Case 1:12-cv-02522-RMB-AMD Document 1 Filed 04/27/12 Page 1 of 27 PageID: 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

TERESITA CAREY, by and through her guardian, Jim Carey,

KAREN COLLETTI, by and through her : guardian, Vito Colletti,

CONSTANCE DANIELS, by and through : her guardian, Elvera Daniels

LAURA GORDON, by and through her guardian, Muriel Gordon,

DEBRA HAMILTON, by and through her guardian, Marilyn Hamilton

PATRICIA IADICOLA, by and through her guardian, Mary Iadicola,

BARBARA STEWARD, by and through her guardian, Marion Baldwin,

CIV. NO.:

Plaintiffs, v.

COMPLAINT [DEMAND FOR JURY TRIAL]

CHRISTOPHER CHRISTIE, as

Governor of the State of New Jersey;

NEW JERSEY DEPARTMENT OF

HUMAN SERVICES; JENNIFER

VELEZ, as Commissioner of the New

Jersey Department of Human Services;

NEW JERSEY DEPARTMENT OF

HUMAN SERVICES DIVISION OF

DEVELOPMENTAL DISABILITIES;

DAWN APGAR, as Deputy Commissioner/ :

Acting Assistant Commissioner

:

of New Jersey Department of Human

Services Division of Developmental

Disabilities; VINELAND

DEVELOPMENTAL CENTER; and

:

ELOISE HAWKINS, as Chief

:

Executive Officer of the Vineland

:

Developmental Center,

Defendants.

April 27, 2012

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COMPLAINT Plaintiffs, by their undersigned attorneys, upon information and belief, allege as follows for their Complaint herein:
JURISDICTION 1. This action is for declaratory and injunctive relief under the Americans with Disabilities Act ("ADA"), 42U.S.C. § 12132, the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) ("Section 504"), the Medical Assistance Program authorized by 42 U.S.C. 1396, et seq., and the United States Constitution. 2. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331, 1342, and 1343. Plaintiffs' claims for declaratory and injunctive relief are authorized under 28 U.S.C. §§ 2201-02 and 42 U.S.C. § 1983 and the waiver of state sovereign immunity enacted in 42 U.S.C. § 2000d-7(a)(I) and various Medicaid federal statutes and regulations incorporated into New Jersey law. At all times relevant to this action, Defendants have acted under color of state law.
VENUE 3. Venue lies in the District of New Jersey pursuant to 28 U.S.C. § 1391(b), and in the Camden Division, because the Defendants officially reside in Cumberland County, New Jersey.
NAMED PLAINTIFFS 4. TERESITA CAREY is a 71 year old woman with intellectual disabilities who resides at the Vineland Development Center in Vineland, New Jersey. Teresita brings this lawsuit by and through her brother and legal guardian, Jim Carey.
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5. KAREN COLLETTI is a 56 year old woman with mental retardation who lives in Jones Cottage at Vineland Development Center in Vineland, New Jersey. Karen brings this lawsuit by and through her father and legal guardian, Vito Colletti.
6. CONSTANCE DANIELS is a 54 year old woman with intellectual disabilities who resides at Vineland Development Center in Vineland, New Jersey. Constance brings this lawsuit by and through her mother and legal guardian, Elvera Daniels.
7. LAURA GORDON is a 51 year old woman with mental retardation who lives in Jones Cottage at Vineland Development Center in Vineland, New Jersey. Laura brings this lawsuit by and through her mother and legal guardian, Muriel Gordon.
8. DEBRA HAMILTON is a 53 year old woman with mental retardation who lives in Kimble Cottage at the Vineland Development Center in Vineland, New Jersey. Debra brings this lawsuit by and through her mother and legal guardian, Marilyn Hamilton.
9. PATRICIA IADICOLA is a 53 year old woman with mental retardation who lives in Kimble Cottage at Vineland Development Center in Vineland, New Jersey. Patricia brings this lawsuit by and through her mother and legal guardian, Mary Iadicola.
10. BARBARA STEWARD is a 74 year old woman with mental retardation who resides at Vineland Development Center in Vineland, New Jersey. Barbara brings this lawsuit by and through her cousin and legal guardian Marion Baldwin.
DEFENDANTS 11. Defendant CHRISTOPHER CHRISTIE is the Governor of the State of New Jersey. Governor Christie is sued in his official capacity only. 12. Defendant NEW JERSEY DEPARTMENT OF HUMAN SERVICES ("DHS") is a public entity covered by Title II of the Americans with Disabilities Act 42 U.S.C. § 12131(1).
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It receives federal funds under § 504 of the Rehabilitation Act, 29 U.S.C. § 794. DHS administers services for more than one million of New Jersey's citizens, including individuals and families with low incomes; people with mental illnesses, developmental disabilities, or lateonset disabilities; people who are blind, visually impaired, deaf, hard of hearing, or deaf-blind; parents needing child care services, child support and healthcare for children; and families with catastrophic medical expenses for their children. DHS is the largest agency in New Jersey. DHS operates eight divisions including the Division of Developmental Disabilities.
13. Defendant JENNIFER VELEZ is the Commissioner of the New Jersey Department of Human Services ("DHS"). Ms. Velez is sued in her official capacity. Defendant Velez is ultimately responsible for ensuring that New Jersey operates its delivery of services to individuals with disabilities in conformity with the United States Constitution, the ADA, the ADA implementing regulations, section 504 of the Rehabilitation Act of 1973 as amended, 29 U.S.C. § 794(a), and section 504's implementing regulations.
14. Defendant NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES ("DDD") is a public entity covered by Title II of the Americans with Disabilities Act 42 U.S.C. § 12131(1). It receives federal funds under § 504 of the Rehabilitation Act, 29 U.S.C. § 794. DDD funds services and supports for eligible New Jersey residents with developmental disabilities. The division was created in response to the need for better and more effective services for state residents with developmental disabilities.
15. Defendant DAWN APGAR is Deputy Commissioner/Acting Assistant Commissioner of the New Jersey Department of Human Services Division of Developmental Disabilities. Ms. Apgar is sued in her official capacity. Defendant Apgar operates New Jersey's system of services to individuals with developmental disabilities and is ultimately
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responsible for ensuring that eligible New Jersey residents with developmental disabilities receive services and supports effectively and in accordance with the United States Constitution, the ADA, the ADA implementing regulations, section 504 of the Rehabilitation Act of 1973 as amended, 29 U.S.C. § 794(a), and section 504's implementing regulations.
16. Defendant VINELAND DEVELOPMENTAL CENTER is a residential facility that provides, among other things, habilitation, behavioral, and medical services and supports for women with developmental disabilities. It has two campuses. The East Campus is on Landis Avenue and the West Campus is on Almond Road in Vineland, Cumberland County, New Jersey. The Vineland Developmental Center is a public entity covered by Title II of the Americans with Disabilities Act 42 U.S.C. § 12131(1). It receives federal funds under § 504 of the Rehabilitation Act, 29 U.S.C. § 794.
17. Defendant ELOISE HAWKINS is the Chief Executive Officer of the Vineland Developmental Center. Ms. Hawkins is sued in her official capacity. Ms. Hawkins is responsible for the daily administration of Vineland Developmental Center. At the Vineland Developmental Center, she is the administrative supervisor for all treating professionals who serve Plaintiffs.
CLASS ACTION ALLEGATIONS 18. Pursuant to Fed. R. Civ. P. 23(a) and (b)(2), the Named Plaintiffs bring this action on behalf of themselves and all other persons similarly situated. 19. Plaintiffs bring this action pursuant to the Civil Rights Act, 42 USC § 1983; the Americans with Disabilities Act, 42 USC § 12132; § 504 of the Rehabilitation Act, 29 USC § 794 ("Section 504"), and the waiver of state sovereign immunity enacted in 42 USC § 2000d7(a)( 1), various Medicaid federal statutes, and regulations incorporated into New Jersey law and
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the United States Constitution, on behalf of a Class consisting of themselves and all other persons who are residents of the Vineland Developmental Center, Cumberland County, New Jersey, as of April 25, 2010.
20. The proposed class consists of: New Jersey residents who reside or resided at the Vineland Developmental Center, at anytime since April 25, 2010, or at any time during this litigation.
21. Joinder of the entire Class is impracticable because the Class Members are severely or profoundly developmentally disabled persons. Virtually all Class Members are unable to give their consent except through guardians or family members.
22. Plaintiffs' claims are typical of the claims asserted on behalf of the Class. 23. Plaintiffs do not have any interests that are adverse or antagonistic to any claims or potential claims of the Class. 24. Plaintiffs will fairly and adequately protect the interests of the members of the Class. 25. Plaintiffs are committed to the vigorous prosecution of this action and have retained counsel competent and experienced in this type of litigation. 26. Plaintiffs do not seek monetary damages. Hence, the burden and expense of prosecuting this litigation makes it unlikely that members of the Class would or could prosecute individual actions. If individual actions were pursued by Class Members, prosecution of those individual claims would be impracticable and inefficient. 27. Plaintiffs are not aware of any pending litigation concerning the claims herein. 28. This Court is the most appropriate forum for adjudicating the claims at issue, which arise under federal law.
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29. Plaintiffs do not anticipate any difficulty in the management of this action as a Class action.
30. There are many questions of law and fact common to the Class, which predominate over any questions which may affect individual members. The predominant common questions of law and fact include, among others:
(a) Whether Defendants are liable for violation of the Civil Rights Act, 42 U.S.C. § 1983;
(b) Whether Defendants are liable for violation of the Americans with Disabilities Act, 42 U.S.C. § 12132;
(c) Whether Defendants are liable for violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("Section 504"), and the waiver of state sovereign immunity enacted in 42 U.S.C. § 2000d-7(a)(1);
(d) Whether Defendants are liable for violation of various Medicaid federal statutes and regulations incorporated into New Jersey law;
(e) Whether Defendants are liable for violations of the United States Constitution; and
(f) Whether named Plaintiffs and Class Members are entitled to equitable and injunctive relief.
31. A Class action is superior to all other available methods for the fair and efficient adjudication of this controversy.
32. Plaintiffs seek declaratory and injunctive relief, attorneys' fees and expenses as permitted by law, on behalf of themselves and the Class.
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COMMON FACTUAL ALLEGATIONS. 33. All plaintiffs reside at the Vineland Developmental Center or resided there as of April 25, 2010. 34. All of the residents of Vineland Developmental Center are females. Almost all of Vineland's residents have lived in their homes at the Vineland Developmental Center for many years, with 68 percent of those residents having lived there for more than 30 years. 35. The Vineland Developmental Center is an Intermediate Care Facility for the Mentally Retarded ("ICF/MR") operated by the State of New Jersey. It is licensed to serve 556 residents, and currently serves approximately 347 individuals. 36. ICF/MR certified facilities are regulated by the Centers for Medicare and Medicaid ("CMS") in conjunction with the state's licensing agency. Part of that regulatory process includes routine surveys by CMS and the state's licensing agency to ensure quality treatment and services are provided by ICF/MR certified facilities, like Vineland Developmental Center. 37. Eligibility for residence in a New Jersey developmental center is defined by Section 1.3 of Division Circular #3, N.J.A.C. 10:46-1.3, effective March 24, 2011. That regulation defines the developmental disability that must be present in order to receive services as a severe, chronic disability of an individual, which is attributable to a mental impairment, physical impairment, or combination of both; is manifested before age 22; is likely to continue indefinitely; results in a combination of functional limitations in major life activities; reflects the need for a combination of special interdisciplinary care or treatment of lifelong or extended duration; and includes, but is not limited to, developmental disabilities, autism, cerebral palsy, epilepsy, spina bifida, and other neurological impairments.
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38. All plaintiffs are diagnosed as in need of state-run ICF/MR institutional care and have been appropriately designated as eligible for state-operated ICF/MR level of care.
39. Eighty-six percent of the individuals residing at the Vineland Developmental Center have been diagnosed with profound or severe intellectual disabilities. Approximately 13 percent of individuals residing at the Vineland Developmental Center have been assessed with mild or moderate levels of intellectual disability Almost all individuals residing at the Vineland Developmental Center have been diagnosed with additional disabilities, including: 65 percent of the population diagnosed with seizure disorders, 17 percent diagnosed with autism, and 28 percent diagnosed with cerebral palsy. In addition, 46 percent have vision difficulties, and 12 percent have hearing impairments.
40. The primary service needs of individuals at Vineland require a variety of services and supports. Four broad areas of service are described below, along with the number of individuals for whom that service is their primary need:
(a) Extensive Personal Care - Approximately three-hundred VDC individuals require extensive personal care. This need refers to people who require total assistance and care provided by direct service staff who are specially trained on individualized programs developed by residents' treating professionals, including physicians, nurses, physical therapists, occupational therapists, speech language pathologists, and many other licensed clinicians who treat residents at the Center.
(b) Significant Health Care Services — Treating professionals at Vineland have determined that significant nursing intervention and monitoring are
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required to effectively treat about seventy Vineland residents, who have significant health care needs. This service includes the need for 24-hour monitoring and immediate availability of treating professionals for intermittent pressure breathing, inhalation assistive devices, tracheotomy care, or treatment for recurrent pneumonias or apnea.
(c) Ambulation - Approximately 37 percent of Vineland residents are nonambulatory or require assistance with ambulation.
(d) Significant Behavioral Support - Approximately sixty-three individuals residing at Vineland require significant behavioral support. This need addresses individuals who have behaviors that require intervention for the safety of themselves or others, as developed by psychologists and medical personnel and implemented in conjunction with direct service staff
41. Prior to 2010, all Vineland residents were consistently evaluated by their treating professionals and determined to be in need of ICF/MR services and that the best setting for Plaintiffs to receive those services was at the Vineland Developmental Center. Subsequent to Defendants' decision to close the Vineland Developmental Center, treating professionals have concluded that Plaintiffs would best be served in alternative settings, including settings that do not provide ICF/MR level of care.
42. All Plaintiffs have the right to receive ICF/MR level services from the State of New Jersey.
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43. All plaintiffs have or imminently will have their rights to receive ICF/MR level services at the Vineland Developmental Center denied.
44. Defendants seek to compel Plaintiffs' discharge from Vineland Developmental Center to other settings, including non-ICF/MR certified settings.
45. Defendants' policies and procedures have usurped Plaintiffs' treating professionals' ability to make independent professional judgments.
46. Defendants' policies and procedures have compelled Plaintiffs' treating professionals to recommend transfer or discharge of Plaintiffs to settings that are not the most appropriate for Plaintiffs' needs, solely for the purpose of conforming to Defendants' policy decisions.
47. All Plaintiffs are medically and developmentally most appropriately served at the Vineland Developmental Center instead of any alternative setting.
48. All Plaintiffs are physically, mentally, and emotionally fragile and are most appropriately served at the Vineland Developmental Center instead of any alternative setting.
49. All Plaintiffs are in need of continuous care by multidisciplinary teams of professionals as are currently serving them at the Vineland Developmental Center.
50. The services provided to Plaintiffs cannot be reasonably replicated in alternative residential settings.
51. Non-ICF/MR certified settings are necessarily not able to reasonably provide the same level of care as an ICF/MR certified facility.
52. Services provided to residents at the Vineland Developmental Center are uniquely tailored to the needs of the residents of the Center.
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53. None of the Plaintiffs have given informed consent for their discharge from Vineland Developmental Center because, among other things, Defendants have precluded treating professionals at the Vineland Developmental Center from fully and fairly considering Plaintiffs' rights to receive treatment and services at Vineland Developmental Center.
54. Plaintiffs have not had the benefit of their respective treating professionals' independent judgment about whether they should continue to reside at Vineland Developmental Center, another state operated ICF/MR, or a non-ICF/MR certified setting.
55. Defendants have compelled or will compel Plaintiffs to receive services in nonICF/MR facilities. Those services are inferior to the services provided at Vineland Developmental Center because, among other reasons, they will not be provided by an individualized, multidisciplinary team of professionals.
56. Research demonstrates that intellectually disabled persons, residing in the type of settings to which Defendants intend to discharge Plaintiffs, are at approximately 75 percent greater risk of death, abuse, and neglect as compared to similar persons receiving services at a facility like Vineland Developmental Center.
57. Defendants know or should know of the increased danger of death, abuse, and neglect to which Plaintiffs will be subjected if they are discharged from the Vineland Center in accordance with Defendants' political plan.
58. Research demonstrates that intellectually disabled persons, residing in the type of settings to which Defendants intend to discharge Plaintiffs, are likely to be secluded from the community immediately surrounding them and be more restricted in their interactions with nondisabled peers as compared to similar persons receiving services at a facility like Vineland Developmental Center.
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59. In May 2011, Defendants announced their plan to "depopulate" and close the Vineland Developmental Center and discharge residents to non-ICF/MR certified, alternative settings.
60. Among the reasons identified by Defendants for their "depopulation" plan was the ostensibly high cost of providing the necessary services for the disabled residents of the state's developmental centers.
61. As part of that plan, Defendants also announced that they would close the West Campus of the Vineland Developmental Center. Defendants have taken significant steps in that plan and their plan to completely close the Vineland Developmental Center, including transferring and discharging residents without adequate transition plans, without guardian or residents' full and fair participation, without treating professionals' independent and sound assessments, without regard for residents' specific individual needs and desires, and without regard for the rights of residents.
62. Contrary to Defendants' public statements, Plaintiffs have not requested discharge or transition from Vineland Developmental Center.
63. Defendants have instructed Plaintiffs' treating professionals to include language in Plaintiffs' individual habilitation plans indicating that Plaintiffs are capable of being served in settings other than Vineland Developmental Center, regardless of whether Plaintiffs are actually capable of being served in alternative settings.
64. Defendants have instructed Plaintiffs' treating professionals to include language in Plaintiffs' individual habilitation plans indicating that Plaintiffs have requested discharge to settings other than Vineland Developmental Center, regardless of whether Plaintiffs actually communicated such a request.
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65. Because Plaintiffs' treating professionals have not been able to provide independent judgments about Plaintiffs' ability to be served in alternative settings, none of the judgments they have made in that regard are reliable and accurate.
66. None of the Plaintiffs have been provided sufficient information to allow them to provide informed consent to discharge.
67. Defendants have made the decision to depopulate the Vineland Developmental Center without regard to the needs of the individual Plaintiffs, their individual support plans, which are developed in conjunction with their treating professionals, or their rights to receive services in the least restrictive setting appropriate to their needs.
68. On December 14, 2011, the New Jersey Legislature enacted a statute, which, among other things, created a "Task Force on the Closure of State Developmental Centers." Senate No. 2928, Chapter 143 P.L. 2011.
69. The legislation and creation of the Task Force is further evidence of Defendants' unlawful treatment of Plaintiffs because it presumes that current residents of the State's Developmental Centers, including Vineland, can be discharged without regard for whether the residents' needs are currently being met in the most integrated setting or whether residents' needs can be served in an alternative setting. By assuming that any of the State's Developmental Centers should be closed, that legislation largely ignores the needs of the residents in all of those facilities. The Task Force has rendered opinions that are flawed because they are based on faulty data.
70. Plaintiffs who have already been discharged from Vineland Developmental Center are being denied access to the same level of treatment and services they received at the Vineland Developmental Center.
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71. Plaintiffs currently residing at Vineland Developmental Center will be denied access to their current high level of treatment and services if the Defendants continue with their current plan to discharge residents.
COMMON ALLEGATIONS OF RIGHTS AND DUTIES. 72. As described more fully herein, each Plaintiff has a constitutional right, a life and liberty interest in, and a statutory entitlement to receive treatment and services from the State of New Jersey in the most appropriate setting for his or her needs. 73. Interpreting the ADA and the Department of Justice's regulations issued under it, the Supreme Court decision in Olmstead emphasized that there is no "federal requirement that community-based treatment be imposed on patients who do not desire it." Olmstead v. Zimring, et al., 527 U.S. 581, 602 (1999). The Olmstead Court further stressed that "nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings." Id. at 601-02. "[T]he ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk." Id. at 605. 74. In fact, the Olmstead decision recognized that "for [some] individuals, no placement outside the institution may ever be appropriate." Id. (citing and quoting Brief for American Psychiatric Association et al. as Amici Curiae at 22-23 ("Some individuals, whether mentally retarded or mentally ill, are not prepared at particular times—perhaps in the short run, perhaps in the long run—for the risks and exposure of the less protective environment of community settings"); Brief for Voice of the Retarded et al. as Amici Curiae at 11 ("Each disabled person is entitled to treatment in the most integrated setting possible for that person— recognizing that, on a case-by-case basis, that setting may be in an institution"); Youngberg v. Romeo, 457 U.S. 307, 327 (1982) (Blackmun, J., concurring) ("For many mentally retarded
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people, the difference between the capacity to do things for themselves within an institution and total dependence on the institution for all of their needs is as much liberty as they ever will know").
75. By virtue of the ADA and the Olmstead decision, Plaintiffs have a federallyprotected right to receive recommendations from treating professionals as to whether community placement is the most appropriate to their needs and to fair consideration of their opposition to that transfer, even if the proposed transfer is from institutional care to an allegedly less restrictive setting. The only proper mechanism for second-guessing an individual or guardian's decision to oppose a treating professional's recommended transfer to a less restrictive setting is through State law and State Court Rules. See N.J. Stat. Ann. §§ 3B:12-1 et seq.; N.J. Court Rule 4:86.
76. The paradigm created by the Olmstead decision dictates that residents of the Vineland Development Center and their guardians have the benefit of treating professionals' judgments regarding the most appropriate place to receive services. Only after they have the benefit of that information are residents and guardians required to oppose or consent to continued residence at the facility or discharge to an alternative setting.
77. The Defendants have ignored and will continue to ignore Plaintiffs' right to have treating professionals render full and fair judgments as to where Plaintiffs' should receive services most appropriate to their needs.
78. Likewise, Defendants have ignored and will continue to ignore Plaintiffs' rights, as recognized by Olmstead, to oppose discharge from Vineland.
79. Pursuant to 42 U.S.C. § 12134, Defendants are under a constitutional and statutory duty to:
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(a) effectuate the placement of Plaintiffs in the "most integrated setting appropriate to the needs of qualified individuals with disabilities," a setting that "enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible." (28 C.F.R. pt. 35 app. A.);
(b) not place Plaintiffs in more restrictive or dangerous placements than they currently enjoy;
(c) effectuate appropriate institutional placement for each Plaintiff; (d) propose an ICF/MR certified institutional discharge appropriate for
the Plaintiffs only where medically and therapeutically appropriate upon an impartial multidisciplinary evaluation; (e) ensure that Plaintiffs, Plaintiffs' guardians and/or Plaintiffs' families understand their right to receive treatment and care at an ICF/MR certified facility prior to seeking consent to discharge a plaintiff from the Center; (0 obtain the input and informed consent of Plaintiffs, Plaintiffs' guardians and/or Plaintiffs' families for such transfers.
FIRST CAUSE OF ACTION AMERICANS WITH DISABILITIES ACT VIOLATIONS 80. Plaintiffs' incorporate paragraphs 1 through 79 herein by reference as though fully set forth.
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81. Because discharges or transfers are being forced on Plaintiffs without their consent, or the consent of their guardians or families, and without appropriate recommendations from treating professionals, such discharges or transfers violate the Americans with Disabilities Act and the Rehabilitation Act. 42 U.S.C. §§ 12131 — 12134.
82. The Plaintiffs are entitled to injunctive and declaratory relief that the Defendants shall not discharge or transfer them from their current residences without meeting the requirements that:
(a) such discharge or transfer will not result in Plaintiffs receiving treatment and services in a setting more restrictive of their rights than their current residence;
(b) such discharge or transfer will not be recommended by treating professionals unless the treating professionals independently conclude that such a placement is in the best interests of each Plaintiff and is the most appropriate setting to meet their needs; and
(c) the Plaintiffs by their guardians or families wish to effect such discharge or transfer.
83. Plaintiffs are entitled to the following additional declaratory and injunctive relief: (a) directing Defendants to abide by treatment plans independently prepared by Plaintiffs' respective treating professionals, without regard for the Defendants' mandate to close Vineland Developmental Center, and documented in their respective multidisciplinary evaluations (known as Individual Habilitation Plans at the Vineland Developmental Center). (b) Permitting each Plaintiff to choose:
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(i) to accept or reject the recommendation of the multidisciplinary evaluation; and
(ii) to receive treatment in accordance with the independent recommendations of the multidisciplinary evaluation, either at the Vineland Developmental Center, another state operated ICF/MR facility, or non-ICF/MR certified setting, as the plaintiff deems appropriate.
SECOND CAUSE OF ACTION REHABILITATION ACT VIOLATIONS 84. Plaintiffs' incorporate paragraphs 1 through 83 herein by reference as though fully set forth. 85. Section 504 of the Rehabilitation Act states that Injo otherwise qualified person with disabilities shall, solely by reason of his or her disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance." 29 U.S.C. § 794(a). 86. Each Named Plaintiff and class member is a "qualified person with disabilities" within the meaning of Section 504, because they (1) have physical and/or mental impairments that substantially limit one or more major life activities; and (2) meet the essential eligibility requirements for long term care under New Jersey's Medicaid program and are thus "qualified." 87. Regulations implementing Section 504 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 CFR § 41.51(d).
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88. Section 504's regulations prohibit recipients of federal financial assistance from utilizing criteria or methods of administration:
(a) that have the effect of subjecting Qualified handicapped persons to discrimination on the basis of handicap [or]
(b) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program with respect to handicapped persons.
89. Defendants have required that Plaintiffs be discharged or transferred from Vineland Developmental Center to other settings in violation of Section 504's integration mandate.
90. Further, Defendants have utilized criteria and methods of administration that subject Plaintiffs and class members to discrimination on the basis of disability, by (1) failing to assess properly the services and supports that would enable Plaintiffs to receive services and treatment in the most appropriate settings for their needs, (2) failing to develop proper individualized transition plans, (3) failing to allow guardians to be a part of the planning process, (4) failing to inform Plaintiffs of all of their options for receiving services, and (5) allocating resources for non-ICF/MR care contrary to the desires and needs of people with disabilities.
91. The Plaintiffs are entitled to injunctive and declaratory relief that the Defendants shall not discharge or transfer them from their current residences without meeting the requirements that:
(a) such discharge or transfer will not result in Plaintiffs receiving treatment and services in a setting more restrictive of their rights than their current placement;
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(b) such discharge or transfer will not be recommended by treating professionals unless the treating professionals conclude that such a placement is in the best interests of the individual Plaintiffs and is most appropriate to meet their needs; and
(c) the Plaintiffs by their guardians or families wish to effect such discharge or transfer.
92. Plaintiffs are entitled to the following additional declaratory and injunctive relief: (a) directing Defendants to abide by treatment plans independently prepared by Plaintiffs' respective treating professionals, without regard for the Defendants' mandate to close Vineland Developmental Center, and documented in their respective multidisciplinary evaluations (known as Individual Habilitation Plans at the Vineland Developmental Center). (b) Permitting each Plaintiff to choose: to accept or reject the recommendation of the multidisciplinary evaluation; and to receive treatment in accordance with the independent recommendations of the multidisciplinary evaluation, either at the Vineland Developmental Center, another state operated ICF/MR facility, or non-ICF/MR certified setting, as the plaintiff deems appropriate.
THIRD CAUSE OF ACTION MEDICAID ACT VIOLATIONS
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93. Plaintiffs' incorporate paragraphs 1 through 92 herein by reference as though fully set forth.
94. The State of New Jersey has voluntarily assumed certain obligations under federal law in return for federal funding under the Medical Assistance Program authorized by 42 U.S.C. § 1396, et seq.
95. Those obligations include: (a) choice of an ICF/MR institutional placement, subject to a hearing, under 42 U.S.C. § 1396n and 42 CFR § 441.302(d); (b) provision of ICF/MR services under 42 U.S.C. §§ 1396a(a)(10) and 1396d(a)(15); (c) competent evaluation for placement in an institutional ICF/MR facility under 42 CFR § 483.440(b)(3); (d) a continuous active treatment program as defined in 42 CFR § 483.440(a)(1).
96. All Plaintiffs receive assistance under the Medical Assistance Program and are owed the duties stated in the preceding paragraph.
97. Defendants have an obligation to ensure that Plaintiffs' needs and preferences are being met in their multidisciplinary plan.
98. Defendants have failed to ensure that Plaintiffs' needs and preferences are being met in their multidisciplinary plan.
99. Defendants are violating their duties to Plaintiffs under the Medical Assistance Program by their acts and omissions alleged above.
100. Plaintiffs are entitled to declaratory and injunctive relief as to the following:
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(a) such discharge or transfer will not result in Plaintiffs receiving treatment and services in a setting more restrictive of their rights than their current placement;
(b) such discharge or transfer will not be recommended by treating professionals unless the treating professionals conclude that such a placement is in the best interests of the individual Plaintiffs and most appropriate to meet their needs; and
(c) the Plaintiffs by their guardians or families wish to effect such discharge or transfer.
101. Plaintiffs are entitled to the following additional declaratory and injunctive relief: (a) directing Defendants to abide by treatment plans independently prepared by Plaintiffs' respective treating professionals, without regard for the Defendants' mandate to close Vineland Developmental Center, and documented in their respective multidisciplinary evaluations (known as Individual Habilitation Plans at the Vineland Developmental Center). (b) Permitting each Plaintiff to choose: (i) to accept or reject the recommendation of the multidisciplinary evaluation; and (ii) to receive treatment in accordance with the independent recommendations of the multidisciplinary evaluation, either at the Vineland Developmental Center, another state operated ICF/MR facility, or non-ICF/MR certified setting, as the plaintiff deems appropriate.
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FOURTH CAUSE OF ACTION CONSTITUTIONAL DUE PROCESS VIOLATIONS
102. Plaintiffs' incorporate paragraphs 1 through 101 herein by reference as though fully set forth.
103. At all relevant times, Defendants were "persons" under 42 U.S.C. § 1983. 104. At all relevant times, Defendants were acting "under color of state law" under 42 U.S.C. § 1983. 105. At all relevant times, a "special relationship" existed between each of the Plaintiffs and the state and state actors that were responsible for their safety. 106. Defendants, while acting under color of state law, unlawfully, intentionally, unreasonably, maliciously and with deliberate and/or reckless indifference to the Plaintiffs' substantive and procedural due process rights secured to Plaintiffs under the Fourth and/or Fourteenth Amendments to the United States Constitution, in violation of 42 U.S.C. § 1983 et. seq. and similar provisions of federal, state and/or local law as alleged herein and as follows. 107. The Plaintiffs have significant mental and behavioral health issues. They are unable to verbally articulate their medical and personal needs. Most of them have very limited mobility, and some have none. They are unable to care for themselves in even the most basic ways. They are at the mercy of the persons who provide them with care. Without the regulatory guarantees provided by an ICF/MR facility, they are defenseless against many forms of abuse and neglect which can lead to their injury or death. 108. Before becoming residents at Vineland, some Plaintiffs were abused and neglected in the same types of settings Defendants intend to force Plaintiffs into now.
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109. Defendants know or should know that placing the Plaintiffs in other settings, including non-ICF/MR settings will substantially increase their likelihood of injury and death from abuse, neglect, error, lack of appropriate services, and other causes.
110. Defendants' failure to provide adequate safeguards to prevent such harm, and Defendants' failure to provide adequate procedures to consider the interests and wishes of the Plaintiffs before services are diminished or denied, is a violation of Plaintiffs' constitutional right not to be deprived of life or liberty without due process of law.
111. The actions of the Defendants herein have significantly contributed to and increased the vulnerability of the Plaintiffs and created an opportunity that would not have otherwise existed if Defendants complied with their legal duties.
112. Defendants' actions and inactions constitute a violation of Plaintiffs' federal rights, as protected by the Fourteenth Amendment to the Constitution of the United States and other federal laws. Unless restrained by this Court, Defendants will continue to engage in their behavior, which deprives Plaintiffs of rights, privileges and immunities secured by the Constitution of the United States and federal law, and will cause irreparable harm to these residents.
113. The harm ultimately caused to the Plaintiffs was foreseeable and sufficiently direct.
114. Plaintiffs are entitled to declaratory and injunctive relief: (a) such discharge or transfer will not result in Plaintiffs receiving treatment and services in a setting more restrictive of their rights than their current placement;
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(b) such discharge or transfer will not be recommended by treating professionals unless the treating professionals conclude that such a placement is in the best interests of the individual Plaintiffs; and
(c) the Plaintiffs by their guardians or families wish to effect such discharge or transfer.
108. Plaintiffs are entitled to the following additional declaratory and injunctive relief: (a) directing Defendants to abide by treatment plans independently prepared by Plaintiffs' respective treating professionals, without regard for the Defendants' mandate to close Vineland Developmental Center, and documented in their respective multidisciplinary evaluations (known as Individual Habilitation Plans at the Vineland Developmental Center). (b) Permitting each Plaintiff to choose: (0 to accept or reject the recommendation of the multidisciplinary evaluation; and (ii) to receive treatment in accordance with the independent recommendations of the multidisciplinary evaluation, either at the Vineland Developmental Center, another state operated ICF/MR facility, or non-ICF/MR certified setting, as the Plaintiff deems appropriate. CONCLUSION
WHEREFORE Plaintiffs seek: (a) Declaratory and injunctive relief as set forth herein.
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(b) An award to Plaintiffs' of reasonable attorneys' fees, litigation expenses, and costs; and
(c) Any other relief this Court deems just and proper. JURY DEMAND
Plaintiffs demand a trial by jury.

