IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION CIVIL CASE NO. __________________

MARLO M., by her guardians and next

)

friends WILLIAM and CARLETTE

)

PARRIS, and DURWOOD W. by his

)

guardian and next friend WILLIE

)

WILLIAMS,

)

)

Plaintiffs,

)

)

v.

)

COMPLAINT

)

LANIER CANSLER, in his official capacity )

as Secretary of the Department of Health and )

Human Services, and KAREN SALACKI, in )

her official capacity as Area Director of the )

Beacon Center Local Management Entity,

)

)

Defendants

)

_____________________________________________________________________________

INTRODUCTION

1. Plaintiff Marlo M. is 39 years old. Among other diagnoses, she is dually diagnosed

with a developmental disability and mental illness. She lives in Wilson, North Carolina.

2. Plaintiff Durwood W. is 49 years old. Among other diagnoses, he is dually diagnosed

with a developmental disability and mental illness. He lives in Wilson, North Carolina.

3. In North Carolina, adults dually diagnosed with mental retardation and mental illness

are part of a target population that may be eligible to receive state mental health, developmental

disability, and substance abuse services funds designated as MR/MI funds, formerly called

Thomas S. funds. Plaintiffs are both eligible for and have previously received MR/MI – Thomas

S. funds. Additionally, upon information and belief, Plaintiff Durwood W. was a class member

in Thomas S. v. Morrow, 601 F. Supp. 1055, 1984 U.S. Dist. LEXIS 23537 (W.D.N.C. 1984),

aff’d in part and modified in part, remanded, 781 F.2d 367, 1986 U.S. App. LEXIS 21712 (4th

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Cir. 1986), cert. denied sub nom., Kirk v. Thomas S., 476 U.S. 1124, 106 S. Ct. 1992 (1986),

cert. denied sub nom., Childress v. Thomas S., 479 U.S. 869, 107 S. Ct. 235 (1986); later

proceeding, Thomas S. v. Flaherty, 699 F.Supp. 1178, 1988 U.S. Dist. LEXIS 13086 (W.D.N.C.

1988), aff’d, 902 F.2d 250, 1990 U.S. App. LEXIS 7044 (4th Cir. 1990), rehearing, en banc,

denied, 1190 U.S. App. LEXIS 19875 (4th Cir. 1990), cert denied, 498 U.S. 951, 111 S. Ct. 373

(1990).

4. Plaintiffs have been successfully living in the community with a combination of

federal Medicaid waiver funds (the Community Alternatives Program for Persons with Mental

Retardation/Developmental Disabilities) and supplemental state funds; Plaintiff Marlo M. for

over five years, and Plaintiff Durwood W. for more than a decade. Recently, Defendant Karen

Salacki arbitrarily terminated all state funds for Plaintiffs’ care, as well as for others similarly

situated. Plaintiffs pursued administrative appeals of these cuts, but failed to achieve relief that

prevented the loss of state-funded services. As a result of this arbitrary decision to terminate all

supplemental state funds, Plaintiffs will be displaced from their long-term community

placements on December 15, 2009. Plaintiffs are at risk of institutionalization, a placement that

would be more costly than Plaintiffs’ care in the community.

5.

Defendants’ actions violate the Americans with Disabilities Act (ADA), Title II, 42

U.S.C. § 12132, and its implementing regulations, and Section 504 of the Rehabilitation Act, 29

U.S.C. § 794a, and its implementing regulations. Among other things, these laws require

Defendants to administer their services and programs in the most integrated setting appropriate

to the needs of individuals with disabilities.

6. Plaintiffs seek declaratory and injunctive relief to preserve their receipt of care in the

community until adequate CAP-MR/DD or state-funded services are made available to them to

