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NEW JERSEY PROTECTION AND ADVOCACY, INC. By: William Emmett Dwyer, Esq. 210 South Broad Street, Third Floor Trenton, NJ 08608 (609) 292-9742
BALLARD SPAHR ANDREWS & INGERSOLL, LLP
A Pennsylvania Limited Liability Partnership
By: John B. Kearney, Esq. Eugene J. Kuzinski, Esq.
Plaza 1000, Suite 500 - Main Street Voorhees, NJ 08043 (856) 761-3400
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

NEW JERSEY PROTECTION & ADVOCACY, INC.; ALLISON HARMON, by and through her guardians, Valerie Hannon and Linda Lemore, and FREDRENA THOMPSON,
Plaintiffs,
v.
CLARKE BRUNO, in his official capacity as Acting Commissioner of the Department Human Services for the State of New Jersey, and State of New Jersey,
Defendants.

Docket No. 3-05-CV-04723 (FLW/TJB)
AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

PRELIMINARY STATEMENT Thousands of New Jersey citizens with developmental disabilities are forced to live in large institutions unlawfully segregated and isolated from family and friends because Defendant has failed to provide community-based housing, programs, and services for them.

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Defendant has not only failed to develop and provide such community-based programs and services, but also to develop and administer an adequate assessment tool for identifying those individuals who are appropriate for living in settings other than developmental centers. Many residents now living in developmental centers want to and could live in the community with appropriate supports and services; and they could do so without the Defendant undergoing a fundamental alteration in the way he administers his programs, services, and activities.
Defendant has long failed to comply with the mandates and requirements of the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act (Section 504), and Title XIX of the Social Security Act (Medicaid), which call for a comprehensive integration plan that at a bare minimum, identifies residents' eligibility for discharge, specifies time frames for resident discharge, and describes the collaboration that will take place between the Defendant and others to ensure that programs and services are in place to accomplish successful, safe community integration for those wishing to live in the community. The failure to develop a comprehensive integration plan and an adequate assessment tool has sentenced thousands of individuals with developmental disabilities to unnecessary, illegal segregation in institutional settings such as developmental centers.
Furthermore, the procedure employed by Defendant State of New Jersey in allowing such admissions to developmental centers to occur without notice, a hearing, and representation deprives citizens with developmental disabilities of their constitutional right to due process, as guaranteed by the Fourteenth Amendment to the United States Constitution, and further violates the Americans with Disabilities Act.

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JURISDICTION AND VENUE 1. Jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331 and 1343.
2. Plaintiffs' claims are authorized by 42 U.S.C. §§ 1983 and 12132, and 29
U.S.C. § 794a. 3. Venue is appropriate in this district pursuant to 28 U.S.c. § 1391. 4. Declaratory relief is authorized under 28 U.S.C. § 2201; injunctive relief is
authorized by 28 U.S.C. § 2202. Defendant's actions have resulted and continue to result in irreparable injury to Plaintiffs, for which they have no adequate remedy at law.
PARTIES Plaintiffs New Jersey Protection & Advocacy 5. New Jersey Protection & Advocacy, Inc. (NJP&A), a non-profit corporation, is the federally funded agency designated since 1994 to serve as New Jersey's protection and advocacy system for people with disabilities. Pursuant to this designation, NJP&A serves as the agency to implement, on behalf ofthe State of New Jersey, the Protection and Advocacy System for the Developmentally Disabled established pursuant to the Developmental Disabilities Assistance and Bill of Rights Act of2000, 42 U.S.c. § 15001 et seq. 6. NJP&A is part of a nationwide network of protection and advocacy agencies located in all fifty states, the District of Columbia, Puerto Rico, and the federal territories. The protection and advocacy system comprises the nation's largest provider of legally-based advocacy services for people with disabilities. 7. By virtue of its designation, NJP&A has statutory authority to pursue legal, administrative, and other appropriate remedies to ensure the protection of individuals with

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developmental disabilities who are or will be receiving care and treatment in New Jersey. 42 u.S.c. § 15043(a)(2)(A)(i).
8. NJP&A is pursuing this action to protect and advocate for the rights and interests of "individuals with developmental disabilities" as that term is defined in 42 U.S.C. § 15002. Specifically, NJP&A brings this action on behalf of individuals who are unnecessarily institutionalized in the State's seven large, congregate facilities (known as developmental centers) and who wish to reside in more integrated settings in the community.
9. These individuals have each suffered injuries, or will suffer injuries, that would allow them to bring suit in their own right against Defendant.
Allison Harmon 10. Allison Harmon, age 37, is a resident of Vineland Developmental Center in Vineland, New Jersey. 11. Allison has a diagnosis of mental retardation, cerebral palsy with quadriplegia, and mental illness. She experienced brain damage at birth and has severe dysphagia (inability to swallow). She receives nutrition by means of a feeding (PEG) tube. She uses a wheelchair for mobility. 12. Allison has been a resident of Vineland Developmental Center since 1996. She is eligible for Medicaid services. 13. Allison makes decisions with the assistance of her two sisters, who serve as her co-guardians. The guardianship is limited to legal and medical issues. 14. The professionals at Vineland Developmental Center, who work with Allison, as well as Allison and her sisters, agree that Allison is capable ofliving in the community rather than an institution if appropriate supports are provided.

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15. All ofthe individuals in the above paragraph agree that the least restrictive environment appropriate for Allison is a barrier-free community living environment with 24hour staff.
16. Allison fervently wishes to reside in the community, rather than in an institution.
17. Allison feels isolated, lonely, and frustrated at Vineland Developmental Center. She is alert and oriented, and her cognitive abilities exceed most of her fellow residents. She communicates using assistive technology, gestures, and other sounds.
18. Aside from the staff at Vineland, there are few individuals at Vineland with whom Allison feels she can have meaningful interactions. When staff members go on vacation, Allison feels even lonelier.
19. Allison's sisters are very concerned about her boredom and frustration. They are displeased that, in order to pass the hours, Allison must resort to repeatedly wheeling herself up and down the hallways of the institution in her wheelchair.
20. Allison enjoys attending church services in the community and has expressed a desire to leave Vineland at night and on weekends. However, there are limited opportunities for her to do so.
21. Allison's sisters invite her to visit their homes on as many weekends as possible. While she is visiting her sisters, Allison enjoys attending church, going to plays, going to the movies, visiting the beach, assisting with laundry, traveling and shopping. Allison has even accompanied her family to Disneyworld on vacation.
22. Because Allison needs 24-hour assistance, Allison's sisters are unable to have Allison with them every weekend. On weekends when Allison's sisters have other obligations, they feel extremely guilty because they know Allison is bored and lonely.

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Opportunities for Allison to leave the Developmental Center (other than with her family) are infrequent.
23. With appropriate supports and services, Allison could live in a small group setting in the community. There, she could interact with a broader range of individuals, both those with disabilities and those without.
24. Defendants continue to offer Allison services only in a segregated, institutional setting.
25. At the time of her admission to Vineland Developmental Center, Allison was not provided with a commitment hearing, with representation and notice and before an impartial decision maker, through which she could contest her admission. Additionally, during the period of her confinement, Allison has not been provided with an annual review hearing, and has been deprived of the same protections and safeguards with which to contest the ongoing nature of her confinement.
Fredrena Thompson 26. Plaintiff, Fredrena Thompson has been a resident of North Jersey Developmental Center for five years. She is eligible for Medicaid services. 27. Fredrena Thompson was born on May 6,1970 in Newark, New Jersey. She is 35 years old and is diagnosed with moderate mental retardation, seizure disorder, hypertension, and schizoaffective disorder. 28. Fredrena was classified as mentally retarded and educable at nine years of age. At age 18, she was labeled mentally disturbed and has had numerous psychiatric hospitalizations. 29. The professionals at North Jersey Developmental Center are confident that, with support, Fredrena could live in the community rather than in an institutional setting.

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30. Fredrena is fully capable of and wants to live in the community. She values and wants interaction with the community at large.
31. Fredrena wants to do her own shopping, as well as go to movies and restaurants if she chooses. She feels extremely depressed because she is not living her life to its fullest potential in the developmental center, and her desire to live in the community is being ignored.
32. Defendant continues to offer Fredrena services only in a segregated, institutional environment.
33. At the time of her admission to North Jersey Developmental Center, Fredrena was not provided with a commitment hearing, with representation and notice and before an impartial decision maker, through which she could contest her admission. Additionally, during the period of her confinement, Allison has not been provided with an annual review hearing, and has been deprived of the same protections and safeguards with which to contest the ongoing nature of her confinement.
Defendants 34. Defendant, Clarke Bruno is Acting Commissioner of the Department of Human Services of New Jersey (DHS), a public entity covered by inter alia, Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 (1). 35. Defendant Bruno is ultimately responsible for ensuring that New Jersey operates its delivery of services to individuals with disabilities in conformity with the Constitution of the United States, with the ADA and its implementing regulations, and with section 504 of the Rehabilitation Act of 1973 as amended, 29 U.S.C. § 794a, and its implementing regulations.

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36. DHS is responsible for the operation of New Jersey's seven developmental centers.
37. DHS is authorized to administer New Jersey's Medicaid program. 38. Defendant Bruno is responsible for the establishment and maintenance of the state plan for Medicaid services in compliance with federal law and regulations. 39. Defendant State of New Jersey is a public entity subject to inter alia, Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 (1) and the 14th Amendment to the United States Constitution.
GOVERNING STATUTES The Anti-Discrimination Laws: The Americans with Disabilities Act
and Section 504 of The Rehabilitation Act 40. On July 26, 1990, the Americans with Disabilities Act was enacted, establishing the most important civil rights law for persons with disabilities in our nation's history. 41. Title II of the ADA contains an integration mandate and nondiscrimination provisions. 42 U.S.C. §§ 12131-12134. 42. Title II of the ADA prohibits public entities such as Defendant from discriminating against the individuals with disabilities whom they serve. 42 U.S.C. § 12131-32. 43. Discrimination under the ADA includes the segregation of persons with disabilities from society as a result of unnecessary institutionalization. Olmstead v. LC, 527 U.S. 581 (1999). 44. The regulations promulgated under Title II specifically provide that a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. 28 C.F.R. § 35.130(d). The

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regulations prohibit the Defendant from administering programs in a discriminatory manner. 28 C.F.R. § 35.130(b)(3)(i)-(ii).
45. The regulations also prohibit discrimination caused by providing different or separate services to individuals based on the severity oftheir disability, unless necessary for the services to be effective. 28 C.F.R. § 35.130(b)(1)(iv).
46. Furthermore the section of Title II of the ADA entitled, "Enforcement," 42 U.S.C. § 12133, explicitly states that the "remedies, procedures, and rights set forth in section 794a of [the Rehabilitation Act] shall be the remedies, procedures, and rights this subchapter provides." 42 U.S.C. § 12133. Section 504 of the Rehabilitation Act sets forth protections against discrimination by recipients of federal funds and also includes an integration mandate prohibiting unnecessary segregation. 29 U.S.C. § 794 et seq.; 45 C.F.R. § 84.4 and 28 C.F.R. § 41.51.
The Medicaid Act 47. The Medicaid program, established by Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., is a cooperative federal-state program designed to enable the states to furnish medical assistance to families and individuals who are unable to meet the costs of necessary medical services. 48. States are not obligated to participate in the Medicaid program. However, if a state elects to participate, it must operate its program in compliance with federal statutory and regulatory requirements. 49. States that choose to participate in the Medicaid program receive federal matching funds for their Medicaid program. To receive federal funds, states must comply with the requirements of the federal Medicaid Act and with the federal regulations governing state Medicaid programs promulgated by the Center for Medicare and Medicaid Services (CMS) of

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the United States Department of Health and Human Services, the agency that administers Medicaid at the federal level.
50. Each state participating in the Medicaid Program must receive approval for its plan for providing services. States must include certain mandatory services. 42 U.S.C. § 1396a(a)(10)(A). Mandatory services include, among other things, inpatient hospital services, physician'S services, and nursing facility services. 42 U.S.C. § 1396a(a)(10)(A) and 1396d(a).
51. In addition to mandatory services, a state may elect to provide optional servIces. 42 U.S.C. § 1396d(a). Optional services include funding for intermediate care facilities for the mentally retarded (ICF/MR). 42 U.S.c. §§ 1396a(a)(10), 1396d(a)(15).
52. In addition to the mandatory and optional services described above, a state may request approval from CMS to ''waive'' certain Medicaid Act requirements to obtain Medicaid funding for programs providing home and community-based services as an alternative to long-term institutionalization. This program is known as the Medicaid Home and Community Based Waiver program ("the waiver program" or ''the waiver"). 42 U.S.C § 1396n(c).
53. Under the waiver program, if a state meets certain criteria, Medicaid requirements as statewideness, 42 U.S.C. § 1396a(a)(I), and comparability of services, 42 U.S.C. § 1396a(a)(1 O)(B), may be waived to permit the state to provide a specific number of individuals within a defined disability group with services that permit those individuals a community alternative to long-term institutional care.
54. Once a state has an approved Medicaid waiver, the state is bound in the provision of waiver services by federal statutory and regulatory mandates of the Medicaid program, except for those limited requirements waived during the approval of the waiver plan.
55. New Jersey participates in the Medicaid program. 56. The New Jersey Medicaid program is administered by Defendant.

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57. Among the optional Medicaid services Defendant provides are ICF/MR services. These services are provided in institutions known in New Jersey as "developmental centers."
58. In addition to mandatory and optional services, Defendant has received CMS approval to operate a Home and Community Based Services Waiver program for individuals with developmental disabilities. This allows Defendant to provide home and community-based services to a federally-approved maximum number of participants who require an ICFIMR level of care and who have applied for and received a waiver slot.
59. Medicaid regulations require Defendant to determine whether it is necessary for Medicaid beneficiaries to remain in institutions, 42 C.F.R. § 456.609(b), and to determine the feasibility of alternative, non-institutional services, 42 C.F.R. § 456.609(c).
60. States must offer Medicaid services to eligible individuals with "reasonable promptness" and must give those interested in applying the opportunity to do so. 42 U.S.C. § 1396a(a)(8).
61. Persons with disabilities who live in or are at risk of being placed in an institution must be informed of and given a meaningful choice of institutional and community alternatives and must be permitted to receive services from any qualified provider. 42 U.S.C. § 1396n(c)(2)(c); 42 C.F.R. §§ 435.217; 441.302(d)(1)-(2); 42 U.S.C. § 1396a(a)(23)(A).
STATEMENT OF FACTS 62. New Jersey operates seven Intermediate Care Facilities for the Mentally Retarded (lCFIMR's). These seven institutions are: the Green Brook Regional Center, the Hunterdon Developmental Center, the New Lisbon Developmental Center, the Vineland Developmental Center, the Woodbine Developmental Center, the North Jersey Developmental Center, and the Woodbridge Developmental Center.

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63. The individuals residing within these institutions have developmental disabilities such as mental retardation, autism, cerebral palsy, spina bifida, and traumatic brain lllJunes.
64. The individuals living within these congregate facilities are clients of the Division of Developmental Disabilities (DDD), an agency within DHS.
65. At forty-eighth, New Jersey ranks among the worst states in the nation with respect to the percentage of its general population residing in ICF/MR's.
66. The State has failed to significantly address the level of forced institutionalization in this State.
67. According to the Defendant, the total number of individuals residing at developmental centers in April 2005 was 3,067.
68. Upon information and belief, the actual number of individuals who resided in developmental centers for thirty days or more in April 2005 was higher because Defendant counts numerous individuals who have lived in developmental centers for more than thirty days as "guests" rather than residents.
69. In 2000, the average daily census of residents in the state's developmental centers was 3,556, according to Defendant.
70. In 2002, the average daily census of residents in the State's developmental centers was 3,364, ranking New Jersey 48th among the states in institutional utilization rate for its developmentally disabled population.
71. Upon information and belief, New Jersey's abysmal ranking among the states has not changed significantly since 2002.
72. Individuals continue to be admitted into the developmental centers because of the absence of appropriate services in the community.

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73. Many institutionalized individuals with developmental disabilities could and would choose to live in small homes or residential settings in the larger community if adequate and appropriate supports and services were available to them.
74. The New Jersey Legislature has expressly determined that every person receiving treatment through the Division of Developmental Disabilities has a right to receive services in a setting and manner least restrictive of his or her right to personal liberty. N.1.S.A. 30:6D-9.
75. The manner in which the Defendant operates its programs for ICF/MR eligible individuals violates Title II of the Americans with Disabilities Act and its implementing regulations, including the regulation requiring public entities to administer their programs in the most integrated setting appropriate to qualified individuals with disabilities, 28 C.F.R. § 35.130(d).
76. Defendant fails to provide accurate and detailed assessments on a regular basis for all individuals residing in developmental centers to determine whether they could live in less-restrictive settings, and if so, what setting would be appropriate and what supports would be needed.
77. Defendant has no plan and/or an inadequate plan to comply with Title II of the Americans with Disabilities Act, as interpreted by the Olmstead Court. Defendant has not engaged in any significant activity that would hasten integration and reduce unnecessary insti tuti onalization.
78. Upon information and belief, Defendant has not properly utilized all available Medicaid Home and Community Based waiver slots to comply with the integration mandate of the Americans with Disabilities Act and to end its ongoing discrimination of qualified individuals with developmental disabilities.

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79. Defendant does not inform individuals of their right to choose integrated, less-restrictive community supports and/or Home and Community Based waiver services and does not give institutionalized individuals an opportunity to apply for those services. Defendant does not provide opportunities to reside in community settings with reasonable promptness.
80. Plaintiffs' relief is readily achievable if Defendant changes the manner in which it operates its already-existing programs without the creation of new programs.
81. Defendant's policies and practices have resulted in the failure to provide community living opportunities for individuals with disabilities in settings designed to maximize their potential in the least restrictive setting possible.
82. In short, Defendant has taken no steps to demonstrate a commitment to ending unjustified isolation and segregation of qualified individuals with developmental disabilities, as required by federal law.
83. Defendant State of New Jersey confines individuals who have a developmental disability in institutions without providing them with an opportunity to contest their confinement through a commitment hearing with advocacy, notice, or any other form of due process.
FIRST CAUSE OF ACTION (Violation of the Americans with Disabilities Act) 84. Plaintiffs incorporate and reallege the allegations contained in Paragraphs 1 through 83 of the Amended Complaint. 85. Institutionalized individuals with developmental disabilities are "qualified individuals with a disability" within the meaning of 42 U.S.C. §12131(2). They have a physical and/or mental impairment that substantially limits one or more major life activities, including their ability to live independently and without support.

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86. Defendants violate the anti-discrimination provision ofthe ADA, 42 u.S.C. § 12132, by offering only institutional care instead of community-based care to qualified individuals who would choose community-based care and who are appropriate for such care even though the provision of community-based services would not entail a fundamental alteration of the Defendant's programs, services, or activities.
87. Defendants discriminate against qualified individuals with developmental disabilities by failing to properly assess them for community-based services, and by failing to inform them of community living options. Instead, Defendants require qualified individuals to remain confined in segregated facilities in order to receive the services they need.
88. Defendants do not have a comprehensive, effectively working plan for serving qualified people with developmental disabilities in the most integrated setting appropriate to their needs.
89. As a result of Defendants' actions, residents of the developmental centers are confined in unnecessarily segregated environments, rather than in the community, in violation of Title II of the ADA and its implementing regulations.
SECOND CAUSE OF ACTION (Violation of the Rehabilitation Act of 1973) 90. Plaintiffs incorporate and reallege the allegations of Paragraphs 1 through 89 of the Amended Complaint. 91. Residents of Developmental Centers are qualified individuals with a disability under Section 504 ofthe Rehabilitation Act of 1973, 29 U.S.C. § 794, and its implementing regulations. They have mental and/or physical disabilities that substantially limit their ability to live independently without adequate supports and services.

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92. Defendants have received and continue to receive federal financing assistance, including Medicaid, and is, thereby, a recipient of federal aid within the meaning of 29 U.S.C. § 794(b).
93. Residents of developmental centers who are appropriate for communitybased services and who want such services have been discriminated against by Defendants, who have denied them access to such services in violation of Section 504, even though it would not entail a fundamental alteration of the Defendants' program, services, and activities to provide such community-based services.
94. Defendants' unnecessary segregation of qualified individuals with disabilities constitutes unlawful discrimination under Section 504 of the Rehabilitation Act of 1973, 29 U.S.c. § 794 and its implementing regulations.
THIRD CAUSE OF ACTION (Violations of Medicaid Act) 95. Plaintiffs incorporate and reallege the allegations of Paragraphs 1 through 94 of the Amended Complaint. 96. Defendant Commissioner oversees and is responsible for administering New Jersey Medicaid, a program of medical aid and services to people in New Jersey, some of whom have developmental disabilities. Medicaid is governed by the Medicaid Act, Title XIX of the Social Security Act. 97. Defendant's administration of the Medicaid program in a manner that denies eligible individuals the opportunity to make application for and receive needed home and community-based services with reasonable promptness violates 42 U.S.C. § 1396a(a)(8). 98. Defendant's administration of the Medicaid program, in a manner that fails to inform individuals of non-institutional waiver alternatives to developmental center residence and fails to offer a meaningful choice between segregated institutional care and

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appropriately integrated community services, violates 42 U.S.C. § 1396n(c)(2)(c) and 42 U.S.C. 1396a (a)(23)(A).
99. Defendant has, under color of state law, deprived qualified institutionalized individuals with developmental disabilities rights secured to them by the laws of the United States in violation of 42 U.S.C. § 1983.
100. As a result of Defendant's failures, qualified developmental-center residents continue to be unnecessarily institutionalized.
FOURTH CAUSE OF ACTION (Violation of Due Process)
101. Plaintiffs incorporate and reallege the allegations of Paragraphs 1 through 100 of the Amended Complaint.
102. New Jersey Statute 30:4-25.1b. governs the admission process of individuals with developmental disabilities. This statute permits the involuntary admission of individuals to developmental centers merely by way of application to the Commissioner of the Department of Human Services, Division of Developmental Disabilities (DDD). Said application can be made by the individual's "parent, guardian or person or agency having care and custody of the person of a minor or by the guardian ofthe person of a mentally deficient adult." NJ.S.A. 30:4-25.lb. Any such application by a "parent, guardian or person or agency having care and custody of the person of a minor or by the guardian of the person of a mentally deficient adult" is not a voluntary admission in that any admission so made does not require the consent of the individual who will be confined.
103. Division Circular #17 (DC-17), as issued by the Division of Developmental Disabilities implements NJ.S.A. 30:4-25.1 and governs the involuntary admission process of individuals under and over age 22 to developmental centers once an application by their guardian has been made.

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104. Unlike civil commitment to a psychiatric hospital, N.J.S.A. 30:4-25.1 does not require that the individual, whether adult or minor, receive a commitment hearing with representation and notice to contest their admission to a developmental center. See generally N.J.S.A. 30:4-27.10 (statute governing civil commitment to a psychiatric hospital in New Jersey). The mere application by a guardian, once it is approved by DDD staff, is sufficient for "regular admission" to a developmental center "for 12 months or longer."
105. Once admitted to a developmental center, individuals with a developmental disability are not granted an annual hearing, with notice and representation before an impartial decisionmaker with authority to review the basis and need for the individual's continuing confinement.
106. The Defendant as Commissioner of the Department of Human Services is responsible for all state developmental centers and all state psychiatric hospitals in New Jersey. N.J.S.A. 30:1 et seq. Part of the Defendant's authority is to determine all matters relating to the unified and continuous development of the institutions and to determine all matters of policy that relate to the institutions and to regulate the administration ofthe institutions. NJ.S.A. 30:1-12. Part of the Defendant's responsibility is to ensure the lawful admission of individuals to psychiatric hospitals and developmental centers under his control.
107. By admitting individuals to developmental centers merely on application made by their guardian and without granting these individuals an opportunity to contest their admission by way of notice, representation and a hearing, and without further allowing for an annual hearing to review such confinement, the Defendant is denying such individuals their liberty without due process of law, and impermissibly obstructing Plaintiffs' access to the courts, both of which are actions that violate the 14th Amendment to the United States Constitution.

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108. Defendant State of New Jersey is responsible for the statutory framework by which individuals are committed and confined in state institutions without a commitment hearing or review hearing.
109. By not providing Plaintiffs with a commitment hearing, notice, representation and a decision by an impartial decisionmaker the Defendant State of New Jersey violates the Plaintiffs access to the courts as guaranteed by the 14th Amendment to the United States Constitution.
110. By not providing the Plaintiffs with a commitment hearing, and review hearings, the Defendant State of New Jersey is depriving Plaintiffs of their liberty without due process of law in violation of the 14th Amendment to the United States Constitution.
FIFTH CAUSE OF ACTION (Violation of the Americans with Disabilities Act) 111. Plaintiffs incorporate and reallege the allegations of Paragraphs 1 through 110 of the Amended Complaint. 112. Unlike civil commitment to a psychiatric hospital, N.J.S.A. 30:4-25.1 does not require that the individual, whether adult or minor, receive a commitment hearing with representation and notice to contest their admission to a developmental center. See generally N.J.S.A. 30:4-27.10 (statute governing civil commitment to a psychiatric hospital in New Jersey). The mere application by a guardian, once it is approved by DDD staff, is sufficient for "regular admission" to a developmental center "for 12 months or longer." However, the same is not true for psychiatric patients who have a guardian. 113. Under New Jersey law, the Defendants will not permit a guardian to voluntarily commit his adult ward to a psychiatric hospital unless they have been "specifically ordered by the court, for good cause shown." N.J.S.A. 3B:12-56(d). Furthermore, "if the ward

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objects to the initiation of voluntary admission for psychiatric treatment or to the continuation of that voluntary admission, the State's procedures for involuntary commitment pursuant to P.L. 1987, c. 116 (C.30:4-27.1 et seq.) shall apply." Id.
114. Nor will the Defendants permit the Commissioner of the Department of Corrections to administratively transfer a prisoner to a psychiatric hospital operated by the Defendant Commissioner without a civil commitment hearing. N.J.S.A. 30:4-82.4; Vitek v. Jones, 445 U.S. 480 (1980).
115. Even a minor cannot be admitted to a psychiatric hospital by his or her parents for longer than seven days - even if the minor does not object. Pursuant to New Jersey Court Rule 4:74-7A(d), "[i]f further hospitalization is then required, the applicant shall proceed in accordance with R. 4:74-7(e)." Id. In other words, The Defendant State of New Jersey requires that the minor be provided with a civil commitment hearing that includes notice, an attorney, and an impartial decisionmaker who must make a determination on clear and convincing evidence before the minor can be committed to a psychiatric hospital.
116. Similarly the Defendant State of New Jersey will not permit, "an abused, neglected or exploited vulnerable adult" receiving court ordered protective services under N.J.S.A. 52-27D-414 to be forced to make a permanent change in their living situation, e.g., moved to a nursing home, without "the appropriate guardianship, conservatorship or civil commitment action" occurring. N.J.S.A. 52:27D-415.
117. Likewise, Defendant State of New Jersey will not permit the confinement to a treatment facility of a person who has tuberculosis and who refuses to cooperate with the Department of Health until they first have had a civil commitment hearing. N.J.S.A.30:9-57.
118. Even a person who wants to voluntarily commit themselves to a psychiatric hospital is provided with notice and due process protections for their discharge. The

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Defendant State of New Jersey requires that such individuals "may be admitted voluntarily only after the person has been advised orally and in writing of the discharge provisions established pursuant to this act and of the subsequent possibility that the facility may initiate involuntary commitment proceedings for the person." N.J.S.A. 30:4-27.9 (emphasis added).
119. By allowing the admission of individuals to developmental centers without notice, representation, and a fair hearing, and continuing to keep those individuals confined without an annual review hearing, while at the same time refusing to admit any person involuntarily to a psychiatric hospital, or to a tuberculosis treatment facility, who has not received notice, representation and a fair hearing, the Defendant State of New Jersey is discriminating against individuals based on their specific disability in the operation of its programs and services in violation ofthe Americans with Disabilities Act:-, 42 U.S.C.A. § 12132.
120. The Americans with Disabilities Act prohibits public entities from discriminating against individuals who have a disability. The act specifically states in part that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 V.S.C.A. § 12132.
121. The Plaintiffs are qualified individuals with a disability, and the Defendant operates "services, programs [and] activities of a public entity." 42 U.S.C.A. § 12131.
122. Those "services, programs [and] activities" include the Defendant's courts and activities that occur therein, hospitals, and institutions and the services, activities and programs therein.
123. Defendants practice of confining individuals to developmental centers who have not had a commitment hearing, and retaining such individuals who have not had an

Case 3:05-cv-04723-AET-TJB Document 17 Filed 02/01/07 Page 22 of 26 PageID: 177
annual review hearing, is not a requirement for the effective operation of the Defendant's "services, programs [and] activities."
124. If the Plaintiffs did not have a developmental disability, the State of New Jersey would not permit them to be admitted to one of its institutions by a guardian without a commitment hearing, nor would it continue to confine them year after year unless they had annual review hearings.
125. The Defendant operates institutional programs in such a manner that it discriminates against qualified individuals with a disability by reason of their specific disability from participation in "the services, programs, or activities of a public entity ...." 42 U.S.c.A. § 12132.
126. By confining Plaintiffs to its institutions without a commitment hearing, notice, representation and a decision by an impartial decisionmaker, the Defendant State of New Jersey violates the Plaintiffs access to the courts as guaranteed by the 14th Amendment to the United States Constitution. The Defendant has made its determination which individuals receive a commitment hearing based solely on the specific disability that they have, and given the specific disability that the Plaintiffs have the Defendant has decided that they will not receive access to courts to contest their confinement.
127. The State's denial of access to the courts causes a loss ofliberty without due process oflaw to the Plaintiffs in violation ofthe 14th Amendment to the United States Constitution and it forces the Plaintiffs into unnecessary segregation from other members of society and into the Defendant's institutions. Such segregation is discrimination and is forbidden under the Americans with Disabilities Act. Olmstead v. L.C., 527 U.S. 581 (1999).
128. The State of New Jersey's failure to provide commitment and review hearings to the Plaintiffs denies access to the courts to the Plaintiffs because of their specific

Case 3:05-cv-04723-AET-TJB Document 17 Filed 02/01/07 Page 23 of 26 PageID: 178
disability; such action is forbidden by the Americans with Disabilities Act. Tennessee v. Lane, 541 U.S. 509 (2004). The act specifically states "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.A. § 12132.
RELIEF REQUESTED WHEREFORE, the Plaintiffs request that the Court: A. Declare that Defendant's failure to provide services to qualified individuals with
developmental disabilities in the most integrated setting appropriate to their needs violates Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Title XIX of the Social Security Act. B. Declare that Defendant State of New Jersey's practice of confining individuals to developmental centers merely on application made by their guardian and without having received an opportunity to contest their admission by way of notice, representation and a hearing, is a denial of access to the court as provided by the 14th Amendment to the United States Constitution which guarantees due process of law, as well as the Americans with Disabilities Act. C. Declare that Defendant State of New Jersey's failure to provide an annual review hearing to individuals in developmental centers, with notice, and representation, is a denial of access to the courts in violation of due process of law as guaranteed by the 14th Amendment to the United States Constitution, as well as the Americans with Disabilities Act. D. Issue a permanent injunction:

Case 3:05-cv-04723-AET-TJB Document 17 Filed 02/01/07 Page 24 of 26 PageID: 179
(i) requiring Defendant to inform individuals with developmental disabilities who are eligible for services from the Division of Developmental Disabilities that they may be eligible for community services, that they have the choice of such services, and that the State will provide such services in accordance with specified reasonable timelines;
(ii) requiring Defendant to promptly determine the eligibility of current and future developmental center residents for community services;
(iii) requiring Defendant to establish a plan with reasonable timelines for moving into the community all current and future residents deemed capable ofliving in the community with appropriate supports and services who want to live in the community; and requiring that such a plan be a viable integration plan that demonstrates the State's commitment to community placement, addresses the elements to effectuate such a plan, and includes provisions for the Defendant to be held accountable to the Court;
(iv) requiring Defendant State of New Jersey to conduct a hearing, with notice and representation before an impartial decisionmaker who must rule according to standards that place the burden upon anyone seeking to commit an individual to a developmental center to prove by clear and convincing evidence of the need for such commitment and to prove by the same standard that the individual is not appropriate for community placement, prior to any admission to a developmental center, and after such admission provide a similar hearing on an annual basis thereafter;

Case 3:05-cv-04723-AET-TJB Document 17 Filed 02/01/07 Page 25 of 26 PageID: 180

E. Grant such other relief as this Court deems appropriate, including an award of reasonable attorneys' fees, litigation expenses, and costs.

DATED: February 1, 2007

WiclLliam~e;s~ q: '-----~
NEW JERSEY PROTECTION AND ADVOCACY, INC. 210 South Broad Street, Third Floor Trenton, NJ 08608 (609) 292-9742
and
John B. Kearney, Esq. Eugene J. Kuzinski, Esq. BALLARD SPAHR ANDREWS & INGERSOLL, LLP Plaza 1000, Suite 500 - Main Street Voorhees, NJ 08043 (856) 761-3400
Attorneys for Plaintiffs

Case 3:05-cv-04723-AET-TJB Document 17 Filed 02/01/07 Page 26 of 26 PageID: 181

CERTIFICATION PURSUANT TO RULE 20t.t(D) The within civil action is based on an alleged violation of a right secured by the Constitution of the United States.

NEW JERSEY PROTECTION AND ADVOCACY, INC. 210 South Broad Street, Third Floor Trenton, NJ 08608 (609) 292-9742

John B. Kearney, Esq. Eugene J. Kuzinski, Esq. BALLARD SPAHR ANDREWS & INGERSOLL, LLP Plaza 1000, Suite 500 - Main Street Voorhees, NJ 08043 (856) 761-3400

DATED: February 1, 2007

Attorneys for Plaintiffs

CERTIFICATION OF NO OTHER ACTION
The within matter is not the subject of any other action pending in any other court and is likewise not the subject of any pending arbitration proceeding or administrative proceeding.

DATED: February 1, 2007

NEW JERSEY PROTECTION AND ADVOCACY, INC. 210 South Broad Street, Third Floor Trenton, NJ 08608 (609) 292-9742
John B. Kearney, Esq. Eugene J. Kuzinski, Esq. BALLARD SPAHR ANDREWS & INGERSOLL, LLP Plaza 1000, Suite 500 - Main Street Voorhees, NJ 08043 (856) 761-3400
Attorneys for Plaintiffs

 
 Case 3:05-cv-04723-AET-TJB Document 54 Filed 03/25/10 Page 1 of 2 PageID: 288

DISABILITY RIGHTS NEW JERSEY, INC. By: William Emmett Dwyer, Esquire 210 South Broad Street, Third Floor Trenton, New Jersey 08608 (609) 292-9742
BALLARD SPAHR, LLP
A Pennsylvania Limited Liability Partnership
By: John B. Kearney, Esquire Robert P. Duffield, II, Esquire
Plaza 1000 - Suite 500 Main Street Voorhees, NJ 08043-4636 (856) 761-3400
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

DISABILITY RIGHTS NEW JERSEY, INC., a New: Civil Action Jersey nonprofit corporation, ALLISON HARMON, : No: 05-CV-4723 (AET/TJB) by and through her guardians, Valerie Harmon and Linda Lemore, and FREDRENA THOMPSON,

Plaintiffs,

v.

JENNIFER VELEZ, in her official capacity as

Commissioner of the Department of Human Services :

for the State of New Jersey, and the STATE OF NEW JERSEY,

: NOTICE OF PLAINTIFFS' MOTION
FOR SUMMARY JUDGMENT

Defendants.

TO: Gerard Hughes, DAG Office of the Attorney General Dept. of Law and Public Safety Division of Law P.O. Box 112 Trenton, NJ 08625 Attorneyfor Defendants
DMEAST #12276417 v1

Case 3:05-cv-04723-AET-TJB Document 54 Filed 03/25/10 Page 2 of 2 PageID: 289

PLEASE TAKE NOTICE, that on April 19, 2010, at 9:00 a.m. in the morning, or

as soon thereafter as counsel may be heard, Plaintiffs, Disability Rights New Jersey, Inc., Allison

Harmon, by and through her guardians, Valerie Harmon and Linda Lemore, and Fredrena

Thompson, through their undersigned counsel, shall move before the United States District Court

for the District of New Jersey, Clarkson S. Fisher Building & U.S. Courthouse, 402 East State

Street, Room 2020, Trenton, NJ 08608, for an order granting Summary Judgment for Plaintiffs.

PLEASE TAKE FURTHER NOTICE, that in support of said motion, Plaintiffs

shall rely on the attached Brief in Support of Plaintiffs' Motion for Summary Judgment,

Statement of Undisputed Material Facts, Certification of Counsel and the exhibits attached

thereto.

PLEASE TAKE FURTHER NOTICE that a proposed form of Order accompanies

this Motion.

t3. Plaintiffi request oral argumenit

~

DATED: March 25,2010

J B. Kearney, Esq. Robert P. Duffield, II, Esq. BALLARD SPAHR LLP Plaza 1000, Suite 500 - Main Street Voorhees, NJ 08043 (856) 761-3400
And
William Emmett Dwyer, Esq. DISABILITY RIGHTS NEW JERSEY, INC. 210 South Broad Street, Third Floor Trenton, NJ 08608 (609) 292-9742
Attorneys for Plaintiffs

DMEAST #12276417 v1
2

Case 3:05-cv-04723-AET-TJB Document 54-1 Filed 03/25/10 Page 1 of 4 PageID: 290

DISABILITY RIGHTS NEW JERSEY, INC. By: William Emmett Dwyer, Esquire 210 South Broad Street, Third Floor Trenton, New Jersey 08608 (609) 292-9742
BALLARD SPAHR, LLP
A Pennsylvania Limited Liability Partnership
By: John B. Kearney, Esquire Robert P. Duffield, II, Esquire
Plaza 1000 - Suite 500 Main Street Voorhees, NJ 08043-4636 (856) 761-3400
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

DISABILITY RIGHTS NEW JERSEY, INC., a New: Civil Action Jersey nonprofit corporation, ALLISON HARMON, : No: 05-CV-4723 (AET/TJB) by and through her guardians, Valerie Harmon and Linda Lemore, and FREDRENA THOMPSON,

Plaintiffs,

v.

JENNIFER VELEZ, in her official capacity as

ORDER GRANTING PLAINTIFFS'

Commissioner of the Department of Human Services: MOTION FOR SUMMARY

for the State of New Jersey, and the STATE OF

: JUDGMENT

NEW JERSEY,

Defendants.

THIS MATTER having been opened to the Court by John B. Kearney, Esq. of Ballard Spahr LLP, and William Emmett Dwyer, Esq. attorneys for Plaintiffs, Disability Rights New Jersey, Inc. a New Jersey nonprofit corporation, Allison Harmon, by and through her
DMEAST #12283111 v2

Case 3:05-cv-04723-AET-TJB Document 54-1 Filed 03/25/10 Page 2 of 4 PageID: 291
guardians, Valerie Hannon and Linda Lemore, and Fredrena Thompson; and Plaintiffs having moved for summary judgment on those certain claims referenced in its moving papers; and the Court having considered the arguments in favor of granting Plaintiffs' motion, as well as any arguments in opposition thereto, and the Court having heard oral argument, and for good cause shown:
IT IS HEREBY ORDERED on this _ _ _ _ _ day of _ _ _ _ _ _ _ _, 2010 that Plaintiffs' Motion for Summary Judgment is granted and judgment is entered in favor of Plaintiffs and against Defendant Jennifer Velez, in her official capacity as Commissioner ofthe Department of Human Services for the State of New Jersey and against Defendant State of New Jersey; and it is
FURTHER ORDERED that Defendants shall place a minimum of350 individuals currently residing in developmental centers into the community each year with the appropriate supports and services they need until every such individual residing in a developmental center who does not oppose residing in the community and whose treatment providers recommend a community placement is placed in the community even if said individual's family member or guardian opposes community placement for the individual; and it
IS
FURTHER ORDERED that Defendant Jennifer Velez, or her successor, shall not admit any individual to a developmental center unless and until that individual has had the following system of procedural due process protections prior to the institutionalization of said individual to a state-run developmental center: Such protections shall include, at a minimum, notice and the right to a civil commitment hearing before an impartial decision maker who is not an employee of the executive branch of state government and whose decision cannot be reversed

DMEAST #12283111 v2

2

Case 3:05-cv-04723-AET-TJB Document 54-1 Filed 03/25/10 Page 3 of 4 PageID: 292
or overruled by Commissioner Velez or her successor or designee; said individual shall have the assistance of competent counsel at a civil commitment hearing who will advocate for the individual's expressed preference and not the expressed preference of the individual's family member[s] or guardian[s]; and that at the hearing and prior to institutionalization Defendants or any person seeking to have an individual admitted or confined to a developmental center shall have to establish by clear and convincing evidence that the support needs of the individual in question cannot be provided for in the community (by "cannot be provided for in the community" the court does not mean not currently available in the community; i.e., ifthe service and support needs could be provided in the community but are not currently available in the community the individual cannot be admitted to one of the State's developmental centers); and it
IS
FURTHER ORDERED that any individual who seeks a voluntary admission to a state developmental center shall have a hearing as described above to determine if the individual's choice to be admitted to a developmental center truly is voluntary; and it is
FURTHER ORDERED that any individual who is committed or admitted to a developmental center shall have at least on an annual basis a review hearing with all of the due process protections as stated above for said individual's initial civil commitment hearing including the right to a community placement within sixty days of the hearing if said individual is found to be suitable for community placement, and so desires; and it is
FURTHER ORDERED for all such individuals who are currently residents of one of the State's developmental centers they shall receive a review hearing with all of the due process protections and standards described above for an initial civil commitment hearing by January 1, 20l3; and it is

DMEAST #12283111 v2

3

Case 3:05-cv-04723-AET-TJB Document 54-1 Filed 03/25/10 Page 4 of 4 PageID: 293
FURTHER ORDERED that Defendant Jennifer Velez shall find and place the plaintiff Allison Harmon in a suitable community placement with appropriate supports and services within sixty days of this signed Order; and it is
FURTHER ORDERED that Defendants shall pay to Plaintiffs an amount equal to Plaintiffs' attorneys' fees, interest and costs incurred in the prosecution of this litigation, and that Plaintiffs shall submit an application for the recovery of said attorneys' fees, interest and costs incurred; and it is
FURTHER ORDERED that a copy of this Order shall be served on all counsel of record within _ days of the date hereof.
IT IS SO ORDERED,
Honorable Anne E. Thompson, U.S.D.J.

DMEAST #12283111 v2

4

 
 Case 3:05-cv-04723-AET-TJB Document 56 Filed 03/25/10 Page 1 of 2 PageID: 1715

PAULA T. DOW ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street P.O. Box 112 Trenton, New Jersey 08625 Attorney for State Defendants

By: Gerard Hughes (GH 6680) Deputy Attorney General (609)341-5096

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

______________________________

DISABILITY RIGHTS NEW JERSEY, :

INC., ALLISON HARMON, by and

through her guardians,

:

Valerie Harmon and Linda

Lemore, and FREDRENA THOMPSON,:

HON. ANNE THOMPSON, U.S.D.J.

Plaintiffs,

: Civil Action No. 05-4723 (AET)

v.

:

JENNIFER VELEZ, in her

:

official capacity as

Commissioner for the

:

Department of Human Services

for the State of New Jersey, :

and STATE OF NEW JERSEY,

:

Defendants.

:

NOTICE OF MOTION FOR SUMMARY JUDGMENT

TO: CLERK OF THE COURT United States District Court Clarkson S. Fisher Federal Bldg. & U.S. Courthouse 402 E. State Street Trenton, New Jersey 08608

John Kearney, Esq. Ballard Spahr, LLP Plaza 1000 - Suite 500, Main Street Voorhees, New Jersey 08043-4636

1

Case 3:05-cv-04723-AET-TJB Document 56 Filed 03/25/10 Page 2 of 2 PageID: 1716

PLEASE TAKE NOTICE that on April 30, 2010, or as soon thereafter as counsel may be heard, the undersigned Paula T. Dow, Attorney General of New Jersey, by Gerard Hughes, Deputy Attorney General, on behalf of Defendants, Jennifer Velez, as Commissioner for the New Jersey Department of Human Services, and the State of New Jersey, shall move before the Honorable Anne E. Thompson, U.S.D.J., in the United States District Court for the District of New Jersey, Trenton, New Jersey, pursuant to Fed. R. Civ. P. 56 for an Order granting Defendants’ Motion for Summary Judgment and dismissing Plaintiffs’ complaint with prejudice. Defendants will rely on the Brief in Support of their Motion for Summary Judgment, Certifications of Kenneth Ritchey, Patricia Merk, Jonathan Seifried and Gerard Hughes with Attached Exhibits A through M, and Statement of Material Facts being filed simultaneously with this Notice of Motion.
A proposed form of Order is attached hereto.

PAULA T. DOW ATTORNEY GENERAL OF NEW JERSEY

Dated: March 25, 2010

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

2

Case 3:05-cv-04723-AET-TJB Document 56-1 Filed 03/25/10 Page 1 of 98 PageID: 1717

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

DISABILITY RIGHTS NEW JERSEY, INC., ALLISON HARMON, by and through her guardians, Valerie Harmon and Linda Lemore, and FREDRENA THOMPSON
Plaintiffs,
v.
JENNIFER VELEZ, in her official capacity as Commissioner for the Department of Human Services for the State of New Jersey, and STATE OF NEW JERSEY,
Defendants.

)

)

) HON. ANNE THOMPSON, U.S.D.J.