Date: April 27, 2012

Respectfully submitted,
/s/ Thomas A. Archer Thomas A. Archer NJ Attorney LD. 054321994 3401 North Front Street Harrisburg, PA 17110-0950 (717) 232-5000 Fax: (717) 236-1816 taarcher@mette.com
THE YORK LEGAL GROUP, LLC
/s/ Thomas B. York Thomas B. York PA Attorney I.D. No. 32522 Donald B. Zaycosky PA Attorney I.D. No. 91812 Cordelia M. Elias PA Attorney I.D. No. 204965 3511 North Front Street Harrisburg, PA 17110 (717) 236-9675 Fax: (717) 236-6919 tyork@yorklegalgroup.com dzaycosky@yorklegalgroup.com celias@yorklegalgroup.com
Attorneys for Plaintiffs

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 Case 1:12-cv-02522-RMB-AMD Document 30 Filed 01/11/13 Page 1 of 32 PageID: 167

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

TERESITA CAREY, by and through her guardian, Jim Carey,

KAREN COLLETTI, by and through her guardian, Vito Colletti,

CONSTANCE DANIELS, by and through her guardian, Elvera Daniels

LAURA GORDON, by and through her guardian, Muriel Gordon,

DEBRA HAMILTON, by and through her guardian, Marilyn Hamilton

PATRICIA IADICOLA, by and through her guardian, Mary ladicola,

BARBARA STEWARD, by and through her guardian, Marion Baldwin,

CIV. NO.: 1:12-cv-02S22

Plaintiffs,
v.

AMENDED COMPLAINT [DEMAND FOR JURY TRIAL]

CHRISTOPHER CHRISTIE, as Governor of the State of New Jersey; NEW JERSEY DEPARTMENT OF HUMAN SERVICES; JENNIFER VELEZ, as Commissioner of the New Jersey Department of Human Services; NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL I)ISABILITIES; DAWN APGAR, as Deputy Commissioner/ : Acting Assistant Commissioner of New Jersey Department of Human Services Division of Developmental Disabilities; VINELAND DEVELOPMENTAL CENTER; and ELOISE HAWKINS, as Chief Executive Officer of the Vineland Developmental Center,

Defendants.

January 11, 2013

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AMENDED COMPLAINT The Plaintiffs, TERESITA CAREY, by and through her guardian, Jim Carey, KAREN COLLETTI, by and through her guardian, Vito Colletti, CONSTANCE DANIELS, by and through her guardian, Elvera Daniels, LAURA GORDON, by and through her guardian, Muriel Gordon, DEBRA HAMILTON, by and through her guardian, Marilyn Hamilton, PATRICIA IADICOLA, by and through her guardian, Mary ladicola, BARBARA STEWARD, by and through her guardian, Marion Baldwin, by their undersigned attorneys, aver the following:
JURISDICTION 1. This action is for declaratory and injunctive relief under the Americans with Disabilities Act ("ADA"), 42U.S.C. § 12132, the Rehabilitation Act of 1973,29 U.S.C. § 794(a) ("Section 504"), the Medical Assistance Program authorized by 42 U.S.C. 1396, et seq., and the United States Constitution. 2. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331, 1342, and 1343. Plaintiffs' claims for declaratory and injunctive relief are authorized under 28 U.S.C. §§ 2201-02 and 42 U.S.C. § 1983 and the waiver of state sovereign immunity enacted in 42 U.S.C. § 2000d-7(a)(l) and various Medicaid federal statutes and regulations incorporated into New Jersey law. At all times relevant to this action, Defendants have acted under color of state law.
VENUE 3. Venue lies in the District of New Jersey pursuant to 28 U.S.C. § 1391(b), and in the Camden Division, because the Defendants officially reside in Cumberland County, New Jersey.
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NAMED PLAINTIFFS

4.

TERESITA CAREY is a 71 year old woman with intellectual disabilities who

resides at the Vineland Development Center in Vineland, New Jersey. Teresita brings this

lawsuit by and through her brother and legal guardian, Jim Carey.

5. KAREN COLLETTI is a 56 year old woman with mental retardation who lives in

Jones Cottage at Vineland Development Center in Vineland, New Jersey. Karen brings this

lawsuit by and through her father and legal guardian, Vito Colletti.

6. CONSTANCE DANIELS is a 54 year old woman with intellectual disabilities

who resides at Vineland Development Center in Vineland, New Jersey. Constance brings this

lawsuit by and through her mother and legal guardian, Elvera Daniels.

7. LAURA GORDON is a 51 year old woman with mental retardation who lives in

Jones Cottage at Vineland Development Center in Vineland, New Jersey. Laura brings this

lawsuit by and through her mother and legal guardian, Muriel Gordon.

8. DEBRA HAMILTON is a 53 year old woman with mental retardation who lives

in Kimble Cottage at the Vineland Development Center in Vineland, New Jersey. Debra brings

this lawsuit by and through her mother and legal guardian, Marilyn Hamilton.

9. PATRICIA IADICOLA is a 53 year old woman with mental retardation who lives

in Kimble Cottage at Vineland Development Center in Vineland, New Jersey. Patricia brings

this lawsuit by and through her mother and legal guardian, Mary Iadicola.

10. BARBARA STEWARD is a 74 year old woman with mental retardation who

resides at Vineland Development Center in Vineland, New Jersey. Barbara brings this lawsuit

by and through her cousin and legal guardian Marion Baldwin.

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DEFENDANTS
11. Defendant CHRISTOPHER CHRISTIE is the Governor of the State of New Jersey. Governor Christie is sued in his official capacity only.
12. Defendant NEW JERSEY DEPARTMENT OF HUMAN SERVICES ("DHS") is a public entity covered by Title II of the Americans with Disabilities Act 42 U.S.C. § 12131(1). It receives federal funds under § 504 of the Rehabilitation Act, 29 U.S.C. § 794. DHS administers services for more than one million of New Jersey's citizens, including individuals and families with low incomes; people with mental illnesses, developmental disabilities, or lateonset disabilities; people who are blind, visually impaired, deaf, hard of hearing, or deaf-blind; parents needing child care services, child support and healthcare for children; and families with catastrophic medical expenses for their children. DHS is the largest agency in New Jersey. DHS operates eight divisions including the Division of Developmental Disabilities.
13. Defendant JENNIFER VELEZ is the Commissioner of the New Jersey Department of Human Services ("DHS"). Ms. Velez is sued in her official capacity. Defendant Velez is ultimately responsible for ensuring that New Jersey operates its delivery of services to individuals with disabilities in conformity with the United States Constitution, the ADA, the ADA implementing regulations, section 504 of the Rehabilitation Act of 1973 as amended, 29 U.S.C. § 794(a), and section 504's implementing regulations.
14. Defendant NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES ("DDD") is a public entity covered by Title II of the Americans with Disabilities Act 42 U.S.C. § 12131(1). It receives federal funds under § 504 of the Rehabilitation Act, 29 U.S.C. § 794. DDD funds services and supports for eligible New
4