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ensure Plaintiffs’ ability to receive services in the most integrated setting appropriate to their needs and conditions, which has been demonstrated to be in Plaintiffs’ homes.
JURISDICTION AND VENUE 7. This is an action for declaratory and injunctive relief for violation of Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12132; and Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794. 8. The Court has jurisdiction over Plaintiff’s claims under 28 U.S.C. §§ 1331, 1343(a)(3) & (4). Declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202 and Fed. R. Civ. P. 65. Plaintiff’s causes of action for disability discrimination are authorized by 42 U.S.C. 12133 and 29 U.S.C. § 794a. 9. Venue is proper because a substantial part of the actions and omissions of which Plaintiffs complain occurred in this District. 28 U.S.C. § 1391(b).
DEFENDANTS 10. Defendant Lanier Cansler is the Secretary of the North Carolina Department of Health and Human Services (DHHS). DHHS is the “single state agency” responsible for the administration and supervision of North Carolina’s Medicaid program under Title XIX of the Social Security Act. 42 C.F.R. § 431.10 (2008). Secretary Cansler bears ultimate responsibility for the implementation and management of the North Carolina Medicaid program, including in particular the State’s Medicaid Home and Community-Based Services (HCBS) Community Alternatives Program Waivers (CAP-MR/DD, CAP-C, and CAP-D), consistent with federal law. Defendant Cansler is sued in his official capacity. 11. Defendant Karen Salacki is the Area Director of the Beacon Center, a Local Management Entity (LME), with a catchment area encompassing Edgecombe, Greene, Nash and
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Wilson Counties. Within the State and Medicaid-funded system of mental health, developmental disabilities, and substance abuse services in North Carolina, the LMEs are the locus of coordination for these services at the community level. See N.C.G.S. § 122C-101; N.C.G.S. § 112C-115.4(a). Defendant Salacki’s responsibilities include financial management and accountability for the use of State and local funds and information management for the delivery of publicly funded services. See N.C.G.S. § 112C-115.4(b)(7). Defendant Cansler is responsible for the ultimate oversight of LME area directors to make sure that they provide publicly funded services in accordance with the law. See N.C.G.S. § 122C-111, et seq. Defendant Salacki is sued in her official capacity.
PLAINTIFFS 12. Plaintiffs are adults with dual diagnoses of mental retardation and mental illness (MR/MI). 13. Plaintiff Marlo M.’s diagnoses include Anxiety Disorder, Mental Retardation, Down Syndrome, Congenital Heart Disease, Hypothyroidism, Chronic Gum Disease, and Chronic Headaches. 14. Plaintiff Marlo M. resided with her mother in their family home for most of her life. Upon information and belief, Plaintiff Marlo M. moved directly from her mother’s home to her community placement in 2004, which is her own apartment located at St. Christopher Circle, Wilson, N.C. Plaintiff Marlo M.’s home has been substantially modified as an accommodation to her short stature, including the apartment’s countertops, sinks, and furniture. 15. Until November 20, 2009 Plaintiff Marlo M. lived independently in her apartment with a rotating schedule of residential workers twenty-four hours a day. Marlo does not currently reside in this apartment because she lost state funding on November 15, 2009, and had
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a concurrent inability to fully satisfy her staffing needs through the CAP-MR/DD waiver alone. The loss of state funding forced Marlo to leave her apartment and transition to a congregate placement. The subsequent authorization for services on or about November 24, 2009 (which terminate on December 15, 2009) came too late for Marlo to return to her home. Most of Marlo’s staff had been terminated by the provider and Marlo had already moved out of her apartment. However, Marlo’s apartment at 2507 St. Christopher Circle remains in her name and available for her to resume residence in through December 31, 2009.
16. Plaintiff Durwood W.’s diagnoses include Psychotic Disorder NOS, Autistic Disorder, Severe Mental Retardation, Diabetes, Sleep Apnea, Frontal Lobe Atrophy, Hepatitis B Carrier, Cerebral Palsy, Grade I/IV Systolic Ejection Murmur, and Glaucoma.
17. Upon information and belief, Plaintiff Durwood W., prior to his community placement, lived at Skill Creations, an ICF-MR facility for persons with developmental disabilities in Goldsboro, North Carolina. Then, as a result of the Thomas S. litigation, Plaintiff Durwood W. was discharged from Skill Creations and placed in a small group home more than a decade ago. After a short time, the group home discharged Plaintiff Durwood W. because they could not accommodate his behaviors, and Plaintiff Durwood W. moved to his own apartment with a rotating schedule of residential workers twenty-four hours a day. Plaintiff Durwood W. will remain in his community placement until December 15, 2009, when he will be forced to find another placement due to the loss of state funds and concurrent inability to fully satisfy his staffing needs through the CAP-MR/DD waiver alone.
18. Plaintiff Durwood W.’s community placement is his own home, where he lives independently with a rotating schedule of residential workers twenty-four hours a day.
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19. Plaintiffs Marlo M. and Durwood W. are eligible for the Community Alternatives Program for Persons with Mental Retardation/Developmental Disabilities (CAP-MR/DD).
20. Plaintiffs Marlo M. and Durwood W. are also eligible for non-Medicaid state funded services made available to persons with Mental Retardation/Mental Illness (MR/MI), formerly called Thomas S. funds. Upon information and belief, Plaintiffs Marlo M. and Durwood W. may be eligible for other non-Medicaid state funded services in addition to the restricted MR/MI funding.
FACTUAL BACKGROUND 21. Recipients of DMHDDSAS state-funded services submit service requests to their LMEs through the “NC CareLink” website. 22. Upon information and belief, on or about June 12, 2009, Defendant Salacki denied, reduced, suspended, or terminated Plaintiff Marlo M.’s service authorization for the state-funded “Supervised Living 811” service, the procedure code for which is C-YM811. On CareLink Authorization Request 62378, Defendant Salacki entered an authorization comment that “[d]ue to change in policy regarding residential payment for a consumer that is also participating in CAP services, this service [Supervised Living – 1 Resident, Procedure Code C-YM811] can no longer be approved without justification of the need for residential payment.” 23. Upon information and belief, on or about June 15, 2009, Defendant Salacki denied, reduced, suspended, or terminated Plaintiff Durwood W.’s service authorization for the statefunded “Supervised Living 811” service, the procedure code for which is C-YM811. On CareLink Authorization Request 62345, Defendant Salacki entered an authorization comment that “[d]ue to change in policy regarding residential payment for a consumer that is also
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participating in CAP services, this service [Supervised Living – 1 Resident, Procedure Code CYM811] can no longer be approved without justification of the need for residential payment.”
24. Upon information and belief, Plaintiffs were not individually notified of the denial, reduction, suspension, or termination of their state funded services. Plaintiffs were not given the opportunity to pursue an administrative appeal of the utilization review decisions made regarding their state-funded services on June 12 and 15, 2009, respectively.
25. On or about July 29, 2009, the Beacon Center sent a Memorandum to Joyce Barnes of Lois House, Plaintiff Marlo M.’s service provider for her CAP-MR/DD and Supervised Living 811 services, notifying Ms. Barnes that a “time limited” authorization for services would continue only through September 30, 2009.
26. On or about August 13, 2009, the Beacon Center sent a Memorandum to Joyce Barnes of Lois House, Plaintiff Durwood W.’s service provider for his CAP-MR/DD and Supervised Living 811 services, notifying Ms. Barnes that an authorization for $13.12 per day would be put in place for Plaintiff Durwood W. once his current state-funded services authorizations expired. Upon information and belief, no such authorization was ever put in place for Plaintiff Durwood W.
27. From June until the present, Plaintiffs have requested services and received a series of “time-limited” service authorizations for the Supervised Living 811 state-funded service, including the authorizations described in the preceding paragraphs.
28. On December 15, 2009, Plaintiffs’ state-funded service authorizations will expire. At that time, neither Plaintiff will be authorized for or receive any state-funded services.
29. As a consequence of losing state funding on December 15, 2009, Plaintiffs will no longer be able to afford the supplemental residential staffing necessary to maintain their long-
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time community placements. Both Plaintiffs will be forced to locate alternative congregate or institutional placements on December 15, 2009.
30. On December 15, 2009, Plaintiff Marlo M. will either remain in the inappropriate congregate placement where she currently resides or she will be placed in an institution. In these placements, Plaintiff Marlo M. will no longer receive the one-on-one supervision and staffing she requires. Plaintiff Marlo M. will lose the benefit of an apartment that was custom-fitted to her short stature, including countertops, sinks, and furniture specially-sized to her proportions. Plaintiff Marlo M. will also lose the calm and quiet that her own home provides, and which she needs to minimize the anxiety and stress she experiences as a result of her anxiety disorder.
31. On December 15, 2009, Plaintiff Durwood W. will move from his own apartment into either an inappropriate congregate placement with other residents or into an institution. Plaintiff Durwood W. will no longer receive the one-on-one supervision that he requires in his new placement. Plaintiff Durwood W. required placement in his own home because of his inability to recognize others’ personal space or personal things, his tendency to wander away, and his displays of extreme excitement which can be very jarring and unsettling for those around him. In the past, when Plaintiff Durwood W. lived in congregate and institutional settings, these behaviors were very unpleasant for the other residents of the facility, and resulted in his discharge from a group home.
32. The congregate placements are not anticipated to be successful for either Plaintiff. Both Plaintiffs require constant one-on-one supervision and attention, which congregate placements do not provide. If and when Plaintiffs’ placement in a congregate setting are determined to have failed (as is expected), it is believed that both Plaintiffs will face forced
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institutionalization. If Plaintiffs are able to remain in their own homes, the risk of institutionalization will alleviate immediately.
33. Previously, Plaintiffs were able to maintain their long-time and successful community placements through a combination of MR/MI – Thomas S. funds and CAP-MR/DD waiver funds.
34. Plaintiffs will continue receiving CAP-MR/DD funding after December 15, 2009. However, Plaintiffs will lose their CAP-MR/DD funding if they are institutionalized.
35. Plaintiffs have made use of the State appeals process for non-Medicaid services. See 10A NCAC 27G .7004; 10A NCAC 27I .0601, et seq. However, there is no entitlement to maintenance of non-Medicaid services while a consumer appeals a Local Management Entity’s decision to deny, reduce, suspend, or terminate state-funded services. See 10A NCAC 27G .7004(g) (the LME “may authorize interim services until the final review decision”). Similarly, Plaintiffs could be re-authorized for state-funded services tomorrow and terminated again the next day – there are no procedural protections in place that maintain Plaintiffs’ necessary supplemental staffing services aside from a ruling from this Court.
36. But for the termination of state funds and/or the failure to make reasonable modifications to the CAP-MR/DD waiver service definitions, Plaintiffs could continue to be successfully served in their current community placements.
THE COMMUNITY ALTERNATIVES PROGRAM FOR PEOPLE WITH MENTAL RETARDATION/DEVELOPMENTAL DISABILITIES (CAP-MR/DD) 37. The Department of Health and Human Services (DHHS) is designated as the state Medicaid agency responsible for the administration and supervision of North Carolina’s Medicaid Program under Title XIX of the Social Security Act. DHHS delegated chief
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responsibility for administering the federal Medicaid program to its Division of Medical Assistance (DMA).
38. The Medicaid Act authorizes states to obtain Home and Community Based Services waivers (HCBS waivers) from the Centers for Medicare and Medicaid Services (CMS). See 42 U.S.C. § 1396n(c) (also known as Section 1915(c) of the Social Security Act). These programs allow the State to provide home-based habilitative services to, among others, persons who would otherwise require care in an Intermediate Care Facility for Persons with Mental Retardation (ICF-MR). Id. The CAP-MR/DD waiver is such a program. Pursuant to a Memorandum of Understanding (MOU) with the Division of Medical Assistance (DMA), the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services (DMHDDSAS) is the lead agency for operation of the CAP-MR/DD waiver program.
39. The CAP-MR/DD waiver provides participants with a maximum budget of $135,000.00 (the equivalent cost of caring for Plaintiffs in an ICF-MR facility) that they can use for home and community-based services. Presently, Plaintiffs’ budgets are below the maximum.
40. Plaintiff Marlo M.’s current proposed yearly budget for services is $114,053.16. Taking into account Plaintiff Marlo M.’s contribution of personal funds to her budget, the requested budget amount drops to $101,633.16. It saves the State over $33,000.00 per year to care for Plaintiff Marlo M. in the community rather than in an ICF-MR facility.
41. Plaintiff Durwood W.’s current proposed yearly budget for services is $111,582.44. Taking into account Plaintiff Durwood W.’s contribution of personal funds to his budget, the requested budget amount is approximately $104,400.00. It saves the State over $30,000.00 per year to care for Plaintiff Durwood W. in the community rather than in an ICF-MR facility.
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42. Despite the fact that Plaintiffs’ budgets are each far below the $135,000.00 maximum, they enjoy access to less than half of that amount due to service restrictions set by the State in the waiver. Plaintiffs each receive Residential Supports Level IV through the CAPMR/DD waiver, which provides for up to 12.5 hours of residential staffing and $59,644.65 in funding yearly. Since Plaintiffs receive this specific Residential Supports service, they are unable to access any other residential staffing services (or additional funding) under the CAPMR/DD waiver. The same would be true if Plaintiffs received another residential staffing service instead of Residential Supports. Upon information and belief, residential staffing services available through the CAP-MR/DD waiver cannot be combined in any way to achieve twenty-four hour staffing and supervision without reasonable modification of the service definitions.
MENTAL RETARDATION/MENTAL ILLNESS (MR/MI) – THOMAS S. STATE FUNDED SERVICES
43. In addition to operating the CAP-MR/DD waiver, DMHDDSAS bears responsibility for the oversight of non-Medicaid services, including MR/MI - Thomas S. funding. Defendant Salacki bears responsibility for the coordination of MR/MI – Thomas S. and other state-funded services at the community level. See N.C.G.S. § 122C-101; N.C.G.S. § 112C-115.4(a) & (b)(7).
44. MR/MI - Thomas S. funding is provided to eligible State residents who have applied for mental health, developmental disabilities, and substance abuse services through their Local Management Entity (LME). State MR/MI funds are made available to promote successful community living, and are used to extend the services and supports provided through Medicaid and other public and private funding. Accordingly, Plaintiffs and others similarly situated relied upon these MR/MI funds to access necessary supplemental residential staffing services for the
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hours that are not provided for by the CAP-MR/DD waiver. One such state-funded supplemental staffing service is called “Supervised Living 811 – 1 Resident.”
45. Supervised Living is a “residential service which includes room and support care for one individual who needs 24-hour supervision; and for whom care in a more intensive treatment setting is considered unnecessary on a daily basis.” Division of Mental Health/Developmental Disabilities/Substance Abuse Services, MH/DD/SA Service Definitions 164 (January 1, 2003). Medical necessity for this service is met when the recipient has an Axis I or II diagnosis or the person has a developmental disability, meets Level of Care Criteria, Level NCSNAP/ASAM, is at risk for placement outside the natural home setting, and has intensive verbal and limited physical aggression due to symptoms associated with diagnosis which are sufficient to create functional problems in a community setting. MH/DD/SA Service Definitions at 165.
46. Plaintiffs are authorized for Supervised Living 811 services until December 15, 2009. Plaintiffs will continue to meet medical necessity criteria for these services after December 15, 2009.
47. Upon information and belief, Plaintiff Marlo M. has been authorized for $64,298.40 per year for Supervised Living 811 services since 2005. Upon information and belief, Plaintiff Marlo M.’s Supervised Living 811 service provider, in recognition of the State budget crisis, cut staff salaries and employed other cost-cutting measures to reduce Plaintiff Marlo M.’s dependence on State funds. As a result, the current requested state funds rate for Plaintiff Marlo M. is $51,548.95 per year – an annual savings to the State of approximately $14,000.00. Compare this amount - $51,548.95 per year - to the estimated cost of caring for Plaintiff Marlo M. at the O’Berry Center or other institution (which relies on funding from North Carolina taxpayers), a cost the State estimates to be at least $135,000.00 per year.
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48. Upon information and belief, Plaintiff Durwood W. has been authorized for $70,682.25 per year for Supervised Living 811 services since 2005. Upon information and belief, Plaintiff Durwood W.’s Supervised Living 811 service provider, in recognition of the State budget crisis, cut staff salaries and employed other cost-cutting measures to reduce Plaintiff Durwood W.’s dependence on State funds. As a result, the current requested state funds rate for Plaintiff Durwood W. is $55,399.70 per year – an annual savings to the State of approximately $15,000.00. Compare this amount - $55,399.70 per year - to the estimated cost of caring for Plaintiff Durwood W. at Skills Creations or other institution (which relies on funding from North Carolina taxpayers), a cost the State estimates to be at least $135,000.00 per year.
FIRST CLAIM FOR RELIEF (Title II of the Americans with Disabilities Act) 49. Plaintiffs adopt and restate the allegations set forth in paragraphs 1 – 47 of this complaint. 50. Title II of the Americans with Disabilities Act (ADA) provides that “no qualified individual with a disability shall, by reason of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subject to discrimination by such entity.” 42 U.S.C. § 12132. 51. A “public entity” is defined as any State or local government or other instrumentality of a State or local government. See 42 U.S.C. § 12131 (1)(A)&(C). 52. Regulations implementing Title II of the ADA require that a public entity 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).
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53. Regulations implementing Title II provide that
“a public entity may not, directly through contractual or other arrangements, utilize criteria or other methods of administration: (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the entity’s program with respect to individuals with disabilities…” 28 C.F.R. § 35.130(b)(3).
54. Regulations implementing Title II further provide:
“(b)(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability: (iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others; (iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others; (v) Aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the public entity’s program. 28 C.F.R. § 35.130(b)(1).
55. The United States Supreme Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581
(1999), held that unnecessary institutionalization of individuals with disabilities is a form of
discrimination under Title II of the ADA. In doing so, the high Court interpreted the ADA’s
“integration mandate” as requiring persons with disabilities to be served in the community when:
(1) the state determines that community-based treatment is appropriate; (2) the individual does
not oppose community placement; and, (3) community placement can be reasonably
accommodated. 527 U.S. at 607.
56. DHHS, including DMHDDSAS, is a public entity under Title II of the ADA and its
implementing regulations.
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57. The North Carolina State Legislature designated area authorities as “local political subdivisions” of the State. See N.C.G.S. § 112C-116(a). The Legislature further vested the Secretary of DHHS with responsibility for ensuring LMEs’ compliance with applicable laws. See N.C.G.S. § 112C-111. Through contractual, licensing, or other arrangement with the State, the Beacon Center is responsible for providing a public aid and benefit through its management of the public mental health, developmental disabilities, and substance abuse system in its catchment area. See 28 C.F.R. § 35.130 (b)(1). The Beacon Center Local Management Entity is an instrumentality and contractor of the State, and a public entity covered by Title II of the ADA and its implementing regulations.
58. Plaintiffs are individuals with disabilities in that they have physical and other impairments that substantially limit one or more of their major life activities, including but not limited to, thinking, communicating, learning, working, caring for themselves, and concentrating. See 42 U.S.C. § 12102.
59. Plaintiffs are qualified individuals with disabilities in that they are capable of safely living at home with necessary services and they meet the essential eligibility requirements for the receipt of services from and participation in the State Medicaid program, the CAP-MR/DD waiver program, and in State-funded mental health, developmental disabilities, and substance abuse services programs with or without reasonable modifications to the rules, polices, and practices of those programs. See 42 U.S.C. § 12131(2).
60. Plaintiffs’ community placements were the result of the Wilson-Greene area authority (now the Beacon Center) and the State’s determination that community-based treatment was appropriate for them. Plaintiffs do not oppose community placement. Plaintiff’s community placement can be reasonably accommodated, as demonstrated by their continuous care in the
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community for many years; Plaintiff Marlo M. for more than five (5) years and Plantiff Durwood W. for more than a decade.
61. Plaintiffs’ care in the community in their own home is cost-neutral as compared to the cost of their care in an ICF-MR facility. In fact, caring for Plaintiffs in their own homes is estimated to save the State over $30,000.00 for each Plaintiff each year. Plaintiffs satisfy the cost-neutrality requirement of the CAP-MR/DD waiver program.
62. Without reasonable modification of the rules, policies, and procedures governing the CAP-MR/DD waiver program, Plaintiffs will be forcibly isolated and segregated. Plaintiffs are facing forced institutionalization as a direct result of Defendants’ actions.
63. Defendant Cansler’s failure to make reasonable modifications to the service definitions applicable to the CAP-MR/DD waiver program denies Plaintiffs the full twenty-four hour per day residential staffing they need to remain in their homes. The failure to make reasonable modifications to the CAP-MR/DD waiver service definitions to allow Plaintiffs to remain in their integrated home settings constitutes unlawful discrimination in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 and its implementing regulation, 28 C.F.R. § 35.130(d).
64. Defendant Salacki has failed to exercise her discretion in a non-discriminatory manner, denying Plaintiffs necessary funds used to make up the services shortfall under the CAP-MR/DD waiver.
65. Defendant Salacki’s authority and discretion to award state funds to Plaintiffs is set forth in the legislation containing the current State budget, SB § 10.21B, SL 2009-451 § 10.21B, which provides that
“Except as otherwise provided in this section for former Thomas S. recipients, CAP-MR/DD recipients are not eligible for any State-funded services except for
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those services for which there is not a comparable service in the CAP-MR/DD waiver. The excepted services are limited to guardianship, room and board, and time-limited supplemental staffing to stabilize residential placement. Former Thomas S. recipients currently living in community placements may continue to receive State-funded services.”
66. Thereafter, on September 14, 2009, to clarify the LME’s discretion to authorize state-
funded services for Plaintiffs and persons similarly situated, DMHDDSAS released CAP
Implementation Update No. 60. The pertinent part of the update states:
CAP-MR/DD State Fund Service Eligibility SECTION 10.21B As was discussed in Implementation Update (IU) #59, the General Assembly did impose restrictions on the use of state funds to supplement the benefits that CAPMR/DD recipients receive through the waiver. Most waiver recipients may only continue to receive State-funded services when there is not a comparable service available in the waiver. Those services are “limited to guardianship, room and board, and time-limited supplemental staffing to stabilize residential placement.” There is an exception for former Thomas S. consumers. Those individuals may continue to receive a broader array of State-funded consumers [sic], based upon the LME’s authorization…
67. Defendant Salacki failed to properly exercise her discretion and award Plaintiffs state
funds for supplemental residential staffing services. Defendant Salacki’s failure to make these
funds available to Plaintiffs to allow Plaintiffs to remain in their integrated home settings
constitutes unlawful discrimination in violation of Title II of the Americans with Disabilities Act,
42 U.S.C. § 12132 and its implementing regulation, 28 C.F.R. § 35.130(d).
SECOND CLAIM FOR RELIEF (Section 504 of the Rehabilitation Act)
68. Plaintiffs adopt and restate the allegations set forth in paragraphs 1 – 66 of this
complaint.
69. Section 504 of the Rehabilitation Act of 1973 provides, “no otherwise qualified
individual with a disability in the United States...shall, solely by reason of her or his disability,
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be excluded from 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).
70. “Individual with a disability” is one who has a disability as defined by the Americans with Disabilities Act. 29 U.S.C. § 705(20)(B), referencing 42 U.S.C. 12102.
71. “Program or activity” includes a department, agency, special purpose district, or other instrumentality of a State or of a local government. 29 U.S.C. § 794(b)(1)(A).
72. “Recipient” of federal financial assistance also includes any public or private agency or other entity to which Federal financial assistances is extended directly or through another recipient. 28 C.F.R. § 41.3(d).
73. Regulations implementing Section 504 require a recipient of federal financial assistance to administer its services, programs, and activities in the “most integrated setting appropriate” the needs of qualified individuals with disabilities. 28 C.F.R. § 41.51(d).
74. DHHS receives federal financial assistance under Section 504 and its implementing regulations. Federal Medicaid funds account for approximately 60% of the cost of the North Carolina Medicaid program.
75. The State has delegated to LMEs such as the Beacon Center the function of administering programs and services to clients in its geographical area in need of Mental Health, Developmental Disabilities, or Substance Abuse services. The Beacon Center receives appropriations of money from the North Carolina state legislature, including a substantial portion of federal Medicaid funds and State funds.
76. DHHS, and its contracting agencies, including the Beacon Center LME, are recipients of Federal financial assistance under Section 504 and its implementing regulations.
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77. Plaintiffs are “qualified person[s] with disabilities” within the meaning of Section 504 because they have physical and/or mental impairments that substantially limit one or more major life activities, and they meet the essential eligibility requirements for the CAP-MR/DD waiver program. See 29 U.S.C. § 705(9)
78. Defendant Cansler has failed to make the full $135,000.00 CAP-MR/DD waiver budget available to Plaintiffs and others similarly situated by creating or allowing the creation of service definitions that do not allow CAP-MR/DD waiver recipients to access twenty-four hours per day of direct care through the waiver. Without reasonable modification of the rules, policies, and procedures governing the CAP-MR/DD waiver program, Plaintiffs have been forcibly isolated and segregated. Plaintiffs are additionally facing forced institutionalization.
79. Defendant Cansler’s failure to reasonably modify the CAP-MR/DD waiver service definitions to allow Plaintiffs to combine residential staffing services to achieve a full twentyfour hours of continuous staffing constitutes unlawful discrimination in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 and its implementing regulation, 28 C.F.R. 41.51(d). Plaintiffs are entitled to reside in the most integrated setting appropriate to their needs. Plaintiffs, with reasonable modifications to the CAP-MR/DD waiver service definitions that allow them to combine residential staffing services can successfully maintain their community placement in their own homes, each of which is the most integrated setting appropriate to their needs.
80. Defendant Salacki’s failure to exercise her discretion in accordance with SB § 10.21B (see First Claim for Relief) and make available non-Medicaid state funds for the residential staffing services that Plaintiffs require to avoid segregation and institutionalization, and to remain in their integrated home settings that are appropriate to their needs constitutes unlawful
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discrimination in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 and its implementing regulation, 28 C.F.R. 41.51(d).
RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully request that the Court grant the following relief:
1. Declare Defendant Cansler’s failure to make reasonable modifications to the service definitions in the CAP-MR/DD waiver to be unlawful discrimination in violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
2. Declare Defendant Salacki’s failure to exercise her discretion and award Plaintiffs nonMedicaid state funds pursuant to SB § 10.21B to be unlawful discrimination in violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.
3. Grant preliminary and permanent injunctions enjoining Defendant Cansler and his officers, agents, employees, attorneys, and all persons who are in active concert or participation with him from failing to make reasonable modifications to the CAP-MR/DD waiver service definitions and requiring Defendant Cansler and his officers, agents, employees, attorneys, and all persons who are in active concert or participation with him to continue the provision of individualized coverage of Plaintiffs’ service needs in the least restrictive, most integrated setting that is their own home.
4. Grant preliminary and permanent injunctions enjoining Defendant Salacki and her officers, agents, employees, attorneys, and all persons who are in active concert or participation with her from failing to exercise her discretion to make non-Medicaid state funds available to Plaintiffs, and requiring Defendant Salacki and her officers, agents, employees, attorneys, and all persons who are in active concert or participation with her to continue the provision of
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individualized coverage of Plaintiffs’ service needs in the least restrictive, most integrated setting that is their own home.
5. Waive the requirement for the posting of a bond as security for the entry of preliminary relief.
6. Award the Plaintiffs the costs of this action and reasonable attorney’s fees pursuant to 29 U.S.C. § 794a and 42 U.S.C. § 12133 and any other applicable provision of law.
7. All such other and further relief as the Court deems to be just and equitable.

Dated: December 11, 2009

Respectfully submitted,

/s/ John R. Rittelmeyer John R. Rittelmeyer john.rittelmeyer@disabilityrightsnc.org N.C. State Bar No. 17204
Jennifer L. Bills jennifer.bills@disabilityrightsnc.org N.C. State Bar No. 37467
Holly A. Stiles holly.stiles@disabilityrightsnc.org N.C. State Bar No. 38930
DISABILITY RIGHTS NC 2626 Glenwood Avenue, Suite 550 Raleigh, NC 27608 Phone: (919) 856-2195 Fax: (919) 856-2244 Attorneys for Plaintiffs

21 Case 5:09-cv-00535-BO Document 1 Filed 12/11/09 Page 21 of 21

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

MARLO M., by her guardians and next

)

friends WILLIAM and CARLETTE

)

PARRIS, and DURWOOD W. by his

) CIVIL CASE NO. __________________

guardian and next friend WILLIE

)

WILLIAMS,

)

) MEMORANDUM IN SUPPORT OF

Plaintiffs,

) MOTION FOR TEMPORARY

) RESTRAINING ORDER AND

v.

) PRELIMINARY INJUNCTION

)

LANIER CANSLER, in his official capacity )

as Secretary of the Department of Health and )

Human Services, and KAREN SALACKI, in )

her official capacity as Area Director of The )

Beacon Center Local Management Entity,

)

)

Defendants.

)

______________________________________________________________________________

In order to maintain the status quo and preserve their community placements, Plaintiffs

have filed a Motion for a Temporary Restraining Order and a Preliminary Injunction. Plaintiffs

require injunctive relief to prevent the termination of their state-funded services. Without these

state-funded services (which represent almost half of Plaintiffs’ plans of care), they are at risk of

institutionalization and the simultaneous dismantling of their homes and systems of care.

