), a Motion for a More Definite Statement is proper when the pleading is “so vague and ambiguous that a party cannot reasonably be required to frame a responsible pleading.” Defendant argues that because Plaintiff only used the initials of the six individuals listed in the Complaint, it is unable to form a responsive pleading based solely on vague and ambiguous identifications.
In its Brief, Plaintiff argues that it does not have to release the identities of the six individuals, identified only by their initials, due to unidentified “legal and ethical obligations.” Further, Plaintiff maintains that it would agree to disclose the names of the individuals if Defendant signs an agreement to maintain their confidentiality.
However, Defendant is already required by law to maintain confidential information of
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persons served by the relevant State agencies. Specifically, the Department of Human Services and its commissioner, Defendant Velez, are required to keep confidential all Protected Health Information pursuant to the provisions of the Health Insurance Portability and Accountability Act (“HIPAA”), 42 U.S.C. § 1320(d) et seq., and its underlying regulations. See 45 C.F.R.§§ 160, 164. Additionally, Plaintiff alleges that the six identified individuals in the Complaint are either applicants for, or recipients of, Medicaid waiver services. Pursuant to N.J. Stat. Ann. § 10:499.7, Defendant must keep confidential “[a]ll information concerning applicants and beneficiaries acquired under [Medicaid].” Moreover, no information may be released by Defendant without the written consent of the applicant or beneficiary. Id.
Plaintiff also argues that it does not have to disclose the identities of the six individuals, because the suit is actually brought on behalf of all individuals on the waiting list, not just the six individuals identified in the Complaint. However, Plaintiff has not been granted class action status by this Court for all individuals alleged to be on the waiting list.
Without knowing the identities of the six identified individuals in the Complaint, Defendant cannot reasonably respond or defend against the allegations brought forth by Plaintiff. Specifically, Defendant would be unable to know whether those individuals are, in fact, on the waiting list, whether they are Medicaid eligible, and whether they are receiving community support services which they say they were denied. Therefore, Defendant’s Motion for a More Definite Statement is granted. B. Defendant’s Motion to Strike Portions of Plaintiff’s Complaint
Federal Rule of Civil Procedure 12(f) provides that “the court may order stricken from any pleading, any insufficient defense or any redundant, immaterial, impertinent, or scandalous
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matter.” Defendant argues that portions of paragraphs 12, 17, and “C” of Plaintiff’s Complaint, should be stricken because they are immaterial, impertinent, and prejudicial. Specifically, Defendant seeks to strike (1) Plaintiff’s references to unrelated lawsuits that it previously initiated against Defendant, (2) any assertions made by the non-disabled parents of the individuals listed in the Complaint, and (3) any allegation asserted by the New Jersey Association of Community Providers, the American Association on Intellectual and Developmental Disabilities, and the Alliance for the Betterment of Citizens with Disabilities (the “Interested Parties”) in Part “C” of the Complaint.
Defendant argues that the references in the Complaint to separate lawsuits that have been previously initiated by Plaintiff against Defendant are impertinent, immaterial and prejudicial, and should be stricken. The Court agrees. Whether Plaintiff previously filed suit against Defendant in separate disputed actions, involving different controversies, has no bearing on the issues raised by Plaintiff in this case. Plaintiff’s references to these suits are prejudicial to Defendant in that they imply a pattern and practice of Defendant violating federal laws with regard to disabled individuals. Accordingly, pursuant to Fed. R. Civ. P. 12(f), Defendant’s motion to strike references in the Complaint to prior litigation between the parties is granted.
Additionally, Defendant seeks to strike any references to personal grievances asserted by the parents of disabled individuals. Plaintiff contends that the personal grievances asserted by the parents of disabled individuals are relevant to its claim that the Home and Community Based Waiver Services, violates Title II of the ADA; Section 504 of the Rehabilitation Act; and § 1396a(a)(8) and 1396n(c)(2)(c) and (d)(2)(c) of the Medicaid Act. However, the parents of the disabled individuals are not parties to this action, and any alleged injuries sustained by them,
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have no relation to Plaintiff’s legal claims. Therefore, Defendant’s motion to strike remarks made by parents of the disabled individuals in the Complaint is granted.
Lastly, Defendant seeks to strike any statements made by the “Interested Parties” in paragraph “C” of the Complaint. Plaintiff argues that the declarations and certifications provided by the Interested Parties are relevant to this matter because they demonstrate their support for Plaintiff’s lawsuit by “convey[ing] the true impact of Defendant’s actions on their constituents who remain on the wait-list.” (Pl.’s Opp’n Br. 15.) Defendant argues that the thoughts and views of the Interested Parties regarding the waiver wait-list do not provide a basis for Plaintiff’s allegations and do not lend assistance in explaining how or why the cited federal statutes in the Complaint were violated. The Court agrees. The Interested Parties listed in paragraph “C” of the Complaint are not parties to the action, and whether a non-party organization supports Plaintiff in bringing this complaint is irrelevant. Therefore, Defendant’s Motion to Strike the statements made by the Interested Parties in paragraph “C” of the Complaint and the attached declarations, is granted.
CONCLUSION Therefore, for the above reasons, and for good cause shown, IT IS on this 26th day of August 2008, ORDERED that Defendant Jennifer Velez’s Motion for a More Definite Statement [10] is GRANTED; and it is further ORDERED that Plaintiff New Jersey Protection & Advocacy, Inc., must provide the identities of the six individuals described in paragraph seventeen (17) of its Complaint; and it is further
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Complaint [10] is GRANTED; and it is further ORDERED that Plaintiff New Jersey Protection & Advocacy, Inc., shall have thirty (30)
days from the date of this Order to submit an Amended Complaint; and it is further ORDERED that Defendant Jennifer Velez shall have twenty (20) days from receipt of
the Amended Complaint to submit an Answer or Responsive Pleading. s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.
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William Emmett Dwyer NEW JERSEY PROTECTION
& ADVOCACY, INC. 210 South Broad Street, 3rd Floor Trenton, New Jersey 08608 (609) 292-9742
R. Scott Thompson Bernard J. Cooney LOWENSTEIN SANDLER PC 65 Livingston Avenue Roseland, New Jersey 07068 (973) 597-2500
Attorneys for Plaintiff

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

NEW JERSEY PROTECTION AND ADVOCACY, INC.,
Plaintiff,
v.

Civil Action No. 08-01858 (AET) (JJH)
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

JENNIFER VELEZ, in her official capacity as Commissioner of the New Jersey Department of Human Services,

Defendant.

Plaintiff NEW JERSEY PROTECTION AND ADVOCACY, INC., 210 South Broad Street, 3rd Floor, Trenton, New Jersey 08608, by and through its undersigned attorneys Lowenstein Sandler PC and New Jersey Protection & Advocacy, Inc., alleges as follows:
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PRELIMINARY STATEMENT In 1999, the United States Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999), held that Title II of the Americans with Disabilities Act requires states to provide services to individuals with developmental disabilities in the most integrated setting possible. The integration mandate of Olmstead requires the development of an array of community resources and services for individuals with developmental disabilities. States, however, have not been left only to their own resources to fund the development of their community services. The federal government has created a “waiver” program whereby states can apply for a waiver of the Medicaid requirement that an individual must reside in a developmental center in order to qualify for federal funding. Under the home and community-based waiver program, states can submit a waiver application that details who they will serve and how these recipients, who would otherwise become institutionalized, will be served in the community. Upon the granting of a waiver application, states receive reimbursement for the cost of providing services to people in the community. New Jersey receives approximately one-half of the cost of such services from the federal Medicaid waiver program. However, there are certain requirements imposed on states that choose to participate in the waiver program. Federal law has long required states that use Medicaid funding to provide services to the developmentally disabled to do so with “reasonable promptness” once a qualifying individual has requested services. Despite these clear and unambiguous directions, more than 8,000 citizens in the State of New Jersey who have met all of the requirements for services are currently being denied access to home and communitybased services. Instead, they have been diverted to a so-called “wait-list” for such services with no guarantee, and little hope, that they will ever have access to the services that they need.
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Most of these individuals live at home or with relatives, with little or no assistance. Many have been on the waiting list for years. Despite the fact that they do not want or need institutionalization, many face the prospect of institutionalization because that is all the State of New Jersey offers. In fact, over the past three years approximately sixty individuals who were on the waiting list for residential placement in the community have instead become residents of New Jersey’s developmental centers. As for those individuals who remain at home with their aging parents, the prospect of institutionalization becomes all the more real, and all the more frightening.
In this lawsuit, Plaintiff seeks a ruling by this Court that New Jersey’s practice of “waitlisting” eligible citizens is not a substitute for providing services that the State is required to provide. Plaintiff asks this Court to direct Defendant to offer and provide home and community-based services with reasonable promptness to eligible individuals, instead of waitlisting any such citizen who refuses institutionalization. Plaintiff also asks this Court to direct Defendant to provide the community supports, programs, and other services which Defendant, in its waiver application to the federal government, has represented that it will provide to eligible citizens. These citizens want only the opportunity to live in a community setting with access to such services as they need, and they ask only that the State of New Jersey abide by the Constitution and laws of the United States.
JURISDICTION AND VENUE 1. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 in that claims are asserted under the laws of the United States, and 28 U.S.C. § 1343 in that claims are asserted under laws providing for the protection of civil rights. 2. This Court has personal jurisdiction over Defendant in that she is a resident of the State of New Jersey.
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3. Plaintiff’s claims are authorized by 42 U.S.C. § 1983, 42 U.S.C. § 12132 and 29 U.S.C. § 794a.
4. Venue is appropriate in this District pursuant to 28 U.S.C. § 1391(b) as the matter arose in the District of New Jersey and all of the parties reside in this District.
5. Declaratory relief is authorized under 28 U.S.C. § 2201 et seq., and injunctive relief is authorized by 28 U.S.C. § 2202. Defendant’s actions have resulted in irreparable injury to Plaintiff, for which there is no adequate remedy at law.

A. Plaintiff

PARTIES

6. Plaintiff New Jersey Protection & Advocacy, Inc. (“NJP&A”), a non-profit corporation, is the federally funded agency designated since 1994 to serve as New Jersey’s protection and advocacy system for people with disabilities. Pursuant to this designation, NJP&A serves as the agency to implement, on behalf of the State of New Jersey, the Protection and Advocacy System for the Developmentally Disabled (“PADD”) established pursuant to the Developmental Disabilities Assistance and Bill of Rights Act of 2000, 42 U.S.C. § 15001 et seq.
7. NJP&A is part of a nationwide network of protection and advocacy agencies located in all fifty states, the District of Columbia, Puerto Rico, and the federal territories. The protection and advocacy system comprises the nation’s largest provider of legally-based advocacy services for people with disabilities.