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Jersey residents with developmental disabilities. The division was created in response to the need for better and more effective services for state residents with developmental disabilities.
15. Defendant DAWN APGAR is Deputy Commissioner/Acting Assistant Commissioner of the New Jersey Department of Human Services Division of Developmental Disabilities. Ms. Apgar is sued in her official capacity. Defendant Apgar operates New Jersey's system of services to individuals with developmental disabilities and is ultimately responsible for ensuring that eligible New Jersey residents with developmental disabilities receive services and supports effectively and in accordance with the United States Constitution, the ADA, the ADA implementing regulations, section 504 of the Rehabilitation Act of 1973 as amended, 29 U.S.C. § 794(a), and section 504's implementing regulations.
16. Defendant VINELAND DEVELOPMENTAL CENTER is a residential facility that provides, among other things, habilitation, behavioral, and medical services and supports for women with developmental disabilities. It had two campuses: the East Campus, on Landis Avenue, and the West Campus, on Almond Road, in Vineland, Cumberland County, New Jersey. The Vineland Developmental Center is a public entity covered by Title II of the Americans with Disabilities Act 42 U.S.C. § 12131(1). It receives federal funds under § 504 of the Rehabilitation Act, 29 U.S.C. § 794.
17. Defendant ELOISE HAWKINS is the Chief Executive Officer of the Vineland Developmental Center. Ms. Hawkins is sued in her official capacity. Ms. Hawkins is responsible for the daily administration of Vineland Developmental Center. At the Vineland Developmental Center, she is the administrative supervisor for all treating professionals who serve Plaintiffs.
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CLASS ACTION ALLEGATIONS 18. Pursuant to Fed. R. Civ. P. 23(a) and (b)(2), the Named Plaintiffs bring this action on behalf of themselves and all other persons similarly situated. 19. Plaintiffs bring this action pursuant to the Civil Rights Act, 42 USC § 1983; the Americans with Disabilities Act, 42 USC § 12132; § 504 of the Rehabilitation Act, 29 USC § 794 ("Section 504"), and the waiver of state sovereign immunity enacted in 42 USC § 2000d7(a)( 1), various Medicaid federal statutes, and regulations incorporated into New Jersey law and the United States Constitution, on behalf of a Class consisting of themselves and all other persons who are residents of the Vineland Developmental Center, Cumberland County, New Jersey, as of April 25, 2010. 20. The proposed class consists of: New Jersey residents who reside or resided at the Vineland Developmental Center, at anytime since April 25, 2010, or at any time during this litigation. 21. Joinder of the entire Class is impracticable because the Class Members are numerous, and are persons with severe or profound developmental disabilities. Virtually all Class Members are unable to give their consent except through guardians or family members. 22. Plaintiffs' claims are typical of the claims asserted on behalf of the Class. 23. Plaintiffs do not have any interests that are adverse or antagonistic to any claims or potential claims of the Class. 24. Plaintiffs will fairly and adequately protect the interests of the members ofthe Class. 25. Plaintiffs are committed to the vigorous prosecution of this action and have retained counsel competent and experienced in this type of litigation.
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26. Plaintiffs do not seek monetary damages. Hence, the burden and expense of prosecuting this litigation makes it unlikely that members of the Class would or could prosecute individual actions. If individual actions were pursued by Class Members, prosecution of those individual claims would be impracticable and inefficient.
27. Plaintiffs are not aware of any other pending litigation concerning the claims herein.
28. This Court is the most appropriate forum for adjudicating the claims at issue, which arise under federal law.
29. Plaintiffs do not anticipate any difficulty in the management of this action as a class action.
30. There are many questions of law and fact common to the Class, which predominate over any questions which may affect individual members. The predominant common questions of law and fact include, among others:
(a) Whether Defendants are liable for violation of the Civil Rights Act, 42 U.S.C. § 1983;
(b) Whether Defendants are liable for violation of the Americans with Disabilities Act, 42 U.S.C. § 12132;
(c) Whether Defendants are liable for violation of § 504 ofthe Rehabilitation Act, 29 U.S.C. § 794 ("Section 504"), and the waiver of state sovereign immunity enacted in 42 U.S.c. § 2000d-7(a)(l);
(d) Whether Defendants are liable for violation of various Medicaid federal statutes and regulations incorporated into New Jersey law;
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(e) Whether Defendants are liable for violations of the United States Constitution; and
(f) Whether named Plaintiffs and Class Members are entitled to equitable and injunctive relief.
31. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy.
32. Plaintiffs seek declaratory and injunctive relief, attorneys' fees and expenses as permitted by law, on behalf ofthemselves and the Class.
COMMON FACTUAL ALLEGATIONS. 33. All Plaintiffs reside at the Vineland Developmental Center or resided there as of April 25, 2010. 34. All ofthe residents of Vineland Developmental Center are females. Almost all of Vineland's residents have lived in their homes at the Vineland Developmental Center for many years, with 68 percent of those residents having lived there for more than 30 years. 35. The Vineland Developmental Center is an Intermediate Care Facility for Individuals with Intellectual Disabilities that is operated by the State of New Jersey. It is licensed to serve 556 residents, and currently serves approximately 347 individuals. 36. An Intermediate Care Facility for Individuals with Intellectual Disabilities("ICF/IID") (formerly referred to as an Intermediate Care Facility for the Mentally Retarded or "ICF/MR") is regulated by the Centers for Medicare and Medicaid Services ("CMS") in conjunction with the state's licensing agency. Part of that regulatory process includes routine surveys by CMS and the state's licensing agency to ensure quality treatment and services are provided by ICF/IID-certified facilities, like Vineland Developmental Center.
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37. Eligibility for residence in a New Jersey developmental center is defined by Section 1.3 of Division Circular #3, N.J.A.C. 10:46-1.3, effective March 24,2011. That regulation defines the developmental disability that must be present in order to receive services as a severe, chronic disability of an individual, which is attributable to a mental impairment, physical impairment, or combination of both; is manifested before age 22; is likely to continue indefinitely; results in a combination of functional limitations in major life activities; reflects the need for a combination of special interdisciplinary care or treatment of lifelong or extended duration; and includes, but is not limited to, developmental disabilities, autism, cerebral palsy, epilepsy, spina bifida, and other neurological impairments.
38. All Plaintiffs are diagnosed as in need of state-run rCF/IID institutional care and have been appropriately designated as eligible for state-operated rCF/IID-level of care.
39. Eighty-six (86) percent of the individuals residing at the Vineland Developmental Center have been diagnosed with profound or severe intellectual disabilities. Approximately thirteen (13) percent of individuals residing at the Vineland Developmental Center have been assessed with a diagnosis of mild or moderate levels of intellectual disability. Almost all individuals residing at the Vineland Developmental Center (hereinafter referred to as "Vineland" or "VDC") have been diagnosed with additional disabilities, including: Sixty-five (65) percent of the population diagnosed with seizure disorders, seventeen (17) percent diagnosed with autism, and twenty-eight (28) percent diagnosed with cerebral palsy. rn addition, forty-six (46) percent have vision difficulties, and twelve (12) percent have hearing impairments.
40. The primary service needs of individuals at Vineland require a variety of services and supports. Some broad areas of service are described below, along with the number of individuals for whom that service is their primary need:
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(a) Extensive Personal Care - Approximately three hundred (300) VDC individuals require extensive personal care. This need refers to people who require total assistance and care provided by direct service staff who are specially trained on individualized programs developed by residents' treating professionals, including physicians, nurses, physical therapists, occupational therapists, speech language pathologists, and many other licensed clinicians who treat residents at the Center.
(b) Significant Health Care Services - Treating professionals at Vineland have determined that significant nursing intervention and monitoring are required to effectively treat about seventy (70) Vineland residents, who have significant health care needs. This service includes the need for 24hour monitoring and immediate availability of treating professionals for intermittent pressure breathing, inhalation assistive devices, tracheotomy care, or treatment for recurrent pneumonias or apnea.
(c) Ambulation - Approximately thirty-seven (37) percent of Vineland residents are non-ambulatory or require assistance with ambulation.
(d) Significant Behavioral Support - Approximately sixty-three (63) individuals residing at Vineland require significant behavioral support. This need addresses individuals who have behaviors that require intervention for the safety of themselves or others, as developed by psychologists and medical personnel and implemented in conjunction with direct service staff.
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41. Prior to 2010, all Vineland residents were consistently evaluated by their treating professionals and determined to be in need ofICF/IID services and that the best setting for Plaintiffs to receive those services was at the Vineland Developmental Center. Subsequent to Defendants' announcement of an intent to close the Vineland Developmental Center, treating professionals often have routinely and inappropriately stated that Plaintiffs would best be served in alternative settings, including settings that do not provide ICF/IID-level of care. Most of these statements supporting placement in the "community" were not based upon sound and unbiased professional judgments consistent with accepted professional standards.
42. For a significant period of time from 2010 to 2012, the Defendants openly stated their intent to close Vineland, and in fact greatly downsized Vineland by closing one (1) of its two (2) campuses. Even though the official focus appears to have shifted to the closure of two (2) other developmental centers, North Jersey Developmental Center and Woodbridge Developmental Center, the treating professionals at Vineland continue to make routine and inappropriate recommendations for placements outside of Vineland due to the illegal and unsound policies and practices of the Defendants encouraging the downsizing or closure of developmental centers.
43. All Plaintiffs have the right to receive ICF/IID-level of services from the State of New Jersey.
44. All Plaintiffs have had or imminently will have their rights to receive ICF/IIDlevel services at the Vineland Developmental Center denied. The policies and practices of the State will deceive, frighten, and coerce residents of Vineland into inappropriately surrendering their rights to receive this superior level of care. Also, the loss of professionals and other staff at Vineland, due to a perceived lack ofjob security, and the loss of some services at Vineland due
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to its downsizing and the underlying plan to close all Developmental Centers, will result in inferior care in violation of Plaintiffs' rights and will ultimately inappropriately force residents to leave Vineland.
45. Defendants seek to compel Plaintiffs' discharge from Vineland Developmental Center to other settings, including non-ICF/IID-certified settings. The decision to not officially target Vineland for closure at this time, while two (2) other Developmental Centers are officially targeted, does not stop the overall statewide effort to downsize and close all the Developmental Centers. The State will continuie to inappropriately, unfairly, and illegally downsize the current Vineland population to make room for residents from facilities that are targeted immediately for closure and to eventually close Vineland. The State has not given any promise for how long Vineland will remain open, which betrays their true intent in the longer term.
46. Defendants' policies and procedures have interfered with or usurped the ability of Plaintiffs' treating professionals to make independent and sound professional judgments. The treating professionals are now often following a political or administrative agenda rather than accepted professional standards.
47. Defendants' policies and procedures have unduly influenced or compelled Plaintiffs' treating professionals to recommend transfer or discharge of Plaintiffs to settings that are not the most appropriate for Plaintiffs' needs, solely for the purpose of conforming to Defendants' political policy decisions.
48. All Plaintiffs are medically and developmentally most appropriately served at the Vineland Developmental Center instead of any alternative setting.
49. All Plaintiffs are physically, mentally, and emotionally fragile and are most appropriately served at the Vineland Developmental Center instead of any alternative setting.
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50. All Plaintiffs are in need of continuous care by multidisciplinary teams of professionals as are currently serving them at the Vineland Developmental Center.
51. The services provided to Plaintiffs cannot be reasonably replicated in alternative residential settings.
52. Non-ICF/IID-certified settings are not able to reasonably provide the same level of care as an ICF/IID-certified facility.
53. Services provided to residents at the Vineland Developmental Center are uniquely tailored to the needs ofthe residents of that Center.
54. None of the Plaintiffs have given informed consent for their discharge from Vineland Developmental Center because, among other things, Defendants have precluded treating professionals at the Vineland Developmental Center from fully and fairly considering whether Vineland best meets the needs of the Plaintiffs, and have prevented those treating professionals from acknowledging the rights of Plaintiffs to receive treatment and services at Vineland Developmental Center or in another ICFIIID.
55. Plaintiffs have not had the benefit of their respective treating professionals' independent judgment about whether they should continue to reside at Vineland Developmental Center or at another state-operated ICFIIID.
56. Defendants have or will unduly influence or compel Plaintiffs to receive services in non-ICF/IID facilities. Those services are inferior to the services provided at Vineland Developmental Center because, among other reasons, they will not be provided by an individualized, multidisciplinary team of professionals.
57. Persons residing in the type of settings to which Defendants intend to discharge Plaintiffs, are at approximately seventy-five (75) percent greater risk of death, abuse, and neglect
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as compared to similar persons receiving services at a facility like Vineland Developmental Center.
58. Defendants know or should know of the increased danger of death, abuse, and neglect to which Plaintiffs will be subjected ifthey are discharged from Vineland, as sought by Defendants' political plan to downsize or close all the Developmental Centers.
59. Persons residing in the type of "community" settings to which Defendants intend to discharge Plaintiffs are likely to be more secluded from the community immediately surrounding them and be more restricted in their interactions with non-disabled peers as compared to similar persons receiving services at a facility like Vineland Developmental Center.
60. In May 2011, Defendants announced their plan to "depopulate" and close the Vineland Developmental Center and discharge residents to non-ICF-IID-certified alternative settings. The plan was to move the residents to "community" settings such as small group homes, nursing homes, and other settings with smaller populations where they would allegedly have more interactions with the non-disabled population. In reality, these residents may actually be more isolated in a small home or apartment than they were at Vineland, as Vineland is open to community events and has opportunities for cOJ;nmunity involvement.
61. Among the reasons identified by Defendants for their "depopulation" plan was the ostensibly high cost of providing the necessary services for the disabled residents of the State's developmental centers.
62. As part of that plan, Defendants also announced that they would close the West Campus ofthe Vineland Developmental Center. Defendants have taken significant steps in that plan, including the closing of the West Campus. The Defendants have transferred and discharged residents without adequate transition plans, without guardian or residents' full and
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fair participation, without treating professionals' independent and sound assessments, without regard for residents' specific individual needs and desires, and without regard for the rights of residents. Because of continuing arbitrary and inappropriate recommendations by treating professionals that residents of Vineland can be and should be served in the "community," the remaining residents remain at great risk of being improperly and detrimentally transferred out of Vineland.
63. The identity and circumstances of all adversely impacted former and current residents can only be obtained through appropriate discovery in this case, including the names and contact information of all members of the proposed class.
64. Contrary to Defendants' public statements about the alleged general desire for "community" placements, Plaintiffs have not requested discharge or transition from Vineland Developmental Center.
65. Defendants have instructed or inappropriately encouraged Plaintiffs' treating professionals to include language in Plaintiffs' individual habilitation plans indicating that Plaintiffs are capable of being served in settings other than Vineland Developmental Center, regardless of whether Plaintiffs are actually capable of being served in alternative settings.
66. Defendants have instructed or inappropriately encouraged Plaintiffs' treating professionals to include language in Plaintiffs' individual habilitation plans indicating that Plaintiffs have requested discharge to settings other than Vineland Developmental Center, regardless of whether Plaintiffs actually communicated such a request.
67. These treating professionals are likely intimidated and fearful of retaliation, including the possible loss of their jobs, and likely will only be forthcoming with information to
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support the position of Plaintiffs if protected by or compelled by appropriate discovery in this case.
68. Because Plaintiffs' treating professionals have not been able to provide independent judgments about Plaintiffs' ability to be comparatively served in alternative settings, the judgments they have made in that regard are largely unreliable and inaccurate.
69. Many of the Plaintiffs have not been provided sufficient information to allow them to provide informed consent to discharge.
70. Defendants made the decision to downsize or depopulate the Vineland Developmental Center without regard to the needs of the individual Plaintiffs, their individual support plans (which are developed in conjunction with their treating professionals), or their rights to receive services in the least restrictive setting appropriate to their needs.
71. On December 14,2011, the New Jersey Legislature enacted a statute which included the creation of a task force to evaluate the state's seven developmental centers and to issue binding and non-binding recommendations to the Department of Ruman Services ("DRS") with respect to closure of one or more of the centers. Senate No. 2928, Chapter 143 P.L. 2011.
72. On August 1,2012, the "Task Force on the Closure of State Developmental Centers" ("task force") issued a "Final Report As Submitted to Governor Chris Christie and the New Jersey Legislature" ("Final Report").
73. The Task Force's allegedly binding recommendation as contained in the Final Report instructed DRS "to develop and implement a plan to close North Jersey Developmental Center followed by Woodbridge Developmental Center within the next five years ...." Id. at 8.
74. While the Final Report contains language regarding the needs of the residents, such language is largely rendered meaningless by the Task Force's presumption that the two
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facilities must be closed, and that residents must be discharged to achieve its binding recommendation and to achieve the political agenda of the State. Similarly, although Vineland is not an official and immediate target for closure, there is an underlying presumption by the State, as evidenced by its policies and practices, that Vineland must ultimately close. The needs of the residents of Vineland should be the primary concern of the State, but instead the State gives priority to its political agenda.
75. The Task Force's recommendations and the State's actions to discharge residents to comply with the recommendations of closure elude meaningful evaluation and consideration of treatment team professionals regarding most integrated residential settings and alternative settings which can serve the needs of such residents.
76. The Task Force rendered opinions and recommendations based on faulty data. 77. Residents of the State's developmental centers, those recommended for closure and those not recommended for closure, have the right to receive recommendations from their respective treating professionals regarding the most appropriate setting to meet the needs of such residents. 78. The Task Force's mandate to close two developmental centers without meaningful evaluation of the residents' needs further evidences that the residents of the developmental centers have not received treating professionals' recommendations without unreasonable interference or influence from the State's policies, procedures and agendas. 79. Despite the publicly announced targeting for closure of two (2) other Developmental Centers, the inappropriate conduct of the Defendants has continued as to Vineland residents. In fact, it is believed that the Defendants still support policies and practices that encourage the downsizing or closure of all Developmental Centers. Furthermore, there will
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be continuing pressure by the Defendants to move residents out of Vineland to make room for residents from North Jersey Developmental Center (hereinafter referred to as "North Jersey") and Woodbridge Developmental Center (hereinafter referred to as "Woodbridge"), so that the arbitrary and unreasonable closure deadlines can be met.
80. The announced targeting of North Jersey and Woodbridge for closure has not stopped the violation of Plaintiffs rights at Vineland.
81. The Plaintiffs' causes of action are not based upon, reliant upon, or adversely impacted by any recommendation or finding by the Task Force. The allegedly binding recommendations ofthe Task Force are merely further evidence of an overall plan to downsize and eventually close all developmental centers in the State of New Jersey.
82. Plaintiffs who have already been discharged from Vineland Developmental Center are being denied access to a similar level of treatment and services they received at the Vineland Developmental Center.
83. Plaintiffs currently residing at Vineland Developmental Center will be denied access to their current high level of treatment and services if the Defendants continue with their current plan to discharge residents.
COMMON ALLEGATIONS OF RIGHTS AND DUTIES. 84. As described more fully herein, each Plaintiff has a constitutional right, a life and liberty interest in, and a statutory entitlement to receive treatment and services from the State of New Jersey in the most appropriate setting for his or her needs. 85. Interpreting the ADA and the Department of Justice's regulations issued under it, the Supreme Court decision in Olmstead emphasized that there is no "federal requirement that
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community-based treatment be imposed on patients who do not desire it." Olmstead v. Zimring, et aI., 527 U.S. 581,602 (1999). The Olmstead Court further stressed that "nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings." Id. at 601-02. "[T]he ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk." Id. at 605.
86. In fact, the Olmstead decision recognized that "for [some] individuals, no placement outside the institution may ever be appropriate." Id. (citing and quoting Brief for American Psychiatric Association et ai. as Amici Curiae at 22-23 ("Some individuals, whether mentally retarded or mentally ill, are not prepared at particular times-perhaps in the short run, perhaps in the long run-for the risks and exposure of the less protective environment of community settings"); Brief for Voice of the Retarded et al. as Amici Curiae at 11 ("Each disabled person is entitled to treatment in the most integrated setting possible for that personrecognizing that, on a case-by-case basis, that setting may be in an institution"); Youngberg v. Romeo, 457 U.S. 307,327 (1982) (Blackmun, J., concurring) ("For many mentally retarded people, the difference between the capacity to do things for themselves within an institution and total dependence on the institution for all of their needs is as much liberty as they ever will know").
87. By virtue of the ADA and the Olmstead decision, Plaintiffs have a federallyprotected right to receive recommendations from treating professionals as to whether community placement is the most appropriate to their needs and to fair consideration of their opposition to that transfer, even if the proposed transfer is from institutional care to an allegedly less restrictive setting. The only proper mechanism for second-guessing an individual or guardian's decision to
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oppose a treating professional's recommended transfer to a less restrictive setting is through State law and State Court Rules. See N.J. Stat. Ann. §§ 3B: 12-1 et seq.; N.J. Court Rule 4:86.
88. The paradigm created by the Olmstead decision dictates that residents of the Vineland Development Center and their guardians have the benefit oftreating professionals' judgments regarding the most appropriate place to receive services. Only after they have the benefit of that information are residents and guardians required to oppose or consent to continued residence at the facility or discharge to an alternative setting.
89. The Defendants have ignored and will continue to ignore Plaintiffs' right to have treating professionals render full and fair judgments as to where Plaintiffs' should receive services most appropriate to their needs.
90. Likewise, Defendants have ignored and will continue to ignore Plaintiffs' rights, as recognized by Olmstead, to oppose discharge from Vineland.
91. Pursuant to 42 U.S.c. § 12134, Defendants are under a constitutional and statutory duty to:
(a) effectuate the placement of Plaintiffs in the "most integrated setting appropriate to the needs of qualified individuals with disabilities," a setting that "enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible." (28 C.F.R. pt. 35 app. A.);
(b) not place Plaintiffs in more restrictive or dangerous placements than they currently enjoy;
(c) effectuate appropriate institutional placement for each Plaintiff;
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(d) propose an ICF/IID-certified institutional discharge appropriate for the Plaintiffs only where medically and therapeutically appropriate upon an impartial multidisciplinary evaluation;
(e) ensure that Plaintiffs, Plaintiffs' guardians and/or Plaintiffs' families understand their right to receive treatment and care at an ICF/IID-certified facility prior to seeking consent to discharge a plaintiff from the Center;
(f) obtain the input and informed consent of Plaintiffs, Plaintiffs' guardians and/or Plaintiffs' families for such transfers.
FIRST CAUSE OF ACTION AMERICANS WITH DISABILITIES ACT VIOLATIONS 92. Plaintiffs' incorporate paragraphs one (1) through ninety (91) herein by reference as though fully set forth. 93. Because discharges or transfers are being forced on Plaintiffs without their consent, or the consent of their guardians or families, and without appropriate recommendations from treating professionals, such discharges or transfers violate the Americans with Disabilities Act and the Rehabilitation Act. 42 U.S.C. §§ 12131 - 12134. 94. The Plaintiffs are entitled to injunctive and declaratory relief that the Defendants shall not discharge or transfer them from their current residences without meeting the requirements that:
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(a) such discharge or transfer will not result in Plaintiffs receiving treatment and services in a setting more restrictive of their rights than their current residence;
(b) such discharge or transfer will not be recommended by treating professionals unless the treating professionals independently conclude that such a placement is in the best interests of each Plaintiff and is the most appropriate setting to meet their needs; and
(c) the Plaintiffs by their guardians or families wish to effect such discharge or transfer.
95. Plaintiffs are entitled to the following additional declaratory and injunctive relief: (a) directing Defendants to abide by treatment plans independently prepared by Plaintiffs' respective treating professionals, without regard for the Defendants' mandate to downsize or close any developmental centers, and documented in their respective multidisciplinary evaluations (known as Individual Habilitation Plans at the Vineland Developmental Center). (b) Permitting each Plaintiff to choose: (i) to accept or reject the recommendation ofthe multidisciplinary evaluation; and (ii) to receive treatment in accordance with the independent recommendations of the multidisciplinary evaluation, either at the Vineland Developmental Center, another state operated ICFIIID facility, or non-ICFIIID certified setting, as the plaintiff deems appropriate.
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SECOND CAUSE OF ACTION REHABILITATION ACT VIOLATIONS 96. Plaintiffs' incorporate paragraphs one (1) through ninety-four (9S) herein by reference as though fully set forth. 97. Section S04 of the Rehabilitation Act states that "[n]o otherwise qualified person with disabilities shall, solely by reason of his or her disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance." 29 U.S.C. § 794(a). 98. Each named Plaintiff and class member is a "qualified person with disabilities" within the meaning of Section S04, because they (1) have physical and/or mental impairments that substantially limit one or more major life activities; and (2) meet the essential eligibility requirements for long term care under New Jersey's Medicaid program and are thus "qualified." 99. Regulations implementing Section S04 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 CFR § 41.S1 (d). 100. Section S04's regulations prohibit recipients of federal financial assistance from utilizing criteria or methods of administration: (a) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap [or] (b) that have the purpose or effect of defeating or substantially impairing accomplishment ofthe objectives of the recipient's program with respect to handicapped persons.
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101. Defendants have required that Plaintiffs be discharged or transferred from Vineland Developmental Center to other settings in violation of Section 504's integration mandate.
102. Further, Defendants have utilized criteria and methods of administration that subject Plaintiffs and class members to discrimination on the basis of disability, by (1) failing to assess properly the services and supports that would enable Plaintiffs to receive services and treatment in the most appropriate settings for their needs, (2) failing to develop proper individualized transition plans, (3) failing to allow guardians to be a part of the planning process, (4) failing to inform Plaintiffs of all of their options for receiving services, and (5) allocating resources for non-rCF/IID care contrary to the desires and needs of people with disabilities.
103. The Plaintiffs are entitled to injunctive and declaratory relief that the Defendants shall not discharge or transfer them from their current residences without meeting the requirements that:
(a) such discharge or transfer will not result in Plaintiffs receiving treatment and services in a setting more restrictive of their rights than their current placement;
(b) such discharge or transfer will not be recommended by treating professionals unless the treating professionals conclude that such a placement is in the best interests of the individual Plaintiffs and is most appropriate to meet their needs; and
(c) the Plaintiffs by their guardians or families wish to effect such discharge or transfer.
104. Plaintiffs are entitled to the following additional declaratory and injunctive relief:
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(a) directing Defendants to abide by treatment plans independently prepared by Plaintiffs' respective treating professionals, without regard for the Defendants' mandate to downsize or close any Developmental Centers, and documented in their respective multidisciplinary evaluations (known as Individual Habilitation Plans at the Vineland Developmental Center).
(b) Permitting each Plaintiff to choose: (i) to accept or reject the recommendation of the multidisciplinary evaluation; and (ii) to receive treatment in accordance with the independent recommendations of the multidisciplinary evaluation, either at the Vineland Developmental Center, another state-operated ICF/IID facility, or non-ICF/IID certified setting, as the Plaintiff deems appropriate.
THIRD CAUSE OF ACTION MEDICAID ACT VIOLATIONS 105. Plaintiffs' incorporate paragraphs one (1) through one hundred three (104) herein by reference as though fully set forth. 106. The State of New Jersey has voluntarily assumed certain obligations under federal law in return for federal funding under the Medical Assistance Program authorized by 42 U.S.C. § 1396, et seq. 107. Those obligations include:
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(a) choice of an ICF/IID institutional placement, subject to a hearing, under 42 U.S.c. § 1396n and 42 CFR § 441.302(d);
(b) provision ofICF/IID services under 42 U.S.C. §§ 1396a(a)(10) and 1396d(a)(l5);
(c) competent evaluation for placement in an institutional ICF/IID facility under 42 CFR § 483.440(b)(3);
(d) a continuous active treatment program as defined in 42 CFR § 483.440(a)(1).
108. All Plaintiffs receive assistance under the Medical Assistance Program and are owed the duties stated in the preceding paragraph.
109. Defendants have an obligation to ensure that Plaintiffs' needs and preferences are being met in their multidisciplinary plan.
110. Defendants have failed to ensure that Plaintiffs' needs and preferences are being met in their multidisciplinary plan.
111. Defendants are violating their duties to Plaintiffs under the Medical Assistance Program by their acts and omissions alleged above.
112. Plaintiffs are entitled to declaratory and injunctive relief as to the following: (a) such discharge or transfer will not result in Plaintiffs receiving treatment and services in a setting more restrictive of their rights than their current placement; (b) such discharge or transfer will not be recommended by treating professionals unless the treating professionals conclude that such a
26

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placement is in the best interests of the individual Plaintiffs and most appropriate to meet their needs; and (c) the Plaintiffs by their guardians or families wish to effect such discharge or transfer. 113. Plaintiffs are entitled to the following additional declaratory and injunctive relief: (a) directing Defendants to abide by treatment plans independently prepared by Plaintiffs' respective treating professionals, without regard for the Defendants' mandate to downsize or close any developmental centers, and documented in their respective multidisciplinary evaluations (known as Individual Habilitation Plans at the Vineland Developmental Center). (b) Permitting each Plaintiff to choose: (i) to accept or reject the recommendation of the multidisciplinary
evaluation; and (ii) to receive treatment in accordance with the independent
recommendations of the multidisciplinary evaluation, either at the Vineland Developmental Center, another state operated ICP/lID, or non-ICP/lID certified setting, as the Plaintiff deems appropriate.
FOURTH CAUSE OF ACTION CONSTITUTIONAL DUE PROCESS VIOLATIONS
114. Plaintiffs' incorporate paragraphs one (1) through one hundred twelve (113) herein by reference as though fully set forth.
115. At all relevant times, Defendants were "persons" under 42 U.S.c. § 1983.
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116. At all relevant times, Defendants were acting "under color of state law" under 42 U.S.c. § 1983.
117. At all relevant times, a "special relationship" existed between each of the Plaintiffs and the state and state actors that were responsible for their safety.
118. Defendants, while acting under color of state law, unlawfully, intentionally, unreasonably, maliciously and with deliberate andlor reckless indifference to the Plaintiffs' substantive due process rights secured to Plaintiffs under the Fourth andlor Fourteenth Amendments to the United States Constitution, in violation of 42 U.S.C. § 1983 et. seq. and similar provisions of federal, state andlor local law, violated Plaintiffs' rights as alleged above and as follows.
119. The Plaintiffs have significant mental and behavioral health issues. They are unable to verbally articulate their medical and personal needs. Most of them have very limited mobility, and some have none. They are unable to care for themselves in even the most basic ways. They are at the mercy of the persons who provide them with care. Without the regulatory guarantees provided by an ICFIIID facility, they are defenseless against many forms of abuse and neglect which can lead to their injury or death.
120. Before becoming residents at Vineland, some Plaintiffs were abused and neglected in the same types of "community" settings Defendants intend to force Plaintiffs into now.
121. Defendants know or should know that placing the Plaintiffs in other settings, including non-ICFIIID settings will substantially increase their likelihood of injury and death from abuse, neglect, error, lack of appropriate services, and other causes.
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122. Defendants' failure to provide adequate safeguards to prevent such harm is a violation of Plaintiffs' constitutional right not to be deprived of life or liberty without due process oflaw.
123. The actions of the Defendants herein have significantly contributed to and increased the vulnerability of the Plaintiffs and created risks that would not have otherwise existed if Defendants complied with their legal duties.
124. Defendants' actions and inactions constitute a violation of Plaintiffs' federal rights, as protected by the Fourteenth Amendment to the Constitution of the United States and other federal laws. Unless restrained by this Court, Defendants will continue to engage in their misbehavior, which deprives the Plaintiffs of rights, privileges and immunities secured by the Constitution of the United States and federal law, and will cause irreparable harm to these residents.
125. The harm ultimately caused or to be caused to the Plaintiffs was or is foreseeable and sufficiently direct.
126. Plaintiffs are entitled to declaratory and injunctive relief directing that: (a) such discharge or transfer will not result in Plaintiffs receiving treatment and services in a setting more restrictive of their rights than their current placement; (b) such discharge or transfer will not be recommended by treating professionals unless the treating professionals conclude that such a placement is in the best interests of the individual Plaintiffs; and (c) such discharge or transfer will not occur unless the Plaintiffs, by their guardians or families, wish to effect such discharge or transfer.
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127. Plaintiffs are entitled to the following additional declaratory and injunctive relief: (a) directing Defendants to abide by treatment plans independently prepared by Plaintiffs' respective treating professionals, without regard for the Defendants' mandate to downsize or close any developmental centers, and documented in their respective multidisciplinary evaluations (known as Individual Habilitation Plans at the Vineland Developmental Center). (b) Permitting each Plaintiff to choose: (i) to accept or reject the recommendation ofthe multidisciplinary evaluation; and (ii) to receive treatment in accordance with the independent recommendations of the multidisciplinary evaluation, either at the Vineland Developmental Center, another state operated ICF/IID facility, or non-ICF/IID certified setting, as the Plaintiff deems appropriate.
CONCLUSION WHEREFORE Plaintiffs seek:
(a) Declaratory and injunctive relief as set forth herein. (b) An award to Plaintiffs' of reasonable attorneys' fees, litigation expenses,
and costs; and (c) Any other relief this Court deems just and proper.
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JURY DEMAND Plaintiffs demand a trial by jury.

Date: January 11,2013

Respectfully submitted,
/s/ Thomas A. Archer Thomas A. Archer NJ Attorney LD. 054321994 3401 North Front Street Harrisburg, PA 17110-0950 (717) 232-5000 Fax: (717) 236-1816 taarcher@mette.com
THE YORK LEGAL GROUP, LLC
/s/ Thomas B. York Thomas B. York PA Attorney LD. No. 32522 3511 North Front Street Harrisburg, PA 1711 0 (717) 236-9675 Fax: (717) 236-6919 tyork@yorklegalgroup.com
Attorneys for Plaintiffs

31

Case 1:12-cv-02522-RMB-AMD Document 30 Filed 01/11/13 Page 32 of 32 PageID: 198 CERTIFICATE OF SERVICE
I hereby certify that on this 11 th day of January 2013, I electronically filed the foregoing with the Clerk of Courts, using the CM/ECF system, which will then send notification of such filing (NEF), to the following:
Gerard Hughes, Esquire Office of the New Jersey Attorney General
Division of Law 26 Market Street
P.O. Box 112 Trenton, New Jersey 08625-0112
lsi Thomas A. Archer
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 Case 1:12-cv-02522-RMB-AMD Document 33-1 Filed 02/08/13 Page 1 of 40 PageID: 203

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

TERESITA CAREY, by and through her guardian, Jim Carey, et al.,
Plaintiffs,
v.
CHRISTOPHER CHRISTIE, Governor of the State of New Jersey, et al.,
Defendants.

)

)

) HON. RENEE MARIE BUMB,

) U.S.D.J.