SUMMARY OF THE CASE

Plaintiffs are adults with dual diagnoses of a developmental disability and mental illness,

as well as other chronic conditions. Plaintiffs require continuous supervision and support in all

aspects of their lives, which need is met through a combination of state and federally-funded

services. On December 15, 2009, Plaintiffs will lose their “Supervised Living” services, a state-

funded mental health, developmental disabilities, and substance abuse service. Supervised

Living is a “wrap-around” service that provides residential staffing services to supplement the

limited supervision and support available to Plaintiffs through North Carolina’s Home and

Case 5:09-cv-00535-BO Document 5 Filed 12/11/09 Page 1 of 18

Community-Based Services (HCBS) Medicaid waiver program designated as the Community Alternatives Program for Persons with Mental Retardation and Developmental Disabilities (CAP-MR/DD or CAP-MR/DD waiver). When Plaintiffs lose Supervised Living services on December 15, 2009, Plaintiffs will consequently lose their long-time community placements – their own homes – as they will no longer receive the continuous supervision and support they require to live in the community, in violation of the Americans with Disabilities Act and the Rehabilitation Act of 1973. See 42 U.S.C. § 12101 et seq.; 29 U.S.C. § 794. As a result, Plaintiffs are at risk of institutionalization, an inappropriate placement that is more costly than the cost of their care in the community.
Defendant Salacki is the Area Director of the Beacon Center, Plaintiffs’ Local Management Entity, and is statutorily responsible for the coordination of state-funded services at the local level. See N.C.G.S. § 122C-101, et seq. Defendant Salacki has the authority and discretion to authorize, deny, reduce, suspend, and terminate state-funded services for Plaintiffs, including Supervised Living services. To prevent their unnecessary institutionalization, Plaintiffs request a temporary restraining order and preliminary injunction prohibiting Defendant Salacki from terminating their state-funded Supervised Living services on December 15, 2009.
Defendant Lanier Cansler is the Secretary of the North Carolina Department of Health and Human Services (DHHS). DHHS is the “single state agency” responsible for the administration and supervision of North Carolina’s Medicaid program under Title XIX of the Social Security Act. 42 C.F.R. § 431.10 (2008). Secretary Cansler bears ultimate responsibility for the implementation and management of the North Carolina Medicaid program, including in particular the State’s Medicaid waiver program, the Community Alternatives Program for Persons with Mental Retardation and Developmental Disabilities (CAP-MR/DD). Defendant
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Cansler is also responsible for the oversight of LME area directors to make sure that they provide publicly funded services in accordance with the law. See N.C.G.S. § 122C-111, et seq.
Defendant Cansler has failed to exercise his authority and direct Defendant Salacki to restore state-funded services for Plaintiffs. Defendant Salacki has failed to properly exercise her discretion to assess Plaintiff’s individual needs and maintain their state MR/MI funding and keep them in their long-time community placements. Additionally, Defendant Cansler failed to direct the Division of Medical Assistance (DMA) or the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services (DMHDDSAS) to make changes to the service definitions in the CAP-MR/DD waiver to allow Plaintiffs and others similarly situated to access funding for continuous, twenty-four hour, direct residential care through the waiver. Although in theory the budget for each Plaintiff’s CAP-MR/DD waiver services could be large enough to maintain Plaintiffs in the community, limitations in the service definitions and utilization guidelines prohibit Plaintiffs from benefitting from the full $135,000 budget of services to which Plaintiffs should otherwise be entitled. Defendant Cansler has the authority and discretion to waive restrictive service definitions under the waiver enabling Plaintiffs to access the full CAPMR/DD budget in order to preserve their community placements. Plaintiffs request a temporary restraining order and preliminary injunction directing Defendant Cansler to make reasonable modifications to service definitions in the CAP-MR/DD waiver to allow Plaintiffs access to twenty-four hours per day of residential staffing services, thus eliminating Plaintiffs’ reliance on the state-funded Supervised Living service to maintain their community placements.
STATEMENT OF FACTS Plaintiffs are adults with dual diagnoses of mental retardation and mental illness (MR/MI) and other chronic and disabling conditions that require twenty-four hours of care and
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supervision. Plaintiffs receive health care and other federally-funded services through North Carolina’s State Medicaid Program, including in particular the CAP-MR/DD waiver. Plaintiffs are additionally eligible for and receive state-funded mental health, developmental disabilities, and substance abuse services.
Plaintiff Marlo M.’s diagnoses include Anxiety Disorder, Mental Retardation, Down Syndrome, Congenital Heart Disease, Hypothyroidism, Chronic Gum Disease, and Chronic Headaches. Plaintiff Marlo M.’s community placement was her own apartment, which was uniquely suited to her short stature, including countertops, sinks and furniture lowered to accommodate her proportions. Plaintiff Marlo M. lived independently in her apartment with a rotating schedule of residential workers twenty-four hours a day. Plaintiff Durwood W.’s diagnoses include Psychotic Disorder NOS, Autistic Disorder, Severe Mental Retardation, Diabetes, Sleep Apnea, Frontal Lobe Atrophy, Hepatitis B Carrier, Cerebral Palsy, Grade I/IV Systolic Ejection Murmur, and Glaucoma. Plaintiff Durwood W.’s community placement was his own home, where he lived independently with a rotating schedule of residential workers twenty-four hours a day. Both Plaintiffs lived successfully in their own homes until November 20, 2009, when both were forced to find other, more congregate placements due to the loss of state funds and concurrent inability to fully satisfy their staffing needs through the CAP-MR/DD waiver alone.
Plaintiffs rely on a combination of Medicaid, CAP-MR/DD, and state-funded services to live successfully in their own home and to participate in family and community life. Plaintiffs especially depend on the state-funded Supervised Living service to supplement the limited hours of residential staffing services available through the CAP-MR/DD waiver. Supervised Living is a “residential service which includes room and support care for one individual who needs 24-
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hour supervision; and for whom care in a more intensive treatment setting is considered unnecessary on a daily basis.” North Carolina’s Department of Health and Human Services Division of Mental Health/Developmental Disabilities/Substance Abuse Services MH/DD/SA Service Definitions 164 (January 1, 2003). Currently, it is only through a combination of statefunded Supervised Living services and federally-funded CAP-MR/DD services that Plaintiffs can access the twenty-four hours of care and supervision they need to live in their own homes.
Plaintiffs require twenty-four hour care because of their disabilities. Plaintiff Marlo M. requires one-on-one staffing due to her mental illness, developmental disabilities and congenital heart condition. Plaintiff Durwood W. requires one-on-one staffing due to his uncontrollable and erratic behaviors, and his mental retardation. Alternative services, such as Day Supports, that do not provide the individualized care and attention provided by residential staffing are not appropriate to meet Plaintiffs’ needs and will jeopardize the independence and community living Plaintiffs have enjoyed for so long.
Defendant Karen Salacki is the Area Director of the Beacon Center Local Management Entity (LME). In or about June 2009, Defendant Salacki decided that Plaintiffs’ Supervised Living service would be terminated unless Plaintiffs could justify their need for the service. Plaintiffs continue to meet medical necessity criteria justifying their need for the Supervised Living service. Accordingly, from June 2009 until the present, Plaintiffs continued to request Supervised Living services on numerous occasions, including exhausting the state appeals process in which both Defendants reiterated and adopted the terminations of services. In response to Plaintiffs’ continued requests, Defendant Salacki approved only a series of “timelimited” service authorizations intended to force Plaintiffs to transition to new placements and/or enter institutions. Plaintiffs’ current service authorizations will terminate on December 15, 2009.
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Defendant Salacki’s decision to terminate Plaintiffs’ services reverses more than five years of Supervised Living authorizations for Plaintiff Marlo M., and a decade of authorizations for Plaintiff Durwood W.
Defendant Lanier Cansler, as Secretary of the Department of Health and Human Services (DHHS), oversees the Division of Mental Health, Developmental Disability, and Substance Abuse Services (DMHDDSAS) and the Division of Medical Assistance (DMA). Defendant Cansler, through his agents at DMA and DMHDDSAS, has the authority to grant a reasonable modification of the service definitions in the CAP-MR/DD waiver. Plaintiffs requested, and were refused, a reasonable modification to the waiver’s service definitions that would allow Plaintiffs to combine residential staffing services available under the CAP-MR/DD waiver to achieve twenty-four hours of care and supervision. This reasonable modification of the CAPMR/DD waiver service definitions would alleviate Plaintiffs’ dependence on state-funded services, and would allow Plaintiffs to maintain their community placements through CAPMR/DD waiver services alone.
As a result of Defendant Salacki’s and Defendant Cansler’s actions, Plaintiffs will be forced to vacate their current placements and move to other, inappropriate congregate placements that do not provide Plaintiffs with one-on-one supervision and care twenty-four hours a day. Without twenty-four hours of care and supervision, it is anticipated that Plaintiffs will be forced into more restrictive, segregated, institutional settings. Away from their homes and communities, Plaintiffs will face increased risk of community-acquired infections, malnutrition, and depression. They also face immediate risk of loss of the independence and dignity they have enjoyed living successfully in the community -- Plaintiff Marlo M. for over five years, and Plaintiff Durwood W. for more than a decade.
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ARGUMENT A. Standard of Review To prevail in a motion for a preliminary injunction the trial court must consider (1) whether plaintiffs are likely to succeed on the merits; (2) whether they are likely to suffer irreparable harm in the absence of the preliminary relief; (3) if the balance of hardships tips in their favor; and (4) whether the injunction is in the public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. __ , __, 129 S. Ct. 365, 374 (2008); Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 346 (4th Cir. 2009), adopting Winter and overruling Blackwelder Furniture Co. of Statesville v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977) . The same standard must be met to obtain a temporary restraining order. Dotson v. Wells Fargo Bank, N.A., 2006 U.S. Dist. LEXIS 92278, 7 (S.D.W.Va. 2006); citing United States Dep't of Labor v. Wolf Run Mining Co., Inc., 452 F.3d 275, 281 n.1 (4th Cir. 2006) ("A preliminary injunction, which may be entered only after notice, is distinguished from a TRO, which may be entered without notice, only by its duration -- a preliminary injunction is of indefinite duration extending during the litigation, while a TRO is limited in duration to 10 days plus one 10-day extension.") Plaintiffs demonstrate all four requirements and should be awarded the requested injunctive relief.
B. Plaintiffs Are Likely To Succeed On The Merits. 1. The unwarranted termination of Plaintiffs’ funding and services places Plaintiffs at risk of institutionalization and violates the Americans with Disabilities Act.
On December 15, 2009, Plaintiffs’ state-funded Supervised Living services will be terminated, which will force Plaintiffs to transition to institutions or inappropriate congregate placements that put Plaintiffs at risk of institutionalization. Title II of the Americans with Disabilities Act (ADA) protects qualified individuals with disabilities from discrimination by
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public entities. 42 U.S.C. § 12132. Public entities include State and local governments, any department, agency, special purpose district, or instrumentality of same, and their contractors. 42 U.S.C. §§ 12131(1)(A) & (B); see 28 C.F.R. § 35.130(b). A disability is a physical or mental impairment that substantially limits one or more major life activities of an individual. 42 U.S.C. § 12102(1). “Qualified individuals with disabilities” are those who “with or without reasonable modifications to rules, policies, or practices . . . mee[t] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). Prohibited discrimination by public entities includes the failure to provide persons with disabilities a community-based placement when such placement is appropriate; the individual wishes to reside in the community; and the placement can be reasonably accommodated. Olmstead v. L.C., 527 U.S 581, 587 (1999).
Plaintiffs are qualified individuals with disabilities who are being illegally discriminated against by Defendant public entities. Defendant Cansler is the Secretary of the North Carolina Department of Health and Human Services (DHHS), which is a public entity. Defendant Salacki is the Area Director of the Beacon Center Local Management Entity (LME), a local political subdivision of the State and a public entity. See N.C.G.S. § 112C-116(a). As Area Director of the Beacon Center, Defendant Salacki is vested with the authority to manage state-funded services in her LME’s catchment area. See N.C.G.S. § 122C-101; N.C.G.S. § 112C-115.4(a). Plaintiffs are individuals with disabilities in that they are diagnosed with mental retardation and mental illness, which are intellectual and mental impairments that substantially limit one or more of their major life activities, including but not limited to, thinking, communicating, learning, working, caring for themselves, and concentrating. See 42 U.S.C. § 12102. Plaintiffs are qualified persons with disabilities in that they meet the essential eligibility requirements for and
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are in receipt of services from the State Medicaid program, the CAP-MR/DD waiver program, and State-funded mental health, developmental disabilities, and substance abuse services programs with or without reasonable modification to the rules, policies, and practices of those programs. See 42 U.S.C. §12131(2).
Defendants’ actions constitute illegal discrimination under Olmstead. Plaintiffs’ community-based placements are appropriate as demonstrated by their long history of living safely and successfully in their own homes – Plaintiff Marlo M. for almost six years and Plaintiff Durwood W. for a decade. Community-based treatment is especially appropriate for Plaintiffs as it guarantees them a level of one-on-one attention that is unavailable to them in any congregate or institutional setting. Plaintiffs’ wish to continue residing in their homes can be reasonably accommodated through either continuation of their state-funded services or through modifications to the CAP-MR/DD waiver. Indeed, it is cheaper to care for Plaintiffs in their own homes than in an institution. However, despite Plaintiffs’ successful integration into their communities, the cost-effectiveness of their care in the community, and their continued eligibility for the CAP-MR/DD waiver and state-funded Supervised Living services, Plaintiffs will be forced to leave their homes on December 15, 2009. The failure of Defendant Salacki to authorize Plaintiffs for Supervised Living services and Defendant Cansler’s attendant failure to make reasonable modifications to the CAP-MR/DD waiver program to allow Plaintiffs to remain in the community violates Plaintiffs’ rights to be free from discrimination based on their disability under the ADA and Olmstead.
Defendants have claimed that Plaintiffs are able to access suitable levels of services and care solely through the CAP-MR/DD waiver program. However, this position is indicative of a fundamental misunderstanding of the CAP-MR/DD service array and the interrelations between
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various services offered as part of the waiver program. The CAP-MR/DD service definitions and utilization guidelines provide that Plaintiffs are eligible for only 12.5 hours of residential staffing services per day under the waiver. Residential staffing services available through the CAP-MR/DD waiver cannot be combined in any way to achieve twenty-four hour staffing and supervision without modification of specific limitations contained in the service definitions. Plaintiffs require twenty-four hour one-on-one staffing and supervision. Defendant Salacki’s failure to authorize Plaintiffs for state-funded Supervised Living services and Defendant Cansler’s failure to make reasonable modifications to the rules, policies, and procedures governing the CAP-MR/DD waiver program will result in Plaintiffs’ loss of twenty-four hour care and their forced isolation and segregation in harmful institutional settings or other inappropriate settings against their will in violation of Title II of the ADA, 42 U.S.C. § 12132, and its implementing regulation, 28 C.F.R. § 35.101, et seq.
2. Defendants’ reduction of Plaintiffs’ funding and services will result in Plaintiffs’ unnecessary institutionalization in violation of Section 504 of the Rehabilitation Act of 1973.
The termination of Plaintiffs’ state-funded Supervised Living services and concurrent inability to access available federal CAP-MR/DD waiver funds places them at immediate risk of unnecessary institutionalization in violation of the Rehabilitation Act of 1973. In the Rehabilitation Act of 1973, Congress stated 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), referencing 29 U.S.C. § 705(2). “Program or activity” includes a department, agency, special purpose district, or other instrumentality of a State or of a local government. 29 U.S.C. § 794(b)(1)(A). The
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Rehabilitation Act defines disability as a physical or mental impairment that substantially limits one or more major life activities. 29 U.S.C. § 705(20)(B), referencing 42 U.S.C. § 12102(1). Prohibited discrimination includes denial of the opportunity to participate in or benefit from an aid, benefit, or service. 28 CFR § 41.51(b). Moreover, a recipient of federal funds must administer its services, programs, and activities in the “most integrated setting appropriate” to the needs of the qualified individual. 28 CFR § 41.51(d).
Plaintiffs are individuals with disabilities in that they are diagnosed with mental retardation and mental illness, which are impairments that substantially limit one or more of their major life activities, including but not limited to, thinking, communicating, learning, working, caring for themselves, and concentrating. See 42 U.S.C. § 12102; 29 U.S.C. § 705(20)(B). Plaintiffs are qualified persons with disabilities in that they meet the essential eligibility requirements for and are in receipt of services from the State Medicaid program, the CAPMR/DD waiver program, and state-funded mental health, developmental disabilities, and substance abuse services programs with or without reasonable modification to the rules, policies, and practices of those programs. See 42 U.S.C. §12131(2); 29 U.S.C. § 794(a). Defendant Cansler is the Secretary of the North Carolina Department of Health and Human Services (DHHS), which is a state agency receiving Federal financial assistance. Defendant Salacki is the Area Director of the Beacon Center Local Management Entity (LME), which is an instrumentality of the State of North Carolina receiving Federal financial assistance.
In North Carolina, adults with dual diagnoses of mental retardation and mental illness are part of a target population that may be eligible to receive state-funded services designated as MR/MI funds, formerly called Thomas S. funds. The North Carolina General Assembly recognized the continued need for MR/MI funds for this target population when the Assembly
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specifically excluded these funds from across-the-board cuts to state-funded services in the current North Carolina State budget which provides:
Except as otherwise provided in this section for former Thomas S. recipients, CAP-MR/DD recipients are not eligible for any State-funded services except for those services for which there is not a comparable service in the CAP-MR/DD waiver. The excepted services are limited to guardianship, room and board, and time-limited supplemental staffing to stabilize residential placement. Former Thomas S. recipients currently living in community placements may continue to receive State-funded services. SL 2009-451 § 10.21B (emphasis added). Defendant Salacki has failed to properly exercise her authority and discretion by failing to conduct any individualized assessment of Plaintiffs’ needs, as contemplated by the General Assembly. Instead, Defendant Salacki’s arbitrary termination of Plaintiffs’ Supervised Living services substantially increases Plaintiffs’ risk of institutionalization or other placement in a segregated setting. Defendant Cansler’s has failed to make reasonable modifications to the rules, policies, and procedures governing the CAP-MR/DD waiver program, thus preventing Plaintiffs from accessing the full $135,000.00 waiver budget that is purportedly made available to each comprehensive CAP-MR/DD waiver participant. Such denial of access to CAP-MR/DD funding will force Plaintiffs to vacate the integrated home settings that are appropriate to their needs. Such denial moreover is based on Plaintiffs’ needs for constant care and supervision necessitated by their particular disabilities. Both Defendants previously determined that Plaintiffs’ level and combination of federal and state-funded services were medically necessary through assessment tools that DHHS, DMA and DMHDDSAS have been using for years (e.g., the Person-Centered Plan of Care). Actions of both defendants constitute unlawful discrimination in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and its implementing regulation, 28 C.F.R. Part 41.
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C. Plaintiffs will Suffer Irreparable Injury without Injunctive Relief A temporary restraining order and preliminary injunction are necessary to prevent Plaintiffs from being institutionalized due to the loss of state-funded services on December 15, 2009. Plaintiffs seeking preliminary relief must demonstrate that they are likely to suffer irreparable injury in the absence of an injunction. Winter v. Natural Res. Def. Council, Inc., 555 U.S. __ , __, 129 S. Ct. 365, 374 (2008); Los Angeles v. Lyons, 461 U.S. 95, 103, 103 S. Ct. 1660 (1983); Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 441, 94 S. Ct. 1113 (1974); O'Shea v. Littleton, 414 U.S. 488, 502, 94 S. Ct. 669 (1974). Irreparable injuries are those that are non-compensable or cannot be adequately compensated by money damages, such as emotional, psychological, and physical damage. L.J. v. Massinga, 838 F.2d 118, 1988 U.S. App. LEXIS 1161 (4th Cir. 1988) (finding that monetary costs and administrative inconvenience to city from grant of preliminary injunction was outweighed by preventing continuing harm to plaintiffs caused by defendants’ mismanagement of foster care system); see also LaForest v. Former Clean Air Holding Co., Inc., 376 F.3d 48, 55 (2d Cir. 2004) (stating that reduction of medical benefits and consequent negative impacts on an individual’s health is an irreparable injury); see generally Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546; 1994 U.S. App. LEXIS 7404 (4th Cir. 1994). Plaintiffs are likely to suffer irreparable injury if this Court does not grant them injunctive relief preventing the termination or reduction of their residential staffing services on December 15, 2009. If Plaintiffs lose residential staffing services, Plaintiffs will immediately face the prospect of institutionalization or forced transition to congregate placements. These placements will cause Plaintiffs emotional, psychological, and physical harm that cannot be compensated by an award of monetary damages. Additionally, for Plaintiff Marlo M., the loss of her current
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placement means the loss of an apartment uniquely suited to her short stature. The only remedy for this loss would be to custom-fit another apartment.
Even if this Court should grant Plaintiffs injunctive relief but later determine such grant was in error, the interim costs of caring for Plaintiffs in the community would cost less than caring for Plaintiffs in an institution. Defendants stand to benefit from the grant of injunctive relief to Plaintiffs. Plaintiffs will suffer irreparable injury should they be removed from their current placements that cannot be compensated by money damages.
D. The Balancing of Hardships Tips in Favor of the Plaintiffs The balance of hardships tips in Plaintiffs’ favor. Compliance with the law is not a cognizable hardship on a defendant. White v. Martin, 2002 U.S. Dist. LEXIS 27281, 22-23 (W.D. Mo. 2002). Defendants must show that proposed injunctive relief pose more than mere fiscal and administrative problems for Defendants to tip the balance away from Plaintiffs, who will suffer physical and emotional harm in the absence of relief. Todd v. Sorrell, 841 F.2d 87, 88 (4th Cir. 1988) (“harm to the plaintiff would have been enormous, indeed fatal, were the injunction denied, and harm to the Commonwealth if granted, while it may not have been negligible, was measured only in money and was inconsequential by comparison”); Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983). Where the government’s actions cause a loss of life’s necessities, further illness, or other deprivation to the Plaintiffs, the balance of hardships tips “decidedly” in Plaintiffs’ favor. Lopez at 1437; see also Daniels v. Wadley, 926 F. Supp. 1305, 1313 (M.D. Tenn. 1996) (Plaintiffs’ potential harm of forgoing medical care pending resolution of the dispute outweighs the administrative burden to Defendants of modifying policies and procedures.) When the state is in a better position to absorb budgetary impact compared to plaintiffs, harm to plaintiffs outweighs harm to defendant state. Kansas Hosp.
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Ass’n v. Whiteman, 835 F. Supp. 1548, 1552-53 (D. Kan. 1993) (finding that state’s planned action would result in negligible impact on state coffers but detrimentally alter status quo of plaintiff Medicaid beneficiaries and hospitals).
Defendants likely will cite budgetary concern as the basis for the reduction or termination of Plaintiffs’ services. However, Defendants fail to consider the budgetary impact of Plaintiffs’ institutionalization. Currently, both Plaintiffs’ care in the community in their own homes is far below the estimated cost of caring for Plaintiffs in an Intermediate Care Facility for persons with Mental Retardation (ICF-MR facility) or other institutional setting. Plaintiffs will incur serious harm, both mental and emotional, as a result of the substantial cut to their services. The comparative harm to Defendants, however, is small. Additionally, Plaintiffs' injunction seeks only that Defendants comply with federal law.
E. The Public Interest Demands that the Injunction be Granted The State of North Carolina and its taxpayers incur fewer costs by providing Plaintiffs’ care in the community in accordance with the ADA. The public interest is served when laws passed by Congress are enforced. White, 2002 U.S. Dist. LEXIS 27281 at 24, (citing Glenwood Bridge, Inc. v. City of Minneapolis, 940 F.2d 367, 372 (8th Cir. 1991)). There is a serious questions of whether the public interest is served by shuffling the burden of Plaintiffs’ care from one governmental entity to another. Lopez at 1436-7. Budgetary savings are in the public interest; however those measures must give way when they are in conflict with federal substantive law. Kansas Hosp. Ass’n, 835 F.Supp. at 1553; see also Nat’l Wildlife Fed. v. Nat’l Marine Fisheries Serv., 235 F.Supp.2d 1143, 1162 (W.D. Wash. 2002); Haskins v. Stanton, 794 F.2d 1273, 1277 (7th Cir. 1986) (noting that where an injunction seeks to require defendants to comply with existing law, the injunction imposes no burden but “merely seeks to prevent the
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defendants from shirking their responsibilities”). The public interest includes protecting the rights of disabled individuals: Our society as a whole suffers when we neglect the poor, the hungry, the disabled, or when we deprive them of their rights or privileges. Society's interest lies on the side of affording fair procedures to all persons, even though the expenditure of governmental funds is required. It would be tragic, not only from the standpoint of the individuals involved but also from the standpoint of society, were poor, elderly, disabled people to be wrongfully deprived of essential benefits for any period of time.
Lopez at 1437. Furthermore, governments and public entities cannot concern themselves solely with fiscal issues, and must pay equal or greater attention to the general health and wellbeing of those residing within the state. Id.
The interest of the citizens of North Carolina are best served by enjoining Defendants from enforcing arbitrary cuts and denials of necessary services for Plaintiffs. The ADA requires that persons with disabilities be cared for in the most integrated settings possible, which is being directly undermined by Defendants’ actions. The failure to enjoin Defendants’ actions would insulate the State and other public entities in this State from injunctions seeking the stay of an improper action.
F. The Court Should not Require a Bond In their discretion under FRCP 65(c), Federal courts routinely waive bond requirements in suits to enforce important federal rights of public interests. See, e.g., Barahona-Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir. 1999) (noting that “[t]he district court is in a far better position to determine the amount and appropriateness of the security required under Rule 65”); Doctor's Associates, Inc. v. Stuart, 85 F.3d 975, 985 (2d Cir. 1996) (affirming the district court's decision not to require bond); Moltan Co. v. Eagle-Picher Industries, Inc., 55 F.3d 1171, 1176 (6th Cir. 1995) (a district court has discretion to require posting of security); Stockslager v.
16 Case 5:09-cv-00535-BO Document 5 Filed 12/11/09 Page 16 of 18