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8. As part of a nationwide network, NJP&A is required by 42 U.S.C. § 15043a(2)(D) to provide the public, including individuals with developmental disabilities, their representatives and, as appropriate, non-State agency representatives, with an opportunity to comment on the priorities and activities of the advocacy system. In order to implement this requirement, NJP&A has an advisory board composed of individuals who (i) have a developmental disability, (ii) are related to an individual who has a developmental disability, or (iii) are a professional who serves developmentally disabled individuals.
9. NJP&A has also established advisory boards to aid with advocacy activities and efforts undertaken in connection with the Protection and Advocacy for Individuals with a Mental Illness Act (“PAIMI”) established under 42 U.S.C §§ 10801 et seq.
10. NJP&A’s governing board of directors consists of the respective chairpersons from each of the advisory boards, along with developmentally disabled individuals, relatives of individuals with a disability, and professionals who serve the developmentally disabled community. 42 U.S.C. § 15044(a).
11. In addition to its board of directors and advisory boards, NJP&A is also statutorily required to maintain a grievance procedure for clients or prospective clients to ensure that individuals with developmental disabilities have full access to its services. 42 U.S.C. § 15043a(2)(E). It is the responsibility of NJP&A’s board of directors to be the final arbiter for all grievances filed on behalf of individuals who have a disability. The grievance procedure also provides for an opportunity to inform NJP&A’s
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board of directors of significant issues that affect individuals who have a developmental disability, thereby helping to guide NJP&A in its work.
12. By virtue of its designation as an advocacy system, NJP&A has the statutory authority to pursue legal, administrative and other appropriate remedies to protect and advocate for the rights and interests of people with developmental disabilities who are or will be receiving care and treatment in New Jersey. 42 U.S.C. § 15043(a)(2)(A)(i).
13. NJP&A is not only empowered under federal law to represent individuals who have disabilities, but also to ensure that a protection and advocacy program operates in the State of New Jersey. The allotment of federal funds to New Jersey is premised on the State’s assurance that it has established a protection and advocacy system with authority to pursue legal, administrative, and other appropriate remedies to protect and advocate for the rights of individuals who have a developmental disability. 42 U.S.C. § 15043(a).
14. NJP&A is pursuing this action to protect and advocate for the rights and interests of “individuals with developmental disabilities” as that term is defined in 42 U.S.C. § 15002, and for all individuals who are protected by the PAIMI Act due to having a dual diagnosis of a developmental disability and a mental illness. Specifically, NJP&A brings this action on behalf of individuals who reside in the community but who are in danger of unnecessarily being institutionalized in one of the State’s seven large, congregate facilities (known as “developmental centers”), and who wish to reside in more integrated settings in the community. All of the individuals on whose behalf NJP&A brings this action are entitled to the right to be informed of
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alternatives to institutionalized care and the right to choose among alternatives to institutionalized care pursuant to 42 U.S.C. § 1396n(c)(2)(c) and (d)(2)(c).
15. These individuals have each suffered injuries, or will suffer injuries, that would allow them to bring suit in their own right against Defendant. Such individuals, including those described in the following section, could all bring suit in their own name.
B. Individuals Served By Plaintiff
16. All of the individuals named herein are Medicaid recipients and have disabilities within the meaning of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131(2), and Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794. These individuals are eligible for and receive services from the New Jersey Department of Human Services, Division of Developmental Disabilities (“DDD”) and meet the requirements for Medicaid’s home and community-based waiver services (“HCS”). The HCS program offers services and supports that enable eligible individuals to remain at home, live independently, or live in a small home-like setting. As such, the HCS waiver program helps persons with disabilities avoid institutional settings, including a nursing facility, state school, or other type of intermediate care facility (“ICF”).
17. All of the individuals named herein would be able to live in less restrictive settings with waiver supports and services provided with reasonable promptness. All of the individuals listed below are on a “wait-list” for services under the HCS waiver program. Though they have been on a “wait-list” for years, none of the individuals listed below have been informed of their status on the list, or how much longer they will have to wait for the services to which they are entitled to.
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The individuals consist of the following: (a) K.P. is 27 years old and lives with his mother and step-father in Lawrenceville, New Jersey. He has autism and severe obsessive compulsive disorder. K.P. has worked for many years in a supportive environment outside his home under the supervision of Project Higher. Exhibit (“Ex.”) A, Declaration of Kathleen Moore. K.P. was placed on the waiting list because he needs a community residence with some supervision. K.P.’s parents are aging and fear that he will be institutionalized if they are incapable of caring for him. K.P. has been on DDD’s HCS wait-list since 1999, and his parents have received no indication that he will ever be given the opportunity to reside in a community-based residence. Ex. A, Declaration of Kathleen Moore. (b) D.T. is 36 years old and lives with his parents in Voorhees, New Jersey. He has mild cerebral palsy, attention deficit disorder and obsessive compulsive disorder. In addition to working part-time at the Occupational Training Center, D.T. works seven hours a week for the New Jersey Self Advocacy Project as an advocate for people with disabilities. Ex. B, Declaration of D.T. He has been on DDD’s HCS wait-list since 1998 and has not been informed by DDD how much longer he must remain on the wait-list before he receives appropriate residential placement services. D.T.’s parents are aging and fear that he will be institutionalized if they are incapable of caring for him. D.T. has lived his entire life in a community and does not wish to be institutionalized. Ex. B, Declaration of D.T. D.T. has been offered three residential placements. Two of these placements, however, are inappropriate for D.T. He continues to remain on the wait-list for final placement in the third residence offered. D.T. was initially offered a placement in a
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group home. D.T., who does not have a guardian, wishes to maintain his independence and continues to work two jobs and arrange for his own transportation. The group home, which was inconveniently located far from D.T.’s employment, is tightly controlled and the residents are closely supervised. Such an environment is not suitable for D.T., who is in need of a supervised apartment. D.T. received a second offer for placement in a group home and rejected it for the same reasons. The latest offer for placement is in a supervised apartment. After visiting the apartment over a year ago, D.T. has still not received notification that he may reside in this apartment. Ex. B, Declaration of D.T.
(c) R.F. is 18 years old and lives with parents, who are her guardians, in Randolph, New Jersey. She has attention deficit hyperactivity disorder, a chromosomal translocation and is severely developmentally delayed. In addition, she has anaphylactic and environmental allergies. R.F. currently attends the Midland School, a special education program serving the needs of children with developmental disabilities. She has been on DDD’s HCS wait-list for a community residential placement since 2002 and has not been informed by DDD how much longer she will have to wait for a residential placement. Despite being on the waiting list for over five years, R.F. has not received any offers for placement in a residential setting. R.F.’s parents spend over approximately $33,000 per year to purchase additional services for R.F. because she is not receiving them from Defendant. R.F. would either receive these same services or would not need them if she were living independently in a community residence for which she is qualified. Ex. C, Declaration of D.F.
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R.F.’s parents are aging and fear that she will be institutionalized if they are incapable of caring for her. She has lived her entire life in a community and does not wish to be institutionalized. Ex. C, Declaration of D.F.
(d) M.B. is 32 years old, has autism and is mentally retarded. M.B. is on medication to control his seizures and he lives with his parents, who are his legal guardians, in West Amwell, New Jersey. M.B. has a job working at the Jewish Community Center in Flemington, New Jersey four days per week. M.B. has been a client of Defendant since August of 1989, and he has been on a waiting list for residential services for over six years. Ex. D, Declaration of Elaine Buchsbaum.
M.B. has been assessed by Defendant without consideration of his autism. As a result of this incorrect assessment, he has been offered programs that are not adequate for his needs. M.B.’s parents were informed of a program developed by Defendant called Real Life Choices (“RLC”). Despite being eligible for enrollment in RLC, the services that would be provided to M.B. are inadequate to meet his needs. In addition, M.B.’s parents were informed that should their son be enrolled in RLC, he would not be notified of residential placement openings. M.B.’s parents attempted to obtain written information about RLC but were told that none was available. A decision regarding whether to place M.B. in RLC, the parents were told by DDD, could only be based upon a conversation they had with his case manager. Ex. D, Declaration of Elaine Buchsbaum.
M.B.’s parents are concerned about M.B.’s future welfare as they grow older and one day become unable to care for him. They are concerned that he will be needlessly placed in an institution far from where he now lives and where he will not be able to continue with his job. Ex. D, Declaration of Elaine Buchsbaum.
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(e) S.G. is 31 years old and has autism and obsessive compulsive disorder. His parents are his legal guardians. With the help of a supported employment program, for the past fifteen years S.G. has worked for the Wawa chain of convenience stores. He works at several different Wawa stores, performing cleaning services and stocking shelves, and receives transportation to his job site from the employment program. Ex. E, Declaration of N.G.
Because of his particular needs, and the fact that his parents were both 55 years old at the time, S.G. was placed on DDD’s urgent waiting list for residential services in 2000. Specifically, S.G. is in need of a residential placement, either in a group home or a supported apartment setting. However, since being placed on the wait-list in 2000, Defendant has not offered S.G. a suitable placement and he remains at home while his parents grow older and worry about their inability to care for S.G. in the future. Ex. E, Declaration of N.G.
S.G.’s parents know that unless S.G. is given a suitable community placement, he will likely be placed in a development center far from his home and will therefore be unable to continue his employment. Considering that he has have lived his entire life in the community, such institutionalization will be devastating to S.G. Placement in a developmental center will undo much of the progress that S.G. has achieved towards establishing a normal life for himself. Yet, after approximately seven years on the waiting list for residential placement, S.G has not been informed of when he will be placed, his status on the waiting list, or what he can do to enhance his position on the waiting list. Ex. E, Declaration of N.G.
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(f) M.W. is 49 years and lives in Clifton, New Jersey with her siblings. M.W. suffered a traumatic brain injury acquired at birth and is a client of Defendant. Her symptoms indicate that she has the mental capacity and functions at the level of a two year-old child. M.W. has several self-abusive behaviors which are triggered when she feels frustrated, afraid, misunderstood or unable to communicate. Ex. F, Declaration of Mary de Lourdes Winberry.
M.W. has been on the “urgent priority” waiting list since November 22, 2002 for a residential placement. She continues to live in the house where she was raised by her family. Her mother, who was M.W.’s guardian, passed away on in April of 2007 at the age of 84. If M.W.’s two brothers had not chosen to reside with M.W., she would have been placed in a developmental center operated by Defendant. Ex. F, Declaration of Mary de Lourdes Winberry.
M.W. is in a day program that does not provide speech therapy, music therapy, or horticulture therapy. Instead, she remains in a program that is designed to train her for employment. Yet, M.W. is simply unable to perform many of the employment-related activities of the program. The program does not afford her with the appropriate opportunities to improve her speech abilities. Ex. F, Declaration of Mary de Lourdes Winberry.
M.W. needs assistance in developing the basic skills that will help her to enhance her life. She is in an environment that is designed for employment and where her peers often communicate verbally. M.W., however, does not possess the same language skills as her peers in the program. M.W. is not realizing her potential because the program is not designed to address her needs. She participates in the day program, however, because
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it is all that Defendant offers and she has no other option. Ex. F, Declaration of Mary de Lourdes Winberry.
When M.W. was a child, her parents were informed that she could only receive appropriate services if she was admitted to an institution. M.W.’s parents refused to have their daughter institutionalized and chose to raise her at home. M.W., who turned 49 years-old this past year, still does not receive the services she needs. Her siblings refuse to have her admitted to a developmental center. Instead, they seek a better life for their sister and want her to be provided with the services she has been entitled to receive for many years. Accordingly, as members of the group on whose behalf Plaintiff acts, M.W.’s siblings have chosen to support this Complaint. Ex. F, Declaration of Mary de Lourdes Winberry.
(g) A.C. is 21 years old and lives with his parents who are his guardians. A.C is a client of Defendant’s and receives some services from Defendant but not enough for his needs. Prior to graduating from high school, A.C obtained employment at Wal-Mart and, upon graduation, received an offer from Wal-Mart to continue his employment there. In order for A.C. to continue his employment, he requires assistance from Defendant. Despite the documented assistance A.C. needs, however, he is currently not receiving any transitional or vocational services from Defendant because his parents will not agree to accept only the limited services Defendant has offered. Ex. G, Declaration of Deborah C.
A.C. is at a critical point in his life when he should be transitioning to full independence and a life that is as fully integrated into the community. One of the services that A.C. has qualified for is residential services under the Community Care Waiver. He qualified for residential services in June of 2007 and was placed on the
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Priority Residential Waiting List at that time. Since then, A.C. has not been offered a single residential placement or even been presented with possible residential placements. From the time he was placed on the Priority Waiting List for Residential Services, DDD has offered no indication that they have begun the process to find a suitable residential placement. Nor has A.C. been given any services to assist him in preparation to live independently. As a result, even if a residential opportunity were to become available, A.C. would have difficulty taking advantage of it. Ex. G, Declaration of Deborah C.
On April 15, 2008, nearly one year after being placed on the Priority Waiting List for a residential placement, A.C. mother’s received a letter from the Division of Developmental Disabilities stating the following:
Since Waiver services are accessed in chronological order and the Division of Developmental Disabilities (DDD) is currently serving those individuals placed on the list prior to May 1998, we are unable to reach [A.C.] at this time. Unfortunately, A.C. cannot afford to wait ten years before he receives the residential services that he is qualified to receive. Waiting ten years to start his life will impede his ability to live an independent life that is as fully integrated into the community. Ex. G, Declaration of Deborah C. In addition, there is no guarantee that A.C. will be able to continue to live with his parents while he waits for a community residence as his mother has a history of serious health issues and cannot guarantee she will be able to provide a residence for him. In the event A.C.’s mother is no longer able to provide a residence for him, he is at risk of being unnecessarily institutionalized. Ex. G, Declaration of Deborah C. A.C. has lived his entire life in the community, has graduated from a public school, works in the community, and has many friends. Institutionalization would have a
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terrible impact on A.C. by removing him from the community, his friends, his work, and from the only life he has known. Ex. G, Declaration of Deborah C.
C. Defendant 18. Defendant Jennifer Velez is the Commissioner of the New Jersey
Department of Human Services (“DHS”), a public entity covered by, inter alia, Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131(1).
19. Defendant Velez is ultimately responsible for ensuring that New Jersey operates its delivery of services to individuals with disabilities in conformity with the Constitution of the United States, with the ADA and its implementing regulations, and with Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and its implementing regulations.
20. DHS is authorized to administer New Jersey’s Medicaid program. 21. Defendant Velez is responsible for the establishment and maintenance of the New Jersey State plan for Medicaid services in compliance with federal law and regulations.
GOVERNING STATUTES A. The Anti-Discrimination Laws: The Americans with
Disabilities Act and Section 504 of The Rehabilitation Act 22. On July 26, 1990, the ADA was enacted, establishing the most
important civil rights law for persons with disabilities in our nation’s history. 23. Title II of the ADA contains an integration mandate and non-
discrimination provisions. 42 U.S.C. §§ 12131-12134.
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24. Title II of the ADA prohibits public entities, such as that headed by Defendant, from discriminating against the individuals with disabilities whom they serve. 42 U.S.C. §§ 12131-12132.
25. Discrimination under the ADA includes the segregation of persons with disabilities from society as a result of unnecessary institutionalization.
26. The regulations promulgated under Title II specifically provide that a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. 28 C.F.R. § 35.130(d). The regulations prohibit Defendant from administering programs in a discriminatory manner. 28 C.F.R. § 35.130(b)(3)(i)-(ii).
27. The regulations also prohibit discrimination caused by providing different or separate services to individuals based on the severity of their disability, unless necessary for the services to be effective. 28 C.F.R. § 35.130(b)(1)(iv).
28. Furthermore, the section of Title II of the ADA entitled, “Enforcement,” explicitly states that the “remedies, procedures, and rights set forth in section 794a of [the Rehabilitation Act] shall be the remedies, procedures, and rights this subchapter provides.” 42 U.S.C. § 12133. Section 504 of the Rehabilitation Act sets forth protections against discrimination by recipients of federal funds and also includes an integration mandate prohibiting unnecessary segregation. 29 U.S.C. § 794 et seq.; 45 C.F.R. §§ 84.4, 41.51.
B. The Medicaid Act 29. The Medicaid program, established by Title XIX of the Social
Security Act, 42 U.S.C. § 1396 et seq., is a cooperative federal-state program designed to
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enable states to furnish medical assistance to families and individuals who are unable to meet the costs of necessary medical services.
30. States are not obligated to participate in the Medicaid program. However, if a state elects to participate, it must operate its program in compliance with federal statutory and regulatory requirements.
31. States that choose to participate in the Medicaid program receive federal matching funds for their Medicaid program. To receive federal funds, states must comply with the requirements of the federal Medicaid Act and with the federal regulations governing state Medicaid programs promulgated by the Center for Medicare and Medicaid Services (“CMS”) of the United States Department of Health and Human Services, the agency that administers Medicaid at the federal level.
32. Each state participating in the Medicaid program must receive approval for its plan for providing services. States must include certain mandatory services, including, among other things, inpatient hospital services, physician’s services, and nursing facility services. 42 U.S.C. §§ 1396a(a)(10)(A) and 1396d(a).
33. In addition to mandatory services, a state may elect to provide optional services. 42 U.S.C. § 1396d(a). Optional services include funding for intermediate care facilities for the mentally retarded (“ICF/MR”). 42 U.S.C. §§ 1396a(a)(10) and 1396d(a)(15).
34. States that provide ICF/MR services may also implement a Medicaid waiver program. This alternative to ICF/MR services includes an array of home and community-based services for eligible recipients who, in the absence of waiver services, would require institutionalization in an ICF/MR. This program is known as the
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Medicaid home and community based waiver program (“the waiver program” or “the waiver”). 42 U.S.C. § 1396n(c). This program is called a “waiver” because CMS waives certain technical obligations otherwise incumbent on states electing to participate in the program.
35. Under the waiver program, if a state meets certain criteria, Medicaid requirements such as statewideness, 42 U.S.C. § 1396a(a)(1), and comparability of services, 42 U.S.C. § 1396a(a)(10)(B), may be waived to permit the state to provide a specific number of individuals within a defined disability group with services that provide such individuals with a community alternative to long-term institutional care. 42 U.S.C. § 1396n(c)(3).
36. Title XIX requires that when a state agrees to provide Medicaid waiver services, it also provide assurances that, inter alia, individuals are evaluated for their need for the level-of-care provided by an ICF/MR, and if found eligible for such a level-of-care, they are offered the option of Medicaid waiver services. 42 U.S.C. § 1396n(c)(2)(B)-(C); 42 C.F.R. § 441.302(c)-(d). States must assure HCFA that, “absent the waiver, recipients in the waiver [program] would receive the appropriate type of Medicaid-funded institutional care . . . that they require.” 42 C.F.R. § 441.302(g).
37. New Jersey participates in the Medicaid program. 38. The New Jersey Medicaid program is administered by Defendant. 39. Among the optional Medicaid services Defendant provides are ICF/MR services. These services are provided in institutions known in New Jersey as “developmental centers.”
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40. In addition to mandatory and optional services, Defendant has received CMS approval to operate a home and community-based services waiver program for individuals with developmental disabilities. This allows Defendant to provide home and community-based services to a federally-approved maximum number of participants who require an ICF/MR level of care and who have applied for and received a waiver slot.
41. States must offer Medicaid services to eligible individuals with “reasonable promptness” and must give those interested in applying the opportunity to do so. 42 U.S.C. § 1396a(a)(8).
42. Persons with disabilities who live in or are at risk of being placed in an institution must be informed of and given a meaningful choice of institutional and community alternatives. They must also be permitted to receive services from any qualified provider. 42 U.S.C. §§ 1396a(a)(23)(A) and 1396n(c)(2)(c); 42 C.F.R. §§ 435.217 and 441.302(d)(1)-(2).
C. The Home and Community Based Waiver Program 43. The Medicaid waiver program, which includes the HCS program,
was adopted by Congress in order to allow individuals who would otherwise require care in a nursing home or ICF/MR to receive needed services in their own homes and in home-like settings. 42 U.S.C. § 1396n. See also Senate Report No. 97-139, 1981 U.S.C.C.A.N. 396 and House Conference Report No. 97-208, 1981 U.S.C.C.A.N. 1010. The regulations state that “section 1915(c) [1396n] of the Act permits States to offer, under a waiver of statutory requirements, an array of home and community-based services that an individual needs to avoid institutionalization.” 42 C.F.R. § 441.300.
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44. Federal law provides that the average cost per person in the community through the Medicaid waiver program must not exceed the average cost for the same level of services in facilities or institutions. 42 U.S.C. § 1396n (c)(2)(D).
45. Home and community-based waiver funds may not be used to support services to individuals who reside in an ICF/MR. 42 C.F.R. § 441.301(b)(1)(ii); 42 U.S.C. § 1396n.
46. Under a Medicaid waiver, a state can provide an array of services, including services that are not identified in Title XIX as approved optional services. 42 U.S.C. § 1396n (c)(4)(B); 42 C.F.R. § 440.180. For example, a state can provide habilitative services, vocational services, and respite services even though these services are not a specified optional service. Thus, Medicaid waiver programs give the state the right to receive federal reimbursement when it agrees to provide services that it would not otherwise be reimbursed for under Title XIX.
47. Medicaid waiver programs allow states to “waive” certain Title XIX requirements. Specifically, a state’s waiver program may choose to provide services to specific groups of persons or in a limited geographic region, thus waiving comparability or statewideness requirements. 42 U.S.C. §§ 1396n(c)(3), (9)-(10).
48. In sum, the purpose of Title XIX’s Medicaid waivers is to encourage states to provide services to assist individuals with disabilities to avoid being institutionalized. 42 C.F.R. § 441.300. Moreover, as long as Medicaid services vis-à-vis institutional services are “cost-neutral,” the preference is to provide services in the community. See 42 U.S.C. § 1396n(c)(2)(D).
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D. New Jersey’s Waiver Program 49. New Jersey has offered the HCS waiver since 1982. 50. Individuals are eligible for HCS waiver services if they meet the
standard of care for services in an ICF/MR, and are eligible for medical assistance. 51. Defendant’s Division of Developmental Disabilities is the single
New Jersey State agency whose responsibility it is to administer the HCS waiver program.
52. The services provided under the HCS waiver include case management, respite care, habilitation, minor home modifications, skilled nursing, adaptive aids, counseling and therapies, dental treatment, and residential assistance, i.e., supported home living, foster/companion care, and residential support and residential services.
STATEMENT OF FACTS 53. New Jersey’s HCS waiver program currently serves approximately 9,600 recipients. 54. There are approximately 8,000 additional people who have requested HCS waiver services. 55. Individuals on the waiting list have developmental disabilities such as mental retardation, autism, cerebral palsy, spina bifida, and traumatic brain injuries, and are clients of the Division of Developmental Disabilities. Although they qualify for placement in an ICF, they do not want, and do not need, such institutionalization. Instead, they wish to live in the community. Because they have not been offered
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placement in suitable residential community-based homes, they reside at home, usually with family.
56. Many of these people have been on the waiting list for more than five years. The average length of time these individuals have been on the waiting list is difficult to ascertain but, upon information and belief, it is in excess of three years.
57. In part because of the length of time that people stay on the waiting list, the family members and other caregivers for individuals on the waiting list are aging and will become unable to care for them with the passage of additional time.
58. New Jersey has not taken steps to insure that the waiting list decreases, or that those on the waiting list are kept informed about their status or prospects for placement in community residences.
59. In fact, according to the State’s own figures, in September 2002 there were “almost 7,000” individuals on the waiting list, waiting for the State to provide HCS waiver services. Of this number, 4,000 were in the “urgent” category.
60. By December 31, 2004, the State had done nothing to alleviate the situation, despite its recognition in 2002 that “too many people are waiting for services.” As of December 31, 2004, there were, according to the State’s count, 7,447 people on the waiting list, with some 4,625 in a priority category.
61. As of January 31, 2006, the State’s count stood at 7,800 people on the waiting list. Of this number, 4,936 were in a priority category.
62. The New Jersey State Legislature has expressly determined that every person receiving treatment through the Division of Developmental Disabilities has
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a right to receive services in a setting and manner least restrictive of his or her right to personal liberty. N.J.S.A. 30:6D-9.
63. The manner in which Defendant operates her programs for eligible individuals violates Title II of the Americans with Disabilities Act and its implementing regulations, including the regulation requiring public entities to administer their programs in the most integrated setting appropriate to qualified individuals with disabilities, 28 C.F.R. § 35.130(d), and the requirement that services be provided with “reasonable promptness.”
64. Defendant fails to provide accurate and detailed assessments on a regular basis for all individuals wait-listed for services; fails to keep those waiting for services adequately informed about the availability of services; fails to provide services in the most integrated setting; and fails to provide services to all those entitled to services.
65. Despite Defendant’s plan for compliance with Title II of the Americans with Disabilities Act, as interpreted by the United States Supreme Court in Olmstead, 527 U.S. 581, Defendant has not engaged in any significant activity that would provide services to those who have been wait-listed, and, as a result, the waiting list has grown over the last ten years. Those on the waiting list are increasingly at risk of institutionalization as their caregivers grow older.
66. In fact, over the past three years at least fifty-eight individuals residing in the community who were on the waiting list for a residential placement were unnecessarily institutionalized in a developmental center because the defendant did not have a suitable community placement for them. Those fifty-eight individuals have suffered an injury in fact. Legal efforts to have those individuals returned to the
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community, along with approximately 2,000 other individuals currently residing in the State’s developmental centers, has been undertaken by NJP&A as the organizational plaintiff in the case NJP&A et. al v.Velez, Docket No. 3-05-CV-04723 (FLW/TJB), mentioned above in Paragraph 12 of this Complaint.
67. Upon information and belief, Defendant has not properly utilized Medicaid home and community-based waiver slots to comply with the integration mandate of the Americans with Disabilities Act and to end her ongoing discrimination against qualified individuals with developmental disabilities.
68. Defendant does not inform individuals of their right to choose integrated, less restrictive community supports and/or home and community-based waiver services. Defendant does not provide eligible individuals with the opportunity to reside in community settings with reasonable promptness.
69. The relief Plaintiff seeks on behalf of individuals with disabilities is readily achievable if Defendant changes the manner in which it operates its alreadyexisting programs without the creation of new programs.
70. Defendant’s policies and practices have resulted in the failure to provide community living opportunities for individuals with disabilities in settings designed to maximize their potential in the least restrictive setting possible.
71. In short, Defendant has taken no steps to demonstrate a commitment to properly provide services to qualified individuals who seek waiver services rather than institutionalization. Instead, Defendant has used the waiting list as a way to forestall eligible, qualified individuals in need of services but unwilling to enter an ICF. The end results of these practices are (i) unequal access to services for those who
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are unwilling to live at an ICF; (ii) compelling eligible individuals to choose between institutionalization or inadequate services; which ultimately results in (iii) forced institutionalization of people who can and should live in community settings, and increasing unjustified isolation and segregation of qualified individuals with developmental disabilities, as prohibited by federal law.
CLAIMS FIRST CAUSE OF ACTION (Violation of the Americans with Disabilities Act) 72. Plaintiff incorporates and realleges the allegations contained in Paragraphs 1 through 71 of the Complaint. 73. People with developmental disabilities on the waiting list, including those on whose behalf this action is brought by Plaintiff, are “qualified individuals with a disability” within the meaning of 42 U.S.C. § 12131(2) (hereinafter referred to as “Qualified Individuals”). Qualified Individuals have a physical and/or mental impairment that substantially limits one or more major life activities, including their ability to live independently and without support. 74. Defendant violates the anti-discrimination provision of the ADA, 42 U.S.C. § 12132, by offering only institutional care instead of community-based care to Qualified Individuals who seek community-based care and who are appropriate for such care. The provision of community-based care would not entail a fundamental alteration of Defendant’s programs, services, or activities. 75. Defendant discriminates against Qualified Individuals with developmental disabilities by failing to properly assess them for community-based
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services, and by failing to provide them with community living options. Instead, Defendant requires Qualified Individuals to accept confinement in segregated institutional facilities in order to receive the services they need.
76. Defendant does not have a comprehensive, effective working plan for serving Qualified Individuals with developmental disabilities in the most integrated setting appropriate to their needs.
77. As a result of Defendant’s actions and inactions, Qualified Individuals are placed on a waiting list for needed services, and are forced to either forego services to which they are entitled or live in confinement in institutions rather than in the community. This constitutes a violation of Title II of the ADA and its implementing regulations.
SECOND CAUSE OF ACTION (Violation of Medicaid Rules Regarding Provision of Services in a Reasonably
Prompt Manner and Choice of Services) 78. Plaintiff incorporates and realleges the allegations contained in Paragraphs 1 through 77 of the Complaint. 79. Defendant voluntarily participates in the federal Medicaid program under 42 U.S.C. § 1396 et seq. As a condition to participating, Defendant must ensure that medically necessary services for eligible individuals with developmental disabilities are provided in a reasonably prompt manner. Defendant’s Medicaid program includes providing services to those individuals represented by Plaintiff through the HCS waiver program.
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80. Federal law requires that any State which elects to participate in the Medicaid program under 42 U.S.C. §§ 1396 et seq., provide all services, including HCS waiver services, to eligible individuals with reasonable promptness.
81. Plaintiff’s constituents have not received these services despite applying for them years ago. Defendant has placed the individuals on a waiting list that includes all persons who have requested HCS waiver services but are waiting to receive such services.
82. Defendant has administered and continues to administer the State's Medicaid system in a manner that limits the availability of HCS waiver services to persons with developmental disabilities, and that precludes providing these services to such persons, including those on whose behalf this action is brought by Plaintiff, in a reasonably prompt manner, in violation of 42 U.S.C. § 1396a(a)(8).
83. This failure to provide Medicaid waiver services under HCS waiver programs is the result of arbitrary and unreasonable policies, practices, and decisions.
84. Defendant’s failure to provide HCS waiver services to eligible individuals in a reasonably prompt manner violates the rights of the individuals on whose behalf this action is brought under the Medicaid Act and its implementing regulations, the ADA, Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), Section 504 of the Rehabilitation Act, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The violation of these rights creates a cause of action enforceable under 42 U.S.C. § 1983.
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85. Under federal Medicaid law and the assurances made by Defendant in the HCS waiver program, Qualified Individuals with developmental disabilities have the freedom to choose whether to receive Medicaid services in an ICF/MR or in a waiver program. The freedom to choose includes more than the mere right to select a choice, but also the right to receive the services chosen.
86. Under the HCS waiver program there are a variety of feasible alternatives to ICF/MR care including residential support and habilitation, day services, family support, respite services and transportation.
87. Defendant’s administration of the Medicaid program denies freedom of choice to the individuals on whose behalf this action is brought by failing to both (1) inform them of their feasible alternatives to Medicaid-funded ICF/MR facilities, including HCS waiver programs, and (2) implement their choices for Medicaid services in violation of 42 U.S.C. § 1396n(c)(2)(C) and (d)(2)(c).
THIRD CAUSE OF ACTION (Americans with Disabilities Act and Section 504 of the Rehabilitation Act: Failure
to Comply With The Integration Mandate) 88. Plaintiff incorporates and realleges the allegations contained in Paragraphs 1 through 87 of the Complaint. 89. The ADA, 42 U.S.C. § 12101 et seq., mandates that public entities like Defendant’s Department of Human Services, provide services to persons with disabilities in the most integrated setting appropriate to meet the needs of Qualified Individuals, rather than segregated settings. It also requires that public entities ensure that available services are offered on a nondiscriminatory basis. Section 504 of the
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Rehabilitation Act of 1973 contains a similar requirement for recipients of federal financial assistance. 29 U.S.C. § 794.
90. Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C. § 12132. The regulations implementing Title II of the ADA and Section 504 require a public entity to administer its services, programs, and activities in the “most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).
91. Defendant’s failure to provide the Qualified Individuals on whose behalf this action is brought by Plaintiff with community developmental disability habilitation and support services in the most integrated setting appropriate violates 42 U.S.C. § 12132 and 28 C.F.R. § 35.130(d).
92. In addition to the above, Defendant’s failure to provide HCS waiver services to Qualified Individuals in ICF/MRs leaves them in jeopardy of receiving services in an institution rather than in a more integrated and appropriate communitybased waiver program in violation of 42 U.S.C. § 12132, 29 U.S.C. § 794, and 28 C.F.R. §§ 35.130(d) and 41.51.
93. By the actions set forth above, Defendant has failed and continues to fail to afford the Qualified Individuals on whose behalf this action is brought by Plaintiff with residential services in the most integrated setting appropriate to the needs of the individuals with disabilities, in violation of the Americans with Disabilities Act, 42
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U.S.C. § 12115 et seq., 29 U.S.C. § 794 and the implementing regulations, and 28 C.F.R. §§ 35.130(d) and 41.51.
RELIEF REQUESTED
94. Plaintiff incorporates and realleges the allegations contained in Paragraphs 1 through 93 of the Complaint. Plaintiff brings this claim for declaratory relief pursuant to 28 U.S.C. § 2201.
95. An actual controversy exists between Plaintiff and Defendant with respect to the nature and extent of Plaintiff’s rights under the Medicaid Act and its regulations, the ADA and its regulations, and Section 504 of the Rehabilitation Act and its regulations.
WHEREFORE, the Plaintiff respectfully requests that the Court: A. Declare the rights and obligations of the respective parties under applicable federal Medicaid law and regulations, the ADA and regulations, and Section 504 of the Rehabilitation Act and regulations. B. Declare, pursuant to 28 U.S.C. § 2201, that Defendant’s practice of placing Qualified Individuals with developmental disabilities seeking services under the waiver program on a waiting list, instead of providing ICF/MR-level services in the most integrated setting appropriate to their needs with reasonable promptness, violates Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Title XIX of the Social Security Act. C. Issue a permanent injunction:
(i) requiring Defendant to inform individuals with developmentally disabilities who are eligible for services from the Division of
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Case 3:08-cv-01858-AET -LHG Document 16 Filed 09/26/08 Page 31 of 33 PageID: 249
Developmental Disabilities that they may be eligible for community services, that they have the choice of such services, and that the State will provide such services in accordance with specified reasonable timelines; (ii) requiring Defendant to promptly determine the eligibility for community services, including placement in community-based residences, of current and future individuals who are on the waiting list and informing them in writing of the determination; (iii) requiring Defendant to develop a community-based infrastructure that is responsive to individual needs through the use of individualized care plans that afford eligible Qualified Individuals the freedom to choose to reside in a preferred living arrangement in their community of choice; (iv) requiring Defendant to, at least six months prior to an eligible Qualified Individual’s graduation from high school or other educational or vocational program, identify and provide the necessary information, referral and linkages to services for all eligible individuals with disabilities transitioning from the education system to adult services; (v) requiring Defendant to provide the necessary services and supports for the aging developmentally disabled population that affords continuity of care for individuals throughout their life span, maintaining preferred living arrangements in their communities, as appropriate; and (vi) requiring Defendant to eliminate the waiting list within three years and establish a plan with reasonable timelines for providing waiver services -- including placement in community-based residences for
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those requesting such placement -- to all current and future residents deemed capable of living in the community; and requiring that such a plan be a viable integration plan that demonstrates the State’s commitment to community placement, addresses the elements to effectuate such a plan, and includes provisions for Defendant to be held accountable to the Court. D. Grant such other relief as this Court deems appropriate, including an award of reasonable attorneys’ fees, litigation expenses, and costs pursuant to 42 U.S.C. § 1988 and by any other operation of law.
Respectfully submitted, LOWENSTEIN SANDLER PC
By: /s/ R. Scott Thompson R. Scott Thompson
NEW JERSEY PROTECTION & ADVOCACY, INC. By: William Emmett Dwyer Attorneys for Plaintiff
Dated: September 26, 2008
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Case 3:08-cv-01858-AET -LHG Document 16 Filed 09/26/08 Page 33 of 33 PageID: 251 VERIFICATION AND CERTIFICATION PURSUANT TO L. Civ. R. 11.2 I hereby verify that, to the best of my knowledge, information and belief formed
after a reasonable inquiry, this action is not being presented for any improper purpose; the claims defenses and other legal contentions are warranted by existing law; and the allegations and factual contentions have evidentiary support.
By: /s/ R. Scott Thompson R. Scott Thompson
I hereby certify that the matter in controversy is not the subject of any other court, arbitration or administrative proceeding.
By: /s/ R. Scott Thompson R. Scott Thompson
Dated: September 26, 2008
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 Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 1 of 53 PageID: 770

IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

DISABILITY RIGHTS NEW JERSEY, INC.,

Plaintiff,

v.

SETTLEMENT AGREEMENT

JENNIFER VELEZ, in her official capacity as Commissioner of the Department Human Services for the State of New Jersey,

Case No. 3:08-cv-01858 (AET) (LHG)

Defendant.

DISABILITY RIGHTS NEW JERSEY, INC., ALLISON HARMON, by and through her guardian Valerie Harmon, FREDRENA THOMPSON, and JONATHAN STEVENS,

Case No. 3:05-cv-04723 (AET) (TJB)

Plaintiffs,

v.

JENNIFER VELEZ, in her official capacity as Commissioner of the Department Human Services for the State of New Jersey, and the STATE OF NEW JERSEY,

Defendants.

DISABILITY RIGHTS NEW JERSEY, INC. William Emmett Dwyer, Esq. 210 South Broad Street, 3rd Floor Trenton, New Jersey 08608 (609) 292-9742 Attorneys for Plaintiffs Disability Rights New Jersey, Inc., Allison Harmon, by and through her guardian Valerie Harmon, Fredrena Thompson, and Jonathan Stevens

LOWENSTEIN SANDLER LLP R. Scott Thompson Bernard J. Cooney 65 Livingston Avenue Roseland, New Jersey 07068 (973) 597-2500 Attorneys for Plaintiff Disability Rights New Jersey, Inc. (as to Civil Action No. 08-cv-1858 (AET) (LHG))

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 2 of 53 PageID: 771
PEPPER HAMILTON LLP Angelo A. Stio III William Gibson Suite 400 301 Carnegie Center Princeton, NJ 08543-5276 (609) 452-0808 Attorneys for Plaintiffs Disability Rights New Jersey, Inc., Allison Harmon, by and through her guardian Valerie Harmon, Fredrena Thompson, and Jonathan Stevens (as to Civil Action No. 05-CV-4723 (AET) (TJB))
RIKER DANZIG SCHERER HYLAND & PERRETTI LLP
Brenda C. Liss Lance J. Kalik Headquarters Plaza One Speedwell Avenue Morristown, NJ 07962 (973) 451-8599 Attorneys for Defendants Jennifer Velez and the State of New Jersey
OFFICE OF THE NEW JERSEY ATTORNEY GENERAL DIVISION OF LAW Gerard Andrew Hughes 25 Market Street, P.O. Box 112 Trenton, NJ 08625-0112 (609) 341-5096 Attorneys for Defendants Jennifer Velez and the State of New Jersey

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 3 of 53 PageID: 772
SETTLEMENT AGREEMENT WHEREAS Disability Rights New Jersey, Inc. ("DRNJ"), Allison Harmon, Fredrena Thompson, Reginald Brown and Jonathan Stevens (collectively "Plaintiffs") brought suit in the United States District Court, District of New Jersey, against the State of New Jersey and Jennifer Velez in her official capacity as Commissioner of Human Services for the State of New Jersey (collectively "Defendants") in the matter captioned Disability Rights New Jersey, Inc. et ai, Plaintiffs, v. Jennifer Velez et al., Defendants, Docket No. 3-05-CV-04723 (AET) ("DRNJ II"); and, in addition, DRNJ brought suit in the United States District Court, District of New Jersey, against Jennifer Velez in her official capacity as Commissioner of Human Services for the State of New Jersey in the matter captioned Disability Rights New Jersey, Inc., Plaintiff, v. Jennifer Velez, Defendant, Docket No. 3-08-CV-01858 (AET) ("DRNJ IIF'); and WHEREAS Plaintiffs and Defendants (collectively, the "Parties"), through negotiations, have determined to resolve both DRNJ II and DRNJ III (together, "the Actions") in accordance with the terms set forth in this Settlement Agreement ("Agreement"); and NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows: 1. No Admission of Liability. Nothing in this Agreement shall be construed as an acknowledgment, admission, concession, or evidence of liability of any Party regarding any of the claims made in either of the Actions, including claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("Section 504"); the Medicaid Act, 42 U.S.C. §

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 4 of 53 PageID: 773
1396 et seq., the federal or State Constitutions, or federal or State law, regulations, rules, or policies; and this Agreement may not be used as evidence of liability in the Actions or any other civil or criminal proceeding. 2. DismissaL Pursuant to Fed. R. Civ. P. 41(a), the Parties will file this Agreement, together with a Notice of Dismissal with Prejudice of each of the Actions. The Parties each shall take any and all action necessary to obtain such dismissals with prejudice. Notwithstanding the foregoing, in the event any Party asserts that another has breached any provision of this Agreement, the dismissal provisions of this paragraph shall not prohibit that Party from filing a motion in the United States District Court in accordance with paragraph 14 (Remedies for Breach). 3. Effective Date. The Effective Date of this Agreement ("Effective Date") shall be the date it is filed with the United States District Court, and, unless otherwise specified, all time periods contained in this Agreement shall commence on that date. 4. Substantial Compliance. Defendants shall substantially comply with all of the requirements of this Agreement. Substantial compliance shall mean that Defendants are complying with the material requirements of this Agreement. Isolated or insignificant instances of non-compliance shall not preclude a finding of substantial compliance. For purposes of this paragraph, provision of at least 90 percent of the number of community placements for each year set forth in paragraph SA shall constitute substantial compliance. 5. Community Placements. This Agreement contains Defendants' targets and time frames for placement of all Community Placement-Eligible individuals residing in State-operated developmental centers ("Developmental Centers") into community-based
2