)

)

)

)

Civil Action

)

)

) Civil Action No. 05-4723 (AET)

)

)

)

)

)

)

)

)

)

)

)

BRIEF ON BEHALF OF DEFENDANTS, JENNIFER VELEZ IN HER OFFICIAL CAPACITY AS COMMISSIONER FOR THE DEPARTMENT OF HUMAN SERVICES AND THE STATE OF NEW JERSEY, IN SUPPORT OF
THEIR MOTION FOR SUMMARY JUDGMENT

GERARD HUGHES Deputy Attorney General
On the Brief

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

Case 3:05-cv-04723-AET-TJB Document 56-1 Filed 03/25/10 Page 2 of 98 PageID: 1718

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . i

PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF MATERIAL FACTS.. . . . . . . . . . . . . . . . . . 2

A. Background.. . . . . . . . . . . . . . . . . . . . . . . . 2

B. The State’s Olmstead Plan. . . . . . . . . . . . . . . . . 3

1. Development

.. . . . . . . . . . . . . . . . . . 3

2. Summary of the Plan.. . . . . . . . . . . . . . . . . 5

a. Criteria for Placement.. . . . . . . . . . . . . 5

b. Number of Individuals Requiring Placement, Pace of Placement and Education Efforts. . . . . 7

c. Cost of Implementation of Path to Progress.. . 10

3. Implementation of the Path to Progress. . . . . . . 11

4. Funding of the Path to Progress and Placements Made. 15

5. Quality of Placements.. . . . . . . . . . . . . . . 20

6. The Path to Progress Placement Process. . . . . . . 21

7. Declining Admissions to Developmental Centers.. . . 23

C. Plaintiffs’ Amended Complaint. . . . . . . . . . . . . . 30

PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . 32

STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . 32

Case 3:05-cv-04723-AET-TJB Document 56-1 Filed 03/25/10 Page 3 of 98 PageID: 1719

ARGUMENT POINT I

PLAINTIFFS’ CLAIMS UNDER THE AMERICANS WITH DISABILITIES ACT AND THE REHABILITATION ACT SHOULD BE DISMISSED BECAUSE DEFENDANTS HAVE A COMPREHENSIVE, EFFECTIVELY WORKING PLAN FOR PLACING ELIGIBLE INDIVIDUALS IN THE COMMUNITY, AND IT WOULD FUNDAMENTALLY ALTER DEFENDANTS’ SERVICES FOR INDIVIDUALS WITH DEVELOPMENTAL DISABILITIES IF DEFENDANTS WERE FORCED TO PLACE THESE ELIGIBLE INDIVIDUALS AT A FASTER PACE. . . . . 34

A. Defendants Have A Comprehensive, Effectively Working Plan For Transitioning Eligible Individuals From Developmental Centers To The Community.. . . . . . . . . . . . . . . . 44

B. It Would Fundamentally Alter The State’s System For Providing Services To Individuals With Developmental Disabilities If Defendants Were Forced To Place Individuals In The Community At A Faster Pace. . . . . . . . . . . . 53

POINT II PLAINTIFFS’ CLAIMS UNDER THE MEDICAID ACT SHOULD BE DISMISSED BECAUSE THE ACT DOES NOT REQUIRE DEFENDANTS TO PROVIDE COMMUNITY-BASED SERVICES TO ALL INDIVIDUALS WHO COULD BENEFIT FROM THESE SERVICES, BUT RATHER TO OFFER A CHOICE OF SERVICES AND TO PAY PROMPTLY AND EVENHANDEDLY FOR SERVICES THAT ARE ALREADY AVAILABLE. . . . . . . . . . . . . . . 57

POINT III THE PROCEDURES ALREADY IN PLACE RELATED TO ADMISSION AND CONTINUED PLACEMENT IN THE STATE’S DEVELOPMENTAL CENTERS DO NOT VIOLATE PLAINTIFFS’ CONSTITUTIONAL OR STATUTORY RIGHTS.. . . . . . . . . . . . . . . 61

A. Due Process. . . . . . . . . . . . . . . . . . . . . . . 61

B. Americans With Disabilities Act And Equal Protection.. . 67

Case 3:05-cv-04723-AET-TJB Document 56-1 Filed 03/25/10 Page 4 of 98 PageID: 1720
POINT IV DEFENDANTS ARE IMMUNE FROM SUIT UNDER TITLE II OF THE ADA AND SECTION 504 OF THE REHABILITATION ACT. . . . . . . . . . . . . 70
A. Congress Failed to Abrogate State Sovereign Immunity under Title II of the ADA and Section 504 of the Rehabilitation Act .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
B. The State Did Not Waive Sovereign Immunity by Accepting Funds under Section 504 of the Rehabilitation Act. . . . 81
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 87

Case 3:05-cv-04723-AET-TJB Document 56-1 Filed 03/25/10 Page 5 of 98 PageID: 1721
TABLE OF AUTHORITIES CASES
A.W. v. Jersey City Public Schools, 341 F.3d 234 (3d Cir. 2003). . . . . . . . . . . . . . . . . . . . . . 80, 81 Alden v. Maine, 527 U.S. 706, 712-13 (1999).. . . . . . . . . 71 Alsbrook v. City of Maumelle, supra, 184 F.3d 999 (8th Cir. 1999).. . . . . . . . . . . . . . . . . . . 75, 77, 78 Amos v. Maryland Dep't of Corrections, 178 F.3d 212 (4th Cir. 1999).. . . . . . . . . . . . . . . . . . . . . . . 78 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). . . 32, 33 Ardestani v. I.N.S., 502 U.S. 135(1991).. . . . . . . . . . . 82 Atascadero State Hosp. v. Scanlon, 473 U.S. 234(1985).. . 81, 83 Bane v. Virginia Dep't of Corrections, 110 F. Supp.2d 469 (W.D.Va. 2000). . . . . . . . . . . . . . . . . . . . . . . . 78 Barnes v. Gorman, 536 U.S. 181(2002). . . . . . . . . . . . . 82 Bertrand v. Patterson, 495 F.3d 452(7th Cir. 2007). . . . . . 60 Board of Trustees v. Garrett, 531 U.S. 356 (2001). 72, 75, 77, 78 Boerne v. Flores, 521 U.S. 507 (1997). . . . . . . . . . 72-76 Brookside Veneers, Ltd. v. United States, 847 F.2d 786 (Fed. Cir.), cert. denied, 488 U.S. 943 (1988). . . . . . . . 85 Brown v. North Carolina Div. of Motor Vehicles, 166 F.3d 698 (4th Cir.), cert. denied, 531 U.S. 1190 (2001). . . . . . . . 77 Bruggeman v. Blagojevich, 324 F.3d 906(7th Cir. 2003).. . . . 58 Celotex Corp. v. Catrett, 477 U.S. 317(1986). . . . . . . 32, 33 Chippollini v. Spencer Gifts, 814 F.2d 893(3d Cir. 1987). . . 33 Christopher v. Harbury, 536 U.S. 403 (2002).. . . . . . . 68, 69 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . 77, 79 Clark v. California, 123 F.3d 1267(9th Cir. 1997).. . . . . . 86
-i-

Case 3:05-cv-04723-AET-TJB Document 56-1 Filed 03/25/10 Page 6 of 98 PageID: 1722
Coolbaugh v. Louisiana, 136 F.3d 430(5th Cir.) (Smith, J., dissenting), cert. denied 525 U.S. 819 (1998).. . 78 Davis v. Monroe County Bd. of Educ., 526 U.S. 629(1999).. . . 82 Equimark Commercial Finance Company v. C.I.T. Financial Services Corporation, 812 F.2d 141 (3d. Cir. 1987).. . . . . . . . . . 33 Erickson v. Board of Governors of State Coll. & Univ For Northeastern Ill., 207 F.3d 945(7th Cir. 2000). . . . . . 75, 78 Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627(1999). . . . . . . . 71, 75, 81, 83,86 Frederick L., v. PA DPW, No. Civ.A. 00-4510, 2004 WL 1945565 (E.D. Pa. Sept. 1, 2004). . . . . . . . . . . . . . . . . . . 41 Frederick L. v. Dep’t of Pub. Welfare of the Commonwealth of Pennsylvania, 364 F.3d 487 (3d Cir. 2004).. . . . . 36, 39, 49-56 Frederick L. v. Dep’t of Pub.c Welfare of the Commonwealth of Pennsylvania 422 F.3d 151 (3d Cir. 2005). . . . . . . 39, 42, 84 Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F.3d 98 (2d Cir. 2001). . . . . . . . . . . . . . . . . . 85 Heller v. Doe, 509 U.S. 312 (1993). . . . . . . . . 67, 69-70, 77 Helvering v. Davis, 301 U.S. 619(1937). . . . . . . . . . . . 83 Hospital v. Halderman, 451 U.S. 1(1981).. . . . . . . . . . . 83 J.D. v. New Jersey Div. of Developmental Disabilities, 329 N.J. Super. 516 (App. Div. 2000). . . . . . . . . . . . . 23 Jim C. v. United States, 235 F.3d 1079(8th Cir. 2000) (en banc), cert. denied, 533 U.S. 949 (2001). . . . . . . . . 86 Kimel v. Florida Board of Regents, 528 U.S. 62 (2000).. . . 73-75 L.C. & E.W. v. Olmstead, et al., 138 F.3d 893.. . . . . . 37, 38 Lane v. Pena, 518 U.S. 187(1996). . . . . . . . . . . . . 81, 82 Lang v. New York Life Inc. Co., 721 F.2d 118(3d Cir. 1983). . 32 Lavia v. Pennsylvania Dep’t of Corr. , 224 F.3d 190 (3d Cir 2000).. . . . . . . . . . . . . . . . . . . . . . 75, 78
-ii-

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Lawrence County v. Lead-Deadwood Sch. Dist., 469 U.S. 256, 1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Mandy R. v. Owens, 464 F.3d 1139(10th Cir. 2006). . . . . . 58,59 Massachusetts v. United States, 435 U.S. 444(1978). . . . . . 84 Matthews v. Eldridge, 424 U.S. 319(1976). . . . . . . . . . . 61 Mill v. Maine, 118 F.3d 37(1st Cir. 1997).. . . . . . . . . . 77 Olmstead v. L.C., 527 U.S. 581 (1999).. . . 36-39, 52, 53, 79-80 Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83, 84 Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984). . . . . . . . . . . . . . . . . . . . . . 81 Pennsylvania Prot. & Advocacy v. Dep’t of Pub. Welfare, 402 F.3d 374 (3d Cir. 2005).. . . . . . . . . . . . . . 39, 42-47 Seminole Tribe of Florida v. Florida, 517 U.S. 44(1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 South Carolina v. Katzenbach, 383 U.S. 301, 326 (1966). . . . 72 South Dakota v. Dole, 483 U.S. 203 (1987).. . . . . . . . . . 83 Stevens v. Illinois Dep’t of Transp., 210 F.3d 732 (7th Cir. 2000) (ADA Title I), cert. denied, 531 U.S. 1190 (2001).7.5,.7.6,.7.8 Steward Mach. Co. v. Davis, 301 U.S. 548(1937). . . . . . . . 84 Tennessee v. Lane, 541 U.S. 509 (2004). . . . . . 68, 69, 71, 87 Torisky v. Schweiker, 446 F.3d 438 (3d Cir. 2006).. . . . . . 63 United States v. Nordic Village, Inc., 503 U.S. 30(1992). 81, 82 United States v. Williams, 514 U.S. 527(1995).. . . . . . 81, 82 Westside Mothers v. Olszewski, 454 F.3d 532(6th Cir. 2006). . 58 Wilson v. Armstrong, 1524 U.S. 937 (1998).. . . . . . . . . . 86
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FEDERAL STATUTES 20 U.S.C. §1403.. . . . . . . . . . . . . . . . . . . . . . . 85 29 U.S.C. §794. . . . . . . . . . . . . . . . . . . . . . . . 39 29 U.S.C. §794(a).. . . . . . . . . . . . . . . . . . . . . . 36 42 U.S.C. § 12202.. . . . . . . . . . . . . . . . . . . . . . 71 42 U.S.C. § 1396a(a)(23)(A).. . . . . . . . . . . . . . . 59, 60 42 U.S.C. § 1396a(a)(8).. . . . . . . . . . . . . . . . . . . 58 42 U.S.C. § 1396d(a). . . . . . . . . . . . . . . . . . . 58, 60 42 U.S.C. § 1396n(c). . . . . . . . . . . . . . . . . . . . . . 9 42 U.S.C. § 1396n(c)(10). . . . . . . . . . . . . . . . . . . 60 42 U.S.C. § 1396n(c)(2)(C). . . . . . . . . . . . . . . . 59, 60 42 U.S.C. § 1396n(c)(9).. . . . . . . . . . . . . . . . . . . 60 42 U.S.C. § 2000d-7(a)(1).. . . . . . . . . . . . . . . . . . 71 42 U.S.C. §12101. . . . . . . . . . . . . . . . . . . . . . . 77 42 U.S.C. §12132. . . . . . . . . . . . . . . . . . . . 35-37, 67 42 U.S.C. §12202. . . . . . . . . . . . . . . . . . . . . . . 85 42 U.S.C. §2000d-7(a)(1). . . . . . . . . . . . . . . . . . . 84
NEW JERSEY STATUTES N.J.S.A. 10:5-1.. . . . . . . . . . . . . . . . . . . . . . . 76 N.J.S.A. 30:4-165.. . . . . . . . . . . . . . . . . . . . . . 66 N.J.S.A. 30:4-25.2,.. . . . . . . . . . . . . . . . . . . . 3, 27 N.J.S.A. 30:4-25.14.. . . . . . . . . . . . . . . . . . . . 6, 62 N.J.S.A. 30:4-27.10.. . . . . . . . . . . . . . . . . . . . . 62 N.J.S.A. 30:6D-17.. . . . . . . . . . . . . . . . . . . . . . 76 N.J.S.A. 30:6D-2. . . . . . . . . . . . . . . . . . . . . . . 76
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N.J.S.A. 30:6D-25.2.. . . . . . . . . . . . . . . . . . . . . 62 N.J.S.A. 3B:12-24.1.. . . . . . . . . . . . . . . . . . . . 6-10 N.J.S.A. 3B:12-36.. . . . . . . . . . . . . . . . . . . . . . 67 N.J.S.A. 52:14B-2(b). . . . . . . . . . . . . . . . . . . . . 28 N.J.S.A. 52:5-1.. . . . . . . . . . . . . . . . . . . . . . . . 9 N.J.S.A. 52:9H-1. . . . . . . . . . . . . . . . . . . . . 15, 16 P.L. 2006, c.61.. . . . . . . . . . . . . . . . . . . . . . . . 3
FEDERAL RULES Fed.R.Civ.P. 56.. . . . . . . . . . . . . . . . . . . . . . . 33
NEW JERSEY COURT RULES N.J. Ct. R. 2:2-3(a)(2).. . . . . . . . . . . . . . 28, 29, 63-65 N.J. Ct. R. 4:86-1. . . . . . . . . . . . . . . . . . . . . . 66
FEDERAL REGULATIONS 28 C.F.R. §351.30(b)(7).. . . . . . . . . . . . . . . . . . 39-42 28 C.F.R. §35.130(b)(7).. . . . . . . . . . . . . . . . . 35, 36 42 C.F.R. § 441.303(f)(6).. . . . . . . . . . . . . . . . . . 60 8 C.F.R. 35.130(d),.. . . . . . . . . . . . . . . . . . . 36, 37
NEW JERSEY REGULATIONS N.J.A.C. 1:1-9.4. . . . . . . . . . . . . . . . . . . . . 28, 63 N.J.A.C. 10:46-1.1. . . . . . . . . . . . . . . . . . . . 62, 63 N.J.A.C. 10:46B-1.3.. . . . . . . . . . . . . . . . . . . . 23-27 N.J.A.C. 10:46B-5.1.. . . . . . . . . . . . . . . . . . . 27, 63 N.J.A.C. 10:46C.. . . . . . . . . . . . . . . . . . . . . . . 23
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Case 3:05-cv-04723-AET-TJB Document 56-1 Filed 03/25/10 Page 10 of 98 PageID: 1726 N.J.A.C. 10:48. . . . . . . . . . . . . . . . . . . . . . 27, 63 N.J.A.C. 10:48-2.2(a).. . . . . . . . . . . . . . . . . . 27, 63 N.J.A.C. 10:48-2.2(b).. . . . . . . . . . . . . . . . . . . . 28 N.J.A.C. 10:48-7.1(e).. . . . . . . . . . . . . . . . . . 28, 63
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PRELIMINARY STATEMENT Plaintiffs, Disability Rights New Jersey, Inc. (“DRNJ”), A.H. and F.T., bring this action against Jennifer Velez, Commissioner of Human Services of New Jersey, in her official capacity, and the State of New Jersey, seeking declaratory and injunctive relief relating to the operation of the State’s developmental centers and alleging inadequate efforts to transition individuals residing at the developmental centers to live in the community. Defendants are entitled to summary judgment dismissing Plaintiffs’ claims under the Americans with Disabilities Act and the Rehabilitation Act because Defendants have a comprehensive, effectively working plan to transition eligible individuals from developmental centers to the community. Requiring Defendants to place these individuals at a faster pace, given the allocation of the Division’s resources and the current fiscal crisis, would fundamentally alter the State’s system of providing services to other individuals with developmental disabilities. Defendants are also entitled to summary judgment dismissing Plaintiffs’ claims under the Medicaid Act because the Act does not require the State to provide home and community-based waiver services to all individuals who could benefit from these services. Rather, it requires the State to offer a choice of services, and to pay promptly and fairly for services that are already available. The State meets these requirements. Defendants are entitled to summary judgment dismissing Plaintiffs’ Fourth and Fifth Causes of Action because admission to

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a developmental center is a voluntary act that the potential resident or his or her guardian can decline, and a plethora of due process protections are already provided.
Finally, Defendants are immune from Plaintiffs’ claims under the Americans with Disabilities Act and the Rehabilitation Act because Congress failed to abrogate state sovereign immunity when it enacted Title II of the Americans with Disabilities Act and the Rehabilitation Act, and New Jersey did not waive sovereign immunity by accepting funds under the Rehabilitation Act.
STATEMENT OF MATERIAL FACTS A. Background Even before it published its plan for transitioning eligible individuals from developmental centers to the community in 2007, the Division of Developmental Disabilities (“the Division”) had drastically reduced its use of developmental centers by shifting resources to the community. See Certification of Kenneth Ritchey (“Ritchey Cert.”) at ¶2, Exhibit A (The Path to Progress) at p. 8. In 1980, 7,317 individuals resided in eleven State developmental centers. Ibid. By the beginning of 2007, 3,027 individuals resided in seven developmental centers. Ibid. While this shift to community placement occurred, the total number of individuals the Division served increased nearly threefold. Ibid. In 1986, the Division served 13,140 individuals. Ibid. By 2007, this number increased to 37,359 individuals. Ibid. With the decrease in the use of developmental centers and the increase in individuals
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eligible for the Division’s services, the proportion of individuals the Division served in the community had drastically increased to 92% by 2007. Ibid.
Today, the proportion of individuals the is even greater. The Division serves 37,425 individuals in the community, while serving 2,725 individuals in developmental centers. See Ritchey Cert. at ¶3. Unless they refuse services or move out of State, the Division serves individuals from the date of eligibility for services to death. See N.J.S.A. 30:4-25.2 et seq.
B. The State’s Olmstead Plan 1. Development
In 2006, the New Jersey Legislature enacted P.L. 2006, c.61, which required the Division to develop a plan to transition out of developmental centers all individuals who expressed a preference to live in the community and whose interdisciplinary team recommended that they live in the community. See Ritchey Cert. at ¶4, Exhibit B (P.L. 2006, c.61). Specifically, the law required the Division to: (1) establish benchmarks to ensure that within eight years of implementation, each resident in a State developmental center who expresses a desire to live in the community and whose individual habilitation plan so recommends, is able to live in a communitybased setting; (2) review and establish objective criteria to identify those persons with developmental disabilities who are appropriate candidates for living in community-based settings; (3) identify the resources needed to ensure that those persons can
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reside in the community and receive needed community-based supports in a manner that enables them to live as independently as possible; (4) set forth how the necessary funding, services and housing will be provided; (5) solicit public input in developing a plan by conducting four public hearings at or in close proximity to the State’s developmental centers in each of the Division’s four regional service areas; and (6) provide the plan and a report of its findings and recommendations to the Governor and to the Senate Health, Human Services and Senior Citizens and Assembly Human Services committees no later than nine months after the effective date of the act. Ibid.
In January 2007, the Division conducted four hearings with stakeholders to gain input for its plan for deinstitutionalization. See Ritchey Cert. at ¶5, Exhibit A at p.10. Although the Division did not restrict the scope of the input, it asked stakeholders to address three areas: services and supports needed to successfully transition individuals from developmental centers; services and supports needed to successfully integrate and maintain individuals in the community; and concerns regarding accessing and receiving services in the community. Ibid.
The Division then released a draft plan to gather more input from the public. See Ritchey Cert. at ¶6, Exhibit A at p.11. It published the draft plan on its website and notified key stakeholders of its availability. Ibid. The Division received 31
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comments regarding the draft plan from family members, organizations, and other agencies. Ibid.
2. Summary of the Plan In May 2007, the Division published the Path to Progress (“the Path to Progress” or “the Plan”), its plan for transitioning eligible individuals from developmental centers to the community. See Ritchey Cert. at ¶7, Exhibit A. The Plan is organized into three sections: (i) an assessment to identify individuals with developmental disabilities who are appropriate to live in the community; (ii) an outline of the resources needed so that eligible individuals can transition from developmental centers to the community; and (iii) a description of how the plan will be implemented (i.e., the benchmarks, the steps necessary to achieve the benchmarks and the time-frames within which the benchmarks will be reached). Ibid.
a. Criteria for Placement The Division uses the following criteria for determining eligibility for community placement: (1) the individual desires to move or does not oppose moving to the community;1 (2) the individual’s interdisciplinary team recommends that the individual be transitioned to the community; (3) there is no court order
1 The Division considers as unopposed to community placement not only individuals who express a desire to live in the community, but also those who do not or cannot express a preference regarding community placement. See Ritchey Cert. at ¶8.
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prohibiting the move;2 and (4)the individual’s guardian/family does not oppose community placement. See Ritchey Cert. at ¶8, Exhibit A at pp.20-21. The final requirement is currently being used to prioritize placement. See Ritchey Cert. at ¶8. The Division is first placing the individuals whose guardians/families do not oppose community placement. Ibid. At the same time, it has launched a campaign to educate opposing families about the merits of community placement. Ibid. The Division anticipates that more families will be unopposed to community placement as they become more knowledgeable about it, and it therefore plans to place more individuals than those who currently meet the eligibility criteria. Ibid. Ultimately, however, the Division cannot place individuals against the wishes of their legally appointed guardians who are vested with the authority to make residential decisions for their wards. See N.J.S.A. 3B:12-24.1.
To assess how many individuals meet these criteria, the Division uses the Developmental Disabilities Resource Tool (“DDRT”). See Certification of Jonathan Seifried (“Seifried Cert.”) at ¶2. The DDRT assesses individuals in eight programmatic areas: social work, psychology, physical therapy, occupational therapy, habilitation, nursing, nutrition and speech. Id. at ¶3. In each programmatic area, the DDRT uses an informant who knows the individual and is trained in the use of the assessment. Ibid.
2 The third criteria refers to individuals committed to developmental centers related to criminal proceedings and is not at issue in this lawsuit. See N.J.S.A. 30:4-25.14 et seq.
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While the entire assessment surveys the individual’s abilities and the services he or she needs, the social work section of the DDRT assesses whether the individual is recommended for community placement by his or her interdisciplinary team, whether the individual can express a preference about community placement and, if so, what that preference is, and whether the individual’s guardian/family is opposed to community placement. Id. at ¶4.
b. Number of Individuals Requiring Placement, Pace of Placement and Education Efforts
At the time the Path to Progress was published, 2,457 individuals, approximately 81% of individuals residing at developmental centers, were recommended for community placement by their interdisciplinary teams. See Ritchey Cert. at ¶9, Exhibit A at pp.22-23. Out of these 2,457 individuals, 2,303 expressed a desire to move to the community, or did not or could not express a preference regarding community placement. Ibid. Out of these 2,303 individuals, 1,298 had guardians/family who were opposed to community placement, leaving 1,005 individuals who met the criteria for community placement. Ibid.
However, the Division planned to transition to the community more than the 1,005 individuals who met the criteria for community placement at the time the Path to Progress was published. See Ritchey Cert. at ¶10, Exhibit A at pp.24-25. It anticipated that
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through education and the example set by other individuals living

in the community, many individuals and guardians/families opposed

to community placement would change their minds. Ibid. The

Division launched an extensive campaign to educate

guardians/families about community placement. See Seifried Cert.

at ¶5. In association with the University of Medicine and

Dentistry of New Jersey, the Division established the Community

Living Education Project (formerly the “Family Education Project”).

Ibid. The Project provides various educational services to

families, including family forums, one-on-one education sessions,

and newsletters and other information about community settings.

Ibid. It also facilitates tours of community residences of

individuals with developmental disabilities. Ibid.

The Division also anticipated that individuals would change

their decisions about community placement. See Seifried Cert. at

¶6. The Division discusses community placement at each individual’s

annual Individualized Habilitation Plan meeting.

Ibid.

Individuals sometime change their minds about residing in the

community at these meetings. Ibid. On rare occasions, individuals

also change their decision about community placement as a move date

approaches. Ibid.

Accounting for the likelihood that individuals and/or their

guardians/families would change their decisions regarding community

placement, the Division planned to place 1,850 individuals in the

community over eight years, rather than just the 1,005 individuals

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who met the eligibility criteria at the time the Path to Progress was published. See Ritchey Cert. at ¶11, Exhibit A at pp.24-25. Further, the Division indicated that it would continue to place individuals in the community after eight years if there were still individuals who met the eligibility criteria. Ibid. The Division did not intend for the 1,850 figure to be, nor was it possible for it to be, an exact or stagnant projection. See Ritchey Cert. at ¶11.
The Division began placement of the 1,005 eligible individuals immediately and planned to place those individuals who later became eligible after the initial 1,005 placements.3 See Ritchey Cert. at ¶11, Exhibit A at p.46. Specifically, the Division planned to place 100 individuals in fiscal year (“FY”) 2008,4 and 250 individuals per year from FY 2009 through FY 2015. Ibid. Thereafter, the Division planned to place any additional individuals who later became eligible for community placement. Ibid.
3 The State operates a waiver under the Medicaid Home and Community Based Waiver program (“HCBS waiver”). See Ritchey Cert. at ¶13; 42 U.S.C. § 1396n(c). This allows the Division to serve a defined number of individuals, who would otherwise require institutional care, in the community. Ibid. Currently, this waiver is capped at 11,197. Ibid. The Division also maintains a number of spots for additional placements throughout the year. Ibid.
4 FY 2008 in New Jersey runs from July 1, 2007 to June 30, 2008. See N.J.S.A. 52:5-1.
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In the Path to Progress, the Division projected the annual costs of funding these placements. See Ritchey Cert. at ¶14, Exhibit A at pp.164-70. The projections included costs for infrastructure and family support; housing costs and service supports; annualized budgets for previous placements; Medicaid state plan increases; and staffing increases. Ibid. The costs also include offsets for contribution to care by individuals and reduction of staff at developmental centers. Ibid.
At the time the Path to Progress was issued, the Division projected costs as follows:
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FISCAL YEAR 2008 2009 20105 2011 2012 2013 2014 2015 TOTAL COST

STATE FUNDS $23,294,842 $65,596,021 $95,844,910 $114,544,350 $132,953,421 $152,791,276 $174,841,843 $194,882,038 $954,748.702

FEDERAL FUNDS $10,201,688 $29,184,891 $42,252,051 $48,383,088 $54,055,469 $59,801,070 $66,536,967 $71,672,387 $382,087,611

TOTAL COST $33,615,114 $95,457,953 $139,740,866 $165,368,885 $190,269,413 $216,694,060 $246,344,427 $272,407,270 $1,359,897,989