Carroll Elec. Co-op. Corp., 528 F.2d 949, 951 (8th Cir. 1976) (“The amount of the bond required [upon the issuance of a preliminary injunction] rests within the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of that discretion”) (citations omitted).
Important federal rights are at stake in this litigation. See, e.g., Temple Univ. v. White, 941 F.2d 201, 220 n.27 (3d Cir. 1991) (“Public policy under [federal law governing state modification of Medicaid programs] mandates that parties in fact adversely affected by improper administration of programs pursuant thereto be strongly encouraged to correct such errors”). Given the high likelihood of success on the merits, Plaintiffs’ status as public assistance recipients, as well as the fact that the injunction seeks merely to require DHHS to comply with federal law, no bond should issue.

CONCLUSION This Court should grant the Motion for a Temporary Restraining Order and a Preliminary Injunction because Plaintiffs have met their burden of showing (1) a strong likelihood of success on the merits, (2) a substantial likelihood of irreparable harm, (3) that the balance of hardships tips in Plaintiffs favor, and (4) that the public interests demands that the injunction be granted.

Dated: December 11, 2009

Respectfully submitted,

/s/ John R. Rittelmeyer John R. Rittelmeyer john.rittelmeyer@disabilityrightsnc.org N.C. State Bar No. 17204
Jennifer L. Bills jennifer.bills@disabilityrightsnc.org N.C. State Bar No. 37467
17
Case 5:09-cv-00535-BO Document 5 Filed 12/11/09 Page 17 of 18

Holly A. Stiles holly.stiles@disabilityrightsnc.org N.C. State Bar No. 38930 DISABILITY RIGHTS NC 2626 Glenwood Avenue, Suite 550 Raleigh, NC 27608 Phone: (919) 856-2195 Fax: (919) 856-2244 Attorneys for Plaintiffs
18 Case 5:09-cv-00535-BO Document 5 Filed 12/11/09 Page 18 of 18

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

MARLO M., by her guardians and next

)

friends WILLIAM and CARLETTE

) Civil Case No. ____________

PARRIS, and DURWOOD W. by his

)

guardian and next friend WILLIE

)

WILLIAMS,

) MOTION FOR TEMPORARY

) RESTRAINING ORDER AND

Plaintiffs,

) PRELIMINARY INJUNCTION

)

v.

) Fed. R. Civ. P. 65

)

LANIER CANSLER, in his official capacity )

as Secretary of the Department of Health and )

Human Services, and KAREN SALACKI, in )

her official capacity as Area Director of The )

Beacon Center Local Management Entity,

)

)

Defendants

)

________________________________________________________________________

Plaintiff Marlo M., by her guardians and next friends William and Carlette Parris,

and Durwood W., by his guardian and next friend Willie Williams hereby move the court

for a Temporary Restraining Order and a Preliminary Injunction, pursuant to Fed. R. Civ.

P. 65, prohibiting Defendants from reducing or terminating Plaintiffs’ State-funded

services and/or requiring Defendants to provide sufficient services and funding under the

CAP-MR/DD waiver, up to but not more than the waiver budget of $135,000, to preserve

Plaintiffs’ level of care and community placements in their own homes.

Background 1. Plaintiffs suffer from a variety of chronic and disabling conditions, including mental retardation and some form of mental illness (MR/MI) that require twenty-four hours of care and supervision each day.

Case 5:09-cv-00535-BO Document 4 Filed 12/11/09 Page 1 of 6

2. Plaintiffs are former recipients of Thomas S. funding (now called MR/MI funding) who have been receiving state-funded Supervised Living 811 services through North Carolina’s DHHS Division of Mental Health, Developmental Disabilities, and Substance Abuse Services. In addition, Plaintiffs receive health care and other services through North Carolina’s Medicaid Assistance Program and Community Alternatives Program for Persons with Mental Retardation and Developmental Disabilities waiver (CAP-MR/DD).
3. Defendant Lanier Cansler is the Secretary of the North Carolina Department of Health and Human Services (DHHS). DHHS is the “single state agency” responsible for the administration and supervision of North Carolina’s Medicaid program under Title XIX of the Social Security Act. 42 C.F.R. § 431.10 (2008). Secretary Cansler bears responsibility for the implementation and management of the North Carolina Medicaid program, including in particular the State’s Medicaid waiver program, the Community Alternatives Program for Persons with Mental Retardation and Developmental Disabilities (CAP-MR/DD). Defendant Cansler is also responsible for the ultimate oversight of LME area directors to ensure that they provide publicly funded services in accordance with the law. See N.C.G.S. § 122C-111, et seq.
4. Defendant Karen Salacki is the Area Director of the Beacon Center, a Local Management Entity (LME), with a catchment area covering Edgecombe, Greene, Nash and Wilson Counties. Within the State and Medicaid-funded system of mental health, developmental disabilities, and substance abuse services in North Carolina, the LMEs are the locus of coordination for these services at the community level. See N.C.G.S. § 122C-101; N.C.G.S. § 112C-115.4(a). Defendant Salacki’s responsibilities include
2 Case 5:09-cv-00535-BO Document 4 Filed 12/11/09 Page 2 of 6

financial management and accountability for the use of State and local funds and information management for the delivery of publicly funded services. See N.C.G.S. § 112C-115.4(b)(7).
5. These Medicaid and state-funded services have allowed Plaintiffs to live successfully and independently in their own homes and to participate in family and community life; Plaintiff Marlo M. for more than five years and Plaintiff Durwood W. for approximately ten years.
6. On or about November 30, 2009, Defendant Karen Salacki, Area Director of the Beacon Center Local Management Entity (“LME”), notified Plaintiffs of her final decision to terminate the state funding Plaintiffs rely upon to remain in their own home as of December 15, 2009.
7. Pursuant to the North Carolina State Budget, Defendant Salacki has the discretion to maintain MR/MI state funds for Plaintiffs’ services. The budget legislation provides:
Except as otherwise provided in this section for former Thomas S. recipients, CAP-MR/DD recipients are not eligible for any State-funded services except for those services for which there is not a comparable service in the CAP-MR/DD waiver. The excepted services are limited to guardianship, room and board, and time-limited supplemental staffing to stabilize residential placement. Former Thomas S. recipients currently living in community placements may continue to receive State-funded services. Session Law 2009-451 § 10.21B (emphasis added). 8. Upon information and belief, Defendant Salacki or her predecessor have authorized Plaintiff Marlo M. for $64,298.40 per year for state-funded Supervised Living 811 services since 2005, which is the amount subject to termination on December 15, 2009. Upon information and belief, Plaintiff Marlo M.’s residential services provider has introduced cost-cutting measures that have decreased Plaintiff Marlo M.’s requested state
3
Case 5:09-cv-00535-BO Document 4 Filed 12/11/09 Page 3 of 6

funds to $51,548.95 per year. Under either budget, given that Plaintiff Marlo M.’s total proposed yearly budget (including state, federal, and personal funds) for services is $114,053.16, the loss of state funds halves Plaintiff Marlo M.’s budget for necessary services.
9. Upon information and belief, Defendant Salacki or her predecessor have authorized Plaintiff Durwood W. for $70,682.25 per year for state-funded Supervised Living 811 services since 2005, which is the amount subject to termination on December 15, 2009. Upon information and belief, Plaintiff Durwood W.’s residential services provider has introduced cost-cutting measures that have decreased Plaintiff Durwood W.’s requested state funds to $55,399.70 per year. Under either budget, given that Plaintiff Durwood W.’s total proposed yearly budget (including state, federal, and personal funds) for services is $111,582.44, the loss of state funds halves Plaintiff Durwood W.’s budget for necessary services.
10. As a result of these denials, Plaintiffs will be forced out of their community placement in their own homes into more restrictive congregate placements and/or institutions.
11. Defendant Cansler has failed to exercise his authority and direct Defendant Salacki to restore state-funded services for Plaintiffs and/or to direct the Division of Medical Assistance (DMA) or the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services (DMHDDSAS) to make changes to the service definitions in the CAP-MR/DD waiver to allow Plaintiffs to access funding for continuous, twenty-four hour, direct residential care through the waiver.
4 Case 5:09-cv-00535-BO Document 4 Filed 12/11/09 Page 4 of 6

12. Defendant Salacki has failed to properly exercise her discretion to assess Plaintiff’s individual needs and maintain their state MR/MI funding and keep them in their long-time community placements.
13. Currently, Plaintiffs are faced with two equally discriminatory options when their state-funded services terminate on December 15, 2009: (1) transition to congregate placements that cannot meet Plaintiffs’ need for constant care, support, and supervision or (2) enter institutions.
14. The Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, require that individuals with disabilities, such as Plaintiffs, be served in the least restrictive environment in the community when that option is cost-neutral as compared to an institution. Plaintiffs’ placements have been successful and cost-effective as compared to their care in an institution for many years.
15. Plaintiffs will suffer irreparable injury if the Defendants are permitted to eliminate or significantly reduce their funding and services. Plaintiffs will exchange the safety and independence of their individual community placements, where they have been able to receive regular and reliable treatment and care, for more restrictive and inappropriate institutional or congregate settings that do not meet their needs. In addition, the entire system of care that Plaintiffs have enjoyed for years will be dismantled and is in danger of being permanently lost.
WHEREFORE, Plaintiffs seek a Temporary Restraining Order and a Preliminary Injunction to enjoin Defendants from reducing or terminating Plaintiffs’ State-funded services on December 15, 2009, and to additionally or alternatively require Defendants to
5 Case 5:09-cv-00535-BO Document 4 Filed 12/11/09 Page 5 of 6

make reasonable modifications to the service definitions in the CAP-MR/DD waiver to allow Plaintiffs to fully access the waiver budget of $135,000.00, which would preserve Plaintiffs’ access to twenty-four hour care and supervision and maintain their community placements in their own homes.