)

)

)

Civil Action

)

)

) Civil Action No. 1:12-cv-02522

)

)

)

)

)

BRIEF ON BEHALF OF DEFENDANTS, CHRISTOPHER CHRISTIE, GOVERNOR OF THE STATE OF NEW JERSEY, ET AL., IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT UNDER FED. R. CIV. P. 12(b)

GERARD HUGHES Deputy Attorney General
On the Brief

JEFFREY S. CHIESA ATTORNEY GENERAL OF NEW JERSEY Attorney for Defendants R.J. Hughes Justice Complex P.O. Box 112 Trenton, New Jersey 08625 (609) 341-5096

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TABLE OF CONTENTS PAGE
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . 1 PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . 5 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . 10 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 11
POINT I PLAINTIFFS’ CLAIMS ARE NOT RIPE BECAUSE DEFENDANTS HAVE NO PLAN TO CLOSE VINELAND DEVELOPMENTAL CENTER OR TO TRANSFER PLAINTIFFS TO ALTERNATE RESIDENTIAL PLACEMENTS
. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 POINT II PLAINTIFFS’ ADA AND REHABILITATION ACT CLAIMS SHOULD BE DISMISSED BECAUSE THESE LAWS DO NOT REQUIRE DEFENDANTS TO SERVE INDIVIDUALS IN INSTITUTIONS . . . . . . . . . . . 16 POINT III PLAINTIFFS’ MEDICAID ACT CLAIMS SHOULD BE DISMISSED BECAUSE THE ACT DOES NOT REQUIRE DEFENDANTS TO SERVE PLAINTIFFS IN A PARTICULAR INSTITUTION . . . . . . . . . 24 POINT IV THE COURT SHOULD ABSTAIN FROM HEARING PLAINTIFFS’ DUE PROCESS CLAIMS BECAUSE THE STATE HAS AN ADMINISTRATIVE AND JUDICIAL APPEAL PROCESS TO ADJUDICATE THE APPROPRIATENESS OF DEFENDANTS’ OFFERS OF RESIDENTIAL PLACEMENT . . . . . . . . . . . . . . . . . . . . . . . 27
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 34
-i-

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TABLE OF AUTHORITIES
CASES CITED
PAGE
Burford v. Sun Oil Co., 319 U.S. 315 (1943) . . . . . . . 28, 29
Chiropractic America v. LaVecchia, 180 F.3d 99 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . 30, 32
E. Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Estate of DeMartino v. Division of Medical Assistance and Health Services, 373 N.J. Super. 210 (App. Div. 2004), certif. denied, 182 N.J. 425 (2005) . . . . . . . . . . 24, 25
Frederick L. v. Dep’t of Pub. Welfare of the Commonwealth of Pennsylvania, 364 F.3d 487 (3d. Cir. 2004) . . . . . 18, 19
Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995) . . . . . . . 19
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410 (3d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . 11
J.D. v. Div. of Developmental Disabilities, 329 N.J. Super. 516 (App. Div. 2000) . . . . . . . . . . . . 5
J.E. v. Division of Developmental Disabilities, 131 N.J. 552 (1993) . . . . . . . . . . . . . . . . 30, 31, 32
Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d 89 (3d Cir. 2011) . . . . . . . . . . . . . . . . . . . . . 7, 11
Longshoreman v. Boyd, 347 U.S. 222 (1954) . . . . . . . . . . 14
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) . . . . . 12
Mistrick v. Division of Medical Assistance and Health Services, 154 N.J. 158 (1998) . . . . . . . . . . . . . . . . . . 24, 25
Morse v. Lower Merion Sch. Dist., 132 F.3d 902 (3d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . 11
Mortensen v. First Fed. Savings and Loan Ass’n, 549 F.2d 884 (3d Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . 10
-ii-

Case 1:12-cv-02522-RMB-AMD Document 33-1 Filed 02/08/13 Page 4 of 40 PageID: 206
New Orleans Public Service, Inc. v. Council of the City of New Orleans, 491 U.S. 350 (1989) . . . . . . . . 29, 30, 32
Newark v. Natural Resource Council, Dep’t of Envt’l Protection, 82 N.J. 530 cert. denied, 449 U.S. 983 (1980) . . . . . . . 33
North Carolina v. Rice, 404 U.S. 244 (1971) . . . . . . . . . 12 Olmstead v. L.C., 527 U.S. 581 (1999) . . . . . . . . . . passim Pittsburgh v. W. Penn Power Co., 147 F.3d 256
(3d Cir. 1998) . . . . . . . . . . . . . . . . . . . . . 7, 11 Presbytery of N.J. v. Florio, 40 F.3d 1454 (3d Cir. 1994) . . 12 Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996) . . . . 28 Scheuer v. Rhodes, 416 U.S. 232 (1974) . . . . . . . . . . . 10 Texas v. United States, 523 U.S. 296 (1998) . . . . . 12, 13, 14 Thomas v. Union Carbide Agricultural Products Co.,
473 U.S. 568 (1985) . . . . . . . . . . . . . . . . . . . . 12 Warth v. Seldin, 422 U.S. 490 (1975) . . . . . . . . . . . . 12 Youngberg v. Romeo, 457 U.S. 307 (1982) . . . . . . . . . . . 31
UNITED STATES CONSTITUTION PROVISIONS CITED Fourteenth Amendment . . . . . . . . . . . . . . . . . . . 3, 31
FEDERAL STATUTES CITED 29 U.S.C. 794 . . . . . . . . . . . . . . . . . . . . . . . . 18 42 U.S.C.A. 301 et seq. . . . . . . . . . . . . . . . . . . . 25 42 U.S.C.A. 1396 et seq. . . . . . . . . . . . . . . . . . . 24 42 U.S.C.A. 1396a . . . . . . . . . . . . . . . . . . . . . . 25 42 U.S.C. 1396d . . . . . . . . . . . . . . . . . . . . . . . 26 42 U.S.C. 1396n . . . . . . . . . . . . . . . . . . . . . . 6, 26
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42 U.S.C. 12101 . . . . . . . . . . . . . . . . . . . . . . . 17 42 U.S.C. 12132 . . . . . . . . . . . . . . . . . . . 17, 19, 20 42 U.S.C. 12134 . . . . . . . . . . . . . . . . . . . . . . . 17
FEDERAL REGULATIONS CITED 28 C.F.R. 35.130 . . . . . . . . . . . . . . . . . . . . 18, 19 28 C.F.R. pt. 35, App. A . . . . . . . . . . . . . . . . 18, 21 28 C.F.R. 41.51 . . . . . . . . . . . . . . . . . . . . . . . 19 42 C.F.R. 441.302 . . . . . . . . . . . . . . . . . . . . . . 26 42 C.F.R. 483.440 . . . . . . . . . . . . . . . . . . . . . . 27
FEDERAL COURT RULES CITED Fed. R. Civ. P. 12 . . . . . . . . . . . . . . . . . . . 12, 17 Fed. R. Civ. P. 23 . . . . . . . . . . . . . . . . . . . . . 28
STATE STATUTES CITES N.J.S.A. 30:1-7 . . . . . . . . . . . . . . . . . . . . . . . . 6 N.J.S.A. 30:4D-1 et seq. . . . . . . . . . . . . . . . . 24, 25 N.J.S.A. 30:4D-2 . . . . . . . . . . . . . . . . . . . . . . 25 N.J.S.A. 30:4D-5 . . . . . . . . . . . . . . . . . . . . . . 25 N.J.S.A. 30:4D-7 . . . . . . . . . . . . . . . . . . . . . . 25 N.J.S.A. 30:6D-2 . . . . . . . . . . . . . . . . . . . . . . 32 N.J.S.A. 30:6D-9 . . . . . . . . . . . . . . . . . . . . . . 30 N.J.S.A. 30:6D-23 et seq. . . . . . . . . . . . . . . . . . . . 5 N.J.S.A. 30:6D-25 . . . . . . . . . . . . . . . . . . . . . . . 5 N.J.S.A. 30:6D-26 . . . . . . . . . . . . . . . . . . . . . . 33
-iv-