See Ritchey Cert. at ¶15, Exhibit A at pp.164-70. The Division also projected that the cost of maintaining the 1,850 individuals already placed in the community would be approximately $207,390,454 ($155,513,490 State and $45,800,845 federal) per year after FY 2015. Ibid.
3. Implementation of the Path to Progress In preparation for the placements it would make under the Path to Progress, the Division qualified agencies to provide services to individuals transitioning out of developmental centers to the community. See Certification of Patricia Merk (“Merk Cert.”) at ¶2. In October 2006, the Division issued the “Olmstead Individualized Community Supports and Services” Request for
5 While the amount of projected placements were to remain at 250 per year from FY 2009 through FY 2015, the costs increase every year because the Division continues to fund placements made in previous years.
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Proposals (“RFP”). See Merk Cert. at ¶3. This RFP offered three open enrollment periods for agencies to become qualified providers of services in the following areas: housing development, residential supports, employment/day services, medical supports and behavior supports. Ibid. Through this RFP, the Division qualified 55 agencies to provide housing, 73 agencies to provide residential supports, 63 agencies to provide employment/day services, 38 agencies to provide medical supports and 47 agencies to provide behavior supports. Ibid.
In December 2007, the Division issued another RFP for “Olmstead Individualized Community Supports and Services.” See Merk Cert. at ¶4. The RFP offered an open enrollment for all the categories contained in the October 2006 RFP, as well as a new category for providers of stand-alone behavior supports, which are temporary supports provided to an individual to maintain the individual in a community setting. Ibid.
In April 2008, the Division issued another RFP for community supports and services. See Merk Cert. at ¶5. The RFP offered open enrollment for all categories in the previous two RFPs. Ibid.
Through these RFPs, by August of 2008, the Division qualified 77 agencies to provide housing, 103 agencies to provide residential supports, 88 agencies to provide employment/day services, 65 agencies to provide medical supports and 71 agencies to provide behavior supports and 2 agencies to provide stand-alone behavior supports. See Merk Cert. at ¶6.
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The Division issued a Request for Qualifications (“RFQ”) for expansion of community supports in July 2009. See Merk Cert. at ¶7. The aim of the RFQ was to qualify providers of services for individuals with personal budgets. Ibid. This allowed providers to expand the populations they serve and the scope of services they provide. Ibid. The RFQ also afforded agencies the opportunity to offer services to individuals in their own homes. Ibid.
In addition to qualifying providers to serve individuals transitioning out of developmental centers, the Division also provided funding for agencies to develop and improve community housing to better serve individuals being transitioned from developmental centers. See Merk Cert. at ¶8. The federal government, through the HUD Section 811 program, provides funding to non-profit organizations to develop rental housing with supportive services for disabled individuals. See Merk Cert. at ¶9. The Division provides $5,000 to each agency that is awarded a HUD 811 grant to offer housing for individuals with developmental disabilities. Ibid. The agencies typically use this $5,000 for initial costs such as taxes, site cleaning and building permits. Ibid. To date, the Division has provided the $5,000 grant to 24 HUD projects in the State. Ibid.
The Division has also provided funding to make housing more accessible for individuals with physical disabilities. See Merk Cert. at ¶10. In FY 2007, the Division offered agencies between $30,000 and $90,000 each to make existing homes accessible for
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individuals with ambulation difficulties who were transitioning out of developmental centers. Ibid. Five agencies were awarded these grants. Ibid.
By qualifying providers and improving infrastructure, the Division ensured that the necessary supports and services were in place before individuals were transitioned from developmental centers to the community. See Merk Cert. at ¶11. Once funding is available, the individual may choose the services that best fit his or her needs and the agency which will provide these services, rather than that provider selecting the individual it wishes to serve. Ibid. As noted in the Path to Progress, “[t[hese values provide the framework for [the Division] to assure that individuals with developmental disabilities, and their families have access to needed community services, individualized supports, and other forms of assistance that promote self-direction, independence, productivity, and integration and inclusion in all facets of community life including work.” See Merk Cert. at ¶11, Exhibit A at p.12.
The parties in this matter retained experts to review the Path to Progress and its implementation. See Certification of Gerard Hughes (“Hughes Cert.”) at ¶¶2,3. Both experts agree that the Plan, as written, contains all of the required elements of an Olmstead plan. Defendants’ expert, Robert Gettings, opines that “[t]he Path to Progress offers a detailed, value-based roadmap to rebalancing New Jersey’s system of services to persons with
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developmental disabilities ... [and is] one of the most comprehensive, clearly articulated state DD system rebalancing plans in the nation.” See Hughes Cert. at ¶2, Exhibit C (Report of Robert Gettings) at p.51. In his report, Tony Records, Plaintiffs’ expert, refers to the Path to Progress as “a comprehensive document including nearly all of the necessary components of a plan to transition people out of developmental centers.” See Hughes Cert. at ¶3, Exhibit D (Report of Tony Records) at p.10. While Mr. Records opined that the plan lacked components to curtail new admissions and to administer a waiting list that moves at a reasonable pace, Exhibit D at p.10, he clarified in his deposition that these elements are not lacking in the Plan itself but, rather, have not been fully funded. See Hughes Cert. at ¶4, Exhibit E (Deposition Transcript of Tony Records) at T:191-24 to T193:1.
4. Funding of the Path to Progress and Placements Made
The Legislature has appropriated significant funding to implement the Path to Progress. In FY 2007, the Legislature appropriated $3,000,000 to the Division for Olmstead-related services and capital improvements. See Ritchey Cert. at ¶17, Exhibit F (2007 Appropriations Handbook, Human Services section) at
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p.B-106.6 That same year, the Legislature appropriated to the Division $50,000,000 to be spent over three years for Olmsteadrelated residential and other support services and infrastructure for individuals transitioning from developmental centers to the community and from the community services waiting list. See Ritchey Cert. at ¶18, Exhibit G (Governor’s Proposed Budget for FY 2008) at p. D-190.
Using part of the $50,000,000 it had been appropriated for three years and the additional $3,000,000 it received in FY 2007, the Division placed 86 individuals out of developmental centers into the community in FY 2007 and 121 individuals in FY 2008. See Ritchey Cert. at ¶19. The 207 placements far exceeded the projected placements in Path to Progress for FY 2008, which were 100 individuals at a cost of $33,615,114. See Ritchey Cert. at ¶19, Exhibit A at p.164.
During FY 2009, New Jersey, like other states, faced an international economic crisis described as “the worst economic downturn since the Great Depression.” See Ritchey Cert. at ¶20, Exhibit H (Citizen’s Guide to the Budget for FY 2010) at p.3. The
6 The New Jersey budget and appropriations process is set forth in several documents. The Governor proposes a budget each year pursuant to N.J.S.A. 52:9H-1. One or more appropriations bills, which often are not identical to the Governor’s proposed budget, are proposed, debated, and ultimately passed by the Legislature and signed by the Governor as the Appropriations Act, which is published in the Appropriations Handbook. In recent years, the Treasury Department has published a Citizens Guide to the Budget, which has detailed differences between the Budget as proposed and the Appropriations Act.
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State confronted plunging revenues and increased demand for State services. Ibid. For FY 2009, the Legislature passed a $32.87 billion budget. See Ritchey Cert. at ¶20, Exhibit I (Citizen’s Guide to the Budget for FY 2009) at p.5. During the course of the fiscal year, however, a budget shortfall of nearly $4.3 billion opened, which required substantial spending cuts. See Ritchey Cert. at ¶20, Exhibit H at pp.6-7.
Despite the budget shortfall, the Legislature appropriated to the Division $19,645,000 for FY 2009 to fund new placements out of developmental centers and to continue funding for existing placements. See Ritchey Cert. at ¶21, Exhibit J (Appropriations Handbook for FY 2009) at p.B-105. The Division also had approximately $21,616,000 left over from the $50,000,000 appropriated in FY 2007. See Ritchey Cert. at ¶21. This amount fell short of the $95,457,953 the Division projected it would need to fund 250 placements in FY 2009 as well as placements from previous years, and would only fund approximately 125 placements. See Ritchey Cert. at ¶21, Exhibit A at p.164. The Division placed 112 individuals from developmental centers into the community in FY 2009.7 See Ritchey Cert. at ¶22. It also continued to fund all placements made in previous years. Ibid.
7 The Division’s efforts to place 125 individuals fell short because sufficient resources were not yet in place in the community to serve the other 13 individuals, and the transition period for individuals leaving developmental centers was longer than anticipated. See Ritchey Cert. at ¶22.
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By FY 2010, the State’s budget shortfall had grown to an
unprecedented $8.2 billion, and the final budget passed for FY 2010 was $29 billion. See Ritchey Cert. at ¶23, Exhibit H at p.22.8 In
FY 2010, for the third straight year, operational budgets for State
departments were reduced. Ibid. Confronted with the State’s
historical financial crisis, the Legislature cut the Department of
Human Services’ FY 2010 budget by $676,442,000, which was a 13.8%
decrease from FY 2009. See Ritchey Cert. at ¶23, Exhibit H at p.33.
Despite these cuts, appropriations for the State’s Olmstead
initiatives continued, and in FY 2010, the Legislature appropriated
$34,007,000 to the Division for Olmstead Residential Services. See
Ritchey Cert. at ¶24, Exhibit L (Appropriations Handbook for FY
2010, Human Services section) at p. B-109. This amount fell short
of the $139,740,866 the Division projected it would need to fund
250 new placements and continue to fund already existing
placements. See Ritchey Cert. at ¶24, Exhibit A at p.164. The
Division has placed 47 individuals out of developmental centers to
8 Throughout FY 2010, actual and anticipated revenue collections by the State continued “to fall far below the amounts estimated in the FY 2010 Appropriations Act” resulting in an anticipated funding shortfall of $1.333 billion for FY 2010. See Hughes Cert. at ¶5, Exhibit K (Executive Order No. 14 of Governor Chris Christie). In his proposed budget for FY 2011, Governor Christie indicates that there is a $10.7 billion budget deficit for FY 2011. See Hughes Cert. at ¶6, Exhibit M (Governor’s Proposed Budget for FY 2011) at p.1. He recommends a cut in the Department of Human Services’ budget of $182,342,000, which is 3.9% decrease from the adjusted appropriation for FY 2010. Exhibit M at p. 68. Nevertheless, Governor Christie proposes a $14,028,000 increase in spending for community placements for the Division. Id. at p.95. Further, he recommends closure of the West Campus of Vineland Developmental Center. Id. at p.42.
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date in FY 2010, and projects it will place a total of 62 by the end of the fiscal year. See Ritchey Cert. at ¶25. It has also continued to fund all placements made in previous years. Ibid.
Thus, to date, the Division has placed 366 individuals9 out of developmental centers into the community under Path to Progress and anticipates placing approximately 15 more individuals by the end of the fiscal year. See Ritchey Cert. at ¶26. It has done so in spite of the worst economic climate since the Great Depression, which has forced approximately $676 million in cuts to the Department of Human Services’ budget. Ibid. While the Division projected in the Path to Progress it would place 600 individuals by the end of FY 2010, the State’s fiscal crisis has meant that the new funding contemplated by the Path to Progress has not been available. Id. at ¶27. The Division has faced reductions in the programs it offers, as well in administration, but has made every effort not to cut community services needed for the Path to Progress to be implemented. Ibid. The Division cannot transfer money from its other programs to fund additional placements out of developmental centers because doing so would mean reducing service for individuals receiving services from the Division. Ibid. At this point, any transfer of funds would result in another group of individuals with developmental disabilities being negatively impacted. Ibid.
9 Plaintiff, F.T., was transitioned to the community on July 24, 2009. Plaintiff, A.H., still resides at Vineland Developmental Center. See Ritchey Cert. at ¶26.
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5. Quality of Placements The placements the Division has made have been successful. See Seifried Cert. at ¶7. The Division conducts follow-up reviews of placements 30 days, 60 days, 90 days, 180 days, one year, two years and three years after transition. Ibid. These face-to-face visits are conducted by a team consisting of staff at the developmental center who know the individual best and the community services case manager for the individual. Ibid. At the visits, team members report their overall impressions of the community placement. Ibid. Data collected on 344 reviews conducted in FYs 2008 and 2009 revealed that 69% of individuals were adjusting well to their placement and seemed happy; 25% of individuals were adjusting well, but had issues that needed to be addressed;10 and 6% of individuals had experienced difficult transitions. Id. at ¶8. The review forms also include the individual’s impression of his or her placement, as well as current staff’s impressions. Id. at ¶10. Data collected on the 344 reviews showed that 91% of individuals and 94% of staff reported that the individuals like their new home; 95% of individuals and 97% of staff reported that the individuals like the staff at the new home; 89% of individuals
10 On the current review form, responders indicate in which category, if any, there are issues. See Seifried Cert. at ¶9. This allows the Division to ensure that more in-depth discussions are being held by the review team, the individual and the provider so that issues are addressed. Categories of issues include equipment, health/medical, hygiene, behavioral, staffing, employment/day services, financial, social, and health insurance/health provider. Ibid.
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and 92% of staff reported that the individuals liked their day program or job; and 91% of individuals and 97% of staff reported that the individuals liked the staff at their day program/job. Ibid. Consistent with this data, only 12 individuals have been readmitted to developmental centers out of the 366 individuals placed in the community. Ibid.
6. The Path to Progress Placement Process The success of the Division’s placements to date is due in large part to the process the Division uses to transition individuals from developmental centers to the community. See Seifried Cert. at ¶11. As set forth in Path to Progress, this process consists of five phases. See Seifried Cert. at ¶11, Exhibit A at pp.14-19. Phase 1 involves educating the individual and his or her guardian/family about community placement and the services available. See Seifried Cert. at ¶11. It also includes the individual’s and family’s decision about community placement. Ibid. Phase 2 consists of planning for the individual’s move to the community. Ibid. The Division now uses Essential Lifestyle Planning for individuals transitioning out of developmental centers, which is a service plan driven by the choices of the individual and his or/her family. Ibid. In phase 3 of the transition process, the Essential Lifestyle Plan is put into action. Ibid. The Division solicits qualified agencies which may be interested in serving the individual; it arranges for qualified, interested agencies to meet the individual and review the
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individual’s records and submit a proposal to serve the individual; the Division arranges for agencies that submitted a proposal to be interviewed by the individual and the individual’s interdisciplinary team to explain how the agency will serve the individual; and then the individual chooses a placement. Ibid. In phase 4, the individual moves from the developmental center to his or her new home in the community. Ibid. Phase 5 consists of long term follow-up and quality assurance of the individual’s placement. Ibid.
Throughout the transition process, the individual is assigned a support coordinator to facilitate his or her move to the community. See Seifried Cert. at ¶12. The Division has contracted with two agencies to provide support coordination for individuals transitioning out of developmental centers, as well as various other projects. See Seifried Cert. at ¶13. It has annual contracts with these agencies totaling approximately $2 million. Ibid.
While the Division estimated in the Path to Progress that an individual’s transition to the community would take approximately six months, the process has taken on average about 15 months. See Seifried Cert. at ¶14. The Division employs a “get it right the first time approach,” which emphasizes the quality of placement over the speed of transition. Ibid. The Division feels strongly that it is essential to find the right fit for the individual in the community, rather than rushing the placement. Ibid.
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7. Declining Admissions to Developmental Centers While transitioning individuals to the community under the Path to Progress, the Division has also reduced admissions to developmental centers. See Ritchey Cert. at ¶28. The Division maintains a lengthy waiting list for individuals seeking residential placement because its resources are not sufficient to meet the needs of the class of beneficiaries. See N.J.A.C. 10:46C; J.D. v. New Jersey Div. of Developmental Disabilities, 329 N.J. Super. 516, 522 (App. Div. 2000). The only way that an individual can be placed prior to the State reaching the date of his or her assignment to the waiting list is if there is an emergency, that is, a situation in which “the eligible person is homeless or in imminent peril.” N.J.A.C. 10:46B-1.3. The Division does not admit individuals to developmental centers who are reached off of the waiting list for residential placements. See Ritchey Cert. at ¶29. The only new admissions to developmental centers are individuals receiving emergency placements, who will be homeless or in imminent peril if the Division does not provide them a place to live and support services, and for whom no community placement is available to meet the emergent needs of the individual. Ibid. Accordingly, the Division has invested resources in crisis management in the community to avoid admissions to developmental centers when possible. See Ritchey Cert. at ¶30. The Division and the State Division of Mental Health Services (“DMHS”) have a joint contract with Trinitas Regional Medical
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Center to administer an emergency response/crisis counseling service called Statewide Clinical Consultation and Training (“SCCAT”). See Ritchey Cert. at ¶31. The Division’s portion of this contract, which costs $841,619 per year, funds eight clinicians who provide emergency intervention, training and technical assistance to individuals who are dually diagnosed with mental illness and developmental disability (“dually-diagnosed individuals”). Ibid. SCCAT team members attempt to stabilize the individuals who experience behavioral crises, thus allowing the individual to remain in the community. Ibid. SCCAT team members also offer training and technical assistance in dealing with behavioral crises to family members and other providers. Ibid.
Trinitas Hospital also provides ten beds in its psychiatric unit for dually-diagnosed individuals. See Ritchey Cert. at ¶32. The increased short-term capacity for dually-diagnosed individuals in crisis has allowed the Division to divert admissions from developmental centers to the community hospital for short-term placement. Ibid.
The Division has also provided funding for agencies to develop emergency capacity in the community to avoid placements at developmental centers. See Ritchey Cert. at ¶33. It issued an RFP for emergency capacity beds in FY 2007. Ibid. The Division required that the beds be made available for referrals of emergency placements. Ibid. As a result of the RFP, the Division opened 16
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new emergency capacity beds, 4 for adults who are ambulatory, 4 for adults who are non-ambulatory and 8 for children. Ibid.
In FY 2009, the Division created additional emergency beds in the community because of the demand for the already existing beds. See Ritchey Cert. at ¶34. It took the next successful bidders from the 2007 RFP and added 16 new emergency beds. Ibid. The Division now funds a total of 44 emergency beds in the community at an average annual cost of approximately $108,000 per bed. Ibid. The Division uses these beds for short-term stays while other planning is done for permanent community placement. Ibid.
The Division also contracts, at a cost of $713,725 per year, for specialized mental health case management with the Integrated Service Delivery Team (“ISDT”). See Ritchey Cert. at ¶35. The ISDT provides long-term services to dually-diagnosed individuals. Ibid. The Division identifies individuals for referral. Ibid. The ISDT may also be an ongoing support service after SCCAT stabilizes a crisis. Ibid. ISDT services include assessment, onsite intervention, behavioral skills training, social skills training, psychiatric treatment, clinical case management, staff training and crisis intervention. Ibid.
While increasing crisis support and emergency capacity for individuals in the community, the Division has also revamped its admission policy to developmental centers to ensure that individuals are only admitted if there are no available services in the community. See Ritchey Cert. at ¶36. When an individual in
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the community is in need of an emergency placement, the Division sends an electronic mail message, called an “e-blast,” to all qualified in-State providers under contract with the Division to determine if any can meet the emergency placement needs of the individual. Id. at ¶37. If the Division is aware of a provider that would be suitable to serve the individual, the Division sends a more detailed referral packet to that provider. Ibid. Providers that respond to the e-blast also receive the more comprehensive referral packet. Ibid. Only if all options are exhausted and none of the providers is able to serve the individual, will Division staff complete a placement request form for admission to a developmental center. See Ritchey Cert. at ¶38. The form includes documentation of staff’s review of all available vacancies in the community and the reasons these vacancies were not appropriate for the individuals. Ibid. The form also includes a discharge plan for transitioning the individual out of the developmental center in the event he or she is admitted there. Ibid. Throughout the placement request form process, staff continue efforts to find a suitable placement in the community for the individual. Ibid.
The Division has also assigned a Placement Coordinator to review admission requests to ensure that staff have exhausted efforts to identify a community placement. See Ritchey Cert. at ¶39. In instances where a community placement was identified and failed, the Placement Coordinator calls a special case meeting to review the circumstances of the failed placement and to review all
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other community placement options explored by staff. Id. at ¶40. The Placement Coordinator then reviews the admission request with the Division’s Assistant Director over developmental centers. Ibid. In the event that an admission cannot be diverted, the Placement Coordinator requests updates from staff to ensure that there are ongoing efforts to return the person to an appropriate community placement. Ibid.
The individual and his or her guardian are given the opportunity to visit the developmental center prior to accepting the offer of placement. See Ritchey Cert. at ¶41. They must also be advised that they may request the assistance of a third party advocate to act on their behalf to obtain more information to challenge the placement. Ibid. Moreover, once admitted to a developmental center, the individual, his or her guardian/family members or the advocate may request to have the individual’s case reviewed by the developmental center’s Human Rights Committee. Ibid.
With the exception of court ordered placements, which are not the subject of the instant action, admissions to developmental centers are voluntary. See Ritchey Cert. at ¶42; N.J.S.A. 30:425.2, et seq. Nevertheless, an individual who is offered placement at a developmental center can appeal this offer of placement in accordance with N.J.A.C. 10:46B-5.1 and N.J.A.C. 10:48. Such appeals are considered to be contested matters. N.J.A.C. 10:482.2(a). A contested matter “means an adversarial proceeding, in
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which legal rights, duties, obligations, privileges, benefits or other legal relations of specific parties are required by constitutional right or by statute to be determined by an agency by decisions, determinations or orders, addressed to them or disposing of their interests after the opportunity for an agency hearing.” N.J.S.A. 52:14B-2(b). While such appeals are typically first referred for a settlement conference, the appellant may request that the settlement conference be waived and the matter transmitted directly to the Office of Administrative Law for resolution, N.J.A.C. 10:48-2.2(b)&(d), and be expedited. N.J.A.C. 1:1-9.4. Following the OAL hearing and the final agency decision, further appeal may be made to the Appellate Division of the Superior Court of New Jersey. N.J.A.C. 10:48-7.1(e); N.J. Ct. R. 2:2-3(a)(2).
After admission to a developmental center, the individual’s interdisciplinary team holds a 5-day post admission meeting and a 30-day Individual Habilitation Plan meeting to ensure that plans are developed that address the reason for the individual’s admission. See Ritchey Cert. at ¶43. Summaries of these meetings are submitted to the Placement Coordinator for review. Ibid. On a regular basis, the individual’s case manager submits a status report to the Placement Coordinator that documents all of the efforts taken by the Division to return the individual to a community placement as soon as possible. Id. at ¶44. The Placement Coordinator in turn provides monthly reports to the
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Assistant Commissioner regarding the status of all emergency admissions to developmental centers. Ibid.
The Division has also created an Admissions Review Panel that reviews emergency admissions to developmental centers. See Ritchey Cert. at ¶45. The Panel is composed of representatives from the Office of the Public Advocate, Disability Rights New Jersey, contracted service providers, and family members of the individual. Ibid. The Placement Coordinator provides quarterly status reports on individual cases to the Admissions Review Panel as part of the Panel’s review and monitoring functions. Ibid.
The Division’s development of community services and revamped admission procedures have resulted in fewer admissions to developmental centers since the Path to Progress was published. See Ritchey Cert. at ¶46. In calendar year 2007, there were 104 admissions to developmental centers. Ibid. In 2008, admissions decreased to 91. In 2009, the number of admissions decreased even further to 43.11 Ibid. To date in 2010, there have only been 11 admissions to developmental centers. Ibid. With fewer admissions and increased community placements, the census at developmental centers has decreased from 3,027 in 2007 to 2,725 today. See Ritchey Cert. at ¶48.
11 On average, the Division makes approximately 300 emergency placements per year. Thus, the percentage of emergency placements admitted to developmental centers has been steadily dwindling since 2007. See Ritchey Cert. at ¶47.
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Although the State’s fiscal crisis has prevented the Division from discharging individuals from developmental centers at the pace projected in the Path to Progress, the Division remains committed to transitioning into the community every individual who is eligible for community placement. See Ritchey Cert. at ¶49. The Division will continue to move these individuals into the community as quickly as possible, while ensuring that their community placements are safe and appropriate. See Ritchey Cert. at ¶49.
C. Plaintiffs’ Amended Complaint Plaintiffs’ first cause of action alleges that Defendants have violated the anti-discrimination provision of the Americans with Disabilities Act (“the ADA”) by: (i) offering only institutional care to institutionalized individuals with developmental disabilities, rather than community-based care, despite the fact that the provision of community-based services would not require a fundamental alteration of Defendants’ program, services and activities for developmentally disabled individuals; (ii) failing to properly assess such individuals for community-based services and failing to advise them of community living options; and (iii) failing to implement “a comprehensive, effectively working plan for serving qualified people with developmental disabilities in the most integrated setting appropriate to their needs.” See Amended Complaint at ¶¶86, 87, 88. In their second cause of action, Plaintiffs allege that Defendants have violated Section 504 of the Rehabilitation Act of
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1973 (“the RA”), by denying access to community-based services to residents of developmental centers who are appropriate for and desire such services, despite the fact that the provision of community-based services would not require a fundamental alteration of Defendants’ program, services and activities for developmentally disabled individuals. See Amended Complaint at ¶93.
Plaintiffs’ third cause of action asserts that Defendants have violated the Medicaid Act by denying residents of the developmental centers the opportunity to apply for and receive necessary home and community-based services with reasonable promptness, and failing to inform residents of developmental centers of non-institutional waiver alternatives and failing to offer “a meaningful choice between segregated institutional care and appropriately integrated community services . . . .” See Amended Complaint at ¶¶97, 98.
In their fourth cause of action, Plaintiffs allege a due process violation with respect to the procedures currently in place governing admission to, and continued placement in, developmental centers because potential residents are not provided with notice, a commitment hearing, representation, a decision by an impartial decision maker, and an annual review hearing. See Amended Complaint at ¶¶105, 107, 109, 110.
In their fifth cause of action, Plaintiffs contend that the admissions process and the failure to provide an annual review hearing constitutes unlawful discrimination in violation of the ADA, and violates their right to access to the courts guaranteed by
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the 14th Amendment and the ADA. See Amended Complaint at ¶¶119, 126, 127, 128.
PROCEDURAL HISTORY Plaintiffs filed their complaint on September 29, 2005. On February 1, 2007, Plaintiffs filed an amended complaint. Defendants filed an answer to Plaintiffs’ amended complaint on June 4, 2007. Fact and expert discovery was completed. The Court’s scheduling order, as amended, requires summary judgment motions to be filed by March 25, 2010.
STANDARD OF REVIEW The summary judgment procedure is designed to expedite the resolution of cases by dismissing factually insufficient claims or defenses and avoiding unwarranted consumption of public and private resources. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment is appropriate when, after a review of the record in the light most favorable to the non-moving party, there is no genuine issue of material fact to sustain the litigation. Lang v. New York Life Inc. Co., 721 F.2d 118, 119 (3d Cir. 1983). An issue is “genuine,” however, only if the evidence proffered by the nonmoving party is such that a reasonable fact finder could find for that party. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)). Whether or not a fact is material will be defined by reference to substantive law. Anderson, 477 U.S. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary
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judgment – [f]actual disputes that are irrelevant or unnecessary will not be counted.” Ibid.
A movant in a motion for summary judgment need only establish that, based on the record before the court, the evidence proffered on behalf of the non-movant is insufficient to carry the nonmovant’s burden of proof at trial. Chippollini v. Spencer Gifts, 814 F.2d 893, 896 (3d Cir. 1987) (citing Celotex Corp. v. Catrett, supra, 477 U.S. at 323). Where the non-moving party has the burden of proof at trial, it must “‘make a showing sufficient to establish the existence of [every] element essential to that party’s case.’” Equimark Commercial Finance Company v. C.I.T. Financial Services Corporation, 812 F.2d 141, 144 (3d. Cir. 1987) (citing Celotex, supra, 477 U.S. at 322) (bracketed language in original). “[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, supra, 477 U.S. at 249 (citations omitted).
Here, as a matter of law, the Amended Complaint should be dismissed pursuant Fed. R. Civ. P. 56 because Plaintiffs do not state a viable claim against Defendants and there are no genuine issues of material fact to be litigated.
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ARGUMENT
POINT I
PLAINTIFFS’ CLAIMS UNDER THE AMERICANS WITH DISABILITIES ACT AND THE REHABILITATION ACT SHOULD BE DISMISSED BECAUSE DEFENDANTS HAVE A COMPREHENSIVE, EFFECTIVELY WORKING PLAN FOR PLACING ELIGIBLE INDIVIDUALS IN THE COMMUNITY, AND IT WOULD FUNDAMENTALLY ALTER DEFENDANTS’ SERVICES FOR INDIVIDUALS WITH DEVELOPMENTAL DISABILITIES IF DEFENDANTS WERE FORCED TO PLACE THESE ELIGIBLE INDIVIDUALS AT A FASTER PACE.
Plaintiffs allege in their First and Second Causes of Action that Defendants have violated the anti-discrimination provisions of the ADA and Section 504 of the RA. As demonstrated below, however, the Division’s Path to Progress constitutes a comprehensive, effectively working plan for transitioning eligible individuals from developmental centers to the community, and demonstrates a commitment to future planning for deinstitutionalization. Requiring Defendants to place these individuals at a faster pace, given the allocation of the Division’s resources and the current fiscal crisis, would fundamentally alter the State’s system for serving individuals with developmental disabilities. Because Plaintiffs cannot state a viable claim against Defendants under the ADA or the RA, and because there are no genuine issues of material fact to be litigated, Defendants are entitled to summary judgment dismissing Plaintiffs First and Second Causes of Action.
The non-discrimination provision of the ADA provides: Subject to the provisions of this subchapter, no qualified individual with a disability
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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.
The ADA’s implementing regulations provide further guidance
regarding what is required in order to prevent discrimination under
the act. Specifically, Section 35.130(b)(7), which is referred to
variously as the “fundamental alterations” provision or the
“reasonable modifications” provision of the ADA, provides in
pertinent part:
A public entity shall make reasonable modifications in policies, practices or procedures when the modifications are necessary to avoid discrimination on the basis of disability unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity.
28 C.F.R. §35.130(b)(7).
Similarly, Section 35.130(d) provides that “[a] public entity
shall administer services, programs and activities in the most
integrated setting appropriate to the needs of qualified
individuals with disabilities.”
Section 504 of the RA 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
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Executive agency or by the United States Postal Service. 29 U.S.C. §794(a). The United State Supreme Court, in Olmstead v. L.C., 527 U.S. 581 (1999), and subsequent Third Circuit case law interpreting Olmstead and the integration mandate of Title II of the ADA and the RA,12 have set forth the parameters for when a state is required to move institutionalized persons to community placements. In addition, those cases set out the requirements for a state to successfully assert a “fundamental alterations” defense pursuant to the “reasonable modifications” provision of the ADA, 28 C.F.R. §35.130(b)(7), to a suit seeking to require a state to place people in the community. In 1999, the United States Supreme Court addressed the issue of whether, under Title II of the ADA, a state is required to place persons with mental disabilities in community settings rather than in institutional settings. Olmstead v. L.C., 527 U.S. 581, 587 (1999). The 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
12 The Olmstead plaintiffs did not bring suit under the Rehabilitation Act. See L.C. & E.W. v. Olmstead et al., Civil Action No. 1:95-cv-1210-MHS, 1997 WL 148674 (N.D. Ga. Mar. 27, 1997)) (“Olmstead District Court Opinion”) at *2. The Frederick L. line of cases included a Rehabilitation Act claim. The Third Circuit noted that the ADA and the Rehabilitation Act are similarly structured and applied the ADA/Olmstead analysis to the Rehabilitation Act claim. See Frederick L. v. Dep’t of Pub. Welfare of the Commonwealth of Pennsylvania, 364 F.3d 487, 497 (3d. Cir. 2004).
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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. Ibid.
The Olmstead plaintiffs had been institutionalized for some time, had been evaluated by their treatment teams and determined to be appropriate for community placement, but had not been moved to a community setting. Olmstead, supra, 527 U.S. at 593. The defendants, including Tommy Olmstead, Commissioner of the Georgia Department of Human Services, and other state and county officials, argued that the plaintiffs had not been placed in the community because of a lack of funds for community placements, rather than as a result of discrimination. Id. at 594. The District Court rejected the argument of the Georgia officials, entered partial summary judgment for plaintiffs and ordered defendants to place plaintiffs in the community, noting that the cost of care for plaintiffs was less in the community than in the institution. Id.; see also L.C. & E.W. v. Olmstead et al., Civil Action No. 1:95-cv1210-MHS, 1997 WL 148674 (N.D. Ga. Mar. 27, 1997)) (“Olmstead District Court Opinion”); L.C. & E.W. v. Olmstead, et al., 138 F.3d 893, 896, petition for rehearing and rehearing en banc den’d, 149 F.3d 1197 (11th Cir. 1998)(“Olmstead Circuit Court Opinion”).
The Georgia officials appealed, arguing that the plaintiffs had failed to show “discrimination by reason of their disability,” pursuant to the plain meaning of 42 U.S.C. §12132, and failed to
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demonstrate that they were denied community placements available to other non-disabled individuals because of disability. Olmstead Circuit Court Opinion, 138 F.3d at 896. The Eleventh Circuit affirmed the District Court’s grant of partial summary judgment, but remanded to the District Court for reassessment of the State’s cost-based defense, interpreting the District Court decision to have erroneously ruled out cost of services as a reasonable modifications defense. Olmstead, supra, 527 U.S. at 595; Olmstead Circuit Court Opinion, 138 F.3d at 905. The Eleventh Circuit directed that the District Court consider “whether treating L.C. and E.W. would require additional expenditures and, if so, whether the State had met its burden of proving that those expenditures were unreasonable in light of the State’s mental health budget.” Olmstead Circuit Court Opinion, 138 F.3d at 905.
The Supreme Court took certiorari on the issue of the State’s cost-based defense and held that if, in the allocation of available resources, placement of the individual would be inequitable, given the State’s responsibilities “for the care and treatment of a large and diverse population of persons with mental disabilities,” the State need not place the individual. Olmstead, supra, 527 U.S. at 604. Justice Ginsberg, who wrote for the plurality, found that the ADA does not require an individual to be placed in the community if he or she is not appropriate for community placement or opposes it, nor does the ADA impel states to phase out institutions such that patients in need of “close care” are placed at risk. Id. at 602.
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The plurality provided guidance on how ADA compliance could be achieved, stating that the “reasonable modifications” provision of the ADA regulations is satisfied by a “comprehensive, effectively working plan for placing qualified persons in less restrictive settings” and “a waiting list that moves at a reasonable pace not controlled by a State’s endeavors to keep its institutions fully populated.” Id. at 605-06.
In several cases since the Olmstead decision, the United States Court of Appeals for the Third Circuit has provided a more detailed analysis of what constitutes a “fundamental alterations” defense under the ADA. See Frederick L. v. Dep’t of Pub. Welfare of the Commonwealth of Pennsylvania, 364 F.3d 487 (3d Cir. 2004) (“Frederick II”); Frederick L. v. Dep’t of Pub.c Welfare of the Commonwealth of Pennsylvania 422 F.3d 151 (3d Cir. 2005) (“Frederick III”); Pennsylvania Prot. & Advocacy v. Dep’t of Pub. Welfare, 402 F.3d 374 (3d Cir. 2005)(“PP&A Circuit Court Opinion”).
In Frederick II, several psychiatric patients at a Norristown State Hospital (“NSH”) brought a class action lawsuit against the Pennsylvania Department of Public Welfare (“DPW”). Frederick II, 364 F.3d at 489. Plaintiffs argued that DPW’s failure to provide them with adequate community services violated the ADA and Section 504 of the Rehabilitation Act, 29 U.S.C. §794. Ibid. DPW raised the “fundamental alterations” defense, pursuant to Olmstead and 28 C.F.R. §351.30(b)(7), arguing that the modifications that plaintiffs sought would fundamentally alter its policy and budget.
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Id. at 490. NSH did not have a formal plan to transition its patients to the community, but did hold monthly Hospital/County Discharge Planning Meetings. Ibid. The Third Circuit reversed the District Court’s decision in DPW’s favor and remanded the matter, finding that the state defendants could not satisfy the proofs necessary for a reasonable modifications defense based solely on the immediate costs of, and DPW’s past progress in making, the community placements. Id. at 495, 500-01. The Third Circuit found that in the absence of a demonstrated “commitment to action” to move eligible patients into the community, the state officials’ reasonable modification defense fails, and remanded the matter to the District Court. Id. at 500.
Notably, while remanding the matter for further proceedings, the Third Circuit also rejected several of plaintiffs’ contentions concerning DPW’s cost-based defense. First, relying on Olmstead, the Court held that plaintiffs could not argue that there would be a cost savings from their deinstitutionalization because that would ignore the costs of maintaining institutions with fixed overhead for patients who need them. Id. at 497. Second, the Third Circuit rejected plaintiffs’ contention that the Court could require DPW to request additional funds from the legislature because the budgetary process is beyond judicial scrutiny. Ibid. The Court emphasized that federal courts should “accord deference to state policymakers’ programmatic and political funding decisions regarding mental health funding.” Id. at 500. Third, relying again on Olmstead,
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the Court rejected plaintiffs’ contention that DPW should shift funds in its current budget to cover the costs of increased community programs because moving money from other programs to fund more community placements would favor those who commence actions at the expense of others. Id. at 497.
In the final analysis, the Third Circuit accepted that DPW’s fiscal constraints were sufficient and that it could not order, as plaintiffs sought, DPW to develop 60 community residential slots per year for NSH residents. Id. at 500. However, the Court interpreted the Olmstead four-Justice plurality opinion as requiring that a successful fundamental alterations defense contain two critical elements: a state must show “future planning for deinstitutionalization” and a “commitment to action.” Id. at 500. The “commitment to action” must evidence an assurance that there will be ongoing progress toward community placement and it must be communicated in some manner. Id. at 500. The Third Circuit vacated the District Court’s judgment and remanded the case to allow DPW to make a submission to the District Court so the court could evaluate whether the plan showed these two elements. Id. at 501.
On remand, the District Court found that DPW had a “commitment to action” and, thus, had established a fundamental alterations defense. See Frederick L., v. PA DPW, No. Civ.A. 00-4510, 2004 WL 1945565 (E.D. Pa. Sept. 1, 2004). It relied on DPW’s “Pennsylvania Community/Hospital Integration Plan,” a statewide planning document
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that set out the general goals for the provision of mental health services, including: supporting the development of a comprehensive array of services in the least restrictive and least intrusive manner, continuing to reorient the focus of the mental health system away from large institutions toward community care, and ensuring that the system has a strong fiscal foundation. Id. at *2.
On appeal, the Third Circuit reversed the District Court’s determination that DPW had an Olmstead Plan and again remanded the matter. It found that DPW’s “general assurances” and “good faith intentions” that it would effectuate deinstitutionalization were insufficient to establish a fundamental alterations defense. Frederick III, supra, 422 F.3d at 158. The Court outlined the requirements of an Olmstead plan:
To alleviate the concerns articulated in Olmstead, we believe that a viable integration plan at a bare minimum should specify the time-frame or target date for patient discharge, the approximate number of patients to be discharged each time period, the eligibility for discharge, and general description of the collaboration required between the local authorities and the housing, transportation, care, and education agencies to effectuate integration into the community. Id. at 160. The Third Circuit further defined the parameters for the fundamental alterations defense in PP&A Circuit Court Opinion, supra, 402 F.3d 374. In that case, plaintiff, Pennsylvania Protection and Advocacy, Inc. (“PP&A”), brought suit on behalf of
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residents of the South Mountain Restoration Center (“South Mountain”), a psychiatric and nursing transition facility run by DPW. Plaintiff alleged that defendants were violating the ADA and Section 504 by failing to include South Mountain residents in integrated treatment programs and instead, limiting them to institutionalized treatment at South Mountain. Id. at 377. Residents of South Mountain consisted primarily of elderly individuals who had been admitted from state psychiatric facilities. Ibid. In response to a request from the Statewide Community/Hospital Integration Planning Committee, staff at South Mountain had determined that 80 percent of residents “could function in the community now if the necessary community support services were in place and operational” and that none of the residents were precluded from leaving “due to serious medical problems.” Id. at 378.
The District Court held that DPW had established a fundamental alterations defense because it had showed that to provide the relief requested, community placement for South Mountain residents, would cause DPW to shift resources from other patients with mental illness. Ibid. On appeal, however, the Third Circuit held that DPW’s lack of a “commitment to action” was fatal to DPW’s fundamental alteration defense. Id. at 381. It determined that DPW had excluded South Mountain residents from its system of community placements and services. Id. at 383. The Court held that, without a plan to transition these residents to the
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community, DPW could not assert a fundamental alterations defense by solely relying on fiscal constraints. Id. at 381.
Thus, for Defendants to prevail in this case, they must establish that they have a comprehensive, effectively working plan to place eligible individuals from developmental centers into the community, that their plan demonstrates a commitment to action by providing time-frames for discharge, the number of individuals to be discharged within those time-frames, and the collaboration with community providers and other entities to effectuate integration into the community; and that it would fundamentally alter the State’s system for providing services to other individuals with developmental disabilities if Defendants were forced to transition these individuals at a faster pace. As demonstrated below, Defendants have established all of the elements of a fundamental alterations defense, and Plaintiffs’ ADA and RA claims should, therefore, be dismissed.
A. Defendants Have A Comprehensive, Effectively Working Plan For Transitioning Eligible Individuals From Developmental Centers To The Community.
In 2007, the Division released the Path to Progress, which sets forth a comprehensive, effectively working plan for transitioning eligible individuals from developmental centers to the community. See Ritchey Cert. at ¶7, Exhibit A. The Plan establishes eligibility criteria for determining whether an individual with developmental disabilities is appropriate for community placement: (1) the individual desires to move or does
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not oppose moving to the community; (2) the individual’s interdisciplinary team recommends that the individual be transitioned to the community; (3) there is no court order prohibiting the move; and (4) the individual’s guardian/family does not oppose community placement. See Ritchey Cert. at ¶8, Exhibit A at pp.20-21. In addition, the Plan outlines the resources needed for eligible individuals to transition from developmental centers to the community, and describes how the plan is to be implemented, setting forth benchmarks, the steps necessary to achieve those benchmarks, and the time-frames within which the benchmarks will be reached. See Ritchey Cert. at ¶7, Exhibit A.
The Division uses the DDRT to assess how many individuals meet the eligibility criteria for community placement. See Seifried Cert. at ¶2. The DDRT surveys whether the individual is recommended for community placement by his or her IDT, whether the individual can express a preference about community placement and, if so, what that preference is, and whether the individual’s guardian/family is opposed to community placement. Ibid. The DDRT is also used to ascertain the supports individuals will need in the community. Ibid.
Recognizing that some guardians and family members might not have the information necessary to make informed decisions regarding the merits of community placement, the Division launched a campaign to educate guardians and families about community placements. See Seifried Cert. at ¶5. The Division anticipates that more families
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will consent to community placement as they become more educated, and therefore, plans to place more individuals than those who currently meet the eligibility criteria. See Ritchey Cert. at ¶10.
The Path to Progress sets forth time frames for the discharge of eligible individuals, as well as the projected number of individuals to be discharged within these time frames. See Ritchey Cert. at ¶11, Exhibit A at p46. Specifically, the Plan provided for the placement of 100 individuals in FY 2008, and 250 individuals per year from FY 2009 through FY 2015. Ibid. Thereafter, the Division planned to place any additional individuals who later became eligible for community placement. Ibid.
The Path to Progress describes in detail the resources the Division needs to meet the Plan’s placement goals, and the action steps required to effectuate the Plan. See Ritchey Cert. at ¶14, Exhibit A at pp.164-170. The Plan comprehensively examines the costs for infrastructure and family support, housing costs and service supports, annualized budgets for previous placements, Medicaid state plan increases, and staffing increases. Ibid. It also includes offsets to costs for contribution to care by individuals and reduction of staff at developmental centers. Ibid. With projected costs increasing every year during the life of the Plan, the Division estimated that the total cost from FY 2008 to FY 2015 would be $1,359,897,989 ($954,748,702 State and $382,087,611 federal), and approximately $207,390,454 ($155,513,000 State and
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$45,800,845 federal) per year after FY 2015. Ibid. The Plan also includes action steps that describe in detail everything the Division needs to do to effectuate the transition of individuals from developmental centers to the community. See Exhibit A.
There can be no question that the Division’s Olmstead plan is “effectively working.” The Division has qualified agencies to provide services to individuals transitioning out of developmental centers to the community in preparation for the placements it has made and will make under the Path to Progress. See Merk Cert. at ¶¶2-7. Through its RFP and RFQ process, the Division has qualified 77 agencies to provide housing, 103 agencies to provide residential supports, 88 agencies to provide employment/day services, 65 agencies to provide medical supports, 71 agencies to provide behavior supports and 2 agencies to provide stand alone behavior supports for individuals transitioning out of developmental centers. Ibid.
The Division has also provided $5,000 to each agency that is awarded a HUD 811 grant to offer housing for individuals with developmental disabilities, awarding the $5,000 grant to 24 HUD projects to date. See Merk Cert. at ¶9. In FY 2007, the Division also offered agencies between $30,000 and $90,000 to make existing homes accessible for individuals with ambulation difficulties who were transitioning out of developmental centers. Id. at ¶10.
By ensuring that the necessary supports and services are in place before an individual moves to the community, the individual
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is now able to choose his or her provider of services, rather than the provider selecting the individual it wishes to serve. See Merk Cert. at ¶11. As noted in the Path to Progress, “[t]hese values provide the framework for [the Division] to assure that individuals with developmental disabilities, and their families have access to needed community services, individualized supports, and other forms of assistance that promote self-direction, independence, productivity, and integration and inclusion in all facets of community life including work.” See Merk Cert. at ¶11, Exhibit A at p.12.
The Legislature has appropriated resources to the Division to fund the Path to Progress, despite the fact that the State has been suffering through a fiscal crisis over the last two years. In FY 2007, the Legislature appropriated $3,000,000 to the Division for Olmstead related services and capital improvements. See Ritchey Cert. at ¶17, Exhibit F at p.B-106. That same year, the Legislature appropriated to the Division $50,000,000 to be spent over three years for Olmstead-related residential and other support services and infrastructure for individuals transitioning from developmental centers to the community and from the community services waiting list. See Ritchey Cert. at ¶18, Exhibit G at p.D90. Despite a budget shortfall, the Legislature appropriated to the Division $19,645,000 for FY 2009 to fund new placements out of developmental centers and to continue funding for existing placements. See Ritchey Cert. at ¶21, Exhibit J at p.B-105. The
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Division also had approximately $21,616,000 left over from the $50,000,000 appropriated in FY 2007. See Ritchey Cert. at ¶21. In FY 2010, despite an even larger budget shortfall, the Legislature appropriated $34,007,000 to the Division for Olmstead Residential Services. See Ritchey Cert. at ¶24, Exhibit L at p.B-109. Although a portion of those funds were cut in FY 2010, substantial new resources were nonetheless committed to Path to Progress even as budget cuts occurred throughout State agencies. For FY 2011, Governor Christie, despite making additional cuts in all State funding and specifically to the Department of Human Services, has proposed new funds for the Path to Progress. See Hughes Cert. at ¶6, Exhibit M.
While the fiscal crisis has prevented the Division from making the amount of placements projected in the Path to Progress to date, the Division still has placed hundreds of individuals in the community, demonstrating not just a commitment to action, but real action in spite of the economic downturn. See Frederick II, supra, 364 F.3d at 500. The Division placed 86 individuals out of developmental centers into the community in FY 2007 and 121 individuals in FY 2008. See Ritchey Cert. at ¶19. These placements far exceeded the number projected in Path to Progress for FY 2008, which was 100 individuals. See Ritchey Cert. at ¶19, Exhibit A at p.164. The Division placed 112 individuals from developmental centers to the community in FY 2009, and also continued to fund placements from previous years. See Ritchey
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Cert. at ¶22. The Division has placed 47 individuals to date in FY 2010, and projects that it will place a total of 62 by the end of the fiscal year. Id. at ¶25. It has also continued to fund all placements made in previous years. Ibid.
Thus, to date, the Division has placed 366 individuals out of developmental centers into the community under the Path to Progress and anticipates placing approximately 15 more individuals by the end of the fiscal year. See Ritchey Cert. at ¶26. It has done so in the face of the worst economic climate since the Great Depression, which has forced approximately $676 million in cuts to the Department of Human Services’ budget and tens of millions more to other State agencies. Ibid.
The placements the Division has made have been successful. The Division conducts follow-up reviews of placements 30 days, 60 days, 90 days, 180 days, one year, two years and three years after transition. See Seifried Cert. at ¶7. At the visits, staff report their overall impressions of the community placement. Ibid. Data collected on 344 reviews overwhelmingly shows that the majority of individuals transitioned to the community are happy and welladjusted. Id. at ¶¶8,10. For the smaller number of individuals who have experienced difficulties in adjusting to the community, the face-to-face visits ensure that staff are aware of and can address these issues. Id. at ¶9.
Significantly, during the same time the Division has been placing individuals in the community under the Path to Progress, it
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has also decreased admissions to developmental centers. See Ritchey Cert. at ¶26. The Division does not admit individuals to developmental centers who are reached off the waiting list for residential placements. Id. at ¶29. The only new admissions to developmental centers are emergency placements, for individuals who will be homeless or in imminent peril if the Division does not provide them a place to live and support services and for whom no community placement is available to serve their emergent needs. Ibid.
To avoid admissions to developmental centers whenever possible, the Division has invested resources in crisis management in the community. See Ritchey Cert. at ¶30. The Division and DMHS jointly manage the SCCAT, the emergency response/crisis counseling service, made up of eight clinicians who provide emergency intervention, training and technical assistance to dually-diagnosed individuals and their caretakers in their existing community settings. Id. at ¶31. SCCAT teams work to stabilize individuals who experience behavioral crises, providing training and assistance to family or community providers to manage behavioral issues, thus allowing individuals who might otherwise be admitted to developmental centers to remain in the community. Ibid. Trinitas Hospital also provides ten beds in its community psychiatric hospital for dually-diagnosed individuals, which has allowed the Division to divert admissions for developmental centers to the community. Id. at ¶32.
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The Division has increased emergency capacity in the community to avoid placements at developmental centers. See Ritchey Cert. at ¶33. In FY 2007, for example, the Division opened 16 new emergency capacity beds, 4 for adults who are ambulatory, 4 for adults who are non-ambulatory and 8 for children. Ibid. In FY 2009, it created an additional 16 new emergency beds. Id. at ¶34. With these increases, the Division now funds a total of 44 emergency beds in the community for individuals in crisis who might otherwise be admitted to developmental centers. Ibid.
The Division also offers specialized, long-term mental health case management through the ISDT to dually-diagnosed individuals. See Ritchey Cert. at ¶35. Services include assessment, on-site intervention, behavioral skills training, social skills training, psychiatric treatment, clinical case management, staff training and crisis intervention. Ibid. Better management of behavioral issues in community settings is intended to head off situations that might otherwise become emergency needs for placement in a developmental center. Ibid.
The Division has also revamped its admission procedures for developmental centers, to ensure that individuals are admitted to developmental centers only when there are no options for placement in the community. See Ritchey Cert. at ¶36. The import of this more fully discussed in Point III, infra. The Division’s development of community services and revamped admission procedures have resulted in fewer admissions to developmental centers since
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the onset of Path to Progress. See Ritchey Cert. at ¶46. In calendar year 2007, there were 104 admissions to developmental centers. Ibid. In 2008, admissions decreased to 91. Ibid. In 2009, the number of admissions decreased even further to 43. Ibid. To date in 2010, there have only been 11 admissions to developmental centers. Ibid. With fewer admissions and increased community placements, the census at developmental centers has decreased from 3,027 in 2007 to 2,725 today. Id. at ¶48.
Thus, there is no question that the State has a plan more moving developmental center residents to community placements that meets all the requirements of Olmstead and subsequent Third Circuit case law. While the economic crisis has prevented the Division from making the number of placements initially projected in the Path to Progress to date, the Plan demonstrates a real commitment to action, has resulted in 366 placements to date, has cut admissions to developmental centers and provides a proven blueprint for future deinstitutionalization.
B. It Would Fundamentally Alter The State’s System For Providing Services To Individuals With Developmental Disabilities If Defendants Were Forced To Place Individuals In The Community At A Faster Pace.
Provided it has a plan, a state need not place individuals in the community if, in the allocation of available resources, placement would be inequitable given the State’s responsibilities “for the care and treatment of a large and diverse population of persons with mental disabilities.” Olmstead, supra, 527 U.S. at
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604. Interpreting the ADA’s fundamental alterations defense as described in Olmstead, the Third Circuit has held that a state human services agency need not shift funds in its budget used to provide services to other individuals with developmental disabilities in order to cover the costs of increased community programs because moving money from other programs to fund more community placements would favor those who commence actions at the expense of others. Frederick II, supra, 364 F.3d at 497. Further, the Third Circuit has held that courts cannot require Defendants to request additional funds from the legislature to fund community placement because the budgetary process is beyond judicial scrutiny. Ibid.
After appropriating sufficient funds to meet the Plan’s placement targets through FY 2008, New Jersey, along with other states, faced an international economic crisis described as “the worst economic downturn since the Great Depression” during FY 2009. See Ritchey Cert. at ¶20, Exhibit H at p.3. The State confronted plunging revenues and increased demand for State services. Ibid. Despite the budget shortfall, the Legislature appropriated $19,645,000 to the Division in FY 2009 to fund new placements out of developmental centers and to continue funding existing placements. See Ritchey Cert. at ¶21, Exhibit J at p.B-105. This fell short of the amount the Division projected it would need to place 250 individuals in FY 2009, and the Division was only able to make 112 placements. See Ritchey Cert. at ¶22.
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By FY 2010, the State’s budget shortfall had grown to an unprecedented $8.2 billion, and the FY 2010 Appropriation Act appropriated a total of approximately $29 billion, which was nearly $4 billion less than the FY 2009 Appropriation Act. See Ritchey Cert. at ¶23, Exhibit H at p.22. Confronted with the State’s unprecedented financial reverses, the Legislature cut the Department of Human Services’ FY 2010 budget by $676,442,000, which was a 13.8% decrease from FY 2009. See Ritchey Cert. at ¶23, Exhibit H at p.33. Nonetheless, funding for Path to Progress continued. The Legislature appropriated $34,007,000 to the Division for Olmstead Residential Services, which will allow the Division to place approximately 62 individuals. See Ritchey Cert. at ¶24, Exhibit L at p.B-109.
Despite the State’s fiscal woes, Defendants have placed 365 individuals in the community since Path to Progress was published, while spending over $100 million to initiate and continue these placements. See Ritchey Cert. at ¶26. Defendants have done so despite the worst economic climate since the Great Depression, which has forced approximately $676 million in cuts to the Department of Human Services’ budget. Ibid. While the Division projected in the Path to Progress it would place 600 individuals by the end of FY 2010, the State’s fiscal crisis has meant that the new funding contemplated by the Path to Progress has not been available. Id. at ¶27. The Division has faced reductions in the programs it offers, as well in administration, but has made every
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effort not to cut community services needed for the Path to Progress to be implemented. Ibid. The Division cannot transfer money from its other programs to fund additional placements out of developmental centers because doing so would mean reducing service for individuals receiving services from the Division. Ibid. Thus, any transfer of funds would result in another group of individuals with developmental disabilities being negatively impacted, and that is not required. Ibid.; see also Frederick II, supra, 364 F.3d at 497.
Even if the budgetary process was not beyond the Court’s scrutiny, an effort by the Division to petition the Legislature for more funding for community placements would be fruitless because the State has an anticipated budget deficit for FY 2011 of $10.7 billion. See Hughes Cert. at ¶6, Exhibit M at p.1. Consequently, Governor Christie is recommending a cut in the Department of Human Services’ budget of $182,342,000, which is 3.9% decrease from the adjusted appropriation for FY 2010. Id. at p.68. Despite this, the Governor has still included funding to continue making placements, albeit at a slower pace than anticipated in the Path to Progress.
Thus, although the Division has been unable to meet its placement goals, its progress under the Path to Progress must be viewed in the context of the current, nationwide economic crisis. The Path to Progress was published in May 2007, well before the current economic crisis, and naturally, did not anticipate it. The
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Division will have made approximately 380 placements under the Path to Progress by the end of FY 2010, and has received and spent approximately $117,000,000 in new funding to implement the Plan. The Division has unquestionably demonstrated a commitment to action on behalf of individuals in developmental centers who are eligible to live in the community. Because the Court cannot order the Division to do anything more than it is already doing without fundamentally altering the Division’s services for other individuals with developmental disabilities, Defendants are entitled to summary judgment on Plaintiffs’ claims under the ADA and the RA.
POINT II PLAINTIFFS’ CLAIMS UNDER THE MEDICAID ACT SHOULD BE DISMISSED BECAUSE THE ACT DOES NOT REQUIRE DEFENDANTS TO PROVIDE COMMUNITY-BASED SERVICES TO ALL INDIVIDUALS WHO COULD BENEFIT FROM THESE SERVICES, BUT RATHER TO OFFER A CHOICE OF SERVICES AND TO PAY PROMPTLY AND EVENHANDEDLY FOR SERVICES THAT ARE ALREADY AVAILABLE. In their third cause of action, Plaintiffs allege that Defendants have violated the Medicaid Act because “qualified developmental center residents continue to be unnecessarily institutionalized.” Plaintiffs’ claims under the Medicaid Act lack merit because the Act does not require the State to provide home and community-based waiver services to all individuals who could benefit from these services. Rather, it requires the State to offer a choice of services and to pay promptly and fairly for
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services that are already available. Because Plaintiffs cannot establish that Defendants have violated the Medicaid Act, the Court should dismiss Plaintiffs’ third cause of action.
Plaintiffs’ complaint cites 42 U.S.C. § 1396a(a)(8) for the proposition that residents of developmental centers must be offered home and community-based services with reasonable promptness. This section of the Medicaid Act states that “[a] State plan for medical assistance must provide that all individuals wishing to make application for medical assistance under the plan shall have the opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all individuals.” 42 U.S.C. § 1396a(a)(8). Plaintiffs misread this statute. It does not command the State to provide services to all individuals who could benefit from the services, but rather to promptly and even-handedly pay for those services that are provided. See Mandy R. v. Owens, 464 F.3d 1139, 1143 (10th Cir. 2006); Westside Mothers v. Olszewski, 454 F.3d 532, 540 (6th Cir. 2006); Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir. 2003). Indeed, the Medicaid Act defines “medical assistance” as “payment of part or all of the cost of the following care and services . . . .” 42 U.S.C. § 1396d(a)(emphasis added). Plaintiffs’ claims under the Medicaid Act must fail because they are not suing to enforce the prompt payment for services; they are suing to compel the services themselves. The Medicaid Act does not provide for this, and if it “implicitly required the State to provide services, because it is something in
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the best interests of the recipients, [there would be] no logical end.” Mandy R., supra, 464 F.3d at 1144. In other words, the State would be obligated to promptly fund community services for every individual who resides in a developmental center no matter the number and the cost, and despite the fundamental alteration such payment would have on the State’s services for other individuals with developmental disabilities.
Plaintiffs next rely on 42 U.S.C. § 1396a(a)(23)(A) and 42 U.S.C. § 1396n(c)(2)(C) for the same proposition. They again misread the Medicaid Act. 42 U.S.C. § 1396a(a)(23)(A) provides that “[a]ny individual eligible for medical assistance may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to provide the service or services required, who undertakes to provide him such services.” 42 U.S.C. § 1396n(c)(2)(C) provides that
[a] waiver shall not be granted under this subsection unless the State provides assurances satisfactory to the Secretary that such individuals who are determined to be likely to require the level of care provided in a hospital, nursing facility, or intermediate care facility for the mentally retarded are informed of the feasible alternative, if available under the waiver, at the choice of such individuals, to the provision of inpatient hospital services, nursing facility services, or services in an intermediate care facility for the mentally retarded.
Neither section of the Medicaid Act directs Defendants to provide community services to individuals residing at developmental
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centers. First, 42 U.S.C. § 1396a(a)(23)(A) refers to “medical assistance,” which again means payment for services, and not the provision of services themselves. See 42 U.S.C. § 1396d(a). Second, 42 U.S.C. § 1396n(c)(2)(C) directs the State to offer a choice of only those services that are “available under the waiver.” It does not require the State to make the services themselves available. See Bertrand v. Patterson, 495 F.3d 452,459 (7th Cir. 2007)(“[T]his subsection does not make any particular option ‘available’ to anyone. It just requires the provision of information about options that are available.”)(emphasis in original).
This conclusion is further buttressed by the fact that the Medicaid Act, and its implementing regulations, require the State to cap the number of individuals who receive services under the home and community based-waiver. 42 U.S.C. § 1396n(c)(9) refers to the waiver containing “a limit on the number of individuals who shall receive home or community-based services;” 42 U.S.C. § 1396n(c)(10) prohibits the Secretary from capping this limit to fewer than 200 individuals in a State who may receive services under the home and community-based waiver. Similarly, 42 C.F.R. § 441.303(f)(6) requires the State to indicate the number of individuals it intends to serve under the waiver, and states that this figure will constitute a limit on the size of the waiver program. It would be illogical to read the Medicaid Act as requiring the provision of waiver services to all when the Act
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explicitly permits the limitation of such services to the number of people the State chooses to serve.
Because Plaintiffs cannot demonstrate that Defendants have violated the Medicaid Act, Plaintiffs’ third cause of action, which alleges that the State must provide services under the home and community-based waiver to all individuals residing in developmental centers no matter the cost and the size of its waiver, should be dismissed.
POINT III THE PROCEDURES ALREADY IN PLACE RELATED TO ADMISSION AND CONTINUED PLACEMENT IN THE STATE’S DEVELOPMENTAL CENTERS DO NOT VIOLATE PLAINTIFFS’ CONSTITUTIONAL OR STATUTORY RIGHTS. A. Due Process. In their fourth cause of action, Plaintiffs assert that their right to due process has been violated because the procedures currently in place governing admission to, and continued placement in, developmental centers do not provide potential residents with notice, a commitment hearing, representation, a decision by an impartial decision maker, or an annual review hearing. Plaintiffs’ claim is both factually and legally without merit. In the seminal case of Matthews v. Eldridge, 424 U.S. 319, 335 (1976), the Supreme Court set out the analytical framework for evaluating a procedural due process claim:
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First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Application of these factors to the instant matter reveals that Plaintiffs’ due process rights are not being violated by Defendants’ procedures for admission to a developmental center. First, Plaintiffs’ liberty interest is not curtailed by admission to a developmental center because such admissions are voluntary. See Ritchey Cert. at ¶42. Offers of placement in a developmental center are not “commitments,” i.e., involuntary confinements requiring a judicial decision,13 but rather are offers for voluntary placement. See N.J.S.A. 30:6D-25.2, et seq. (establishing the eligibility criteria applicants must meet for the Division’s services); N.J.A.C. 10:46-1.1, et seq. (guidelines and criteria for eligibility for the Division’s services). The individual and his or her guardian are given the opportunity to visit the developmental center prior to accepting the offer of placement. See Ritchey Cert. at ¶41. They must also be advised that they may request the assistance of a third party advocate. Ibid. Moreover, the individual, family members or advocate may ask to have their
13 See by contrast N.J.S.A. 30:4-27.10 (court proceedings for involuntary civil commitments to mental institutions); N.J.S.A. 30:4-25.14 et seq. (criminal proceedings for commitment to the State’s moderate security unit).
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case reviewed by the developmental center’s Human Rights Commission. Ibid. Finally, an individual is free to leave the developmental center at any time. See Torisky v. Schweiker, 446 F.3d 438 (3d Cir. 2006).
To the extent that Plaintiffs argue that being offered a developmental center placement rather than placement in the community where they would rather be is really an involuntary placement because they have nowhere else to go, the New Jersey Administrative Procedures Act (“APA”) review process provides ample opportunity for due process. An individual who is offered placement at a developmental center can appeal that offer of placement in accordance with N.J.A.C. 10:46B-5.1 and N.J.A.C. 10:48. Such appeals are considered to be contested matters, entitling the individual to a hearing in the New Jersey Office of Administrative Law before an impartial administrative law judge. N.J.A.C. 10:48-2.2(a). In addition, the appeal can be expedited. N.J.A.C. 1:1-9.4. Following the final decision by the Assistant Commissioner, further appeal may be made to the Appellate Division of the Superior Court of New Jersey. N.J.A.C. 10:48-7.1(e); N.J. Ct. R. 2:2-3(a)(2).
Moreover, there would be no value to judicial oversight of admissions to developmental centers because there is virtually no risk that an individual will be admitted to a developmental center when a community placement is available. The Division has revamped its admission policy to developmental centers to ensure that
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individuals are only admitted if there are no available services in the community. See Ritchey Cert. at ¶36. Whenever an individual is in need of a community placement, the Division sends an electronic mail message out to all qualified in-State providers to determine if any can meet the emergency placement needs of the individual. Id. at ¶37. Only if all options are exhausted and none of the providers is able to serve the individual, will the individual be offered admission to a developmental center. Id. at ¶38. The placement request form includes a discharge plan for transitioning the individual out of the developmental center in the event he or she is admitted there. Ibid. Throughout the placement process, staff continue efforts to find a suitable placement in the community for the individual. Ibid.
After admission to a developmental center, the individual’s interdisciplinary team holds a 5-day post admission meeting and a 30-day Individual Habilitation Plan meeting to ensure that plans are developed that address the reason for the individual’s admission. See Ritchey Cert. at ¶43. Summaries of these meetings are submitted to the Placement Coordinator for review. Ibid. The individual’s case manager submits a status report to the Placement Coordinator on a regular basis, documenting all of the efforts taken by the Division to return the individual to a community placement as soon as possible. Ibid.
The Division has also created an Admissions Review Panel that reviews emergency admissions to developmental centers. See Ritchey
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Cert. at ¶45. The Panel is composed of representatives from the Office of the Public Advocate, Disability Rights New Jersey, contracted service providers, and family members of the individual. Ibid. The Placement Coordinator provides quarterly status reports on individual cases to the Admissions Review Panel as part of the Panel’s review and monitoring functions. Ibid.
These procedures are more than sufficient to protect any private interest Plaintiffs may have in ensuring that any options for placement in the community are exhausted before admission to a developmental center is offered. Moreover, the Division has created and expanded specialized community services designed to prevent emergency placements in developmental centers. Consequently, the number of admissions to developmental centers has been steadily declining since Path to Progress was published. In light of this multi-faceted approach to implementing the Division’s policy that individuals receiving emergency placement must be placed in the community wherever possible, judicial oversight would have no probative value.
Finally, requiring Defendants to provide an adversarial hearing in every instance of an offer of residential placement at a developmental center as a matter of course, even for those cases where the individual does not object, would be unduly burdensome and would provide no practical benefit to anyone. Indeed, if an individual does not want the placement, he or she is free to decline it. While Defendants acknowledge that, until the Path to
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Progress is fully implemented, there is no available alternative placement in the community for new admissions to developmental centers, this is precisely the reason the individual is admitted to a developmental center. Defendants exhaust every community option before admitting an individual to a developmental center. Thus, requiring the State to construct an elaborate judicial mechanism to review voluntary, emergency admissions to developmental centers could not result in the grant of any meaningful relief, and would only create substantial and unnecessary costs. Scarce funds would be better spent on additional community resources to divert emergency admission by funding the Path to Progress. For these reasons, Plaintiffs’ due process claim fails.
Plaintiffs also allege that a subset of residents, those who have guardians authorized to make residential decisions and who consent to either the initial or continued placements in a developmental center, have suffered a due process deprivation because the legally incompetent person did not personally agree to the placement. Amended Complaint, ¶102. To articulate this argument is to demonstrate its complete lack of merit. Appointment of a guardian requires that the alleged incapacitated person receive notice, counsel and a hearing before a Superior Court Judge. N.J.S.A. 30:4-165, et. seq.; N.J. Ct. R. 4:86-1 et seq. A person who has had a guardian appointed to make decisions for him or her, including residential decisions, has already been judicially declared incompetent to make those decisions for him or
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herself, rendering any personal consent legally irrelevant. Whether a guardianship is required because of a person’s minority or mental incapacity, a guardian has a fiduciary duty to act in his or her ward’s best interests. See Heller v. Doe, 509 U.S. 312, 331 (1993)(“Guardians have a legal obligation to further the interests of their wards . . . .”); N.J.S.A. 3B:12-36, et seq.
For these reasons, Plaintiffs’ fourth cause of action should be dismissed.
B. Americans With Disabilities Act And Equal Protection.
In their fifth cause of action, Plaintiffs assert that they are being “discriminated” against by the procedures used to offer and maintain residential placements because they are not offered the same kind of adversarial judicial proceedings that are used for commitments to involuntary psychiatric hospitals or tuberculosis treatment facilities. This claim, too, is devoid of merit.
The ADA provides in pertinent part that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C. §12132. Defendants do not dispute that it is a public entity or that it provides benefits, services and programs to qualified disabled individuals. However, Plaintiffs fail to identify any benefit, service or program that they are allegedly being denied access to because of a disability. Instead, they attempt to re-cast their
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due process argument as a “denial of access to the courts” claim –

first under the ADA (Amended Complaint, ¶¶121-25) and then under

the 14th Amendment (Amended Complaint, ¶¶126-28), and cite Tennessee

v. Lane, 541 U.S. 509 (2004), for support. Amended Complaint,

¶128. Lane, however, provides no support to Plaintiffs’ claims.

The plaintiffs in Lane were two individuals with physical

disabilities, a court reporter and a criminal defendant, who

claimed that their rights to access to the courts were violated

because of physical barriers that existed at the courthouse. The

Lane plaintiffs’ right to have a judicial proceeding was not at

issue, as it is in the instant case.