Dated: December 11, 2009

Respectfully submitted,

/s/ John R. Rittelmeyer John R. Rittelmeyer john.rittelmeyer@disabilityrightsnc.org N.C. State Bar No. 17204
Jennifer L. Bills jennifer.bills@disabilityrightsnc.org N.C. State Bar No. 37467
Holly A. Stiles holly.stiles@disabilityrightsnc.org N.C. State Bar No. 38930
DISABILITY RIGHTS NC 2626 Glenwood Avenue, Suite 550 Raleigh, NC 27608 Phone: (919) 856-2195 Fax: (919) 856-2244
Attorneys for Plaintiffs

6 Case 5:09-cv-00535-BO Document 4 Filed 12/11/09 Page 6 of 6

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION No.5:09-CV-535-BO

MARLO M., by her guardians and next )

friends WILLIAM and CARLETTE

)

PARRIS, and DURWOOD W. by his

)

guardian and next friend WILLIE

)

WILLIAMS,

)

)

Plaintiffs,

)

)

v.

)

)

LANIER CANSLER, in his official capacity )

as Secretary of the Department of Health and)

Human Services, and KAREN SALACKI, in)

her official capacity as Area Director of The)

Beacon Center Local Management Entity, )

)

Defendants.

)

ORDER

This matter is before the Court on Plaintiffs' Motion for Temporary Restraining Order pursuant to Rule 65(b) of the Federal Rules of Civil Procedure. For the reasons discussed below, Plaintiffs' Motion for Temporary Restraining Order is GRANTED.
BACKGROUND Plaintiffs are adults with dual diagnosis of a developmental disability and mental illness that require twenty-four hours a day care and supervision. Plaintiffs have been receiving statefunded Supervised Living 811 services through North Carolina's Department of Health and Human Services (DHHS) Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, as well as health care and other services through North Carolina's Medicaid Assistance Program and Community Alternatives Program for Persons with Mental Retardation

Case 5:09-cv-00535-BO Document 7 Filed 12/14/09 Page 1 of 4

and Developmental Disabilities waiver (CAP-MRlDD). Defendant Karen Salacki is the Area Director of the Beacon Center, and has the authority
and discretion to authorize, deny, reduce, suspend, and terminate state-funded services for Plaintiffs. Defendant Lanier Cansler, Secretary of DHHS, is responsible for the management, oversight, and implementation of these funding programs, and the people who ensure that
publicly funded services are distributed in accordance with the law. See N.C.G.S. § 122C-lll, et seq. On or about November 30, 2009, Plaintiffs received final notification that the state funding
they rely upon to receive twenty-four hour care and remain in their homes, would be terminated effective December 15,2009. As a result, Plaintiffs would be forced out of their homes and into a more restrictive congregate placement or institution.
Plaintiffs have filed a Complaint alleging Defendants actions violate the Americans with Disabilities Act, Tittle II, 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. These laws require Defendants to administer government services and programs in a manner as to not deny individuals with disabilities benefits that they are entitled to under the law. Plaintiffs ultimately seek declaratory and injunctive relief to preserve their receipt of care in the community until adequate CAP-MRIDD or state-funded services are made available to them.
ANALYSIS The factors to be weighed before issuing a temporary restraining order are the same as those considered before issuance of a preliminary injunction. Ficker v. Tuohy, 305 F. Supp.2d 569,571 (S.D. Md. 2004). The U.S. Supreme Court has recently clarified that a "plaintiff must establish '[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest. '" Real Truth About Obama, Inc. v. FEe, 575 F.3d
Case 5:09-cv-00535-BO Document 7 Filed 12/14/09 Page 2 of 4

342,346 (4th Cir. Va. 2009) (quoting Winter v. NRDC, Inc., 129 S. Ct. 365,374 (2008). "[A]II four requirements must be satisfied." Id
The court finds that the balance of hardships in this case favors Plaintiffs. Without action, Plaintiffs will be removed from their homes and lose the services needed to function within the community on a day-to-day basis. This outweighs the harm to Defendants, who will only have to continue providing the coverage they have been providing to the Plaintiffs for more than four years. Under the ADA, "Qualified individuals with a disability" are those who "with or without reasonable modifications to rules, policies, or practices ... meet[] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12131(2). Plaintiffs are qualified individuals under the ADA. While a State may generally make its own reasonable assessment on the appropriateness of the use of a community-based program for an individual, prohibited discrimination includes "unjustified institutional isolation of persons with disabilities." Olmstead v. L. C. by Zimring, 527 U.S. 581, 600-02 (1999). Plaintiffs have been living in such community-based care for more than four years with State funding. This funding since 2005 would appear to be an acknowledgment by the State of the appropriateness of this environment for the Plaintiffs. Having shown a likelihood of success under the ADA; and the public having an interest in maintaining cost-effective treatment, the Plaintiffs have met the requirements for granting a TRO.
Case 5:09-cv-00535-BO Document 7 Filed 12/14/09 Page 3 of 4

CONCLUSION For the reasons stated above, Plaintiffs Motion for a Temporary Restraining Order is hereby GRANTED. Defendants, and all persons acting on their behalf, are hereby ORDERED to not reduce or terminate Plaintiffs' State-funded services on December 15, 2009, and to preserve Plaintiffs level of care and supervision, including allowing Plaintiffs to maintain their community placements in their homes. A hearing on Plaintiffs' Motion for Preliminary Injunction shall be held on December 28, 2009, in Raleigh, North Carolina.

4 SO ORDERED.

This

day of December, 2009.

~w.¥ T RRENCE W. BOYLE UNITED STATES DISTRICT JUDGE

Case 5:09-cv-00535-BO Document 7 Filed 12/14/09 Page 4 of 4

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

MARLO M., by her guardians and next friends WILLIAM and CARLETTE PARRIS, and DURWOOD W. by his, guardian and next friend WILLIE WILLIAMS,
Plaintiffs,
v.
LANIE CANSLER, in his official capacity as Secretary of the Department of Health and Human Services, and KAREN SALACKI, in her official capacity as Area Director of The Beacon Center Local Management Entity,
Defendants.

) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 5:09-cv-00535-BO ) ) ) ) ) ) ) ) )

UNITED STATES’ MEMORANDUM AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Case 5:09-cv-00535-BO Document 18 Filed 12/23/09 Page 1 of 20

TABLE OF CONTENTS Page
I. INTRODUCTION................................................................................................................1 II. SUMMARY OF FACTS.....................................................................................................2 III. ARGUMENT...................................................................................................................... 5
A. Plaintiffs Are Likely to Succeed on the Merits of their Title II Claim Alleging Defendants’ Termination of Plaintiffs’ Funding Puts Them at Risk of Institutionalization in Violation of the ADA...............................................7
B. Plaintiffs Are Likely to Suffer Irreparable Harm if Defendants Are Not Enjoined................................................................................13
C. The Balance of Hardship Tips in Plaintiffs’ Favor ...............................................15 D. Granting a Preliminary Injunction is in the Public Interest....................................16 IV. CONCLUSION..................................................................................................................17
Case 5:09-cv-00535-BO Document 18 Filed 12/23/09 Page 2 of 20

I. Introduction This lawsuit challenges defendants’ administration of government services and programs,
including major reductions in services that will force plaintiffs out of their community placements in order to receive necessary care. Plaintiffs have successfully resided in the community for years, and cuts to plaintiffs’ services will drive them into institutional settings that are likely to harm them. Defendants have provided such services in the community through a combination of state Medicaid waiver funding1 and state supplemental funds.2 However, a recent decision by Defendant Salacki has terminated plaintiffs’ state supplemental funding, leaving plaintiffs with inadequate supports to remain in their community. Defendants’ actions, which will drive plaintiffs out of integrated settings into segregated facilities, violate the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 and are in direct contravention of the requirement to integrate persons with disabilities into the community as mandated by the Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999).
Olmstead held that States are required to provide community-based treatment for individuals with disabilities “when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Olmstead, 527 U.S. at 607. A State can violate
1 State’s Medicaid Assistance Program and Community Alternatives Program for Persons with Mental Retardation and Developmental Disabilities waiver (CAP-MR/DD).
2 State-funded Supervised Living 811 services available through the North Carolina’s Department of Health and Human Services (DHHS) Division of Mental Health, Developmental Disabilities, and Substance Abuse Services.
Case 5:09-cv-00535-BO Document 18 Filed 12/23/09 Page 3 of 20

Olmstead’s integration mandate based on the manner it chooses to administer the services it provides to individuals with disabilities, including “plan[ning] the settings in which mental health services are provided, and allocat[ing] resources within the mental health service system.” Disability Advocates Inc. v. Paterson, 598 F.Supp.2d 289, 318 (E.D.N.Y. 2009).
The facts alleged in Plaintiffs’ Complaint demonstrate a likelihood of success on the merits of plaintiffs’ title II integration claim. Additionally, plaintiffs’ allegations have met the additional requirements for a preliminary injunction. It is likely that even short term placement in congregate setting or institutional setting during the pendency of this litigation will cause irreparable harm, the balance of hardships weighs in favor of plaintiffs, and granting this injunction is in the public interest. II. Summary of Facts
Plaintiffs Marlo M. and Durwood W. are adults with dual diagnoses of developmental disability and mental illness who require care and supervision twenty-four hours a day. Plaintiff Marlo M. is 39 years old and has been diagnosed with Anxiety Disorder, Mental Retardation, and Down Syndrome. (Complaint ¶¶ 1, 13.) Plaintiff Durwood W. is 49 years old and has been diagnosed with Psychotic Disorder NOS, Autistic Disorder, Severe Mental Retardation, and Cerebral Palsy. (Complaint ¶¶ 2, 16.) Because both plaintiffs have been diagnosed with both developmental disabilities and mental illness, they are part of a target population that makes them eligible to receive specially designated state supplemental funding. (Complaint ¶ 3.)
Both plaintiffs have been successfully living in the community with appropriate supports and services funded through a combination of Medicaid waiver funding and state supplemental funds. (Complaint ¶ 4.) Plaintiff Marlo M. has been living in the community for over five years
-2-
Case 5:09-cv-00535-BO Document 18 Filed 12/23/09 Page 4 of 20

and Plaintiff Durwood W. has been living in the community for more than a decade. (Complaint ¶ 4.) Plaintiff Marlo M.’s community placement is in an apartment that includes special modifications for her short stature. (Complaint ¶ 14.) Plaintiff Marlo M. receives support services in her home, including residential workers twenty-four hours a day. (Complaint ¶ 15.) Plaintiff Marlo M. is involved in the community and “enjoys grocery shopping, going to the drug store for magazines, walking around the mall for exercise and shopping, and going out to dinner with her family members each week.” (Parris Decl. ¶ 29.)
Plaintiff Durwood W. has been living in the community for approximately ten years. (Williams Decl. ¶ 15.) His community placement is an apartment. Before living in the apartment, he briefly lived in a small group home, but was discharged because the home could not accommodate his behavior. (Complaint ¶ 17.) Like Plaintiff Marlo M., Plaintiff Durwood W. receives services twenty-four hours a day. (Complaint ¶ 18.) Plaintiff Durwood W. “is very active...[he] likes to exercise at the hospital’s outdoor track. Durwood also likes sports, and enjoys going to high school football games. Durwood loves music, and enjoys outdoor concerts.” (Williams Decl. ¶ 10.)
The specific funding that allows plaintiffs to reside in the community comes from 1) the State’s Medicaid Assistance Program and Community Alternatives Program for Persons with Mental Retardation and Developmental Disabilities waiver (CAP-MR/DD), and 2) the State’s Department of Health and Human Services (DHHS) Division of Mental Health, Developmental Disabilities, and Substance Abuse Services. (Complaint ¶ 4.) DHHS is the “single state agency” responsible for administering and supervising the State’s Medicaid program, including the State’s CAP-MR/DD waiver. (Complaint ¶ 10.) Defendant Cansler is the Secretary of DHHS
-3-
Case 5:09-cv-00535-BO Document 18 Filed 12/23/09 Page 5 of 20

and thus bears responsibility for the administration and management of DHHS’ programs. (Complaint ¶ 10.) The State employs Local Management Entities (LMEs) to coordinate services on a local level. (Complaint ¶ 11.) Defendant Salacki is the Area Director of the Beacon Center LME and is responsible for the management and accountability of State and local funds. (Complaint ¶ 11.)
The State’s CAP-MR/DD waiver provides recipients with a maximum budget of $135,000 (based on the comparative cost to support an individual residing in an ICF-MR facility) to be used for home and community-based services. Both plaintiffs’ current service plans come in under this cap (at approximately $30,000 under the cost of institutional placements). (Complaint ¶¶ 39-41.) Even though plaintiffs’ total budgets fall well under the waiver cap, certain restrictions on services under the waiver mean that only a portion of needed services are funded by the waiver. (Complaint ¶ 42.) Because the waiver cannot fund the 24-hour services required by plaintiffs to live in the community, plaintiffs rely on supplemental state MR/MI funds. (Complaint ¶ 44; Barnes Decl. ¶¶ 19, 35.) The current requested supplemental state funds that would be needed to fill the gap between the service needs of the plaintiffs and the services provided under the waiver program are $51,548.95 for Plaintiff Marlo M. and $55,399.70 per year for Plaintiff Durwood W. (Complaint ¶¶ 47, 48.) Plaintiffs’ total budgets to remain in the community, including the necessary supplemental state funds, remain lower than the cost of institutional care. (Complaint ¶¶ 47, 48.)
The State funded services to the dually-diagnosed plaintiffs in appropriate communitybased settings under the system described above until mid-June 2009. At that point, the Complaint alleges that Defendant Salacki terminated Plaintiff Marlo M.’s and Durwood W.’s
-4-
Case 5:09-cv-00535-BO Document 18 Filed 12/23/09 Page 6 of 20