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settings appropriate to their needs. The targets and time frames in this Agreement will supersede those set forth in the State's Olmstead Plan, "Path to Progress" dated May 2007 and the Addendum to the State's Olmstead Plan, "Blueprint for the June 30, 2013 Closure of Vineland Developmental Center" dated May 2011. Collectively, the "Path to Progress," as it from time to time may be amended, and this Agreement shall constitute the State of New Jersey's Olmstead Plan. Subject to appropriation of funding by the New Jersey State Legislature and availability of funds, the plan shall include the following elements:
A. Schedule of Placements. Defendants shall provide community placements for at least 600 Community Placement-Eligible individuals residing in Developmental Centers between FY2013 and FY20 17, in accordance with the following schedule:
• Between July 1,2012 and June 30, 2013: 90 • By June 30, 2014: cumulative total equivalent to 205 + (the number of
new admissions of Community Placement-Eligible individuals in FY2013, not to exceed 35) [For example, if 115 community placements and 19 admissions occur in FY2013, DDD will provide 134 (115+19=134) community placements in FY2014.] • By June 30, 2015: cumulative total equivalent to 320 + (the number of new admissions of Community Placement-Eligible individuals in FY2014, not to exceed 35) • By June 30, 2016: cumulative total equivalent to 435 + (the number of new admissions of Community Placement-Eligible individuals in FY2015, not to exceed 35) • By June 30, 2017: cumulative total equivalent to 600 + (the number of new admissions of Community Placement-Eligible individuals in FY2016, not to exceed 35) (1) The term "Cumulative Total" in this paragraph shall mean the total number of placements from July 1, 2012 to June 30 of each year. Thus, in each year after
3

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FY2013, the stated number (230, 345, 460, 600) shall be inclusive of - not in addition to - the number from previous years.
(2) In each year after FY20 13, a "credit" shall be applied for any number of community placements made in previous year(s) over the specified minimum. For example, if 120 community placements were made in FY2013, in calculating FY2014,
the annual number will be 110, reflecting a credit of 5 (115-5 = 110), plus any
additional amount for new admissions. (3) If, on July 1 of any year, the number of Community Placement-Eligible
individuals, as defined in paragraph 5.D(1) below, residing in Developmental Centers is not large enough for Defendants to achieve the applicable cumulative total stated in this paragraph, Defendants' obligation for that year will be limited to the actual number of Community Placement-Eligible individuals residing in Developmental Centers on that date.
B. Currently Eligible Individuals. (1) "Currently Eligible Individuals" refers to those residents of
Developmental Centers who are determined to be Community Placement-Eligible as of the Effective Date. Defendants represent, and Plaintiffs accept, that presently there are fewer than 600 individuals in this category.
(2) It is Defendants' intent to place all Currently Eligible Individuals by the end of FY2017. However, if during the term of the agreement, closure of one or more developmental centers occurs, the Division of Developmental Disabilities ("DDD" or the "Division") may reprioritize the placement of Currently Eligible Individuals in accordance with the immediate needs of the Division. In such event, all Currently
4

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 7 of 53 PageID: 776
Eligible Individuals shall be placed in community settings by the end of FY2019 in accordance with the new Olmstead plan referenced in paragraph 5.C(2), which shall not, however, extend this Agreement beyond FY 2017.
C. Individuals Other Than Currently Eligible Individuals. Defendants shall not be required to place more than 35 individuals, other than those who are Currently Eligible Individuals, in any given year through FY2017, per the schedule set forth in paragraph SA above. Subject to that limitation, Community Placement~Eligible individuals other than Currently Eligible Individuals (i.e., individuals determined to be Community Placement~Eligible after the Effective Date) shall be placed in community settings within the following timeframes:
(1) Individuals who become Community Placement~Eligible between the Effective Date and June 30, 2015, and who do not subsequently become ineligible (up to the maximum 35 per year), shall be placed in community settings by June 30, 2017; and
(2) Individuals who become Community Placement-Eligible between July 1, 2015 and June 30, 2017, who do not subsequently become ineligible (up to the maximum 35 per year), and who are not placed in community settings by the end of FY2017, shall be placed in community settings in accordance with the schedule set forth in a new or amended Olmstead plan to be issued no later than December 31, 2016.
D. Eligibility for Community-based Placement ("Community PlacementEligible")
(1) An individual is eligible for community-based placement under this Agreement ("Community Placement-Eligible") when the individual's Treatment
5

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 8 of 53 PageID: 777
Professionals have determined that community placement is appropriate and the individual, or the individual's guardian if applicable, does not oppose community placement. If an individual wants a community placement and the individual's guardian opposes it, DRNJ shall be so informed so that it may investigate and take steps it deems appropriate. Additionally, if an individual or the individual's guardian wants a community placement and the Treatment Professionals oppose it, DRNJ shall be so informed. As used in this paragraph, "Treatment Professionals" means those professionals who are members of the Interdisciplinary Team responsible for developing the individual's Individual Habitation Plan, and may include, but shall not be limited to, persons in the following professions and/or practice areas: nurse, dietician, habilitation plan coordinator, speech therapist, psychologist, physician, physical therapist, occupational therapist, and psychiatrist. Community PlacementEligible individuals shall not include individuals in the Moderate Security Unit (see N.J.S.A. 30:4-25.13 et seq.), or individuals otherwise admitted to a developmental center by court order.
(2) In the event Defendants assign a Support Coordinator or Transitional Case Manager to identify an individual's needs with respect to community-based services and to develop a placement that meets the individual's identified needs, and Defendants offer the individual an appropriate community placement in accordance with this Agreement and the individual or the individual's guardian refuses the placement, Defendants shall be considered to have satisfied the requirements of this Agreement with respect to that individual, and the offer of appropriate placement shall count toward the Defendants' obligation set forth in paragraphs SA, Band C above.
6

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 9 of 53 PageID: 778
DRNJ will be informed of any such case. Individuals may challenge the appropriateness of any placement offer through the administrative procedures provided at N.J.A.C. 10:48-1-1.1 et seq.
E. Education Regarding Community-based Placement. Defendants shall provide for appropriate education regarding community-based placement options to Developmental Center residents, their guardians where applicable, and family members where appropriate. 6. Diversion. The Division will designate staff to be responsible for obtaining community placements and services for individuals who are being considered for admission to Developmental Centers. The designated staff will report and make recommendations directly to the Assistant Commissioner for DDD ("Assistant Commissioner") . 7. Pre-Admission Review.
A. Independent Admissions Review Officer. Beginning six months after the Effective Date, no individual will be admitted to a Developmental,Center unless a Preadmission Review has been conducted by an Independent Admissions Review Officer ("IARO"). The Commissioner shall designate the Office of the Ombudsman for Institutionalized Elderly ("Ombudsman") to serve as the IARO; however, in the event that the Ombudsman is or becomes unable or unwilling to serve in this capacity, the Commissioner, after consulting with DRNJ's Director, shall designate another individual with relevant experience to do so, provided that such individual shall not be a DHS employee.
7

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(1) Each individual to be admitted to a Developmental Center, andlor the individual's guardian, will be advised that representation by a DRNJ attorney may be available for the Pre-Admission Review. DRNJ will review any request for legal assistance made by a guardian or an individual regarding the individual's admission to a Developmental Center and will make a determination whether DRNJ will provide representation to the individual during the Pre-Admission review. Should DRNJ determine to provide representation to the individual, DRNJ shall select and appoint an attorney who will advocate for the expressed preference of the individual andlor his/her guardian. The Division will provide notice of the Pre-Admission Review to DRNJ whenever the Assistant Commissioner decides that an individual will be admitted to a Developmental Center.
(2) The IARO will make all reasonable efforts to hold in-person hearings to review admissions.
(3) The purpose of Pre-Admission Review will be to determine whether all reasonable and appropriate alternatives have been attempted and exhausted prior to admission.
(4) The Pre-Admission Review will be completed prior to admission, except that in circumstances resulting in a need for immediate placement, the Review may be convened within one week after the individual's admission.
(5) If, after conducting a Pre-Admission Review, the IARO does not agree with the individual's admission, the individual will not be admitted to a Developmental Center unless the Assistant Commissioner determines that the admission is necessary for the Individual's health, safety and welfare ("Assistant Commissioner's Waiver").
8

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Within seven days of any such admission, the Assistant Commissioner will provide the IARO and the individual's attorney/advocate 1) the reason that admission is necessary for the individual's health, safety and welfare; 2) a description of the community support(s) necessary to serve the individual in the community; and 3) a description of all efforts made to find community placement for that individual.
(6) Notwithstanding the foregoing or any other provision of this Agreement, in the event of circumstances indicating a need for immediate placement, the Assistant Commissioner shall have full authority to admit an individual to a Developmental Center and take any other action deemed appropriate in the Assistant Commissioner's discretion.
(7) Based on information obtained in the Pre-Admission Review process, the IARO may identify any significant gaps in the community service delivery system and make recommendations to the Assistant Commissioner for filling those gaps.
B. Interim Procedures. During the six-month period before implementation of the lARO, all proposed admissions to a Developmental Center shall be reviewed in advance by the Developmental Center Admissions Review Panel (ARP) and the Assistant Commissioner. In the event of circumstances indicating a need for immediate placement, such review will be performed within seven business days after the admission. 8. Post-Admission Procedures
A. Except for court ordered admissions as noted above, the Division will designate staff to be responsible for monitoring and oversight of discharge planning for all individuals admitted to Developmental Centers after the Effective Date, and for
9

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ensuring that such individuals are discharged to the community in conformance with their discharge plans, subject to review by the Assistant Commissioner, when they qualify as Community Placement Eligible.
B. The Division will promptly inform any admitted individual and the individual's attorney/advocate of the right to appeal the ad.mission decision pursuant to available administrative appeal procedures (NJAC 10:48-1.1 et seq.), or by petition for a writ of habeas corpus to a court of competent jurisdiction. The individual or his/her guardian shall be advised that representation by a DRNJ attorney may be available for any such appeal. Individuals who dispute the appropriateness of their admission to a Developmental Center shall be informed of the availability of DRNJ counsel.
C. For every person admitted to a Developmental Center on or after the Effective Date who is determined at the time of admission to be Community PlacementEligible:
(l) Within one year of admission, the Division will establish a plan for discharge of the individual within the time frames of paragraphs S.C.(l) and S.C.(2), which shall include a timeline for the development of needed services; and the Division will make a good-faith effort to implement each such plan;
(2) The Division will provide a copy of the discharge plan to DRNJ; and (3) DRNJ will monitor the individual's progress toward discharge. D. All individuals admitted to Developmental Centers on or after the Effective Date shall be informed no less than annually of their right to appeal their continued placement in the Developmental Center pursuant to available administrative appeal procedures (N .l.A.C. 10:48-1.1 et seq.), or by petition for a writ of habeas
10

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corpus to a court of competent jurisdiction. Upon request to the Assistant

Commissioner, any individual or his/her guardian who files an appeal shall be advised

that representation by a DRNJ attorney may be available for any such appeal.

9. Preference for Placement in Development Center. Nothing in paragraphs 7 or 8

above, except for paragraph 8.D, shall apply to an Individual who, either directly or

through his or her guardian, has chosen or expressed a preference for placement in a

Developmental Center over placement in a community-based setting, as permitted by

law. However, if an individual wants a community placement and the individual's

guardian opposes such placement, DRNJ shall be so informed so that it may investigate

and take steps it deems appropriate. Nor shall anything in paragraphs 7 or 8 above,

except for paragraph 8.D, apply to individuals in the Moderate Security Unit or under

an court order of commitment from a criminal court.

10.

Funding. Consistent with Olmstead principles, Defendant Velez (the

"Commissioner") acknowledges the need to continue to develop community resources

identified as necessary to divert individuals from emergency admissions to

Developmental Centers and toward community-based settings where appropriate.

A. In each year of the settlement (through FY2017), the Commissioner will

seek, as one of the top priorities of the Department of Human Services ("Department"

or "DHS"), as part of the annual budget recommendations, an amount sufficient to meet

the community placement targets and time frames set forth in paragraph 5 above.

B. The Commissioner will seek an increase in funding for community-based

emergency capacity placements and other community-based services, as appropriate, for

individuals eligible for DDD services.

11

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C. Upon receipt of CMS approval, within a reasonable period of time thereafter, DHS will implement a new Supports Program under the Comprehensive Medicaid Waiver, designed to expand community-based services as alternatives to institutional placements. The Supports Program will be open to Medicaid-eligible adult DDD clients (including individuals currently on the Waiting List), and will support individuals in their homes with appropriate services. To the extent available, such services will include, but not be limited to, day habilitation, respite, behavioral supports, supported employment, support coordination, assistive technology and environmental/vehicle modifications.
D. Upon closure of any Developmental Center, the Commissioner will seek, as one of the Department's top priorities, as part of the annual budget recommendations, that all funds previously allocated in the Appropriations Act to providing services to residents of the affected center be redirected to community-based services provided to former residents of that Developmental Center. 11. Settlement Monitoring and Implementation
A. A mutually agreeable consultant shall be hired at DHS expense, at a cost not to exceed twenty-five thousand dollars ($25,000) plus reasonable expenses annually, to advise both parties on the implementation of this Agreement and development of community-based resources. The Consultant shall be involved in planning for the training and mentoring of professionals employed by DDD and in bringing DDD into alignment with best practices and compliance with the time frames and other requirements in this Agreement.
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(1) The consultant shall have ready access to the reports provided pursuant to paragraph IIC below, all documents underlying those reports, all documents related to implementation of the Olmstead Plan, and any other information the Consultant considers necessary to perform the Consultant's functions under the Agreement. The Consultant also shall have ready access to individuals residing in Developmental Centers, with their consent, and to DDD staff and facilities. The Consultant shall execute a confidentiality agreement with substantially the same provisions as the Confidentiality Orders attached to this Agreement as Exhibit A.
(2) DRNJ, DDD and the Consultant shall have quarterly conference calls to discuss the status of the Consultant's work. However, any of such conference calls may be waived by the parties if DRNJ, DDD, and the Consultant all agree that the call is not necessary.
(3) The Consultant shall keep DRNJ and Defendants apprised of the status of her work. The Consultant may speak separately with either party or its representatives. The Consultant shall have the discretion to determine whether information the Consultant learns or discusses in a separate discussion with one party shall be kept confidential from the other.
(4) No later than July 1, 2016, the Consultant will make recommendations to the Commissioner with respect to the Pre-Admission Review procedure set forth above or any other relevant pre-admission review procedure, and with respect to any new or amended Olmstead plan. The Consultant shall provide a copy of such recommendations to DRNJ.
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(5) The Consultant shall be retained for four years from the date of retainer unless DRNJ and Defendants agree to discontinue use of the Consultant before then or to extend the retainer of the Consultant thereafter.
(6) In the event it becomes necessary to replace the consultant, the identity of a replacement Consultant shall be jointly agreed to by DRNJ and Defendants as follows:
a. DRNJ and Defendants shall each submit the name, curriculum vitae, and contact information of at least one proposed Consultant to the other within 15 days of receiving notice of the need for a replacement Consultant.
b. Each party shall have 30 days from the date of receiving notice of the need for a replacement Consultant to choose a replacement Consultant from those proposed; or, if that has not occurred by the thirtieth day, each party shall submit the name, curriculum vitae, and contact information of at least one other proposed consultant.
c. If DRNJ and Defendants have not agreed on the identity of the replacement Consultant by 30 days from the date of receiving notice of the need for a new Consultant, DRNJ and Defendants agree to mediate the matter for 15 days. DRNJ and Defendants may extend the IS-day time frame set forth herein by mutual agreement in writing.
B. Defendants will pay DRNJ eighty-eight thousand dollars ($88,000) per year for each year from FY2013 to FY2017 to cover all costs anticipated by the parties to be incurred by DRNJ pursuant to this Agreement; provided, however, that in the event that more than 20 individuals are admitted to Developmental Centers in any year
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from FY2013 to FY2016, the amount provided to DRNJ in the next succeeding fiscal year pursuant to this paragraph shall be ninety-four thousand dollars ($94,000).
C. DDD shall provide the following reports to DRNJ: (1) The DC Monthly Movement Summary, by the tenth day of each month
through June 2017, in the format shown in Exhibit B. (2) An updated Community Placement Eligibility list, in sortable
electronic form and in the format shown in Exhibit C, by February 1 and August 1 of each year through 2017.
(3) A report on the progress of its development of needed communitybased resources, by February 1 and August 1 of each year through 2017, in the format shown in Exhibit D. 12. General Release of Claims.
A. It is expressly understood and agreed by each of the Parties that this Agreement constitutes a complete and final general Release between the Parties with respect to any and all past and present liability, claims, demands,rights and causes of action, guarantees, claims for damages, settlements, costs, attorneys' fees and compensation of any kind or nature whatsoever (whether class, derivative or individual in nature), in connection with or arising out of the Actions.
B. In return for the consideration set forth in Paragraphs 5, 6, 7, and 8 and the other promises contained herein, Plaintiffs, and each of them, do knowingly and voluntarily, completely and forever, release and discharge Defendants, and each of them, and each and all of Defendants' present and former employees, officers, agents and representatives, and any successors of Defendants, from any and all claims, causes
15

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 18 of 53 PageID: 787
of action, judgments, obligations or liabilities of whatever kind and character, whether known or unknown, fixed or contingent, relating in any way to the provision of community-based services to Community Placement-Eligible individuals, and based on any conduct, acts or omissions up to and including the date of this Agreement. This Release includes but is not limited to any claims that Plaintiffs, or any of them, or anyone on behalf of Plaintiffs, or any of them, may have arising under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("Section 504"); the Medicaid Act, 42 U.S.C. § 1396 et seq., the federal or State Constitution, or federal or State statute, regulation, rule, or public policy; any claim of retaliation under such laws or on any other basis; any claim arising under the common law; any claim based in contract, tort, or any other legal theory or right; any claim for compensatory damages, liquidated damages, punitive damages, damages for emotional distress, attorneys' fees and costs, pre- or post-judgment interest, and any other claim, whether cognizable in law or in equity. Plaintiffs, and each of them, further agree and acknowledge that none of them has filed any action or made any allegations against Defendants, or either of them, relating to the provision of community-based services to themselves or any other Community Placement-Eligible individuals, in any matter in any court, agency or tribunal other than the Actions. Nothing in this Agreement shall be construed to limit DRNJ's pursuit of any action that does not relate in any way to the provision of community-based services to Community Placement-Eligible individuals, or to limit DRNJ's pursuit of any action currently pending against Defendants, or either of them, other than the Actions.
16