Case 1:12-cv-02522-RMB-AMD Document 33-1 Filed 02/08/13 Page 6 of 40 PageID: 208 N.J.S.A. 30:6D-42.1 . . . . . . . . . . . . . . . . . . . . . . 5 STATE REGULATIONS N.J.A.C. 10:46B-5.1 . . . . . . . . . . . . . . . . . . . . 9, 32 N.J.A.C. 10:46C-1.1 et seq. . . . . . . . . . . . . . . . . . . 5 N.J.A.C. 10:48-2.1 . . . . . . . . . . . . . . . . . . . . 9, 32 N.J.A.C. 10:48-7.1 . . . . . . . . . . . . . . . . . . . 10, 32 STATE COURT RULES CITED N.J. Ct. R. 2:2-3(a)(2) . . . . . . . . . . . . . . . . . 10, 32
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PRELIMINARY STATEMENT Plaintiffs reside and receive services at Vineland Developmental Center, an institution operated by the New Jersey Department of Human Services, Division of Developmental Disabilities. In May 2011, the State announced a plan to close Vineland to further efforts to transition individuals with developmental disabilities to more integrated community settings. In December 2011, however, this plan was halted when the New Jersey Legislature created the Task Force on the Closure of State Developmental Centers. The Task Force was charged with evaluating all State developmental centers to make binding recommendations to the State Legislature for the closure of at least one of these institutions. In its final report, which was issued in August 2012, the Task Force made binding recommendations to the Department of Human Services to close two developmental centers, Woodbridge Developmental Center and North Jersey Developmental Center, within the next five years. The Task Force concluded that Vineland Developmental Center should not be closed. Thus, there are no plans to close Vineland Developmental Center at this time. In the amended complaint, Plaintiffs seek to prevent or impose conditions on their discharges from Vineland, should such discharges ever occur. That is, despite there being no plans to close Vineland or to transfer Plaintiffs to community settings,
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Plaintiffs ask the court to issue an advisory opinion setting conditions on Plaintiffs’ theoretical transfers.
The amended complaint should be dismissed because it is not ripe for disposition. The court should not adjudicate whether Defendants must offer Plaintiffs services at Vineland Developmental Center, nor whether any alternate placements Defendants may offer Plaintiffs may be appropriate, when Defendants have no plans to close Vineland or to transfer Plaintiffs, and have not offered Plaintiffs alternate residential placements. Indeed, these events may not occur as Plaintiffs predict or may not occur at all.
Moreover, even if the court decides to adjudicate Plaintiffs’ claims, the complaint should be dismissed because Plaintiffs do not state a cause of action upon which relief can be granted. First, the Americans with Disabilities Act and Rehabilitation Act do not prohibit Defendants from offering Plaintiffs services in more integrated settings, regardless of Plaintiffs’ preference for care in a particular institution. These statutes forbid discrimination in the form of unjustified institutionalization, and not de-institutionalization. Second, the Medicaid Act does not give Plaintiffs a right to receive services at a particular institution, like Vineland Developmental Center, but only allows them to choose an institutional level of services. Finally, the court should abstain from hearing Plaintiffs’ due process claims because Defendants have an administrative and
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judicial appeal process to judge the appropriateness of offers of residential placement, should such offers ever be made. The court should defer to this process, rather than attempting to adjudicate the appropriateness of particular offers of placements to particular individuals in class action litigation.
PROCEDURAL HISTORY On April 27, 2012, Plaintiffs filed a complaint against Defendants alleging that their potential transfers from Vineland Developmental Center would violate the Americans with Disabilities Act, the Rehabilitation Act, the Medicaid Act, and the Due Process Clause of the 14th Amendment. On May 10, 2012, Plaintiffs sent forms to Defendants requesting that they waive service of the complaint. Defendants executed the waiver of service forms, and their time to answer, move or otherwise respond to the complaint was set to expire on July 9, 2012. On July 3, 2012, Defendants filed an application for a Clerk’s extension of the time period to respond to the complaint by 14 days. On July 5, 2012, this extension was granted, extending the time to respond to the complaint to July 23, 2012. On July 13, 2012, Plaintiffs filed a motion for admission of Attorney Thomas B. York Pro Hac Vice to represent Plaintiffs in this matter. On July 26, 2012, the court granted this motion.
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On July 23, 2012, Defendants filed a motion to dismiss Plaintiffs’ complaint. Plaintiffs filed opposition to this motion on August 6, 2013.
On August 10, 2012, Defendants filed a letter supplementing their motion to dismiss, which explained that the Task Force on the Closure of State Developmental Centers made binding recommendations that Woodbridge Developmental Center and Vineland Developmental Center, and not Vineland Developmental Center, be closed within five years.
On September 21, 2012, Plaintiffs filed motions for the admissions of Attorney Cordelia M. Elias and Attorney Donald B. Zaycosky Pro Hac Vice to represent Plaintiffs in this matter. On October 3, 2012, the court granted these motions.
On September 25, 2012, the court administratively terminated Defendants’ motion to dismiss for reasons set forth on the record during a September 20, 2012 phone conference.
By Order dated December 7, 2012, the court granted Plaintiffs leave to file an emended complaint by January 11, 2013.
On January 11, 2013, Plaintiffs filed an amended complaint.
On January 24, 2013, Defendants filed an application for a Clerk’s extension of the time period to respond to the amended complaint by 14 days. On January 25, 2013, this extension was
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granted, extending the time to respond to the complaint to February 8, 2013.
Defendants now file a motion to dismiss the amended complaint.
STATEMENT OF FACTS
The New Jersey Department of Human Services (DHS), Division of Developmental Disabilities (DDD) provides services to eligible individuals with developmental disabilities. N.J.S.A. 30:6D-23 et seq. These services include “care management, diagnosis, evaluation, treatment, personal care, day care, domiciliary care, special living arrangements, training, education, vocational training, recreation, counseling of the person with the disability and his family, information and referral services and transportation services.” N.J.S.A. 30:6D-25.
DDD provides both community-based and institutional residential services.1 It operates a Medicaid Home and CommunityBased Services Waiver (waiver program) to fund residential and other services in the community. See N.J.S.A. 30:6D-42.1. The
1 Although DDD funds residential services, it maintains a lengthy waiting list for these services because its resources are not sufficient to meet the needs of the class of beneficiaries. See N.J.A.C. 10:46C-1.1 et seq.; J.D. v. Div. of Developmental Disabilities, 329 N.J. Super. 516, 522 (App. Div. 2000)(With competing claims for limited financial resources, DDD “is faced with the daunting and unenviable task of attempting to provide for a large number of clients with inadequate funding for placement of all those in need of services.”). Plaintiffs are not on the waiting list because they already receive residential services from DDD and have not requested a community placement.
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waiver program, which is approved by the Center for Medicare and Medicaid Services, allows DDD to waive certain Medicaid Act requirements to obtain Medicaid funding for home and community based services, which would otherwise be provided in an institution. 42 U.S.C. 1396n(c). DDD serves the vast majority of eligible individuals in the community.
DDD also operates seven developmental centers, which provide an institutional level of care. See N.J.S.A. 30:1-7. Plaintiffs reside and receive services at one of these facilities, Vineland Developmental Center (Vineland or Vineland Developmental Center). See Amended Complaint at ¶¶4-10.
In May 2011, DDD announced a plan to close Vineland Developmental Center to further its efforts to transition eligible individuals from institutions to the community. See Complaint at ¶60. These efforts are consistent with the United States Supreme Court’s holding in Olmstead v. L.C., 527 U.S. 581, 587 (1999), in which the Court found that, under Title II of the ADA, a State must transition an individual from an institution to the community if the State’s treating professionals have determined that the person can be served in the community and the person does not oppose community placement or show justification for why it need not under the ADA “fundamental alterations” provisions.
On December 14, 2011, however, the Vineland closure plan was halted when the New Jersey Legislature created the Task Force
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on the Closure of State Developmental Centers (the Task Force). See Complaint at ¶71; see also Certification of Gerard Hughes at ¶2, Exhibit A, Senate No. 2928, Chapter 143 P.L. 2011.2 The task force was charged with performing a “comprehensive evaluation of all of the State developmental centers [to] provide recommendations for the closing of developmental centers.” Exhibit A at ¶2. The law required the Task Force to submit a report to the Legislature detailing “its closure recommendations, including, if applicable, a targeted date for closure of each developmental center recommended for closure, and make such other recommendations as the task force deems appropriate.” In creating the Task Force, the Legislature noted that “[t]he State operates more developmental centers than necessary to support a declining population of individuals with developmental disabilities, which has decreased by approximately 1,200 individuals, or 33 percent, since 1998.” Id. at ¶1(d). It found that “[i]t is important for the State to affirm its commitment to provide individuals with developmental disabilities who are institutionalized with the opportunity to live in the community, consistent with the Olmstead v. L.C. decision, and to realign fiscal, staffing, and operational resources to
2 In considering a motion to dismiss, the court may consider documents referenced in the complaint and matters of public record. Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 259 (3d Cir. 1998); Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 95 (3d Cir. 2011). Senate No. 2928, Chapter 143 P.L. 2011 is a public law and is referenced in the complaint.
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support community living.” Id. at ¶1(f). The Task Force’s recommendations are binding on DHS. Id. at ¶4.
On August 1, 2012, after a thorough review of each developmental center pursuant to five criteria mandated in the enabling statute, the Task Force issued its final report. See Amended Complaint at ¶72; see also Certification of Gerard Hughes at ¶3, Exhibit B, The Task Force’s Final Report. It made binding recommendations to DHS to close two developmental centers, Woodbridge Developmental Center and North Jersey Developmental Center, within the next five years. Id. at p.3. The Task Force concluded that Vineland Developmental Center should not be closed. Ibid. While recognizing that Vineland had previously been identified for closure, “the Task Force expressed concern that the provider infrastructure in [Vineland’s] region was not as robust as in the northern part of the state and that closing Vineland may have a significant adverse impact on the local economy in Cumberland County....” Ibid. Thus, there are no plans to close Vineland Developmental Center at this time.
Because the State has not yet decided to close Vineland Developmental Center, and Plaintiffs do not wish to move from Vineland, Defendants are not considering Plaintiffs for community placement at this time and have not offered them alternate residential placements. See Certification of Eloise Hawkins at ¶410, Exhibit C, Individual Habilitation Plan of T.C. at p.8-9;
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Exhibit D, Individual Habilitation Plan of K.C. at p.9-10; Exhibit E, Individual Habilitation Plan of C.D. at p.7-8; Exhibit F, Individual Habilitation Plan of L.G. at p.9; Exhibit G, Individual Habilitation Plan of D.H. at p.7; Exhibit H, Individual Habilitation Plan of P.I. at p.9; Exhibit I, Individual Habilitation Plan of B.S. at p.8-9.3 Indeed, Plaintiffs’ Individual Habilitation Plans explicitly note their families’ and guardians’ opposition to community placement, and indicate that Plaintiffs are “not being considered for community placement at this time.” Ibid.
If Vineland someday closes, and if Defendants someday offer Plaintiffs other residential placements, then Plaintiffs will have the right to appeal the appropriateness of any prospective placements. See N.J.A.C. 10:46B-5.1. Any appeals will be transmitted to the Office of Administrative Law (OAL) for a hearing. See N.J.A.C. 10:46B-5.1; N.J.A.C. 10:48-2.1. After a hearing, the Administrative Law Judge will issue a decision, which shall be adopted, rejected, or modified by the Assistant
3 Plaintiffs’ Individual Habilitation Plans are referenced in the Amended Complaint at ¶65-66. These documents are not attached to Defendants’ publically-filed motion to dismiss because they contain medical and personal information. Defendants file a motion to seal these documents in conjunction with their motion to dismiss, and will file Plaintiffs’ Individual Habilitation Plans under seal if the motion is granted. Plaintiffs are identified by name in the publically-filed complaint. Consequently, Defendants cannot file redacted versions of the Individual Habilitation Plans because, even if identified by only initials, Plaintiffs’ identities in the documents would be readily identifiable.
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Commissioner for DDD. See N.J.A.C. 10:48-7.1(d). Plaintiffs may then appeal the Assistant Commissioner’s decision to the Superior Court of New Jersey, Appellate Division. See N.J.A.C. 10:487.1(d); N.J. Ct. R. 2:2-3(a)(2).
Plaintiffs’ amended complaint seeks declaratory relief placing conditions on their theoretical transfers from Vineland, and effectively enjoining Defendants from closing Vineland Developmental Center, should the State choose to do so.4 As set forth below, the amended complaint should be dismissed because it is not ripe for adjudication and fails to state a claim upon which relief may be granted.
STANDARD OF REVIEW When considering a motion to dismiss for failure to state a claim upon which relief can be granted, the reviewing court must accept all well pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Mortensen v. First Fed. Savings and Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). A court will not, however, accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the
4 Although Plaintiffs do not explicitly request that the Court enjoin the State from closing Vineland, the relief they seek would have that effect because it would disallow Plaintiffs’ transfers from Vineland without their guardians’ consent and would afford Plaintiffs the option to choose services at Vineland. See Amended Complaint at ¶94(c) and ¶95(b)(ii).
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form of factual allegations. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The court may also consider the documents attached to, or specifically referenced in, the complaint, and matters of public record. See Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 259 (3d Cir. 1998); Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 95 (3d Cir. 2011). Plaintiffs cannot prevent the court from relying on documents on which its claim is based by failing to attach them or failing to explicitly cite them. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). The court may consider any document which is “integral to or explicitly relied upon in the complaint” as part of a motion to dismiss without converting it to a motion for summary judgment. Ibid.
ARGUMENT POINT I PLAINTIFFS’ CLAIMS ARE NOT RIPE BECAUSE DEFENDANTS HAVE NO PLAN TO CLOSE VINELAND DEVELOPMENTAL CENTER OR TO TRANSFER PLAINTIFFS TO ALTERNATE RESIDENTIAL PLACEMENTS. Plaintiffs’ claims hinge on a litany of contingencies. They assert that, first, Defendants may someday close Vineland Developmental Center; second, if Vineland closes, Defendants may offer Plaintiffs residential placements in the community rather than in institutional settings; and, third, Defendants’ offers of placement may be so substandard that they violate Plaintiffs’ due process rights. Notwithstanding their lack of merit, which will be
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discussed infra, Plaintiffs’ claims are not ripe for disposition because Defendants have no plan to close Vineland or to transfer Plaintiffs to other residential placements. The complaint should be dismissed under Fed. R. Civ. P. 12(b)(1) because it cannot be adjudicated at this time.
To have standing, Plaintiffs must show that they have suffered an actual or imminent injury, and not one that is conjectural or hypothetical. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). “A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Texas v. United States, 523 U.S. 296, 300 (1998)(citing Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 581 (1985)). “Ripeness requires [a court] to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. at 300-01. A case must involve “a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Presbytery of N.J. v. Florio, 40 F.3d 1454, 1463 (3d Cir. 1994)(quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)). A federal court’s jurisdiction can only be invoked when a plaintiff presents a ripe controversy. Ibid. (citing Warth v. Seldin, 422 U.S. 490, 499 (1975)).
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In Texas v. United States, supra, 523 U.S. at 297-98, the Texas Legislature enacted a scheme whereby local school boards would be accountable to the state for student achievement. Texas required pre-clearance from the Federal government before it implemented changes affecting voting because it was a covered jurisdiction under § 5 of the Voting Rights Act of 1965. Id. at 298-99. The state sought pre-clearance that its accountability scheme did not have any effect on voting. Id. at 299. The Attorney General did not object to the scheme, itself, but cautioned that implementation of certain provisions of the scheme could result in a violation of Section 5, which would require preclearance. Ibid. The provisions at issue allowed the state to appoint a master or a management team to oversee a school district’s operations. Id. at 298-99. Texas sought a declaratory judgment from District Court that Section 5 did not apply to the subject provisions, but the court ruled that the matter was not ripe. Id. at 299.
The Supreme Court affirmed the District Court’s ruling. Texas v. United States, supra, 523 U.S. at 302. It noted that whether Texas would appoint a master or management team was contingent on several factors: first, a school district must fall below standards; second, the State must impose sanctions lesser than a master or management team; and third, the State would appoint a master or management team only if these lesser sanctions
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were ineffective and only to the extent necessary. Id. at 300. While Texas asked the Court to rule that under no circumstances could the imposition of these sanctions constitute a change affecting voting, the Court remarked that it “[did] not have sufficient confidence in [its] powers of imagination to affirm such a negative.” Id. at 301. The Court found that the matter was not ripe for dispute, noting that the “determination of the scope of legislation in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of judicial function.” Id. at 301 (citing Longshoreman v. Boyd, 347 U.S. 222, 224 (1954)).
In the instant matter, the court cannot adjudicate Plaintiffs’ claims because they hinge on a series of contingencies that have not yet occurred, and may not occur at all. Defendants have no plan to close Vineland Developmental Center. The Task Force recommended that DHS close two other developmental centers, Woodbridge and North Jersey, within five years. See Certification of Gerard Hughes at ¶3, Exhibit B, The Task Force’s Final Report at p.3. The Task Force explicitly recommended that Vineland not be closed, finding that “the provider infrastructure in [Vineland’s] region was not as robust as in the northern part of the state and that closing Vineland may have a significant adverse impact on the local economy in Cumberland County....” Ibid. Thus, there are no plans to close Vineland Developmental Center at this time.
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Likewise, Defendants are not planning to transfer Plaintiffs to other residential facilities because Plaintiffs’ guardians have indicated that Plaintiffs wish to stay at Vineland. See Certification of Eloise Hawkins at ¶4-10, Exhibit C, Individual Habilitation Plan of T.C. at p.8-9; Exhibit D, Individual Habilitation Plan of K.C. at p.9-10; Exhibit E, Individual Habilitation Plan of C.D. at p.7-8; Exhibit F, Individual Habilitation Plan of L.G. at p.9; Exhibit G, Individual Habilitation Plan of D.H. at p.7; Exhibit H, Individual Habilitation Plan of P.I. at p.9; Exhibit I, Individual Habilitation Plan of B.S at p.8-9. Plaintiffs’ Individual Habilitation Plans, which are referenced in the amended complaint, explicitly note their families’ and guardians’ opposition to community placement, and indicate that Plaintiffs are “not being considered for community placement at this time.” Ibid. In fact, the treatment team of one Plaintiff does not even feel that this individual is capable of living in the community at this time. See Certification of Elosie Hawkins at ¶9, Exhibit H at p.9.
In sum, Plaintiffs’ claims are hypothetical and do not present a ripe dispute. The court should not adjudicate whether Defendants are required to offer institutional care to Plaintiffs at Vineland or another developmental center when Plaintiffs are not slated to move anywhere. Indeed, if Vineland someday closes, Defendants may very well offer Plaintiffs an institutional level of
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services that Plaintiffs find acceptable. Likewise, the court cannot possibly decide whether an offer of placement is so deficient that it violates an individual’s due process rights when the offer does not yet exist and may never exist. Therefore, Plaintiffs’ amended complaint, which seeks an advisory opinion from the court setting conditions on their theoretical transfers from Vineland, should be dismissed because it is not ripe for adjudication.
POINT II PLAINTIFFS’ ADA AND REHABILITATION ACT CLAIMS SHOULD BE DISMISSED BECAUSE THESE LAWS DO NOT REQUIRE DEFENDANTS TO SERVE INDIVIDUALS IN INSTITUTIONS. Plaintiffs attempt to turn the Americans with Disabilities Act (ADA) and the Rehabilitation Act on their heads by asserting that the laws require Defendants to serve Plaintiffs in a particular developmental center. The ADA and Rehabilitation Act are anti-discrimination laws which require States to serve individuals with disabilities in the least-restrictive environment appropriate to their needs. The statutes do not compel a State to serve individuals in institutions because providing services in a more integrated community setting, even against an individual’s wishes, is not discriminatory.5 Therefore, Plaintiffs have not
5 Defendants do not concede that they will serve Plaintiffs in community settings against Plaintiffs’ wishes in the event Plaintiffs are ever transferred, as Plaintiffs predict.
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stated viable claims under the ADA and Rehabilitation Act, and their complaint should be dismissed under Fed. R. Civ. P. 12(b)(6).
The ADA provides “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. §12101(b)(1). In enacting the ADA, Congress found that “historically, society has tended to isolate and segregate individuals with disabilities,” and that discrimination “persist[ed] in such critical areas as ... institutionalization.” 42 U.S.C. §12101(a)(2) and( 3). “The ADA stepped up earlier measures to secure opportunities for people with developmental disabilities to enjoy the benefits of community living.” Olmstead, supra, 527 U.S. at 599.
Title II of the ADA, under which Plaintiffs attempt to bring their claims, concerns public services. 42 U.S.C. §12131 et seq. Title II provides that:
Subject to the provisions of this subchapter, 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. Congress instructed the Attorney General to issue regulations implementing Title II of the ADA. See 42 U.S.C. §12134(a). These regulations require States to “administer services, programs, and activities in the most integrated setting
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appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. §35.130(d). Their preamble defines “most integrated setting” to mean a “setting that enables individuals with disabilities to interact with non-disabled individuals to the fullest extent possible.” 28 C.F.R. pt. 35, App. A, p.450 (1998). In promulgating these regulations, “the Attorney General concluded that unjustified placement or retention of persons in institutions, severely limiting their exposure to the outside community, constitutes a form of discrimination based on disability prohibited by Title II.” Olmstead, supra, 527 U.S. at 597.
Similar to the ADA, Section 504 of the Rehabilitation Act provides 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 or under any program or activity conducted by any Executive agency or by the United States Postal Service. 29 U.S.C. §794(a). “The language and implementing regulations of the ADA and RA are virtually the same.” Frederick L. v. Dep’t of Pub. Welfare of the Commonwealth of Pennsylvania, 364 F.3d 487, 490, fn.2 (3d. Cir. 2004). Accordingly, the Third Circuit has “construed [the laws] in light of their close similarity of language and purpose.” Id. at
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491 (citing Helen L. v. DiDario, 46 F.3d 325, 330-32 (3d Cir. 1995)).
“The ADA and RA’s anti-discrimination principles culminate in their integration mandates, which direct states to ‘administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.’” Frederick L., supra, 364 F.3d at 491(citing 28 C.F.R. § 35.130(d)); see also 28 C.F.R. § 41.51(d). Where appropriate, “the ADA and RA favor integrated, communitybased treatment over institutionalization.” Frederick L., supra, 364 F.3d at 491-92.
In Olmstead, supra, 527 U.S. at 587, the Supreme Court, in a plurality opinion, found that under Title II of the ADA, specifically, 42 U.S.C. §12132, and 28 C.F.R. 35.130(d), if a State’s treating professionals have determined that a person can be served in the community and the person does not oppose community placement, then the State is responsible to make such placement or show justification for why it need not under the ADA “fundamental alterations” provisions. The Court found that recognition of “unjustified institutional isolation” of persons with disabilities as discrimination reflects two judgments: first, placing individuals who can benefit from community settings in institutions perpetuates unwarranted assumptions that they are incapable or unworthy of participating in community life; and, second,
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“confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contracts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 600-01.
In ruling that qualified individuals should receive services in the community, the Court “emphasize[d] that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle of benefit from community settings.” Olmstead, supra, 527 U.S. at 601-02. “Title II provides only that ‘qualified individuals with a disability’ may not ‘be subjected to discrimination.’” Ibid. (citing 42 U.S.C. § 12132).
Plaintiffs seize on this qualifying language in Olmstead to allege that their hypothetical transfers from Vineland Developmental Center to more-integrated community settings would violate the ADA and Rehabilitation Act. See Complaint at ¶78, 81. Plaintiffs misinterpret these laws. The Court in Olmstead stated that nothing in the ADA condones the transfer of unwilling individuals from institutions to the community. Olmstead, supra, 527 U.S. at 601-02. It did not, however, indicate that the ADA prohibits such transfers.
The ADA and Rehabilitation Act forbid discrimination against qualified individuals with disabilities; they do not impose a standard of care on the services that a State chooses to provide.
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See Olmstead, supra 527 U.S. at 603, fn.14. Thus, the issue in this case regarding Plaintiffs’ ADA and Rehabilitation Act claims is not whether their potential transfers are desired, but whether they are discriminatory. Offering services in a more-integrated setting is not discrimination under the ADA and Rehabilitation Act. These laws forbid “unjustified institutionalization,” and not deinstitutionalization, because the former “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life” and “severely diminishes he everyday life activities of individuals.” Id. at 600-01.
Plaintiffs’ transfers from Vineland to the community, should they ever occur, would not be discriminatory. Indeed, the services Plaintiffs wish to maintain at a developmental center are only offered to individuals with developmental disabilities. Thus, any transfer of Plaintiffs from Vineland to the community would not be a denial of benefits by reason of Plaintiffs’ disabilities, an essential component of an ADA and Rehabilitation Act claim. That is, Defendants would not be excluding Plaintiffs from services that non-disabled individuals receive, but rather offering them services in a “setting that enables individuals with disabilities to interact with non-disabled individuals to the fullest extent possible.” 28 C.F.R. pt. 35, App. A, p.450 (1998). Accordingly, even if Plaintiffs claims were ripe, they fail to state a cause of action under the ADA or Rehabilitation Act.
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Likewise, Plaintiffs’ claim that the ADA entitles them to “receive recommendations from treating professionals as to whether community placement is the most appropriate to their needs” is without merit.6 See Amended Complaint at ¶87. The ADA does not impose on Defendants a duty to assess individuals for community placement, but rather the Supreme Court in Olmstead ruled that a treatment team’s assessment that an individual could safely reside in the community was a condition of eligibility for community placement. Id. at 602. Thus, while an individual who desires community placement could conceivably argue that his treatment team’s failure to recommend the same thwarted his right under the ADA to receive services in the community, the ADA, itself, does not require such assessments.
Moreover, Plaintiffs’ complaint that the their treatment teams’ recommendations are unfairly influenced by Defendants policies, see Amended Complaint at ¶65-66, does not state a claim upon which relief can be granted. First, even if Plaintiffs’ treatment teams have opined that Plaintiffs are capable of living
6 Notably, all of the Plaintiffs have received annual assessments regarding their appropriateness for and desire for community placement as documented by their individual habilitation plans, which are referenced in the Amended Complaint. See Amended Complaint at ¶65-66.
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in the community with the right supports,7 these opinions are not resulting in any action because Plaintiffs’ guardians have indicated that Plaintiffs do not wish to move to the community. Consequently, Plaintiffs are not being considered for community placement at this time. See Certification of Eloise Hawkins at ¶410, Exhibit C, Individual Habilitation Plan of T.C. at p.8-9; Exhibit D, Individual Habilitation Plan of K.C. at p.9-10; Exhibit E, Individual Habilitation Plan of C.D. at p.7-8; Exhibit F, Individual Habilitation Plan of L.G. at p.9; Exhibit G, Individual Habilitation Plan of D.H. at p.7; Exhibit H, Individual Habilitation Plan of P.I. at p.9; Exhibit I, Individual Habilitation Plan of B.S. at p.8-9. No reason exists for this court to adjudicate whether Plaintiffs are capable of living in the community with the right supports, as the majority of their treatment professionals opine, when there are no plans to transfer Plaintiffs to the community. Second, assuming argunedo that Defendants had a policy expressing that every individual could be served in the community with the right supports, this opinion would not violate the ADA or Rehabilitation Act because providing services in a more integrated setting is not discriminatory, and explained above.
7 Notably, the treatment team for one Plaintiff has opined that this individual is not capable of living in the community at this time. See Certification of Elosie Hawkins at ¶9, Exhibit H.
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For these reasons, Plaintiffs have not stated a valid cause of action under ADA and Rehabilitation Act and their amended complaint should be dismissed.
POINT III PLAINTIFFS’ MEDICAID ACT CLAIMS SHOULD BE DISMISSED BECAUSE THE ACT DOES NOT REQUIRE DEFENDANTS TO SERVE PLAINTIFFS IN A PARTICULAR INSTITUTION. Plaintiffs’ allegation that the Medicaid Act entitles them to receive services at Vineland Developmental Center is without merit. The Medicaid Act requires a participating state to provide an institutional level of services; it does not require a state to offer care in a particular institution. Therefore, Plaintiffs’ complaint, in which they attempt to use the Medicaid Act prevent the potential closure of Vineland, should be dismissed. Pursuant to N.J.S.A. 30:4D-1 et seq., New Jersey participates in the Medicaid Program established by Title XIX of the Social Security Act (the "Act"), 42 U.S.C.A. 1396 et seq. The Medicaid program is a joint federal-state program designed to provide medical assistance to qualified individuals "whose income and resources are insufficient to meet the cost of necessary medical services." 42 U.S.C.A. 1396. In short, “Medicaid was created to provide medical assistance to the poor at the expense of the public.” Mistrick v. Division of Medical Assistance and Health Services, 154 N.J. 158, 165 (1998); Estate of DeMartino v. Division of Medical Assistance and Health Services, 373 N.J. Super.
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210, 217 (App. Div. 2004), certif. denied, 182 N.J. 425 (2005). The Federal Government shares the cost of medical assistance with states that elect to participate in the Medicaid program. Mistrick, 154 N.J. at 165-66; DeMartino, 373 N.J. Super. at 217. Participating states must adopt medical assistance plans that meet the requirements of the federal Medicaid law. DeMartino, 373 N.J. Super. at 217.
New Jersey participates in the Medicaid program pursuant to the New Jersey Medical Assistance and Health Services Act (the Act), N.J.S.A. 30:4D-1 et seq. The Division of Medical Assistance and Health Services within DHS is the State agency designated pursuant to 42 U.S.C.A. 1396a(a)(5), to administer the Medicaid program in New Jersey. N.J.S.A. 30:4D-5; N.J.S.A. 30:4D-7.
The expressed intent of the Legislature is that the State be enabled, within the limits of funds available for any fiscal year, to obtain all benefits provided by the Federal Social Security Act, 42 U.S.C.A. 301 et seq., N.J.S.A. 30:4D-2. Thus, N.J.S.A. 30:4D-1 et seq. requires that the Department take all necessary steps, consistent with fiscal responsibility, for the proper administration of the New Jersey Medicaid Program.
Plaintiffs rely on several provisions of the Medicaid Act, as well as its implementing regulations, in support of their contention that the Act requires Defendants to serve Plaintiffs at Vineland Developmental Center. See Amended Complaint at ¶105-113.
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None of these provisions entitles Plaintiffs to receive care in their preferred institution.
42 U.S.C. 1396d(a)(15) requires medical assistance under the State’s Medicaid plan to include “services in an intermediate care facility for the mentally retarded [ICF/MR].” The State developmental centers provide an ICF/MR level of care. See Complaint at ¶35. Likewise, 42 U.S.C. 1396n(c)(2)(C) provides that a waiver shall not be granted unless the State assures that individuals who are eligible to participate in a State’s waiver program are “informed of the feasible alternatives, if available under the waiver, at the choice of such individuals, to the provision of inpatient hospital services, nursing facility services, or [ICF/MR] services.”
The regulations implementing the Medicaid Act also require a State to provide ICF/MR level of services. 42 C.F.R. 441.302(d) requires, as a precursor to a grant of a waiver, that a State give beneficiaries “the choice of either institutional or home and community based services.”
Thus, the Medicaid Act does not require Defendants to serve individuals in a particular institution, like Vineland Developmental Center, but to offer the choice of ICF/MR level of services. Indeed, if individuals had a right to receive services at any chosen facility, states would be hamstrung from allocating resources in a fiscally responsible manner. Plaintiffs’ attempt to
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use the Medicaid Act to prevent the closure of Vineland finds no support in the law, and their amended complaint should be dismissed.
Lastly, Plaintiff’s reliance on 42 C.F.R. 483.440 is also mistaken. While that regulation requires ICF/MRs to provide beneficiaries “a continuous active treatment program,” it does not prohibit states from transferring individuals to different facilities. Indeed, the regulation includes provisions applicable when an individual “is to be either transferred or discharged.” See 42 C.F.R. 483.440(b)(4). Thus, rather than forbidding a transfer, the regulation contemplates such action.
POINT IV THE COURT SHOULD ABSTAIN FROM HEARING PLAINTIFFS’ DUE PROCESS CLAIMS BECAUSE THE STATE HAS AN ADMINISTRATIVE AND JUDICIAL APPEAL PROCESS TO ADJUDICATE THE APPROPRIATENESS OF DEFENDANTS’ OFFERS OF RESIDENTIAL PLACEMENT. Plaintiffs allege that Defendants’ offers of alternate residential placements, if these offers are ever made, will be so deficient that they will violate Plaintiffs’ due process rights. Even if the court finds that Plaintiffs’ due process claims are ripe, it should abstain from adjudicating these claims because Plaintiffs may avail themselves to an administrative and judicial appeal process if they are displeased with any offers of residential placement they may receive. The State standard by which such offers of placement are judged in this appeal process
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far exceeds the federal due process standard. The court should defer to this process under the Burford abstention doctrine, rather than attempting to hear appeals regarding the appropriateness of each offer of placements to particular individuals in a class action, as Plaintiffs propose.8
While federal courts generally exercise the jurisdiction conferred upon them by Congress, a District Court should decline to exercise jurisdiction when doing so would “clearly serve a countervailing interest.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). The concept of abstention has been refined over the years and has been applied in a variety of contexts. Ibid. The unifying principle behind various abstention doctrines is “deference to the paramount interests of another sovereign, and the concern is with principles of comity and federalism.” Id. at 723.
In Burford v. Sun Oil Co., 319 U.S. 315 (1943), the plaintiff brought a Fourteenth Amendment challenge to the reasonableness of the Texas Railroad Commission’s grant of an oil
8 Although they include “class action allegations” in their complaint, Plaintiffs have not yet moved to certify a class under Fed. R. Civ. P. 23. See E. Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 404-05 (1977)(A plaintiff’s failure to move for class certification prior to trial may be reason to deny certification). As will be more fully argued in opposition to any motion for class certification, Plaintiffs’ claims regarding the appropriateness of residential services are highly individualistic, and cannot possibly be litigated in a class action. Moreover, Plaintiffs seek to represent all residents of Vineland Developmental Center, some of whom desire community placement.
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drilling permit. The constitutional challenge involved the question of whether the commission had properly applied the state’s complex oil and gas conservation regulations. New Orleans Public Service, Inc. v. Council of the City of New Orleans, 491 U.S. 350, 360 (1989)(citing Burford, supra, 319 U.S. at 331). Texas had created “a centralized system of judicial review of commission orders, which ‘permitted the state courts, like the Railroad Commission itself, to acquire a specialized knowledge’ of the regulations and industry.” Ibid. (quoting Burford, supra, 319 U.S. at 327). The Supreme Court concluded that, because the exercise of equitable jurisdiction by Federal District Courts alongside state court review had repeatedly led to “delay, misunderstanding of local law, and needless federal conflict with the state policy,... a sound respect for the independence of state action required the federal equity court to stay its hand.” Ibid. (quoting Burford, supra, 319 U.S. at 327, 334).
From Burford and its progeny, the Supreme Court developed the abstention principle now commonly referred to as the “Burford doctrine.” New Orleans Public Service, supra 491 U.S. at 361. The parameters of this doctrine are as follows:
[w]here timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are difficult questions of state law bearing on policy problems of public import whose importance transcends the result in the case then at bar;
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or (2) where the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. Ibid.; see also Chiropractic America v. LaVecchia, 180 F.3d 99, 104 (3d Cir. 1999). The Burford doctrine requires abstention in this case because Plaintiffs may appeal any offers of residential placement through an administrative and judicial appeal process. The standard by which offers of placement are judged in this State appeal process far exceeds any due process standard. Further, federal review in this case would disrupt the State’s efforts to maintain coherent policy regarding offers of residential placement to some of its most vulnerable citizens. First, timely and adequate State proceedings exist through which Plaintiff may obtain the relief they seek. State law requires services offered by any facility to persons with developmental disabilities to “be designed to maximize the developmental potential of [individuals receiving services] and [to] be provided in humane manner in accordance with generally accepted standards ... and with full recognition and respect for the dignity, individuality and constitutional, civil and legal rights of [such individuals], and in a setting and manner which is least restrictive of each person’s personal liberty.” N.J.S.A. 30:6D-9; see also J.E. v. Division of Developmental Disabilities, 131 N.J. 552, 565 (1993)(holding that DDD’s clients have a “right,
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based on statutory and regulatory entitlements, to the most appropriate placement available that best can enhance their developmental potential in the least-restrictive setting.”).
In contrast, the due process clause affords the right to only “minimally adequate training.”9 Youngberg v. Romeo, 457 U.S. 307, 322 (1982). Decisions by treating professionals are presumed valid, and “liability may be imposed only when the decision by a professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Id. at 323.
Thus, the standard by which DDD’s offers of placement are judged in the State appeal process far exceeds the due process standard by which this court may judge these same offers of placement. In fact, the Supreme Court in Youngberg recognized that “[b]y so limiting judicial review of challenges to conditions in state institutions, interference by the federal judiciary with the internal operations of these institutions should be minimized.” Id. at 322.
Plaintiffs may appeal the appropriateness of any offers of residential placement through an administrative and judicial
9 Notably, Youngberg involved individuals who were involuntarily committed to state institutions. Id. at 309. In the case at bar, Plaintiffs voluntarily receive services and are not involuntarily committed.
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appeal process. See N.J.A.C. 10:46B-5.1; see also J.E., supra, 131 N.J. at 568-69 (holding that placement appeals warrant trial-type hearings in OAL hearing with the burden of proof on DDD). DDD will transmit appeals regarding offers of placement to the OAL for an evidentiary hearing. See N.J.A.C. 10:46B-5.1; N.J.A.C. 10:48-2.1. After a hearing, the Administrative Law Judge will issue a decision, which shall be adopted, rejected, or modified by the Assistant Commissioner for DDD. See N.J.A.C. 10:48-7.1(d). Plaintiffs may then appeal the Assistant Commissioner’s decision to the Superior Court of New Jersey, Appellate Division. See N.J.A.C. 10:48-7.1(d); N.J. Ct. R. 2:2-3(a)(2). Thus, as required by the Burford doctrine, timely and adequate state-court review is available to Plaintiffs should Defendants offer them residential placements they find inappropriate. See New Orleans Public Service, supra 491 U.S. at 361.
Second, federal review would frustrate the State’s ability to maintain a consistent policy with respect to the provision of services to individuals with developmental disabilities, some of the State’s most vulnerable citizens. See Chiropractic, supra, 180 F.3d at 104. Caring for these individuals is a matter of substantial public concern. Accordingly, the State’s Developmentally Disabled Rights Act denotes rights and establishes standards for services. N.J.S.A. 30:6D-2. As the agency charged with the provision and oversight of these services,
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N.J.S.A. 30:6D-26, DDD possesses a specialized expertise in assessing the appropriateness of services it provides to particular individuals. See Newark v. Natural Resource Council, Dep’t of Envt’l Protection, 82 N.J. 530, 539, cert. denied, 449 U.S. 983 (1980)(“The presumption of reasonableness of agency decisions is even stronger [when] the agency has been delegated discretion to determine the specialized and technical procedures for its tasks”). DDD’s assessments are further buttressed by trial-type hearings in the OAL regarding offers of placement, as well as judicial review of final agency decisions.
Federal review of DDD’s offers of placement would upset the agency’s employment of its specialized expertise in disputes regarding offers of residential placement. The court’s exercise of jurisdiction in this case would prevent DDD, as well as a reviewing State court, from judging the appropriateness of specific offers of placements to particular individuals under the coherent State standard set forth in the agency’s statutes and regulations. Instead, the court would collectively review offers of placement to Plaintiffs, as well as the entire population of Vineland Developmental Center if Plaintiffs’ proposed class is certified, under the minimal due process standard. Such review would thwart the State’s ability to maintain a coherent policy with respect to the provision of services to individuals with developmental disabilities, undoubtedly a matter of substantial public concern.
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Therefore, the court should abstain from hearing Plaintiffs’ claims under the Burford abstention doctrine.
CONCLUSION For all the foregoing reasons, Plaintiff’s complaint should be dismissed.

JEFFREY S. CHIESA ATTORNEY GENERAL OF NEW JERSEY

Dated: February 8, 2013

By: s/Gerard Hughes Gerard Hughes Deputy Attorney General Attorney for Defendants

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

TERESITA CAREY, by and through her guardian, Jim Carey, et al.

Plaintiffs,

CIV. NO.: 1:12-cv-02S22

v.

CHRISTOPHER CHRISTIE, as Governor ofthe State of New Jersey, et aI.,

Defendants.