authorizations for supplemental services.3 (Complaint ¶22, 23.) After a brief period of shortterm extensions for these services, service authorization was set to expire on December 15, 2009. (Complaint ¶ 28.) Because plaintiffs’ needs require a high level of care, including round-theclock supervision that cannot be provided with the services authorized under the waiver alone, plaintiffs “will be forced to locate alternative congregate or institutional placements on December 15, 2009.” (Complaint ¶ 29.) Due to the uncertainty over her funding, Plaintiff Marlo M. no longer resides in her apartment and has been moved to a congregate placement. (Complaint ¶ 15.) Further, given her high level of needs, it is highly likely that Marlo M. will be unable to live in this congregate placement and be forced to move to an institutional setting. (Complaint ¶ 32.) Plaintiff Durwood W. currently remains in his community placement; however, plaintiffs allege that the termination of supplemental state funding will force him out of the apartment and into an institutional setting. (Complaint ¶ 31.) Prior attempts to place Durwood W. in congregate settings have failed, and thus it is almost certain that he will need to be placed in an institution unless services in the community are restored for him. (Complaint ¶ 31.) III. Argument
In determining whether to grant a motion for preliminary injunction, the trial court must consider (1) the likelihood of success on the merits; (2) whether plaintiffs are likely to suffer
3 Defendant Salacki’s decision to terminate plaintiffs’ services was not required by statute, and instead was at her discretion. The current State budget, SB § 10.21B, SL 2009-451 § 10.21B expressly states that “Former Thomas S. Recipients currently living in community placements may continue to receive State-funded services.” (Complaint ¶ 65.) A DMHDDSAS “CAP Implementation Update” reiterated this notion: “There is an exception for former Thomas S. Consumers. Those individuals may continue to receive a broad array of State-funded consumers [sic], based upon the LME’s authorization...” (Complaint ¶ 66.)
-5-
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irreparable harm without the grant of a preliminary injunction; (3) if the balance of hardship tips
in plaintiffs’ favor; and (4) whether the injunction is in the public interest. Winter v. Natural Res.
Def. Council, Inc., 555 U.S. ___, ___, 129 S. Ct. 365, 374 (2008); Real Truth about Obama, Inc.
v. Federal Election Commission, 575 F.3d 342, 346 (4th Cir. 2009); In re Microsoft Corp.
Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003). Plaintiffs’ allegations satisfy the
requirements of a preliminary injunction, showing (1) a likelihood of success on the merits of
their title II claim;4 (2) a likelihood that even short term placement in congregate setting or
institutional setting during the pendency of this litigation will cause irreparable harm; (3) that the
4 Title II was modeled closely on Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, which prohibits discrimination on the basis of disability in federally conducted programs and in all of the operations of public entities that receive federal financial assistance. Title II provides that “[t]he remedies, procedures, and rights” set forth under Section 504 shall be available to any person alleging discrimination in violation of title II. 42 U.S.C. 12133; see also 42 U.S.C. 12201(a) (ADA must not be construed more narrowly than Rehabilitation Act). The ADA directs the Attorney General to promulgate regulations to implement title II, and requires those regulations to be consistent with preexisting federal regulations that coordinated federal agencies’ application of Section 504 to recipients of federal financial assistance, and interpreted certain aspects of Section 504 as applied to the federal government itself. 42 U.S.C. 12134(a)(b). Title II thus extended Section 504’s pre-existing prohibition against disability-based discrimination in programs and activities (including state and local programs and activities) receiving federal financial assistance or conducted by the federal government itself to all operations of state and local governments, whether or not they receive federal assistance. The ADA and the Rehabilitation Act are generally construed to impose the same requirements. See Baird ex rel. Baird v. Rose, 192 F.3d 462, 468-69 (4th Cir, 1999); Davis v. University of North Carolina, 263 F.3d 95, 99 (4th Cir. 2001); Crawford v. Union Carbide Corp., 202 F.3d 257 (4th Cir. 1999). This principle follows from the similar language employed in the two acts. It also derives from the Congressional directive that implementation and interpretation of the two acts “be coordinated to prevent[ ] imposition of inconsistent or conflicting standards for the same requirements under the two statutes.” Baird, 192 F.3d at 468 (citing 42 U.S.C. § 12117(b)) (alteration in original). See also, Yeskey v. Com. of Penn. Dep’t of Corrections, 118 F.3d 168, 170 (3d Cir. 1997) (“[A]ll the leading cases take up the statutes together, as we will.”), aff’d, 524 U.S. 206 (1998).
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balance of hardships weighs in favor of plaintiffs; and (4) granting an injunction is in the public interest.5
A. Plaintiffs Are Likely to Succeed on the Merits of their Title II Claim Alleging Defendants’ Termination of Plaintiffs’ Funding Puts Them at Risk of Institutionalization in Violation of the ADA
Congress enacted the ADA in 1990 to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Title II of the ADA prohibits discrimination in access to public services by requiring 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. In Olmstead, the Supreme Court construed the ADA’s integration mandate and concluded that the discrimination forbidden under title II of the ADA includes “unnecessary segregation” and “[u]njustified isolation” of the disabled. Olmstead v. LC ex rel. Zimring, 527 U.S. 581, 582, 600601 (1999).
The integration mandate specifies that persons with disabilities receive services in the “setting appropriate to their needs.” 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.”). The “most integrated setting” is defined as “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. pt. 35 app. A at page 571 (2009); Olmstead, 527 U.S. at 592. This
5This court has already granted Plaintiffs’ Motion for Temporary Restraining Order and the court’s Order correctly analyzed the concerns involved in this title II claim. (December 14, 2009 Order.)
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mandate advances one of the principle purposes of title II of the ADA, ending the isolation and segregation of disabled persons. See Arc of Wash. State Inc. v. Braddock, 427 F.3d 615, 618 (9th Cir.2005).
Other courts to review Olmstead claims have consistently analyzed these cases within the framework of the typical requirements for an ADA title II claim. The general foundational requirements of a title II claim require a plaintiff to allege that he or she (1) is a “qualified individual with a disability”; (2) was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability. See Townsend v. Quasim, 328 F.3d 511, 517 n.3 (9th Cir.2003); Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir.2003); Disability Advocates, Inc. v. Paterson, 598 F.Supp.2d 289, 311 (E.D.N.Y. 2009). So, for example, if a state fails to provide services to a qualified person in a community-based setting, as opposed to a nursing home, a plaintiff can present a title II violation. See Id. at 517; Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1181-82 (10th Cir.2003) (imposition of cap on prescription medications placed on participants in community-based program a high risk for premature entry into nursing homes in violation of the ADA).
Furthermore, a plaintiff need not wait until he is placed in the institutional setting: the risk of institutionalization itself is sufficient to demonstrate a violation of title II. Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (2003). In Fisher, the Tenth Circuit rejected defendants’ argument that plaintiffs could not make an integration mandate challenge until they were placed in the institutions. The Court reasoned that the protections of the integration
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mandate “would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation . . . .nothing in the Olmstead decision supports a conclusion that institutionalization is a prerequisite to enforcement of the ADA’s integration requirements.” Id. at 1181.
The Court went on to conclude that “Olmstead does not imply that disabled persons, who, by reason of a change in state policy, stand imperiled with segregation, may not bring a challenge to the state policy under the ADA’s integration regulation without first submitting to institutionalization.” Id. at 1182. See also M.A.C. v. Betit, 284 F.Supp. 2d 1298, 1309 (D. Utah 2003) (adopting Fisher’s position that a plaintiff need not currently be institiutionalized to bring integration regulation claim); Brantley v. Maxwell-Jolly, No. 09-3798 (N.D.Cal. Sep. 10, 2009) (allowing plaintiffs to bring title II claim that statutory cuts in adult day health care services would put individuals currently residing in community at risk of institutionalization); V.L. v. Wagner, No. 09-04668 (N.D. Ca. Oct. 23, 2009) (granting preliminary injunction prohibiting state from cutting plaintiffs’ services where court determined the cut placed class members at a severe risk of institutionalization); Ball v. Rogers, No. 00-67 (D. Ariz. April 24, 2009) (holding that failure to provide plaintiffs with needed services “threatened Plaintiffs with institutionalization, prevented them from leaving institutions, and in some instances forced them into institutions in order to receive their necessary care” in violation of the ADA and Rehabilitation Act); Mental Disability Law Clinic v. Hogan, No. 06-6320 (E.D.N.Y. Aug. 28, 2008) (“even the risk of unjustified segregation may be sufficient under Olmstead ”).
Plaintiffs here have alleged such high risk for entry into segregated institutions and the
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consequential threat to their health that such institutionalization presents. Plaintiff Marlo M. has already been moved out of her community-based setting into a congregate facility and defendants themselves have suggested that she be placed in an institution. (Parris Decl. ¶ 26.) Plaintiff Durwood W. is currently still in the community, but the proposed cuts means he will need to leave his current setting and, in light of his failures in group home settings, will ultimately be at a high risk of institutionalization. (Complaint ¶ 31.) The availability of the supplemental state funding is critical to plaintiffs’ physical and mental health and their continuing ability to remain in the community, as opposed to being isolated in a nursing home or other institution: “Plaintiffs require twenty-four hour care because of their disabilities. Plaintiff Marlo M. requires one-on-one staffing due to her mental illness, mental retardation and congenital heart condition. Plaintiff Durwood W. requires one-on-one staffing due to his uncontrollable and erratic behaviors, and his mental retardation.” Mem. in Supp. of Preliminary Injunction at 5. Plaintiffs have sufficiently alleged for purposes of the instant motion that the termination in state supplemental funds will place them at serious risk of institutionalization.
The State of North Carolina has already determined that plaintiffs are qualified to receive services in less restrictive settings. In fact, they have been providing these very services in community settings for many years. (Complaint ¶ 4.) Despite the State’s long history of supporting plaintiffs in integrated settings, defendants have recently decided to cut the supplemental state funding that allows plaintiffs to live in the community. Such cuts will have the unfortunate effect of forcing plaintiffs into institutional settings in order to receive the services they need. The Court in Olmstead explained the contours of the ADA’s integration mandate, recognizing that “unjustified isolation . . . [is] discrimination based on disability.” Id. at 597. As
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the Court explained, “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life . . . and institutional confinement severely diminishes individuals’ everyday activities.” Olmstead, 527 U.S. at 600, 601. A State’s obligation to provide services in the most integrated setting is not unlimited, however, and may be excused in instances where a state can prove that the relief sought would result in a “fundamental alteration” of the state’s service system. Id. at 601-03. While a state may attempt to claim budgetary shortages as alleviating their responsibilities under Olmstead, the Tenth Circuit held in Fisher v. Oklahoma Health Care Authority that “the fact that [a state] has a fiscal problem, by itself, does not lead to an automatic conclusion” that providing the community services that plaintiffs sought would be a fundamental alteration. Fisher, 335 F.3d 1175, 1181 (10th Cir. 2003)
The Tenth Circuit observed further that Congress was aware when it passed the ADA that “‘[w]hile the integration of people with disabilities will sometimes involve substantial short-term burdens, both financial and administrative, the long-range effects of integration will benefit society as a whole.’ ... If every alteration in a program or service that required the outlay of funds were tantamount to a fundamental alteration, the ADA’s integration mandate would be hollow indeed.” Fisher, 335 F.3d at 1183. The fundamental alteration determination involves a more searching analysis “involv[ing] a specific, fact-based inquiry ... taking into account Defendants’ efforts to comply with the integration mandate with respect to the population at issue and the fiscal impact of the requested relief, including the impact on the State’s ability to provide services for other individuals with mental illness.” Disability Advocates, Inc. v. Paterson, No. 03-3209 (E.D.N.Y. Sep. 8, 2009).
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Plaintiffs allege facts supporting a cost-savings that would result from the state’s decision
to provide services for plaintiffs in the community. The approximate cost of institutional care for
each plaintiff is estimated at $135,000 per year. (Complaint ¶ 39.) The Complaint alleges that the
costs for appropriate services for Plaintiff Marlo M.’s care in the community to provide
approximately a $33,000 savings over the cost of institutional care. (Complaint ¶ 40.) Similarly,
the costs for Plaintiff Durwood W.’s services in the community amounts to approximately
$30,000 a year in savings over the cost of institutional care. (Complaint ¶ 41.) The alleged cost-
savings for care in the community suggest that a fundamental alteration argument by defendants
would be unsuccessful. (Complaint ¶¶ 47, 48, 61.)
In Disability Advocates Inc. v. Paterson, 598 F. Supp. 2d 289, 319 (E.D.N.Y. 2009), the
court held that the defendants’ allocation of state resources favoring institutional settings over
community-based settings supported an actionable title II claim. The court found “if Defendants
allocated their resources differently, [plaintiffs] could receive services in a more integrated
setting.” Id. at 319. The court went on to state:
Title II of the ADA applies to the claims in this case. An Olmstead claim concerns a public entity’s obligation to make reasonable modifications to its service system to enable individuals with disabilities to receive services in the most integrated setting appropriate to their needs. Defendants...administer the State’s mental health service system, plan the settings in which mental health services are provided, and allocate resources within the mental health service system.... Discrimination, in the form of unjustified segregation of individuals with disabilities in institutions, is thus prohibited in the administration of state programs. The statutory and regulatory framework governing the administration, funding, and oversight of New York’s mental health services--including the allocation of State resources...at issue here--involves “administration” on the part of Defendants.
(emphasis added) Id. at 317-18.
In finding a violation of title II, the court in Disability Advocates focused on the way in
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which the State administered its mental health service system by “plan[ning] the settings in which mental health services are provided, and allocat[ing] resources within the mental health service system.” Id. at 318. The claims here involve the very same type of request for modifications to defendants’ administration of mental health services as the court evaluated in Disability Advocates. Here, defendants can make a reasonable modification to their existing administration of services by choosing to fund care in the community setting, rather than the more expensive cost of caring for plaintiffs in unnecessarily segregated institutional settings. Defendants had been administering such services to the individuals involved in this case for lengthy periods of time, demonstrating their ability to administer services in a manner that complies with the integration regulation without causing a fundamental alteration to the state’s operation of its programs. The allegations in plaintiffs’ claim thus state a claim for a title II violation under the ADA in a straight-forward application of the Olmstead principle.
B. Plaintiffs Are Likely to Suffer Irreparable Harm if Defendants Are Not Enjoined
The services plaintiffs receive in the community to support their physical and mental health needs are critical to ensuring that their conditions remain stable and enable them to remain in the community. Other courts have held that reduction or elimination of public medical benefits irreparably harms the participants in the programs being cut. See Brantley v. Maxwell-Jolly, No. 09-3798 (N.D.Cal. Sep. 10, 2009); Beltran v. Myers, 677 F.2d 1317, 1322 (9th Cir. 1982) (holding that possibility that plaintiffs would be denied Medicaid benefits sufficient to establish irreparable harm); Newton-Nations v. Rogers, 316 F.Supp.2d 883, 888 (D. Ariz. 2004) (citing Beltran and finding irreparable harm shown where Medicaid recipients could be denied medical care as a result of their inability to pay increased co-payment to medical service providers);
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Edmonds v. Levine, 417 F.Supp.2d 1323, 1342 (S.D. Fl. 2006) (finding that state Medicaid
agency's denial of coverage for a off-label use of prescription pain medication would irreparably
harm plaintiffs).
There is no question that removing plaintiffs from the stable community settings they have
been successfully living in for lengthy periods of time will disrupt their current status and have a negative consequences on their conditions.6 The physical and mental health conditions of both
plaintiffs heighten the disruptive effect of inappropriate placements such that even a temporary
placement may lead to dire consequences.
The specially equipped apartment that Plaintiff Marlo M. has lived in will be leased to
another individual and it is unlikely that she will be able to find another community placement
that is as well suited to her needs. “Marlo is especially fortunate to reside in a unique apartment
that is suited to her short stature, including counter-tops, sinks, and furniture that are lower than
‘normal’ height....The particulars of Marlo’s furnishings and physical environment are important
as they have a direct impact on her mental state and behavior.” (Parris Decl. ¶¶ 14,15.) Further,
Plaintiff Marlo M.’s mental and physical health are at a high risk of deteriorating should she lose
6 In gauging the harm that the moving party will incur should a preliminary injunction not be granted, courts have looked at the specific nature of the plaintiff in relation to the injury that is anticipated. For instance, in Nieves-Marquez v. Commonwealth of Puerto Rico, et al, 353 F.3d 108, 121-22 (1st Cir. 2003), in determining that plaintiff would suffer irreparable harm without a sign language interpreter under his IDEA claim, the court considered the rate at which a child develops: “‘a few months can make a world of difference’ in harm to a child’s educational development.” The court and found that plaintiff student was “destined to spend a silent, fruitless year in school with only the most remote hopes of being educated” absent a preliminary injunction requiring an interpreter. Id. at 122. Similarly, time spent in institutional care where the individual has a demonstrated history of loss of capacity as a result is enough to satisfy the requirement for a showing of harm sufficient to issue a preliminary injunction to maintain the status quo while the court reviews the case more fully.
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the one-on-one services she currently receives. (Parris Decl. ¶¶ 14,15.) The provider currently addressing Marlo M.’s needs stated that “[p]art of maintaining Marlo’s health is to maintain her mental health. In other words, if Marlo becomes overly stressed or anxious, her health declines.” (Barnes Decl. ¶ 15.) Plaintiff Durwood W., too, faces harm should he be moved out of his community setting:
Plaintiff Durwood W. will no longer receive the one-on-one supervision that he requires in his new placement. Plaintiff Durwood W. required placement in his own home because of his inability to recognize others’ personal space or personal things, his tendency to wander away, and his displays of extreme excitement which can be very jarring and unsettling for those around him. In the past, when Plaintiff Durwood W. lived in congregate and institutional settings, these behaviors were very unpleasant for the other residents of the facility, and resulted in his discharge from a group home. (Complaint ¶ 31.) Furthermore, Plaintiff Durwood W. has previously been placed in a congregate setting. (Complaint ¶ 17.) This placement failed, and the State then placed him in the community setting to alleviate the problems he encountered in the congregated setting. (Complaint ¶ 17.) To repeat this cycle of improper placement would neglect the prior history of Defendants’ long relationship with Plaintiff Durwood W. and would ignore the valuable knowledge and experience about what environments can be successful for Plaintiff Durwood W. Such imprudence poses a real threat for Plaintiff Durwood W.’s well-being. C. The Balance of Hardship Tips in Plaintiffs’ Favor The hardship to defendants of restoring the state supplemental funding that has allowed plaintiffs to remain in the community for many years is outweighed by the harm that will be inflicted on plaintiffs should they be forced out of their community settings during the pendency of this litigation. The State has paid for plaintiffs to reside in these settings for more than four
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years (and more than a decade in Plaintiff Durwood W.’s case)—and to suggest now that the exact same services would create a great hardship to the defendants belies the long history of funding that has been repeatedly approved by the state.
D. Granting a Preliminary Injunction is in the Public Interest There is a strong public interest in granting a preliminary injunction to allow plaintiffs to remain in their community settings. There is a public interest in eliminating the discriminatory effects that arise from segregating persons with disabilities into institutions when they can be appropriately placed in community settings. As noted in Olmstead v. L.C., the unjustified segregation of persons with disabilities can stigmatize them as incapable or unworthy of participating in community life.7 Olmstead 527 U.S. at 600. Further, there is a public interest in ensuring that the statutory requirements of the ADA are fulfilled: that the State make available to persons with disabilities the same services that they provide to non-disabled persons. See 42 U.S.C. 12132. And while 10 years have passed since the Olmstead case was decided, the same concerns driving the outcome of the case and underlying the ADA are present today: a goal of “full participation, independent living, and economic self-sufficiency for such individuals.” 42 U.S.C. 12101(a)(8). The anti-discrimination laws upon which plaintiffs rely reflect important public policy commitments to equality and access. The statutes and regulations embody strong statements of public policy prohibiting discrimination and
7 See also U.S. Amicus Brief in Olmstead at 16-17, citing to 136 Cong. Rec. H2603 (daily ed. May 22, 1990) (statement of Rep. Collins) (“To be segregated is to be misunderstood, even feared,” and “only by breaking down barriers between people can we dispel the negative attitudes and myths that are the main currency of oppression.”) The segregation of plaintiffs, even if only for the duration of the litigation “has the potential to engender or perpetuate negative attitudes, and when the segregation is unnecessary for treatment purposes, it is especially likely to result from and reinforce negative attitudes.” United States Amicus Brief in Olmstead v. LC at 17.
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differential treatment on the basis of disability. IV. Conclusion
Based upon the foregoing arguments and authority cited in support thereof, the United States, as amicus curiae, urges this court to grant Plaintiffs’ Motion for Preliminary Injunction. Plaintiffs have demonstrated that the Complaint satisfies all the requirements for this court to grant a preliminary injunction, and as such the court has authority to grant Plaintiffs the relief that they seek in this matter.
Respectfully submitted this the 23rd day of December 2009, ERIC H. HOLDER, JR.
Attorney General of the United States