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 19 of 53 PageID: 788
13. Confidentiality. The information in all reports required by Paragraph 11 shall be treated as confidential to the extent that it comes within the terms of the Confidentiality Orders entered in the Actions, copies of which are attached to this Agreement as Exhibit A. 14. Remedies for Breach.
A. Motion. In the event any Party asserts that another has breached any provision of this Agreement, the asserting Party may invoke the Dispute Resolution Process set forth in Paragraph 15; provided, however, that any failure to obtain approval by the Governor or appropriation by the State Legislature of amounts sufficient to meet the targets and timeframes in paragraph 5 above shall not be considered a breach, and no remedy for such occurrence shall be required or provided; and provided, further, that in the event of issuance of a court order or action by the State Legislature prohibiting or delaying the closure of one or more Developmental Centers, any failure to meet the targets and timeframes in paragraph 5 above shall not be considered a breach, and no remedy for such occurrence shall be required or provided. If, in circumstances where it is applicable, the Dispute Resolution Process set forth in Paragraph 15 does not resolve the dispute and after providing 14 days written notice to opposing counsel, the party asserting breach shall file, within 45 days of the written notice of intent to file the motion, a motion to enforce the Agreement, before the United States District Court for the District of New Jersey.
B. Defenses. Nothing in this Agreement shall be construed to limit the Defendants' defenses in the event of a motion by Plaintiffs to enforce the Agreement. Specifically, Defendants may raise insufficient appropriations or the existence of a
17

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 20 of 53 PageID: 789
court order or legislation prohibiting or delaying closure of one or more Developmental Centers as a defense to any such motion. 15. Dispute Resolution. The following shall be the Dispute Resolution Process:
A. Notice. Either party may invoke the Dispute Resolution Process in accordance with the terms of this Agreement by sending a written notice to the other party stating the factual basis of the dispute, citing the portion of this Agreement that authorizes the party to invoke the Dispute Resolution Process, and including information supporting the assertion. The other party shall make a written response that includes information supporting its assertions within ten business days of receipt of the invoking party's notice and supporting information.
B. Attempt to Resolve Dispute. From the date of receipt of the written response and supporting information, the Parties shall negotiate in good faith for 30 business days in an attempt to resolve the dispute unless the time is extended by written agreement of the Parties.
C. Mediation. If the Parties do not resolve the dispute through negotiations within 30 business days, the Parties shall agree to mediate the matter for 30 days on terms to be agreed upon and placed in writing by the Parties. The Parties, by mutual agreement in writing, may extend the 30-day mediation time frame.
D. Proposed Mediators. Within 14 days of any unsuccessful conclusion of negotiations, each Party shall propose the name of a candidate to serve as the Mediator. Each party shall have 14 days thereafter to respond to the other party's proposal. Thereafter, the Parties shall have 30 days to reach an agreement as to the identity of the Mediator.
18

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 21 of 53 PageID: 790

E. Confidentiality. The Mediator shall execute a confidentiality agreement

with the same provisions as required in the confidentiality orders in Paragraph 13.

F. Costs of Mediation. Defendants shall pay all costs of the mediation.

16. Attorneys'Fees and Costs. Defendants shall pay DRNJ seven hundred thousand

dollars ($700,00.00) in full satisfaction of all attorneys' fees and costs that Plaintiffs

have incurred in the Actions.

17. Notices. All notices and reports to be sent pursuant to this Agreement shall be sent

by U.S. Mail, return receipt requested or by hand delivery with a signed confirmation,

to: For Plaintiffs:

For Defendants:

Executive Director Disability Rights New Jersey, or its successor 210 South Broad Street, 3rd Floor Trenton, New Jersey 08608

Commissioner New Jersey Department of Human Services PO Box 700 Trenton, New Jersey 08625-0700

Director of Litigation Disability Rights New Jersey, or its successor 210 South Broad Street, 3rd Floor Trenton, NJ 08625-0727

Assistant Commissioner N.J. Div. of Developmental Disabilities P.O. Box 727 Trenton,New Jersey 08608
HHS Section Chief Division of Law N. J. Dept. of Law and Public Safety P.O. Box 112 Trenton, NJ 08625

18. Compliance with Applicable Law. Defendants at all times shall remain bound to

comply with applicable New Jersey and federal law.

19. Court-ordered Admissions. Nothing in this Agreement shall be interpreted to refer

to, to have any effect on, or to limit court-ordered admissions to developmental centers.

20. Binding Agreement. This Agreement is enforceable only by and is binding upon

the Parties, by and through their officials, agents, employees, and successors. The

19

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 22 of 53 PageID: 791
Parties do not intend that this Agreement shall create a private right of action in any civil, criminal or administrative action in any person. Nothing in this Agreement is intended to divest any person(s) of any other private right of action they may possess pursuant to State or federal law. No other person or entity is intended to be a thirdparty beneficiary of the provisions of this Agreement for purposes of any civil, criminal, or administrative action, and accordingly, no person or entity other than the Parties may assert any claim or right as a beneficiary or protected class under this Agreement in any civil, criminal, or administrative action. 21. MQdification of Agreement. This Agreement may not be altered, amended, or modified except by a writing duly executed by all of the undersigned Parties or their successors in interest. 22. Termination. The Agreement shall automatically terminate on June 30, 2017, without the need for any action on behalf of any party. 23. Entire Agreement. This Agreement supersedes any previous agreements, oral or written, between the Parties and shall constitute the entire, integrated Agreement of the Parties. No prior contemporaneous communications, oral or written, or prior drafts shall be relevant or admissible for purposes of determining the meaning of any provisions herein in any litigation or any other proceeding.
20

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24. Counterparts. This Agreement may be executed and delivered in several counterparts, each of which when so executed and delivered shall constitute an original, fully enforceable counterpart for all purposes.
By their signatures, each Party signing this Agreement represents and warrants that the signatory is authorized to execute this Agreement.

Date

ALLISON HARMON

·.'l

_ By:~ _____________________

'j

I
i

Valerie Harmon, Guardian

Date

FREDRENA THOMPSON

Date

REGINALD BROWN

Date

JONATHAN STEVENS For Defendants:
EZ r epartment of Human Services

Date
2 2 ~.(J
Date

21

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 24 of 53 PageID: 793

24. Counterparts. This Agreement may be executed and delivered in several counterparts, each of which when so executed and delivered shall constitute an original, fully enforceable counterpart for all purposes.
By their signatures, each Party signing this Agreement represents and warrants that the signatory is authorized to execute this Agreement. For PlaintiffDRNJ:

Joseph Young Executive Director Disability Rights New Jersey, Inc.

Date

ALLISON HARMON

By: V~). ~,----­

Valerie HarnlOn, Guardian

Date

FREDRENA THOMPSON

Date

REGINALD BROWN

Date

JONATHAN STEVENS

Date

d)mdiliupgmer sey Department of Human Services

Z·Z&.il
Date

21

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 25 of 53 PageID: 794

24. Counterparts. This Agreement may be executed and delivered in several counterparts, each of which when so executed and delivered shall constitute an original, fully enforceable counterpart for all purposes.
By their signatures, each Party signing this Agreement represents and warrants that the signatory is authorized to execute this Agreement. For PlaintiffDRNJ:

Joseph Young Executive Director Disability Rights New Jersey, Inc.

Date
ALLISON HARMON By: _________________________
Valerie Harmon, Guardian
.F£ReEeDtReECNA4eTtDI' -IJO J.M.P Il~~

Date

¥ D I at{e .:l..~/

L.). •

REGINALD BROWN

Date

JONATIlAN STEVENS

Date

For Defendants:

Date

21

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 26 of 53 PageID: 795

24. Counterparts. This Agreement may be executed and delivered in several counterparts, each of which when so executed and delivered shall constitute an original, fully enforceable counterpart for all purposes.
By their signatures, each Party signing this Agreement represents and warrants that the signatory is authorized to execute this Agreement. For PlaintiffDRNJ:

Joseph Young Executive Director Disability Rights New Jersey, Inc.

Date

ALLISON HARMON

By: __________________________

Valerie Harmon, Guardian

Date

FREDRENA THOMPSON

Date

'~~t&DR aWry

JONATHAN STEVENS

Date

Date

21

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 27 of 53 PageID: 796

24. Countemarts. This Agreement may be executed and delivered in several counterparts, each of which when so executed and delivered shall constitute an original, fully enforceable counterpart for all purposes.
By their signatures, each Party signing this Agreement represents and warrants that the signatory is authorized to execute this Agreement. For PlaintiffDRNJ:

Joseph Young Executive Director Disability Rights New Jersey, Inc.

Date

ALLISON HARMON

By: ________________________

Valerle Harmon, Guardian

Date

FREDRENA THOMPSON

Date

vf2_1r«1IfI 1~~~.fo. REGINALD BROWN

Date

'.1..2

Date

21

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 28 of 53 PageID: 797
EXHIBIT A

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 29 of 53 PageID: 798
Case 3:05-cv-04723-AET-TJB Document 10 Filed OS/25/06 Page 1 of 9 PagelD: 64

ZULIMA V. Fl\l<.Bt:R l\TTORNEY GENERAL OF NEW J~KSEY
R. LJ. Ilughes LJust.i.cc-3 Compl.ex
?~) MiH"kct Street
J> • O. Box 11 7. '['ren.ton, New LhH'sey OH62b
Attu!ney for Kovin M. Ryan, Commissioner, New Jersey l)eparLment of IIuman Services

By: B(.;U~ Le1gh MiLchel.1 (ELM 0651) DepuLj Attorney General (609) 633-8197

RECEI\lED

l\my ~:. Duff (ADH1!:i7) Deputy ALLorney Cuneral (604) 341~5972

MAy2Sta

,JBrlIlifer ,J. Dugan (,JD6683) I)epu Ly At to .rncy Gene rJ.l
(6U9) 297-6120

UNJ 'I'ED STAn~S DISTK. LeT COURT FOK TIlE DIstRICT OF NEW JERSr~Y
VICINAGE OF TRENTON
--------~-~~~---.

NEW ,JERSEY PROTECTION AND
l\DVOCACY, JNC.; l\LLISON Hl\HMON, by and through her
cJuardiaIl:J, Valer:ie Harmon
and Linda I.emon.::, and
~'I-<.EDRENA
TJlOMPSON,

Han. SlanJey R. Cnesler, U.S.D.L),
CiIJil AcLion No :
05-CV-/J"/23 (SRC)

Pl~intiIfs
v.
JAMES DAVY, in his official capacity as Commis~ioner 01 Hum~n Services tor the State
of New Je:rs~y,

DISCOVERY CONFIDENTJALITY AND PRO'I'F:CTIVE ORDER

D(~ [end~nts

----- ------ -------.--

WHEREA:~ this m03tteL' ..is a conlested matter filed in Lhe UIlited StaLes I)i !'1tric:t COI)L·t for the District of New Jen3ey
and vCllued in the Vicinage of 'l'renton; and
WHSREl\S, the SLate of New Jersey, Department of Hum~n

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wi ttl the HIPl\l\ Pri vacy Rules generally, and speci fically 45 C.F.R. 164.51?(e), which provj.des thaL protected health informati.on IlIay be provided in a judi ci al pnjceeding where a qua1iLied protect i ve oL'der has been unlared i ntD; and
WHE:Ff:AG, it is antiej.pated that durtng th8 course of the above-cnpLioned matter lhe State may have to disclose records which may contain protected heed Lh information wilhin the meaninq of HIPAA Privdcy Rule; elnd
WHE;k~;AS, il is ant:icipated that. the SLaLe may helve Lo disclose rccords in the custody of Department of Human Serviccs which may contain confid8ntial inforrm:lLion ptJrsuant Lu ~.J.S.A. 30:1-24.3, which can only be disclosed whore a cour.t. has ordered same pursuant to N.J.S_:.~ 30:1-24.3 (c) and the CourL hav.inq found that non-disclosure of records t.hat Ule State wi 11 pL'Clduce pursuant to discovery in this liligation would be contrary Lo the public interest; and
WIiEREAS, i t l~ i.inticj pated that New ,JeLsc;y Protection and l\dvocacy, Inc. (" NJ I?&A") may have to disclose records Lhat contain sensitive and confidential informati.on inr.:luding but not limited to medical conditioTls/lreatment. o[ NJP&A's constituents and/or records that nrc protected from dj.sc1usure under 42 U.S.C. §15041.
WH~Rh~S, iL is anticipated that third parties may have to di~close records lhat contain proLected health information wit.hin the meaning of the H[l?AA Privacy Rules,

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or olher sensitive and confidential informalion that may be confidential pursuarlL to oLher statutes, requl.atiofls or case law, tncludinq but not limited Lo medical condi t,i ons/treatrnenl; and
WIlEREAS, tlw parties consent and agree to the terms, form ilnci ellLL'Y of Lhis Discovery Confi dentiali ty and Protective Order ("OrderU) on the following terms and for good cause shown;
IT IS, lherefore, ORDERED that:
1. All confidential malerial set forth above and produced subjecl lo the terms of this Order shall be termed "Confi dentiul Malerial." 'I'he desiqnaLion of Confi.dentiill Malcrial may be made by the producing party by conspicuously stamping or otherwis8 placing or affixing on documents produced Lhat are (or contain or reier La) Confidential Material the words "Confic:i(-mtial. /I
2. The parties shall not further reproduce, copy or otherwise disseminaLe Confidential Material to Dny person or agcllcy Lor any other reason, nor disscminate or m~ke pub1.ic thc records by any means, direct or indirect, other than LO lhe aforesaid attorney, or t.J18 court having juri sdicllon of the action except as tJPccified In this Order; uTld
3. nIl Confidential M~terial released to the pur lies as part of discovory pursuant to this Order:

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a. shall b~ kept stricUy conftdenti a1 pursuanL to HIPAA Privacy Rule and shall nol be used or di.sclosed for any purpose other than tho trial preparation in the above-captioned mater, as specified in this Order, for which Lhis information wa~ reque~Lad as required by HIPAA I'rivacy Rule and speclfically 1!:i C.F.. ~. §] 64. ~12 (e) (1) (v) (A); and;
b. may not be disclosed to any other persons except for the parties, the attoTney~ of record for the pa.cties and members of their law finn::;/organizations, or to persons regularly employed in such law lirms/organizations' offices, or in acC,:ordaflCU with the limitatiolls set forth in paragraph 4, to cert~ifl oLher persons ~~ reasonably n~cessary for the preparation or trial of this matter.
4. In addition Lo those persons 1i::; tcd in pa raqraph 3 (v)( the following persons mt:.ly be given acceSR to Confidential M~t8rlal when reasonably necessary for the conduct of this liLigalion:
a. Expert witnesses alld consulting experts. b. CourL .reporters i.nvolved ill Laking
depositionR in this casco

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 33 of 53 PageID: 802 Case 3:05-cv-04723-AET-TJB Document 10 Filed OS/25106 Page 5 of 9 PagelD : 68
c:. Non-p<.u'ly witnesses, but only in the c:ourse of ( and to the exteC1 t IleC(~Ssary to conduct: I depositions or interviews of such witnesses.
d. Persons who wero authors of the Confidential Material, or who were previous recipjents of the Confidential Malerial.
e. Such other persons as may be identified in the course of the litigation and as agre~d buLween counsel for th8 parties.
b. nny such person to whom Confidential MaLerial l,S to be disclosed pursuant LO this Order shall [irst be advised by the attorney making the disclosure that pursuant to this Or'deL' such person may noL divulge any such Confident.ial Materifll to any other person not authorized hereunder to have t.lCcess to such Confidential Mflterial, and lI\ay not use such Confidential Material [or purposes
unrelated Lo Lhis litigi;':ltion cwd the reason for t:he disclosu:ce in the course thereof. The attornoy shall securo from PoAch pEHson an affidavi t ~t_ating Lhat such per ::iDn has Tp.ad thi~ Order and agrees to be bound by it. Such alfidavit shall be InwinLained in the possession of the attorney ~~(-:CllL'iIlg Lhe aff; dc;lvit uIlLil further order o[ the Court. Court reporters and deposition witnesses may satisfy thi:, r8qui!omen t by not i nq their agreement on th8 rec o rd.
6. No later thaI! sixty (60) days al Ler the conclusion

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of this l.itigation (including exhaustion of all appeals and/or p~tjtions fur ccrtiorari), al.1 Confidential Materiul providt'ld by L1IC State pursuant to Lhis Order, i.ncluding all copil:,s mdde for any reason, Shc111 either be returnod Lo
Zulima v. ~~rber, ALlurney General of New Jersey, through
Heth Leiqh MlLchell, Deputy Attorney General, or codified tu have been destroyed at lhc completion of this legal proceeding as required by the HIPAA Privacy Rule, 45 C.F.R.
§164.5l?(e) (1) (v) (B)
./. No later than sixty (60) days after the conclusion of this litigation (including oxhaustion of all appeals and/or petitions fUL certiorari), all Cunfidential Material provid~d by NJP&A pursuant to this Order, including all c()pi(·)~; lllaue for any r~asun, shall either be :n~Lurned to N,TP&A OL' Ballard SpatH Andrews & .ingersoll, 1LP, or ce:ctiftecl t.o have been destroyed at the completion of this l~gal pruceeding.
8. To the extent thaL any of the Confidential Material lS tu bc used as evidence in the above captioned mi'ltter, the party introducing such Confidential Malarial shall fU.e a mot.ion lo seal pursuant. to L. C.i.v ..~Il:.. 5.3 (c).
9. In the event that a good fuith dispute arises royardlng whether informatiun is properly designated as Confidential Matarial, such that is subject to the term~ of the OLdc~, Lhe party disputing the aosartion of