In Christopher v. Harbury,

536 U.S. 403 (2002), the Supreme Court identified two categories of

“denial of access to courts” claims. The first type of claim

involves “systematic official action [that] frustrates a plaintiff

or plaintiff class from preparing and filing suits at the present

time.” Id. at 413. The second category of such claims are those

in which a specific case “cannot now be tried (or tried with all

material evidence), no matter what official action may be in the

future” due to official action in the past. Id. at 414. “Whether

an access claim turns on a litigating opportunity yet to be gained

or an opportunity already lost, the very point of recognizing any

access claim is to provide vindication for a separate and distinct

right to seek judicial relief for some wrong.” Id. at 415. Here,

as explained at length in this brief, Plaintiffs do have access to

the courts after complying with an administrative process. Reduced

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to its essence, Plaintiffs’ access claim is really an attack on the procedure for resolving any disputes they have with respect to the propriety of a developmental center admission or retention. However, neither the Constitution nor the ADA require indulgence of Plaintiffs’ procedural preferences.
The purpose of the ADA is to provide for enforcement of the Fourteenth Amendment’s command that “all persons similarly situated should be treated alike.” Lane, supra at 521. Thus, whether analyzed under the ADA or the Equal Protection Clause of the Fourteenth Amendment, the issue is the same – whether a “classification based on a disability lacks a rational relationship to a legitimate governmental purpose.” Ibid.
A rational basis review does not authorize the courts to substitute their own judgment for the wisdom, fairness or logic of legislative choices. Heller v. Doe, 509 U.S. 312, 319 (1993). State classifications that do not affect fundamental rights are accorded a strong presumption of validity. Id. Moreover, a State has no obligation to articulate the purpose or rationale supporting the classification or produce any evidence in support of its determination. Id. at 320. Rather, the “burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Id.
Here, the State could have rationally determined that the inherent differences between an offer of a voluntary admission to a developmental center and an involuntary commitment to a
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psychiatric hospital warranted judicial review for the latter and
administrative review, followed by judicial appellate review, for
the former. See Heller, supra, 509 U.S. at 324-25 (rejecting on
this basis an equal protection challenge to different burdens of
proof that Kentucky’s statutory scheme provided for involuntary
commitments of the mentally ill and mentally retarded). Thus,
plaintiffs’ ADA and Equal Protection claims must also be dismissed.
POINT IV
DEFENDANTS ARE IMMUNE FROM SUIT UNDER TITLE II OF THE ADA AND SECTION 504 OF THE REHABILITATION ACT.
A. Congress Failed to Abrogate State Sovereign Immunity under Title II of the ADA and Section 504 of the Rehabilitation Act.
To the extent that the complaint seeks relief from Defendants
pursuant to Title II of the ADA and Section 504 of the
Rehabilitation Act, the suit is constitutionally barred because the
State of New Jersey and its officials are immune from suit. The
Eleventh Amendment to the United States Constitution makes explicit
reference to the States' immunity from suits:
The Judicial Power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. [U.S. Const. Amend. XI].
The phrase "Eleventh Amendment immunity" is
something of a misnomer, for the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution's structure, and its history, and the
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authoritative interpretations by [the Supreme Court] make clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today ... except as altered by the plan of the Convention or certain constitutional Amendments. [Alden v. Maine, 527 U.S. 706, 712-13 (1999)]. Although States enjoy sovereign immunity from suit, Congress does have limited authority to abrogate this immunity and subject non-consenting States to suit in federal court pursuant to the Enforcement Clause of the Fourteenth Amendment. Tennessee v. Lane, 541 U.S. 509, 517-20 (2004); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 59 (1996). In assessing whether Congress has validly abrogated the states' sovereign immunity, the court must answer two questions: (1) whether Congress has unequivocally expressed its intent to abrogate the immunity and (2) whether Congress acted pursuant to a valid exercise of power. Lane, supra, 541 U.S. at 517; Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627, 635 (1999) (hereinafter "Florida Prepaid"); Seminole Tribe, supra, 517 U.S. at 55. Although in enacting the ADA and the Rehabilitation Act, Congress unequivocally expressed its intent to abrogate the immunity of the states, see 42 U.S.C. § 12202 (ADA) ("A state shall not be immune under the Eleventh Amendment"); 42 U.S.C. § 2000d-7(a)(1) (Rehabilitation Act) ("A State shall not be immune under the Eleventh Amendment . . . from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973."), the second
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prong of the test--whether Congress acted pursuant to a valid exercise of power--has not been met for either of the statutes, which were passed pursuant to the Fourteenth Amendment.
The Supreme Court provided the framework for examining the scope of Congress's authority under the Fourteenth Amendment in Boerne v. Flores, 521 U.S. 507 (1997), superceded by statute on other grounds. See also Lane, supra, 541 U.S. 520; Board of Trustees v. Garrett, 531 U.S. 356 (2001) (holding that Title I of the ADA exceeded Congress's authority to abrogate the states' sovereign immunity) (hereinafter "Garrett"). The Boerne framework rests on the basic principle that the Court is the ultimate authority on the scope of the Fourteenth Amendment. Thus, Congress may not define or declare the rights under the Fourteenth Amendment because Congress's power under § 5 is limited to the remedial power of enforcing the provisions of the Fourteenth Amendment. Boerne, supra, 521 U.S. at 520 (citing South Carolina v. Katzenbach, 383 U.S. 301, 326 (1966)). A statute that crosses the line beyond Congress' § 5 power and makes a substantive change in the governing law cannot be upheld. Ibid. The Court noted that the line is not always easy to draw, but required that there must be “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect.” Ibid.; Accord Lane, supra, 541 U.S. at 520.
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In Boerne, the Court held that the Religious Freedom Restoration Act of 1993 (“RFRA”) was beyond Congress’ authority to abrogate the states’ sovereign immunity. The Court came to the conclusion that Congress crossed the line of its power when it passed RFRA because (1) it was enacted without any findings on the existence of widespread violations of any constitutional right that the Supreme Court has recognized, and (2) the RFRA created rights that far exceeded any the Supreme Court had previously read the First Amendment to provide. Boerne, supra, 521 U.S. at 532, 117.
After deciding Boerne, the Supreme Court further explained the “congruence and proportionality” framework in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000). In Kimel, the Court concluded that the Age Discrimination in Employment Act ("ADEA") is not appropriate enforcement legislation because the substantive requirements the ADEA imposes on state governments are far greater than any restrictions that could have been imposed by the Equal Protection clause of the Fourteenth Amendment. Kimel, supra, 528 U.S. at 82. To reach this conclusion, the Court compared the analysis of an age discrimination claim under the Equal Protection Clause which would only receive rational basis scrutiny with a presumption of constitutionality, thus upholding age classifications in many instances, to the analysis of an ADEA claim, where the burden for the state was much higher, which, in effect, disallowed the classification in many instances. Ibid. Moreover, the Kimel Court examined the legislative record to
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consider the appropriateness of the remedial measures in light of the evil presented. Id. at 89 (noting that "Congress never identified any pattern of age discrimination by the states, much less any discrimination by states whatsoever that rose to the level of constitutional violation"). As the Boerne Court had explained, specific findings made before passing the Voting Rights Act were necessary. Boerne, supra, 521 U.S. at 532.
In 2004, the Supreme Court in Lane altered the Boerne analysis by allowing a statute to be considered part by part, for congruence and proportionality. In Boerne, the Court considered the whole of the statute, and its sweeping nature, when determining congruence and proportionality. See Boerne, supra, 521 U.S. at 532 (noting “Sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. RFRA's restrictions apply to every agency and official of the Federal, State, and local Governments” as part of the basis for the determination that RFRA is not congruent and proportional to Congress’s Fourteenth Amendment powers). In Lane the Court held that although Title II of the ADA ”reaches a wide array of official conduct in an effort to enforce an equally wide array of constitutional guarantees,” that wide array does not negatively impact on congruence and proportionality analysis, but requires that Title II be examined in light of the particular issue on review. Lane, supra, 541 U.S. at 530-31.
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In analyzing the issue presented here, the first step that must be taken is to identify the Fourteenth Amendment "evil" or "wrong" that Congress intended to remedy. With the ADA, Congress intended to remedy discrimination against the disabled. Title II of the ADA specifically prohibits discrimination by pubic entities. In enacting the ADA, Congress did make substantial findings about many forms of discrimination against the disabled, but, as in Kimel, Congress did not make any findings about particular state laws or specific state actions which violated the Constitution. See Garrett, supra, 531 U.S. 356; Alsbrook v. City of Maumelle, supra, 184 F.3d 999, 1009-1010 (8th Cir. 1999) ("In the present case, it cannot be said that Title II identifies or counteracts particular state laws or specific state actions which violate the Constitution. . . . We do not think that the legislative record of the ADA supports the proposition that most state programs and services discriminate arbitrarily against the disabled."); see also, Lavia v. Pennsylvania Dep’t of Corr. , 224 F.3d 190, 204 (3d Cir 2000) (ADA Title I); Erickson v. Board of Governors of State Coll. & Univ For Northeastern Ill., 207 F.3d 945, 951 (7th Cir. 2000); (ADA Title I) Stevens v. Illinois Dep’t of Transp., 210 F.3d 732, 739-40 (7th Cir. 2000) (ADA Title I), cert. denied, 531 U.S. 1190 (2001). The Stevens court put its finger on an important issue in examining the ADA: "[V]irtually every State in the Union has promulgated state statutes prohibiting discrimination against
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the disabled ...." 210 F.3d at 739-40. Congress found no evidence that the states were ignoring or violating their own laws. Id.
New Jersey has laws protecting persons with developmental disabilities and preventing discrimination against them. N.J.S.A. 30:6D-2 and 17 set forth the rights of individuals with developmental disabilities that are receiving services from the State. This includes a requirement similar to the ADA, in that developmentally disabled individuals are entitled to receive services “in a manner least restrictive of personal liberty.” N.J.S.A. 30:6D-17. In addition, the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., prohibits discrimination against the disabled and provides for civil damages and other judicial relief.
Given the lack of evidence of any state laws passed specifically to discriminate against the disabled, the State legislative response to the plight of the disabled, and the lack of any evidence of a pattern of discrimination by State actors against the disabled, it cannot be shown that either the ADA or Section 504 of the Rehabilitation Act are proportional responses to the “evil” identified.
Moreover, the ADA does not meet the other "congruence and proportionality" standards outlined in Boerne and Lane. The central issue is whether Congress, consistent with the Fourteenth Amendment, could increase the level of judicial scrutiny for states' actions that incidentally burden disabled persons. See
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Garrett, supra 531 U.S. 356; Alsbrook, 184 F.3d at 1009. Under the Boerne framework, § 5 enactments must target unconstitutional state action, but the Constitution has given state governments significant latitude in dealing with the problems of individuals with disabiliies. Brown v. North Carolina Div. of Motor Vehicles, 166 F.3d 698, 706 (4th Cir.), cert. denied, 531 U.S. 1190 (2001). The Supreme Court has never found the disabled to be a suspect or even a quasi-suspect class, thus state action discriminating against the disabled is subject to only a rational basis review. See Garret, supra, slip op. at 7-8 (citing City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 446 (1985)). Under the rational basis review, “courts are compelled ... to accept a legislature's generalizations even when there is an imperfect fit between means and ends." Heller v. Doe, 509 U.S. 312, 321 (1993); See also Garrett, supra, 531 U.S. 356; Mill v. Maine, 118 F.3d 37, 47 (1st Cir. 1997).
By contrast, the ADA prohibits distinctions built on generalizations, even if those generalizations would pass rational basis review. Under the ADA, a state's actions are no longer presumptively valid if rationally related to the interests they serve. Instead, the ADA requires a state to make "reasonable accommodations" for the disabled, and only once the state can show that it cannot "reasonably accommodate" will the courts validate the state's chosen policy. See 42 U.S.C. §12101, et seq. Such "searching judicial scrutiny" is incompatible with rational basis
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review. Coolbaugh v. Louisiana, 136 F.3d 430,441 (5th Cir.)(Smith, J., dissenting), cert. denied 525 U.S. 819 (1998); See also Garrett, supra, 531 U.S. 356; Lavia, supra, 224 F.3d at 200; Amos v. Maryland Dep't of Corrections, 178 F.3d 212, 225 (4th Cir. 1999)(Williams, J., dissenting); Alsbrook v. City of Maumelle, supra, 184 F.3d 999, 1011 (8 th Cir. 1999); Erickson, 207 F.3d at 949; Stevens, 210 F.3d at 738. The reasonable accommodations provisions of the ADA redefine the Equal Protection Clause, transforming it from a prohibition on invidious state action "into a charter for positive rights.” Bane v. Virginia Dep't of Corrections, 110 F. Supp.2d 469, 476 (W.D.Va. 2000) (holding that Title II of the ADA is not valid enforcement legislation under Congress's § 5 powers). Particularly in the area of placement in the most integrated setting, the ADA far surpasses any constitutional protection.
The issue in Plaintiffs’ complaint is whether Defendants are violating the ADA and its implementing regulations, and Section 504, by not providing services in the community to individuals who currently reside in developmental centers. Employing the Lane analysis reveals that the “integration mandate” of the ADA is in no way congruent and proportional to the remedies available to the Plaintiffs under the Fourteenth Amendment. Thus, in this proposed application of the ADA, Congress lacked the power to abrogate the State’s Eleventh Amendment sovereign immunity from suit.
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Olmstead and its Third Circuit progeny have gone beyond the remedies available under the Fourteenth Amendment when considering the rights of institutionalized persons. Nowhere in the Fourteenth Amendment jurisprudence concerning persons with disabilities is there a substantive requirement that states relocate individuals receiving services in developmental centers to the community, or, in the alternative, develop and implement specific plans to move all such persons. This requirement far exceeds the constitutional requirement enunciated in Cleburne, supra, which, in this context, would simply require that the manner in which the state delivers services to individuals with developmental disabilities be rationally related to a legitimate government end, and that the government end cannot be to harm this group of disabled individuals. See Cleburne, supra 473 U.S. at 446. It is certainly a legitimate government end to conserve scarce financial resources. The courts in Olmstead and Frederick L., however, condition the states’ reliance on the rational goal of conserving scarce state resources on creating and implementing a statewide plan for deinstitutionalization, which goes well beyond rational basis review.14 To the extent the ADA and Section 504 require this relief, they are grossly disproportionate to the constitutional
14 The Supreme Court and the Third Circuit did not consider whether Congress effectively abrogated states’ sovereign immunity by enacting Title II of the ADA in this line of cases. Thus, those decisions are not controlling in this matter.
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requirement that the delivery of services to individuals who are disabled be rationally related to a legitimate government end.
In sum, neither the ADA nor Section 504 are proper enforcement legislation to the extent that they concern placement in the most integrated setting under Olmstead and Frederick L. Because Congress lacked authority to abrogate the states' immunity in the present context, the states are immune from plaintiff’s ADA claims.
Similarly, Section 504 of the Rehabilitation Act has not been found to meet the Bourne test for congruence and proportionality such that it is a valid exercise of Congress’s powers under the Fourteenth Amendment. See A.W. v. Jersey City Public Schools, 341 F.3d 234, 239 (3d Cir. 2003) (not reaching the issue of abrogation) (citing Koslow v. Pennsylvania, 302 F.3d 161, 170 (3d Cir 2002), cert. denied, 537 U.S. 1232 (2003)). Particularly here, where the Rehabilitation analysis is identical to the ADA analysis, it is evident that, for abrogation analysis, they must be treated in the same manner.
Further, while Koslow, supra, relying on Supreme Court case law, concludes that the state’s immunity is impliedly waived as to Section 504 the Rehabilitation Act, that analysis is suspect in light of the specific language of the Rehabilitation Act, and the recent Third Circuit decisions interpreting Olmstead, and Lane, supra.
As discussed, Plaintiffs’ amended complaint asserts ADA enforcement rights that are beyond Congress’s § 5 powers. The
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Court has held that the states’ eleventh amendment immunity must be honored if there is no federal right for the plaintiff to vindicate. See Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 106 (1984) (holding that a plaintiff cannot vindicate state rights as part of a Young suit). Under these principles, Defendants are immune from suit because the ADA does not provide an enforceable federal right for plaintiff to pursue under the facts alleged.
B. The State Did Not Waive Sovereign Immunity by Accepting Funds under Section 504 of the Rehabilitation Act.
"State sovereign immunity, no less than the right to trial by jury in criminal cases, is constitutionally protected." College Savings Bank, supra, 527 U.S. at 682. (citations omitted). Thus, “‘the test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one.’” Id. at 675 (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985), superceded by statute on other grounds). A waiver of sovereign immunity must be "unequivocally expressed in statutory text, and will not be implied." Lane v. Pena, 518 U.S. 187, 192 (1996) (internal citations omitted). If ambiguous, a statute must be construed in favor of immunity. See United States v. Williams, 514 U.S. 527, 531 (1995), superceded by statute on other grounds. If a statute that supposedly waives immunity has a "plausible" alternate reading, a finding of waiver must be rejected. United States v. Nordic Village, Inc., 503 U.S. 30, 37 (1992), superceded
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by statute on other grounds. A “plausible" alternate reading is enough to establish that a "reading imposing monetary liability on the Government is not 'unambiguous' and therefore should not be adopted." Id.
The Supreme Court has vigorously reaffirmed the principle that a purported “waiver” of state sovereign immunity will be "strictly and narrowly construed" against waiver. See Lane v. Pena, supra, 518 U.S. at 192; Williams, 514 U.S. at 531; Nordic Village, 503 U.S. at 33; Ardestani v. I.N.S., 502 U.S. 135, 137 (1991). This principle of strict statutory construction against waiver applies whether or not the legislation in question is remedial. See id. If the text of the statute itself does not clearly and unambiguously contain a waiver provision, courts cannot find waiver even if such an interpretation would foster the general purpose of the statute. See Ardestani, supra, 502 U.S. at 138. Nor may courts look to the legislative history to find a waiver of sovereign immunity if such a provision is not expressly stated in the text of the statute itself. See Lane v. Pena, supra, 518 U.S. at 192.
Accordingly, if Congress intends to condition receipt of funds on the states’ waiver of sovereign immunity, Congress must unequivocally express the conditions of receipt and what conduct violates those conditions so that the states may enter into the agreement fully aware of the consequences. See Barnes v. Gorman, 536 U.S. 181, 186-88 (2002); Davis v. Monroe County Bd. of Educ.,
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526 U.S. 629, 640 (1999) (citing Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981)). "[T]he mere receipt of federal funds cannot establish that a State has consented to suit in federal court." Atascadero, 473 U.S. at 246-47. The State must make a "clear declaration" that it intends to submit itself to the federal courts' jurisdiction. College Savings Bank, supra, 527 U.S. at 679.
Courts may not rely solely on the conditions expressed in a Congressional Act on the waiver of sovereign immunity. Id. Without a clear declaration by the states of consent, such language merely constitutes an implied or constructive waiver, and not evidence of the "clear declaration" from the states required by the Supreme Court. Id.
Based on these exacting standards, the Supreme Court articulated certain restrictions on the spending power that “guide” the waiver analysis. College Savings Bank, supra, 527 U.S. at 676 (citing South Dakota v. Dole, 483 U.S. 203 (1987)). First, "the exercise of the spending power must be in pursuit of 'the general welfare.'" Id. (citing Helvering v. Davis, 301 U.S. 619, 640-41 (1937)). Second, Congress must unambiguously "condition the States' receipt of federal funds," on the states' consent to the federal condition so that the states may "'exercise their choice knowingly, cognizant of the consequences of their participation.'" Id. (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). Third, "conditions on federal grants" must be related
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"'to the federal interest in particular national projects or programs.'" Id. at 207-8 (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978)).
The Court also instructed "that other constitutional provisions may provide an independent bar to the conditional grant of federal funds." Id. at 208 (citing Lawrence County v. LeadDeadwood Sch. Dist., 469 U.S. 256, 269-70 (1985) (additional citations omitted)). Finally, the Court stated that the financial assistance offered by Congress may not "'pass the point at which 'pressure turns into compulsion.'" Id. at 203 (quoting Steward Mach. Co. v. Davis, 301 U.S. 548, 590 (1937)).
Congress did not make its intent to have states waive their sovereign immunity clear under Section 504. Nor did the State make a clear declaration that it knowingly and voluntarily consented to suit in Federal court under Section 504. Indeed, based on the text and history of Section 504 and its expansion of rights under Frederick L., supra, the State could not make a knowing and voluntary waiver of immunity as required by the Supreme Court. Section 504 and its recent expansion for rights under Frederick L. fails the exacting standards announced above by the Supreme Court.
In the Rehabilitation Act, Congress used the language of abrogation, not waiver. The Rehabilitation Act states:
A state shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act. 42 U.S.C. §2000d-7(a)(1).
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That language is identical to the abrogation language in other federal statutes. See e.g. 20 U.S.C. §1403 (Individuals with Disabilities Education Act). "It is a general rule of statutory construction that where Congress has clearly stated its intent in the language of a statute, a court should not inquire further." Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 788 (Fed. Cir.), cert. denied, 488 U.S. 943 (1988) (citations omitted). In the Rehabilitation Act, Congress explicitly stated its intent to abrogate state sovereign immunity through its §5 enforcement powers of the Fourteenth Amendment.
The State of New Jersey could not knowingly waive its Constitutional right of immunity from suit in Federal court for violations of Frederick L. under the Rehabilitation Act, because those violations were unknown at the time that the State accepted federal funds.
Similarly, in Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F.3d 98 (2d Cir. 2001), the Second Circuit held that the State of New York could not knowingly waive its sovereign immunity against suit under Section 504 when it accepted Federal funds for SUNY. Garcia, supra, 280 F.3d at 114. Specifically, the court found that
[a]t the time that New York accepted the conditioned funds, title II of the ADA was reasonably understood to abrogate New York's sovereign immunity under Congress's Commerce Clause authority. Indeed, the ADA expressly provided that "[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation . . ." 42 U.S.C.
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§12202. Since, as we have noted, the proscriptions of Title II and §504 are virtually identical, a state accepting conditioned federal funds could not have understood that in doing so it was actually abandoning its sovereign immunity from private damages suits, College Savings Bank, 527 U.S. at 682, since by all reasonable appearances state sovereign immunity had already been lost. [Id. (additional citation omitted)].
The Garcia Court also offered an intelligent criticism of other
courts finding that mere acceptance of federal funds constitutes a
waiver of sovereign immunity. See id., at 115, n. 5 (citing Jim C.
v. United States, 235 F.3d 1079, 1082 (8th Cir. 2000) (en banc),
cert. denied, 533 U.S. 949 (2001); Clark v. California, 123 F.3d
1267, 1271 (9th Cir. 1997), cert. denied sub nom., Wilson v.
Armstrong, 1524 U.S. 937 (1998). Significantly, the Second Circuit
noted that
[t]hese cases are unpersuasive because they focus exclusively on whether Congress clearly expressed its intention to condition waiver on the receipt of funds and whether the state in fact received the funds. None of these cases considered whether the state, in accepting the funds, believed it was actually relinquishing its right to sovereign immunity so as to make the consent meaningful as the Supreme Court required in College Savings Bank, 527 U.S. at 682. [Id.]
Similarly, here, the State of New Jersey could not be expected
to understand that it was relinquishing its right to sovereign
immunity for violations of Federick L., supra, by accepting funds
under the Rehabilitation Act because those sweeping obligations
were not in existence when the State accepted the funds.
Finally, the waiver analysis for a statute as sweeping as the
Rehabilitation Act, where the waiver is based on the acceptance of
any federal funds, whatsoever, is due to be revisited in light of
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Tennessee v. Lane, supra. The analysis in Lane requires that each particular application of a statute be examined to determine if Congress had the power to abrogate immunity with regard to that particular allegation. Lane, supra, 541 U.S. at 531. Similarly, a State’s knowing and intelligent waiver should be analyzed based on the allegations, and whether the State was aware that acceptance of federal funds could subject it to suit for that particular allegation.
CONCLUSION For the foregoing reasons, Defendants’ Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56 should be granted and Plaintiffs’ Amended Complaint should be dismissed with prejudice.
PAULA T. DOW ATTORNEY GENERAL OF NEW JERSEY

Date:

By: s/ Gerard Hughes Gerard Hughes Deputy Attorney General Attorney for Defendants
March 25, 2010

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 Case 3:05-cv-04723-AET-TJB Document 63 Filed 05/24/10 Page 1 of 42 PageID: 2665

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

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

____________________________________

:

: HON. ANNE E. THOMPSON

:

DISABILITY RIGHTS NEW

:

JERSEY, INC.

:

Civil Action No. 05-4723

:

Document Electronically Filed

:

Plaintiff,

:

:

v.

:

:

JENNIFER VELEZ, in her

:

official capacity as

:

Commissioner of the New

:

Jersey Department of

:

Human Services, and the

:

STATE OF NEW JERSEY

:

:

Defendants.

:

:___________________________________

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

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TABLE OF CONTENTS

PAGE

STATEMENT OF THE ISSUES.................................................................................2

INTRODUCTION ......................................................................................................3

ARGUMENT

I PLAINTIFF’S CLAIMS AGAINST A STATE

OFFICIAL

FALL WITHIN THE EXCEPTION

TO ELEVENTH AMENDMENT IMMUNITY

ESTABLISHED IN EX PARTE YOUNG ............................................6

II THE STATE WAIVED ELEVENTH AMENDMENT IMMUNITY TO CLAIMS ARISING UNDER SECTION 504 OF THE REHABILITATION ACT ...............................................9

A. The State’s Waiver ........................................................................9

B. If This Court Concludes That The State Waived Eleventh Amendment Immunity With Respect To Section 504 Claims, It Should Permit Plaintiff To Proceed Only On That Ground ................................................12

III CONGRESS PROPERLY ABROGATED ELEVENTH AMENDMENT IMMUNITY WITH REGARD TO CLAIMS ARISING UNDER TITLE II OF THE ADA .........................................14

A. Before Reaching The Abrogation Issue, This Court Must Follow The Steps Established In United States v. Georgia ...............................................................14

B. Congress Properly Abrogated Eleventh Amendment Immunity For Title II Claims...................................15

1. Tennessee v. Lane...............................................................15

2. Constitutional Rights Implicated ........................................19

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TABLE OF CONTENTS (continued):

PAGE

3. Historical Predicate ...........................................................21

a. Lane Conclusively Established The Adequacy Of The Predicate For Title II’s Application To Discrimination In All Public Services..................................................................... 21

b. Historical Discrimination Against People With Disabilities Subject To Institutionalization ...................................................23

4. Congruence And Proportionality .......................................29

CONCLUSION ...........................................................................................................35

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TABLE OF AUTHORITIES

CASES:

PAGE

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

Barnes v. Gorman, 536 U.S. 181 (2002) ...................................................................5

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

Blodgett v. Holden, 275 U.S. 142 (1927) ................................................................13

Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) ........................19, 34

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

Bowers v. National Collegiate Athletic Ass’n, 475 F.3d 524 (3d Cir. 2007) ..........12

Buck v. Bell, 274 U.S. 200 (1927) ...........................................................................25

City of Boerne v. Flores, 521 U.S. 507 (1997)........................................................17

City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) ......... 19, 24-25

Clark v. Cohen, 794 F.2d 79 (3d Cir. 1986)............................................................20

College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999).......................................................................................11

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

Employees of Dep’t of Pub. Health & Welfare v. Department of Pub. Health & Welfare, 411 U.S. 279 (1973)....................................................................24

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

Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995) .............................................. 11-12 -iii-

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CASES (continued):

PAGE

Hutto v. Finney, 437 U.S. 678 (1978) .......................................................................6

Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997) ............................... 7-8

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

Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000)..............................................16

Koslow v. Commonwealth of Pa., 302 F.3d 161 (3d Cir. 2002), cert. denied, 537 U.S. 1232 (2003)..................................................................9

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

Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988)..........14

MCI Telecomm. Corp. v. Bell Atlantic-Pa., 271 F.3d 491 (3d Cir. 2001) ............6, 8

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

McDonald v. Commonwealth of Pa., Dep’t of Pub. Welfare, 62 F.3d 92 (3d Cir. 1995) ..............................................................................13

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

Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003) .................... 29, 31- 33

O’Connor v. Donaldson, 422 U.S. 563 (1975).................................................. 20,31

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

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

Palmore v. Sidoti, 466 U.S. 429 (1984)...................................................................19

Parham v. J.R., 442 U.S. 584 (1979).......................................................................30

Pennsylvania Fed’n of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310 (3d Cir. 2002) ............................................................................7
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CASES (continued):

PAGE

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

Romer v. Evans, 517 U.S. 620 (1996) .....................................................................19

South Carolina v. Katzenbach, 383 U.S. 301 (1966) ..............................................21

South Carolina Wildlife Fed’n v. Limehouse, 549 F.3d 324 (4th Cir. 2008)............7

Spector Motor Serv. v. McLaughlin, 323 U.S. 101 (1944)...................................... 13

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

Thomas S. by Brooks v. Flaherty, 902 F.2d 250 (4th Cir. 1990).............................20

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

United States v. Virginia, 518 U.S. 515 (1996).......................................................32

Verizon Md., Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635 (2002).............. 6-8

Youngberg v. Romeo, 457 U.S. 307 (1982) .......................................................20, 31

STATUTES:

28 U.S.C. 2403(a) ......................................................................................................2

29 U.S.C. 794(a) ........................................................................................................5

29 U.S.C. 794(b) ........................................................................................................5

42 U.S.C. 1997b(a) ..................................................................................................27

42 U.S.C. 2000d-7....................................................................................................10

42 U.S.C. 12101(a)(3)..............................................................................................22

42 U.S.C. 12102(1) ....................................................................................................3 -v-

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STATUTES (continued):

PAGE

42 U.S.C. 12131(1)(A)...............................................................................................3

42 U.S.C. 12131(1)(B)...............................................................................................3

42 U.S.C. 12131(2) ....................................................................................................4

42 U.S.C. 12132.........................................................................................................3

42 U.S.C. 12133...................................................................................................4, 13

42 U.S.C. 12134.........................................................................................................4

42 U.S.C. 12202...................................................................................................4, 15

REGULATIONS:

28 C.F.R. 35.130(b)(1)(i) ...........................................................................................4

28 C.F.R. 35.130(b)(1)(iii).........................................................................................4

28 C.F.R. 35.130(b)(1)(vii)........................................................................................4

28 C.F.R. 35.130(b)(7).........................................................................................4, 11

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

LEGISLATIVE HISTORY:

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

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

3 Staff of H. Comm. on Educ. and Labor, 101st Cong., 2d Sess., Legislative History of Pub. L. No. 101-336: The Americans with Disabilities Act (Comm. Print 1990) .......................................................................................25

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MISCELLANEOUS:

PAGE

M. Burgdorf & R. Burgdorf, A History of Unequal Treatment: The Qualifications of Handicapped Persons As A "Suspect Class" Under The Equal Protection Clause, 15 Santa Clara Lawyer 855 (1975) ......... 25-26

Note, Mental Disability and the Right to Vote, 88 Yale L.J. 1644 (1979) ..............25

Timothy M. Cook, The Americans with Disabilities Act: The Move to Integration, 64 Temp. L. Rev. 393 (1991) ....................................................25

United States Commission On Civil Rights, Accommodating The Spectrum Of Individual Abilities (1983)..................................................................24, 26