GEORGE E. B. HOLDING United States Attorney Eastern District of North Carolina
R. A. RENFER, JR. Chief, Civil Division Eastern District of North Carolina 310 New Bern Avenue, Suite 800 Raleigh, NC 27601-1462 Telephone: (919) 856-4530

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
SAMUEL R. BAGENSTOS Deputy Assistant Attorney General Civil Rights Division
/s/ David W. Knight JOHN L. WODATCH, Chief PHILIP L. BREEN, Special Legal Counsel RENEE M. WOHLENHAUS, Deputy Chief DAVID W. KNIGHT, Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA Washington, D.C. 20530 Telephone: (202) 307-0663 Facsimile: (202) 307-1198 david.w.knight@usdoj.gov
Counsel for Amicus Curiae United States of America
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Case 5:09-cv-00535-BO Document 18 Filed 12/23/09 Page 19 of 20

CERTIFICATE OF SERVICE I hereby certify that on December 23, 2009, a copy of foregoing was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System.
/s/ David W. Knight DAVID W. KNIGHT Trial Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. - NYA Washington, D.C. 20530 Telephone: (202) 307-0663 Facsimile: (202) 307-1198 david.w.knight@usdoj.gov Counsel for Amicus Curiae United States of America
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 IN THE UNITED STATES DISTRICT COURT
 FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION
 NO. 5:09-CV-535-BO


MARLO M., by her guardians and next

)

friends WILLIAM and CARLETTE

)

PARRIS, and DURWOOD W. by his

)

guardian nex next friend WILLIE

)

WILLIAMS,

)

)

PLAINTIFFS,

)

)


v.

)

)

LANIER CANSLER, in his official capacity )

as Secretary of the Department of Health and)

Human Services, and KAREN SALECKI, in )

her official capacity as Area Director of the )

Beacon Center Local Management Entity. )

)


DEFENDANTS.

)


~----)

ORDER

This matter is before the court with respect to Plaintiffs' Motion for Preliminary Injunction

[DE #4]. Plaintiffs asked the court to enjoin Defendants from reducing or terminating state funding

to preserve Plaintiffs' care and placement in their homes pending resolution of the lawsuit. The

parties fully briefed the issue. In addition, the court considered the amicus curiae brief filed by the

United States in support of Plaintiffs' motion. I A hearing on the motion was held before the court

on December 28, 2009. At the conclusion of the hearing, the court ruled from the bench that

Plaintitfs' Motion for Preliminary Injunction [DE # 14] was GRANTED. In addition to the reasons

stated from the bench, the court files this order in support of its ruling.

BACKGROUND

Plaintiffs are adults who suffer from a variety ofdevelopmental disabilities and mental illness

I The court previously granted the United States' motion to participate as amicus curiae. SeeDE#17.
Case 5:09-cv-00535-BO Document 35 Filed 01/15/10 Page 1 of 5

that require twenty-four hour care and supervision a day. Defendant Karen Salacki is the Area Director of the Beacon Center, an entity which oversees the state funding used to provide services for PlaintitTs. Defendant Lanier Cansler is the Secretary of the Department of Health and Human Services, and is responsible for the management, oversight, and implementation of state funding used to provide services for Plaintiffs.
Through a combination of federal and state funding, Plaintiff Marlo M. has been living in her own home for a period of more than four years, and Durwood W. has been living in his own home for a period of more than ten years. On or about November 30,2009, Plaintiffs received notice the state funding they rely upon to remain in their homes would be terminated effective December 15.2009, forcing them into group or institutional housing. On December 11,2009, Plaintiffs filed the complaint in this action. The complaint alleges the termination of funding by Defendants that enables Plaintiffs to remain in their homes violates the Americans with Disabilities Act ("ADA"), Title II, 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Also on December 11 th, Plaintiffs filed their request for a temporary restraining order and preliminary injunction. On December 14,2009, the court granted a temporary restraining order which remained in effect until the court granted Plaintiffs' request for the preliminary injunction at the conclusion of the hearing on December 28th. As noted above, the United States has been granted leave to participate in the action as amicus curiae and has filed in support of Plaintiffs.
DISCUSSION '"A preliminary injunction is an extraordinary and drastic remedy." Munafv. Green, 128 S. Ct. 2207, 2219 (2008) (internal quotations omitted). A movant must establish four elements before a preliminary injunction may issue: 1) he is likely to succeed on the merits; 2) he is likely to suffer irreparable harm in the absence of preliminary relief; 3) the balance of equities tips in his favor; and
2
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4) an injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365. 374 (2008). Prior to the decision in Winter, the Fourth Circuit applied a "hardship balancing test" for preliminary injunctions under which a movant was not required to show a likelihood ofsuccess, but only a possibility of success. Since the ruling in Winter, the Fourth Circuit has acknowledged the balance-of-hardship test no longer applies, and "the standard articulated in Winter governs the issuance of preliminary injunctions ...." The Real Truth About Obama, Inc. v. Federal Election Commission, 575F.3d 342,347 (4th Cir. 2009).
Applying the standard in Winters, the court finds Plaintiffs have established they are entitled to a preliminary injunction. 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 any such entity." Discrimination prohibited under the ADA includes "unnecessary segregation" and "unjustified institutional isolation of personal disabilities." Olmstead v. L.e., 527 U.S. 581, 600-02 (1999). A State is required to provide community-based services for persons with disabilities deemed eligible based on the reasonable assessments of the State's professionals. Id. at 602. In accordance with the goals of the ADA and the Rehabilitation Act, the State shall provide services in the most integrated setting possible. See ~ Olmstead, 527 U. S. at 591-92. The State must make reasonable modifications to comply, but are exempted from this responsibility when it would require "fundamental alteration" of the States' services or programs. Id.
At this juncture, Plaintiffs present a strong case that their funding is being terminated by Defendants in violation of the ADA. There is no question Plaintiffs, who have been successfully living in their own homes for numerous years, are deemed eligible for community-based living by the State's experts. Termination of funding by Defendants will force Plaintiffs from their present
3
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living situations, in which they are well integrated into the community, into group homes or institutional settings. This decision to terminate funding does not appear to be supported by legal justification recognized under the ADA. The record does not indicate the State will have to make a fundamental alteration of the State's services to maintain Plaintiffs in the present community setting. Consequently, Plaintiffs have shown a reasonable likelihood of success on the merits.
PlaintifTs have also clearly demonstrated they will suffer irreparable harm. Plaintiffs, who have a variety of mental illnesses and developmental disabilities, have lived successfully in their community based apartments. In the absence of an injunction, both Plaintiffs will lose funding and be forced from these community settings. The evidence at this point is strong that Plaintiffs will suffer regressive consequences if moved, even temporarily. Plaintiffs have behavioral and special needs, and benefit from a stable environment and personalized treatment. Information in the record indicates they each have conditions or behaviors which make them poor candidates for group housing. With respect to Durwood W., the facts show he was placed in his present living situation after he failed in, and was discharged from, a group home because of his inability to conform his behavior. It appears that if forced from their present settings, both Plaintiffs face a substantial risk of institutionalization. In addition, Marlow M. 's apartment is uniquely suited to her physical needs, designed with low counter tops and other modifications to accommodate a person of short stature. Should she be removed during the pendency of the lawsuit and prevail, there is no indication the apartment or a similar one will be available for her.
In contrast, the harm to Defendants if an injunction is granted is at most slight. With an injunction, Defendants will only have to maintain the funding they have provided to Plaintiffs for years and which they have authorized year after year in the past. Further, the information in the record suggests that maintaining Plaintiffs' current level of services in their community based
4
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settings presents an overall cost savings per year to alternative placements.

Finally, the public interest clearly weighs in favor of an injunction in this case. First, the

public interest lies with upholding the law and having the mandates of the ADA and Rehabilitation

Act enforced. As Plaintiffs have shown a likelihood of success on the merits, the public interest lies

with preserving the funding and prohibiting what appears to be a violation of the law. Second, as

discussed above, the information presently before the court suggests that maintaining Plaintiffs in

their apartments will cost less than the alternative care proposed by Defendants. As the funding

originates from tax dollars, the public interest clearly lies with maintaining Plaintiffs in the setting

that not only fulfills the important goals of the ADA, but does so by spending less for Plaintiffs' care

and treatment.

Accordingly, Plaintiffs have established all four elements showing they are entitled to the

extraordinary remedy ofa preliminary injunction. As held at the December 28th hearing, Plaintiffs'

Motion for Preliminary Injunction [DE #4J is GRANTED.

11- This the

day of January 2010.

TE RENCE W. BOYLE UNITED STATES DISTRICT J

Case 5:09-cv-00535-BO Document 35 Filed 01/15/10 Page 5 of 5 5


 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
5:09-cv-535-BO
MARLO M., by her guardians and next Friends, WILLIAM and CARLETTE PARRIS, and DURWOOD W., by his guardian and next Friend WILLIE WILLIAMS,

Plaintiffs,

v.
LANIER CANSLER, in his official capacity as Secretary of the Department of Health and Human Services, and KAREN SALACKI, in her official capacity as Area Director of the Beacon Center Local Management Entity,

STIPULATION OF VOLUNTARY DISMISSAL WITH PREJUDICE

Defendants.

NOW COME the parties to this action, by and through their undersigned counsel and

pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure, and hereby stipulate that this

action and all claims in this action are DISMISSED WITH PREJUDICE.

The parties further stipulate and agree through their respective counsel that they shall

bear their own costs and attorneys’ fees. This the 13th day of June, 2011.

DISABILITY RIGHTS NC

ROY COOPER, Attorney General

/s/John R. Rittelmeyer John R. Rittelmeyer N.C. State Bar No. 17204 Jennifer L. Bills N.C. State Bar No. 37467 2626 Glenwood Avenue, Suite 550 Raleigh, NC 27608 (919) 856-2195 (Telephone) (919) 856-2244 (Facsimile) john.rittelmeyer@disabilityrightsnc.org Attorneys for Plaintiffs

/s/Lisa G. Corbett Lisa G. Corbett Assistant Attorney General N.C. State Bar No. 15877 NC Department of Justice Post Office Box 629 Raleigh, NC 27602-0629 (919) 716-6880 (Telephone) (919) 716-6756 (Facsimile) lcorbett@ncdoj.gov Attorneys for Defendant Lanier Cansler

Case 5:09-cv-00535-BO Document 50 Filed 06/13/11 Page 1 of 2

POYNER SPRUILL LLPL /s/Wilson Hayman Wilson Hayman N.C. State Bar No. 8805 Christopher P. Brewer N.C. State Bar No. 6052 Post Office Box 1801 Raleigh, NC 27602-1801 (919) 783-6400 (Telephone) (919) 783-1075 (Facsimile) whayman@poynerspruill.com cbrewer@poynerspruill.com Attorneys for Defendant Karen Salacki
Case 5:09-cv-00535-BO Document 50 Filed 06/13/11 Page 2 of 2

 
 Case: 5:09-cv-535 As of: 02/01/2013 01:56 PM EST 1 of 6
CLOSED,MEDIATION,STAYED,USMJ Gates
U.S. District Court EASTERN DISTRICT OF NORTH CAROLINA (Western Division)
CIVIL DOCKET FOR CASE #: 5:09−cv−00535−BO

M. et al v. Cansler et al Assigned to: District Judge Terrence W. Boyle Cause: 42:12101 The Americans with Disabilities Act of 1990
Plaintiff

Date Filed: 12/11/2009 Date Terminated: 06/13/2011 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Marlo M. by her guardians and next friends William and Carlette Parris

represented by Jennifer Leah Bills Disability Rights of North Carolina 2626 Glenwood Ave., Suite 550 Raleigh, NC 27608 919−856−2195 Fax: 919−856−2244 Email: jennifer.bills@disabilityrightsnc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

John R. Rittelmeyer Disability Rights North Carolina 2626 Glenwood Ave. Suite 550 Raleigh, NC 27608 919−856−2195 Fax: 919−856−2244 Email: john.rittelmeyer@disabilityrightsnc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Durwood W. by his guardian and next friend Willie Williams

represented by Jennifer Leah Bills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John R. Rittelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Lanier Cansler in his official capacity as Secretary of the Department of Health and Human Services
Defendant Karen Salacki in her official capacity as Area Director

represented by Lisa G. Corbett N. C. Dept. of Justice P.O. Box 629 Raleigh, NC 27602 919−716−6860 Fax: 716−6756 Email: lcorbett@ncdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher P. Brewer Poyner Spruill LLP

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of the Beacon Center Local Management Entity

301 Fayetteville St., Suite 1900 P. O. Box 1801 Raleigh, NC 27601 919−783−2891 Fax: 919−783−1075 Email: cbrewer@poynerspruill.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wilson Hayman Poyner &Spruill P.O. Box 10096 Raleigh, NC 27605−0096 919−783−6400 Fax: 919−783−1075 Email: whayman@poynerspruill.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus UNITED STATES OF AMERICA

represented by David W. Knight United States Department of Justice 1425 New York Ave., NW, 4th Floor Washington, DC 20005 202−616−2110 Fax: 202−307−1198 Email: david.w.knight@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/11/2009
12/11/2009 12/11/2009 12/11/2009
12/11/2009 12/11/2009
12/11/2009 12/14/2009 12/14/2009