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 35 of 53 PageID: 804
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confiderlLiality shall provide the producing pa~ly with a written staLement setting forth the basis upon which the challeng~ to the us~crLion of confidentiality is based. WiUtln [if teen (15) business days of receipt of such written sLatement, the producing party shall either:
a. withdraw the assertion of confidentiality; o~ b. iilo a motion seeking to have the Court
determirHl whether the i.nformation is c;onlidcrlLlal pursuant. to th~~ claimed auLhority. Ln any such motion the producing party shall have the burden to provo that 51lch infor'maLion is confidentiul. 10. In the- <.;vent that a good faith dispute urises reqarcHn9 wheLher an i ndi.viduul identified pursuunt to paragraph 4(e) of this Order shall be required Lo keep the Confidential Material conildcntial pursuant to lhis Order, the party ctw.llcnging the need for Lho ind1vi dual to abide by lhis Order shall provide Lho other party with a written statement of the basis upon which it i9 b e lie ved tha~ the identified i.ndividual need abide by this Order. Within 11[Leen (15) business day~, the party asserting Lhat the i d~nti f ied iIlC.ll vidual must keep the iniormat ion cont idontia 1. shall eilher: a. withdraw the request to identify the individual as SOHll! O ne who must keep Lhe

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Confidential Material confidential under the terms of this Order; or b. file a motion seeking Lo have the Court determine whelher the i.ndividuul is someone who must keep the Confi.dential Material conlidential pursuant to the terms of this Order. In any such motion the purty assertiny Lhat the individual must

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abide by the terms 01 this Order shall hC1vc the burden to so prove.
~t-Jl~ -~Tonianne Bongiovanni, U.S.M.J
We, the undeTs i qrH:~clt hereby con~;cfl L and a qr.e~~ L0 the te nilS, form and ent ry of this Ord~Jr:

John B. Kearney, Esq, ~:ugene ...T. KuzillSki, ~:sq. Ballard Spahr Andrews & Ingersoll LLP
,( s Fomme t t .o~.J..y....:e...::r____ Emmett Dwyer, ~sq.
New JCL'sey Protection and Advocacy

~ay 2~, 2~O~O~6~____--____. Date
May ?4, ?OO~ ._____.... . .___
DaLe

Attorneys lor Plaintiffs, New Jersey ProtPoet.ion and Advocacy, a New ,Jersey Tl(m-profi.t corporat i oni
Allison lIuL'fnon, by and through her
gllardiilIltl, Valer.ie Harmon C111d Linda
l.emoL"C; anrl I:'redrcna Thompson.

ZUL1MA V. FARBf:R. l\T'I'Ol{NEY GENF:R.A.L OF NEW dERSEY

By: / sHeth Leiqh Mi tche~=l_l___
Bet!: LeTqh MitCl1elJ ', ~sq.
Deputy Attorney General on behalf of Kevin Ryan,
Comrnit3sioner, New Jersey Dopartment 01 Human ServIces

May 2,4, 7.006
Dale

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Case 3:08-cv-01858-AET-LHG Document 46 Filed 12103109 Page 1 of 8 PagelD: 598 Case 3:08-cv-01858-AET-LHG Document 42-2 Filed 11/02/2009 Page 1 of 8

ANNE MILGRAM ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street P.O. Box 112 Trenton, NJ 08625 Attorney for Jennifer Velez,
Commissioner, New Jersey
Department of Hvman Services

By: Stephanie Beaty Deputy Attorney General (609) 292 -8555

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
VICINAGE OF TRENTON

NEW JERSEY PROTECTION AND ADVOCACY, Inc.,
Plaintiff ,
v.
JENNIFER VELEZ, In her official Capacity as Commissioner of Human Services for the State of New Jersey,
Defendant.

)Hon. Ann E. Thompson U.S.D.J.

)

)Civil Action No. 08-1858 (AET)

)

)

) DISCOVERY CONF:EDENTIALITY AND

)

PROTECTIVE ORDER

)

)

)

)

)

WHEREAS this matter is a contested matter filed in the United States District Court for the District of New Jersey and venued in the Vicinage of Trenton; and
WHEREAS, it is anticipated that The State of New Jersey, Department of Human Services (hereinafter "the State") may have to disclose records which may contain protected health information within the meaning of the Health Insurance Portability and Accountability Act, Administrative Simplification, 42 U.S.C.A.

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§1320d et seq., and its underlying regulations, 45 C.F.R. 160 and

164 (HIPAA Privacy Rule), generallYr and specifically 45

C. F. R. 164.512 (e), which provides that protected health information

may be provided in a judicial proceeding where a protective order

has been entered into; and

WHEREAS, it is anticipated that the State may have to

disclose records in the custody of Department of Human Services,

Division of Developmental Disabilities, which may contain

confidential information pursuant to N.J.S.A . 30:4-24.3, which can

only be disclosed where a court has ordered same pursuant to

N.J.S.A. 30;4-24.3(c) and the Court having found that non-

disclosure of records that the State will produce pursuant to

discovery in this litigation would be contrary to the public

interest; and

WHEREAS, it is anticipated that New Jersey Protection and

Advocacy, Inc. ("NJP&A") (now known as Disability Rights New

Jersey, Inc . ) may have to disclose records that contain sensitive

and confidential information including but not limited to medical

conditions/treatment of NJP&A's constituents and/or records that

are protected from disclosure under 42 U.S.C. §10806.

WHEREAS, it is anticipated that third parties may have to

disclose records that contain sensitive and confidential

information

including

but

not

limited

to

medical

conditions/treatment; and

2

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 40 of 53 PageID: 809
Case 3:08-cv-01858-AET-LHG Document 46 Filed 12/03/09 Page 3 of 8 PagelD: 600 Case 3:08-cv-01858-AET-LHG Document 42-2 Filed 11/02/2009 Page 3 of 8
WHEREAS, the parties consent and agree to the terms, form and entry of this Discovery Confidentiality and Protective Order ("Order") on the following terms and for good cause shown;
IT IS, therefore, on this fdf\cl.. day of -~oeetbefb\eb~.,tA-2­009,
ORDERED that: 1. All confidential material set forth above and
produced subject to the terms of this Order shall be termed "Confidential Material." The designation of Confidential Material may be made by the producing party by conspicuously stamping or otherwise placing or affixing on documents produced that are (or contain or refer to) Confidential Material the words "Confidential."
2. The parties shall not further reproduce, copy or otherwise disseminate Confidential Material to any person or agency for any other reason, nor disseminate or make public the records by any means, direct or indirect, other than to the aforesaid attorney, or the court having jurisdiction of the action except as specified in this Order; and
3. All Confidential Material released to the parties as part of discovery pursuant to this Order:
a. shall be kept strictly confidential pursuant to HIPAA Privacy Rule and shall not be used or disclosed for any purpose other than the trial preparation in the above-captioned matter, as specified in this Order, for
3

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which this information was requested as required by HIPAA

Privacy

Rule

and

specifically

45

C.F.R.

§164.512 (e) (1) (v) (A) i and

b. may not be disclosed to any other persons except for

the parties, the attorneys of record for the parties and

members of their law firms/organizations, or to persons

regularly employed in such law firms/organizations'

offices, or in accordance with the limitations set forth

in paragraph 5, to certain other persons as reasonably

necessary for the preparation or trial of this matter.

5. In addition to those persons listed in paragraph 4,

the following persons may be given access to Confidential Material

when reasonably necessary for the conduct of this litigation:

a. Expert witnesses and consulting experts.

b. Court reporters involved in taking depositions in

this case.

c. Non-party witnesses, but only in the course of, and

to the extent necessary to conduct, depositions or

interviews of such witnesses .

d. Persons who were authors of the Confidential

Material, or who were previous recipients of the

Confidential Material.

e. Such other persons as may be identified in the

course of the litigation and as agreed between counsel

4

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 42 of 53 PageID: 811
Case 3:08-cv-01858-AET-LHG Document 46 Filed 12/03109 Page 5 of 8 PagelD: 602 Case 3:08-cv-01858-AET-LHG Document 42-2 Filed 11/02/2009 Page 5 of 8
for the parties. 6. Any such person to whom Confidential Material is to be disclosed pursuant to this Order shall first be advised by the attorney making the disclosure that pursuant to this Order such person may not divulge any such Confidential Material to any other person not authorized hereunder to have access to such Confidential Material, and may not use such Confidential Material for purposes unrelated to this litigation and the reason for the disclosure in the course thereof. The attorney shall secure. from each person an affidavit stating that such person has read this Order and agrees to be bound by it. Such affidavit shall be maintained in the possession of the attorney securing the affidavit until further order of the Court. Court reporters and deposition witnesses may satisfy this requirement by noting their agreement on the record; 7. No later than sixty (60) days after the conclusion of this litigation (including exhaustion of all appeals and/or petitions for certiorari), all Confidential Material ~rovided by the State pursuant to this Order, including all copies made for any reason, shall either be returned to Anne Milgram, Attorney General of New Jersey, Stephanie Beaty, Oeputy Attorney General, or certified to have been destroyed at the completion of this legal proceeding as required by the HIPAA Privacy Rule, 45 C.F.R.
§164. 512 (e) (1) (v) (8) .
8. No later than sixty (60) days after the conclusion
5

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 43 of 53 PageID: 812
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of this litigation (including exhaustion of all appeals and/or petitions for certiorari), all Confidential Material provided by NJP&A pursuant to this Order, including all copies made for any reason, shall either be returned to NJP&A or Bernard Cooney, Esq., or certified to have been destroyed at the completion of this legal proceeding.
9. To the extent that any of the Confidential Material is to be used as evidence in the above capt.ioned matter, the party introducing such Confidential Material shall file a motion to seal pursuant to L. Civ. R. 5.3(c).
10. In the event that a good faith dispute arises regarding whether information is properly designated as Confidential Material, such that is subject to the terms of the Order, the party disputing the assertion of confidentiality shall provide the producing party with a written statement setting forth the basis upon which the challenge to the assertion of confidentiality is based. Within fifteen (15) business days of receipt of such written statement, the producing party shall either:
a. withdraw the assertion of confidentiality; or b. file a motion seeking to have the Court determine whether the information is confidential pursuant to the claimed authority. In any such motion the producing party shall have the burden to prove that such information is confidential.
6

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 44 of 53 PageID: 813
Case 3:08-cv-01858-AET-LHG Document 46 Filed 12103/09 Page 7 of 8 PagelD: 604 Case 3:08-cv-01858-AET-LHG Document 42-2 Filed 11/02/2009 Page 7 of 8
11. In the event that a good faith dispute arises regarding whether an individual identified pursuant to paragraph 5 (e) of this Order shall be required to keep the Confidential Material confidential pursuant to this Order, the party challenging the need for the individual to abide by this Order shall provide the other party with a written statement of the basis upon which it is believed that the identified individual need abide by this Order. Within fifteen (15) business days, the party asserting that the identified individual must keep the information confidential shall either:
a. withdraw the request to identify the individual as someone who must keep the Confidential Material confidential under the terms of this Order; or b. file a motion seeking to have the Court determine whether an individual is someone who must keep the Confidential Material confidential pursuant to the terms of this Order. In any such motion the party asserting that the individual must abide by the terms of this order shall have the burden to so prove.
U.S.M.J.
7

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 45 of 53 PageID: 814
Case 3:08-cv-01858-AET-LHG Document 46 Filed 12/03/09 Page 8 of 8 PagelD : 605 Case 3:08-cv-01858-AET-LHG Document 42-2 Filed 11/02/2009 Page 8 of 8
We, the undersigned, hereby consent and agree to the terms, form and entry of this Order:

Bernard Coo y, Esq. on behalf of Plaintiff, New Jersey Protection and Advoca , Inc. (now known as Disabil ty Rights New Jersey, Inc.)
ANNE MI LGRAM ATTORNEY GENERAL OF NEW JERSEY
Stephanie Beaty Deputy Attorney General on behalf of Jennifer Velez, Commissioner, New Jersey Department of Human Services

Date

8

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 46 of 53 PageID: 815
EXHIBITB
3657528vl

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 47 of 53 PageID: 816

Starting Census
From DC

July 2,703
1

August 2,702 0

September 2,694

October 2,685

0

0

Developmental Center Movement - FY 2011

November

December

January February

2,676

2,666

2,659

2,648

5

3

1

20

To DC

-1

0

0

0

-5

-3

From

Comm

6

3

5

1

3

3

To

Comm

-4

-4

-4

-3

-12

-5

Deaths

-3

-7

-10

-7

-1

-5

-1

-20

0

6

-8

-7

-3

-4

Discharges

0

0

0

0

Change(+/-)

-1

-8

-9

-9

Ending

Census

2,702

2,694

2,685

2,676

-_ _- -_ - ._ _ _ "F ... C ......" Breakout bv Resid .. TVDe the P----" c ... .F. ..-

Own Home

3

0

4

0

Group Home

1

2

0

0

SupvApt

1

0

0

0

Skill Dev

0

0

0

0

Psy Hsptl

0

0

0

0

Correct Facil

1

1

0

0

Board Home

0

0

0

0

POC

0

0

1

0

Skill Nurs Fac

0

0

0

1

Total

6

3

5

1

"From comm" Breakout t: Region the Person came From

Northern

2

1

0

0

Upper Central

2

1

1

0

Lower Central

0

1

1

1

Southern

2

0

3

0

Total

6

3

5

1

0 -10
2,666
0 1 0 0 1 0 0 0 1 3
1 . 1
1 0 3

0 -7
2,659
1 2 0 0 0 0 0 0 0 3
1 1 1 0 3

0 -11
2,648
0 0 0 0 0 0 0 0 0 0
0 0 0 0 0

-3 -8
2,640
4 1 1 0 0 0 0 0 0 6
3 0 3 0 6

March 2,640
8 -8
,
3

April 2 ,621 5 -5 3

-14

-15

-8

-3

0

0

-19

-15

2,621

2,606

May 2,606 1 -1 2
-8 -3 0 -9 2,597

June 2,597 4 -4

. .

Total

!