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On April 5, 2010, the Court issued an order certifying that this case involves constitutional challenges to federal statutes. Specifically, defendants assert that they are immune under the Eleventh Amendment from private suits under Title II of the ADA and Section 504 of the Rehabilitation Act. As a result, the United States intervened in this matter pursuant to 28 U.S.C. 2403(a) in order to defend the constitutionality of (1) conditioning the receipt of federal financial assistance on a state’s waiver of its sovereign immunity to claims under Section 504 of the Rehabilitation Act; and (2) the abrogation of Eleventh Amendment immunity for claims under Title II of the ADA. The United States now respectfully submits this brief in opposition to the Eleventh Amendment arguments asserted in defendants’ motion for summary judgment.
STATEMENT OF THE ISSUES 1. Whether plaintiff’s claims against a state official arising under Title II of the ADA and Section 504 of the Rehabilitation Act fall within the exception to Eleventh Amendment immunity established in Ex parte Young. 2. Whether plaintiff’s Rehabilitation Act claim against the State may proceed because (a) the State waived Eleventh Amendment immunity by accepting federal funds, and (b) the statutory provision waiving Eleventh Amendment immunity for suits under Section 504 is valid Spending Clause legislation.
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3. Whether plaintiff has stated a valid ADA claim against the State, and, if so, whether the statutory provision abrogating Eleventh Amendment immunity for suits under Title II of the ADA is a valid exercise of Congress’s authority under Section 5 of the Fourteenth Amendment, as applied in the context of integration claims.
INTRODUCTION 1. This suit was brought under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. 12131 et seq. That Title provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. 12132. A “public entity” is defined to include “any State or local government” and its components. 42 U.S.C. 12131(1)(A) and (B). The term “disability” is defined as “a physical or mental impairment that substantially limits one or more major life activities of [an] individual; * * * a record of such an impairment; or * * * being regarded as having such an impairment.” 42 U.S.C. 12102(1). A “qualified individual with a disability” is a person “who, with or without
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reasonable modifications * * * meets the essential eligibility requirements” for the governmental program or service. 42 U.S.C. 12131(2).1
The discrimination prohibited by Title II includes, among other things, denying a government benefit to “a qualified individual with a disability” because of his disability, providing him with a lesser benefit than is given to others, or limiting his enjoyment of the rights and benefits provided to others. See, e.g., 28 C.F.R. 35.130(b)(1)(i), (iii), and (vii). In addition, a public entity must “make reasonable modifications in policies, practices, or procedures” if necessary to avoid the exclusion of individuals with disabilities if such modifications can be accomplished without “fundamentally alter[ing] the nature of the service, program, or activity.” 28 C.F.R. 35.130(b)(7).
Title II may be enforced through private suits against public entities. See 42 U.S.C. 12133. Congress expressly abrogated the states’ Eleventh Amendment immunity to private suits in federal court. See 42 U.S.C. 12202.
2. Plaintiff also alleges a violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794. That provision states that “[n]o otherwise qualified
1 Congress instructed the Attorney General to issue regulations to implement Title II based on prior regulations promulgated under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794. See 42 U.S.C. 12134.
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individual with a disability in the United States * * * shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. 794(a). The provision applies to a “program or activity,” a term defined to include “all of the operations” of, inter alia, “a department, agency * * * or other instrumentality of a State or of a local government” “any part of which is extended Federal financial assistance.” 29 U.S.C. 794(b). Section 504 may be enforced through private suits against states or state agencies providing programs or activities receiving federal funds. See Barnes v. Gorman, 536 U.S. 181, 185 (2002).
3. This case involves the institutionalization of persons with developmental disabilities. According to the amended complaint, plaintiff seeks relief “on behalf of individuals who are unnecessarily institutionalized in the State’s seven large, congregate facilities (known as developmental centers) and who wish to reside in more integrated settings in the community.” Am. Compl. ¶ 8. Plaintiff seeks prospective relief, together with attorney’s fees and costs. Am. Compl. 23-25.
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ARGUMENT I
PLAINTIFF’S CLAIMS AGAINST A STATE OFFICIAL FALL WITHIN THE EXCEPTION TO ELEVENTH AMENDMENT IMMUNITY ESTABLISHED IN EX PARTE YOUNG Under the doctrine of Ex parte Young, “individual state officers can be sued
in their individual capacities for prospective injunctive and declaratory relief to end continuing or ongoing violations of federal law.” MCI Telecomm. Corp. v. Bell Atlantic-Pa., 271 F.3d 491, 506 (3d Cir. 2001). Here, the amended complaint seeks prospective relief against both the state and a state official (Velez) for alleged ongoing violations of federal law. See Am. Compl. 23-25. The claims against Velez fall squarely within the Ex parte Young exception to the Eleventh Amendment.3
“In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Public Serv. 3 Plaintiff also seeks attorney’s fees and costs, but this does not alter the Ex parte Young analysis. See Missouri v. Jenkins, 491 U.S. 274, 279 (1989) (“[A]n award of attorney’s fees ancillary to prospective relief is not subject to the strictures of the Eleventh Amendment.”); Hutto v. Finney, 437 U.S. 678, 695-698 (1978).
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Comm’n of Md., 535 U.S. 635, 645 (2002) (internal quotation marks and citation
omitted). See also Pennsylvania Fed’n of Sportsmen’s Clubs, Inc. v. Hess, 297
F.3d 310, 324 (3d Cir. 2002) (“In determining whether the Ex parte Young doctrine
avoids an Eleventh Amendment bar, the Supreme Court has made it quite clear that
‘a court need only conduct a straightforward inquiry into whether [the] complaint
alleges an ongoing violation of federal law and seeks relief properly characterized
as prospective.’”) (internal quotation marks and citation omitted).4 In particular,
“the inquiry into whether suit lies under Ex parte Young does not include an
analysis of the merits of the claim.” Verizon, 535 U.S. at 646. See also McCarthy
v. Hawkins, 381 F.3d 407, 415-416 (5th Cir. 2004).5
4 See also South Carolina Wildlife Fed’n v. Limehouse, 549 F.3d 324, 332 (4th Cir. 2008) (“For purposes of Eleventh Amendment analysis, it is sufficient to determine that [plaintiff] alleges facts that, if proven, would violate federal law and that the requested relief is prospective.”); League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 474 (6th Cir. 2008) (“The focus of the inquiry remains on the allegations only; it does not include an analysis of the merits of the claim.”) (internal quotation marks and citation omitted); In re Deposit Ins. Agency, 482 F.3d 612, 623 (2d Cir. 2007) (“When a court reviews the legal merits of a claim for purposes of Ex parte Young, it reviews only whether a violation of federal law is alleged.”); Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 496 (4th Cir. 2005) (“We do not consider the merits of the plaintiff’s claims; it is enough that the complaint alleges an ongoing violation of federal law.”). 5 The Supreme Court’s decision in Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997), is not to the contrary. As the Third Circuit has noted, “Justice Kennedy’s opinion in Coeur d’Alene cannot be read to establish the controlling
(continued…)
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Plaintiff’s claims against Velez fall squarely within the Ex parte Young exception. Accordingly, this Court should reach the same conclusion it did in New Jersey Protection & Advocacy, Inc. v. Velez, No. 3:08-cv-01858-AET-LHG (NJP&A), and reject Eleventh Amendment arguments as to the claims asserted against Velez on the basis of Ex parte Young. See NJP&A July 23 Order 5-7. With regard to the claims asserted against the State, this Court should follow the steps set forth in Sections II and III below. 6
(…continued) standard for Young. Seven Justices rejected such a balancing and agreed that Young generally should apply when an action against a state officer alleges an ongoing violation of federal law and seeks prospective relief.” MCI Telecomm. Corp., 271 F.3d at 507. This view subsequently was reinforced by the Supreme Court’s decision in Verizon. See 535 U.S. at 645 (citing concurring and dissenting opinions from Coeur d’Alene). Accordingly, Verizon – not Justice Kennedy’s opinion for two justices in Coeur d’Alene – provides the relevant standard for addressing the Ex parte Young issue presented in this case. 6 If this Court concludes that the claims against Velez fall outside the scope of Ex parte Young, the analysis below would apply to those claims as well.
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II THE STATE WAIVED ELEVENTH AMENDMENT IMMUNITY TO CLAIMS ARISING UNDER SECTION 504 OF THE REHABILITATION
ACT A. The State’s Waiver
The Third Circuit already has considered a number of challenges to Section 504 of the Rehabilitation Act, including the following: (1) whether the state’s acceptance of federal funds “means it waived its Eleventh Amendment immunity for Rehabilitation Act suits against a department receiving those funds,” (2) “whether the Rehabilitation Act, especially 42 U.S.C. § 2000d-7, imposes an ‘unconstitutional condition’ on the [State’s] receipt of federal funds,” and (3) “whether the Rehabilitation Act is valid legislation under the Spending Clause.” Koslow v. Commonwealth of Pa., 302 F.3d 161, 167 (3d Cir. 2002), cert. denied, 537 U.S. 1232 (2003).
The panel in Koslow concluded that (1) “if a state accepts federal funds for a specific department or agency, it voluntarily waives sovereign immunity for Rehabilitation Act claims against the department or agency – but only against that department or agency,” 302 F.3d at 171; (2) the Rehabilitation Act’s conditioning of receipt of federal funds upon waiver of Eleventh Amendment immunity is not
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an unconstitutional condition, id. at 174; and (3) the Rehabilitation Act is valid Spending Clause legislation, id. at 175-176. The ruling in Koslow is controlling.
Defendants argue that the State did not knowingly waive its Eleventh Amendment immunity to suit under the Rehabilitation Act because it could not foresee how the law would later be interpreted. See Br. in Supp. of Defs.’ Mot. for S.J. 85-87. This argument fails.
The relevant statute provides that “[a] State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973.” 42 U.S.C. 2000d-7. That provision clearly put the state on notice that, by accepting federal funds, it was subjecting itself to suit in federal court for violations of Section 504. That is all the notice that is required for a valid waiver of immunity. The state need not know how the law would later be interpreted, nor have knowledge of every conceivable interpretation of the statute in order for its waiver to be knowing, as defendants’ argument implies. Rather, the state need only be on notice that its acceptance of federal funds generally subjects it to suit in federal court for violation of the statute at issue. See A.W. v. Jersey City Pub. Sch., 341 F.3d 234, 240 (3d Cir. 2003) (“The state’s ‘acceptance of the funds entails an agreement’ to the condition of consenting to suit in federal court.”) (quoting
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College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S.
666, 686 (1999)); id. at 241 (“In the context of the gift of federal funds, the clear
congressional statement that entitlement to federal funds is conditioned on the
waiver of immunity, taken together with the state’s receipt of these funds,
constitute a declaration of the state’s submission to federal-court jurisdiction.”);
see also Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 279 (5th Cir. 2005) (“In our
reading of [Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981)], the
only ‘knowledge’ that the Court is concerned about is a state’s knowledge that a
Spending Clause condition requires waiver of immunity, not a state’s knowledge
that it has immunity that it could assert.”).7 Defendants’ argument therefore fails.8
7 Even if knowledge of potential interpretations of the statute were required, that standard is satisfied in this case. The relevant regulations provide notice. See 28 C.F.R. 35.130(d) (“A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”); 28 C.F.R. 35.130(b)(7) (“A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.”). In addition, the primary point of Olmstead is the importance of integration, and the language of the opinion is broad enough to have put the state on notice that qualified individuals should not be institutionalized unnecessarily. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 601 (1999). And, even before Olmstead, the Third Circuit addressed the integration mandate in Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995), holding that “the ADA and its attendant regulations clearly define
(continued…)
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B. If This Court Concludes That The State Waived Eleventh Amendment Immunity With Respect To Section 504 Claims, It Should Permit Plaintiff To Proceed Only On That Ground
Since it is clear under Third Circuit precedent that Section 504 of the
Rehabilitation Act is valid and that the State waived immunity by accepting federal
funds, this Court may proceed to determine the substantive claims under Section
504 and need not address the validity of the abrogation of immunity under Title II
of the ADA. That approach flows from the general principle that courts should not
reach questions in advance of the necessity of deciding them.
The substantive provisions of Section 504 and Title II are the same for
purposes of establishing liability in this case. See Bowers v. National Collegiate
Athletic Ass’n, 475 F.3d 524, 535 n.12 (3d Cir. 2007) (“Although the language of
the ADA and Rehabilitation Act differs, the standards for determining liability (…continued) unnecessary segregation as a form of illegal discrimination against the disabled.” Id. at 333.
8 If Congress has the power under the Fourteenth Amendment to abrogate a state’s Eleventh Amendment immunity to claims under Title II of the ADA, it has the same power with respect to claims under Section 504. See Pace, 403 F.3d at 301 n.5 (5th Cir. 2005) (Jones, J., concurring in part and dissenting in part) (citing cases). Accordingly, even if not waived, the state’s sovereign immunity to Section 504 claims was properly abrogated for the reasons stated in Section III.B. below with regard to the ADA. However, the United States does not believe the Court needs to reach this issue.
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under the two statutes are identical.”) (citing McDonald v. Commonwealth of Pa., Dep’t of Pub. Welfare, 62 F.3d 92, 94 (3d Cir. 1995)). This holds true with regard to the integration mandate. See Frederick L. v. Department of Pub. Welfare of the Commonwealth of Pa., 364 F.3d 487, 491-492 (3d Cir. 2004) (“[W]here appropriate for the patient, both the ADA and RA favor integrated, communitybased treatment over institutionalization.”); see also Pennsylvania Protection & Advocacy, Inc. v. Pennsylvania Dep’t of Pub. Welfare, 402 F.3d 374, 379 & n.3 (3d Cir. 2005). It also holds true with regard to remedies. See 42 U.S.C. 12133; Bowers v. National Collegiate Athletic Ass’n, 346 F.3d 402, 419 (3d Cir. 2003) (noting that Title II “provides that the remedies, procedures and rights applicable to section 504 of the Rehabilitation Act also are applicable under Title II”) (citing 42 U.S.C. 12133).
Considering a constitutional challenge to an act of Congress is “the gravest and most delicate duty that [a] Court is called on to perform.” Blodgett v. Holden, 275 U.S. 142, 147-148 (1927) (opinion of Holmes, J.). “If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality * * * unless such adjudication is unavoidable.” Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1944). Accordingly, a “fundamental and longstanding principle of judicial
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restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988).
Because plaintiff can secure any and all relief to which it is entitled under Section 504, there is no reason for this Court to pass on the constitutionality of Title II’s abrogation of immunity. See Pace, 403 F.3d at 287-289; Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448, 455 (5th Cir. 2005).
III CONGRESS PROPERLY ABROGATED ELEVENTH AMENDMENT IMMUNITY WITH REGARD TO CLAIMS ARISING UNDER TITLE II OF
THE ADA A. Before Reaching The Abrogation Issue, This Court Must Follow The Steps
Established In United States v. Georgia If this Court determines that it must reach the ADA claim, the procedure for doing so is set forth in United States v. Georgia, 546 U.S. 151 (2006). Under Georgia, lower courts must “determine in the first instance, on a claim-by-claim basis, (1) which aspects of the State’s alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment,
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whether Congress’s purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.” 546 U.S. at 159.
Thus, in order to resolve the immunity question in the present case, this Court first must determine whether plaintiff states a claim under Title II. The Court must then determine if any valid Title II claim would independently state a constitutional claim. And finally, if plaintiff has alleged a valid Title II claim that is not also a constitutional violation, only then should this Court consider whether the prophylactic protection afforded by Title II is a valid exercise of Congress’s authority under Section 5 of the Fourteenth Amendment as applied to the “class of conduct” – here, institutionalization – at issue. Georgia, 546 U.S. at 159. B. Congress Properly Abrogated Eleventh Amendment Immunity For Title II
Claims If this Court determines that it is necessary to address defendants’ Eleventh Amendment arguments regarding the ADA claim, it should hold that the abrogation of immunity under Title II is a valid exercise of Congress’s powers under the Fourteenth Amendment. 1. Tennessee v. Lane Although the Eleventh Amendment ordinarily renders a state immune from suits in federal court by private citizens, Congress may abrogate states’ immunity
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if it “unequivocally expresse[s] its intent to abrogate that immunity” and “act[s] pursuant to a valid grant of constitutional authority.” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000). There is no question that Congress unequivocally expressed its intent to abrogate states’ sovereign immunity to claims under the ADA. See 42 U.S.C. 12202; Tennessee v. Lane, 541 U.S. 509, 517-518 (2004). Moreover, it is settled that “Congress can abrogate a State’s sovereign immunity when it does so pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment to enforce the substantive guarantees of that Amendment.” Lane, 541 U.S. at 518. Because Title II is valid legislation to enforce the Fourteenth Amendment in the context of institutionalization, the ADA abrogation provision is valid as applied to this case.
In Lane, the Supreme Court considered the claims of two plaintiffs, George Lane and Beverly Jones, “both of whom are paraplegics who use wheelchairs for mobility” and who “claimed that they were denied access to, and the services of, the state court system by reason of their disabilities” in violation of Title II. 541 U.S. at 513. Lane was a defendant in a criminal proceeding held on the second floor of a courthouse with no elevator. Ibid. “Jones, a certified court reporter, alleged that she had not been able to gain access to a number of county courthouses, and, as a result, has lost both work and an opportunity to participate in
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the judicial process.” Id. at 514. The state argued that Congress lacked the authority to abrogate the state’s Eleventh Amendment immunity to these claims. The Supreme Court in Lane disagreed. See 541 U.S. at 533-534.
To reach this conclusion, the Court applied the three-part analysis for Fourteenth Amendment legislation established by City of Boerne v. Flores, 521 U.S. 507 (1997). The Court considered: (1) the “constitutional right or rights that Congress sought to enforce when it enacted Title II,” Lane, 541 U.S. at 522; (2) whether there was a history of unconstitutional disability discrimination to support Congress’s determination that “inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation,” id. at 529; and (3) “whether Title II is an appropriate response to this history and pattern of unequal treatment,” as applied to the class of cases implicating access to judicial services. Id. at 530.
With respect to the first question, the Court found that Title II enforces rights under the Equal Protection Clause as well as an array of rights subject to heightened constitutional scrutiny under the Due Process Clause of the Fourteenth Amendment. See Lane, 541 U.S. at 522-523. With respect to the second question, the Court conclusively found a sufficient historical predicate of unconstitutional disability discrimination in the provision of public services to justify enactment of
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a prophylactic remedy pursuant to Congress’s authority under Section 5 of the Fourteenth Amendment. See id. at 523-529. And finally, with respect to the third question, the Court found that the congruence and proportionality of the remedies in Title II should be judged on a category-by-category basis in light of the particular constitutional rights at stake in the relevant category of public services. See id. at 530-531.
The Supreme Court declined to “examine the broad range of Title II’s applications all at once, and to treat that breadth as a mark of the law’s invalidity.” Lane, 541 U.S. at 530. Instead, the Court concluded that the only question before it was “whether Congress had the power under § 5 to enforce the constitutional right of access to the courts.” Id. at 531.
Viewed in light of Lane, Title II is valid Fourteenth Amendment legislation as applied to cases relating to institutionalization.11
11 The Court in Lane did not examine the congruence and proportionality of Title II as a whole because the Court found that the statute was valid Section 5 legislation as applied to the class of cases before it. Because Title II is valid Section 5 legislation in the institutionalization context, this Court need not consider the validity of Title II as a whole. The United States continues to maintain, however, that Title II as a whole is valid Section 5 legislation because it is congruent and proportional to Congress’s goal of eliminating discrimination on the basis of disability in the provision of public services – an area that the Supreme
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2. Constitutional Rights Implicated
Title II enforces the Equal Protection Clause’s “prohibition on irrational
disability discrimination,” as well as “a variety of other basic constitutional
guarantees, infringements of which are subject to more searching judicial review.”
Lane, 541 U.S. at 522-523. In the context of this case, Title II acts to enforce the
Equal Protection Clause’s prohibition against arbitrary treatment based on irrational stereotypes or hostility,12 as well as the heightened constitutional
protection applied to the “treatment of disabled persons by state agencies in a
variety of settings, including unjustified commitment, e.g., Jackson v. Indiana, 406
U.S. 715 (1972); [and] the abuse and neglect of persons committed to state mental
health hospitals, Youngberg v. Romeo, 457 U.S. 307 (1982).” Lane, 541 U.S. at
(…continued) Court in Lane determined is an “appropriate subject for prophylactic legislation” under Section 5. 541 U.S. at 529. 12 Even under rational basis scrutiny, “[m]ere negative attitudes, or fear” alone cannot justify disparate treatment of those with disabilities. Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448 (1985)). A purported rational basis for treatment of the disabled will also fail if the state does not accord the same treatment to other groups similarly situated, see id. at 366 n.4; City of Cleburne, 473 U.S. at 447-450, if it is based on “animosity,” see Romer v. Evans, 517 U.S. 620, 634 (1996), or if it simply gives effect to “private biases,” see Palmore v. Sidoti, 466 U.S. 429, 433 (1984).
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524-525. See also O’Connor v. Donaldson, 422 U.S. 563, 573-576 (1975) (unconstitutional institutionalization); Thomas S. by Brooks v. Flaherty, 902 F.2d 250 (4th Cir. 1990) (confinement when appropriate community placement available).
In Clark v. Cohen, 794 F.2d 79 (3d Cir. 1986), the Third Circuit addressed a situation involving a patient “who was committed without notice or a hearing as a result of a petition containing an incorrect diagnosis, and who was retained against her will without a hearing for over twenty-eight years.” Id. at 86. This despite the fact that she “repeatedly requested that the persons in charge of her detention arrange for such a hearing,” and those requests “were endorsed by the professional staff of the institution.” Ibid. The Third Circuit concluded that this violated both her procedural and substantive due process rights. Id. at 86-87.
As was true of the right of access to courts at issue in Lane, “ordinary considerations of cost and convenience alone cannot justify” institutionalization decisions or the denial of institutionalized persons accommodations necessary to ensure their basic rights. Lane, 541 U.S. at 533; see e.g., O’Connor, 422 U.S. at 575-576; Youngberg, 457 U.S. at 324-325. Finally, as described below, the integration mandate of Title II assists in the prevention of constitutional violations throughout the range of government services, many of which implicate
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fundamental constitutional rights. See Lane, 541 U.S. at 540 (Rehnquist, C.J., dissenting).
3. Historical Predicate a. Lane Conclusively Established The Adequacy Of The Predicate For Title II’s Application To Discrimination In All Public Services
“Whether Title II validly enforces these constitutional rights is a question that ‘must be judged with reference to the historical experience which it reflects.’” Lane, 541 U.S. at 523 (quoting South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966)). Accordingly, in Lane, the Court reviewed the historical experience reflected in Title II and concluded that “Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights.” 541 U.S. at 524. The Court remarked on the “sheer volume of evidence demonstrating the nature and extent of unconstitutional discrimination against persons with disabilities in the provision of public services,” id. at 528, and concluded that it is “clear beyond peradventure that inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation,” id. at 529.
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Although Lane ultimately upheld Title II as valid Fourteenth Amendment
legislation only as applied to access to courts, its conclusions regarding the
historical predicate for Title II are not limited to that context. The Supreme Court
did not begin its “as-applied” analysis until it reached the third step of the Boerne
analysis addressing the Act’s congruence and proportionality. See Lane, 541 U.S.
at 530-532. At the second step, the Court considered the record supporting Title II
in all its applications and found the record included not only “a pattern of
unconstitutional treatment in the administration of justice,” id. at 525, but also
violations of constitutional rights in the context of voting, jury service, the penal
system, public education and institutionalization, id. at 524-525. That record, the
Court concluded, supported prophylactic legislation to address discrimination in “public services” generally. Id. at 529.13
13 In describing the adequacy of the historical predicate, the Court also spoke in general terms, remarking, for instance, on “the sheer volume of evidence demonstrating the nature and extent of unconstitutional discrimination against persons with disabilities in the provision of public services.” Lane, 541 U.S. at 528 (emphasis added). In concluding that “the record of constitutional violations in this case * * * far exceeds the record in Hibbs,” id. at 529, the Court specifically referred to the record of “exclusion of persons with disabilities from the enjoyment of public services,” ibid. (emphasis added), rather than to the record of exclusion from judicial services in particular. See also ibid. (relying on congressional finding in 42 U.S.C. 12101(a)(3) and italicizing phrase “access to public services” rather than specific examples of public services listed in the finding).
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Thus, the adequacy of Title II’s historical predicate to support prophylactic legislation addressing discrimination in public services is clear. Likewise, there is an ample historical basis for applying Title II to disability discrimination relating to institutionalization.
b. Historical Discrimination Against People With Disabilities Subject To Institutionalization
Of particular relevance to this case, the Supreme Court in Lane expressly acknowledged and cited the well-documented pattern of unconstitutional treatment of and discrimination against persons with disabilities in the context of institutionalization. See Lane, 541 U.S. at 524-525 (“The historical experience that Title II reflects is also documented in this Court’s cases, which have identified unconstitutional treatment of disabled persons by state agencies in a variety of settings, including unjustified commitment * * * [and] the abuse and neglect of persons committed to state mental health hospitals.”) (citations omitted); see also id. at 525 n.10 (“The undisputed findings of fact in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981), provide another example of such mistreatment. See id. at 7 (‘Conditions at Pennhurst are not only dangerous, with the residents often physically abused or drugged by staff members, but also inadequate for the ‘habilitation’ of the retarded’).”) (parallel citations omitted).
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Indeed, the Supreme Court has long acknowledged the nation’s “history of unfair and often grotesque mistreatment” of persons with disabilities. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 454 (1985) (Stevens, J., concurring) (citation omitted); see also Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 608 (1999) (Kennedy, J., concurring) (“[O]f course, persons with mental disabilities have been subject to historic mistreatment, indifference, and hostility.”).
During the early twentieth century, the eugenics movement labeled persons with mental and physical disabilities as “sub-human creatures” and “waste products” responsible for poverty and crime. United States Commission On Civil Rights, Accommodating The Spectrum Of Individual Abilities 20 (1983) (Spectrum). A cornerstone of that movement was forced institutionalization directed at separating individuals with disabilities from the community at large.14 “A regime of state-mandated segregation” emerged in which “[m]assive custodial institutions were built to warehouse the retarded for life; the aim was to halt
14 See Spectrum 19-20; see also Employees of Dep’t of Pub. Health & Welfare v. Department of Pub. Health & Welfare, 411 U.S. 279, 284 n.2 (1973) (noting that “the institutionalization of the insane became the standard procedure of the society” and a “cult of asylum swept the country”) (citation and internal quotations omitted).
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reproduction of the retarded and ‘nearly extinguish their race.’” Cleburne, 473
U.S. at 462 (Marshall, J., concurring in part and dissenting in part) (citation omitted).15 State statutes provided for the involuntary institutionalization of persons with disabilities.16 Additionally, many states accompanied
institutionalization with compulsory sterilization and prohibitions of marriage.
Cleburne, 473 U.S. at 462-463 (Marshall, J., concurring in part and dissenting in
part); see also Buck v. Bell, 274 U.S. 200, 207 (1927) (upholding compulsory
sterilization law “in order to prevent our being swamped with incompetence. It is
better for all the world, if instead of waiting to execute degenerate offspring for
crime, or to let them starve for their imbecility, society can prevent those who are
manifestly unfit from continuing their kind. * * * Three generations of imbeciles are enough.”).17
15 See also Cleburne, 473 U.S. at 463 n.9 (noting Texas statute, enacted in 1915 (and repealed in 1955), with stated purpose of institutionalizing the mentally retarded to relieve society of “the heavy economic and moral losses arising from the existence at large of these unfortunate persons”). 16 See Spectrum 19; Timothy M. Cook, The Americans with Disabilities Act: The Move to Integration, 64 Temp. L. Rev. 393, 400 (1991); see also Note, Mental Disability and the Right to Vote, 88 Yale L.J. 1644 (1979). 17 See also 3 Staff of H. Comm. on Educ. and Labor, 101st Cong., 2d Sess., Legislative History of Pub. L. No. 101-336: The Americans with Disabilities Act 2242 (Comm. Print 1990); M. Burgdorf & R. Burgdorf, A History of Unequal
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In considering the ADA, Congress also heard testimony regarding unconstitutional treatment and unjustified institutionalization of persons with disabilities in state facilities. See, e.g., 2 Staff of H. Comm. on Educ. and Labor, 101st Cong., 2d Sess., Legislative History of Pub. L. No. 101-336: The Americans with Disabilities Act 1203 (Comm. Print 1990) (state hospitals are “notorious for using medication for controlling the behavior of clients and not for treatment alone. Seclusion rooms and restraints are used to punish clients.”); id. at 1262-1263 (detailing the “minimal, custodial, neglectful, abusive” care received at state mental hospital, and willful indifference resulting in rape); see also Spectrum 3235. In addition, Congress drew upon its prior experience investigating institutionalization in passing the Civil Rights of Institutionalized Persons Act of 1980, 42 U.S.C. 1997 et seq., the Developmental Disabilities Act of 1984, 42 U.S.C. 6000 et seq., and the Protection and Advocacy for Mentally Ill Individuals Act of 1986, 42 U.S.C. 10801 et seq.
Moreover, the Department of Justice’s investigations in the 1980s under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. 1997 et seq., further
(…continued) Treatment: The Qualifications of Handicapped Persons As A “Suspect Class” Under The Equal Protection Clause, 15 Santa Clara Lawyer 855, 887-888 (1975).
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documented egregious and flagrant denials of constitutional rights by state-run
institutions for individuals with disabilities.18 Unconstitutional uses of physical
and medical restraints were commonplace in many institutions. For example,
investigations found institutions strapping mentally retarded residents to their beds
in restraints for the convenience of staff.19 One facility forced residents with
mental disabilities to inhale ammonia fumes as punishment for misbehavior.20
Residents in other facilities lacked adequate food, clothing and sanitation.21 Many
18 In the years immediately preceding enactment of the ADA, the Department of Justice found unconstitutional treatment of individuals with disabilities in state institutions for the mentally retarded or mentally ill in more than 25 states. The results of those investigations were recorded in findings letters required by 42 U.S.C. 1997b(a).
19 See Notice of Findings Regarding Los Lunas Hospital and Training School 2 (1988); Notice of Findings Regarding Fairview Training Center 4-5 (1985) (residents frequently placed in physical restraints and medicated in lieu of being given training or treatment); Notice of Findings Regarding Westboro State Hospital 7 (1986) (“Our consultant found numerous incidents where bodily restraint was inappropriately used as punishment for antisocial behavior, for the convenience of staff, or in lieu of treatment, in violation of the residents’ constitutional rights.”).
20 See Notice of Findings Regarding Los Lunas Hospital and Training School 2 (1988).
21 See, e.g., Notice of Findings Regarding Hawaii State Hospital 2-3 (1990) (residents lacked adequate food, had to wrap themselves in sheets for lack of clothing, and were served food prepared in a kitchen infested with cockroaches); Notice of Findings Regarding Westboro State Hospital 3 (1986) (investigation
(continued…)
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state facilities failed to provide basic safety to residents, resulting in serious
physical injuries, sexual assaults, and even deaths.22 Others were denied minimally
dequate medical care, leading to serious medical complications and further
(…continued) found that the “smell and sight of urine and feces pervade not only toilet areas, but ward floors and walls as well. * * * Bathrooms and showers were filthy. Living areas are infested with vermin. There are consistent shortages of clean bed sheets, face cloths, towels, and underwear.”); Notice of Findings Regarding Fairview Training Center 6, 9 (1985) (due to lack of adequate staffing, many residents suffer from “the unhealthy effects of poor oral and other bodily hygiene. We observed several residents who were laying or sitting in their own urine or soiled diapers or clothes,” while 35% “had pinworm infection, a parasite which is spread by fecal and oral routes in unclean environments”).
22 Notice of Findings Regarding Los Lunas Hospital and Training School 3 (1988) (facility failed to provide minimally adequate supervision and safety, and as a result “a woman was raped, developed peritonitis and died”); Notice of Findings Regarding Rosewood Center 4 (1982) (inadequate supervision of residents contributed to rapes and sexual assaults of several residents; profoundly retarded resident left unsupervised drowned in bathtub; another died of exposure after leaving the facility unnoticed); Notice of Findings Regarding Fairview Training Center 3 (1985) (Department found “numerous residents with open wounds, gashes, abrasions, contusions, and fresh bite marks” due to lack of training for residents); Notice of Findings Regarding Northville Regional Psychiatric Center 23 (1984) (one resident died after staff placed him in a stranglehold and left him unconscious on seclusion room floor for 15-20 minutes before making any effort to resuscitate him); id. at 3 (several other residents found dead with severe bruising, many other incidents of “rape, assault and threat of assault, broken bones and bruises” found).
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deaths.23
This record demonstrates that “Congress was justified in concluding that this
‘difficult and intractable proble[m]’ warranted ‘added prophylactic measures in
response.’” Lane, 541 U.S. at 531 (quoting Nevada Dep’t of Human Res. v. Hibbs,
538 U.S. 721, 737 (2003)).
4. Congruence And Proportionality
“The only question that remains is whether Title II is an appropriate
response to this history and pattern of unequal treatment.” Lane, 541 U.S. at 530.
To answer that question, this Court must decide whether Title II is congruent and
proportionate legislation as applied to the class of cases implicating the
constitutional rights of institutionalized persons.
As was true of access to courts, the “unequal treatment of disabled persons”
in the area of institutions “has a long history, and has persisted despite several 23 See, e.g., Notice of Findings Regarding Enid and Pauls Valley State Schools 2 (1983) (inadequate medical care and monitoring contributed to deaths of six residents); Notice of Findings Regarding Manteno Mental Health Center 4 (1984) (investigation of state mental health facility found “widespread occurrence of severe drug side-effects” that could be “debilitating or life-threatening” going “unmentioned in patient records, unrecognized by staff, untreated, or inappropriately treated”); Notice of Findings Regarding Napa State Hospital 2-3 (1986) (facility staff “violated all known standards of medical practice by prescribing psychotropic medications in excessively large daily doses” and by failing to monitor patients for serious, potentially irreversible side effects).
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Case 3:05-cv-04723-AET-TJB Document 63 Filed 05/24/10 Page 37 of 42 PageID: 2701
legislative efforts.” Lane, 541 U.S. at 531; see id. at 527-528; Olmstead, 527 U.S. at 599-600 (describing prior statutes). Thus, Congress faced a “difficult and intractable proble[m],” Lane, 541 U.S. at 531 (citation omitted), which it could conclude would “require powerful remedies.” Id. at 524 (citation omitted).
Nonetheless, the remedy imposed by Title II is “a limited one.” Lane, 541 U.S. at 531. Even though it requires states to take some affirmative steps to avoid discrimination, it “does not require States to compromise their essential eligibility criteria,” requires only “‘reasonable modifications’ that would not fundamentally alter the nature of the service provided,” id. at 532, and does not require states to “undertake measures that would impose an undue financial or administrative burden * * * or effect a fundamental alteration in the nature of the service,” ibid. See also Olmstead, 527 U.S. at 603-606 (plurality).
Title II’s carefully-circumscribed integration mandate is consistent with the commands of the Constitution in this area. As noted, Congress was well aware of the long history of state institutionalization decisions being driven by insufficient or illegitimate state purposes, irrational stereotypes, and even outright hostility toward people with disabilities. See Section III.B.3.b., supra. Title II provides a proportionate response to that history, congruent with the requirements of the Due Process and Equal Protection Clauses, by requiring the state to treat people with
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Case 3:05-cv-04723-AET-TJB Document 63 Filed 05/24/10 Page 38 of 42 PageID: 2702
disabilities in accordance with their individual needs and capabilities. Compare Olmstead, 527 U.S. at 602, with O’Connor, 422 U.S. at 575-576 (requiring individualized assessment prior to involuntary commitment); Parham v. J.R., 442 U.S. 584, 600, 606-607 (1979) (same for voluntary commitment of a child); Youngberg, 457 U.S. at 321-323 (requiring individualized consideration in context of conditions of confinement within institutions).
Moreover, given the history of unconstitutional compulsory institutionalization, Congress was entitled to conclude that there exists a real risk that some state officials may continue to make placement decisions based on hidden invidious class-based stereotypes or animus that would be difficult to detect or prove. See Hibbs, 538 U.S. at 732-733, 735-736 (addressing gender discrimination). Title II appropriately balances the need to protect against that risk and the state’s legitimate interests. Olmstead generally permits a state to limit services to an institutional setting when treating professionals determine that a restrictive setting is necessary for an individual patient, or when providing a community placement would impose unwarranted burdens on the state’s ability to “maintain a range of facilities and to administer services with an even hand.” 527 U.S. at 605 (plurality). But when a state declines to follow the advice of professionals, or when it is unable to demonstrate that its decision is justified by
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Case 3:05-cv-04723-AET-TJB Document 63 Filed 05/24/10 Page 39 of 42 PageID: 2703
sufficient administrative or financial considerations, the risk of unconstitutional treatment is sufficient to warrant Title II’s prophylactic response. Compare Hibbs, 538 U.S. at 736-737 (Congress may respond to risk of “subtle discrimination that may be difficult to detect on a case-by-case basis” by “creating an across-theboard, routine employment benefit for all eligible employees.”).24
Title II also serves broader remedial and prophylactic purposes. The integration accomplished by Title II is a proper remedy for the continuing segregative effects of the historical exclusion of people with disabilities from their communities, schools, and other government services. See Lane, 541 U.S. at 524525; United States v. Virginia, 518 U.S. 515, 547 (1996) (“A proper remedy for an unconstitutional exclusion * * * aims to eliminate so far as possible the discriminatory effects of the past and to bar like discrimination in the future.”) (citation and internal punctuation omitted). It is also a reasonable prophylaxis against the risk of future unconstitutional discrimination in government services. 24 The integration mandate is also a proportionate response to the history of “abuse and neglect of persons committed to state mental health hospitals.” Lane, 541 U.S. at 525. Congress could justifiably respond to this record of unconstitutional treatment within institutions by requiring reasonable steps to remove from such settings those who can be adequately treated in community settings. The reasonable modification and other Title II requirements further ensure that those who remain in state care are afforded the individualized treatment that is often necessary to ensure basic safety and humane conditions.
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Case 3:05-cv-04723-AET-TJB Document 63 Filed 05/24/10 Page 40 of 42 PageID: 2704
“[I]nstitutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Olmstead, 527 U.S. at 600. Much of the discrimination Congress documented occurred in the context of individual state officials making discretionary decisions driven by just such “false presumptions, generalizations, misperceptions, patronizing attitudes, ignorance, irrational fears, and pernicious mythologies.” H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 30 (1990). Congress could reasonably expect that Title II’s integration mandate would reduce the risk of unconstitutional state action by ameliorating one of its root causes through “increasing social contact and interaction of nonhandicapped and handicapped people.” Spectrum 43.
Thus, the integration mandate plays an important role in Title II’s larger goal of relieving the isolation and invisibility of people with disabilities that is both a legacy of past unconstitutional treatment and a contributor to continuing denials of basic constitutional rights. Accordingly, in the context presented by this case, Title II “cannot be said to be so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” Lane, 541 U.S. at 533 (citation and internal quotation marks omitted).
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Case 3:05-cv-04723-AET-TJB Document 63 Filed 05/24/10 Page 41 of 42 PageID: 2705
In arguing that Title II is not congruent and proportionate legislation as applied to the class of cases implicating the constitutional rights of institutionalized persons, defendants contend, inter alia, that the integration requirement at issue “far surpasses any constitutional protection,” and that the remedy at issue likewise is beyond Congress’s authority to enact. See Br. in Supp. of Defs.’ Mot. for S.J. 78-81. Both arguments fail.
Section 5 of the Fourteenth Amendment gives Congress the “authority both to remedy and to deter violation of [Fourteenth Amendment] rights * * * by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text,” Hibbs, 538 U.S. at 727 (quoting Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 365 (2001)). Section 5 “is a ‘broad power indeed,’” Lane, 541 U.S. at 518 (citation omitted), empowering Congress not only to remedy past violations of constitutional rights, but also to enact “prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct,” Hibbs, 538 U.S. at 727-728. Accordingly, Congress did not exceed its authority in enacting Title II of the ADA, as applied in the context of institutionalization.
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CONCLUSION This Court should hold that the Eleventh Amendment does not bar plaintiff’s claims arising under Title II of the ADA and Section 504 of the Rehabilitation Act.

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

submitted,
PAUL J. FISHMAN United States Attorney
s/ J. Andrew Ruymann By: J. ANDREW RUYMANN
Assistant U.S. Attorney Attorney for Intervenor

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 NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

____________________________________

:

DISABILITY RIGHTS NEW JERSEY, :

INC., et. al,

:

:

Plaintiffs,

:

Civil No. 05-4723 (AET)

:

v.

:

OPINION & ORDER

:

Jennifer VELEZ, in her official capacity :

as Commissioner of the New Jersey

:

Department of Human Services, et. al,

:

:

Defendants.

:

____________________________________:

THOMPSON, U.S.D.J. I. INTRODUCTION
This matter has come before the Court upon Plaintiffs Disability Rights New Jersey, Inc. (―Disability Rights‖), Allison Harmon, and Fredrena Thompson‘s Motion for Reconsideration under Federal Rule of Civil Procedure 59(e) [docket #84-1]. Defendants Jennifer Velez and the State of New Jersey oppose the motion [86]. The Court has decided the motion upon the submissions of both parties and without oral argument, pursuant to Fed. R. Civ. P. 78(b). For the reasons detailed below, Plaintiffs‘ Motion for Reconsideration is granted.

II. BACKGROUND The Court assumes that the parties are familiar with the factual and procedural background of this matter. Plaintiffs‘ suit against Defendants contends that the institutionalization of developmentally disabled individuals in New Jersey violates Title II of the Americans with
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Disabilities Act (―Title II‖), 42 U.S.C. § 12132, Section 504 of the Rehabilitation Act of 1973 (―Section 504‖), 29 U.S.C. § 794, the Medicaid Act, 42 U.S.C. § 1396, and Plaintiffs‘ Fourteenth Amendment due process rights. Specifically, Plaintiffs allege that institutionalizing developmentally disabled persons rather than integrating them into community placements violates Title II, Section 504, and the Medicaid Act, and that the State‘s process for admitting individuals into institutions and the lack of sufficient periodic review post-institutionalization violate Title II and the Fourteenth Amendment.
On March 25, 2010, the parties moved for summary judgment [54; 56]. On September 24, 2010, this Court granted Defendants‘ summary judgment motion solely as to the Medicaid claim [82]. Specifically, we found that the Medicaid Act defines ―medical assistance‖ as ―pyament of part or all of the cost of the following care and services . . . .‖ 42 U.S.C. § 1396d(a). We further relied on Third Circuit case law indicating that ―the provisions of the Medicaid Act . . . deal[] with what are essentially financial benefits,‖ Newark Parents Ass’n v. Newark Pub. Sch., 547 F.3d 199, 211 (3d Cir. 2008). We considered this statement to implicitly adopt the interpretation offered by other circuits that ―mdeical assistance‖ refers to financial rather than actual medical services. See, e.g., Mandy R. v. Owens, 464 F.3d 1139, 1143 (10th Cir. 2006); Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir. 2003); Westside Mothers v. Olszewski, 454 F.3d 532, 540 (6th Cir. 2006). Because Plaintiffs had argued that they were hindered from accessing specific medical services under New Jersey‘s waiver program, we concluded that they had failed to state a claim requesting the appropriate type of assistance—financial assistance—under the Medicaid Act.
Plaintiff now argues that reconsideration is appropriate in light of the fact that the definition of ―medical assistance‖ has been amended to include the actual provision of medical services. (Br. in Supp. 3–5).
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III. ANALYSIS A. Legal Standard for Motion for Reconsideration A motion for reconsideration, pursuant to Fed. R. Civ. P. 59(e) and L. Civ. R. 7.1, may be brought on three grounds: (1) an intervening change in controlling law, (2) evidence not previously available, or (3) to correct a clear error of law or prevent manifest injustice. North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). Reconsideration is an extraordinary remedy which is to be granted ―very sparingly.‖ Interfaith Comty. Org. v. Honeywell Intern., Inc., 215 F. Supp. 2d 482, 507 (D.N.J. 2002). Here, Plaintiffs request reconsideration based on the first and third grounds. A motion for reconsideration is not a vehicle for raising new matters or arguments that could have been raised before the original decision was made, Bowers v. NCAA, 130 F. Supp. 2d 610, 613 (D.N.J. 2001), nor is it an opportunity to ask a court to rethink what it has already thought through. Oritani S & L v. Fidelity & Deposit, 744 F. Supp. 1311, 1314 (D.N.J. 1990). Reconsideration based on a clear error of law may be granted only if there is a dispositive factual or legal matter that was presented but not considered which would have reasonably resulted in a different conclusion by the court. Champion Laboratories, Inc. v. Metex Corp., 677 F. Supp. 2d 748, 750 (D.N.J. 2010). However, a district court has considerable discretion to decide whether reconsideration is necessary to prevent manifest injustice. B. The Amendment of the Definition of “Medical Assistance” Plaintiffs argue that there has been an intervening change in controlling law and that the Court must correct a clear error of law. (Br. in Supp. 3.) Specifically, Plaintiffs argue that the Patient Protection and Affordable Care Act (―PPACA‖), enacted on March 23, 2010, changed the definition of ―medical assistance‖ in 42 U.S.C. § 1396d(a) from ―payment of part or all of the cost of the following care and services‖ to ―payment of part or all of the cost of the following care and
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services or the care and services themselves, or both.‖ 42 U.S.C. § 1396d(a) (emphasis added). Patient Protection and Affordable Care Act, Pub. L. 111-148, 124 Stat. 119 (March 23, 2010).
Defendants respond that, because the Plaintiffs are seeking services under the State‘s waiver plan, the Court must decide what ―medical assistance‖ means under the waiver section provided in 42 U.S.C. § 1396n(c)(1), as opposed to 42 U.S.C. § 1396d(a). (Opp‘n Br. 4.) Section 1396n(c)(1) states: ―The Secretary may by waiver provide that a State plan approved under this subchapter may include as ‗medical assistance‘ under such plan payment for part or all of the cost of home or community-based services . . . .‖ 42 U.S.C. § 1396n(c)(1) (emphasis added). Defendants further point out that, while Congress amended § 1396d(a), it left § 1396n(c)(1) untouched. (Opp‘n Br. 4.) Accordingly, Defendants argue that, regardless of any amendment to § 1396d(a), Plaintiffs have failed to state a claim under § 1396n(c)(1) by not requesting payment for the costs of home or community-based services. (Id. at 5.)
We find the Defendants‘ argument unavailing, although we conclude that reconsideration is appropriate not because of an intervening change or clear error of law as Plaintiffs suggest, but rather to prevent ―mnaifest injustice.‖ There has not been an intervening change in controlling law, because the PPACA was enacted on March 23, 2010, prior to the parties‘ Motions for Summary Judgment and this Court‘s Opinion. Likewise, there was no clear error of law in this Court‘s opinion because the effect of the PPACA on prior case law from the Third Circuit and other circuits was not raised by Plaintiffs in their initial moving papers. However, for the reasons that follow, we conclude that it would result in manifest injustice were we to maintain our previous interpretation of ―medical assistance.‖
Section 1396d(a) is a definitional section. Typically, definitional sections are not selfcontained, and instead apply to the other provisions of the statute. See, e.g., Gerbier v. Holmes, 280 F.3d 297, 303 (3d Cir. 2002) (―The definition of ―aggravated felony‖ is set forth in § 1101 of
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the INA, the general definitional section applicable to the entire INA.‖). In this instance, § 1396d(a) specifically states that the definitions it provides apply ―[f]or purposes of this subchapter.‖ 42 U.S.C. § 1396d. The word ―subchapter‖ refers to Subchapter XIX, codified as § 1396, which includes § 1396n(c)(1). The question we must resolve, then, is whether § 1396n(c)(1) creates a specific exception to § 1396d(a)‘s general definition of ―medical assistance.‖ We conclude that, to the contrary, § 1396n(c)(1) merely states an example of the type of medical assistance that a State plan may provide. Although the example of medical assistance that § 1396n(c)(1) cites is ―pyament,‖ this section uses precatory language in stating, ―The Secretary may by waiver provide that a State plan approved under this subchapter may include as ‗medical assistance‘ under such plan payment for part or all of the cost of home or communitybased services . . . .‖ 42 U.S.C. § 1396n(c)(1) (emphases added). The plain meaning of this section is that ―payment‖ is one, but not the only, form of medical assistance allowed under a waiver plan.1
This textual interpretation is confirmed by the legislative history of the amendment, which states, ―Some recent opinions have . . . questioned the longstanding practice of using the term ‗medical assistance‘ to refer to both the payment for services and the provision of services themselves. . . . [T]his reading makes some aspects of the rest of Title XIX difficult and, in at least one case, absurd.‖ H.R. Rep. No. 299, 111th Cong., 1st Sess. 2009, at 693–94, 2009 WL 3321420 (Oct. 14, 2009). The House Report‘s reference to the effect of this reading on ―the rest of Title XIX‖ makes clear that Congress did not intend for the amendment‘s effect to be confined to § 1396d(a) alone. It would be contrary to Congressional intent to conclude that § 1396n(c)(1)‘s reference to ―pyament‖ operates to preclude Plaintiffs from requesting actual ―acre or services‖ as
1 We recognize that, under the ―expressio unius est exclusio alterius‖ canon of construction, the inclusion of the financial type of ―medical assistance‖ might suggest that the other types do not apply. However, the broader definition of ―medical assistance‖ in § 1396d(a) coupled with the precatory language of § 1396n(c)(1) cautions against the application of that canon in this instance.
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included in the definition of ―medical assistance‖ under § 1396d(a). Accordingly, because ―medical assistance‖ includes not only financial assistance but also actual care or services, Plaintiffs have properly stated a claim under the Medicaid Act.
C. Availability of Services Under the Waiver Defendants argue that, even if the amended version of 42 U.S.C. § 1396d(a) supports Plaintiffs‘ interpretation, the Court must nonetheless conclude that summary judgment was warranted because Plaintiffs have not shown how the Medicaid Act would require Defendants to ―promptly provide services to Plaintiffs‘ constituents‖ under the waiver. (Br. in Opp‘n 6.) In support of this position, Defendants essentially reassert the arguments made in support of their previous Motion for Summary Judgment. Namely, Defendants argue that the State does not have to provide waiver services that are unavailable, that the services sought by the Plaintiffs are unavailable due to a lack of funding. (Br. in Opp‘n 8–11.) Accordingly, they argue, the State does not need to inform individuals of these nonexistent alternatives to institutionalization, much less provide unavailable services. (Id.) Plaintiffs assert in reply that lack of funding does not excuse a State from providing waiver services. (Reply Br. 3–4) [89]. To the contrary, they argue, as long as there are unfilled waiver slots, eligible individuals have a right to choose from the alternative types of services specified under the waiver, as well as a right to receive those services reasonably promptly. (Id.) The parties‘ arguments simply reveal that questions of fact remain as to whether slots functionally exist within the State‘s waiver cap, whether individuals are being informed of services under the waiver, and whether individuals have received or will receive such services promptly. These questions are relevant to determining whether the State is in compliance with the ―free choice‖ and ―reasonable promptness‖ requirements under the Medicaid Act. 42 U.S.C. § 1396n(c)(2)(C); 42 U.S.C. § 1396a(a)(8). Accordingly, in order to prevent manifest injustice, the Plaintiffs‘ Motion for
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Reconsideration is granted and the Plaintiffs‘ Medicaid claim (Count III of the Amended Complaint) is reinstated.
IV. CONCLUSION For the reasons stated above, and for good cause shown, IT IS on this 30th day of November, 2010 ORDERED that Plaintiffs‘ Motion for Reconsideration [84] is GRANTED; and it is further ORDERED that Plaintiffs‘ Medicaid Act claim (Count III of the Amended Complaint) is hereby reinstated.
____/s/ Anne E. Thompson_____ ANNE E. THOMPSON, U.S.D.J.
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 Case 3:05-cv-04723-AET-TJB Document 67 Filed 06/21/10 Page 1 of 38 PageID: 3002

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division United States Department of Justice By: RICHARD J. FARANO Senior Trial Attorney 950 Pennsylvania Avenue, NW, PHB Room 5020 Washington, DC 20530 (202) 307-3116 Attorney for Amicus Curiae, United States of America

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

DISABILITY RIGHTS NEW JERSEY, INC.; )

ALLISON HARMON, by and through her

)

guardians, Valerie Harmon and Linda Lemore; )

and FREDRENA THOMPSON,

)

)

Plaintiffs,

)

)

v.

) Civ. No.: 05-CV-4723 (AET)

)

JENNIFER VELEZ, in her official capacity as )

Commissioner for the Department of Human

)

Services for the State of New Jersey; and the

)

STATE OF NEW JERSEY,

)

)

Defendants.

)

_________________________________________ )

BRIEF OF THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Case 3:05-cv-04723-AET-TJB Document 67 Filed 06/21/10 Page 2 of 38 PageID: 3003
TABLE OF CONTENTS Page
INTEREST OF THE UNITED STATES .......................................................................................1
PRELIMINARY STATEMENT .....................................................................................................2
ARGUMENT ...................................................................................................................................3
I. THE UNNECESSARY SEGREGATION OF INDIVIDUALS WITH DISABILITIES IN INSTITUTIONS IS A FORM OF DISCRIMINATION PROHIBITED BY THE ADA AND ITS IMPLEMENTING REGULATIONS ..................................................................................3
A. Ending the Discrimination of Segregation and Isolation Through Unnecessary Institutionalization Is a Specific Purpose of the ADA .......................6
B. The ADA’s Legislative History Affirms that One of Its Major Purposes Is to Remove the Barriers of Unnecessary Segregation .........................10
C. ADA Regulations Require States to Provide Services in the Most Integrated Setting Appropriate to the Needs of People with Disabilities .............................................................................................................13
II. THE COURTS HAVE AFFIRMED THAT STATES ARE OBLIGATED TO PROVIDE SERVICES TO QUALIFIED INDIVIDUALS IN THE MOST INTEGRATED SETTING APPROPRIATE TO THE INDIVIDUAL’S NEEDS ..................................................................................................16
A. Unjustified Isolation Is Discrimination Based on Disability that Is Prohibited by the ADA and Its Implementing Regulations for Qualified Individuals Who Do Not Oppose Community Placement.....................16
B. The State’s Fundamental Alteration Defense Fails Because It Cannot Demonstrate the Commitment to Implement a Comprehensive, Effectively Working Olmstead Plan and Because It Cannot Establish that Community Placement Would Fundamentally Alter the State’s Ability to Properly Care for the Individuals..............................................................................................................20
1. Comprehensive, Effectively Working Olmstead Plan .....................................21
2. Fundamental Alteration Cost-Based Arguments .............................................27
CONCLUSION ..............................................................................................................................32
i

Case 3:05-cv-04723-AET-TJB Document 67 Filed 06/21/10 Page 3 of 38 PageID: 3004
TABLE OF AUTHORITIES FEDERAL CASES
Alexander v. Choate, 469 U.S. 287 (1985)................................................................6 Brown v. Bd. of Educ., 347 U.S. 483 (1954)...........................................................11 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) .............................16 Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289 (E.D.N.Y. 2009) ......30 Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184 (E.D.N.Y. 2009) ......................................................................... 18-19, 23, 30, 31, 32 Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (10th Cir. 2003) ................27 Frederick L. v. Dep’t of Pub. Welfare, 364 F.3d 487 (3d Cir. 2004)....24, 25, 27, 28 Frederick L. v. Dep’t of Pub. Welfare, 422 F.3d 151 (3d Cir. 2005) .......... 23-26, 29 Harris v. Pernsley, 820 F.2d 592 (3d Cir. 1987)........................................................1 Joseph S. v. Hogan, 561 F. Supp. 2d 280 (E.D.N.Y. 2008) ....................................19 Messier v. Southbury Training Sch., 562 F. Supp. 2d 294 (D. Conn. 2008) ....29, 30 Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990) ......................................................9 Olmstead v. L.C. ex rel Zimring, 527 U.S. 581 (1999) .. 3, 13, 17, 18, 19, 20, 21, 30 Pennsylvania Prot. & Advocacy, Inc. v. Dep’t of Pub. Welfare, 402
F.3d 374 (3d Cir. 2005) .................................................. 21, 24, 25, 27, 28, 29 Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003) ..........................................27, 29 Wyatt by and through Rawlins v. King, 773 F. Supp. 1508 (M.D. Ala.
1991) ................................................................................................................5
ii

Case 3:05-cv-04723-AET-TJB Document 67 Filed 06/21/10 Page 4 of 38 PageID: 3005
FEDERAL STATUTES AND REGULATIONS 29 U.S.C. § 794..........................................................................................................6 42 U.S.C. § 12101(a)(2).............................................................................................7 42 U.S.C. § 12101(a)(3).............................................................................................7 42 U.S.C. § 12101(a)(5).............................................................................................7 42 U.S.C. § 12101(b)(1) ............................................................................................7 42 U.S.C. §§ 12111-12117 ........................................................................................6 42 U.S.C. §§ 12131-12134 ........................................................................................8 42 U.S.C. §§ 12131-12165 ........................................................................................6 42 U.S.C. § 12131(2) .................................................................................................8 42 U.S.C. § 12132........................................................................................3, 7, 8, 16 42 U.S.C. § 12133......................................................................................................1 42 U.S.C. § 12134................................................................................................8, 13 42 U.S.C. § 12134(b) .................................................................................................9 42 U.S.C. §§ 12181-12189 ........................................................................................6 28 C.F.R. § 35.130(d) ....................................................................................3, 13, 17 28 C.F.R. § 41.51(d) ............................................................................................9, 13 28 C.F.R. pt. 35 app. A ......................................................................................14, 15
iii

Case 3:05-cv-04723-AET-TJB Document 67 Filed 06/21/10 Page 5 of 38 PageID: 3006
LEGISLATIVE MATERIALS 135 Cong. Rec. S19801 (1989)................................................................................10 135 Cong. Rec. S4993 (daily ed. May 9, 1989).......................................................12 136 Cong. Rec. H2447 (daily ed. May 17, 1990)....................................................12 ADA: Hearing Before the Sen. Comm. On Labor and Human Res. and the
Subcomm. on the Handicapped, 101st Cong., 1st Sess. (1989)......................12 H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. (1990), reprinted in 1990
U.S.C.C.A.N. ........................................................................................... 10-11 H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. (1990), reprinted in
1990 U.S.C.C.A.N. ..........................................................................6, 8, 11, 14 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) .....................................................6, 10
iv