PLAINTIFFS' BRIEF IN OPPOSITION TO MOTION TO DISMISS Plaintiffs, a class of individuals residing at Vineland Developmental Center, through their counsel, file this Response to Defendants' Motion to Dismiss pursuant to Fed. R. Civ. P. 12. I. INTRODUCTION The Plaintiffs brought this action to address serious and ongoing violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq., the Rehabilitation Act ("Rehab Act"), 29 U.S.C. § 794(a), et seq., the Medicaid Act, 42 U.S.C. § 1396, et seq., and the United States Constitution. The Plaintiffs have named the state agencies and officials responsible for violating Plaintiffs' rights and failing to provide basic protections to Plaintiffs. Defendants' Motion to Dismiss [Dkt. # 33] and supporting arguments fail for the following reasons: (1) Plaintiffs' claims are made independent of Defendants' public pronouncements recommending the closure of the Vineland Developmental Center ("VDC") or any other facility, and the Defendants have discharged and continue to attempt to discharge Plaintiffs from VDC in violation of Plaintiffs' rights secured by the Olmstead decision; (2) as long as Defendants continue to take federal funds and operate large, public ICFslIID (intermediate care facilities for individuals with intellectual disabilities), Plaintiffs do have a

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right to receive services at such facilities if Plaintiffs' treating professionals independently recommend receiving services in those settings and Plaintiffs consent to receiving services there; (3) Plaintiffs have not alleged that they are entitled to receive services in a particular location, but the Medicaid Act and ADA require Defendants to provide Plaintiffs with services in the most integrated setting appropriate to the needs of the Plaintiffs, which often is a state-operated ICF/IID (formerly referred to as "ICFIMR") (See Olmstead v. Zimring, et aI., 527 U.S. 581,605 (1999)); (4) this Court cannot rely on the State of New Jersey's administrative process to ensure that Plaintiffs' federal rights are protected, because the State's system for assessing and discharging Plaintiffs from VDC specifically fails to comply with federal law; and (5) Defendants improperly include Individual Habilitation Plans (IHP' s) of each of the named Plaintiffs as well as the declarations of Eloise Hawkins and Gerard Hughes as exhibits to their Motion to Dismiss which cannot be properly considered by this Court for purposes of a Rule 12(b)(6) Motion to Dismiss, as these documents were not attached to the Amended Complaint, nor do Plaintiffs' claims rest on the content of these documents.
The allegations in Plaintiffs' Amended Complaint meet the requirements of the Federal Rules of Civil Procedure, the ADA, Rehab Act, Medicaid Act, and the United States Constitution. The Defendants' Motion should be denied. II. ARGUMENT
A. EXHIBITS REFERRED TO IN DEFENDANTS' MOTION TO DISMISS SHOULD NOT BE CONSIDERED BY THE COURT
Defendants inappropriately attached several exhibits to their Motion to Dismiss Plaintiffs' Amended Complaint, including Task Force Legislation and Final Report (Exhibit A, B),[Dkt. #33-3]; Individual Habilitation Plans ("IHP") for each of the Plaintiffs in this case (Exhibits C-I); Certification of Eloise Hawkins. These documents and attachments can not be
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considered by this Court for purposes of a motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.
As a general matter, a District Court ruling on a motion to dismiss may not consider matters extraneous to the pleadings. San Pellegrino S.P.A. v. Aggressive Partnerships, Inc., 2009 WL 2448504 (D.N.J. Aug. 10,2009) (citing In Re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997); Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939,944 (3d Cir.1985). However, there are limited exceptions to this rule. In addition to the allegations of the complaint, a court may consider matters of public record, documents specifically referenced in or attached to the complaint, and documents integral to the allegations raised in the complaint. Mele v. Federal Reserve Bank ofN.Y., 359 F.3d 251,255 n. 5 (3d Cir.2004). The documents referenced above do not fall into any of these exceptions. In San Pellegrino, this Court analyzed a similar situation when exhibits were attached to defendant's motion to dismiss which were certifications of defendant's officers containing statements that contradicted allegations contained in the complaint. In declining to consider these exhibits, this Court followed the standard set forth by Third Circuit Court of Appeals: "the exhibits are documents extraneous to the pleadings, and do not fall within exceptions to the rule prohibiting this Court from considering them on a motion to dismiss." (citing Mele, 359 F.3d at 255 n. 5). An "undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss" is only deemed integral within the exceptions if the plaintiffs claims are based on the document. (citing Pension Benefit Gauranty Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1996 (3d Cir.1993». In San Pellegrino, the District Court ruled that the plaintiff's claims were not based on the certifications ofthe defendant's officers. Therefore, since the certifications attached as exhibits to defendant's motion to dismiss were not integral to the pleadings and did not fall
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within the exception to the general rule, they could not be considered. Like the exhibits in San Pellegrino, the exhibits attached to Defendants' Motion to Dismiss are also not integral to the Amended Complaint since the claims for relief in Plaintiffs' Amended Complaint are not based on the contents of those exhibits, but rather, are entirely independent ofthe content of these documents. In fact, whether or not those exhibits exist is irrelevant to the claims pursued by Plaintiffs. Also irrelevant to this matter is any statement from Eloise Hawkins presented in the form of a certification. Furthermore, the exhibits attached to Defendants' Motion to Dismiss were not authenticated and Plaintiffs have not stipulated to their authenticity. Therefore, the exhibits to Defendants' Motion to Dismiss should be disregarded by this Court.
In support of their inclusion of said exhibits, Defendants cite to three (3) Third Circuit Court of Appeals cases: Pittsburgh v. West Penn Power Co., 147 F. 3d 256, 259 (3rd Cir. 1998); Keystone Redevelopment Partners, LLC v. Decker, 631 F. 3d 89, 95 (3 rd Cir. 2011); and In re Burlington Coat Factory Sec. Litig. 114 F. 3d 1410, 1426 (3rd Cir. 1997). However, each of these cases is distinguishable from the instant case in that they involve documents which were either attached to the complaint, submitted and stipulated to by both parties, or documents upon which the claims of the complaint specifically rely. For example, in Pittsburgh v. West Penn Power Co., there were documents submitted to the Court by both parties during the motion to dismiss phase. The Third Circuit Court noted" .. .it can be, and is in this instance, proper to consider these documents in reviewing a motion to dismiss." Citing, Pension Benefit Quar. Corp. v. White Consol. Industries, 998 F.2d 1192, 1196 (3rd Cir. 1993)(finding that "a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiffs claims are based on the document."). The parties in that case stipulated to the authenticity ofthe documents and submitted the documents as joint appendix in
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that case. The Third Circuit noted in its opinion that, in deciding a motion to dismiss, it is the
,
practice of the Court to "consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." Id. at 259. (emphasis added). However, since the authenticity of these documents was stipulated by the parties, the Court used the documents to provide context to the averments of the complaint. There is no such situation here. To the contrary, Plaintiffs have not stipulated to the authenticity of these documents, nor was a stipulation requested by Defendants. In fact, Plaintiffs cannot confirm the authenticity, relevancy, and weight of these documents because there has not been any proper discovery. Thus, there is no similarity between the circumstances here and those of Pittsburgh v. West Penn Power. Therefore, since Plaintiffs did not attach these documents as exhibits to the Amended Complaint, did not stipulate to their authenticity, and none of the Plaintiffs' claims are based on the content of these documents, they do not fall within the exception noted by the Third Circuit in Pittsburgh v. West Penn Power.
Defendants also cite to two (2) other Third Circuit Court opinions: Keystone Redevelopment Partners, LLC v. Decker, 631 F. 3d 89, 95 (3rd Cir. 2011) and In re Burlington Coat Factory Sec. Litig. 114 F. 3d 1410, 1426 (3 rd Cir. 1997). In Keystone, the Court briefly noted "in considering the propriety of the District Court's ruling, this Court "may also consider matters of public record, orders, exhibits attached to the Complaint and items appearing in the
record of the case." 631 F. 3d 89, 94 (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.
3d 1380, 1384 n. 2 (3rd Cir. 1994)). The Third Circuit in Keystone was reciting its standard of review, not the standard applicable to the District Court in deciding a motion to dismiss. That being said, the IHP's and other exhibits attached to Defendants' Motion to Dismiss are neither matters of public record, orders, or exhibits to the Amended Complaint. They are also not items
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that have previously appeared in the record in this case. Thus, even if this were the proper standard of review for this Court, these documents would still be inappropriately attached. Defendants use ofIn re Burlington Coat Factory Sec. Litig. 114 F. 3d 1410, 1426 (3Td Cir. 1997) is also misplaced. In Burlington, the District Court considered an annual report in its decision to dismiss plaintiffs complaint. The Third Circuit ruled that the District Court's consideration of the annual report was not improper because plaintiff s claims were based on the content of the annual report, thus, it was proper for them to consider its contents. In its opinion, the Third Circuit clearly lays out the standard for when a District Court may consider matters extraneous to the pleadings. "[A]n exception to the general rule that a 'document integral to or explicitly relied upon in the complaint' may be considered 'without converting the motion [to dismiss] into one for summary judgment. '" (citing Shaw v. Digital Equipment Corp., 82 F.3d 1194, 1224 (1 st Cir. 1996)). The important distinction between Burlington and the instant case is that the plaintiffs claims in Burlington were dependent upon and relied upon the contents of the annual report. In fact, the plaintiffs complaint in Burlington contained claims that relied upon the information that was contained in the annual reports, so the Court found it appropriate to consider the actual content of the annual reports. The Plaintiff s claims in the instant case are distinguishable because they stand on their own regardless of what is written in the IHP's or what the Task Force Report determined, thus, they are not dependent or reliant upon the documents attached to Defendants' Motion to Dismiss. Further, there is nothing in the exhibits attached to Defendants' Motion to Dismiss that would provide this Court with information that has not already been supplied by the allegations in Plaintiffs' Amended Complaint. Thus, these documents do not fall within the exception stated by Shaw and applied by the Third Circuit in Burlington, and this Court should disregard these documents.
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B. PLAINTIFFS' CLAIMS ARE RIPE FOR ADJUDICATION Despite what Defendants may wish for this Court to believe, Plaintiffs' claims do not hinge on any contingencies and are ripe for adjudication. Defendants' suggestion to the contrary underscores their disregard for the important rights that Plaintiffs seek to pursue in this matter. Those rights, for the Plaintiffs, literally could mean the difference between life and death. In cases where a plaintiff seeks injunctive or declaratory relief only, standing will not lie if "adjudication ... rests upon 'contingent future events that may not occur as anticipated or indeed may not occur at all.' "Rodgers-Durgin v. De La Vina, 199 F.3d 1037, 1044 (9th Cir.1999) (quoting Texas v. United States, 523 U.S. 296 (1998)). Indeed, in "ADA cases, courts have held that a plaintiff lacks standing to seek injunctive relief unless he alleges facts giving rise to an inference that he will suffer future discrimination by the defendant." Shotz v. Cates, 256 F.3d 1077, 1081 (1Ith Cir.2001) (citations omitted); see also Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 422 (3d Cir.1992) (discussing how cOUlis should dismiss action on ripeness grounds when a complaint seeking declaratory relief rests on the contingency that some future act will occur). As discussed below, Plaintiffs in this case have properly alleged facts giving rise to an inference that they will suffer future discrimination, thus, they have presented a ripe claim and have proper standing to do so. In essence, the Defendants argue in their Brief in Support of Motion to Dismiss Plaintiffs' Amended Complaint that Plaintiffs' claims are hypothetical since there is no immediate plan to close Vineland Developmental Center and the Task Force recommended that DRS close two other centers. [Dkt. #33-1 at 20-21]. Defendants also attempt to show that the recommendation of the Task Force has rendered Plaintiffs' Amended Complaint unripe. [Dkt.
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#33-1 at 21]. Some courts have rejected similar attempts by parties to render a case umipe. See Malama Makua v. Rumsfeld, 136 F.Supp.2d 1155, 1161 (D.Haw.2001) ("Ripeness is an element ofjurisdiction and is measured at the time an action is instituted; ripeness is not a moving target affected by a defendant's action."). See also Travelers Ins. Co. v. Obusek, 72 F.3d 1148, 1154 (3d Cir.1995) ("[R]ipeness requires that the threat of future harm must remain 'real and immediate' throughout the course of the litigation.") (quoting Salvation Army v. Dep't ofCmty. Affairs, 919 F.2d 183, 192 (3d Cir.l990)). In this case, Plaintiffs have suffered adverse consequences of Defendants' policies and procedures. Plaintiffs allege that these policies have been detrimental to Plaintiffs' ability to obtain sound professional judgment by treating professionals. The decisions of the Task Force referenced by Defendant will not affect the policies and procedures followed by the State's treating professionals at Vineland, and, thus, these claims have not been rendered umipe by the Task Force decisions. The Plaintiffs' claims will remain ripe until this Court mandates that the policies and procedures be changed to comply with the ADA, Medicaid Act and the United States Supreme Court's Olmstead decision.
Defendants argue that "Plaintiffs' claims hinge on a litany of contingencies." [Dkt. # 33-1 at 17]. However, Defendants identify no such contingencies, no litany, and fail to even cite Plaintiffs' Amended Complaint to support their frivolous proposition. To the contrary, a cursory review of Plaintiffs' Amended Complaint [Dkt. #30] will show that Plaintiffs have alleged facts that give rise to an inference that Plaintiffs will suffer future discrimination by Defendants. These facts, as stated in the Amended Complaint, state a valid cause of action which is ripe for adjudication. The alleged facts of the Amended Complaint are not hypothetical and do not hinge on contingencies or conjecture and are completely independent of any Task Force recommendations. For example, Plaintiffs' Amended Complaint alleges the following:
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[T]reating professionals often have routinely and inappropriately stated that Plaintiffs would best be served in alternative settings that do not provide ICFIIID-level of care. [Dkt. #30, ~ 41].
For a significant period of time from 2010 to 2012, the Defendants openly stated their intent to close Vineland, and in fact greatly downsized Vineland by closing one (1) of its two (2) campuses. [T]he treating professionals at Vineland continue to make routine and inappropriate recommendations for placements outside of Vineland due to the illegal and unsound policies and practices of the Defendants encouraging the closure of development centers. [Dkt. #30, ~ 42].
Defendants seek to compel Plaintiffs' discharge from Vineland Developmental Center to other settings, including non-ICF/IID-certified settings. [Dkt. #30, ~45].
Defendants' policies and procedures have interfered with or usurped the ability of Plaintiffs' treating professionals to make independent and sound professional judgments. The treating professionals are now often following a political or administrative agenda rather than accepted professional standards. [Dkt. #30, ~46].
Defendants' policies and procedures have unduly influenced or compelled Plaintiffs' treating professionals to recommend transfer or discharge of Plaintiffs to settings that are not the most appropriate for Plaintiffs' needs, solely for the purpose of conforming to Defendants' political policy decisions. [Dkt. #30, ~47].
Defendants have precluded treating professionals at the Vineland Development Center from fully and fairly considering whether Vineland best meets the needs of the Plaintiffs, and have prevented those treating professionals from acknowledging the rights of Plaintiffs to receive treatment and services at Vineland Development Center or in another ICF/IID. [Dkt. #30, ~54].
Plaintiffs have not had the benefit of their respective treating professionals' independent judgment about whether they should continue to reside at Vineland Developmental Center or at another state-operated ICFIIID. [Dkt. #30, ~55].
Defendants have instructed or inappropriately encouraged Plaintiffs' treating professionals to include language in Plaintiffs' individual habilitation plans indicating that Plaintiffs are capable of being served in settings other than Vineland Development Center, regardless of whether Plaintiffs are actually capable of being served in alternative settings. [Dkt. #30, ~65].
These treating professional are likely intimidated and fearful of retaliation, including the possible loss of their jobs, and likely will only be forthcoming with information to support the position of Plaintiffs if protected by or compelled by appropriate discovery in this case. [Dkt. #30, ~67].
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As is clear to see, the facts alleged in Plaintiffs' Amended Complaint are not hypothetical in nature, do not hinge on events that have not yet occurred, including the closure of Vineland Developmental Center, and have no relation to whether or not placements are offered. The allegations contain facts which indicate that Defendants' policies and procedures are negatively affecting professionals and their ability to provide sound professional judgments to Plaintiffs .regarding the least restrictive setting appropriate to each of the Plaintiffs' needs. Plaintiffs have alleged that these policies and procedures are currently active and, until changed, they will hinder professionals from making sound judgments.
Federal Rules of Civil Procedure 8(a)(1 ) and (2) require only that a complaint contain "a short and plain statement of the grounds for the court's jurisdiction" and "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(1)-(2). When enacted, Rule 8 eliminated the archaic system of fact pleading found in state codes of pleading applied by the federal courts under the 1872 Conformity Act. For the past forty years, "[t]he only function left to be performed by the pleadings alone is that of notice." 5 Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1202, at 89 (3d ed.2004); See also Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197,2200, 167 L.Ed.2d 1081 (2007). Further, Rule 8 contains a concluding admonishment that "[p]leadings must be construed so as to do justice[,]" conveying the liberality by which this Court should judge Plaintiffs' Amended Complaint. Fed. R. Civ. P. 8(t).
The existence of standing turns on the facts as they existed at the time a plaintiff files the complaint. Lujan v. Defenders of Wildlife, 504 U.S. 555,569 n. 4 (1992). In this matter, none of the allegations have been averted by the passage of time. Plaintiffs do allege facts regarding Defendants' Task Force in the Amended Complaint to show the context of Defendants' unlawful
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Case 1:12-cv-02522-RMB-AMD Document 39 Filed 03/04/13 Page 11 of 31 PageID: 476
actions, however, Plaintiffs' claims clearly do not rely on the Task Force recommendations or the resulting Task Force report, and Plaintiffs' claims are not dependent on any contingent future event. In fact, Plaintiffs specifically allege in their Amended Complaint at paragraph 81 that:
Plaintiffs' causes of action are not based upon, reliant upon, or adversely impacted by any recommendation or finding of the Task Force. The allegedly binding recommendations of the Task Force are merely further evidence of an overall plan to downsize and eventually close all developmental centers in the State of New Jersey. [Dkt. 30, ~ 81]. Likewise, none of Plaintiffs' claims are contingent on Defendants' announced decisions to close or continue operating any of their Developmental Centers. As shown above, Plaintiffs' claims emerge from Defendants precluding Plaintiffs' treating professionals from rendering independent judgments about where Plaintiffs should receive services and Defendants precluding Plaintiffs from being able to give informed consent to any proposed discharge from VDC. As noted in Plaintiffs' Amended Complaint, Defendants motivation for depriving Plaintiffs of those rights seems manifold, but Defendants' questionable motivations are immaterial to Plaintiffs' standing or the ripeness of their claims. It is clear that the Plaintiffs have alleged facts that meet the pleading standard required by the Third Circuit and provide Defendants and this Court with sufficient facts that describe a ripe controversy. Although the party invoking the jurisdiction of the Court bears the burden of establishing standing, "[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice." Id. at 561. Nothing in Plaintiffs' claims is abstract, and only this Court can remedy the deprivation of Plaintiffs' rights. Doe v. County of Centre, PA, 242 F.3d 437,453 (3d. Cir. 2001) ("allegation, while disputed by the County, does not constitute an 'abstract disagreement[]' incapable ofjudicial resolution") (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967); U. S. ex reI. Ricketts v. Lightcap, 567 F.2d 1226, 1233 (3d.
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Case 1:12-cv-02522-RMB-AMD Document 39 Filed 03/04/13 Page 12 of 31 PageID: 477
Cir. 1977) ("Since this allegation indicates that an action taken by the prison has had a practical impact on Ricketts' rights, a ripe constitutional injury is stated.") (citing Hardwick v. Ault, 517 F.2d 295 (5th Cir. 1975). Independent of any Task Force recommendation, or announcements and retractions from the Defendants that they will close VDC, Defendants have violated, and continue to violate, Plaintiffs' rights provided for by the Olmstead decision, the ADA, the Rehab Act, the Medicaid Act, and the United States Constitution. Defendants do not dispute that they are recipients of federal financial assistance and therefore subject to the requirements of the Medicaid Act, the Rehabilitation Act, and the Americans with Disabilities Act. Juvelis by Juvelis v. Snider, et aI., 68 F.3d 648, 652 (3d. Cir. 1995); See also Helen L. v. DiDario, et aI., 46 F.3d 325,331 (3d. Cir. 1995); 42 U.S.C. § 1396a et seq.; Rehabilitation Act of 1973 § 504(a), 29 U.S.C.A. § 794(a), 29 U.S.C.A. § 794; Americans with Disabilities Act of 1990, § 202, 42 U.S.C.A. § 12132; 28 C.F.R. §§ 35.130(d), 41.51(d).1 As discussed more fully below, the Plaintiffs are entitled to recommendations from their treating professionals as to where Plaintiffs should receive services. Olmstead v. Zimring, et aI., 527 U.S. 581,587 (1999). Plaintiffs are also entitled to decide whether to consent to discharge from VDC based, in part, on the recommendations of those treating professionals. Id. As alleged in Plaintiffs' Amended Complaint, Defendants have usurped treating professionals' ability to make such recommendations and compelled treating professionals to conclude that Plaintiffs can be served in settings that are not appropriate. [Dkt. # 30, ~ 46]. Defendants further violate Plaintiffs' rights by ignoring, and failing to allow for, Plaintiffs' rights, as recognized by Olmstead, to oppose
I Plaintiffs have also alleged that Defendants have violated and continue to violate constitutionally guaranteed rights. Those allegations alone suffice to satisfy standing requirements and make this matter ripe for adjudication. Elrod v. Burns, 427 U.S. 347, 373-74 (1976).
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discharge from VDC. [Dkt. # 30, ~69-70]. Defendants' actions have resulted, and will result, in Plaintiffs' right to receive rCF/IID-Ievel services to be severely diminished or even taken away. [Dkt. # 30, ~62].
Plaintiffs have properly asserted their claims. Title II of the ADA incorporates the "nondiscrimination principles" of section 504 of the Rehabilitation Act and extends them to state and local governments. Easley v. Snider, 36 F.3d 297,300 (3d Cir.1994) (comparing 42 U.S.c. §§ 12131-12134 and 28 C.F.R. § 35.103); See also Helen L. v. DiDario, et aI., 46 F.3d 325,331 (3d. Cir. 1995). Section 202 of Title II provides:
[N]o 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.
rn Title II actions, such as this one, the Third Circuit has expressly held "that Congress did not intend to condition the protection of the ADA upon a finding of 'discrimination.'" Helen L., 46 F.3d 325, 334. So, although only intellectually disabled individuals can receive services at VDC, the Defendants cannot claim that they are violating the rights of all VDC residents equally and therefore not "discriminating" against them based on their disability.
The ADA regulations expressly state that: "A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." (emphasis added) 28 C.F.R. § 35.130(d)? Plaintiffs' allege that Defendants' deprivation of their rights has caused, and will cause, Plaintiffs to be discharged from VDC to settings that are not appropriate to their needs. [Dkt. #30, ~ 45,54,55,56,62]. 2 This regulation is almost identical to the Rehab Act's Section 504 regulation. See 28 CFR § 41.51(d).
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Case 1:12-cv-02522-RMB-AMD Document 39 Filed 03/04/13 Page 14 of 31 PageID: 479
Other district courts have recognized identical causes of action asserted by residents of stateoperated institutions for the intellectually disabled. See Ligas v. Maram, et aI., 1:05-cv-4331 (N.D. Ill., 2010) 2010 WL 1418583; U.S. v. Virginia, et aI., 3:12-cv-59 (E.D. Va. 2012) 2012 WL 1739165. Defendants' motivation for depriving Plaintiffs of their rights appears to be part of an ideological agenda to eliminate all larger congregate settings for individuals with intellectual disabilities, including ICFs/IID, and discharge some of the most medically fragile and vulnerable individuals to settings that are not appropriate and often dangerous. As described more fully below, Plaintiffs recognize that they do not have an absolute right to receive services in a state-operated ICF/IID. However, as long as Defendants continue to operate those services, Plaintiffs do have the right to compel Defendants to administer those services in accordance with well-settled federal law. As such, Plaintiffs have alleged facts indicating how Defendants have refused to comply with the law in failing to provide Plaintiffs with professional judgments with regard to discharge. This continuous failure on the part of Defendants, as described in the facts alleged in Plaintiffs' Amended Complaint show that Plaintiffs have suffered, and continue to suffer, an actual harm. Thus, Plaintiffs' claims are ripe for adjudication.
C. DEFENDANTS ARE REQUIRED TO ADMINISTER SERVICES IN ACCORDANCE WITH THE SUPREME COURT DECISION IN OLMSTEAD, THE AMERICANS WITH DISABILITIES ACT, AND THE REHABILITATION ACT
In arguing that the ADA and Rehab Act do not provide for Plaintiffs' causes of action, the Defendants deliberately misrepresent Plaintiffs' claims and the Olmstead decision to craft an argument that has no basis in fact or law. As described more fully in the section below, Defendants have falsely represented that Plaintiffs seek to "require Defendants to serve Plaintiffs in a particular developmental center." [Dkt. #33-1, at 22]. Plaintiffs seek Defendants' compliance with federal law, which entitles Plaintiffs to
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receive independent recommendations from their treating professionals as to the most appropriate setting to receive services and, after receiving those recommendations, the law gives to the Plaintiffs a right to consent to or to oppose any recommended discharge. The Plaintiffs have never claimed to be entitled to services at a particular developmental center.
Defendants' distortion of the Olmstead decision compels Plaintiffs to provide a full discussion ofthat case. The Olmstead case was an action filed on behalf of two women with mental retardation and co-morbid psychiatric disorders, referred to by their initials, L.C. and E.W. After being admitted voluntarily to the Georgia Regional Hospital in Atlanta in May 1992, L.C.'s schizophrenia was treated and stabilized. By May 1993, L.C. expressed a desire to leave the Georgia Regional Hospital and her treating professionals at the facility agreed that she could have her needs met in a state-supported community treatment program. However, L.C. remained in the Georgia Regional Hospital for nearly three (3) more years. E.W. was voluntarily hospitalized at the Georgia Regional Hospital in February 1995 with a diagnosis of personality disorder. By 1996, E. W. expressed a desire to leave the facility and her therapist concluded that she could be treated in a community-based treatment program. E.W. was not discharged until after litigation was initiated. Both women argued that the state's failure to discharge them to a community-based treatment program violated Title II of the ADA, the Rehab Act, and due process.
Finding that L.C.'s and E.W.'s continued treatment at the Georgia Regional Hospital violated the ADA, Olmstead created a three-prong test to determine when the ADA "require[s] placement of persons with mental disabilities in community settings
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Case 1:12-cv-02522-RMB-AMD Document 39 Filed 03/04/13 Page 16 of 31 PageID: 481
rather than in institutions." Olmstead, 527 U.S. at 587. The Court instructed that community placement is required when:
the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. Id. Interpreting the ADA and the Department of Justice's regulations issued under it, Olmstead emphasized that there is no "federal requirement that community-based treatment be imposed on patients who do not desire it." Id. at 602. The Defendants argument in the instant matter is diametrically opposed to this proposition. Olmstead expressly stated that "nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings." Id. at 601-02. "[T]he ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk." Id. at 605. In fact, the Court recognized that "for [some] individuals, no placement outside the institution may ever be appropriate." Id. (citing and quoting Brief for American Psychiatric Association et al. as Amici Curiae at 22-23) ("Some individuals, whether mentally retarded or mentally ill, are not prepared at particular times-perhaps in the short run, perhaps in the long run-for the risks and exposure of the less protective environment of community settings"); Brief for Voice of the Retarded et al. as Amici Curiae 11 ("Each disabled person is entitled to treatment in the most integrated setting possible for that person-recognizing that, on a case-by-case basis, that setting may be in an institution") (emphasis added); Youngberg v. Romeo, 457 U.S. 307, 327 (1982) (Blackmun, J., concurring) ("For many mentally retarded people, the difference between the capacity to
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do things for themselves within an institution and total dependence on the institution for
all of their needs is as much liberty as they ever will know") (emphasis added».
In the instant matter, Defendants would have this Court conclude that Plaintiffs
are not entitled to protect the rights that were expressly recognized by Olmstead.
Because Olmstead provides no support for Defendants' argument, Defendants have
fabricated their own standard without regard to Olmstead. In their Brief in Support of
their Motion to Dismiss, Defendants state:
In Olmstead, supra, 527 U.S. at 587, the Supreme Court, in a plurality opinion, found that under Title II of the ADA, specifically, 42 U.S.C. § 12132, and 28 C.F.R. 35. 130(d), if a State's treating professionals have determined that a person can be served in the community and the person does not oppose community placement, then the State is responsible to make such placement or show justification for why it need not under the ADA "fundamental alterations" provisions.
[Dkt. # 33-1, at 25]. Conspicuously, the Defendants do not quote the Olmstead
decision, but rather cite to the decision and then make unfounded implications
that treating professionals' determinations are optional, and only if such
determinations are made, is the state "responsible to make such placement. ..." Id.
Defendants' fabricated standard fails to accurately represent the clear language
used by the Supreme Court in Olmstead. The actual language from Olmstead is
as follows:
[W]e confront the question whether the proscription of discrimination may require placement of persons with mental disabilities in community settings rather than in institutions. The answer, we hold, is a qualified yes. Such action is in order when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated,
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taking into account the resources available to the State and the needs of others with mental disabilities. Id. Defendants' surreptitious substitution of the word "if' for "when" is an attempt to nullify the substance of the Olmstead standard, and would render that decision largely meaningless. In the instant matter, Defendants illogical position is clear. VDC is licensed by the Centers for Medicaid and Medicare Services, and is required to comply with ICF/IID regulations. Among other things, the ICF/IID regulations require Plaintiffs' treating professionals to annually assess the appropriateness of their continued residency at VDC. See 42 CFR § 483.440(a) et seq.; CMS State Operations Manual Appendix J Guidelines for 42 CFR § 483.440(a) et seq.3 Those regulations do not give treating professionals the option of determining where Plaintiffs should receive services. Those regulations require treating professionals to at least annually determine whether Plaintiffs continued residence at VDC is appropriate. There is no option for "if' Plaintiffs' treating professionals make such determinations. Consistent with Olmstead, CMS has promulgated regulations and guidelines describing when transfer or discharge of a resident of an ICF/IID can occur: Transfer or discharge occurs only when the facility cannot meet the individual's needs, the individual no longer requires an active treatment program in an ICFIMR setting, the individual/guardian chooses to reside elsewhere, or when a determination is made that another level of service or living situation, either internal or external, would be more beneficial, or for any other "good cause," as defined below. Moving an individual for "good cause" means for any reason that is in the best interest of the individual.
3 See generally 42 CFR § 440.150 and 42 CFR §§ 483.400-483.480 for the definition of and regulations pertaining to intermediate care facilities for the mentally retarded.
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Case 1:12-cv-02522-RMB-AMD Document 39 Filed 03/04/13 Page 19 of 31 PageID: 484
CMS Guideline 42 CFR §483.440(b)(4)(i). rf any VDC resident has been, or is to be, discharged, his or her treating professionals must comply with these guidelines. Defendants' rendition of the Olmstead standard not only contradicts the language used by the Court, but Defendants' version is also simply untenable in the context of the rCF/IID regulations.
Defendants' current practice of usurping treating professionals' independent judgments, and directing treating professionals to conclude that VDC residents should be discharged without regard for the treating professionals' independent determination, violates the holding in Olmstead and the rCF/IID regulations. Defendants' failure to allow for Plaintiffs' consent prior to discharge independently violates those same laws.
Just as Defendants misrepresented the language of the Olmstead decision, they similarly distort the Findings and Purpose section of the ADA by inappropriately piecing together various phrases from different subsections of Congress' findings. The net result is a false premise from which Defendants argue to deprive Plaintiffs of the very rights provided for in the ADA. Defendants' willingness to strain so far to deprive Plaintiffs of basic rights to safety is the same type of aberrant conduct Congress warned against in the same Findings section cited by Defendants:
[I]ndividuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers; overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities; 42 U.S.C. § 12101(a)(5) (emphasis added).
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Plaintiffs have a federally-protected right to receive recommendations from treating professionals as to whether alternative placement is appropriate and to consent to any such discharge. Olmstead dictates that VDC residents and their guardians have the benefit of treating professionals' judgments regarding the most appropriate place to receive services. Only after they have the benefit of that information are residents and guardians required to oppose or consent to continued residence at a Training Center, or to discharge to an alternative setting. See U.S. v. Arkansas, 794 F. Supp. 2d 935,982 (E.D. Ark. 2011) (In a CRIPA case brought by the Department of Justice the district court concluded that the Department of Justice failed to meet its burden pursuant to Olmstead because: "No person determined by the State's treatment professionals to be appropriate for community placement has been denied community placement."); See also School Bd. of Nassau Cty. v. Arline, 480 U.S. 273,288 (1987) ("courts normally should defer to the reasonable medical judgments of public health officials"); Hanson By and Through Hanson v. Clarke County, Iowa, 867 F.2d 1115 (8th Cir. 1989).
Likewise, Defendants' argument ignores the right ofVDC residents and guardians, as recognized by Olmstead, to oppose discharge from a facility. Interpreting Olmstead, the district court in U.S. v. Arkansas concluded that the Department of Justice failed to meet its burden because "[n]o resident of [the facility] has been denied community placement when a parent or guardian has requested such a placement." Arkansas, 794 F. Supp. 2d at 982; See also Ligas v. Maram, et aI., 1:05-cv-4331 (N.D. Ill., 2010) 2010 WL 1418583; U.S. v. Virginia, et aI., 3:12-cv-59 (E.D. Va. 2012) 2012 WL 1739165. In their Motion to Dismiss, the Defendants have not even challenged this independent basis for Plaintiffs' claims.
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The Olmstead decision cannot be twisted, as Defendants attempt, to require deinstitutionalization of individuals who need the services at the facility. See Olmstead at 605. In Conner v. Branstad, a district court soundly reasoned that "if Congress had actually intended to require states to provide community-based programs for mentally disabled individuals currently residing in institutional settings, it surely would have found a less oblique way of doing so." Conner v. Branstad, 839 F. Supp. 1346, 1357 (S.D. Iowa 1993); See also U.S. v. Oregon, 782 F. Supp. 502, 514 (D. Or. 1991) ("[P]remature or inappropriate community placements would result in a much higher risk of potential harm than residents are exposed to at [the facility]. ").
Defendants have attempted to argue that Plaintiffs have not requested community placement, therefore, they have not been considered for community placement at this time. [Dkt. #33-1 at 29]. However, whether or not Defendants believe that community placement is requested by any of the named Plaintiffs is irrelevant to this analysis. The fact still remains that Plaintiffs have properly alleged that Defendants have failed to provide Plaintiffs with independent professional judgments regarding the least restrictive environments that are appropriate to meet their needs. Plaintiffs have a federally-protected right to receive recommendations from treating professionals as to whether alternative placement is appropriate and to consent to any such discharge. Further, the Olmstead decision dictates that VDC residents and their guardians have the benefit of treating professionals' judgments regarding the most appropriate place to receive services. Therefore, since Plaintiffs have alleged sufficient facts that independent professional judgments are not being made regarding the least restrictive setting appropriate to their needs in accordance with the ADA and Rehab Act, Plaintiffs have properly alleged their claims. Therefore, these claims should not be dismissed.
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D. PLAINTIFFS HAVE NOT ALLEGED THAT DEFENDANTS ARE REQUIRED TO SERVE INDIVIDUALS IN A PARTICULAR INSTITUTION
Defendants have baldly misrepresented Plaintiffs' Medicaid Act claim in an attempt to create a strawrnan that they can knock down. Contrary to Defendants' assertions, Plaintiffs have not alleged that they are entitled to receive services in a particular setting. Plaintiffs have alleged that the Medicaid Act, among other things, imposes a duty on the Defendants to provide Plaintiffs with "choice of an rCF/IID institutional placement, subject to a hearing, under 42 U.S.C. § 1396n and 42 CFR § 441.302(d)." [Dkt. # 30, ~107] (emphasis added). The prior ninety-four (106) paragraphs of Plaintiffs' Amended Complaint describe the means by which Defendants have failed to give Plaintiffs that choice. Defendants have submitted their frivolous argument to the Court, but they do not cite any portion of Plaintiffs' Amended Complaint to support their false representation of Plaintiffs' allegations. See [Dkt. # 33-1 at 30-33].
As Defendants concede, they do have an obligation to continue to provide rCF/IID care for Plaintiffs as long as they accept federal funding pursuant to the Medical Act. See [Dkt. # 33-1 at 32 (citing 42 U.S.C. §§ 1396d(a)(15) and 1396n(c)(2)(C)]. By accepting those federal funds and operating their Developmental Centers, the Defendants have voluntarily assumed certain obligations. Those obligations specifically include providing rCF/IID-level of services, 42 U.S.C. §§ 1396a(a)(10) and 1396d(a)(l5); giving qualified individuals the choice of receiving services in an rCF/IID placement, 42 U.S.C. § 1396n and 42 CFR § 441.302(d); and discharging Plaintiffs only pursuant to 42 CFR § 483.440(b)(4)(i) and in accordance with the ADA and Olmstead, 527 U.S. 581,607.
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Under 42 U.S.C. § 1396a(a)(8), "[a] State plan for medical assistance must ... provide that all individuals wishing for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals." The responsible state agency must "furnish Medicaid promptly to recipients without any delay caused by the agency's administrative procedures," and "continue to furnish Medicaid regularly to all eligible individuals until they are found to be ineligible." 42 C.F.R. § 435.930(a)-(b) (1996). All Plaintiffs receive assistance under the Medical Assistance Program and are owed these and other duties by the Defendants. Defendants ignore those clear requirements to frivolously argue to this Court that the Medicaid Act imposes no duty on them to provide services to Plaintiffs.
Plaintiffs have not sued Defendants to keep VDC from closing. Plaintiffs have sued Defendants to stop Defendants' unlawful discrimination against Plaintiffs. Among other things alleged in Plaintiffs' Amended Complaint, the Defendants have instructed Plaintiffs' treating professionals to disregard their independent judgment and instead conclude that Plaintiffs can be served in alternative settings. [Dkt. # 30 at 11-12]. Defendants' actions are prohibited by the ADA, the Rehab Act, the Olmstead decision, and the U.S. Constitution. As noted in Plaintiffs' Amended Complaint, the Defendants are prohibited from using criteria or methods of administration that have the effect of subjecting Plaintiffs to discrimination on the basis of handicap or that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program with respect to handicapped persons. [Dkt. # 30 at 23]; See also 45 CFR § 84.4(b)(4); 28 CFR § 41.51 (b)(3)(1). Earlier this year, the Eastern District of Virginia assessed a motion to intervene filed by residents of state-operated institutions for
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Case 1:12-cv-02522-RMB-AMD Document 39 Filed 03/04/13 Page 24 of 31 PageID: 489
the intellectually disabled, where those residents asserted the same rights as those
asserted by Plaintiffs in this matter. See u.s. v. Virginia, et aI., 3:12-cv-59 (E.D. Va.
2012) 2012 WL 1739165. That Court granted intervention and held that "the Petitioners have a significant, protectable interest in receiving the appropriate care of their choice and protecting their rights under the ADA." U.S. v. Virginia, et aI., 3:12-cv-59 [Dkt. # 65 at 3 (citing Olmstead, 527 U.S. 581,602 ("Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it."))].
Plaintiffs have a right to receive the services they are currently provided at VDC. VDC offers extensive services that simply cannot be replicated in alternative settings, such as specialized clinical and professional staff trained to provide services to specific VDC residents, onsite health care, and systems operated in accordance with the ICF/IID regulations. The services currently offered at VDC are not available in alternative settings. The provision of those services at VDC, and the lack of availability of those services elsewhere, is a matter of life and death for Plaintiffs. Plaintiffs have alleged facts to support their claims that Defendants have not properly complied with the Medicaid Act by failing to provide Plaintiffs with appropriate professional judgments to allow for competent evaluation for placement in an institutional facility, and have thus properly alleged a violation of the Medicaid Act. Therefore, Count III of Plaintiffs' Amended Complaint should not be dismissed.
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E. DEFENDANTS WILL CONTINUE TO VIOLATE PLAINTIFFS' RIGHTS IF THIS COURT ABSTAINS FROM ADJUDICATING PLAINTIFFS' CLAIMS
Plaintiffs' claims cannot be dismissed based on abstention. The doctrine and application of abstention is exceedingly narrow, and cannot be appropriately applied to this case, because federal courts have a "virtually unflagging obligation" to exercise their validly conferred jurisdiction. Zwickler v. Koota, 389 U.S. 241,248 (1967). There are few "extraordinary and narrow exception[s] to the duty of the District Court to adjudicate a controversy properly before it." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). The abstention doctrine evolves from those limited exceptions. Koken v. Viad Corp. 307 F.Supp.2d 650, 653 (E.D.Pa. 2004). In this matter, Defendants improperly assert the Burford abstention doctrine and seek to improperly apply this doctrine to this case. Burford v. Sun Oil Co., 319 U.S. 315 (1943).
Burford addressed abstention in the context of a complex, statewide regulatory regime for gas and oil drilling in Texas. Id. at 320-25. The Burford Court held that where a state creates a complex regulatory scheme, supervised by the state courts and central to state interests, abstention would be appropriate if the federal court was required to evaluate primarily state law issues, which would disrupt a state's efforts "to establish a coherent policy with respect to a matter of substantial public concern." Colorado River, 424 U.S. at 814; see also U.S. Automobile Ass'n v. Muir, 792 F.2d 356, 364 (3d Cir.1986) ("Generally, Burford abstention is justified where a complex regulatory scheme is administered by a specialized state tribunal having exclusive jurisdiction."). See also Zablocki v. Redhail, 434 U.S. 374,380 n. 5, 98 S.Ct. 673, 678 n. 5, 54 L.Ed.2d 618
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(1978) ("[T]here is, of course, no doctrine requiring abstention merely because resolution
of a federal question may result in the overturning of a state policy.").
In stark contrast to Burford, Plaintiffs' claims in this matter specifically invoke
their federally-recognized rights. Any state administrative process, which Defendants
suggest should take the place of this Court, would not only be inadequate to address
Plaintiffs' federal claims, but it would also be tainted with Defendants' ongoing unlawful
actions.
This Circuit recently addressed the standard governing Burford abstention:
Where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are "difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar"; or (2) where the "exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern."
Riley v. Simmons, 45 F.3d 764, 771 (3d Cir.l995) (quoting New Orleans Pub. Serv., Inc.
v. Council of New Orleans (" NOPSI "), 491 U.S. 350, 360-63 (1989)). See also Feige v.
Sechrest, 90 F.3d 846, 847-848 (3d. Cir. 1996).4
The present case does not meet the Third Circuit's requirements for abstention.
First, there are no difficult questions of state law here, but rather questions of federal law
and how the Defendants are violating those laws through their policies and procedures.
4The Third Circuit has consistently held that Burford abstention calls for a two-step analysis. The first question is whether "timely and adequate state-court review" is available. Id. Only if a district court determines that such review is available, should it tum to the other issues and determine if the case before it involves difficult questions of state law impacting on the state's public policy or whether the district court's _exercise of jurisdiction would have a disruptive effect on the state's efforts to establish a coherent public policy on a matter of important state concern. Riley, 839 F.Supp. at 1127.
26