2,703 1

48

-48

1

36

-9 -2 0 -10
2,587

-93 -56
-3 -116 2,587

1

2

1

0

16

1

0

1

0

9

0

0

0

0

2

0

0

0

0

0

0

0

1

1

2

1

0

0

0

3

0

0

0

0

0

0

0

0

0

1

0

1

0

1

4

3

3 I

2

2

-

37

1

1

1

0

11

1

0

0

0

7

0

1

1

0

10

1

0

0

1

7

3

2

2

1

35

-

-

---

092

DC Fiscal Year Movement Summary by Month and Movement type Report

0813112011 10:21 am Page 20/3

[

~~~~~~~-

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 48 of 53 PageID: 817

"To ~

Comm" ~

B- reakout

Olm.Comm.

3

3

3

Non.Olm.

1

1

0

Comm.

Skill Nurs Fac

0

0

1

Correct Facil

0

0

0

Psych Hsptl

0

0

0

Total

4

4

4

November

December

3

8

3

0

3

0

0

0

2

0

1

0

0

0

0

3

12

5

7

6

13

14

6

1

1

0

0

0

0

0

0

0

1

0

0

0

0

1

0

0

0

0

0

8

7

14

14

7

7

76

0

7

0

4

0

2

2

2

9

91

092

DC FisCQI Year Movemenc Summary by Month and Movemenc type Report

0813112011 10:21 am Page3of3

Fiscal Year Summary ofDC Movements

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 49 of 53 PageID: 818
EXHIBIT C
3657528vl

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 50 of 53 PageID: 819

DC Individuals Eligible for Community Placement Effective May 1, 2012

DC

DDDlD

ConsumerName

Guardianship Status

,

DC

DDDID

DC IndividualsNot Eligible for Community Placement

Effective May 1, 2012

ConsumerName

IDTin Favor of/Not Opposed

Individual In Favor of/Not opposed

Family in Favor of/Not
Opposed

Guardian in Favor of/Not Opposed

Guardianship Status

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 51 of 53 PageID: 820

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 52 of 53 PageID: 821
EXHIBITD
3657528vl

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 53 of 53 PageID: 822
NJ Department of Human Services
Division of Developmental Disabilities

Row Labels

Units FY Cost

Annual Cost

Day Program Residential Placement CSWL Day Program Residential Placement Emergenc1es CPEP Day Program DC Discharge MH CEPP Miscellaneous Residential Placement Staffing Vehicles (Non-Start Up) Olmstead All Inclusive Day Program Residential Placement Other Capital Cognizant-DYFS/DM HS ECS Expansion Family Support Major Maintenance Real Life Choices/Self Directed To Be Determined Wrap Around Return NJ Day Program Residential Placement

156 3,224,212

22 2,102,998 2,453,911

13

671,801

988,774

3

81,749

79,239

10

590,053

909,535

670 47,487,422 55,759,584

50 4,121,717 7,638,901

199 2,799,609 5,217,147

5

313,919

968,921

7,897,405 14,080,850

175 18,086,199 24,128,177

7,591,483 3,725,588

241 6,677,090

114 7,356,650 12,184,498

16

512,648 2,519,996

32

542,674

896,524

66 6,301,329 8,767,978

50 3,068,887 3,136,826

8

90,700

7

423,547

758,174

79,554

5 (1,125,171) (1,380,757)

62,995

22,500

30 2,542,198 3,759,409

972,564

9

863,372

965,469

7

159,614

204,228

2

703,758

761,241

Notes 1} Units reflect new contract slots, not consumers (e.g., 1:1 staffing or enhanced vacancy only impacts the cost).
2} Units and costs include only cost reimbursement and fixed rate contracts paid directly by the division (e.g., excludes certain day only and nearly all CSWL as these are paid through the fiscal intermediary). 3} Capital and major maintenance do not include amounts paid by voucher.
4} Categories reflect the net change to all impacted contracts (e.g., RHNJ consumer moving in-state may have a deduction from the outof-state contract and an addition to the in-state). 5} Negative amounts generally reflect transfers between programs, or transfers out of contract (e.g., to fee-for-service voucher payment), not a reduction in services.

Exhibit D Community Investment Summary Report.xlsx,Sheet11

 
 Case: 3:08-cv-1858 As of: 04/13/2013 05:54 PM EDT 1 of 10
CLOSED,RULE16,SCHEDO
U.S. District Court District of New Jersey [LIVE] (Trenton) CIVIL DOCKET FOR CASE #: 3:08−cv−01858−AET−LHG

DISABILITY RIGHTS NEW JERSEY, INC. v. VELEZ Assigned to: Judge Anne E. Thompson Referred to: Magistrate Judge Lois H. Goodman Cause: 42:12101 Americans with Disabilities Act
Plaintiff

Date Filed: 04/16/2008 Date Terminated: 12/21/2012 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

DISABILITY RIGHTS NEW JERSEY, INC.

represented by R. SCOTT THOMPSON LOWENSTEIN SANDLER PC 65 LIVINGSTON AVENUE ROSELAND, NJ 07068−1791 (973) 597−2500 Email: sthompson@lowenstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM EMMETT DWYER DISABILITY RIGHTS NEW JERSEY 210 SOUTH BROAD STREET 3RD FLOOR TRENTON, NJ 08608 (609) 292−9742 Email: edwyer@drnj.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

ALISON PRICE CORBIN LOWENSTEIN SANDLER PC 65 LIVINGSTON AVENUE ROSELAND, NJ 07068 973−597−2500 Email: acorbin@lowenstein.com ATTORNEY TO BE NOTICED

AMIT SONDHI LOWENSTEIN SANDLER PC 65 LIVINGSTON AVENUE ROSELAND, NJ 07068 973−597−2500 Email: asondhi@lowenstein.com ATTORNEY TO BE NOTICED

BERNARD JOHN COONEY LOWENSTEIN SANDLER PC 65 LIVINGSTON AVENUE ROSELAND, NJ 07068 973−422−6454 Email: bcooney@lowenstein.com ATTORNEY TO BE NOTICED

V.
Defendant
JENNIFER VELEZ in her official capacity as Commissioner of the New Jersey Department of Human

represented by GERARD ANDREW HUGHES OFFICE OF THE NJ ATTORNEY GENERAL

Services

Case: 3:08-cv-1858 As of: 04/13/2013 05:54 PM EDT 2 of 10
DIVISION OF LAW 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625−0112 (609) 341−5096 Email: gerard.hughes@lps.state.nj.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAMES BRADFORD MC ILVAIN ARCHER &GREINER, P.C. ONE LIBERTY PLACE, 32ND FLOOR 1650 MARKET STREET PHILADELPHIA, PA 19103 215−963−3300 Fax: 215−963−9999 Email: jmcilvain@archerlaw.com TERMINATED: 06/17/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
KIMBERLY E. JENKINS NJ ATTORNEY GENERAL'S OFFICE HUGHES JUSTICE COMPLEX 25 MARKET STREET P.O. BOX 112 TRENTON, NJ 08625 609−777−0055 Email: kimberly.jenkins@dol.lps.state.nj.us TERMINATED: 11/26/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARY STEPHANIE BEATY OFFICE OF THE NJ ATTORNEY GENERAL RJ HUGHES JUSTICE COMPLEX 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625 (609) 984−9504 Email: stephanie.beaty@dol.lps.state.nj.us TERMINATED: 09/27/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
LANCE J. KALIK RIKER DANZIG SCHERER HYLAND &PERRETTI, LLP ONE SPEEDWELL AVENUE PO BOX 1981 MORRISTOWN, NJ 07962−1981 (973) 538−0800 Email: lkalik@riker.com ATTORNEY TO BE NOTICED
NATALIE D'AMORA ARCHER &GREINER PC ONE LIBERTY PLAZA 32ND FLOOR 1650 MARKET STREET PHILADELPHIA, PA 19103 215−963−3300 Email: ndamora@archerlaw.com TERMINATED: 06/17/2011

Case: 3:08-cv-1858 As of: 04/13/2013 05:54 PM EDT 3 of 10

ATTORNEY TO BE NOTICED

Intervenor UNITED STATES OF AMERICA

represented by JOHN ANDREW RUYMANN OFFICE OF THE US ATTORNEY 402 EAST STATE STREET SUITE 430 TRENTON, NJ 08608 (609) 989−2190 Email: john.ruymann@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/16/2008
04/16/2008 04/17/2008 04/23/2008 04/24/2008 05/01/2008 05/07/2008 05/07/2008 05/08/2008 05/08/2008
05/08/2008
05/28/2008

# Docket Text
1 COMPLAINT against JENNIFER VELEZ ( Filing fee $ 350 receipt number 1955140.), filed by NEW JERSEY PROTECTION AND ADVOCACY, INC.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exh. C, # 4 Exh. D, # 5 Exh. E, # 6 Exh. F, # 7 Exh. G, # 8 H, # 9 Exhibit I)(tp ) (Entered: 04/17/2008)
2 Corporate Disclosure Statement by NEW JERSEY PROTECTION AND ADVOCACY, INC.. (tp ) (Entered: 04/17/2008)
3 Summons Issued as to JENNIFER VELEZ. Days Due − 20. Mailed to attorney. (tp ) (Entered: 04/17/2008)
4 NOTICE of Appearance by BERNARD JOHN COONEY on behalf of NEW JERSEY PROTECTION AND ADVOCACY, INC. (COONEY, BERNARD) (Entered: 04/23/2008)
5 NOTICE of Appearance by WILLIAM EMMETT DWYER on behalf of NEW JERSEY PROTECTION AND ADVOCACY, INC. (DWYER, WILLIAM) (Entered: 04/24/2008)
6 CERTIFICATE OF SERVICE by NEW JERSEY PROTECTION AND ADVOCACY, INC. (COONEY, BERNARD) (Entered: 05/01/2008)
7 Application and Proposed Order for Clerk's Order to extend time to answer Attorney GERARD ANDREW HUGHES and GERARD ANDREW HUGHES for JENNIFER VELEZ added. (HUGHES, GERARD) (Entered: 05/07/2008)
8 NOTICE of Appearance by MARY STEPHANIE BEATY on behalf of JENNIFER VELEZ (BEATY, MARY) (Entered: 05/07/2008)
9 NOTICE of Appearance by KIMBERLY E. JENKINS on behalf of JENNIFER VELEZ (JENKINS, KIMBERLY) (Entered: 05/08/2008)
CLERKS QUALITY CONTROL MESSAGE − The 7 PROPOSED ORDER submitted by D. DAUENHEIMER on 5/7/2008 must be executed by a Judicial Officer before filing. Please forward to the appropriate Judicial Officer in accordance with his/her preferred practice OR ATTACHED IT TO THE 6 BRIEF IN SUPPORT. This submission will remain on the docket unless otherwise ordered by the court. This message is for informational purposes only. (ss, ) (Entered: 05/08/2008)
CLERKS TEXT ORDER − The Application for a Clerks Order Extending Time to Answer − Document # 7 submitted by G. HUGHES on 5/7/2008 has been GRANTED. The answer due date has been set for 5/28/2008. (ss, ) (Entered: 05/08/2008)
10 First MOTION for More Definite Statement, First MOTION to Strike 1 Complaint, by JENNIFER VELEZ. Responses due by 6/23/2008 (Attachments: # 1 Brief, # 2 Certification of Counsel, # 3 Certificate of Service, # 4 Text of Proposed Order)(BEATY, MARY) (Entered: 05/28/2008)

Case: 3:08-cv-1858 As of: 04/13/2013 05:54 PM EDT 4 of 10

05/30/2008
06/23/2008 06/23/2008 06/24/2008
06/30/2008 09/09/2008 09/26/2008
09/29/2008 10/10/2008 10/14/2008 10/30/2008 10/31/2008 12/01/2008

Set Deadlines as to 10 First MOTION for More Definite StatementFirst MOTION to Strike 1 Complaint,First MOTION to Strike 1 Complaint,. Motion Hearing set for 7/7/2008 10:00 AM before Magistrate Judge John J. Hughes. (PLEASE NOTE THAT PURSUANT TO FED. R. CIV. P. 78 AND LOCAL RULE 7.1 (B)(4), NO ORAL ARGUMENT WILL BE HELD IN THIS MATTER AND PARTIES SHOULD NOT APPEAR UNLESS SPECIFICALLY DIRECTED TO DO SO BY THE COURT) (ss, ) (Entered: 05/30/2008)
11 BRIEF in Opposition re 10 First MOTION for More Definite StatementFirst MOTION to Strike 1 Complaint,First MOTION to Strike 1 Complaint, filed by NEW JERSEY PROTECTION AND ADVOCACY, INC.. (THOMPSON, R.) (Entered: 06/23/2008)
12 BRIEF in Opposition re 10 First MOTION for More Definite StatementFirst MOTION to Strike 1 Complaint,First MOTION to Strike 1 Complaint, filed by NEW JERSEY PROTECTION AND ADVOCACY, INC.. (Attachments: # 1 Certificate of Service, # 2 Affidavit, # 3 Exhibit, # 4 Case, # 5 Case, # 6 Case, # 7 Case, # 8 Case, # 9 Case, # 10 Case)(THOMPSON, R.) (Entered: 06/23/2008)
13 CLERKS QUALITY CONTROL MESSAGE − The 11 Brief in opposition to motion submitted by R. Thompson on 6/23/2008 did not contain a proper electronic signature (s/). PLEASE RESUBMIT THE DOCUMENT WITH THE PROPER ELECTRONIC SIGNATURE (s/ Attorneys Name.) This submission will remain on the docket unless otherwise ordered by the court.. (ss, ) (Entered: 06/24/2008)
14 Letter from DAG Beaty in reply to opposition to motion for more definite statement re 12 Brief in Opposition to Motion,. (BEATY, MARY) (Entered: 06/30/2008)
15 MEMORANDUM and ORDER granting 10 Motion for More Definite Statement; granting 10 Motion to Strike Signed by Judge Anne E. Thompson on 8/26/2008. (ss, ) (Entered: 09/09/2008)
16 AMENDED COMPLAINT against JENNIFER VELEZ, filed by NEW JERSEY PROTECTION AND ADVOCACY, INC.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Summons, # 9 Corporate Disclosure Statement)(COONEY, BERNARD) (Additional attachment(s) added on 9/29/2008: # 10 Complaint Signature page) (mmh) (Entered: 09/26/2008)
CLERK'S QUALITY CONTROL MESSAGE: This message is for future reference. Counsel please be advised when filing a Corporate Disclosure Statement it should be filed as a separate document and not an attachment. In the future please file using the event Corporate Disclosure Statement found under Civil − Other Filings − Other Documents. (mmh) (Entered: 09/29/2008)
17 Application and Proposed Order for Clerk's Order to extend time to answer as to Amended Complaint.. (BEATY, MARY) (Entered: 10/10/2008)
CLERKS TEXT ORDER − The Application for a Clerks Order Extending Time to Answer − Document # 17 submitted by M. Beaty on 10/10/2008 has been GRANTED. The answer due date has been set for 10/31/2008. (ss, ) (Entered: 10/14/2008)
18 First MOTION for Extension of Time to File Answer re 16 Amended Complaint, by JENNIFER VELEZ. (Attachments: # 1 Certificate of Service, # 2 Declaration of Counsel, # 3 Statement no brief necessary, # 4 Text of Proposed Order)(BEATY, MARY) (Entered: 10/30/2008)
Set Deadlines as to 18 First MOTION for Extension of Time to File Answer re 16 Amended Complaint,. Motion set for 12/1/2008 will be decided on the papers by Magistrate Judge John J. Hughes. No appearance required unless notified by the Court. (ss, ) (Entered: 10/31/2008)
19 ORDER granting 18 Motion for Extension of Time for dft. to Answer for 30 days Signed by Magistrate Judge John J. Hughes on 12/1/2008. (ss, ) (Entered: 12/02/2008)

Case: 3:08-cv-1858 As of: 04/13/2013 05:54 PM EDT 5 of 10

12/31/2008 01/05/2009
01/06/2009 01/21/2009
01/21/2009 01/26/2009 02/16/2009
02/23/2009 02/23/2009 02/23/2009 03/03/2009 03/04/2009 03/10/2009 03/16/2009 03/20/2009 03/31/2009 04/08/2009 05/12/2009 05/18/2009 06/29/2009

20 First MOTION to Dismiss First Amended Complaint by JENNIFER VELEZ. Responses due by 1/20/2009 (Attachments: # 1 Brief, # 2 Certificate of Service, # 3 Text of Proposed Order)(JENKINS, KIMBERLY) (Entered: 12/31/2008)
Set Deadlines as to 20 First MOTION to Dismiss First Amended Complaint. Motion set for 2/2/2009 before Judge Anne E. Thompson. The motion will be decided on the papers. No appearances required unless notified by the court. (lk) (Entered: 01/05/2009)
21 Letter from Bernard J. Cooney. (COONEY, BERNARD) (Entered: 01/06/2009)
Re−Set Deadlines as to 20 First MOTION to Dismiss First Amended Complaint. Motion set for 2/17/2009 before Judge Anne E. Thompson. The motion will be decided on the papers. No appearances required unless notified by the court. (ss, ) (Entered: 01/21/2009)
22 Letter from Bernard J. Cooney. (COONEY, BERNARD) (Entered: 01/21/2009)
23 ORDER extending time for pltf. to file opposition brief to 2/16/2009 Signed by Judge Anne E. Thompson on 1/23/2009. (ss, ) (Entered: 01/28/2009)
24 RESPONSE in Opposition re 20 First MOTION to Dismiss First Amended Complaint filed by NEW JERSEY PROTECTION AND ADVOCACY, INC.. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(THOMPSON, R.) (Entered: 02/16/2009)
25 Letter from Kimberly E. Jenkins, DAG re 20 First MOTION to Dismiss First Amended Complaint. (JENKINS, KIMBERLY) (Entered: 02/23/2009)
26 Letter from Kimberly E. Jenkins, DAG re 23 Order, 20 First MOTION to Dismiss First Amended Complaint, 24 Response in Opposition to Motion,. (JENKINS, KIMBERLY) (Entered: 02/23/2009)
27 Letter from Bernard J. Cooney. (COONEY, BERNARD) (Entered: 02/23/2009)
29 ORDER extending time for dft. to file certain reply papers to 3/16/2009 Signed by Judge Anne E. Thompson on 2/27/2009. (ss, ) (Entered: 03/04/2009)
28 ORDER directing Mr. Cooney to submit a proposed form of notice to be sent to the Department of Justice per the 27 letter by 3/9/2009 Signed by Judge Anne E. Thompson on 3/3/2009. (ss, ) (Entered: 03/04/2009)
30 ORDER certifying to the Attorney General of the United States a challenge to the constitutionality of an act of Congress Signed by Judge Anne E. Thompson on 3/9/2009. (ss, ) (Entered: 03/10/2009)
31 REPLY BRIEF to Opposition to Motion re 20 First MOTION to Dismiss First Amended Complaint filed by JENNIFER VELEZ. (Attachments: # 1 Certificate of Service)(JENKINS, KIMBERLY) (Entered: 03/16/2009)
32 Letter from Kimberly E. Jenkins. (JENKINS, KIMBERLY) (Entered: 03/20/2009)
Case Reassigned to Magistrate Judge Lois H. Goodman. (jjq, ) (Entered: 03/31/2009)