Case 3:05-cv-04723-AET-TJB Document 67 Filed 06/21/10 Page 6 of 38 PageID: 3007
INTEREST OF THE UNITED STATES The United States appears as amicus curiae to urge the Court to grant Plaintiffs’ Motion for Summary Judgment on their claims brought under the Americans with Disabilities Act of 1990 (“ADA”) and to deny Defendants’ Motion for Summary Judgment on Plaintiffs’ claims. For reasons set forth in greater detail in the accompanying memorandum in support of the United States’ motion for leave to file a limited brief as amicus curiae, the United States is in a unique position to aid the Court in addressing the ADA issues, as the Department of Justice enforces Title II of the ADA. See 42 U.S.C. § 12133. As a result, the United States has a special interest in the subject matter and how courts construe the statute’s protections. An amicus filing from an agency charged with enforcement of the statute at issue can be particularly useful and can “contribute to the court’s understanding” of the issues involved in a particular lawsuit. Harris v. Pernsley, 820 F.2d 592, 603 (3d Cir. 1987). Moreover, the issues raised in the parties’ cross motions for summary judgment are issues of great public interest and importance as they implicate the constitutional and legal rights of often vulnerable institutionalized persons with intellectual and other developmental disabilities. There is a strong public interest in eliminating the harm that attends unnecessary and inappropriate institutionalization. Pursuant to its statutory enforcement authority, and the
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Case 3:05-cv-04723-AET-TJB Document 67 Filed 06/21/10 Page 7 of 38 PageID: 3008
inherent public interest providing that authority, the Department of Justice has an obligation to work to protect and vindicate the rights of persons with developmental disabilities and, therefore, has a demonstrated interest in this matter.
PRELIMINARY STATEMENT This case is appropriate for summary judgment, as there are no genuine issues of material fact with respect to the arguments contained in the parties’ cross motions. The Court is presented with a purely legal question: Does defendants’ unnecessary segregation of individuals with disabilities in its public institutions constitute discrimination under Title II of the ADA? The Court has before it a substantial accumulation of years of admissions by defendants, as well as other undisputed evidence, that individuals with disabilities currently are inappropriately institutionalized in New Jersey’s public institutions and would be better served in integrated community programs. The State admits that the vast majority of the individuals residing in its public developmental centers are qualified for integrated community placement and do not oppose moving to the community. In defiance of the long-standing community placement recommendations of the State’s own treating professionals, defendants have unnecessarily segregated these individuals in institutions and away from society and have failed to provide care in the most integrated setting appropriate to their needs – in this case, community-based programs. Specifically, the State
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acknowledges that at the time the State published its community placement Olmstead Plan in May 2007, approximately 2,457 institutionalized persons residing at one of the State’s developmental centers (81 percent of the total number of residents), had a recommendation for community placement by one of the State’s interdisciplinary teams. Moreover, the State admits that out of these 2,457 persons, 2,303 affected individuals did not oppose community placement. Undisputed facts, therefore, reveal that the State provides services to far too many individuals with disabilities in the most segregated setting imaginable – its large, congregate institutions. Indeed, there are admittedly hundreds of institutionalized residents (at least 2,303 as of May 2007) who meet ADA and Olmstead criteria for community integration. Yet, these qualified and unopposed residents remain inappropriately segregated in the State’s institutional facilities.
As a result, the State fails to serve individuals confined in its public institutions in the most integrated setting appropriate to their needs in violation of federal law. This unnecessary segregation is a form of discrimination prohibited by the ADA and its implementing regulations. 42 U.S.C. § 12132; 28 C.F.R. § 35.130(d); Olmstead v. L.C. ex rel Zimring, 527 U.S. 581, 601-02 (1999).
The State’s defense of its discrimination is without merit. Community placement from the State’s developmental centers has slowed to a trickle, while the State is continuing to admit new persons to its segregated institutions. Moreover,
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the State can now provide nothing more than very vague assurances that additional limited placements will occur at some point in the unspecified future. As a result, the State does not have in place either the capability or the commitment to implement a comprehensive, effectively working Olmstead Plan. Without a realistic, effectively working plan or the stated commitment or ability to implement a plan, the State’s efforts at establishing a fundamental alteration defense must fail. In the instant matter, placing individuals in the community would only work a reasonable modification of the State’s program – one that even the State acknowledges will save it several hundred million dollars. Because the State may utilize existing community programs to meet outstanding needs, it cannot make out a successful fundamental alteration defense.
ARGUMENT I. THE UNNECESSARY SEGREGATION OF INDIVIDUALS WITH
DISABILITIES IN INSTUTITONS IS A FORM OF DISCRIMINATION PROHIBITED BY THE ADA AND ITS IMPLEMENTING REGULATIONS As plaintiffs have demonstrated in their submissions in support of their summary judgment motion, this Court already has before it a substantial amount of undisputed evidence that individuals with disabilities have long been inappropriately institutionalized in New Jersey’s public institutions and would be
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better served in integrated community programs.1 Over two thousand of these individuals are not opposed to moving to the community and are qualified for placement, in part, because defendants’ own professionals have indicated that community placement is the professionally justifiable course of action for them. As we set forth below, by failing to serve qualified individuals with a disability in the most integrated setting appropriate to their needs, defendants are violating the ADA’s prohibition on disability-based discrimination. The relief that plaintiffs are seeking under the ADA merely requires the State of New Jersey to fulfill its own judgments and deliver services to people with disabilities in the most integrated setting appropriate to their needs.
1 Community-based programs are integrated services both because they are physically located in the mainstream of society and because they provide opportunities for people with mental disabilities to interact with their non-disabled peers in all facets of life. An institutional setting, on the other hand, is a segregated environment because individuals living in such facilities are separated from the community and walled off from the mainstream of society, isolated and apart from the natural community where all of us live, work, and engage in life’s many activities. Wyatt by and through Rawlins v. King, 773 F. Supp. 1508, 1512 (M.D. Ala. 1991). Institutionalization stigmatizes individuals and prevents them from building lives in the community, forming personal relationships, and obtaining employment.
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A. Ending the Discrimination of Segregation and Isolation Through Unnecessary Institutionalization Is a Specific Purpose of the ADA
Nearly twenty years before enacting the ADA, Congress recognized that society historically has discriminated against people with disabilities by unnecessarily segregating them from their family and community, and in response, enacted Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The sponsors of that legislation condemned the “invisibility of the handicapped in America,” and introduced bills responding to the country’s “shameful oversights” that caused individuals with disabilities to live among society “shunted aside, hidden, and ignored.” Alexander v. Choate, 469 U.S. 287, 296 (1985) (internal quotation marks omitted). Almost twenty years later, Congress acknowledged that the Rehabilitation Act has not fulfilled the “compelling need … for the integration of persons with disabilities into the economic and social mainstream of American life,” S. Rep. No. 116, 101st Cong., 1st Sess. 20 (1989). It was the purpose of the ADA to “continue to break down barriers to the integrated participation of people with disabilities in all aspects of community life.” H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. 49-50 (1990), reprinted in 1990 U.S.C.C.A.N. 472-73.2
2 In the ADA, Congress set forth prohibitions against discrimination in employment (Title I, 42 U.S.C. §§ 12111-12117), public services furnished by governmental entities (Title II, 42 U.S.C. §§ 12131-12165), and public accommodations provided by private entities (Title III, 42 U.S.C. §§ 12181-
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The ADA begins with congressional findings and purposes that detail the reasons why the statute was necessary. Congress specifically found that “institutionalization” is one of the “critical areas” in which discrimination against individuals with disabilities persists. 42 U.S.C. § 12101(a)(3). It further found that “historically, society has tended to isolate and segregate individuals with disabilities, and despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2). These discriminatory practices continue today through “outright intentional exclusion” and “segregation.” 42 U.S.C. § 12101(a)(5). Congress, therefore, recognized that the isolation, segregation, and exclusion represented by unjustifiable institutionalization constitute disability-based discrimination. Indeed, it was in the ADA that Congress, for the first time, referred expressly to “segregation” of persons with disabilities as a form of “discrimination,” and to discrimination that persists in the area of “institutionalization.”
Consistent with the goal of comprehensive integration, the ADA prohibits public entities from discriminating by reason of disability. 42 U.S.C. § 12132.
12189). The statute as a whole is intended to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1).
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Title II of the ADA forbids state and local governments to discriminate against people with disabilities, and is divided into two parts. Part A, 42 U.S.C. §§ 1213112134, contains the general prohibition against disability-based discrimination by public entities and other generally applicable provisions. (Part B applies to public transportation and is, therefore, not applicable to this case.)
Part A of Title II mandates that “no qualified individual with a disability3 shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
In 42 U.S.C. § 12134, Congress directed the Attorney General to promulgate regulations implementing this general mandate. See H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. 52 (1990), reprinted in 1990 U.S.C.C.A.N. 475 (“Unlike the other titles in this Act, title II does not list all of the forms of discrimination that the title is intended to prohibit. Thus, the purpose of this section is to direct the Attorney General to issue regulations setting forth the forms of discrimination prohibited.”).
3 A “qualified individual with a disability” is “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2).
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Congress did specify, however, that (except with regard to program
accessibility and communication issues) the Attorney General’s Title II ADA
regulations “shall be consistent with [the ADA] and with the coordination
regulations under part 41 of title 28, Code of Federal Regulations … applicable to
recipients of Federal financial assistance under section 794 of Title 29 [Section 504
of the Rehabilitation Act of 1973].” 42 U.S.C. § 12134(b). This citation refers to
the Section 504 coordination regulations of the former Department of Health, Education, and Welfare (“HEW”).4 Most pertinent here, the specified coordination
regulations contain an express, stand-alone, integration requirement which
mandates that “[r]ecipients [of federal financial assistance] shall administer
programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.” 28 C.F.R. § 41.51(d).5
4 HEW was originally the agency designated to coordinate Section 504 regulations promulgated by the various federal agencies. It promulgated such coordination regulations on January 13, 1978. Pursuant to an Executive Order on August 11, 1981, responsibility for these coordination regulations was transferred to the Department of Justice, which adopted the regulations in toto and transferred them to 28 C.F.R part 41. The regulations remain there today, despite the fact that other Section 504 regulations, including regulations for the Department of Health and Human Services, are found in other parts of the Code of Federal Regulations. 5 The congressional choice, made in Title II of the ADA, to ratify the Section 504 coordination regulations, not any other specific set of Section 504 regulations, is important; other Section 504 regulations did not contain a stand-alone integration requirement. See Metro Broad., Inc. v. FCC, 497 U.S. 547, 563 (1990)
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B. The ADA’s Legislative History Affirms that One of Its Major Purposes Is to Remove the Barriers of Unnecessary Segregation
The ADA’s legislative history confirms that Congress intended the ADA to end the unnecessary segregation of people with disabilities from the community because “[o]ne of the most debilitating forms of discrimination is segregation imposed by others.” S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989). In introducing the legislation, Senator Tom Harkin declared that ‘[f]or too long, individuals with disabilities have been excluded, segregated, and otherwise denied equal, effective, and meaningful opportunity to participate in the economic and social mainstream of American life. It is time we eliminate these injustices.” 135 Cong. Rec. S19801 (1989). The House and Senate Reports emphasize that the purpose of the Act is to end the isolation, exclusion, and segregation of individuals with disabilities, as well as the discrimination that “persists in such critical areas as … institutionalization.” S. Rep. No. 116, 101st Cong., 1st Sess. 8 (citing findings of the U.S. Commission on Civil Rights). See also id. at 20 (“compelling need” for the “integration of persons with disabilities into the economic and social mainstream of American life”); H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. 22 (“overriding significance” must be attached to the congressional ratification of administrative regulations). Unlike the stand-alone integration requirement in the Section 504 coordination regulations, the integration requirement in other Section 504 regulations is specifically linked to differences in services provided to individuals with disabilities and those without disabilities.
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(1990), reprinted in 1990 U.S.C.C.A.N. 304 (purpose of the ADA is to “bring persons with disabilities into the economic and social mainstream of American life”); id. at 28, reprinted in 1990 U.S.C.C.A.N. 310 (noting the historic “isolation” of individuals with disabilities); H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. 26 (1990), reprinted in 1990 U.S.C.C.A.N. 448-49 (finding that “segregation for persons with disabilities ‘may affect their hearts and minds in a way unlikely ever to be undone,’” (quoting Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954)); H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. 49-50 (1990), reprinted in 1990 U.S.C.C.A.N. 472-73 (“purpose of title II is to continue to break down barriers to the integrated participation of people with disabilities in all aspects of community life”).
Unnecessary and unjustifiable institutionalization was also specifically identified in congressional testimony by a number of sponsors and supporters of the ADA as one of the forms of segregation and discrimination that the ADA was intended to eliminate. For example, former Senator Lowell Weicker, an original sponsor of the ADA, testified about the need for the ADA to eliminate the unnecessary isolation and segregation that institutionalization represents: “For years, this country has maintained a public policy of protectionism toward people with disabilities. We have created monoliths of isolated care in institutions and in segregated educational settings. It is that isolation and segregation that has become
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the basis of the discrimination faced by many disabled people today. Separation is not equal. It was not for blacks; it is not for the disabled.” ADA: Hearing Before the Sen. Comm. on Labor and Human Res. and the Subcomm. on the Handicapped, 101st Cong., 1st Sess. 215 (1989). See also 135 Cong. Rec. S4993 (daily ed. May 9, 1989) (Senator Ted Kennedy testifying that the ADA “will roll back the unthinking and unacceptable practices by which disabled Americans today are segregated, excluded, and fenced off from fair participation in our society by mindless biased attitudes and senseless physical barriers”); 136 Cong. Rec. H2447 (daily ed. May 17, 1990) (Representative Miller attesting that “[s]ociety has made [people with disabilities] invisible by shutting them away in segregated facilities”).
As summed up by then-Attorney General Richard Thornburgh, “many persons with disabilities in this Nation still lead their lives in an intolerable state of isolation and dependence.” S. Rep. No. 116, 101st Cong., 1st Sess. 7 (1989); H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. 32 (1990), reprinted in 1990 U.S.C.C.A.N. 313. Nowhere is the state of isolation and dependence more intolerable than when it occurs, as in this case, because of unnecessary and unjustified segregation in institutions.
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C. ADA Regulations Require States to Provide Services in the Most Integrated Setting Appropriate to the Needs of People with Disabilities
The regulations issued by the Attorney General to comply with Congress’s mandate in 42 U.S.C. § 12134, promulgated pursuant to congressional delegation only after public comment, particularize Congress’s broad language. Following Congress’s explicit directions, the Title II provision relevant here, known as the “integration regulation,” adopts the precise language of the Section 504 coordination regulation on integration, requiring states to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” Compare 28 C.F.R. § 35.130(d) (ADA Title II integration provision) with 28 C.F.R. § 41.51(d) (Section 504 coordination regulation).
The Department of Justice has consistently maintained that undue institutionalization qualifies as discrimination by reason of disability, and because the Department is the agency directed by Congress to issue regulations implementing Title II, the Supreme Court has determined that “its views warrant respect” and that the courts may properly look to the agency’s views for “guidance.” Olmstead, 527 U.S. at 597-98.
With the integration regulation, the Attorney General established that a state’s provision of services in an unnecessarily segregated setting constitutes
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unlawful disability-based discrimination. Id. at 592. The Attorney General has explained that “the most integrated setting appropriate to the needs of qualified individuals with disabilities” means “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. pt. 35 app. A at 452 (Preamble to Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services) (1994). People with disabilities who are segregated behind institutional walls are not integrated within society at large and are unable to interact with non-disabled persons to the fullest extent possible.
In the preamble to the Title II regulations outlining general prohibitions against disability-based discrimination, the Attorney General appreciates that integration is the antidote to segregation: “Integration is fundamental to the purposes of the Americans with Disabilities Act. Provision of segregated accommodations and services relegates persons with disabilities to second-class status.” Id. at 449-50; accord H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. 56 (1990), reprinted in 1990 U.S.C.C.A.N. 479. Particularly where, as here, a state has admitted that an integrated, community setting is more appropriate than a segregated, institutional one, the ADA’s mandate against unnecessary segregation should be given full effect.
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The Attorney General has underscored the fact that the overarching intent behind selecting the various forms of discrimination delineated in the regulations is to forbid practices that exclude and unnecessarily segregate. Moreover, the Attorney General has emphasized that it is individual need that must drive the decisions of state agencies, not stereotypic and erroneous presumptions about classes of disabilities: “Taken together, these provisions are intended to prohibit exclusion and segregation of individuals with disabilities and the denial of equal opportunities enjoyed by others, based on, among other things, presumptions, patronizing attitudes, fears, and stereotypes about individuals with disabilities. Consistent with these standards, public entities are required to ensure that their actions are based on facts applicable to individuals and not on presumptions as to what a class of individuals with disabilities can or cannot do.” 28 C.F.R. pt. 35 app. A at 449.
Accordingly, based on the record in this case that the individuals at issue in plaintiffs’ motion require placement in integrated community programs, continued segregation is unjustifiable. Such continued segregation constitutes unlawful disability-based discrimination under the ADA and must be remedied.
The Title II integration regulation accords with the ADA’s statutory framework, congressional findings, legislative history, and Congress’s directives. It recognizes that in the case of individuals with disabilities, discrimination takes
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many different forms, including practices that perpetuate the false assumption that people with disabilities must be segregated from the rest of society in institutions. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (requiring special use permit for operation of group home for persons with developmental disabilities lacked rational basis and violated the Fourteenth Amendment). The Attorney General’s integration regulation reflects Congress’s determination that to achieve the Act’s purposes, services must be provided in the most integrated setting appropriate to each individual’s needs. Surely, where, as here, the State itself has determined that a segregated setting is inappropriate, an integrated setting is mandated. II. THE COURTS HAVE AFFIRMED THAT STATES ARE OBLIGATED
TO PROVIDE SERVICES TO QUALIFIED INDIVIDUALS IN THE MOST INTEGRATED SETTING APPROPRIATE TO THE INDIVIDUAL’S NEEDS A. Unjustified Isolation Is Discrimination Based on Disability that Is
Prohibited by the ADA and Its Implementing Regulations for Qualified Individuals Who Do Not Oppose Community Placement As set forth above, the ADA requires that the State here provide services to qualified individuals with disabilities in the most integrated setting appropriate to their needs. See 42 U.S.C. § 12132 (“[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 service, programs, or activities of a public entity, or be subjected
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to discrimination by any such entity.”), and its implementing regulation, 28 C.F.R. § 35.130(d).
In construing the anti-discrimination provision contained within the ADA, the Supreme Court held that “[u]njustified isolation … is properly regarded as discrimination based on disability.” Olmstead, 527 U.S. at 597. The Court recognized that unjustified institutional isolation of persons with disabilities is a form of discrimination because the institutional placement of persons who can handle and benefit from community settings “perpetuates unwarranted assumptions that persons so isolated are incapable or untrustworthy of participating in community life” and because “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 600-01. The Court noted the dissimilar treatment persons with disabilities must endure just to obtain needed services: “In order to receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice.” Id. at 601.
A violation of the integration mandate is made out if the institutionalized individual is “qualified” for community placement – that is, he or she can “handle
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or benefit from community settings,” and the affected individual does not oppose community placement. Id. at 601-03. Indeed, the Court stressed that states “are required” to provide community-based treatment for qualified persons who do not oppose unless the State can establish an affirmative defense. Id. at 607. (As we discuss below, the State may interpose a defense that community placement would work a fundamental alteration. Id. (plurality opinion).)
The reasonable assessment of state professionals is one way, but not the only way, to make such a qualification determination. Id. at 601-02. For example, although Olmstead itself involved two plaintiffs whose treatment professionals had determined community placement was appropriate, the integration mandate is not limited to that narrow fact setting. The regulation that creates the integration mandate does not refer to treating professionals; it simply requires services to be administered “in the most integrated setting appropriate to the needs of” the individual. 28 C.F.R. § 35.130(d). The regulation does not in any way purport to limit the evidence on which a plaintiff may rely in showing that a more integrated setting is appropriate. Indeed, a requirement that Olmstead plaintiffs come to court armed with the recommendations of a state’s treating professionals would “allow States to avoid the integration mandate by failing to require professionals to make recommendations regarding the service needs of institutionalized individuals with mental disabilities.” Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184,
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258-59 (E.D.N.Y. 2009) (hereinafter, “DAI II”) (“The court does not read Olmstead as creating a requirement that a plaintiff alleging discrimination under the ADA must present evidence that he or she has been assessed by a ‘treatment provider’ and found eligible to be served in a more integrated setting … [t]o find otherwise would render the ADA’s integration mandate effectively unenforceable”); Joseph S. v. Hogan, 561 F. Supp. 2d 280, 291 (E.D.N.Y. 2008) (“[I]t is not clear whether Olmstead even requires a specific determination by any medical professional that an individual with mental illness may receive services in a less restrictive setting or whether that just happened to be what occurred in Olmstead.”).
In any event, for purposes of the instant cross motions for summary judgment, it is sufficient to know that the State here admits that literally hundreds of individuals in its public institutions are “qualified,” in that they can “handle or benefit from community settings.” Olmstead, 527 U.S. at 601-02. Specifically, the State readily acknowledges that at the time the State published its Olmstead Plan, entitled “Path to Progress,” in May 2007, there were 2,457 institutionalized persons residing at one of the State’s developmental centers who had a recommendation for community placement by one of the State’s interdisciplinary teams. Brief on Behalf of New Jersey Defendants, Mar. 25, 2010 at 7 (hereinafter, “Defs.’ Brief”). The State informs us that this represents approximately 81 percent
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of the total number of developmental center residents at the time. Id. Moreover, the State admits that out of these 2,457 persons, 2,303 affected individuals did not oppose community placement. Id.
As a result, the undisputed facts here reveal that there are hundreds and hundreds of institutionalized residents (at least 2,303 as of May 2007) who meet ADA and Olmstead criteria for community integration. Yet, the vast majority of these qualified and unopposed affected individuals remain inappropriately segregated in the State’s institutional facilities.
B. The State’s Fundamental Alteration Defense Fails Because It Cannot Demonstrate the Commitment to Implement a Comprehensive, Effectively Working Olmstead Plan and Because It Cannot Establish that Community Placement Would Fundamentally Alter the State’s Ability to Properly Care for the Individuals
As referenced above, the State may interpose a defense that community placement cannot be reasonably accommodated in that it would “entail a fundamenta[l] alter[ation] of [its] services and programs.” Olmstead, 527 U.S. at 603 (plurality opinion). Indeed, the State here contends that requiring it to place institutionalized persons in the community as plaintiffs suggest would constitute a fundamental alteration of the State’s system for serving persons with developmental disabilities. Defs.’ Brief at 1, 34.
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1. Comprehensive, Effectively Working Olmstead Plan The Olmstead plurality explained that a state can establish a fundamental alteration defense by demonstrating that it has a “comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated.” Olmstead, 527 U.S. at 605-06. Indeed, as we discuss below, the Third Circuit requires a state to develop and implement an adequate Olmstead integration plan in order to establish a fundamental alteration defense. See Pennsylvania Prot. & Advocacy, Inc. v. Dep’t of Pub. Welfare, 402 F.3d 374, 381 (3d Cir. 2005) (“the Court’s Olmstead opinion allows for a fundamental alteration defense only if the accused agency has developed and implemented a plan to come into compliance with the ADA and [the Rehabilitation Act]”). Defendants claim that the State has a comprehensive, effectively working Olmstead Plan – the “Path to Progress” document – for transitioning eligible individuals from developmental centers to the community. Defs.’ Brief at 44. The State even points out that there are time frames and numbers for discharge in its Plan. Id. at 46. But, the defendants then admit that “the fiscal crisis has prevented the Division from making the amount of placements projected in the Path to Progress to date.” Id. at 49, 53. The State admits that it only placed 112
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individuals from developmental centers to the community in FY 2009, even though the State’s Plan specified 250 placements. Id. at 49, 54. The State acknowledges that it will only place a total of 62 persons from developmental centers by the end of the current fiscal year, even though, again, the State’s Plan specified 250 placements. Id. at 50. The State further admits that it will not have placed into the community the 600 individuals specified in its Plan by the end of FY 2010. Id. at 55. More ominously, with regard to future efforts, the State admits that placements will be made at a “slower pace than anticipated in the Path to Progress.” Id. at 56.
Furthermore, it is important to remember that in recent years, Defendants have admitted significant numbers of people to the State’s segregated developmental centers. Defendants acknowledge that there were 104 institutional admissions in calendar year 2007, that there were 91 institutional admissions in calendar year 2008, and that there were 43 institutional admissions in calendar year 2009. Id. at 53. These institutional admissions, which counter-balance whatever limited progress the State had managed in effecting the already reduced number of community placements, effectively diminish the State’s overall deinstitutionalization effort in these years.
At this point, the ever-dwindling pace and very vague assurances going forward render the numbers in the State’s Plan virtually meaningless. Even assuming that the State ever had an adequate plan on paper, New Jersey can now
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no longer be said to have an “effectively working plan” for placing institutionalized residents in more integrated settings. Given defendants’ current stated posture, there is, in essence, no plan now, and certainly no tangible or meaningful commitment to implement any semblance of a plan.
Without a realistic “effectively working” plan or a stated commitment or ability to implement a plan, the State’s efforts at marshalling a fundamental alteration defense must necessarily fail. Defendants have not and cannot meet their burden here. See, e.g., DAI II, 653 F. Supp. 2d at 271 (rejecting defendants’ fundamental alteration defense where they “do not have a comprehensive or effective plan to enable [segregated] residents to receive services in more integrated settings, but are instead committed to maintaining the status quo.”) Unfortunately for the institutionalized plaintiffs in the instant case, the State’s current posture now virtually guarantees that most residents will spend their entire lives confined in a segregated institution.
In recent years, the Third Circuit has repeatedly vacated district court rulings that a state had established a fundamental alteration defense, typically given the lack of tangible assurances and/or progress by the jurisdiction. See Frederick L. v. Dep’t of Pub. Welfare, 422 F.3d 151 (3d Cir. 2005) (vacating district court ruling in favor of state defendants where fundamental alteration defense was premised on vague assurances of future deinstitutionalization rather than a meaningful
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commitment with measurable goals for community integration for which the state may be held accountable); Pennsylvania Prot. & Advocacy, 402 F.3d 374 (3d Cir. 2005) (vacating district court ruling in favor of state defendants where fundamental alteration defense was premised solely on the basis of its analysis of budgetary constraints and failed to require state defendants to demonstrate a reviewable commitment to action); Frederick L. v. Dep’t of Pub. Welfare, 364 F.3d 487 (3d Cir. 2004) (vacating district court ruling in favor of state defendants where fundamental alteration defense was premised on the state’s limited economic resources and did not demonstrate a commitment to action with regard to community placement in a manner for which the state can be held accountable by the courts).
Taken together, to establish a fundamental alteration defense in executing an Olmstead Plan, the Third Circuit requires a specific and measurable commitment to action by the state, in a working plan with measurable goals and accountability to the courts, where there is ongoing progress in implementing the plan to effect the deinstitutionalization of institutionalized persons. See, e.g., Frederick L., 422 F.3d at 157 (“We interpret the Supreme Court’s [Olmstead] opinion to mean that a comprehensive working plan is a necessary component of a successful ‘fundamental alteration’ defense”; a state may not avail itself of the fundamental alteration defense to relieve its obligation to deinstitutionalize eligible patients
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without establishing a plan that “adequately demonstrates a reasonably specific and measurable commitment to deinstitutionalization for which [the state] may be held accountable.”); Pennsylvania Prot. & Advocacy, 402 F.3d at 382, 383 (quoting Frederick L., 364 F.3d at 500) (the state must demonstrate ‘that there will be ongoing progress toward community placement’ under the general plan”; and the state must demonstrate a “reviewable commitment to action.”); Frederick L., 364 F.3d at 500 (a state agency asserting a fundamental alteration defense must “be prepared to make a commitment to action in a manner for which it can be held accountable by the courts.”). The Third Circuit has rejected as inadequate a state’s vague assurances of future community placement and has instead required measurable goals for community integration for which the state may be held accountable. Frederick L., 422 F.3d at 156.
Implementation of an Olmstead Plan is critical to the Third Circuit. Pennsylvania Prot. & Advocacy, 402 F.3d at 381 (“The only sensible reading of the integration mandate consistent with the Court’s Olmstead opinion allows for a fundamental alteration defense only if the accused agency has developed and implemented a plan to come into compliance with the ADA and [the Rehabilitation Act].”) (emphasis added). See also Frederick L., 422 F.3d at 158 (vacating judgment for the state where the state “inexplicably failed to implement any plan for the first designated year … [the state’s] post-remand submissions lacked any
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commitment to implement the [plans].”) (emphasis added). In the instant case, Defendants’ demonstrated inability to implement its Olmstead Plan, and now, even to commit to implement it in a specific and measurable way, is beyond problematic, both practically and legally.
The Third Circuit has found fault with a state defendant when it “remains silent as to when, if ever, eligible [residents] can expect to be discharged.” Id. In requiring more tangible and measurable steps, the court concluded: “General assurances and good-faith intentions neither meet the federal laws nor a patient’s expectations … they are simply insufficient guarantors in light of the hardship daily inflicted upon patients through unnecessary and indefinite institutionalization.” Id. As referenced above, the State now offers only the vague promise of a slower pace of placements and now claims cryptically that its Olmstead Plan demonstrates nothing more than a commitment to “future planning” for deinstitutionalization. Defs.’ Brief at 34. Given recent developments, residents living at any of New Jersey’s institutional developmental centers, in effect, have nothing but general assurances from the State, without the realistic prospect of anything remotely approaching a date-certain for a promised discharge from their segregated setting.
The State here touts its interdisciplinary team and other reviews while the individuals reside in one of the institutions awaiting placement. Id. at 28.
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However, the Third Circuit has determined that the routine, individualized review of segregated residents does not amount to a sufficient deinstitutionalization plan, notwithstanding any past success a jurisdiction may have had in discharging residents. Pennsylvania Prot. & Advocacy, 402 F.3d at 384. Moreover, policies and procedures on discharge utilized for ongoing review of residents, as well as individualized quarterly team reassessments on discharge were also not deemed sufficient on their own to constitute implementation of a working plan. Id.
2. Fundamental Alteration Cost-Based Arguments Defendants contend that the State cannot meet its community placement commitments due, in part, to “the worst economic climate since the Great Depression.” Defs.’ Brief at 50, 54, 55. Though clearly relevant, budgetary constraints alone are insufficient to establish a fundamental alteration defense. Pennsylvania Prot. & Advocacy, 402 F.3d at 380-81 (“it would have been legal error for the District Court to find a fundamental alteration solely on the basis of budgetary constraints”); Frederick L., 364 F.3d at 496 (concluding appellants cannot sustain a fundamental alteration defense based “solely upon the conclusory invocation of vaguely-defined fiscal constraints”). See also Townsend v. Quasim, 328 F.3d 511, 520 (9th Cir. 2003) (explaining that budgetary considerations are insufficient to establish a fundamental alteration defense and focusing instead on “whether [the asserted] extra costs would, in fact, compel cut-backs in services to
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other [benefits] recipients”); Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1182-83 (10th Cir. 2003) (“the fact that [a state] has a fiscal problem, by itself, does not lead to an automatic conclusion that [the provision of integrated treatment] will result in a fundamental alteration … If every alteration in a program or service that required the outlay of funds were tantamount to a fundamental alteration, the ADA’s integration mandate would be hollow indeed.”).
Indeed, a court should be wary of a jurisdiction looking to excuse discrimination and segregation of vulnerable persons with disabilities based primarily on fiscal considerations. Pennsylvania Prot. & Advocacy, 402 F.3d at 381 (“A state cannot meet an allegation of noncompliance simply by replying that compliance would be too costly or would otherwise fundamentally alter its noncomplying programs. Any program that runs afoul of the integration mandate would be fundamentally altered if brought into compliance. Read this broadly, the fundamental alteration defense would swallow the integration mandate whole … Any interpretation of the fundamental alteration defense that would shield a state from liability in a particular case without requiring a commitment generally to comply with the integration mandate would lead to this bizarre result.”); Frederick L., 364 F.3d at 500 (emphasizing that the plaintiffs in this case “are perhaps the most vulnerable. It is a gross injustice to keep these disabled persons in an institution notwithstanding the agreement of all relevant parties that they no longer
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require institutionalization. We must reflect on that more than a passing moment. It is not enough for [the state] to give passing acknowledgment of that fact.”). See also Townsend, 328 F.3d at 518-19 (“[P]olicy choices that isolate the disabled cannot be upheld solely because offering integrated services would change the segregated way in which existing services are provided … [S]uch a broad reading of fundamental alteration would render the protection against isolation of the disabled substanceless.”).
If the State of New Jersey is committed to integrating individuals with disabilities into the community as required under the ADA, then it should not be a fundamental alteration of its services and programs to act on that commitment. See Messier v. Southbury Training Sch., 562 F. Supp. 2d 294, 345 (D. Conn. 2008) (finding the State’s fundamental alteration claim to be “entirely inconsistent with its public commitment to further enhancing a system of community placement programming, which, it claims, was already robust in early 1999.”).
At times, the State asks the Court to look backwards, pointing to its past efforts to place people out of developmental centers. Defs.’ Brief at 2-3. However, the Third Circuit has determined that it is unrealistic (or unduly optimistic) to assume past progress is a reliable prediction of future progress. Pennsylvania Prot. & Advocacy, 402 F.3d at 384; Frederick L., 364 F.3d at 500. See also Frederick L., 422 F.3d at 156 (discounting importance of past state efforts
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Case 3:05-cv-04723-AET-TJB Document 67 Filed 06/21/10 Page 35 of 38 PageID: 3036
to deinstitutionalize and concluding that it is insufficient assurance of needed future deinstitutionalization efforts).
In the final analysis, placing qualified institutionalized individuals here in appropriate community settings would work only a “reasonable modification” of the State’s program. Olmstead, 527 U.S. at 603. The State already provides to individuals in the community services of the type the individuals in the institutions would need to live in the community. But those services are simply inadequate right now to meet the needs of those individuals. The plaintiffs’ claim rests on the demand that those services already in limited supply be made available in sufficient supply to enable individuals who are currently inappropriately segregated in an institution to be discharged from that setting into the community and provided appropriate services there. It is a reasonable modification per Olmstead to expand existing community programs to include currently institutionalized individuals. See DAI II, 653 F. Supp. 2d at 269 (quoting Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289, 335 (E.D.N.Y. 2009) (hereinafter, “DAI I”)) (concluding that “[w]here individuals with disabilities seek to receive services in a more integrated setting – and the state already provides services to others with disabilities in that setting – assessing and moving the particular plaintiffs to that setting, in and of itself, is not a ‘fundamental alteration.’”); Messier, 562 F. Supp. 2d at 345 (holding that where community
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placement can be accommodated through existing programs, it would not be a fundamental alteration to require the state to assess class members for a determination of whether they were appropriate for those programs).
Moreover, the State admits that implementation of its Olmstead Plan will result in “a total decrease of $207.02 million over the length of the plan” with regard to the State’s salary expenditures. Defs.’ Path to Progress, at 60. This is important given that a court, in conducting a fundamental alteration analysis, must consider not just short-term outlays and transition costs, “but also savings that will result if the requested relief is implemented.” DAI II, 653 F. Supp. 2d at 269.
The court in DAI endorsed the cost-neutral notion that the state could meet its ADA obligations by re-directing funds currently being spent on institutional care to serve those same individuals in integrated community settings. Id. at 308. The court there addressed the Third Circuit’s concerns with regard to cost-shifting that would disadvantage other segments of the population of persons with mental disabilities. Id. (concluding that because the relief requested there would “actually save the State money, it will not interfere with Defendants’ ability to serve other individuals with mental illness”).
It is relevant in any fundamental alteration analysis, therefore, to determine whether providing services to support a person with a developmental disability in the community costs substantially less than providing services in an institutional
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setting. See Id. at 282, 285-86, 291-94, 301 (rejecting defendants’ fundamental alteration defense where serving the constituents in community homes would not increase costs to the state, holding defendants had not proven that the requested relief would increase costs to the state; instead, the court determined that it would “actually cost less” to serve the institutionalized constituents in the community).
Fortunately, the parties seem to agree that the State is capable of effecting quality placements and expanding community resources. Even the State contends that it has the proven ability to safely and effectively transition qualified persons from institutional settings to integrated community settings. Defs.’ Brief at 20-21, 50. The State just needs to make a more meaningful commitment to increase the pace of these placements so as to come into compliance with federal law.
CONCLUSION For the foregoing reasons, this Court should grant Plaintiffs’ Motion for Summary Judgment and deny Defendants’ Motion for Summary Judgment on Plaintiffs’ claims. Defendants’ unjustifiable and unnecessary segregation of individuals with disabilities constitutes discrimination under Title II of the ADA.
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Case 3:05-cv-04723-AET-TJB Document 67 Filed 06/21/10 Page 38 of 38 PageID: 3039
Respectfully submitted, THOMAS E. PEREZ Assistant Attorney General Civil Rights Division SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights Division JUDY C. PRESTON Acting Chief Special Litigation Section
s/ Richard J. Farano RICHARD J. FARANO [DC Bar #424225] Senior Trial Attorney U.S. Department of Justice Civil Rights Division Special Litigation Section, PHB Room 5020 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 307-3116
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 Case 3:05-cv-04723-AET-TJB Document 82 Filed 09/24/10 Page 1 of 10 PageID: 3188

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

____________________________________

:

DISABILITY RIGHTS NEW JERSEY, :

INC., et al.,

:

:

Plaintiffs,

:

Civil No. 05-4723 (AET)

:

v.

:

OPINION & ORDER

:

Jennifer VELEZ, in her official capacity :

as Commissioner of the New Jersey

:

Department of Human Services, et al.,

:

:

Defendants.

:

____________________________________:

THOMPSON, U.S.D.J.

This matter has come before the Court upon Plaintiffs Disability Rights New Jersey, Inc.

(“Disability Rights”), Allison Harmon, and Fredrena Thompson’s (collectively, “Plaintiffs”)

Motion for Summary Judgment [docket # 54] and Defendants Jennifer Velez, in her official

capacity as Commissioner of the New Jersey Department of Human Services, and the State of

New Jersey’s (together, “Defendants”) Motion for Summary Judgment [56]. The Court has

decided the motions after consideration of the submissions of both parties and after hearing oral

argument on September 22, 2010. For the reasons given below, Plaintiffs’ Motion for Summary

Judgment is denied and Defendants’ Motion for Summary Judgment is denied in part and

granted in part.

BACKGROUND

Plaintiffs’ suit against Defendants contends that the institutionalization of

developmentally disabled individuals in New Jersey violates Title II of the Americans with

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Disabilities Act (“Title II”), 42 U.S.C. § 12132, Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794, the Medicaid Act, 42 U.S.C. § 1396, and Plaintiffs’ Fourteenth Amendment due process rights. Specifically, Plaintiffs allege that institutionalizing developmentally disabled persons rather than integrating them into community placements violates Title II, Section 504, and the Medicaid Act, and that the process under which the State admits individuals into institutions and its failure to have sufficient periodic review after institutionalization violate Title II and the Fourteenth Amendment.
Defendants have now filed a motion for summary judgment on all counts, arguing that they are immune from suit under Title II and Section 504 due to the Eleventh Amendment, that they are complying with their obligations under Title II and Section 504 by moving individuals into community placements to the best of their ability given their current budget constraints, that the Medicaid Act does not require them to provide Plaintiffs with the type of services they are requesting, and that the due process they provide at the developmental centers is sufficient. Plaintiffs have also filed a motion for summary judgment, contending that Defendants do not currently have an effectively working plan to transition developmentally disabled individuals into the community, that Defendants have not successfully established an affirmative defense for their failure to move individuals into community placements, and that the admissions and periodic review procedures provided at the developmental centers are facially inadequate. The United States has intervened to address Defendants’ argument that Title II does not validly abrogate a states’ Eleventh Amendment immunity. In addition, the United States has filed an amicus brief in support of Plaintiffs’ motion for summary judgment on Counts I and II of the Amended Complaint [17] (the Title II and Section 504 Olmstead claims).
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ANALYSIS I. Legal Standard for Summary Judgment
Summary judgment is appropriate if, on the record, “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding whether summary judgment should be granted, a district court considers the facts drawn from the “pleadings, the discovery and disclosure materials on file, and any affidavits” and must “view the inferences to be drawn from the underlying facts in the light most favorable to the party opposing the motion.” Fed. R. Civ. P. 56(c); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002) (internal quotations omitted).
To survive a motion for summary judgment, there must be “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The party that will bear the burden of proof at trial “must make a showing sufficient to establish the existence of an element essential to that party’s case.” Celotex, 477 U.S. at 322. This requires that there be more than a “mere existence of a scintilla of evidence” supporting the non-moving party. Anderson, 477 U.S. at 252. II. Sovereign Immunity
Defendants argue that the Eleventh Amendment provides them with immunity from suit under Title II and Section 504. Plaintiffs, however, ask only for injunctive and declaratory relief and therefore may validly bring their Title II and Section 504 claims against Defendant Velez pursuant to Ex parte Young. In addition, the State has waived its sovereign immunity under Section 504 by accepting federal funds for its programs. Section 504 clearly states that “[a]
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State shall not be immune under the Eleventh Amendment . . . from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973.” 42 U.S.C. § 2000d-7(a)(1). This 1986 amendment to the Rehabilitation Act put the State on notice that by accepting federal funds under Section 504 it was subjecting itself to suit in federal court. Koslow v. Commonwealth, 302 F.3d 161, 170 (3d Cir. 2002).
In order for the State to be amenable to suit under Title II, Congress must have validly exercised its authority pursuant to § 5 of the Fourteenth Amendment to abrogate the State’s Eleventh Amendment immunity. The Court believes that it is not necessary to reach this issue at this time as the State’s waiver of immunity under Section 504 means that it is clearly not immune from suit in this matter. The Third Circuit has consistently treated the mandates of the Section 504 and Title II as identical, requiring the same analysis and providing for the same remedies. Frederick L. v. Dep’t of Pub. Welfare, 364 F.3d 487, 490 n.2 (3d Cir. 2004) (hereinafter, Frederick L. I); Penn. Prot. & Advocacy, Inc. v. Penn. Dep’t of Public Welfare, 402 F.3d 374, 379 n. 3 (3d Cir. 2005). The Court therefore believes it need not decide the constitutional issue in order to deny Defendants’ Motion for Summary Judgment.1 III. Olmstead - Counts I and II
Title II prohibits any public entity from discriminating against a qualified individual with a disability and requires that a public entity administer services and programs in the most integrated setting appropriate.2 42 U.S.C.A. § 12132; 28 C.F.R. § 35.130(d). In Olmstead v.
1If it becomes necessary, the validity of Congress’s abrogation of the State’s sovereign immunity in Title II may be addressed in a later proceeding.
2The most integrated setting appropriate is defined as “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. pt. 35, App. A. In addition, the implementing regulations require a public entity to make
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L.C. and E.W., 527 U.S. 581 (1999), the Supreme Court, held that the unnecessary institutionalization of the disabled was a form of discrimination prohibited by Title II. The Supreme Court also held that a state may raise a “fundamental-alteration” defense by showing that given the available resources and the State’s responsibility for the care of a diverse population of people with mental disabilities, providing immediate relief for plaintiffs would be inequitable. Id. at 604-06.
There are three elements required to show that a defendant is violating the Title II and the Section 504 under Olmstead by providing services to an individual in an institution rather than a community setting.3 First, community placement must be appropriate for the individual. Olmstead, 527 U.S. at 587. Second, community placement cannot be opposed by the affected individual. Id. Third, the placement must be able to be reasonably accommodated, taking into account the resources available to the state and the needs of others with mental disabilities. Id. This third element usually arises in the context of the assertion of a fundamental alteration defense, on which defendant bears the burden of proof.
The Third Circuit has held that the existence of “‘a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings’” is a necessary element of a successful fundamental alteration defense. Frederick L. v. Dep’t of Pub. Welfare, 422 F.3d 151, 157 (3d Cir. 2005) (hereinafter, Frederick L. II) (quoting Olmstead, 527
reasonable modifications when necessary to avoid discrimination on the basis of disability, unless the modification would fundamentally alter the nature of the service, program, or activity. 28 C.F.R. § 35.130(b)(7).
3Although Olmstead only addressed the requirements of Title II, as mentioned above, the Third Circuit has consistently treated the mandates of Section 504 and Title II as identical and as requiring the same analysis. Frederick L. I, 364 F.3d at 490 n.2; Penn. Prot. & Advocacy, 402 F.3d at 379 n. 3.
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U.S. at 605-06). Such a plan must demonstrate a commitment to community placement for “which it can be held accountable by the courts.” Penn. Prot. & Advocacy, 402 F.3d at 381; Frederick L. I., 364 F.3d at 500.
Once a government entity establishes the existence of an adequate Omstead plan, a court must evaluate a number of factors in determining whether a modification would result in a fundamental alteration to services. These factors include the resources available to the state, the range of services provided to others with mental disabilities, and the State’s responsibility to mete out services equitably. Olmstead, 119 S. Ct. at 597; see also Penn. Prot. & Advocacy, 402 F.3d at 380. Budgetary constraints alone are insufficient to establish a fundamental alteration defense. Frederick L. I, 364 F.3d at 495; Penn. Prot. & Advocacy, 402 F.3d at 380.
The Court finds that material questions of fact exist that prevent it from being able to grant summary judgment in favor of either party on the Olmstead claims. These material questions of fact include whether New Jersey has an Olmstead plan that can be considered to be “effectively working” given the recent fiscal crisis and budget cuts and whether ordering the requested relief would result in a fundamental alteration to services the State provides to other individuals. For these reasons, the Court will deny both Plaintiffs’ and Defendants’ motions for summary judgment on Counts I and II. IV. The Medicaid Act - Count III
Medicaid is a voluntary federal-state program, however, once a state elects to participate in Medicaid it must comply with a number of federal statutory and regulatory requirements. Each state must adopt a plan for provision of “medical assistance.” 42 U.S.C. § 1396a. A state may request approval from the Center for Medicare and Medicaid Services (“CMS”) to waive
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certain Medicaid Act requirements in order to obtain Medicaid funding for home and community-based services. 42 U.S.C. § 1396n(c). This is known as the Medicaid Home and Community Based Waiver program (“waiver program”). The services that Plaintiffs in this case seek access to are provided under New Jersey’s waiver program.
The Medicaid Act defines “medical assistance” as “payment of part or all of the cost of the following care and services . . .” 42 U.S.C.A. § 1396d(a). Several circuits have held that, given this definition, a state’s obligation to provide “medical assistance” refers to financial assistance rather than actual medical services.4 Mandy R. v. Owens, 464 F.3d 1139, 1143 (10th Cir. 2006); Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir. 2003); Westside Mothers v. Olszewski, 454 F.3d 532, 540 (6th Cir. 2006). The Third Circuit appears to have implicitly adopted the reasoning of these circuits. See Newark Parents Ass'n v. Newark Public Schools, 547 F.3d 199, 211 (3d Cir. 2008) (noting that “the provisions of the Medicaid Act . . . deal[] with what are essentially financial benefits” and referring to § 1396d(a)’s definition of “medical assistance”)). Thus, a state is in compliance with the Medicaid Act as long as it is reasonably promptly reimbursing individuals for qualified services that they are receiving.
Plaintiffs do not contend that Defendants have failed to reimburse them or to provide financial assistance. Rather, they complain that they are being hindered from accessing specific medical services available under New Jersey’s waiver program. Because Plaintiffs are not requesting the type of assistance—financial assistance—provided for by the Medicaid Act, the Court finds that Plaintiffs do not have a valid claim and will grant summary judgment in favor of
4A few circuits and district courts have gone in the other direction and have treated the Medicaid Act as requiring a state to provide certain actual medical services. Bryson v. Shumway, 308 F.3d 79, 81, 88-89 (1st Cir. 2002); Doe v. Chiles, 136 F.3d 709, 714, 717 (11th Cir. 1998); Boulet v. Cellucci, 107 F. Supp. 2d 61, 79 (D. Mass. 2000).
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Defendants. The type of injury complained of by Plaintiffs is more appropriately addressed under Title II or Section 504. V. Fourteenth Amendment Due Process - Counts IV
Plaintiffs contend that the Due Process Clause of the Fourteenth Amendment requires developmentally disabled person to be provided with a hearing, notice, representation and a decision by an impartial decision-maker prior to being committed to a developmental center. Several courts have recognized the need for some level of due process in similar circumstances. See, e.g., Parham v. J.R., 442 U.S. 584 (1979); Clark v. Cohen, 794 F.2d 79 (3d Cir. 1986); Porter v. Knickrehm, 457 F.3d 794 (8th Cir. 2006); Doe v. Austin, 848 F.2d 1386 (6th Cir. 1988). Determining the amount of due process required under the Fourteenth Amendment requires a situation-specific balancing of the factors spelled out in Matthews v. Eldridge, 424 U.S. 319 (1976). These are as follows:
First, the private interest that will be affected by the official action; second the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional orsubstitute procedural requirement would entail. Matthews, 424 U.S. at 335. The fundamental requirement of due process is the “opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Id. at 333. The Court believes that summary judgment on this count would be inappropriate without further development of the record to resolve all material questions of fact. The Court is unable to decide at this time whether the procedures set out in the Division of Human Services’ Circular # 17 and the New Jersey Administrative Code provide the requisite level of due process. Open questions of fact include whether the individual making the determination that an emergency
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placement into a developmental center is a neutral fact-finder, whether individuals being placed in developmental centers are given notice of how they can contest a placement, the sufficiency of the procedures under which placements are periodically reviewed once an individual is already in a developmental center, and the ability of an individual to challenge a placement if his or her guardian has consented to the placement. Because the Court cannot determine that either party is entitled to judgment as a matter of law, it will deny both Plaintiffs’ and Defendants’ motions for summary judgment on Count IV. VI. Admissions Procedures are Discriminatory - Count V
Plaintiffs’ final count alleges that Defendants are discriminating against the developmentally disabled because the developmental centers’ admission procedures do not provide the same sort of due process granted to individuals being admitted to psychiatric hospitals or other institutions. To succeed on such a claim, Plaintiffs must show that their disability played a role in Defendants’ decision to treat them differently. See Community Services, Inc. v. Wind Gap Mun. Authority, 421 F.3d 170, 177 (3d Cir. 2005). This question is not resolved by the evidence submitted by the parties to support their motions for summary judgment. The Court will therefore deny both Plaintiffs’ and Defendants’ motion for summary judgment on Count V.
CONCLUSION For the reasons stated above, and for good cause shown, IT IS on this 24th day of September, 2010 ORDERED that Plaintiffs’ Motion for Summary Judgment [54] is DENIED; and it is ORDERED that Defendants’ Motion for Summary Judgment [56] is DENIED IN PART and GRANTED IN PART; and it is
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Case 3:05-cv-04723-AET-TJB Document 82 Filed 09/24/10 Page 10 of 10 PageID: 3197 ORDERED that Plaintiffs’ Medicaid Act claim (Count III of the Amended Complaint) is
DISMISSED. /s/ Anne E. Thompson ANNE E. THOMPSON, U.S.D.J.
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 Case 3:05-cv-04723-AET-TJB Document 84 Filed 10/06/10 Page 1 of 3 PageID: 3200

DISABILITY RIGHTS NEW JERSEY, INC. By: William Emmett Dwyer, Esquire 201 South Broad Street, Third Floor Trenton, New Jersey 08608 (609) 292-9742

PEPPER HAMILTON, LLP A Pennsylvania Limited Liability Partnership By: Angelo A. Stio, III, Esquire
Jeffrey A. Carr, Esquire Travis P. Nelson, Esquire 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103-2799

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

DISABILITY RIGHTS NEW JERSEY, INC., a New: Civil Action

Jersey nonprofit corporation, ALLISON HARMON,

by and through her guardians, Valerie Harmon and

Linda Lemore, and FREDRENA THOMPSON,

: No: 05-CV-4723 (AET/TJB)

Plaintiffs,

v.

JENNIFER VELEZ, in her official capacity as

Commissioner of the Department of Human Services:

for the State of New Jersey, and the STATE OF

NOTICE OF PLAINTIFFS' MOTION

NEW JERSEY,

FOR RECONSIDERATION OF THE

COURT'S SEPTEMBER 24, 2010

Defendants.

OPINION & ORDER

TO: Gerard Hughes, DAG Office of the Attorney General Dept. of Law and Public Safety Division of Law P.O. Box 112 Trenton, NJ 08625 Attorneyfor Defendants

John Andrew Ruymann Office of the U.S. Attorney 402 East State Street Suite 430 Trenton, NJ 08608
Attorney for Intervenor

Case 3:05-cv-04723-AET-TJB Document 84 Filed 10/06/10 Page 2 of 3 PageID: 3201

PLEASE TAKE NOTICE, that on November 1,2010, at 9:00 a.m. in the morning, or as soon thereafter as counsel may be heard, Plaintiffs, Disability Rights New Jersey, Inc., Allison Harmon, by and through her guardians, Valerie Harmon and Linda Lemore, and Fredrena Thompson, through their undersigned counsel, shall move before the United States District Court for the District of New Jersey, Clarkson S. Fisher Building & U.S. Courthouse, 402 East State Street, Room 2020, Trenton, NJ 08608, for an order granting Reconsideration of the Court's September 24, 2010 Opinion & Order Granting Defendants' Motion for Summary Judgment as to Count III (Medicaid Act) of Plaintiffs' Complaint.
PLEASE TAKE FURTHER NOTICE, that in support of said motion, Plaintiffs shall rely on the attached Brief in Support of Plaintiffs' Motion for Reconsideration.
PLEASE TAKE FURTHER NOTICE that a proposed form of Order accompanies this Motion.
Plaintiffs request oral argument.

Dated: October 6, 2010

By:

lsi Travis Nelson

Angelo A. Stio, III, Esquire

Jeffrey A. Carr, Esquire

Travis P. Nelson, Esquire

PEPPER HAMILTON LLP

3000 Two Logan Square

Philadelphia, PA 19102

(215) 981-5000

Williams Emmett Dwyer, Esquire DISABILITY RIGHTS NEW JERSEY, INC. 210 South Broad Street, Third Floor Trenton, NJ 08608 (609) 292-9742

Attorneys for Plaintiffs

Case 3:05-cv-04723-AET-TJB Document 84 Filed 10/06/10 Page 3 of 3 PageID: 3202

CERTIFICATE OF SERVICE I, Travis Nelson, hereby certify that a true and correct copy of Plaintiffs' Notice of Motion for Reconsideration, and brief in support of same, were filed with this Court via electronic filing on October 6, 2010, and were served on this same date via the same method on:

Gerard Hughes, DAG Office of the Attorney General Dept. of Law and Public Safety Division of Law P.O. Box 112 Trenton, NJ 08625

John Andrew Ruymann Office of the U.S. Attorney 402 East State Street Suite 430 Trenton, NJ 08608

Dated: October 6, 2010

/s/ Travis Nelson Travis Nelson, Esquire

Case 3:05-cv-04723-AET-TJB Document 84-1 Filed 10/06/10 Page 1 of 11 PageID: 3203

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
DISABILITY RIGHTS NEW JERSEY, INC., a New: Civil Action Jersey nonprofit corporation, ALLISON HARMON,: No: 05-CV-4723 (AETITJB) by and through her guardians, Valerie Harmon and Linda Lemore, and FREDRENA THOMPSON,
Plaintiffs,
v.
JENNIFER VELEZ, in her official capacity as Commissioner of the Department of Human Services: for the State of New Jersey, and the STATE OF NEW JERSEY,
Defendants.