# Docket Text
1 COMPLAINT against all defendants ( Filing fee $ 350 receipt number 04170000000001049868.), filed by Marlo M., Durwood W.. (Attachments: # 1 Summons for Def. Cansler, # 2 Summons for Def. Salacki, # 3 Civil Cover Sheet) (Rittelmeyer, John) (Entered: 12/11/2009)
2 FINANCIAL DISCLOSURE STATEMENT by Marlo M.. (Rittelmeyer, John) (Entered: 12/11/2009)
3 FINANCIAL DISCLOSURE STATEMENT by Durwood W.. (Rittelmeyer, John) (Entered: 12/11/2009)
4 MOTION for Temporary Restraining Order and Preliminary Injunction by Marlo M., Durwood W.. (Attachments: # 1 Exhibit Declaration of Carlette Parris, # 2 Exhibit Declaration of Willie Williams, # 3 Exhibit Declaration of Joyce Barnes) (Rittelmeyer, John) (Entered: 12/11/2009)
5 Memorandum in Support re 4 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Marlo M., Durwood W.. (Rittelmeyer, John) (Entered: 12/11/2009)
Case Selected for Mediation − A printable list of certified mediators for the Eastern District of North Carolina is available on the court's Website, http://www.nced.uscourts.gov/applications/mediators.asp. Please serve this list on all parties. (Beasley, B.) (Entered: 12/11/2009)
NOTICE TO COUNSEL: For future reference, counsel must complete the caption portion of the Financial Disclosure Statement. (Heath, D.) (Entered: 12/11/2009)
6 Summons Issued as to Lanier Cansler, Karen Salacki. Counsel should print summons to effect service. (Talbert, S.) (Entered: 12/14/2009)
7 ORDER granting 4 Motion for TRO. Signed by Judge Terrence W. Boyle on 12/14/09. Copy of Order mailed to Defendants. (Talbert, S.) (Entered: 12/14/2009)

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12/15/2009
12/17/2009
12/17/2009 12/18/2009 12/18/2009 12/18/2009
12/21/2009
12/21/2009 12/21/2009 12/21/2009
12/21/2009
12/21/2009 12/23/2009
12/23/2009 12/23/2009 12/23/2009 12/23/2009

8 NOTICE of Hearing: Motion for Preliminary Injunction. Hearing before Judge Terrence Boyle on December 28, 2009 at 2:00 p.m. at the Terry Sanford Building in Raleigh. Copy of Notice of Hearing mailed to unserved defendants. (Talbert, S.) (Entered: 12/15/2009)
9 Joint MOTION to Continue DEFENDANTS LANIER CANSLER and KAREN SALACKI'S JOINT MOTION TO CONTINUE HEARING FOR PRELIMINARY INJUNCTION by Lanier Cansler, Karen Salacki. (Attachments: # 1 Exhibit Exhibit A: 12/14/09 Letter from Rittelmeyer to Salacki, # 2 Text of Proposed Order) (Brewer, Christopher) (Entered: 12/17/2009)
10 NOTICE of Appearance by Lisa G. Corbett on behalf of Lanier Cansler (Corbett, Lisa) (Entered: 12/17/2009)
11 NOTICE of Appearance by Wilson Hayman on behalf of Karen Salacki (Hayman, Wilson) (Entered: 12/18/2009)
12 NOTICE of Appearance by Jennifer Leah Bills on behalf of all plaintiffs (Bills, Jennifer) (Entered: 12/18/2009)
13 RESPONSE in Opposition re 9 Joint MOTION to Continue DEFENDANTS LANIER CANSLER and KAREN SALACKI'S JOINT MOTION TO CONTINUE HEARING FOR PRELIMINARY INJUNCTION filed by Marlo M., Durwood W.. (Attachments: # 1 Exhibit Email correspondence dated 12/10/09) (Rittelmeyer, John) (Entered: 12/18/2009)
Motions Submitted: 9 Joint MOTION to Continue DEFENDANTS LANIER CANSLER and KAREN SALACKI'S JOINT MOTION TO CONTINUE HEARING FOR PRELIMINARY INJUNCTION submitted to Judge Boyle's Chambers. (Talbert, S.) (Entered: 12/21/2009)
14 MOTION for Leave to File Amicus Curiae by UNITED STATES OF AMERICA. (Attachments: # 1 Text of Proposed Order, # 2 Supplement Proposed Memorandum as Amicus Curiae) (Knight, David) (Entered: 12/21/2009)
15 Memorandum in Support re 14 MOTION for Leave to File Amicus Curiae filed by UNITED STATES OF AMERICA. (Knight, David) (Entered: 12/21/2009)
16 ORDER denying 9 Motion to Continue. PLEASE NOTE THAT THE HEARING ON THE MOTION FOR PRELIMINARY INJUNCTION WILL NOW BE HEARD AT 11:00 A.M. ON 12/28/09 NOT AT 2:00 P.M. Signed by Judge Terrence W. Boyle on 12/21/09. (Talbert, S.) (Entered: 12/21/2009)
CORRECTION TO THE NOTICE OF HEARING − THE MOTION FOR PRELIMINARY INJUNCTION WILL BE HEARD AT 11:00 A.M. AT THE TERRY SANFORD BUILDING IN RALEIGH ON 12/28/09 BEFORE JUDGE BOYLE. (Talbert, S.) (Entered: 12/21/2009)
Motions Submitted: 14 MOTION for Leave to File Amicus Curiae submitted to Judge Boyle's chambers. (Talbert, S.) (Entered: 12/21/2009)
17 ORDER granting 14 Motion for Leave to File Supplement Memorandum as Amicus Curiae. Counsel for USA is directed to re−file the Supplement Memorandum as Amicus Curiae so that is may appear on the docket as a separate entry. Signed by Judge Terrence W. Boyle on 12/22/09. (Talbert, S.) (Entered: 12/23/2009)
18 Memorandum in Support re 4 MOTION for Temporary Restraining Order and Preliminary Injunction as Amicus Curiae filed by UNITED STATES OF AMERICA. (Knight, David) (Entered: 12/23/2009)
19 RESPONSE re 4 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Lanier Cansler. (Corbett, Lisa) (Entered: 12/23/2009)
20 RESPONSE re 4 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Karen Salacki. (Hayman, Wilson) (Entered: 12/23/2009)
21 Memorandum in Opposition re 20 Response, 19 Response, 4 MOTION for Temporary Restraining Order and Preliminary Injunction (Joint) filed by Lanier

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12/24/2009 12/28/2009 12/28/2009
12/30/2009 12/30/2009 01/04/2010 01/04/2010 01/04/2010 01/04/2010
01/04/2010
01/04/2010

Cansler, Karen Salacki. (Attachments: # 1 Exhibit 1 − Affidavit of Leza Wainwright, # 2 Exhibit 2 − Declaration of Rose Burnette, # 3 Exhibit 3 − Declaration of Karen M. Salacki, MSW, LCSW, ACSW) (Hayman, Wilson) (Entered: 12/23/2009)
22 REPLY to Response to Motion re 4 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Marlo M., Durwood W.. (Attachments: # 1 Affidavit Declaration of Deborah B. Thome) (Rittelmeyer, John) (Entered: 12/24/2009)
23 MOTION to Amend/Correct 21 Memorandum in Opposition, DEFENDANT'S MOTION FOR LEAVE TO FILE CORRECTED ATTACHMENT B TO EXHIBIT 3 by Karen Salacki. (Attachments: # 1 Corrected Attachment B, # 2 Text of Proposed Order Order Granting Leave to Subsituted Corrected Attachment B) (Hayman, Wilson) (Entered: 12/28/2009)
27 Minute Entry for proceedings held before Judge Terrence W. Boyle: Motion Hearing held in Raleigh, NC on 12/28/2009 re 4 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Durwood W., Marlo M. All parties present and ready to proceed with the hearing. After hearing from all parties Oral Order entered by the court. ORAL ORDER − Motion for Preliminary Injunction is GRANTED, reasons stated on the record − written order to follow. (Court Reporter Sharon Kroeger) (Ruffin, L.) (Entered: 01/04/2010)
24 AFFIDAVIT re 6 Summons Issued of Service by Certified Mail by Marlo M.. (Rittelmeyer, John) (Entered: 12/30/2009)
25 AFFIDAVIT re 6 Summons Issued of Service by Certified Mail by Marlo M.. (Rittelmeyer, John) (Entered: 12/30/2009)
26 MOTION for Extension of Time to File Answer re 1 Complaint by Lanier Cansler. (Attachments: # 1 Text of Proposed Order Extending time to file answer) (Corbett, Lisa) (Entered: 01/04/2010)
28 Corrected MOTION for Extension of Time to File Answer re 26 MOTION for Extension of Time to File Answer re 1 Complaint, 1 Complaint corrected to reflect eastern division in caption by Lanier Cansler. (Attachments: # 1 Text of Proposed Order granting extension of time to answer(corrected caption)) (Corbett, Lisa) (Entered: 01/04/2010)
29 MOTION for Extension of Time to File Answer re 1 Complaint by Karen Salacki. (Attachments: # 1 Text of Proposed Order Proposed Order granting enlargement of time to respond to complaint) (Hayman, Wilson) (Entered: 01/04/2010)
MOTIONS REFERRED: 28 Corrected MOTION for Extension of Time to File Answer re 26 MOTION for Extension of Time to File Answer re 1 Complaint, 1 Complaint corrected to reflect eastern division in captionCorrected MOTION for Extension of Time to File Answer re 26 MOTION for Extension of Time to File Answer re 1 Complaint, 1 Complaint corrected to reflect eastern division in caption, 29 MOTION for Extension of Time to File Answer re 1 Complaint referred to Clerk of Court. (Talbert, S.) (Entered: 01/04/2010)
Motions Submitted: 23 MOTION to Amend/Correct 21 Memorandum in Opposition, DEFENDANT'S MOTION FOR LEAVE TO FILE CORRECTED ATTACHMENT B TO EXHIBIT 3 MOTION to Amend/Correct 21 Memorandum in Opposition, DEFENDANT'S MOTION FOR LEAVE TO FILE CORRECTED ATTACHMENT B TO EXHIBIT 3 submitted to Judge Boyle's Chambers. (Talbert, S.) (Entered: 01/04/2010)
30 OFFICIAL TRANSCRIPT of MOTION FOR PRELIMINARY INJUNCTION Proceedings held on 12/28/09, before Judge Boyle. Court Reporter Sharon Kroeger. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Please review Attorney obligations regarding the redaction of electronic transcripts of court proceedings available on the court's website.. Redaction Request due 1/25/2010. Redacted Transcript Deadline set for 2/4/2010. Release of Transcript

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01/04/2010
01/05/2010 01/05/2010 01/05/2010 01/05/2010 01/15/2010 02/05/2010 02/05/2010 02/05/2010 02/05/2010 02/08/2010 03/05/2010 03/12/2010
03/16/2010
04/01/2010 07/01/2010 08/30/2010
08/31/2010

Restriction set for 4/4/2010. (Steele, F.) (Entered: 01/04/2010)
NOTICE of Filing of Official Transcript 30 Transcript,,,. The parties have seven calendar days from the filing of the transcript to file a Notice of Intent to Request Redaction. The parties must also serve a copy on the court reporter or transcriber. After filing the Notice of Intent to Request Redaction, a party must submit to the court reporter or transcriber, within 21 calendar days of the filing of the transcript, a written statement indicating where the personal data identifiers to be redacted appear in the transcript. (Steele, F.) (Entered: 01/04/2010)
31 ORDER granting 28 Motion for Extension of Time to Answer re 1 Complaint. Lanier Cansler answer due 2/5/2010. Signed by Clerk of Court on 1/5/10. (Talbert, S.) (Entered: 01/05/2010)
32 ORDER granting 29 Motion for Extension of Time to Answer re 1 Complaint. Karen Salacki answer due 2/5/2010. Signed by Clerk of Court on 1/5/10. (Talbert, S.) (Entered: 01/05/2010)
33 ORDER granting Defendant's Corrected Attachment B to be filed under seal. Signed by Judge Terrence W. Boyle on 1/5/10. (Talbert, S.) (Entered: 01/05/2010)
34 SEALED Exhibit B − Hearing Officer's Report by Defendant Karen Salacki re 21 Memorandum in Opposition. (Talbert, S.) (Entered: 01/05/2010)
35 ORDER GRANTING 4 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Durwood W., Marlo M. Signed by Judge Terrence W. Boyle on 1/14/10. (Talbert, S.) (Entered: 01/15/2010)
36 ANSWER to 1 Complaint by Lanier Cansler. (Corbett, Lisa) (Entered: 02/05/2010)
37 FINANCIAL DISCLOSURE STATEMENT by Lanier Cansler (Corbett, Lisa) (Entered: 02/05/2010)
38 ANSWER to 1 Complaint by Karen Salacki. (Hayman, Wilson) (Entered: 02/05/2010)
39 FINANCIAL DISCLOSURE STATEMENT by Karen Salacki. (Hayman, Wilson) (Entered: 02/05/2010)
40 ORDER FOR DISCOVERY PLAN sent to all parties. Signed by Clerk of Court on 2/8/10. (Talbert, S.) (Entered: 02/08/2010)
41 Rule 26(f) Report (joint) by Marlo M., Durwood W., Lanier Cansler, Karen Salacki. (Hayman, Wilson) (Entered: 03/05/2010)
42 SCHEDULING ORDER: Discovery due by 9/15/2010. Motions due by 10/15/2010.Counsel should review the Order in its entirety for critical deadlines and information. Signed by USMJ James E. Gates on 3/12/10. (Talbert, S.) (Entered: 03/12/2010)
Pursuant to Local ADR Rule 101.1c(a), counsel is reminded that the parties must file a statement identifying an agreed upon mediator within twenty one (21) days of the entry of the Scheduling Order. If a statement is not timely filed, the Clerk of Court will appoint a mediator from the list of court certified mediators. (Beasley, B.) (Entered: 03/16/2010)
43 NOTICE by Marlo M., Durwood W., Lanier Cansler, Karen Salacki NOTICE OF SELECTION OF MEDIATOR (Hayman, Wilson) (Entered: 04/01/2010)
44 ORDER Appointing Mediator Anne R. Slifkin appointed. Signed by Clerk of Court on 7/1/2010. (Beasley, B.) (Entered: 07/01/2010)
45 Joint MOTION for Extension of Time to Complete Discovery and to File Dispositive Motions by Lanier Cansler, Marlo M., Karen Salacki, Anne R. Slifkin, Durwood W. (Attachments: # 1 Text of Proposed Order) (Brewer, Christopher) (Entered: 08/30/2010)
MOTION REFERRED: 45 Joint MOTION for Extension of Time to Complete Discovery and to File Dispositive Motions referred to U.S. Magistrate Judge James

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09/02/2010 10/11/2010 10/11/2010
10/12/2010 10/14/2010 03/29/2011 06/13/2011

E. Gates. (Talbert, S.) (Entered: 08/31/2010)
46 AMENDED SCHEDULING ORDER − Fact Discovery shall be completed by October 15, 2010. Dispositive Motions shall be filed by November 15, 2010. All other provisions of the Original Scheduling Order remain in effect. Signed by USMJ James E. Gates on 9/1/10. (Talbert, S.) (Entered: 09/02/2010)
47 Joint MOTION to Stay re 46 Order on Motion for Extension of Time to Complete Discovery, and to Amend Discovery Scheduling Order by Lanier Cansler, Marlo M., Karen Salacki, Durwood W. (Attachments: # 1 Text of Proposed Order) (Hayman, Wilson). (Entered: 10/11/2010)
48 NOTICE by Lanier Cansler, Marlo M., Karen Salacki, Durwood W. re 47 Joint MOTION to Stay re 46 Order on Motion for Extension of Time to Complete Discovery, and to Amend Discovery Scheduling OrderJoint MOTION to Stay re 46 Order on Motion for Extension of Time to Complete Discovery, and to Amend Discovery Scheduling Order EXHIBIT A TO JOINT MOTION TO STAY (Hayman, Wilson) (Entered: 10/11/2010)
Motion Submitted: 47 Joint MOTION to Stay re 46 Order on Motion for Extension of Time to Complete Discovery, and to Amend Discovery Scheduling Order submitted to Judge Boyle's chambers. (Talbert, S.) (Entered: 10/12/2010)
49 ORDER granting 47 Motion to Stay and Amending Scheduling Order. Discovery is STAYED until 4/1/11 and all discovery shall be completed by 5/1/11. All dispositive motions shall be filed by 6/1/11. Counsel should review the Order in its entirety for critical deadlines and information. Signed by Judge Terrence W. Boyle on 10/13/10. (Talbert, S.) (Entered: 10/14/2010)
Remark − Received a call that this case has been settled and the parties are working on the settlement documents and hope to have the Stipulation of Dismissal filed by May 2011. (Talbert, S.) (Entered: 03/29/2011)
50 STIPULATION of Dismissal With Prejudice by Marlo M. (Rittelmeyer, John) (Entered: 06/13/2011)