33 CONSENT ORDER extending time to serve Notice of Intervention on or before 5/11/2009 Signed by Judge Anne E. Thompson on 4/8/2009. (ss, ) (Entered: 04/08/2009)
34 SECOND CONSENT ORDER extending time to serve and file notice of intervention Signed by Judge Anne E. Thompson on 5/11/2009. (ss, ) (Entered: 05/14/2009)
35 NOTICE by UNITED STATES OF AMERICA to Intervene Pursuant to 28 U.S.C. 2403(a) (Attachments: # 1 Certificate of Service)(RUYMANN, JOHN) (Entered: 05/18/2009)
36 BRIEF of the United States as Intervenor in Support of the Constitutionality of Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act filed by UNITED STATES OF AMERICA. (Attachments: # 1 Certificate of

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07/23/2009 07/27/2009 07/29/2009 08/24/2009 08/26/2009 11/02/2009 11/09/2009 11/18/2009
11/19/2009 11/23/2009 12/03/2009 12/03/2009 02/23/2010 02/24/2010
03/12/2010 04/12/2010 04/15/2010 04/19/2010 04/19/2010

Service)(RUYMANN, JOHN) (Entered: 06/29/2009)
37 MEMORANDUM AND ORDER denying 20 Motion to Dismiss Signed by Judge Anne E. Thompson on 7/20/2009. (ss, ) (Entered: 07/23/2009)
38 Letter from Kimberly E. Jenkins, DAG re 16 Amended Complaint,. (JENKINS, KIMBERLY) (Entered: 07/27/2009)
39 LETTER ORDER that Deft's answer to the First Amended Complaint is due on 8/24/2009. Signed by Judge Anne E. Thompson on 7/28/2009. (mmh) (Entered: 07/29/2009)
40 First ANSWER to Amended Complaint by JENNIFER VELEZ.(HUGHES, GERARD) (Entered: 08/24/2009)
41 ORDER, Initial Conference set for 11/9/2009 02:00 AM before Magistrate Judge Lois H. Goodman Signed by Magistrate Judge Lois H. Goodman on 8/26/2009. (ss, ) (Entered: 08/26/2009)
42 Letter from Bernard J. Cooney. (Attachments: # 1 Text of Proposed Order, # 2 Text of Proposed Order)(COONEY, BERNARD) (Entered: 11/02/2009)
Text Minute Entry for proceedings held before Magistrate Judge Lois H. Goodman: Initial Pretrial Conference held on 11/9/2009. (ij, ) (Entered: 11/10/2009)
43 PRETRIAL SCHEDULING ORDER: Telephone Status Conference set for 2/23/2010 09:30 AM before Magistrate Judge Lois H. Goodman. Fact Discovery due by 11/30/2010. Motions to amend/join new parties due by 9/24/2010; returnable 10/18/2010. Signed by Magistrate Judge Lois H. Goodman on 11/16/2009. (mmh) (Entered: 11/18/2009)
44 NOTICE of Appearance by JAMES BRADFORD MC ILVAIN on behalf of JENNIFER VELEZ (Attachments: # 1 Certificate of Service)(MC ILVAIN, JAMES) (Entered: 11/19/2009)
45 Letter from Bernard J. Cooney re 42 Letter. (Attachments: # 1 Affidavit, # 2 Affidavit)(COONEY, BERNARD) (Entered: 11/23/2009)
46 PROTECTIVE ORDER Signed by Magistrate Judge Lois H. Goodman on 12/2/2009. (ss, ) (Entered: 12/03/2009)
47 STIPULATION AND ORDER to amend caption Signed by Magistrate Judge Lois H. Goodman on 10/29/2009. (ss, ) (Entered: 12/03/2009)
Text Minute Entry for proceedings held before Magistrate Judge Lois H. Goodman: Telephone Conference held on 2/23/2010. (ij, ) (Entered: 02/24/2010)
48 LETTER ORDER directing counsel for pltf. to provide a proposal for the resolution of this matter by 3/15/2010 and scheduling a teleconference for 5/18/2010 @ 9:30am Signed by Magistrate Judge Lois H. Goodman on 2/24/10. (ss, ) (Entered: 02/24/2010)
49 NOTICE of Change of Address by JAMES BRADFORD MC ILVAIN (Attachments: # 1 Certificate of Service)(MC ILVAIN, JAMES) (Entered: 03/12/2010)
50 Letter from J. Bradford McIlvain, Esquire. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(MC ILVAIN, JAMES) (Entered: 04/12/2010)
51 Letter from Bernard J. Cooney. (Attachments: # 1 Exhibit)(COONEY, BERNARD) (Entered: 04/15/2010)
ATTENTION COUNSEL: The Conference Call scheduled for May 18, 2010 has been RESCHEDULED to May 20, 2010 at 9:30 a.m. Defendant's counsel to initiate the call at that time. (ij, ) (Entered: 04/19/2010)
52 Letter from J. Bradford McIlvain. (MC ILVAIN, JAMES) (Entered: 04/19/2010)

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05/04/2010 05/14/2010 05/20/2010 05/27/2010 06/08/2010 09/03/2010 09/22/2010
10/18/2010 11/30/2010 12/06/2010 12/14/2010 01/11/2011 01/13/2011 01/26/2011
03/25/2011 03/28/2011 03/29/2011
04/12/2011
05/18/2011

53 NOTICE of Appearance by NATALIE D'AMORA on behalf of JENNIFER VELEZ (D'AMORA, NATALIE) (Entered: 05/04/2010)
54 NOTICE of Appearance by ALISON PRICE CORBIN on behalf of DISABILITY RIGHTS NEW JERSEY, INC. (Attachments: # 1 Certificate of Service)(CORBIN, ALISON) (Entered: 05/14/2010)
Text Minute Entry for proceedings held before Magistrate Judge Lois H. Goodman: Telephone Conference held on 5/20/2010. (ij, ) (Entered: 05/21/2010)
Text Minute Entry for proceedings held before Magistrate Judge Lois H. Goodman: Telephone Conference held on 5/27/2010. (ij, ) (Entered: 06/01/2010)
55 ORDER confirming matters discussed during teleconference 5/20/2010 and setting scheduling conference for 9/3/2010 @ 11:30am Signed by Magistrate Judge Lois H. Goodman on 6/7/2010. (ss, ) (Entered: 06/08/2010)
Text Minute Entry for proceedings held before Magistrate Judge Lois H. Goodman: Telephone Conference held on 9/3/2010. (ij, ) (Entered: 09/03/2010)
56 SCHEDULING ORDER: Telephone Conference set for 1/13/2011 09:30 AM before Magistrate Judge Lois H. Goodman. Discovery due by 12/31/2010. Motions due by 5/27/2010. Signed by Magistrate Judge Lois H. Goodman on 9/22/2010. (ss, ) (Entered: 09/22/2010)
57 NOTICE of Appearance by AMIT SONDHI on behalf of DISABILITY RIGHTS NEW JERSEY, INC. (Attachments: # 1 Certificate of Service)(SONDHI, AMIT) (Entered: 10/18/2010)
ATTENTION COUNSEL: Conference Call set for December 6, 2010 at 2:30 p.m. with Magistrate Judge Lois H. Goodman. Plaintiff's counsel to initiate the call at that time. (ij, ) (Entered: 11/30/2010)
Text Minute Entry for proceedings held before Magistrate Judge Lois H. Goodman: Telephone Conference held on 12/6/2010. (ij, ) (Entered: 12/07/2010)
58 STIPULATION REGARDING DISCOVERY by JENNIFER VELEZ. (MC ILVAIN, JAMES) (Entered: 12/14/2010)
ATTENTION COUNSEL: The Telephone Conference scheduled for January 13, 2011 at 9:30 a.m. with Magistrate Judge Lois H. Goodman has been RESCHEDULED to take place at 10:30 a.m. (ij, ) (Entered: 01/11/2011)
Text Minute Entry for proceedings held before Magistrate Judge Lois H. Goodman: Telephone Conference held on 1/13/2011. (ij, ) (Entered: 01/14/2011)
59 ORDER setting certain discovery deadlines. Telephone Scheduling Conference set for 3/25/2011 02:00 PM Magistrate Judge Lois H. Goodman. Fact Discovery due by 2/25/2011. Dispositive Motions due by 8/12/2011. Signed by Magistrate Judge Lois H. Goodman on 1/25/2011. (mmh) (Entered: 01/26/2011)
Text Minute Entry for proceedings held before Magistrate Judge Lois H. Goodman: Telephone Conference held on 3/25/2011. (ij, ) (Entered: 03/28/2011)
60 STIPULATION re 58 Stipulation by DISABILITY RIGHTS NEW JERSEY, INC.. (COONEY, BERNARD) (Entered: 03/28/2011)
61 TEXT ORDER setting a Telephone Conference for May 18, 2011 at 9:30 a.m. with Magistrate Judge Lois H. Goodman. Plaintiff's counsel to initiate the call at that time. Ordered by Magistrate Judge Lois H. Goodman on 3/29/11. (ij, ) (Entered: 03/29/2011)
62 LETTER ORDER granting Counsel's request for certain deadlines to be extended; however the 5/18/2011 Telephone Conference is to take place as planned; Dispositive Motions due by 9/30/2011. Signed by Magistrate Judge Lois H. Goodman on 4/12/2011. (eaj) Modified on 4/13/2011 (ij). (Entered: 04/12/2011)
Text Minute Entry for proceedings held before Magistrate Judge Lois H. Goodman: Telephone Conference held on 5/18/2011. (ij, ) (Entered: 05/19/2011)

Case: 3:08-cv-1858 As of: 04/13/2013 05:54 PM EDT 8 of 10

05/25/2011
06/17/2011 06/17/2011 06/20/2011 06/30/2011
08/22/2011 09/13/2011 11/09/2011
12/20/2011
01/13/2012 01/25/2012
02/08/2012
02/17/2012 02/23/2012 03/30/2012 04/02/2012 04/02/2012

63 AMENDED SCHEDULING ORDER: Telephone Status Conference set for 6/21/2011 at 02:30 PM before Magistrate Judge Lois H. Goodman, Defendant is to initiate the call; Dispositive Motions due by 10/18/2011. Signed by Magistrate Judge Lois H. Goodman on 5/24/2011. (eaj) (Entered: 05/25/2011)
ATTENTION COUNSEL: The Telephone Conference scheduled for June 21, 2011 has been RESCHEDULED to June 20, 2011 at 12:30 p.m. with Magistrate Judge Lois H. Goodman. (ij, ) (Entered: 06/17/2011)
64 Substitution of Attorney − Attorney NATALIE D'AMORA and JAMES BRADFORD MC ILVAIN terminated. Attorney LANCE J. KALIK for JENNIFER VELEZ added.. (KALIK, LANCE) (Entered: 06/17/2011)
Text Minute Entry for proceedings held before Magistrate Judge Lois H. Goodman: Telephone Conference held on 6/20/2011. (ij, ) (Entered: 06/21/2011)
65 LETTER ORDER: Resetting certain Scheduling Order deadlines; Telephone Status Conference set for 9/13/2011 09:30 AM before Magistrate Judge Lois H. Goodman. Dispositive Motions due by 11/23/2011. Signed by Magistrate Judge Lois H. Goodman on 6/30/2011. (mmh) (Entered: 06/30/2011)
66 AMENDED SCHEDULING ORDER:Dispositive Motions due by 11/23/2011, shall be returnable 1/17/2012. Signed by Magistrate Judge Lois H. Goodman on 8/19/2011. (eaj) (Entered: 08/22/2011)
Text Minute Entry for proceedings held before Magistrate Judge Lois H. Goodman: Telephone Conference held on 9/13/2011. (ij, ) (Entered: 09/14/2011)
67 ORDER granting Plaintiffs request to extend the briefing schedule for dispositive motions as follows: Dispositive Motions due 12/21/2011; Opposition due 1/23/2012; reply in further support due 2/26/2012; made returnable 2/21/2012. Signed by Magistrate Judge Lois H. Goodman on 11/9/2011. (eaj) (Entered: 11/09/2011)
68 LETTER ORDER that Dispositive Motions shall be filed by 1/13/2012; Opposition 2/3/2012; Reply to Opposition 2/17/2012; Motions returnable 2/21/2012. Signed by Magistrate Judge Lois H. Goodman on 12/20/2011. (eaj) Modified on 12/21/2011 (eaj, ). (Entered: 12/20/2011)
69 LETTER ORDER that Dispositive Motions are due by 1/27/2012; Opposition due by 2/17/2012 and Reply due by 3/2/2012. Signed by Magistrate Judge Lois H. Goodman on 1/13/2012. (mmh) (Entered: 01/13/2012)
70 LETTER ORDER extending the deadline to file dispositive motions until 2/10/2012, returnable 3/5/2012; Counsel are to report by joint submission on the status by 2/7/2012. Signed by Magistrate Judge Lois H. Goodman on 1/25/2012. (eaj) (Entered: 01/25/2012)
71 LETTER ORDER granting counsel a 2 week extension to file summary judgment motions; Initial Briefs are due 2/24/2012, Opposition due 3/9/2012, Reply Briefs due 3/26/2012, Returnable 4/2/2012; Counsel are to report on the status by no later than 2/17/2012. Signed by Magistrate Judge Lois H. Goodman on 2/8/2012. (eaj) (Entered: 02/08/2012)
72 Letter from Lance Kalik. (KALIK, LANCE) (Entered: 02/17/2012)
73 LETTER ORDER that the request for a stay is granted; that the parties are to update the Court by 3/30/2012 regarding status of the settlement. Signed by Magistrate Judge Lois H. Goodman on 2/23/2012. (gxh) (Entered: 02/23/2012)
74 Letter from Lance J. Kalik. (KALIK, LANCE) (Entered: 03/30/2012)
75 LETTER ORDER granting counsel's request for an additional 30−day stay of the deadlines. Signed by Magistrate Judge Tonianne J. Bongiovanni on 4/2/2012. (gxh) (Entered: 04/02/2012)
CLERK'S QUALITY CONTROL MESSAGE − This message is in reference to the 75 LETTER ORDER filed on 4/2/2012. Please be advised that although Civil Action No. 08−1858 is referenced on the Letter Order, this Letter Order was

Case: 3:08-cv-1858 As of: 04/13/2013 05:54 PM EDT 9 of 10

04/03/2012 04/30/2012 05/01/2012 06/01/2012 06/04/2012 06/08/2012 06/11/2012
08/03/2012 08/10/2012
08/30/2012 09/24/2012 09/26/2012 09/27/2012
10/01/2012 11/26/2012 12/21/2012 12/21/2012 02/15/2013

intended for Civil Action 05−4723 only. Please disregard this filing. (gxh) (Entered: 04/02/2012)
76 LETTER ORDER granting counsel's request for an additional 30−day stay of the deadlines. Signed by Magistrate Judge Lois H. Goodman on 4/2/2012. (eaj) (Entered: 04/03/2012)
77 Letter from Lance Kalik. (KALIK, LANCE) (Entered: 04/30/2012)
78 LETTER ORDER that counsel are to report on the status by 5/30/2012 if the case has not been dismissed. Signed by Magistrate Judge Lois H. Goodman on 5/1/2012. (gxh) (Entered: 05/01/2012)
79 Letter from Brenda C. Liss to Court dated June 1, 2012. (LISS, BRENDA) (Entered: 06/01/2012)
ATTENTION COUNSEL: Telephone Conference set for June 8, 2012 at 11:30 a.m. with Magistrate Judge Lois H. Goodman. Defendant's counsel to initiate the call at that time. (ij, ) (Entered: 06/04/2012)
Text Minute Entry for proceedings held before Magistrate Judge Lois H. Goodman: Telephone Conference held on 6/8/2012. (ij, ) (Entered: 06/11/2012)
80 LETTER ORDER that the Court will conduct a Settlement Conference in these matters on 8/3/2012 at 02:00 PM in Trenton − Courtroom 7E before Magistrate Judge Lois H. Goodman. Signed by Magistrate Judge Lois H. Goodman on 6/11/2012. (eaj) (Entered: 06/11/2012)
Text Minute Entry for proceedings held before Magistrate Judge Lois H. Goodman: Settlement Conference held on 8/3/2012. (ij, ) (Entered: 08/08/2012)
81 PRETRIAL SCHEDULING ORDER setting a Settlement Conference for 10/1/2012 at 2:00 PM in Trenton − Courtroom 7E before Magistrate Judge Lois H. Goodman; setting a Telephone Status Conference, which Ms. Liss shall initiate, for 9/24/2012 at 4:00 PM before Magistrate Judge Lois H. Goodman; that Pltfs are to submit their itemized bills to Deft by 8/17/2012; that Deft is to respond to Pltfs' submission by 9/17/2012. Signed by Magistrate Judge Lois H. Goodman on 8/10/2012. (gxh) (Entered: 08/10/2012)
82 CONSENT ORDER as to confidentiality of Pltfs' attys' fees and costs. Signed by Magistrate Judge Lois H. Goodman on 8/30/2012. (gxh) (Entered: 08/30/2012)
Text Minute Entry for proceedings held before Magistrate Judge Lois H. Goodman: Telephone Conference held on 9/24/2012. (ij, ) (Entered: 09/25/2012)
83 NOTICE by JENNIFER VELEZ Notice of Withdrawal of Appearance of Stephanie Beaty, Esq. (JENKINS, KIMBERLY) (Entered: 09/26/2012)
CLERK'S QUALITY CONTROL MESSAGE − The Notice to Withdraw from NEF as to Case 83 filed by Stephanie Beaty on 9/26/2012 was submitted incorrectly as a Notice. FOR FUTURE REFERENCE, PLEASE USE THE EVENT Notice to Withdraw from NEF as to Case. The Clerks office has terminated Stephanie Beaty. (eaj) (Entered: 09/27/2012)
Text Minute Entry for proceedings held before Magistrate Judge Lois H. Goodman: Settlement Conference held on 10/1/2012. (ij, ) (Entered: 10/02/2012)
84 Notice to be terminated and withdraw from Notices of Electronic filing as to case. Attorney KIMBERLY E. JENKINS terminated. (JENKINS, KIMBERLY) (Entered: 11/26/2012)
85 ORDER dismissing case without prejudice as settled. Signed by Judge Anne E. Thompson on 12/21/2012. (gxh) (Entered: 12/21/2012)
***Civil Case Terminated. (gxh) (Entered: 12/21/2012)
86 Letter from Brenda C. Liss to Court dated 2.15.13 with attached order requesting extension of time to consummate the settlement. (LISS, BRENDA) (Entered: 02/15/2013)

Case: 3:08-cv-1858 As of: 04/13/2013 05:54 PM EDT 10 of 10

02/15/2013
02/19/2013
03/04/2013 03/04/2013 03/04/2013 03/06/2013

87 Letter from Bernard J. Cooney to Court dated 2.15.13 requesting extension of time to consummate the settlement or re−opening of action. (COONEY, BERNARD) (Entered: 02/15/2013)
88 ORDER that the time in which this action may, upon good cause shown, be reopened if the settlement is not consummated shall be and hereby is extended for two weeks, to 3/5/2013. Signed by Judge Anne E. Thompson on 2/19/2013. (gxh) (Entered: 02/19/2013)
89 Letter from Bernard J. Cooney. (COONEY, BERNARD) (Entered: 03/04/2013)
90 SETTLEMENT AGREEMENT by DISABILITY RIGHTS NEW JERSEY, INC.. (COONEY, BERNARD) (Entered: 03/04/2013)
91 STIPULATION of Dismissal by DISABILITY RIGHTS NEW JERSEY, INC.. (COONEY, BERNARD) (Entered: 03/04/2013)
92 STIPULATION AND ORDER of dismissal with prejudice. Signed by Judge Anne E. Thompson on 3/5/2013. (gxh) (Entered: 03/06/2013)