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PLAINTIFFS' BRIEF IN SUPPORT OF THEIR MOTION FOR RECONSIDERATION
DISABILITY RIGHTS NEW JERSEY, INC. By: William Emmett Dwyer, Esquire 210 South Broad Street, Third Floor Trenton, New Jersey 08608 (609) 292-9742
PEPPER HAMILTON, LLP A Pennsylvania Limited Liability Partnership By: Angelo A. Stio III, Esquire
Jeffrey A. Carr, Esquire Travis P. Nelson, Esquire 301 Carnegie Center, Suite 400 Princeton, New Jersey 08543 (609) 452-0808
Attorneys for Plaintiffs

Case 3:05-cv-04723-AET-TJB Document 84-1 Filed 10/06/10 Page 2 of 11 PageID: 3204 TABLE OF CONTENTS Page
PRELIMINARY STATEMENT ................... .................................................................................. 1 BACKGROUND ............................................................................................................................. 2 STANDARD OF REVIEW FOR RECONSIDERATION ............................................................. 3 LEGAL ARGUMENT - RECONSIDERATION SHOULD BE GRANTED AND THE DISMISSAL ORDER VACATED BECAUSE THE PPA CLARIFIES AND EXPANDS THE DEFINITION OF THE TERM "MEDICAL ASSISTANCE" TO INCLUDE RENDERING ACTUAL SERVICES ............................................................................................. 3 CONCLUSION ............................................................................................................................... 7
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TABLE OF AUTHORITIES

CASES

Page(s)

Bruggeman v. Blagojevich, 324 F.3d 906 (7th Cir. 2003)........................................................... 1, 5 Interfaith Community Org. v. Honeywell International, 215 F.Supp 2d 482 (D.N.J. 2002) ........... 6

Mandy R. v. Owens, 464 F.3d 1139 (lOth Cir. 2006) .................................................................. 1,5

Mars, Inc. v. Coin Acceptors, Inc., No. 90-0049, 2007 U.S. Dist. Lexis 38957 (D.N.J. 2007) .......................................................................................................................................... 3

McGarvey v. Penske Automotive Group, Inc., No. 08-5610,2010 U.S. Dist. Lexis 32228 (March 29, 2010) ....................................................................................................................... 6

N River Ins. Co. v. Cigna Reins. Co., 52 F.3d 1194 (3d Cir. 1995) ............................................... 3 Westside Mothers v. Olszewski, 454 F.3d 523 (6th Cir. 2006) ......................................................... 5

Westside Mothers v. Olszewski, 454 F.3d 532 (6th Cir. 2006) ........................................................ 1
Wingate Inns In! 'I Inc. v. Hightech Inn. com, LLC, No. 07-5014, 2010 U.S. Dist. Lexis 61361 (D.N.J. June 21, 2010) .................................................................................................... 3

STATUTES
42 US.C.A. § 1396d(a) ............................................................................................................ 1,4,5

Section 2304 ofthe Patient Protection and Affordable Care Act, Pub. L. 111-148,124 Stat. 119 ......................................................................................................................... 1,3,4,5
Section 1905(a) ofthe Social Security Act (42 Us. C 1396d(a)) ........................................... 1, 3, 4

OTHER AUTHORITIES

Civ. R. 7.1 ........................................................................................................................................ 3

Fed. R. Civ. P. 59(e) and L.............................................................................................................. 3 H.R. Rep. No. 299, III th ............................................................................................................. 4, 5 Local Rule 7. 1(i) .............................................................................................................................. 3

RECONSIDERATION SHOULD BE GRANTED AND THE DISMISSAL ORDER VACATED BECAUSE THE PPA CLARIFIES AND EXPANDS THE DEFINITION OF THE TERM "MEDICAL ASSISTANCE".................................................. 3

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CASES

Page(s)

Rule 59(e) ........................................................................................................................................ 3

SUSPECTS
U.S.C ............................................................................................................................................... 1

2009 WL 3321420 (Oct. 14, 2009).................................................................................................. 4 Title XIX .......................................................................................................................................... 4

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PRELIMINARY STATEMENT Plaintiffs' Motion for Reconsideration should be granted because the Court's dismissal of Count III of the Amended Complaint (the "Medicaid Claim") was based on the application of incorrect law. Specifically, the Court relied upon the definition of "medical assistance" under 42 U.S.C.A. § 1396d(a) and several circuit court decisions I and found the Medicaid Claim to be invalid because "the state's obligation to provide 'medical assistance' refers to financial assistance rather than actual medical services." [Dkt. 82 at 7]. The Court decision was contrary to law because Congress expressly amended the definition of "medical assistance," and essentially overturned the circuit court decisions that the Court relied upon through the passage of Section 2304 of the Patient Protection and Affordable Care Act, Pub. L. 111-148, 124 Stat. 119, to be codified as amended at scattered sections of 42 U.S.c. ("PPA"). Under Section 2304 of the PPA, which was signed into law on March 23, 2010, Congress clarified the meaning of "medical assistance" to include not only financial assistance, but also the actual provision of medical services: Section 1905(a) of the Social Security Act (42 U.S.C. 1396d(a» is amended by inserting "or the care and services themselves, or both" before "(if provided in or after". PPA Sec 2304 (emphasis added). By clarifying the meaning of the term "medical assistance," Congress essentially overturned the circuit court cases relied upon by this Court in reaching its decision and rendered the dismissal of the Medicaid Claim improper. Given that the applicable federal law was not applied in this case, an error oflaw has occurred. As a result of this error and the prejudice
In its ruling the Court relied upon the following cases for the definition of "medical assistance": Mandy R. v. Owens, 464 F.3d 1139, 1143 (10th Cir. 2006); Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir. 2003); and Westside Mothers v. Olszewski, 454 F.3d 532, 540 (6th Cir. 2006).
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Plaintiffs respectfully request that this Court reconsider and vacate its ruling which granted summary judgment and dismissed the Medicaid Claim.
BACKGROUND
The constituents of plaintiff Disability Rights New Jersey, Inc. ("DRNJ") are developmentally disabled people who currently reside in seven large institutions operated by the State of New Jersey (the "State"). By the State's own admission, with proper community services, ORNJ's constituents can live in the community. However, the State's administration of the Medicaid program is done in a way that denies eligible individuals the opportunity to apply for and receive community-based services in violation of the Medicaid Act. Plaintiffs brought suit, and in Count III of the Amended Complaint, alleged a violation of their rights under the Medicaid Act.
On March 25, 2010, the parties filed motions for summary judgment. On September 24,2010, The Honorable Anne E. Thompson, U.S.OJ., issued an opinion and order granting Defendants' motion for summary judgment only with respect to the Medicaid Claim. Relying on several circuit court decisions, the Court found that the term "medical assistance" under the Medicaid Act is limited to financial assistance only and dismissed the Medicaid Claim. [Dkt. 82 at 7]. The Court held as follows:
Because Plaintiffs are not requesting the type of assistance financial assistance - provided for by the Medicaid Act, the Court finds that Plaintiffs do not have a valid claim and will grant summary judgment in favor of Defendants. [Okt. 82 at 7-8]. Because the Medicaid Act applies to more than just financial assistance, but also providing actual medical services, the rationale for the Court's decision is fatally flawed, this motion for reconsideration now follows in order to correct a clear error of law.
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STANDARD OF REVIEW FOR RECONSIDERATION In New Jersey, motions for reconsideration are governed by Fed. R. Civ. P. 59(e) and L. Civ. R. 7.1. Wingate Inns Int'l Inc. v. Hightech Inn.com, LLC, No. 07-5014, 2010 U.S. Dist. Lexis 61361 (D.N.J. June 21,2010); Mars, Inc. v. Coin Acceptors, Inc., No. 90-0049, 2007 U.S. Dist. Lexis 38957 (D.N.J. 2007) (describing Local Rule 7.1(i) as the "analog" to Rule 59(e». Under the applicable standard, a district court has the discretion to grant consideration if the moving party establishes at least one of the following grounds "(1) an intervening change in controlling law; (2) the availability of new evidence not available previously; or (3) the need to correct clear error oflaw or prevent manifest injustice." N. River Ins. Co. v. Cigna Reins. Co., 52 F.3d 1194,1203,1218 (3d Cir. 1995). In this case, reconsideration is appropriate because there is an intervening change in controlling law and reconsideration is needed to correct a clear error.
LEGAL ARGUMENT RECONSIDERATION SHOULD BE GRANTED AND THE DISMISSAL ORDER VACATED BECAUSE THE PPA CLARIFIES AND EXPANDS THE DEFINITION OF THE TERM "MEDICAL ASSISTANCE" TO INCLUDE RENDERING ACTUAL SERVICES On March 23, 2010, the PPA was signed into law and became effective. Section 2304 of the PPA, entitled "Clarification of definition of medical assistance," amends the Medicaid Act, specifically 42 U.S.C. 1396d(a), by clarifying that the term "medical assistance" to mean both financial assistance and the actual medical services themselves. PPA at § 2304. Thus, the Medicaid Act now reads as follows: The term "medical assistance" means payment of part or all of the cost of the following care and services or the care and services themselves, or both, (if provided in or after the third month before the month in which the recipient makes application for assistance ....
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42 U.S.C. § 1396d(a). (emphasis added).
The purpose of Congress in enacting Section 2304 of the PPA was "[t]o correct
any misunderstandings as to the meaning of the term" medical assistance. H.R. Rep. No. 299,
l11th Cong., 1st Sess. 2009, at 693-694, 2009 WL 3321420 (Oct. 14,2009). The relevant
legislative history states as follows:
Section 1905(a) of the Social Security Act defines the term "medical assistance." The term is expressly defined to refer to payment but has generally been understood to refer to both the funds provided to pay for care and services and to the care and services themselves. The Committee, which has legislative jurisdiction over Title XIX of the Social Security Act, has always understood the term to have this combined meaning. Four decades of regulations and guidance from the program's administering agency, the Department of Health and Human Services, have presumed such an understanding and the Congress has never given contrary indications.
Some recent court opinions have, however, questioned the longstanding practice of using the term "medical assistance" to refer to both the payment for services and the provision of the services themselves. These opinions have read the term to refer only to payment; this reading makes some aspects of the rest of Title XIX difficult and, in at least one case, absurd. If the term meant only payments, the statutory requirement that medical assistance be furnished with reasonable promptness "to all eligible individuals" in a system in which virtually no beneficiaries receive direct payments from the state or federal governments would be nearly incomprehensible.
Other courts have held the term to be payment as well as the actual provision of the care and services, as it has long been understood. The Circuit Courts are split on this issue and the Supreme Court has declined to review the question. To correct any misunderstandings as to the meaning of the term, and to avoid additional litigation, the bill would revise section 1905(a) to read, in relevant part: "The term 'medical assistance' means payment of part or all of the cost of the following care and services, or the care and services themselves, or both." This technical correction is made to conform this definition to the longstanding administrative use and understanding of the term. It is effective on enactment.
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Id. (emphasis added). In the present case, the Court relied on circuit cases decided before the enactment of the PPA. [Dkt. 82 at 6-7, citing Mandy R. v. Owens, 464 F.3d 1139,1143 (loth Cir. 2006), Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir. 2003), Westside Mothers v. Olszewski, 454 F.3d 523 (6th Cir. 2006)]. These circuit courts interpreted the term "medical assistance" to mean financial assistance only. Even if these three circuit court decisions at the time accurately held that for purposes of 42 U.S.c. § 1396d(a) the term "medical assistance" includes only financial assistance, they have since been overruled by the PPA which clarifies the term to mean otherwise. This Court's opinion and order granting Defendants' motion for summary judgment as to the Medicaid Claim was based on the assumption that the above holdings were valid interpretations of § 1396d(a) under current law. Specifically, this Court's opinion and decision states: "[Plaintiffs] complain that they are being hindered from accessing specific medical services available under New Jersey's waiver program. Because Plaintiffs are not requesting the type of assistance - financial assistance - provided for by the Medicaid Act, the Court finds that Plaintiffs do not have a valid claim and will grant summary judgment in favor of Defendants." Dkt. 82 at 6-7]. Though the Court's opinion and order dismissing Plaintiffs' Medicaid Claim cites to 42 U.S.C. § 1396d(a), the opinion does not make any mention of Section 2304 of the PPA and its amendment of the Medicaid Act. If this Section 2304 were considered, the ruling could not possibly stand because Plaintiffs' Medicaid Claim is based on rendering of services, which is now expressly contemplated under the Medicaid Act. In view of this omission of the controlling law, reconsideration is appropriate and this error must be corrected. Further, the fact that the parties did not present the overlooked controlling law at the prior hearing is irrelevant. Indeed, such an error is similar to the error
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recognized by the Court in McGarvey v. Penske Automotive Group, Inc., No. 08-5610, 2010 U.S. Dist. Lexis 32228 (March 29,2010). In that case, the court granted plaintiffs' partial summary judgment and denied defendants' motions to dismiss certain claims involving automobile theft system warranties. On defendants' motion for reconsideration, defendants raised interpretations of governing statutory provisions of the federal Magnuson Moss Warranty Act ("MMWA") there were not previously before the court. The McGarvey court detennined that the incorporation of the two previously unconsidered statutory sections changed the court's interpretation of the statute's application, and thus resulted in "a clear error oflaw" requiring the court to vacate its prior decision granting partial summary judgment to the plaintiffs. McGarvey at *28. See also, Interfaith Community Org. V. Honeywell International, 215 F.Supp 2d 482, 506-07 (D.N.J. 2002).
Here, like in McGarvey, the Court failed to consider the PPA. The reason for this omission in recognizing the applicable statute is readily apparent. The PPA was enacted by Congress on March 23, 2010 - only two days prior to the submission of Plaintiffs' Motion for Summary Judgment. It is the most comprehensive piece of health care legislation ever enacted, and encompasses over one-thousand pages in length. Due to the voluminous size of the PPA and the timing of its adoption, neither the Plaintiffs nor this Court could reasonably have been expected to be aware of the existence of an isolated paragraph buried in the Act that would clarify the meaning of "medical assistance" in a wholly separate act, the Medicaid Act.
Neither the Plaintiffs nor this Court were aware of the relevant change that had occurred in the law merely two days prior to submission of the initial summary judgment briefs, nor could one expect that they should have been thoroughly versed in the PPA given the comprehensive nature and extent of the health care refonn bill passed by Congress. For this
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reason, because an error of law occurred in the Court's failure to consider this controlling statute, Plaintiffs respectfully request that the Court grant the motion for reconsideration and reinstate the Medicaid Claim.
CONCLUSION This Court should grant the Plaintiff's Motion for Reconsideration because the Court's granting of partial summary judgment was based on an error oflaw - an error that even the most diligent court might make given the extensive nature of the PPA
PEPPER HAMILTON LLP (A Pennsylvania LLP)

By:

lsi Travis Nelson

Angelo A Stio III

Travis P. Nelson

DISABILITY RIGHTS NEW JERSEY, INC.

By: lsi William Emmett Dwyer William Emmett Dwyer
Attorneys for Plaintiffs

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 Case 3:05-cv-04723-AET-TJB Document 149 Filed 12/21/12 Page 1 of 1 PageID: 3626

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY RECE~VED TRENTON DEC 2 1 2012

AT 8:30

M

WILLIAM T. WALSH CLERK

DISABILITY RIGHTS NEW JERSEY, INC., et al.
v.
JENNIFER VELEZ, et al.

CIVIL 05-4723 (AET)
o R D E R

It appearing that it has been reported to the Court that the above-captioned matter has been settled,

It is on this 21st day of December 2012,

ORDERED that this action be and is hereby dismissed, without costs and without prejudice to the right, upon good cause shown within 60 days, to reopen the action if the settlement is not consummated. The Court shall retain jurisdiction over this matter for the purpose of enforcing the settlement.

 
 Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 1 of 53 PageID: 770

IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

DISABILITY RIGHTS NEW JERSEY, INC.,

Plaintiff,

v.

SETTLEMENT AGREEMENT

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

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

Defendant.

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

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

Plaintiffs,

v.

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

Defendants.

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

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

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

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

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1396 et seq., the federal or State Constitutions, or federal or State law, regulations, rules, or policies; and this Agreement may not be used as evidence of liability in the Actions or any other civil or criminal proceeding. 2. DismissaL Pursuant to Fed. R. Civ. P. 41(a), the Parties will file this Agreement, together with a Notice of Dismissal with Prejudice of each of the Actions. The Parties each shall take any and all action necessary to obtain such dismissals with prejudice. Notwithstanding the foregoing, in the event any Party asserts that another has breached any provision of this Agreement, the dismissal provisions of this paragraph shall not prohibit that Party from filing a motion in the United States District Court in accordance with paragraph 14 (Remedies for Breach). 3. Effective Date. The Effective Date of this Agreement ("Effective Date") shall be the date it is filed with the United States District Court, and, unless otherwise specified, all time periods contained in this Agreement shall commence on that date. 4. Substantial Compliance. Defendants shall substantially comply with all of the requirements of this Agreement. Substantial compliance shall mean that Defendants are complying with the material requirements of this Agreement. Isolated or insignificant instances of non-compliance shall not preclude a finding of substantial compliance. For purposes of this paragraph, provision of at least 90 percent of the number of community placements for each year set forth in paragraph SA shall constitute substantial compliance. 5. Community Placements. This Agreement contains Defendants' targets and time frames for placement of all Community Placement-Eligible individuals residing in State-operated developmental centers ("Developmental Centers") into community-based
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settings appropriate to their needs. The targets and time frames in this Agreement will supersede those set forth in the State's Olmstead Plan, "Path to Progress" dated May 2007 and the Addendum to the State's Olmstead Plan, "Blueprint for the June 30, 2013 Closure of Vineland Developmental Center" dated May 2011. Collectively, the "Path to Progress," as it from time to time may be amended, and this Agreement shall constitute the State of New Jersey's Olmstead Plan. Subject to appropriation of funding by the New Jersey State Legislature and availability of funds, the plan shall include the following elements:
A. Schedule of Placements. Defendants shall provide community placements for at least 600 Community Placement-Eligible individuals residing in Developmental Centers between FY2013 and FY20 17, in accordance with the following schedule:
• Between July 1,2012 and June 30, 2013: 90 • By June 30, 2014: cumulative total equivalent to 205 + (the number of
new admissions of Community Placement-Eligible individuals in FY2013, not to exceed 35) [For example, if 115 community placements and 19 admissions occur in FY2013, DDD will provide 134 (115+19=134) community placements in FY2014.] • By June 30, 2015: cumulative total equivalent to 320 + (the number of new admissions of Community Placement-Eligible individuals in FY2014, not to exceed 35) • By June 30, 2016: cumulative total equivalent to 435 + (the number of new admissions of Community Placement-Eligible individuals in FY2015, not to exceed 35) • By June 30, 2017: cumulative total equivalent to 600 + (the number of new admissions of Community Placement-Eligible individuals in FY2016, not to exceed 35) (1) The term "Cumulative Total" in this paragraph shall mean the total number of placements from July 1, 2012 to June 30 of each year. Thus, in each year after
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FY2013, the stated number (230, 345, 460, 600) shall be inclusive of - not in addition to - the number from previous years.
(2) In each year after FY20 13, a "credit" shall be applied for any number of community placements made in previous year(s) over the specified minimum. For example, if 120 community placements were made in FY2013, in calculating FY2014,
the annual number will be 110, reflecting a credit of 5 (115-5 = 110), plus any
additional amount for new admissions. (3) If, on July 1 of any year, the number of Community Placement-Eligible
individuals, as defined in paragraph 5.D(1) below, residing in Developmental Centers is not large enough for Defendants to achieve the applicable cumulative total stated in this paragraph, Defendants' obligation for that year will be limited to the actual number of Community Placement-Eligible individuals residing in Developmental Centers on that date.
B. Currently Eligible Individuals. (1) "Currently Eligible Individuals" refers to those residents of
Developmental Centers who are determined to be Community Placement-Eligible as of the Effective Date. Defendants represent, and Plaintiffs accept, that presently there are fewer than 600 individuals in this category.
(2) It is Defendants' intent to place all Currently Eligible Individuals by the end of FY2017. However, if during the term of the agreement, closure of one or more developmental centers occurs, the Division of Developmental Disabilities ("DDD" or the "Division") may reprioritize the placement of Currently Eligible Individuals in accordance with the immediate needs of the Division. In such event, all Currently
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Eligible Individuals shall be placed in community settings by the end of FY2019 in accordance with the new Olmstead plan referenced in paragraph 5.C(2), which shall not, however, extend this Agreement beyond FY 2017.
C. Individuals Other Than Currently Eligible Individuals. Defendants shall not be required to place more than 35 individuals, other than those who are Currently Eligible Individuals, in any given year through FY2017, per the schedule set forth in paragraph SA above. Subject to that limitation, Community Placement~Eligible individuals other than Currently Eligible Individuals (i.e., individuals determined to be Community Placement~Eligible after the Effective Date) shall be placed in community settings within the following timeframes:
(1) Individuals who become Community Placement~Eligible between the Effective Date and June 30, 2015, and who do not subsequently become ineligible (up to the maximum 35 per year), shall be placed in community settings by June 30, 2017; and
(2) Individuals who become Community Placement-Eligible between July 1, 2015 and June 30, 2017, who do not subsequently become ineligible (up to the maximum 35 per year), and who are not placed in community settings by the end of FY2017, shall be placed in community settings in accordance with the schedule set forth in a new or amended Olmstead plan to be issued no later than December 31, 2016.
D. Eligibility for Community-based Placement ("Community PlacementEligible")
(1) An individual is eligible for community-based placement under this Agreement ("Community Placement-Eligible") when the individual's Treatment
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Professionals have determined that community placement is appropriate and the individual, or the individual's guardian if applicable, does not oppose community placement. If an individual wants a community placement and the individual's guardian opposes it, DRNJ shall be so informed so that it may investigate and take steps it deems appropriate. Additionally, if an individual or the individual's guardian wants a community placement and the Treatment Professionals oppose it, DRNJ shall be so informed. As used in this paragraph, "Treatment Professionals" means those professionals who are members of the Interdisciplinary Team responsible for developing the individual's Individual Habitation Plan, and may include, but shall not be limited to, persons in the following professions and/or practice areas: nurse, dietician, habilitation plan coordinator, speech therapist, psychologist, physician, physical therapist, occupational therapist, and psychiatrist. Community PlacementEligible individuals shall not include individuals in the Moderate Security Unit (see N.J.S.A. 30:4-25.13 et seq.), or individuals otherwise admitted to a developmental center by court order.
(2) In the event Defendants assign a Support Coordinator or Transitional Case Manager to identify an individual's needs with respect to community-based services and to develop a placement that meets the individual's identified needs, and Defendants offer the individual an appropriate community placement in accordance with this Agreement and the individual or the individual's guardian refuses the placement, Defendants shall be considered to have satisfied the requirements of this Agreement with respect to that individual, and the offer of appropriate placement shall count toward the Defendants' obligation set forth in paragraphs SA, Band C above.
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DRNJ will be informed of any such case. Individuals may challenge the appropriateness of any placement offer through the administrative procedures provided at N.J.A.C. 10:48-1-1.1 et seq.
E. Education Regarding Community-based Placement. Defendants shall provide for appropriate education regarding community-based placement options to Developmental Center residents, their guardians where applicable, and family members where appropriate. 6. Diversion. The Division will designate staff to be responsible for obtaining community placements and services for individuals who are being considered for admission to Developmental Centers. The designated staff will report and make recommendations directly to the Assistant Commissioner for DDD ("Assistant Commissioner") . 7. Pre-Admission Review.
A. Independent Admissions Review Officer. Beginning six months after the Effective Date, no individual will be admitted to a Developmental,Center unless a Preadmission Review has been conducted by an Independent Admissions Review Officer ("IARO"). The Commissioner shall designate the Office of the Ombudsman for Institutionalized Elderly ("Ombudsman") to serve as the IARO; however, in the event that the Ombudsman is or becomes unable or unwilling to serve in this capacity, the Commissioner, after consulting with DRNJ's Director, shall designate another individual with relevant experience to do so, provided that such individual shall not be a DHS employee.
7

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 10 of 53 PageID: 779
(1) Each individual to be admitted to a Developmental Center, andlor the individual's guardian, will be advised that representation by a DRNJ attorney may be available for the Pre-Admission Review. DRNJ will review any request for legal assistance made by a guardian or an individual regarding the individual's admission to a Developmental Center and will make a determination whether DRNJ will provide representation to the individual during the Pre-Admission review. Should DRNJ determine to provide representation to the individual, DRNJ shall select and appoint an attorney who will advocate for the expressed preference of the individual andlor his/her guardian. The Division will provide notice of the Pre-Admission Review to DRNJ whenever the Assistant Commissioner decides that an individual will be admitted to a Developmental Center.
(2) The IARO will make all reasonable efforts to hold in-person hearings to review admissions.
(3) The purpose of Pre-Admission Review will be to determine whether all reasonable and appropriate alternatives have been attempted and exhausted prior to admission.
(4) The Pre-Admission Review will be completed prior to admission, except that in circumstances resulting in a need for immediate placement, the Review may be convened within one week after the individual's admission.
(5) If, after conducting a Pre-Admission Review, the IARO does not agree with the individual's admission, the individual will not be admitted to a Developmental Center unless the Assistant Commissioner determines that the admission is necessary for the Individual's health, safety and welfare ("Assistant Commissioner's Waiver").
8

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 11 of 53 PageID: 780
Within seven days of any such admission, the Assistant Commissioner will provide the IARO and the individual's attorney/advocate 1) the reason that admission is necessary for the individual's health, safety and welfare; 2) a description of the community support(s) necessary to serve the individual in the community; and 3) a description of all efforts made to find community placement for that individual.
(6) Notwithstanding the foregoing or any other provision of this Agreement, in the event of circumstances indicating a need for immediate placement, the Assistant Commissioner shall have full authority to admit an individual to a Developmental Center and take any other action deemed appropriate in the Assistant Commissioner's discretion.
(7) Based on information obtained in the Pre-Admission Review process, the IARO may identify any significant gaps in the community service delivery system and make recommendations to the Assistant Commissioner for filling those gaps.
B. Interim Procedures. During the six-month period before implementation of the lARO, all proposed admissions to a Developmental Center shall be reviewed in advance by the Developmental Center Admissions Review Panel (ARP) and the Assistant Commissioner. In the event of circumstances indicating a need for immediate placement, such review will be performed within seven business days after the admission. 8. Post-Admission Procedures
A. Except for court ordered admissions as noted above, the Division will designate staff to be responsible for monitoring and oversight of discharge planning for all individuals admitted to Developmental Centers after the Effective Date, and for
9

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 12 of 53 PageID: 781
ensuring that such individuals are discharged to the community in conformance with their discharge plans, subject to review by the Assistant Commissioner, when they qualify as Community Placement Eligible.
B. The Division will promptly inform any admitted individual and the individual's attorney/advocate of the right to appeal the ad.mission decision pursuant to available administrative appeal procedures (NJAC 10:48-1.1 et seq.), or by petition for a writ of habeas corpus to a court of competent jurisdiction. The individual or his/her guardian shall be advised that representation by a DRNJ attorney may be available for any such appeal. Individuals who dispute the appropriateness of their admission to a Developmental Center shall be informed of the availability of DRNJ counsel.
C. For every person admitted to a Developmental Center on or after the Effective Date who is determined at the time of admission to be Community PlacementEligible:
(l) Within one year of admission, the Division will establish a plan for discharge of the individual within the time frames of paragraphs S.C.(l) and S.C.(2), which shall include a timeline for the development of needed services; and the Division will make a good-faith effort to implement each such plan;
(2) The Division will provide a copy of the discharge plan to DRNJ; and (3) DRNJ will monitor the individual's progress toward discharge. D. All individuals admitted to Developmental Centers on or after the Effective Date shall be informed no less than annually of their right to appeal their continued placement in the Developmental Center pursuant to available administrative appeal procedures (N .l.A.C. 10:48-1.1 et seq.), or by petition for a writ of habeas
10

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 13 of 53 PageID: 782

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

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

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

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

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

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

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

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

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

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

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

an court order of commitment from a criminal court.

10.

Funding. Consistent with Olmstead principles, Defendant Velez (the

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

identified as necessary to divert individuals from emergency admissions to

Developmental Centers and toward community-based settings where appropriate.

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

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

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

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

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

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

individuals eligible for DDD services.

11

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 14 of 53 PageID: 783
C. Upon receipt of CMS approval, within a reasonable period of time thereafter, DHS will implement a new Supports Program under the Comprehensive Medicaid Waiver, designed to expand community-based services as alternatives to institutional placements. The Supports Program will be open to Medicaid-eligible adult DDD clients (including individuals currently on the Waiting List), and will support individuals in their homes with appropriate services. To the extent available, such services will include, but not be limited to, day habilitation, respite, behavioral supports, supported employment, support coordination, assistive technology and environmental/vehicle modifications.
D. Upon closure of any Developmental Center, the Commissioner will seek, as one of the Department's top priorities, as part of the annual budget recommendations, that all funds previously allocated in the Appropriations Act to providing services to residents of the affected center be redirected to community-based services provided to former residents of that Developmental Center. 11. Settlement Monitoring and Implementation
A. A mutually agreeable consultant shall be hired at DHS expense, at a cost not to exceed twenty-five thousand dollars ($25,000) plus reasonable expenses annually, to advise both parties on the implementation of this Agreement and development of community-based resources. The Consultant shall be involved in planning for the training and mentoring of professionals employed by DDD and in bringing DDD into alignment with best practices and compliance with the time frames and other requirements in this Agreement.
12

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 15 of 53 PageID: 784
(1) The consultant shall have ready access to the reports provided pursuant to paragraph IIC below, all documents underlying those reports, all documents related to implementation of the Olmstead Plan, and any other information the Consultant considers necessary to perform the Consultant's functions under the Agreement. The Consultant also shall have ready access to individuals residing in Developmental Centers, with their consent, and to DDD staff and facilities. The Consultant shall execute a confidentiality agreement with substantially the same provisions as the Confidentiality Orders attached to this Agreement as Exhibit A.
(2) DRNJ, DDD and the Consultant shall have quarterly conference calls to discuss the status of the Consultant's work. However, any of such conference calls may be waived by the parties if DRNJ, DDD, and the Consultant all agree that the call is not necessary.
(3) The Consultant shall keep DRNJ and Defendants apprised of the status of her work. The Consultant may speak separately with either party or its representatives. The Consultant shall have the discretion to determine whether information the Consultant learns or discusses in a separate discussion with one party shall be kept confidential from the other.
(4) No later than July 1, 2016, the Consultant will make recommendations to the Commissioner with respect to the Pre-Admission Review procedure set forth above or any other relevant pre-admission review procedure, and with respect to any new or amended Olmstead plan. The Consultant shall provide a copy of such recommendations to DRNJ.
13

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 16 of 53 PageID: 785
(5) The Consultant shall be retained for four years from the date of retainer unless DRNJ and Defendants agree to discontinue use of the Consultant before then or to extend the retainer of the Consultant thereafter.
(6) In the event it becomes necessary to replace the consultant, the identity of a replacement Consultant shall be jointly agreed to by DRNJ and Defendants as follows:
a. DRNJ and Defendants shall each submit the name, curriculum vitae, and contact information of at least one proposed Consultant to the other within 15 days of receiving notice of the need for a replacement Consultant.
b. Each party shall have 30 days from the date of receiving notice of the need for a replacement Consultant to choose a replacement Consultant from those proposed; or, if that has not occurred by the thirtieth day, each party shall submit the name, curriculum vitae, and contact information of at least one other proposed consultant.
c. If DRNJ and Defendants have not agreed on the identity of the replacement Consultant by 30 days from the date of receiving notice of the need for a new Consultant, DRNJ and Defendants agree to mediate the matter for 15 days. DRNJ and Defendants may extend the IS-day time frame set forth herein by mutual agreement in writing.
B. Defendants will pay DRNJ eighty-eight thousand dollars ($88,000) per year for each year from FY2013 to FY2017 to cover all costs anticipated by the parties to be incurred by DRNJ pursuant to this Agreement; provided, however, that in the event that more than 20 individuals are admitted to Developmental Centers in any year
14

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 17 of 53 PageID: 786
from FY2013 to FY2016, the amount provided to DRNJ in the next succeeding fiscal year pursuant to this paragraph shall be ninety-four thousand dollars ($94,000).
C. DDD shall provide the following reports to DRNJ: (1) The DC Monthly Movement Summary, by the tenth day of each month
through June 2017, in the format shown in Exhibit B. (2) An updated Community Placement Eligibility list, in sortable
electronic form and in the format shown in Exhibit C, by February 1 and August 1 of each year through 2017.
(3) A report on the progress of its development of needed communitybased resources, by February 1 and August 1 of each year through 2017, in the format shown in Exhibit D. 12. General Release of Claims.
A. It is expressly understood and agreed by each of the Parties that this Agreement constitutes a complete and final general Release between the Parties with respect to any and all past and present liability, claims, demands,rights and causes of action, guarantees, claims for damages, settlements, costs, attorneys' fees and compensation of any kind or nature whatsoever (whether class, derivative or individual in nature), in connection with or arising out of the Actions.
B. In return for the consideration set forth in Paragraphs 5, 6, 7, and 8 and the other promises contained herein, Plaintiffs, and each of them, do knowingly and voluntarily, completely and forever, release and discharge Defendants, and each of them, and each and all of Defendants' present and former employees, officers, agents and representatives, and any successors of Defendants, from any and all claims, causes
15

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

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

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

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

E. Confidentiality. The Mediator shall execute a confidentiality agreement

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

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

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

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

have incurred in the Actions.

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

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

to: For Plaintiffs:

For Defendants:

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

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

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

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

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

comply with applicable New Jersey and federal law.

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

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

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

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

19

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

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

Date

ALLISON HARMON

·.'l

_ By:~ _____________________

'j

I
i

Valerie Harmon, Guardian

Date

FREDRENA THOMPSON

Date

REGINALD BROWN

Date

JONATHAN STEVENS For Defendants:
EZ r epartment of Human Services

Date
2 2 ~.(J
Date

21

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

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

Joseph Young Executive Director Disability Rights New Jersey, Inc.

Date

ALLISON HARMON

By: V~). ~,----­

Valerie HarnlOn, Guardian

Date

FREDRENA THOMPSON

Date

REGINALD BROWN

Date

JONATHAN STEVENS

Date

d)mdiliupgmer sey Department of Human Services

Z·Z&.il
Date

21

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

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

Joseph Young Executive Director Disability Rights New Jersey, Inc.

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

Date

¥ D I at{e .:l..~/

L.). •

REGINALD BROWN

Date

JONATIlAN STEVENS

Date

For Defendants:

Date

21

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

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

Joseph Young Executive Director Disability Rights New Jersey, Inc.

Date

ALLISON HARMON

By: __________________________

Valerie Harmon, Guardian

Date

FREDRENA THOMPSON

Date

'~~t&DR aWry

JONATHAN STEVENS

Date

Date

21

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

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

Joseph Young Executive Director Disability Rights New Jersey, Inc.

Date

ALLISON HARMON

By: ________________________

Valerle Harmon, Guardian

Date

FREDRENA THOMPSON

Date

vf2_1r«1IfI 1~~~.fo. REGINALD BROWN

Date

'.1..2

Date

21

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EXHIBIT A

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

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

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

RECEI\lED

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

MAy2Sta

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

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

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

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

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

DISCOVERY CONFIDENTJALITY AND PRO'I'F:CTIVE ORDER

D(~ [end~nts

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

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

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 30 of 53 PageID: 799
Case 3:05-cv-04723-AET-TJB Document 10 Filed OS/25/06 Page 2 of 9 PagelD: 65
wi ttl the HIPl\l\ Pri vacy Rules generally, and speci fically 45 C.F.R. 164.51?(e), which provj.des thaL protected health informati.on IlIay be provided in a judi ci al pnjceeding where a qua1iLied protect i ve oL'der has been unlared i ntD; and
WHE:Ff:AG, it is antiej.pated that durtng th8 course of the above-cnpLioned matter lhe State may have to disclose records which may contain protected heed Lh information wilhin the meaninq of HIPAA Privdcy Rule; elnd
WHE;k~;AS, il is ant:icipated that. the SLaLe may helve Lo disclose rccords in the custody of Department of Human Serviccs which may contain confid8ntial inforrm:lLion ptJrsuant Lu ~.J.S.A. 30:1-24.3, which can only be disclosed whore a cour.t. has ordered same pursuant to N.J.S_:.~ 30:1-24.3 (c) and the CourL hav.inq found that non-disclosure of records t.hat Ule State wi 11 pL'Clduce pursuant to discovery in this liligation would be contrary Lo the public interest; and
WIiEREAS, i t l~ i.inticj pated that New ,JeLsc;y Protection and l\dvocacy, Inc. (" NJ I?&A") may have to disclose records Lhat contain sensitive and confidential informati.on inr.:luding but not limited to medical conditioTls/lreatment. o[ NJP&A's constituents and/or records that nrc protected from dj.sc1usure under 42 U.S.C. §15041.
WH~Rh~S, iL is anticipated that third parties may have to di~close records lhat contain proLected health information wit.hin the meaning of the H[l?AA Privacy Rules,

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 31 of 53 PageID: 800
Case 3:05-cv-04723-AET-TJB Document 10 Filed OS/25/06 Page 3 of 9 PagelD: 66
or olher sensitive and confidential informalion that may be confidential pursuarlL to oLher statutes, requl.atiofls or case law, tncludinq but not limited Lo medical condi t,i ons/treatrnenl; and
WIlEREAS, tlw parties consent and agree to the terms, form ilnci ellLL'Y of Lhis Discovery Confi dentiali ty and Protective Order ("OrderU) on the following terms and for good cause shown;
IT IS, lherefore, ORDERED that:
1. All confidential malerial set forth above and produced subjecl lo the terms of this Order shall be termed "Confi dentiul Malerial." 'I'he desiqnaLion of Confi.dentiill Malcrial may be made by the producing party by conspicuously stamping or otherwis8 placing or affixing on documents produced Lhat are (or contain or reier La) Confidential Material the words "Confic:i(-mtial. /I
2. The parties shall not further reproduce, copy or otherwise disseminaLe Confidential Material to Dny person or agcllcy Lor any other reason, nor disscminate or m~ke pub1.ic thc records by any means, direct or indirect, other than LO lhe aforesaid attorney, or t.J18 court having juri sdicllon of the action except as tJPccified In this Order; uTld
3. nIl Confidential M~terial released to the pur lies as part of discovory pursuant to this Order:

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Case 3:05-cv-04723-AET-TJB Document 10 Filed OS/25/06 Page 4 of 9 PagelD: 67
a. shall b~ kept stricUy conftdenti a1 pursuanL to HIPAA Privacy Rule and shall nol be used or di.sclosed for any purpose other than tho trial preparation in the above-captioned mater, as specified in this Order, for which Lhis information wa~ reque~Lad as required by HIPAA I'rivacy Rule and speclfically 1!:i C.F.. ~. §] 64. ~12 (e) (1) (v) (A); and;
b. may not be disclosed to any other persons except for the parties, the attoTney~ of record for the pa.cties and members of their law finn::;/organizations, or to persons regularly employed in such law lirms/organizations' offices, or in acC,:ordaflCU with the limitatiolls set forth in paragraph 4, to cert~ifl oLher persons ~~ reasonably n~cessary for the preparation or trial of this matter.
4. In addition Lo those persons 1i::; tcd in pa raqraph 3 (v)( the following persons mt:.ly be given acceSR to Confidential M~t8rlal when reasonably necessary for the conduct of this liLigalion:
a. Expert witnesses alld consulting experts. b. CourL .reporters i.nvolved ill Laking
depositionR in this casco

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

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 34 of 53 PageID: 803 Case 3:05-cv-04723-AET-TJB Document 10 Filed OS/25/06 Page 6 of 9 PagelD: 69
of this l.itigation (including exhaustion of all appeals and/or p~tjtions fur ccrtiorari), al.1 Confidential Materiul providt'ld by L1IC State pursuant to Lhis Order, i.ncluding all copil:,s mdde for any reason, Shc111 either be returnod Lo
Zulima v. ~~rber, ALlurney General of New Jersey, through
Heth Leiqh MlLchell, Deputy Attorney General, or codified tu have been destroyed at lhc completion of this legal proceeding as required by the HIPAA Privacy Rule, 45 C.F.R.
§164.5l?(e) (1) (v) (B)
./. No later than sixty (60) days after the conclusion of this litigation (including oxhaustion of all appeals and/or petitions fUL certiorari), all Cunfidential Material provid~d by NJP&A pursuant to this Order, including all c()pi(·)~; lllaue for any r~asun, shall either be :n~Lurned to N,TP&A OL' Ballard SpatH Andrews & .ingersoll, 1LP, or ce:ctiftecl t.o have been destroyed at the completion of this l~gal pruceeding.
8. To the extent thaL any of the Confidential Material lS tu bc used as evidence in the above captioned mi'ltter, the party introducing such Confidential Malarial shall fU.e a mot.ion lo seal pursuant. to L. C.i.v ..~Il:.. 5.3 (c).
9. In the event that a good fuith dispute arises royardlng whether informatiun is properly designated as Confidential Matarial, such that is subject to the term~ of the OLdc~, Lhe party disputing the aosartion of

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

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

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

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

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

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

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

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

May 2,4, 7.006
Dale

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 38 of 53 PageID: 807
Case 3:08-cv-01858-AET-LHG Document 46 Filed 12103109 Page 1 of 8 PagelD: 598 Case 3:08-cv-01858-AET-LHG Document 42-2 Filed 11/02/2009 Page 1 of 8

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

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

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

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

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

)

)Civil Action No. 08-1858 (AET)

)

)

) DISCOVERY CONF:EDENTIALITY AND

)

PROTECTIVE ORDER

)

)

)

)

)

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

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 39 of 53 PageID: 808
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§1320d et seq., and its underlying regulations, 45 C.F.R. 160 and

164 (HIPAA Privacy Rule), generallYr and specifically 45

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

may be provided in a judicial proceeding where a protective order

has been entered into; and

WHEREAS, it is anticipated that the State may have to

disclose records in the custody of Department of Human Services,

Division of Developmental Disabilities, which may contain

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

only be disclosed where a court has ordered same pursuant to

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

disclosure of records that the State will produce pursuant to

discovery in this litigation would be contrary to the public

interest; and

WHEREAS, it is anticipated that New Jersey Protection and

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

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

and confidential information including but not limited to medical

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

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

WHEREAS, it is anticipated that third parties may have to

disclose records that contain sensitive and confidential

information

including

but

not

limited

to

medical

conditions/treatment; and

2

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

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which this information was requested as required by HIPAA

Privacy

Rule

and

specifically

45

C.F.R.

§164.512 (e) (1) (v) (A) i and

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

the parties, the attorneys of record for the parties and

members of their law firms/organizations, or to persons

regularly employed in such law firms/organizations'

offices, or in accordance with the limitations set forth

in paragraph 5, to certain other persons as reasonably

necessary for the preparation or trial of this matter.

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

the following persons may be given access to Confidential Material

when reasonably necessary for the conduct of this litigation:

a. Expert witnesses and consulting experts.

b. Court reporters involved in taking depositions in

this case.

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

to the extent necessary to conduct, depositions or

interviews of such witnesses .

d. Persons who were authors of the Confidential

Material, or who were previous recipients of the

Confidential Material.

e. Such other persons as may be identified in the

course of the litigation and as agreed between counsel

4

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

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

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

Case 3:08-cv-01858-AET-LHG Document 90 Filed 03/04/13 Page 45 of 53 PageID: 814
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We, the undersigned, hereby consent and agree to the terms, form and entry of this Order:

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

Date

8

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

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

Starting Census
From DC

July 2,703
1

August 2,702 0

September 2,694

October 2,685

0

0

Developmental Center Movement - FY 2011

November

December

January February

2,676

2,666

2,659

2,648

5

3

1

20

To DC

-1

0

0

0

-5

-3

From

Comm

6

3

5

1

3

3

To

Comm

-4

-4

-4

-3

-12

-5

Deaths

-3

-7

-10

-7

-1

-5

-1

-20

0

6

-8

-7

-3

-4

Discharges

0

0

0

0

Change(+/-)

-1

-8

-9

-9

Ending

Census

2,702

2,694

2,685

2,676

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

Own Home

3

0

4

0

Group Home

1

2

0

0

SupvApt

1

0

0

0

Skill Dev

0

0

0

0

Psy Hsptl

0

0

0

0

Correct Facil

1

1

0

0

Board Home

0

0

0

0

POC

0

0

1

0

Skill Nurs Fac

0

0

0

1

Total

6

3

5

1

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

Northern

2

1

0

0

Upper Central

2

1

1

0

Lower Central

0

1

1

1

Southern

2

0

3

0

Total

6

3

5

1

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

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

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

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

March 2,640
8 -8
,
3

April 2 ,621 5 -5 3

-14

-15

-8

-3

0

0

-19

-15

2,621

2,606

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

June 2,597 4 -4

. .

Total

!