Case 1:12-cv-02522-RMB-AMD Document 39 Filed 03/04/13 Page 27 of 31 PageID: 492
There is no adequate state review available for those unlawful activities. Second, there would be no disruption if this Court were to exercise federal review of any state effort to establish a coherent policy.. Rather, federal review would make it easier for the Defendants to establish a coherent policy that protects Plaintiffs' rights and complies with federal law. Only through this Court's review will Defendants' policies and procedures be made to comply with the federal law cited in Plaintiffs' Amended Complaint.
Defendants cite New Orleans Public Service Inc. v. Council of New Orleans, 491 U.S. 350 (1989), as support for their argument. However, NOPSI does not support Defendants' contention. In fact, that Court specifically stated that "[w]hile Burford is concerned with protecting complex state administrative processes from undue federal interferences, it does not require abstention whenever there is such a process." NOPSI at 362.
Burford abstention is only appropriate where there are complex state administrative processes that would be disturbed if the federal court interfered. Courts in the Third Circuit have only granted abstention in exceptional circumstances. For example, the Third Circuit has held that abstention is appropriate to avoid federal court interference with Pennsylvania's regulation of insolvent insurance companies. Lac D'Amiante du Quebec, Ltee v. American Home Assurance Co., 864 F.2d 1033 (3d Cir.1988). (Court granted abstention because the state court placed the Company in state liquidation proceedings and a federal case would have disrupted those proceedings and the regulatory scheme). The Third Circuit has also affirmed that if a federal court has exclusive jurisdiction, such as in a case involving a federal question, abstention is improper. Riley at 775. (Third Circuit held that adequate review of federal claims could
27

Case 1:12-cv-02522-RMB-AMD Document 39 Filed 03/04/13 Page 28 of 31 PageID: 493
not be had in state court.) Not only have Defendants. cited law that does not support abstention, but
Defendants have also misstated Plaintiffs' causes of action as contained in the Amended Complaint. In their Brief in Support of Motion to Dismiss, Defendants state: "Plaintiffs allege that Defendants' offers of alternate residential placements will be so deficient that they will violate Plaintiffs' due process rights." [Dkt. # 33-1 at 33]. However, this statement misrepresents the claims set forth in Plaintiffs' Amended Complaint. As discussed more fully above, Plaintiffs' allegations, among other things, are that Defendants have deprived Plaintiffs of their rights, so as to taint the underlying facts for any state administrative proceedings. [Dkt. #30]. Plaintiffs have pled allegations that Defendants have, and continue, to violate Plaintiffs' federally-protected rights.5 [Dkt. #30 at 19].
The Plaintiffs brought this action to address serious and ongoing violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.c. § 12101, et seq., the Rehabilitation Act ("Rehab Act"), 29 U.S.c. § 794(a), et seq., the Medicaid Act, 42 U.S.c. § 1396, et seq., and the United States Constitution. This Court cannot rely on the State of New Jersey's administrative process to ensure that Plaintiffs' federal rights are protected. Furthermore, this is a federal question for which this Court has jurisdiction,
5 For example, Paragraph 54 alleges "None of Plaintiffs have given informed consent for their discharge from Vineland Development Center becaus~, among other things, Defendants have precluded treating professionals at the Vineland Development Center from fully and fairly considering Plaintiffs' rights to receive treatment and services at Vineland Development Center." [Dkt. 30 at 13]; Paragraph 65 alleges "Defendants have instructed Plaintiffs' treating professionals to include language in Plaintiffs' individual habilitation plans indicating that Plaintiffs are capable of being served in settings other than Vineland Developmental Center, regardless of whether Plaintiffs are actually capable of being served in alternative settings." [Dkt. 30 at 15].
28

Case 1:12-cv-02522-RMB-AMD Document 39 Filed 03/04/13 Page 29 of 31 PageID: 494
making abstention improper. As Plaintiffs' have alleged, and will show at trial, the State's system for assessing and discharging Plaintiffs from VDC specifically fails to comply with federal law.
The allegations of Plaintiffs' Amended Complaint meet the requirements of the Federal Rules of Civil Procedure, the ADA, Rehab Act, the Medicaid Act, and the United States Constitution. Those claims are properly pled with this Court, and they include claims that the policies and procedures employed by Defendants systematically violate the federal rights of Plaintiffs. Plaintiffs' claims are based on federal questions, upon which this Court has subject matter jurisdiction. State administrative reviews of transfers and discharges are being done in violation of federal law. It is preposterous for Defendants to suggest that this Court abstain from adjudicating this matter, in favor of relying on the very system that Plaintiffs allege is part of the violation. At a minimum, that system is insufficient to address systemic violations by the Defendants to provide for Plaintiffs' due process rights and rights provided by the ADA, the Rehab Act, and the Medicaid Act. The state administrative process is limited to whether a particular transfer or discharge decision was in compliance with the state policies. Plaintiffs allege that Defendants' policy of usurping treating professionals' decisions by not allowing independent recommendations to Plaintiffs, and the Defendants' disregard for Plaintiffs' consent or opposition to transfers and discharges, violates federal law. Furthermore, Plaintiffs would have no effective way of asserting their federal rights in Defendants' administrative hearing process. The facts pled support this Court's exclusive jurisdiction.
This Court is the most appropriate jurisdiction to adjudicate whether Defendants' policies and procedures are part of systemic violations of Plaintiffs' federally-protected
29

Case 1:12-cv-02522-RMB-AMD Document 39 Filed 03/04/13 Page 30 of 31 PageID: 495

rights. This Court should maintain jurisdiction of Plaintiffs' claims because abstention is

inappropriate in this matter.

CONCLUSION

For all of the foregoing reason, Defendants' Motion to Dismiss should be denied.

Respectfully submitted,

/s/ Thomas A. Archer Thomas A. Archer NJ Attorney LD. 054321994 3401 North Front Street .Harrisburg, PA 17110-0950 (717) 232-5000 Fax: (717) 236-1816 taarcher@mel1e.co1l1

THE YORK LEGAL GROUP, LLC

/s/ Thomas B. York Thomas B. York PA Attorney LD. No. 32522 3511 North Front Street Harrisburg, PA 17110 (717) 236-9675 Fax: (717) 236-6919 tvork(Zi1yorklegal group.com

Date: March 4,2013

Attorneys for Plaintiffs

30

Case 1:12-cv-02522-RMB-AMD Document 39 Filed 03/04/13 Page 31 of 31 PageID: 496
CERTIFICATE OF SERVICE I hereby certify that on this 4th day of March 2013, I electronically filed the foregoing with the Clerk of Courts, using the CM/ECF system, which will then send notification of such filing (NEF), to the following:
Gerard Hughes, Esquire Office of the New Jersey Attorney General
Division of Law 26 Market Street
P.O. Box 112 Trenton, New Jersey 08625-0112
IslThomas A. Archer
31

 
 Case 1:12-cv-02522-RMB-AMD Document 42 Filed 03/19/13 Page 1 of 1 PageID: 503 [Docket Nos. 33, 34]

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE

TERESITA CAREY, et al.,
Plaintiffs,
v.
CHRISTOPHER CHRISTIE, as GOVERNOR OF THE STATE OF NEW JERSEY, et al.,
Defendants.

Civil No. 12-2522 (RMB-AMD)
ORDER

On February 8, 2013, Defendants in the above-captioned matter moved to dismiss this action. [Docket No. 33]. On March 18, 2013, this Court heard oral argument on Defendants’ motion. For the reasons stated at oral argument, Defendants’ motion is GRANTED.1 Plaintiffs shall have 45 days from the entry of this Order to file an amended complaint.

Dated: March 18, 2013

s/Renée Marie Bumb RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE

1

Defendants also moved to seal certain exhibits attached to their motion to dismiss. [Docket No. 34]. That

motion is also GRANTED.

 
 Case 1:12-cv-02522-RMB-AMD Document 46 Filed 05/06/13 Page 1 of 1 PageID: 510

The York Legal Group, LLC Phone: 717.236.9675
Facsimile: 717.236.6919

May 2, 2013 Honorable Renee Marie Bumb, U.S.DJ United States District Court for the District of New Jersey Camden Vicinage

402 East State Street Trenton, NJ 08608
Re: Carey, et. al. v. Christie, et. at
Civil Action No.: 1:12-cv-02522
To the Honorable Judge Bumb:
Based upon the comments by Your Honor at the oral argument on March 18, 2013, the Plaintiffs have decided to request a voluntary dismissal. The Plaintiffs understand that they may be able to return to this Court if the violations of their rights by the State escalate and there is more evidence of imminent harm. The Plaintiffs believed that much of the threatened harm could be avoided if the issues were addressed before further rights were violated and before transfers of individual residents were actually planned. However, the Plaintiffs have now decided to wait until the inevitable harm by the State becomes more evident and imminent.
Although Plaintiffs' counsel thought that a formal motion for a voluntary dismissal might be appropriate, the Clerk has instructed the Plaintiffs to file a letter requesting a voluntary dismissal. The Plaintiffs request that their Amended Complaint dated January 11,2013, be voluntarily dismissed. The Plaintiffs will seek to restart or to revive this litigation when appropriate.
Thank you for your consideration ofthis request.

Very Truly Yours,
~Q3rr

Thomas B. York

TBY/jlw
cc: Gerard Hughes, Deputy Attorney General (via ECF)
Thomas A. Archer, Esquire

~

& So Ordered this

day

!p:,;,~t-'

R EE MARIE SUMS 3511 North Front Street • Harrisburg, Pennsylvania 17110 UOiled States Oistrict Judge

 
 Case: 1:12-cv-02522-RMB-AMD As of: 09/14/2014 10:50 AM EDT 1 of 7
CLOSED,SCHEDO
U.S. District Court District of New Jersey [LIVE] (Camden) CIVIL DOCKET FOR CASE #: 1:12−cv−02522−RMB−AMD

CAREY et al v. CHRISTIE et al Assigned to: Judge Renee Marie Bumb Referred to: Magistrate Judge Ann Marie Donio Cause: 42:12101 Americans with Disabilities Act
Plaintiff

Date Filed: 04/27/2012 Date Terminated: 05/06/2013 Jury Demand: Plaintiff Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

TERESITA CAREY by and through her guardian, JIM CAREY

represented by THOMAS A. ARCHER METTE EVANS &WOODSIDE 3401 NORTH FRONT STREET P.O. BOX 5950 HARRISBURG, PA 17110 717−232−5000 Email: taarcher@mette.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
KAREN COLLETTI by and through her guardian, VITO COLLETTI

represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
CONSTANCE DANIELS by and through her guardian, ELVERA DANIELS

represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
LAURA GORDON by and through her guardian, MURIEL GORDON

represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
DEBRA HAMILTON by and through her guardian, MARILYN HAMILTON

represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
PATRICIA IADICOLA by and through her guardian, MARY IADICOLA

represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
BARBARA STEWARD by and through her guardian, MARION BALDWIN

represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:12-cv-02522-RMB-AMD As of: 09/14/2014 10:50 AM EDT 2 of 7

V. Defendant CHRISTOPHER CHRISTIE Governor of the State of New Jersey
Defendant NEW JERSEY DEPARTMENT OF HUMAN SERVICES
Defendant JENNIFER VELEZ as Commissioner of the New Jersey Department of Human Services
Defendant NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES
Defendant DAWN APGAR as Deputy Commissioner/Acting Assistant Commissioner of New Jersey Department of Human Services Division of Developmental Disabilities Defendant VINELAND DEVELOPMENTAL CENTER
Defendant ELOISE HAWKINS as Chief Executive Officer of the Vineland Developmental Center
Interested Party THE UNITED STATES

represented by GERARD ANDREW HUGHES OFFICE OF THE NJ ATTORNEY GENERAL DIVISION OF LAW 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625−0112 (609) 341−5096 Email: gerard.hughes@lps.state.nj.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by GERARD ANDREW HUGHES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by GERARD ANDREW HUGHES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by GERARD ANDREW HUGHES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by GERARD ANDREW HUGHES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by GERARD ANDREW HUGHES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by GERARD ANDREW HUGHES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by CHRISTOPHER N. CHENG U.S. DEPARTMENT OF JUSTICE CIVIL RIGHTS DIVISION − SPECIAL LITIGATION SECTION 950 PENNSYLVANIA AVENUE NW WASHINGTON, DC 20530

Case: 1:12-cv-02522-RMB-AMD As of: 09/14/2014 10:50 AM EDT 3 of 7
(202) 514−8892 Email: christopher.cheng@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/27/2012
04/27/2012
04/30/2012 05/01/2012 05/22/2012 06/26/2012 06/26/2012 06/26/2012 06/26/2012

# Docket Text
1 COMPLAINT against DAWN APGAR, CHRISTOPHER CHRISTIE, ELOISE HAWKINS, NEW JERSEY DEPARTMENT OF HUMAN SERVICES, NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES, JENNIFER VELEZ, VINELAND DEVELOPMENTAL CENTER ( Filing fee $ 350 receipt number 0312−4320265) with JURY DEMAND, filed by PATRICIA IADICOLA, KAREN COLLETTI, LAURA GORDON, DEBRA HAMILTON, TERESITA CAREY, BARBARA STEWARD, CONSTANCE DANIELS. (Attachments: # 1 Civil Cover Sheet, # 2 Verification)(bdk, ) (Entered: 04/30/2012)
2 SUMMONS ISSUED as to DAWN APGAR, CHRISTOPHER CHRISTIE, ELOISE HAWKINS, NEW JERSEY DEPARTMENT OF HUMAN SERVICES, NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES, JENNIFER VELEZ, VINELAND DEVELOPMENTAL CENTER Attached is the official court Summons, please fill out Defendant and Plaintiffs attorney information and serve. Issued By *Brian D. Kemner* (bdk, ) (Entered: 04/30/2012)
3 MOTION for Leave to Appear Pro Hac Vice by TERESITA CAREY, KAREN COLLETTI, CONSTANCE DANIELS, LAURA GORDON, DEBRA HAMILTON, PATRICIA IADICOLA, BARBARA STEWARD. (Attachments: # 1 Exhibit A)(ARCHER, THOMAS) (Entered: 04/30/2012)
Set Deadlines as to 3 MOTION for Leave to Appear Pro Hac Vice . Motion set for 6/4/2012 before Magistrate Judge Ann Marie Donio. The motion will be decided on the papers. No appearances required unless notified by the court. (dmr) (Entered: 05/01/2012)
4 ORDER, Pltf's 3 Motion for Leave to Appear Pro Hac Vice is DISMISSED WITHOUT PREJUDICE, etc. Signed by Magistrate Judge Ann Marie Donio on 5/22/2012. (dmr) (Entered: 05/22/2012)
5 WAIVER OF SERVICE Returned Executed by PATRICIA IADICOLA, KAREN COLLETTI, LAURA GORDON, DEBRA HAMILTON, TERESITA CAREY, BARBARA STEWARD, CONSTANCE DANIELS. DAWN APGAR waiver sent on 5/17/2012, answer due 7/16/2012. (ARCHER, THOMAS) (Entered: 06/26/2012)
6 WAIVER OF SERVICE Returned Executed by PATRICIA IADICOLA, KAREN COLLETTI, LAURA GORDON, DEBRA HAMILTON, TERESITA CAREY, BARBARA STEWARD, CONSTANCE DANIELS. ELOISE HAWKINS waiver sent on 5/17/2012, answer due 7/16/2012; VINELAND DEVELOPMENTAL CENTER waiver sent on 5/17/2012, answer due 7/16/2012. (ARCHER, THOMAS) (Entered: 06/26/2012)
7 WAIVER OF SERVICE Returned Executed by PATRICIA IADICOLA, KAREN COLLETTI, LAURA GORDON, DEBRA HAMILTON, TERESITA CAREY, BARBARA STEWARD, CONSTANCE DANIELS. CHRISTOPHER CHRISTIE waiver sent on 5/31/2012, answer due 7/30/2012. (ARCHER, THOMAS) (Entered: 06/26/2012)
8 WAIVER OF SERVICE Returned Executed by PATRICIA IADICOLA, KAREN COLLETTI, LAURA GORDON, DEBRA HAMILTON, TERESITA CAREY, BARBARA STEWARD, CONSTANCE DANIELS. NEW JERSEY DEPARTMENT OF HUMAN SERVICES waiver sent on 5/18/2012, answer due 7/17/2012; NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES waiver sent on 5/18/2012, answer due 7/17/2012; JENNIFER VELEZ waiver sent on 5/18/2012, answer due 7/17/2012. (ARCHER, THOMAS) (Entered: 06/26/2012)

Case: 1:12-cv-02522-RMB-AMD As of: 09/14/2014 10:50 AM EDT 4 of 7

07/03/2012
07/05/2012
07/13/2012 07/13/2012 07/23/2012 07/23/2012
07/24/2012 07/25/2012 07/26/2012 08/06/2012 08/10/2012

9 Application and Proposed Order for Clerk's Order to extend time to answer as to Complaint. Attorney GERARD ANDREW HUGHES for DAWN APGAR,GERARD ANDREW HUGHES for CHRISTOPHER CHRISTIE,GERARD ANDREW HUGHES for ELOISE HAWKINS,GERARD ANDREW HUGHES for NEW JERSEY DEPARTMENT OF HUMAN SERVICES,GERARD ANDREW HUGHES for NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES,GERARD ANDREW HUGHES for JENNIFER VELEZ,GERARD ANDREW HUGHES for VINELAND DEVELOPMENTAL CENTER added. (HUGHES, GERARD) (Entered: 07/03/2012)
Clerk`s Text Order − The document 9 Application for Clerk's Order to Ext Answer/Proposed Order submitted by ELOISE HAWKINS, JENNIFER VELEZ, VINELAND DEVELOPMENTAL CENTER, CHRISTOPHER CHRISTIE, NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES, DAWN APGAR, NEW JERSEY DEPARTMENT OF HUMAN SERVICES has been GRANTED. The answer due date has been set for 07/23/2012. (tf, ) (Entered: 07/05/2012)
10 MOTION for Leave to Appear Pro Hac Vice by TERESITA CAREY, KAREN COLLETTI, CONSTANCE DANIELS, LAURA GORDON, DEBRA HAMILTON, PATRICIA IADICOLA, BARBARA STEWARD. (Attachments: # 1 Exhibit)(ARCHER, THOMAS) (Entered: 07/13/2012)
Set Deadlines as to 10 MOTION for Leave to Appear Pro Hac Vice . Motion set for 8/6/2012 before Magistrate Judge Ann Marie Donio. The motion will be decided on the papers. No appearances required unless notified by the court. (tf, ) (Entered: 07/13/2012)
11 TEXT ORDER: Within ten (10) days of the date of this Text Order, counsel for plaintiffs shall file a certification of the applicant in support of the pro hac vice motion as set forth in the amendment to L. Civ. R. 101.1(c)(1) (eff. March 1, 2010); or in lieu thereof, may attach an UPDATED certificate of good standing. See http://www.njd.uscourts.gov/LocalRules.html. ORDERED byMagistrate Judge Ann Marie Donio on 7/23/2012. (slc) (Entered: 07/23/2012)
12 MOTION to Dismiss Complaint by DAWN APGAR, CHRISTOPHER CHRISTIE, ELOISE HAWKINS, NEW JERSEY DEPARTMENT OF HUMAN SERVICES, NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES, JENNIFER VELEZ, VINELAND DEVELOPMENTAL CENTER. Responses due by 8/6/2012 (Attachments: # 1 Brief, # 2 Certification of Gerard Hughes with Exhibits A and B, # 3 Text of Proposed Order, # 4 Certificate of Service)(HUGHES, GERARD) (Entered: 07/23/2012)
Set Deadlines as to 12 MOTION to Dismiss Complaint. Motion set for 8/20/2012 before Judge Renee Marie Bumb. The motion will be decided on the papers. No appearances required unless notified by the court. (tf, ) (Entered: 07/24/2012)
13 Exhibit to 10 Motion for Leave to Appear by TERESITA CAREY, KAREN COLLETTI, CONSTANCE DANIELS, LAURA GORDON, DEBRA HAMILTON, PATRICIA IADICOLA, BARBARA STEWARD. (ARCHER, THOMAS) (Entered: 07/25/2012)
14 ORDER granting 10 Motion for Leave to Appear Pro Hac Vice as to Thomas B. York, Esq. Shall remit to the New Jersey Lawyers' Fund for Client Protection the annual payment required. Pay $150.00 to US District Court, etc.. Signed by Magistrate Judge Ann Marie Donio on 07/26/2012. (tf, ) (Entered: 07/26/2012)
15 BRIEF in Opposition filed by TERESITA CAREY, KAREN COLLETTI, CONSTANCE DANIELS, LAURA GORDON, DEBRA HAMILTON, PATRICIA IADICOLA, BARBARA STEWARD re 12 MOTION to Dismiss Complaint (ARCHER, THOMAS) (Entered: 08/06/2012)
16 Letter from Gerard Hughes re Task Force Report and Request for Extension. (HUGHES, GERARD) (Entered: 08/10/2012)

Case: 1:12-cv-02522-RMB-AMD As of: 09/14/2014 10:50 AM EDT 5 of 7

08/14/2012 09/10/2012 09/12/2012 09/12/2012 09/12/2012 09/13/2012
09/20/2012
09/25/2012
10/03/2012
10/15/2012 11/20/2012 11/20/2012 11/30/2012 12/06/2012

17 Minute Entry for proceedings held before Judge Renee Marie Bumb: Telephone Conference held on 8/14/2012. (Court Reporter Ted Formaroli) (ar1, ) (Entered: 08/14/2012)
Pro Hac Vice fee as to Thomas B. York: $ 150, receipt number CAM002310 (tf, ) (Entered: 09/11/2012)
18 MOTION for Leave to Appear Pro Hac Vice by TERESITA CAREY, KAREN COLLETTI, CONSTANCE DANIELS, LAURA GORDON, DEBRA HAMILTON, PATRICIA IADICOLA, BARBARA STEWARD. (Attachments: # 1 Certificate of Good Standing)(ARCHER, THOMAS) (Entered: 09/12/2012)
19 MOTION for Leave to Appear Pro Hac Vice by TERESITA CAREY, KAREN COLLETTI, CONSTANCE DANIELS, LAURA GORDON, DEBRA HAMILTON, PATRICIA IADICOLA, BARBARA STEWARD. (Attachments: # 1 Certificate of Good Standing)(ARCHER, THOMAS) (Entered: 09/12/2012)
Set Deadlines as to 19 MOTION for Leave to Appear Pro Hac Vice , 18 MOTION for Leave to Appear Pro Hac Vice . Motion set for 10/15/2012 before Magistrate Judge Ann Marie Donio. The motion will be decided on the papers. No appearances required unless notified by the court. (tf, ) (Entered: 09/12/2012)
20 TEXT ORDER. The in−person oral argument scheduled for September 20, 2012 at 9:30 a.m. has been converted to a telephonic conference at the same time. The conference will address whether Plaintiffs` Complaint is now moot. Counsel for Plaintiffs shall initiate the call with the Court. Signed by Judge Renee Marie Bumb on 09/13/12. (Bumb, Renee) (Entered: 09/13/2012)
21 Minute Entry for proceedings held before Judge Renee Marie Bumb: Motion Hearing via telephone held on 9/20/2012 re 12 MOTION to Dismiss Complaint. Ordered motion to dismiss to be administratively terminated. Ordered a status letter to be filed with the Court by November 16, 2012. Ordered a telephone status conference set for December 10, 2012 at 1:15p.m. and to be initiated by defense counsel. Order to be entered. (Court Reporter/Recorder Ted Formaroli.) (tf, ) (Entered: 09/20/2012)
22 ORDERED that Defendants' motion to dismiss 12 is ADMINISTRATIVELY TERMINATED. The parties shall file a status letter with the Court on or before 11/16/2012. The parties shall appear for a telephonic conference, to be initiated by counsel for Defendants, on 12/10/2012 at 1:15pm. Signed by Judge Renee Marie Bumb on 09/24/2012. (tf, ) (Entered: 09/25/2012)
23 ORDER granting 18 &19 Motion for Leave to Appear Pro Hac Vice as to Cordelia M. Elias and Donald B. Zaycosky, Esqs. Shall remit to New Jersey Lawyers' Fund for Client Protection the annual payment required. Pay $150.00 to US District Court, etc.. Signed by Magistrate Judge Ann Marie Donio on 10/02/2012. (tf, ) (Entered: 10/03/2012)
24 Notice of Request by Pro Hac Vice Thomas B. York, Esquire to receive Notices of Electronic Filings. (ARCHER, THOMAS) (Entered: 10/15/2012)
25 SCHEDULING ORDER: In−Person Status Conference set for 12/3/2012 03:00 PM before Magistrate Judge Ann Marie Donio. Signed by Magistrate Judge Ann Marie Donio on 11/20/2012. (tf, ) (Entered: 11/20/2012)
26 TEXT ORDER. In light of the in person status conference set by Judge Donio for December 3, 2012, at 3:00 pm, the telephone conference scheduled for December 10, 2012 before this Court is CANCELLED. Signed by Judge Renee Marie Bumb on 11/20/12. (Bumb, Renee) (Entered: 11/20/2012)
27 TEXT ORDER: Upon letter application from Thomas B. York, Esq., and with the consent of counsel, the 12/3/2012 status conference before Judge Donio shall be, and is hereby, RESCHEDULED to 12/6/2012 at 11:30 AM. ORDERED by Magistrate Judge Ann Marie Donio on 11/30/2012. (slc) (Entered: 11/30/2012)
28 Minute Entry for proceedings held before Magistrate Judge Ann Marie Donio: Status Conference held on 12/6/2012. Order to be entered. (CD #637.) (tf, ) (Entered: 12/06/2012)

Case: 1:12-cv-02522-RMB-AMD As of: 09/14/2014 10:50 AM EDT 6 of 7

12/07/2012 01/10/2013 01/11/2013
01/23/2013 01/24/2013 01/25/2013 02/08/2013 02/08/2013
02/08/2013
02/11/2013

29 ORDER, Plaintiffs shall be, and are hereby, granted leave to file an amended complaint by no later than January 11, 2013. Settlement Conference set for 1/28/2013 at 1:30 PM before Magistrate Judge Ann Marie Donio. Signed by Magistrate Judge Ann Marie Donio on 12/7/12. (js) (Entered: 12/07/2012)
NOTICE: Settlement Memoranda due to Chambers by 1/14/13. See Scheduling Order of 12/7/12. (sb) (Entered: 01/10/2013)
30 AMENDED COMPLAINT against DAWN APGAR, CHRISTOPHER CHRISTIE, ELOISE HAWKINS, NEW JERSEY DEPARTMENT OF HUMAN SERVICES, NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES, JENNIFER VELEZ, VINELAND DEVELOPMENTAL CENTER, filed by PATRICIA IADICOLA, KAREN COLLETTI, LAURA GORDON, DEBRA HAMILTON, TERESITA CAREY, BARBARA STEWARD, CONSTANCE DANIELS.(ARCHER, THOMAS) (Entered: 01/11/2013)
31 TEXT ORDER: In light of Defendants' position as set forth in their letter of 1/18/2013, the settlement conference on 1/28/2013 shall be, and is hereby, ADJOURNED. The Court will conduct a telephone conference on 2/22/2013 at 10:30 AM. Counsel for plaintiffs shall initiate the telephone call. ORDERED by Magistrate Judge Ann Marie Donio on 1/23/2013. (slc) (Entered: 01/23/2013)
32 Application and Proposed Order for Clerk's Order to extend time to answer as to Amended Complaint.. (HUGHES, GERARD) (Entered: 01/24/2013)
Clerk`s Text Order − The document 32 Application for Clerk's Order to Ext Answer/Proposed Order submitted by ELOISE HAWKINS, JENNIFER VELEZ, VINELAND DEVELOPMENTAL CENTER, CHRISTOPHER CHRISTIE, NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES, DAWN APGAR, NEW JERSEY DEPARTMENT OF HUMAN SERVICES has been GRANTED. The answer due date has been set for 2/8/2013. (tf, ) (Entered: 01/25/2013)
33 MOTION to Dismiss Amended Complaint by DAWN APGAR, CHRISTOPHER CHRISTIE, ELOISE HAWKINS, NEW JERSEY DEPARTMENT OF HUMAN SERVICES, NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES, JENNIFER VELEZ, VINELAND DEVELOPMENTAL CENTER. Responses due by 2/19/2013 (Attachments: # 1 Brief, # 2 Certification of Gerard Hughes, # 3 Exhibit A and B, # 4 Certificate of Service)(HUGHES, GERARD) (Entered: 02/08/2013)
34 MOTION to Seal Exhibits C through I to Motion to Dismiss Amended Complaint by DAWN APGAR, CHRISTOPHER CHRISTIE, ELOISE HAWKINS, NEW JERSEY DEPARTMENT OF HUMAN SERVICES, NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES, JENNIFER VELEZ, VINELAND DEVELOPMENTAL CENTER. (Attachments: # 1 Brief, # 2 Certification of Eloise Hawkins, # 3 Text of Proposed Order, # 4 Certificate of Service)(HUGHES, GERARD) (Entered: 02/08/2013)
35 Exhibit to 34 Motion to Seal, by DAWN APGAR, CHRISTOPHER CHRISTIE, ELOISE HAWKINS, NEW JERSEY DEPARTMENT OF HUMAN SERVICES, NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES, JENNIFER VELEZ, VINELAND DEVELOPMENTAL CENTER. (Attachments: # 1 Exhibit E and F (CONFIDENTIAL MATERIALS), # 2 Exhibit G and H (CONFIDENTIAL MATERIALS), # 3 Exhibit I (CONFIDENTIAL MATERIALS))(HUGHES, GERARD) (Entered: 02/08/2013)
Set Deadlines as to 33 MOTION to Dismiss Amended Complaint, 34 MOTION to Seal Exhibits C through I to Motion to Dismiss Amended Complaint. Motion set for 3/4/2013 before Judge Renee Marie Bumb. The motion will be decided on the papers. No appearances required unless notified by the court. (tf, ) (Entered: 02/11/2013)

Case: 1:12-cv-02522-RMB-AMD As of: 09/14/2014 10:50 AM EDT 7 of 7

02/15/2013 02/19/2013 02/22/2013 02/28/2013 03/04/2013 03/14/2013 03/15/2013 03/19/2013 03/19/2013
05/02/2013 05/02/2013 05/06/2013

36 Rule 7.1(d)(5) Letter for an automatic extension of the return date of a dispositive motion re 33 MOTION to Dismiss Amended Complaint . (ARCHER, THOMAS) (Entered: 02/15/2013)
AMENDED Set Deadlines as to 33 MOTION to Dismiss Amended Complaint. Motion set for 3/18/2013 before Judge Renee Marie Bumb. The motion will be decided on the papers. No appearances required unless notified by the court. (Per # 36 ) (tf, ) (Entered: 02/19/2013)
37 Minute Entry for proceedings held before Magistrate Judge Ann Marie Donio: Telephone Status Conference held on 2/22/2013. (CD #649.) (tf, ) (Entered: 02/25/2013)
38 LETTER ORDER addressed to Counsel: Oral argument on Defendants' Motion to Dismiss has been scheduled for 3/18/2013, at 2:30 p.m., in Courtroom 3D. Signed by Judge Renee Marie Bumb on 2/28/2013. (tf, ) (Entered: 02/28/2013)
39 BRIEF in Opposition filed by TERESITA CAREY, KAREN COLLETTI, CONSTANCE DANIELS, LAURA GORDON, DEBRA HAMILTON, PATRICIA IADICOLA, BARBARA STEWARD re 33 MOTION to Dismiss Amended Complaint (ARCHER, THOMAS) (Entered: 03/04/2013)
40 Letter from U.S. Department of Justice re 38 Order. (Attachments: # 1 Certificate of Service)(CHENG, CHRISTOPHER) (Entered: 03/14/2013)
41 Letter from Thomas A. Archer, Esquire. (ARCHER, THOMAS) (Entered: 03/15/2013)
42 ORDER granting 33 Motion to Dismiss ; granting 34 Motion to Seal. Plaintiffs shall have 45 days from the entry of this Order to file an amended complaint. Signed by Judge Renee Marie Bumb on 3/18/2013. (tf, ) (Entered: 03/19/2013)
43 Minute Entry for proceedings held before Judge Renee Marie Bumb: Motion Hearing held on 3/18/2013. Hearing on 33 MOTION to Dismiss Amended Complaint filed by JENNIFER VELEZ, ELOISE HAWKINS, VINELAND DEVELOPMENTAL CENTER, DAWN APGAR, NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES, CHRISTOPHER CHRISTIE, NEW JERSEY DEPARTMENT OF HUMAN SERVICES. Ordered motion granted and plaintiff leave to amend the complaint within 45 days. Order to be entered. (Court Reporter Ted Formaroli) (ar1, ) (Entered: 03/19/2013)
44 INDIVIDUAL RULES AND PROCEDURES JUDGE RENEE MARIE BUMB. (drw) (Entered: 05/02/2013)
45 Letter from Thomas B. York, Esquire. (ARCHER, THOMAS) (Entered: 05/02/2013)
46 ORDER granting request for voluntary dismissal. Signed by Judge Renee Marie Bumb on 5/6/2013. (tf, ) ***CIVIL CASE CLOSED*** (Entered: 05/06/2013)