2,703 1

48

-48

1

36

-9 -2 0 -10
2,587

-93 -56
-3 -116 2,587

1

2

1

0

16

1

0

1

0

9

0

0

0

0

2

0

0

0

0

0

0

0

1

1

2

1

0

0

0

3

0

0

0

0

0

0

0

0

0

1

0

1

0

1

4

3

3 I

2

2

-

37

1

1

1

0

11

1

0

0

0

7

0

1

1

0

10

1

0

0

1

7

3

2

2

1

35

-

-

---

092

DC Fiscal Year Movement Summary by Month and Movement type Report

0813112011 10:21 am Page 20/3

[

~~~~~~~-

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

"To ~

Comm" ~

B- reakout

Olm.Comm.

3

3

3

Non.Olm.

1

1

0

Comm.

Skill Nurs Fac

0

0

1

Correct Facil

0

0

0

Psych Hsptl

0

0

0

Total

4

4

4

November

December

3

8

3

0

3

0

0

0

2

0

1

0

0

0

0

3

12

5

7

6

13

14

6

1

1

0

0

0

0

0

0

0

1

0

0

0

0

1

0

0

0

0

0

8

7

14

14

7

7

76

0

7

0

4

0

2

2

2

9

91

092

DC FisCQI Year Movemenc Summary by Month and Movemenc type Report

0813112011 10:21 am Page3of3

Fiscal Year Summary ofDC Movements

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

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

DC Individuals Eligible for Community Placement Effective May 1, 2012

DC

DDDlD

ConsumerName

Guardianship Status

,

DC

DDDID

DC IndividualsNot Eligible for Community Placement

Effective May 1, 2012

ConsumerName

IDTin Favor of/Not Opposed

Individual In Favor of/Not opposed

Family in Favor of/Not
Opposed

Guardian in Favor of/Not Opposed

Guardianship Status

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

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

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

Row Labels

Units FY Cost

Annual Cost

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

156 3,224,212

22 2,102,998 2,453,911

13

671,801

988,774

3

81,749

79,239

10

590,053

909,535

670 47,487,422 55,759,584

50 4,121,717 7,638,901

199 2,799,609 5,217,147

5

313,919

968,921

7,897,405 14,080,850

175 18,086,199 24,128,177

7,591,483 3,725,588

241 6,677,090

114 7,356,650 12,184,498

16

512,648 2,519,996

32

542,674

896,524

66 6,301,329 8,767,978

50 3,068,887 3,136,826

8

90,700

7

423,547

758,174

79,554

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

62,995

22,500

30 2,542,198 3,759,409

972,564

9

863,372

965,469

7

159,614

204,228

2

703,758

761,241

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

Exhibit D Community Investment Summary Report.xlsx,Sheet11

 
 Case: 3:05-cv-4723 As of: 04/13/2013 05:52 PM EDT 1 of 20
CLOSED,RULE16,SCHEDO
U.S. District Court District of New Jersey [LIVE] (Trenton) CIVIL DOCKET FOR CASE #: 3:05−cv−04723−AET−TJB

NEW JERSEY PROTECTION &ADVOCACY, INC., et al. v. VELEZ Assigned to: Judge Anne E. Thompson Referred to: Magistrate Judge Tonianne J. Bongiovanni Cause: 42:12101 Americans with Disabilities Act
Plaintiff

Date Filed: 09/29/2005 Date Terminated: 12/21/2012 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

DISABILITY RIGHTS NEW JERSEY, INC.

represented by BRIAN ANTHONY BERKLEY PEPPER HAMILTON LLP 3000 TWO LOGAN SQUARE 18TH &ARCH STREETS PHILADELPHIA, PA 19103 215−981−4198 Email: berkleyb@pepperlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

ROSEMARY BATES WALSH BALLARD, SPAHR, ANDREWS &INGERSOLL, LLP PLAZA 1000 SUITE 500 MAIN STREET VOORHEES, NJ 08043−4636 (856) 761−3459 Email: walshr@ballardspahr.com TERMINATED: 07/26/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

WILLIAM GIBSON PEPPER HAMILTON LLP SUITE 400 301 CARNEGIE CENTER PRINCETON, NJ 08543 (609) 951−4141 Email: gibsonw@pepperlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

ANGELO A. STIO , III PEPPER HAMILTON LLP 301 CARNEGIE CENTER SUITE 400 PRINCETON, NJ 08543−5276 (609) 951−4125 Fax: (609) 452−1147

Case: 3:05-cv-4723 As of: 04/13/2013 05:52 PM EDT 2 of 20

Email: stioa@pepperlaw.com ATTORNEY TO BE NOTICED

EUGENE J. KUZINSKI INTEGRA LIFESCIENCES CORPORATION 311 ENTERPRISE DRIVE PLAINSBORO, NJ 08536 (609) 936−5405 Email: eugene.kuzinski@integra−ls.com TERMINATED: 11/15/2007 ATTORNEY TO BE NOTICED

JEFFREY A. CARR PEPPER HAMILTON LLP SUITE 400 301 CARNEGIE CENTER PRINCETON, NJ 08543−5276 (609) 452−0808 Email: carrj@pepperlaw.com ATTORNEY TO BE NOTICED

JOHN B. KEARNEY BALLARD, SPAHR LLP 210 Lake Drive East Suite 200 Cherry Hill, NJ 08002−1163 (856) 761−3482 Fax: 856−761−1020 Email: kearneyj@ballardspahr.com TERMINATED: 07/26/2010 ATTORNEY TO BE NOTICED

ROBERT P. DUFFIELD , II PEPPER HAMILTON LLP 3000 TWO LOGAN SQUARE 18TH &ARCH STREETS PHILADELPHIA, PA 19103 (215) 981−4365 Fax: (215) 981−4750 Email: duffieldr@pepperlaw.com ATTORNEY TO BE NOTICED

TRAVIS PAUL NELSON PEPPER HAMILTON LLP 3000 TWO LOGAN SQUARE 18TH &ARCH STREETS PHILADELPHIA, PA 19103 215−981−4187 Email: nelsont@pepperlaw.com TERMINATED: 10/15/2010 ATTORNEY TO BE NOTICED

Plaintiff
ALLISON HARMON by and through her guardians, VALERIE HARMON and LINDA LEMORE

represented by BRIAN ANTHONY BERKLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ROSEMARY BATES WALSH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:05-cv-4723 As of: 04/13/2013 05:52 PM EDT 3 of 20

WILLIAM EMMETT DWYER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM GIBSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ANGELO A. STIO , III (See above for address) ATTORNEY TO BE NOTICED

EUGENE J. KUZINSKI (See above for address) TERMINATED: 11/15/2007 ATTORNEY TO BE NOTICED

JEFFREY A. CARR (See above for address) ATTORNEY TO BE NOTICED

JOHN B. KEARNEY (See above for address) TERMINATED: 07/26/2010 ATTORNEY TO BE NOTICED

ROBERT P. DUFFIELD , II (See above for address) ATTORNEY TO BE NOTICED

TRAVIS PAUL NELSON (See above for address) TERMINATED: 10/15/2010 ATTORNEY TO BE NOTICED

Plaintiff FREDRENA THOMPSON

represented by BRIAN ANTHONY BERKLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ROSEMARY BATES WALSH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM EMMETT DWYER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM GIBSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ANGELO A. STIO , III (See above for address) ATTORNEY TO BE NOTICED

EUGENE J. KUZINSKI (See above for address)

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TERMINATED: 11/15/2007 ATTORNEY TO BE NOTICED

JEFFREY A. CARR (See above for address) ATTORNEY TO BE NOTICED

JOHN B. KEARNEY (See above for address) TERMINATED: 07/26/2010 ATTORNEY TO BE NOTICED

ROBERT P. DUFFIELD , II (See above for address) ATTORNEY TO BE NOTICED

TRAVIS PAUL NELSON (See above for address) TERMINATED: 10/15/2010 ATTORNEY TO BE NOTICED

Plaintiff REGINALD BROWN

represented by BRIAN ANTHONY BERKLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM EMMETT DWYER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM GIBSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ANGELO A. STIO , III (See above for address) ATTORNEY TO BE NOTICED

JEFFREY A. CARR (See above for address) ATTORNEY TO BE NOTICED

Plaintiff JONATHAN STEVENS

represented by BRIAN ANTHONY BERKLEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM EMMETT DWYER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM GIBSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ANGELO A. STIO , III (See above for address) ATTORNEY TO BE NOTICED

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JEFFREY A. CARR (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
JENNIFER VELEZ Commissioner of Human Services for the State of New Jersey

represented by BETH LEIGH MITCHELL OFFICE OF THE NJ ATTORNEY GENERAL DIVISION OF LAW RJ HUGHES JUSTICE COMPLEX 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625−0112 (609) 599−6869 Fax: (609) 292−0690 Email: beth.mitchell@dol.lps.state.nj.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRENDA C. LISS RIKER DANZIG HEADQUARTERS PLAZA ONE SPEEDWELL AVENUE MORRISTOWN, NJ 07962 973−451−8599 Email: bliss@riker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID L. DACOSTA OFFICE OF THE NJ ATTORNEY GENERAL DEPARTMENT OF LAW &PUBLIC SAFETY 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625 (609) 341−3689 Email: dacosdav@dol.lps.state.nj.us TERMINATED: 10/31/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
GAIL R. BERAN STATE OF NEW JERSEY DEPARTMENT OF LAW &PUBLIC SAFETY 25 MARKET STREET P.O. BOX 112 TRENTON, NJ 08625 609−292−8555 Email: berangai@dol.lps.state.nj.us TERMINATED: 12/29/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
GERARD ANDREW HUGHES OFFICE OF THE NJ ATTORNEY GENERAL DIVISION OF LAW 25 MARKET STREET

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PO BOX 112 TRENTON, NJ 08625−0112 (609) 341−5096 Email: gerard.hughes@lps.state.nj.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAMES BRADFORD MC ILVAIN ARCHER &GREINER, P.C. ONE LIBERTY PLACE, 32ND FLOOR 1650 MARKET STREET PHILADELPHIA, PA 19103 215−963−3300 Fax: 215−963−9999 Email: jmcilvain@archerlaw.com TERMINATED: 06/17/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
NATALIE D'AMORA ARCHER &GREINER PC ONE LIBERTY PLAZA 32ND FLOOR 1650 MARKET STREET PHILADELPHIA, PA 19103 215−963−3300 Email: ndamora@archerlaw.com TERMINATED: 06/17/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
AMY E. DUFF OFFICE OF THE NJ ATTORNEY GENERAL DEPARTMENT OF LAW &PUBLIC SAFETY − DIVISION OF LAW 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625−0112 (609) 341−5972 Email: amy.duff@law.dol.lps.state.nj.us TERMINATED: 02/25/2008 ATTORNEY TO BE NOTICED
JENNIFER J. DUGAN OFFICE OF THE NJ ATTORNEY GENERAL RJ HUGHES JUSTICE COMPLEX 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625 (609) 292−6120 Email: jennifer.dugan@law.dol.lps.state.nj.us TERMINATED: 10/16/2008 ATTORNEY TO BE NOTICED
LANCE J. KALIK RIKER DANZIG SCHERER HYLAND &PERRETTI, LLP ONE SPEEDWELL AVENUE PO BOX 1981 MORRISTOWN, NJ 07962−1981 (973) 538−0800 Email: lkalik@riker.com ATTORNEY TO BE NOTICED

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Defendant CLARKE BRUNO TERMINATED: 04/21/2011
Defendant STATE OF NEW JERSEY

MARY STEPHANIE BEATY OFFICE OF THE NJ ATTORNEY GENERAL RJ HUGHES JUSTICE COMPLEX 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625 (609) 984−9504 Email: stephanie.beaty@dol.lps.state.nj.us ATTORNEY TO BE NOTICED
represented by BETH LEIGH MITCHELL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID L. DACOSTA (See above for address) TERMINATED: 10/31/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
GERARD ANDREW HUGHES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JENNIFER J. DUGAN (See above for address) TERMINATED: 10/16/2008 ATTORNEY TO BE NOTICED
MARY STEPHANIE BEATY (See above for address) ATTORNEY TO BE NOTICED
represented by BETH LEIGH MITCHELL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRENDA C. LISS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID L. DACOSTA (See above for address) TERMINATED: 10/31/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
GAIL R. BERAN (See above for address) TERMINATED: 12/29/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
GERARD ANDREW HUGHES (See above for address) LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

JENNIFER J. DUGAN (See above for address) TERMINATED: 10/16/2008 ATTORNEY TO BE NOTICED

LANCE J. KALIK (See above for address) ATTORNEY TO BE NOTICED

MARY STEPHANIE BEATY (See above for address) ATTORNEY TO BE NOTICED

Amicus
UNITED STATES OF AMERICA United States of America, Intervenor

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

RICHARD JAMES FARANO U.S. DEPARTMENT OF JUSTICE SPECIAL LITIGATION SEDCTION − CRT PATRICK HENRY BUILDING ROOM 5020 950 PENNSYLVANIA AVENUE NW WASHINGTON, DC 20530 202−307−3116 Email: richard.farano@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/29/2005 10/31/2005
12/05/2005 12/07/2005 12/08/2005 12/28/2005

# Docket Text
1 COMPLAINT against JAMES M. DAVY ( Filing fee $ 250 receipt number 345145.) , filed by NEW JERSEY PROTECTION &ADVOCACY, INC., ALLISON HARMON.(gr) (Entered: 09/30/2005)
2 WAIVER OF SERVICE Returned Executed by FREDRENA THOMPSON, NEW JERSEY PROTECTION &ADVOCACY, INC., ALLISON HARMON. JAMES M. DAVY waiver sent on 10/5/2005, answer due 12/5/2005. (DWYER, WILLIAM) (Entered: 10/31/2005)
3 ANSWER to Complaint by JAMES M. DAVY.(MITCHELL, BETH) (Entered: 12/05/2005)
4 ORDER REASSIGNING CASE. Case reassigned to Judge Stanley R. Chesler for all further proceedings. Judge Mary L. Cooper no longer assigned to case. Signed by Judge Garrett E. Brown, Jr. on 12/7/05. (ck ) (Entered: 12/07/2005)
5 CERTIFICATE OF SERVICE by JAMES M. DAVY re 3 Answer to Complaint (MITCHELL, BETH) (Entered: 12/08/2005)
6 ORDER Scheduling a rule 16 Conference set for 2/14/2006 10:30 AM in Trenton − Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni.Signed by Judge Tonianne J. Bongiovanni on 12/28/05. (Attachments: # 1 ADR MEMO)(mm) (Entered: 12/29/2005)

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02/01/2006 02/14/2006 02/23/2006
03/09/2006 05/17/2006 05/22/2006 05/25/2006 07/10/2006 07/12/2006 09/11/2006 09/15/2006 12/20/2006
12/22/2006
12/28/2006 01/19/2007 01/25/2007

7 NOTICE of Appearance by AMY E. DUFF on behalf of JAMES M. DAVY (DUFF, AMY) (Entered: 02/01/2006)
Minute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Initial Pretrial Conference held on 2/14/2006. (mm) (Entered: 02/21/2006)
8 SCHEDULING ORDER: Telephone Conference set for 5/22/2006 10:30 AM in Trenton − Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. Final Pretrial Conference set for 3/15/2008 11:00 AM in Trenton − Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. Discovery due by 2/28/2007 &setting schedule for service of certain reports. Signed by Judge Tonianne J. Bongiovanni on 2/17/06. (ij, ) (Entered: 02/23/2006)
9 NOTICE of Appearance by JOHN B. KEARNEY on behalf of all plaintiffs (KEARNEY, JOHN) (Entered: 03/09/2006)
Reset Hearings: Status Telephone Conference set for 5/22/2006 1:00 PM before Magistrate Judge Tonianne J. Bongiovanni. (mm) (Entered: 05/17/2006)
Minute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 5/22/2006. Status Telephone Conference set for 7/12/2006 3:00 PM before Magistrate Judge Tonianne J. Bongiovanni. Plaintiff is to initiate the call. (mm) (Entered: 05/22/2006)
10 DISCOVERY CONFIDENTIALITY &PROTECTIVE ORDER. Signed by Judge Tonianne J. Bongiovanni on 5/25/06. (ck) (Entered: 05/30/2006)
11 ORDER REASSIGNING CASE. Case reassigned to Judge Freda L. Wolfson for all further proceedings. Judge Stanley R. Chesler no longer assigned to case. Signed by Judge Garrett E. Brown, Jr. on 7/10/06. (ij, ) (Entered: 07/12/2006)
Minute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 7/12/2006. Status Telephone Conference set for 9/11/2006 11:30 AM before Magistrate Judge Tonianne J. Bongiovanni. (mm) (Entered: 07/12/2006)
Minute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 9/11/2006. Status Telephone Conference set for 1/25/2007 10:00 AM before Magistrate Judge Tonianne J. Bongiovanni. Plaintiff is to initiate the call. (mm) (Entered: 09/11/2006)
12 ORDER confirming extention of certain deadlines. Signed by Judge Tonianne J. Bongiovanni on 9/13/06. (ms) (Entered: 09/15/2006)
13 MOTION for Leave to File Amended Complaint, Add Additional Defendant and Modify Pretrial Scheduling Order by FREDRENA THOMPSON, NEW JERSEY PROTECTION &ADVOCACY, INC., ALLISON HARMON. (Attachments: # 1 Brief # 2 Text of Proposed Order # 3 Certification)(KUZINSKI, EUGENE) (Entered: 12/20/2006)
Setting Deadlines as to 13 MOTION for Leave to File Amended Complaint, Add Additional Defendant and Modify Pretrial Scheduling Order. Motion set for 1/16/2007 10:00 AM in Trenton − Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. (PLEASE NOTE THAT PURSUANT TO FED. R. CIV. P. 78 AND LOCAL RULE 7.1(B)(4), NO ORAL ARGUMENT WILL BE HELD IN THIS MATTER AND PARTIES SHOULD NOT APPEAR UNLESS SPECIFICALLY DIRECTED TO DO SO BY THE COURT.) (ij, ) (Entered: 12/22/2006)
14 ORDER extending time to file certain pleading. Signed by Judge Tonianne J. Bongiovanni on 12/27/06. (ij, ) (Entered: 12/28/2006)
15 RESPONSE to Motion re 13 MOTION for Leave to File Amended Complaint, Add Additional Defendant and Modify Pretrial Scheduling Order filed by JAMES M. DAVY. (DUFF, AMY) (Entered: 01/19/2007)
Minute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 1/25/2007. (mm) (Entered: 01/29/2007)

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01/30/2007 02/01/2007 02/02/2007 02/15/2007 02/20/2007 03/12/2007 03/21/2007 05/03/2007 05/15/2007 05/29/2007 06/04/2007 08/02/2007 08/21/2007 08/27/2007 11/15/2007
11/26/2007

16 ORDER granting 13 Motion for Leave to File an Amended Complaint by 2/16/07. Signed by Judge Tonianne J. Bongiovanni on 1/29/07. (ck) (Entered: 01/30/2007)
17 AMENDED COMPLAINT against Clarke Bruno, STATE OF NEW JERSEY, filed by FREDRENA THOMPSON, NEW JERSEY PROTECTION &ADVOCACY, INC., ALLISON HARMON.(KUZINSKI, EUGENE) (Entered: 02/01/2007)
CLERK'S OFFICE QUALITY CONTROL MESSAGE: In reference to the 17 Amended Complaint filed by E. KUZINSKI, ESQ counsel is advised when adding parties to a case to please add parties in UPPER CASE LETTERS. (ij, ) (Entered: 02/02/2007)
18 ORDER confirming certain deadlines: Telephone Conference set for 5/15/2007 11:30 AM before Magistrate Judge Tonianne J. Bongiovanni. Discovery due by 8/31/2007.. Signed by Judge Tonianne J. Bongiovanni on 2/15/07. (ck, ) (Entered: 02/16/2007)
19 CONSENT ORDER re−setting answer deadlines for Amended Complaint to April 3, 2007. Signed by Judge Tonianne J. Bongiovanni on 2/20/07. (ij, ) (Entered: 02/21/2007)
20 WAIVER OF SERVICE Returned Executed by FREDRENA THOMPSON, NEW JERSEY PROTECTION &ADVOCACY, INC., ALLISON HARMON. STATE OF NEW JERSEY waiver sent on 2/2/2007, answer due 4/3/2007. (DWYER, WILLIAM) (Entered: 03/12/2007)
21 CONSENT ORDER extending time for responsive pleading to be filed as to Amended Complaint by May 3, 2007. Signed by Judge Tonianne J. Bongiovanni on 3/19/07. (ij, ) (Entered: 03/21/2007)
22 CONSENT ORDER directing that all responsive pleadings to the amended complaint shall be due on or before June 4, 2007. Signed by Judge Tonianne J. Bongiovanni on 5/2/07. (ij, ) (Entered: 05/03/2007)
Minute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 5/15/2007. (mm) (Entered: 05/15/2007)
23 ORDER confirming parties are meeting on 5/24/2007 to discuss certain issues Signed by Judge Tonianne J. Bongiovanni on 5/23/2007. (ss, ) (Entered: 05/29/2007)
24 ANSWER to Amended Complaint by CLARKE BRUNO, STATE OF NEW JERSEY. (Attachments: # 1 Certificate of Service)(MITCHELL, BETH) (Entered: 06/04/2007)
25 SCHEDULING ORDER:Telephone Conference set for 8/21/2007 11:00 AM in Trenton − Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. Signed by Judge Tonianne J. Bongiovanni on 8/2/07. (ij, ) (Entered: 08/02/2007)
Minute Entry for proceedings held before Judge Tonianne J. Bongiovanni: Telephone Conference held on 8/21/2007. (mm) (Entered: 08/27/2007)
26 LETTER ORDER:Telephone Conference set for 11/28/2007 03:00 PM in Trenton − Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. Discovery due by 11/30/2007 and setting schedule for service of certain reports. Signed by Judge Tonianne J. Bongiovanni on 8/27/07. (ij, ) (Entered: 08/28/2007)
27 Substitution of Attorney − Attorney ROSEMARY BATES WALSH for ALLISON HARMON, NEW JERSEY PROTECTION &ADVOCACY, INC., and FREDRENA THOMPSON added. Attorney EUGENE J. KUZINSKI terminated. (Attachments: # 1 Certificate of Service)(WALSH, ROSEMARY) Modified on 11/16/2007 to correct text. (ms). (Entered: 11/15/2007)
28 MOTION for Leave to Appear Pro Hac Vice of David Ferleger by NEW JERSEY PROTECTION &ADVOCACY, INC.. (Attachments: # 1 Notice of Motion# 2 Declaration of David Ferleger# 3 Text of Proposed Order Granting Pro Hac Vice Admission# 4 Certification of Service)(DWYER, WILLIAM) (Entered: 11/26/2007)

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11/27/2007
11/29/2007 11/29/2007 12/03/2007 01/22/2008 02/04/2008 02/05/2008
02/05/2008 02/05/2008 02/21/2008 02/25/2008 03/05/2008 03/06/2008 03/10/2008 05/01/2008
05/05/2008 06/16/2008

Setting Deadlines as to 28 MOTION for Leave to Appear Pro Hac Vice of David Ferleger. Motion set for 1/7/2008 10:00 AM in Trenton − Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni. (PLEASE NOTE THAT PURSUANT TO FED. R. CIV. P. 78 AND LOCAL RULE 7.1(B)(4), NO ORAL ARGUMENT WILL BE HELD IN THIS MATTER AND PARTIES SHOULD NOT APPEAR UNLESS SPECIFICALLY DIRECTED TO DO SO BY THE COURT.) (ij, ) (Entered: 11/27/2007)
29 NOTICE of Appearance by JENNIFER J. DUGAN on behalf of all defendants (Attachments: # 1 Certificate of Service Cert re: notice of appearance)(DUGAN, JENNIFER) (Entered: 11/29/2007)
30 LETTER ORDER setting certain discovery deadlines. Signed by Judge Tonianne J. Bongiovanni on 11/28/07. (ij, ) (Entered: 11/29/2007)
31 CONSENT ORDER amending caption. Signed by Judge Tonianne J. Bongiovanni on 11/30/07. (ms) (Entered: 12/03/2007)
32 ORDER granting 28 Motion for David Ferleger, Esq to Appear Pro Hac Vice. Signed by Judge Tonianne J. Bongiovanni on 1/22/08. (ij, ) (Entered: 01/22/2008)
33 Substitution of Attorney. (WALSH, ROSEMARY) Modified on 2/5/2008 to show this incomplete entry by counsel is a Substitution of Attorney. (ms) (Entered: 02/04/2008)
CLERK'S OFFICE QUALITY CONTROL MESSAGE: In reference to the 33 Substitution of Attorney filed by R. Walsh, Esq on 2/4/08 counsel is advised that this document must be re−submitted properly as the Superseding attorney (Mr. Duffield) was never added to the docket and the docket text is incomplete. (ij, ) (Entered: 02/05/2008)
Pro Hac Vice fee for DAVID FERLEGER, ESQ.: $ 150.00, receipt number 300−362971. (ms) (Entered: 02/05/2008)
34 NOTICE of Appearance by ROBERT P. DUFFIELD, II on behalf of FREDRENA THOMPSON, NEW JERSEY PROTECTION &ADVOCACY, INC., ALLISON HARMON (DUFFIELD, II, ROBERT) (Entered: 02/05/2008)
35 LETTER ORDER re−scheduling certain conference to March 5, 2008 at 9:30 a.m. Signed by Magistrate Judge Tonianne J. Bongiovanni on 2/20/08. (ij, ) (Entered: 02/21/2008)
36 Substitution of Attorney − Attorney GAIL R. BERAN for JENNIFER VELEZ and STATE OF NEW JERSEY added. Attorney AMY E. DUFF terminated. (ij, ) (Entered: 02/25/2008)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 3/5/2008. (mm) (Entered: 03/05/2008)
Remark: Fact discovery to be completed by April 1, 2008, and parties are to provide a status update. The Court shall set settlement upon completion of fact discovery. (mm) (Entered: 03/06/2008)
37 ORDER resetting Fact Discovery Deadline to 4/15/2008.. Signed by Magistrate Judge Tonianne J. Bongiovanni on 3/7/2008. (tp ) (Entered: 03/10/2008)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Settlement Conference held on 5/1/2008. Status Telephone Conference set for 8/12/2008 10:30 AM before Magistrate Judge Tonianne J. Bongiovanni. (mm) (Entered: 05/01/2008)
38 LETTER ORDER setting certain discovery deadlines. Signed by Magistrate Judge Tonianne J. Bongiovanni on 5/2/08. (ij, ) (Entered: 05/06/2008)
39 ORDER REASSIGNING CASE. Case reassigned to Judge Judge Anne E. Thompson for all further proceedings. Signed by Chief Judge Garrett E. Brown, Jr. on 6/11/08. (ij, ) (Entered: 06/16/2008)

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08/12/2008 09/22/2008 10/10/2008 10/16/2008 10/24/2008 10/29/2008 01/23/2009 03/20/2009
04/16/2009 05/08/2009 09/04/2009 09/08/2009 09/21/2009 10/29/2009
11/24/2009

Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 8/12/2008. (mm) (Entered: 08/12/2008)
40 Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 9/22/2008. (DIGITALLY RECORDED B08#9.) (mm) (mm, ). (Entered: 09/23/2008)
41 LETTER ORDER setting telephone conference for January 23, 2009 at 10:00 a.m. Signed by Magistrate Judge Tonianne J. Bongiovanni on 10/9/08. (ij, ) (Entered: 10/10/2008)
42 Substitution of Attorney − Attorney DAVID L. DACOSTA and DAVID L. DACOSTA for JENNIFER VELEZ, CLARKE BRUNO and STATE OF NEW JERSEY added. Attorney JENNIFER J. DUGAN terminated.. (DACOSTA, DAVID) (Entered: 10/16/2008)
43 STIPULATION re 17 Amended Complaint, 1 Complaint changing the caption to reflect Plaitniff's new name by JENNIFER VELEZ, STATE OF NEW JERSEY. (MITCHELL, BETH) (Entered: 10/24/2008)
44 STIPULATION &ORDER that "Disability Rights New Jersey, Inc." be substituted for "New Jersey Protection &Advocacy, Inc." as plaintiff. Signed by Magistrate Judge Tonianne J. Bongiovanni on 10/29/08. (ij, ) (Entered: 10/30/2008)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 1/23/2009. (mm) (Entered: 01/23/2009)
TEXT ORDER − Status Conference via telephone set for April 16, 2009 at 1:00 PM before Magistrate Judge Tonianne J. Bongiovanni. It shall be plaintiffs counsels responsibility to contact all counsel to set up the conference as well as to initiate the call. Kindly mark your calendar accordingly. Ordered by Magistrate Judge Tonianne J. Bongiovanni.(mm) (Entered: 03/20/2009)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 4/16/2009. (mm) (Entered: 04/17/2009)
45 ORDER SCHEDULING ORDER: Telephone Conference set for 9/10/2009 10:00 AM before Magistrate Judge Tonianne J. Bongiovanni., Motions due by 12/11/2009.. Signed by Magistrate Judge Tonianne J. Bongiovanni on 5/8/09. (lk) (Entered: 05/08/2009)
46 NOTICE of Appearance by GERARD ANDREW HUGHES on behalf of JENNIFER VELEZ, CLARKE BRUNO, STATE OF NEW JERSEY (HUGHES, GERARD) (Entered: 09/04/2009)
47 LETTER ORDER rescheduling the Telephone Conference originally set for 9/10/2009 to 9/21/2009 at 3:00 PM before Magistrate Judge Tonianne J. Bongiovanni. Pltf shall initiate the call. Signed by Magistrate Judge Tonianne J. Bongiovanni on 9/8/2009. (gxh) (Entered: 09/08/2009)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 9/21/2009. Status report regarding discovery is due to this Court no later than November 17, 2009. (mm) (Entered: 09/21/2009)
48 LETTER ORDER extending the deadline for Deft to serve her expert report to 11/13/2009, the deadline for the status update to the court to 12/1/2009, the deadline for expert depositions to 12/4/2009 and the deadline for dispositive motions to 1/11/2010. Signed by Magistrate Judge Tonianne J. Bongiovanni on 10/29/2009. (gxh) (Entered: 10/29/2009)
49 LETTER ORDER extending the deadline for completion of expert depositions to 12/18/2009 and the deadline for dispositive motions to 1/25/2010. Signed by Magistrate Judge Tonianne J. Bongiovanni on 11/24/2009. (gxh) (Entered: 11/24/2009)

Case: 3:05-cv-4723 As of: 04/13/2013 05:52 PM EDT 13 of 20

01/20/2010 02/17/2010 03/05/2010 03/10/2010 03/25/2010
03/25/2010 03/25/2010 03/25/2010
03/26/2010 04/05/2010 04/05/2010

50 LETTER ORDER granting the parties' request for an extension of time to file dispositive motions until 2/25/2010. Signed by Magistrate Judge Tonianne J. Bongiovanni on 1/20/2010. (gxh) (Entered: 01/20/2010)
51 LETTER ORDER extending the deadline for the filing of dispositive motions to 3/11/2010. Signed by Magistrate Judge Tonianne J. Bongiovanni on 2/16/2010. (gxh) (Entered: 02/17/2010)
52 LETTER ORDER granting counsel's request for a two−week extension of time to 3/25/2010 to file summary judgment motions; granting counsel's request for leave to file overlength summary judgment briefs. Signed by Magistrate Judge Tonianne J. Bongiovanni on 3/5/2010. (gxh) (Entered: 03/08/2010)
53 LETTER ORDER granting counsel's request for a two−week extension of time to 3/25/2010 to file summary judgment motions; granting counsel's request for leave to file overlength summary judgment briefs. Signed by Magistrate Judge Tonianne J. Bongiovanni on 3/10/2010. (gxh) (Entered: 03/10/2010)
54 MOTION for Summary Judgment by DISABILITY RIGHTS NEW JERSEY, INC., ALLISON HARMON, FREDRENA THOMPSON. Responses due by 4/5/2010 (Attachments: # 1 Text of Proposed Order, # 2 Brief, # 3 Certification of Counsel, # 4 Exhibit A, # 5 Exhibit B Part 1 of 3, # 6 Exhibit B Part 2 of 3, # 7 Exhibit B Part 3 of 3, # 8 Exhibit C, D and E, # 9 Exhibit F. G and H, # 10 Exhibit I, # 11 Exhibit J, K and L, # 12 Exhibit M Part 1 of 4, # 13 Exhibit M Part 2 of 4, # 14 Exhibit M Part 3 of 4, # 15 Exhibit M Part 4 of 4, # 16 Exhibit N, O, P and Q, # 17 Exhibit R, S and T, # 18 Exhibit U Part 1 of 4, # 19 Exhibit U Part 2 of 4, # 20 Exhibit U Part 3 of 4, # 21 Exhibit U Part 4 of 4, # 22 Exhibit V, W and X, # 23 Exhibit Y, # 24 Exhibit Z, # 25 Exhibit AA, BB, CC, DD and EE, # 26 Statement of Undisputed Material Facts, # 27 Certificate of Service)(KEARNEY, JOHN) (Entered: 03/25/2010)
55 MOTION to Preclude Testimony of Defendants' Expert Robert Gettings Pursuant to Federal Rule of Evidence 702 by DISABILITY RIGHTS NEW JERSEY, INC., ALLISON HARMON, FREDRENA THOMPSON. (Attachments: # 1 Text of Proposed Order, # 2 Brief, # 3 Certification of Counsel, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Certificate of Service)(KEARNEY, JOHN) (Entered: 03/25/2010)
Set Deadlines as to 55 MOTION to Preclude Testimony of Defendants' Expert Robert Gettings Pursuant to Federal Rule of Evidence 702, 54 MOTION for Summary Judgment. Motion set for 4/19/2010 before Judge Anne E. Thompson. The motion will be decided on the papers. No appearances required unless notified by the court. (gxh) (Entered: 03/25/2010)
56 MOTION for Summary Judgment by STATE OF NEW JERSEY, JENNIFER VELEZ. Responses due by 4/16/2010 (Attachments: # 1 Brief, # 2 Statement of Material Facts, # 3 Certification of Kenneth Ritchey, # 4 Certification of Patricia Merk, # 5 Certification of Jonathan Seifried, # 6 Certification of Gerard Hughes, # 7 Exhibit A (Part 1), # 8 Exhibit A (Part 2) through C, # 9 Exhibit D through M, # 10 Certificate of Service, # 11 Text of Proposed Order)(HUGHES, GERARD) (Entered: 03/25/2010)
Set Deadlines as to 56 MOTION for Summary Judgment. Motion set for 5/3/2010 before Judge Anne E. Thompson. The motion will be decided on the papers. No appearances required unless notified by the court. (gxh) (Entered: 03/26/2010)
57 ORDER certifying to the Attorney General of the United States a challenge to the constitutionality of an Act of Congress; that in the event the United States seeks to file a petition for intervention, it shall do so by 5/5/2010; directing Clerk to send a copy of this Order to the United States Attorney for this District, the Office of the Attorney General, and the United States Department of Justice. Signed by Judge Anne E. Thompson on 4/5/2010. (gxh) (Entered: 04/05/2010)
58 LETTER ORDER that the deadline for opposition briefs for the Motions for Summary Judgment and Motion to Preclude Defts' experts is 5/24/2010; reply briefs due 6/23/2010. Signed by Judge Anne E. Thompson on 4/5/2010. (gxh) (Entered: 04/05/2010)

Case: 3:05-cv-4723 As of: 04/13/2013 05:52 PM EDT 14 of 20

05/05/2010 05/05/2010 05/24/2010 05/24/2010 05/24/2010
05/24/2010 05/24/2010 05/24/2010 06/21/2010 06/21/2010 06/23/2010 06/23/2010 06/23/2010 06/28/2010

59 NOTICE by UNITED STATES OF AMERICA to Intervene Pursuant to 28 U.S.C. 2403(a) (Attachments: # 1 Certificate of Service)(RUYMANN, JOHN) (Entered: 05/05/2010)
60 NOTICE of Appearance by JOHN ANDREW RUYMANN on behalf of UNITED STATES OF AMERICA (Attachments: # 1 Certificate of Service)(RUYMANN, JOHN) (Entered: 05/05/2010)
61 MOTION for Leave to Appear Amicus Curiae by UNITED STATES OF AMERICA. (Attachments: # 1 Memorandum in Support of Motion, # 2 Text of Proposed Order, # 3 Brief)(FARANO, RICHARD) (Entered: 05/24/2010)
Set Deadlines as to 61 MOTION for Leave to Appear Amicus Curiae. Motion set for 6/21/2010 before Judge Anne E. Thompson. The motion will be decided on the papers. No appearances required unless notified by the court. (gxh) (Entered: 05/24/2010)
62 MEMORANDUM in Opposition re 56 MOTION for Summary Judgment of Defendants filed by DISABILITY RIGHTS NEW JERSEY, INC., ALLISON HARMON, FREDRENA THOMPSON. (Attachments: # 1 Statement of Undisputed Material Facts (Response), # 2 Certificate of Service, # 3 Certification of Counsel, # 4 Exhibit FF, Part 1, # 5 Exhibit FF, Part 2, # 6 Exhibit FF, Part 3, # 7 Exhibit GG, # 8 Exhibit HH, # 9 Exhibit II, # 10 Exhibit JJ, # 11 Exhibit KK, # 12 Exhibit LL)(DUFFIELD, ROBERT) (Entered: 05/24/2010)
63 BRIEF of the United States as Intervenor in Support of the Constitutionality of Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act filed by UNITED STATES OF AMERICA. (Attachments: # 1 Certificate of Service)(RUYMANN, JOHN) (Entered: 05/24/2010)
64 BRIEF in Opposition re 54 MOTION for Summary Judgment filed by STATE OF NEW JERSEY, JENNIFER VELEZ. (Attachments: # 1 Statement Counter Statement of Fact, # 2 Certification of Gerard Hughes, # 3 Exhibit A through E, # 4 Exhibit F through K, # 5 Certification of Kenneth Ritchey, # 6 Certificate of Service)(HUGHES, GERARD) (Entered: 05/24/2010)
65 BRIEF in Opposition re 55 MOTION to Preclude Testimony of Defendants' Expert Robert Gettings Pursuant to Federal Rule of Evidence 702 filed by STATE OF NEW JERSEY, JENNIFER VELEZ. (Attachments: # 1 Certification of Gerard Hughes, # 2 Exhibit A and B, # 3 Certificate of Service)(HUGHES, GERARD) (Entered: 05/24/2010)
66 ORDER granting 61 Motion to Appear Amicus Curiae; directing the Clerk to file the brief of the United States as amicus curiae. Signed by Judge Anne E. Thompson on 6/18/2010. (gxh) (Entered: 06/21/2010)
67 BRIEF in Support re 54 MOTION for Summary Judgment filed by UNITED STATES OF AMERICA as amicus curiae. [Filed per 66 ORDER] (gxh) (Entered: 06/21/2010)
68 REPLY BRIEF to Opposition to Motion re 55 MOTION to Preclude Testimony of Defendants' Expert Robert Gettings Pursuant to Federal Rule of Evidence 702 filed by DISABILITY RIGHTS NEW JERSEY, INC., ALLISON HARMON, FREDRENA THOMPSON. (DUFFIELD, ROBERT) (Entered: 06/23/2010)
69 REPLY BRIEF to Opposition to Motion re 54 MOTION for Summary Judgment filed by DISABILITY RIGHTS NEW JERSEY, INC., ALLISON HARMON, FREDRENA THOMPSON. (Attachments: # 1 Certification of Counsel, # 2 Certificate of Service)(DUFFIELD, ROBERT) (Entered: 06/23/2010)
70 REPLY BRIEF to Opposition to Motion re 56 MOTION for Summary Judgment and to United States' amicus curiae and intervening briefs filed by STATE OF NEW JERSEY, JENNIFER VELEZ. (Attachments: # 1 Certification of Counsel, # 2 Exhibit A, # 3 Certificate of Service)(HUGHES, GERARD) (Entered: 06/23/2010)
71 Letter from W. Emmett Dwyer. (Attachments: # 1 attachment, # 2 attachment)(DWYER, WILLIAM) (Entered: 06/28/2010)

Case: 3:05-cv-4723 As of: 04/13/2013 05:52 PM EDT 15 of 20

07/26/2010 08/03/2010 08/04/2010 08/10/2010 08/31/2010 09/01/2010
09/01/2010 09/09/2010 09/09/2010 09/22/2010 09/22/2010
09/23/2010 09/23/2010 09/24/2010 09/30/2010 10/06/2010

72 Substitution of Attorney − Attorney JOHN B. KEARNEY terminated. Attorney ANGELO A. STIO, III for DISABILITY RIGHTS NEW JERSEY, INC.,ANGELO A. STIO, III for ALLISON HARMON,ANGELO A. STIO, III for FREDRENA THOMPSON added.. (STIO, ANGELO) (Entered: 07/26/2010)
Set Deadlines as to 56 MOTION for Summary Judgment, 54 MOTION for Summary Judgment. Motion hearing set for 9/22/2010 10:00 AM in Trenton − Courtroom 4W before Judge Anne E. Thompson. (jb, ) (Entered: 08/03/2010)
73 NOTICE of Appearance by TRAVIS PAUL NELSON on behalf of All Plaintiffs (NELSON, TRAVIS) (Entered: 08/04/2010)
74 OPINION &ORDER denying without prejudice 55 Pltfs' Motion to Exclude the Testimony of Deft's Expert Robert Gettings. Signed by Judge Anne E. Thompson on 8/8/2010. (gxh) (Entered: 08/10/2010)
75 Letter from Gerard Hughes. (Attachments: # 1 Certification of Kenneth Ritchey w Exhibits A − E)(HUGHES, GERARD) (Entered: 08/31/2010)
CLERK'S QUALITY CONTROL MESSAGE − The Amended Certification in Support of Motion 75 filed by Gerard Hughes, Esq. on 8/31/2010 was submitted incorrectly as a Letter. PLEASE RESUBMIT THE Amended Certification in Support of Motion USING the event Certification in Support of Motion found under MOTIONS AND RELATED FILINGS −> RESPONSES AND RESPONSES. This submission will remain on the docket unless otherwise ordered by the court. (gxh) (Entered: 09/01/2010)
76 CERTIFICATION in Support re 56 MOTION for Summary Judgment filed by STATE OF NEW JERSEY, JENNIFER VELEZ. (Attachments: # 1 Certification of Kenneth Ritchey w Exhibits A through E)(HUGHES, GERARD) (Entered: 09/01/2010)
Set Deadlines as to 56 MOTION for Summary Judgment, 54 MOTION for Summary Judgment. Motion set for 9/22/2010 10:00 AM in Trenton − Courtroom 4W before Judge Anne E. Thompson. (jb, ) (Entered: 09/09/2010)
77 NOTICE by UNITED STATES OF AMERICA advising of the appearance of Samuel R. Bagenstos, Principal Deputy Assistant Attorney General (Attachments: # 1 Certificate of Service)(RUYMANN, JOHN) (Entered: 09/09/2010)
78 NOTICE of Appearance by JEFFREY A. CARR on behalf of All Plaintiffs (CARR, JEFFREY) (Entered: 09/22/2010)
79 Minute Entry for proceedings held before Judge Anne E. Thompson: Motion Hearing held on 9/22/2010 re 54 MOTION for Summary Judgment filed by ALLISON HARMON, DISABILITY RIGHTS NEW JERSEY, INC., FREDRENA THOMPSON, 56 MOTION for Summary Judgment filed by STATE OF NEW JERSEY, JENNIFER VELEZ. DECISION RESERVED. (Court Reporter/Recorder M. Kalbach.) (jb, ) (Entered: 09/22/2010)
80 NOTICE of Appearance by JAMES BRADFORD MC ILVAIN on behalf of JENNIFER VELEZ (MC ILVAIN, JAMES) (Entered: 09/23/2010)
81 NOTICE of Appearance by NATALIE D'AMORA on behalf of JENNIFER VELEZ (D'AMORA, NATALIE) (Entered: 09/23/2010)
82 OPINION &ORDER denying 54 Pltfs' Motion for Summary Judgment; granting in part and denying in part 56 Defts' Motion for Summary Judgment; that Pltfs' Medicaid Act claim (Count III of the Amended Complaint) is DISMISSED. Signed by Judge Anne E. Thompson on 9/24/2010. (gxh) (Entered: 09/27/2010)
83 NOTICE of Appearance by MARY STEPHANIE BEATY on behalf of All Defendants (BEATY, MARY) (Entered: 09/30/2010)
84 MOTION for Reconsideration of the Court's September 24, 2010 Opinion &Order by DISABILITY RIGHTS NEW JERSEY, INC., ALLISON HARMON, FREDRENA THOMPSON. (Attachments: # 1 Brief, # 2 Text of Proposed Order)(NELSON, TRAVIS) (Entered: 10/06/2010)

Case: 3:05-cv-4723 As of: 04/13/2013 05:52 PM EDT 16 of 20

10/07/2010
10/15/2010 10/18/2010
10/25/2010 10/29/2010 11/02/2010
12/02/2010 12/20/2010 12/29/2010 01/05/2011 01/06/2011 02/03/2011 02/03/2011
02/04/2011
02/22/2011 02/24/2011 02/28/2011

Set Deadlines as to 84 MOTION for Reconsideration of the Court's September 24, 2010 Opinion &Order. Motion set for 11/1/2010 before Judge Anne E. Thompson. The motion will be decided on the papers. No appearances required unless notified by the court. (gxh) (Entered: 10/07/2010)
85 Notice to be terminated and withdraw from Notices of Electronic filing as to case. Attorney TRAVIS PAUL NELSON terminated. (NELSON, TRAVIS) (Entered: 10/15/2010)
86 BRIEF in Opposition re 84 MOTION for Reconsideration of the Court's September 24, 2010 Opinion &Order filed by STATE OF NEW JERSEY, JENNIFER VELEZ. (Attachments: # 1 Certificate of Service)(HUGHES, GERARD) (Entered: 10/18/2010)
87 Letter from Jeffrey A. Carr. (Attachments: # 1 Brief)(CARR, JEFFREY) (Entered: 10/25/2010)
88 LETTER ORDER granting counsel's request to file a short 4−page reply brief in support of Pltfs' Motion for Reconsideration. Signed by Judge Anne E. Thompson on 10/29/2010. (gxh) (Entered: 10/29/2010)
89 REPLY BRIEF to Opposition to Motion re 84 MOTION for Reconsideration of the Court's September 24, 2010 Opinion &Order filed by DISABILITY RIGHTS NEW JERSEY, INC., ALLISON HARMON, FREDRENA THOMPSON. (Attachments: # 1 Certificate of Service)(CARR, JEFFREY) (Entered: 11/02/2010)
90 OPINION &ORDER granting 84 Pltfs' Motion for Reconsideration; that Pltfs' Medicaid Act claim (Count III of the Amended Complaint) is hereby reinstated. Signed by Judge Anne E. Thompson on 11/30/2010. (gxh) (Entered: 12/03/2010)
91 LETTER ORDER that the Conference is rescheduled to 1/5/2011 at 10:30 AM. Plaintiff shall initiate the call. Signed by Magistrate Judge Tonianne J. Bongiovanni on 12/20/2010. (gxh) (Entered: 12/21/2010)
92 Notice to be terminated and withdraw from Notices of Electronic filing as to case. Attorney GAIL R. BERAN terminated. (BERAN, GAIL) (Entered: 12/29/2010)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 1/5/2011. (mm) (Entered: 01/06/2011)
93 AMENDED CASE MANAGEMENT ORDER, Plaintiff's proposed Second Amended Complaint due by 1/19/2011. Signed by Magistrate Judge Tonianne J. Bongiovanni on 1/5/2011. (eaj) (Entered: 01/06/2011)
94 NOTICE of Appearance by WILLIAM GIBSON on behalf of DISABILITY RIGHTS NEW JERSEY, INC., ALLISON HARMON, FREDRENA THOMPSON (GIBSON, WILLIAM) (Entered: 02/03/2011)
95 MOTION for Leave to File Second Amended Complaint by DISABILITY RIGHTS NEW JERSEY, INC., ALLISON HARMON, FREDRENA THOMPSON. (Attachments: # 1 Brief, # 2 Declaration of Angelo A. Stio, Esq., # 3 Declaration of William Emmett Dwyer, Esq., # 4 Exhibit A to Dwyer Declaration, # 5 Text of Proposed Order, # 6 Certificate of Service)(GIBSON, WILLIAM) (Entered: 02/03/2011)
Set Deadlines as to 95 MOTION for Leave to File Second Amended Complaint. Motion set for 3/7/2011 before Magistrate Judge Tonianne J. Bongiovanni. The motion will be decided on the papers. No appearances required unless notified by the court. (gxh) (Entered: 02/04/2011)
96 RESPONSE in Opposition re 95 MOTION for Leave to File Second Amended Complaint filed by JENNIFER VELEZ. (Attachments: # 1 Text of Proposed Order, # 2 Declaration)(MC ILVAIN, JAMES) (Entered: 02/22/2011)
97 Letter from Angelo A. Stio III. (STIO, ANGELO) (Entered: 02/24/2011)
98 REPLY BRIEF to Opposition to Motion re 95 MOTION for Leave to File Second Amended Complaint filed by DISABILITY RIGHTS NEW JERSEY, INC.,

Case: 3:05-cv-4723 As of: 04/13/2013 05:52 PM EDT 17 of 20

03/01/2011 03/07/2011 03/31/2011 04/06/2011 04/06/2011 04/07/2011
04/11/2011 04/21/2011 05/11/2011 05/26/2011 06/01/2011 06/14/2011
06/17/2011 06/20/2011

ALLISON HARMON, FREDRENA THOMPSON. (GIBSON, WILLIAM) (Entered: 02/28/2011)
99 LETTER ORDER granting counsel's request for a one−week extension of time, to 3/7/2011, to file a reply brief in support of Pltfs' Motion for Leave to File a Second Amended Complaint. Signed by Magistrate Judge Tonianne J. Bongiovanni on 2/28/2011. (gxh) (Entered: 03/01/2011)
100 Letter from Angelo A. Stio III. (STIO, ANGELO) (Entered: 03/07/2011)
101 LETTER ORDER that oral argument on Pltf Disabilities Rights New Jersey, Inc.'s Motion for Leave to File a Second Amended Complaint will take place on 4/7/2011 at 10:15 AM. Signed by Magistrate Judge Tonianne J. Bongiovanni on 3/31/2011. (gxh) (Entered: 04/01/2011)
102 Letter from counsel for the United States stating that United States does not intend to appear at oral argument set for April 7, 2011. (Attachments: # 1 Certificate of Service)(RUYMANN, JOHN) (Entered: 04/06/2011)
103 NOTICE of Appearance by BRIAN ANTHONY BERKLEY on behalf of DISABILITY RIGHTS NEW JERSEY, INC., ALLISON HARMON, FREDRENA THOMPSON (BERKLEY, BRIAN) (Entered: 04/06/2011)
104 LETTER ORDER granting in part and denying in part 95 Pltfs' Motion for Leave to File a Second Amended Complaint; that Pltfs may file an amended complaint in order to add only Reginald Brown and Jonathan Stevens as Pltfs; that Pltfs must file their amended complaint by 4/21/2011. Signed by Magistrate Judge Tonianne J. Bongiovanni on 4/7/2011. (gxh) (Entered: 04/07/2011)
105 Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Motion Hearing held on 4/7/2011 re 95 MOTION for Leave to File Second Amended Complaint. Ordered motion granted in part and denied in part. (DIGITALLY RECORDED)(mm) (Entered: 04/11/2011)
106 AMENDED COMPLAINT (Second Amended Complaint) against STATE OF NEW JERSEY, JENNIFER VELEZ, filed by FREDRENA THOMPSON, DISABILITY RIGHTS NEW JERSEY, INC., ALLISON HARMON, REGINALD BROWN, JONATHAN STEVENS.(GIBSON, WILLIAM) (Entered: 04/21/2011)
107 Application and Proposed Order for Clerk's Order to extend time to answer. (BEATY, MARY) (Entered: 05/11/2011)
108 ANSWER to Amended Complaint by STATE OF NEW JERSEY, JENNIFER VELEZ. (Attachments: # 1 Certificate of Service)(HUGHES, GERARD) (Entered: 05/26/2011)
109 LETTER ORDER granting Defts' request for an additional 30 days to complete the retention process and to transfer the files. Signed by Magistrate Judge Tonianne J. Bongiovanni on 5/31/2011. (gxh) (Entered: 06/01/2011)
110 Transcript of MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT held on 4/7/2011, before Judge TONIANNE J. BONGIOVANNI. Court Reporter/Transcriber AudioEdge Transcription, LLC, Telephone number (973) 618−2310. NOTICE REGARDING REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this Transcript. Redaction Request due 7/5/2011. Redacted Transcript Deadline set for 7/15/2011. Release of Transcript Restriction set for 9/12/2011. (mmh) (Entered: 06/14/2011)
111 Substitution of Attorney − Attorney NATALIE D'AMORA and JAMES BRADFORD MC ILVAIN terminated. Attorney LANCE J. KALIK for STATE OF NEW JERSEY,LANCE J. KALIK for JENNIFER VELEZ added.. (KALIK, LANCE) (Entered: 06/17/2011)
112 CORRECTED Transcript of MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT held on 4/7/2011, before Judge TONIANNE J. BONGIOVANNI. Court Reporter/Transcriber AudioEdge Transcription, LLC, Telephone number (973) 618−2310. NOTICE REGARDING REDACTION OF

Case: 3:05-cv-4723 As of: 04/13/2013 05:52 PM EDT 18 of 20

07/21/2011
08/12/2011 08/12/2011 09/02/2011 09/06/2011 09/06/2011
10/12/2011
10/13/2011 10/17/2011 10/26/2011 10/27/2011
10/27/2011 10/27/2011
10/31/2011
10/31/2011 11/01/2011 11/04/2011 11/04/2011 11/07/2011

TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this Transcript. Redaction Request due 7/11/2011. Redacted Transcript Deadline set for 7/21/2011. Release of Transcript Restriction set for 9/19/2011. (mmh, ) (Entered: 06/20/2011)
113 LETTER ORDER setting a schedule for this case going forward; Fact Discovery due by 11/18/2011; setting a Final Pretrial Conference for 12/22/2011 at 11:00 AM in Trenton − Courtroom 6E before Magistrate Judge Tonianne J. Bongiovanni; setting a Conference Call, which Pltf shall initiate, for 10/12/2011 at 10:30 AM before Magistrate Judge Tonianne J. Bongiovanni. Signed by Magistrate Judge Tonianne J. Bongiovanni on 7/21/2011. (gxh) (Entered: 07/21/2011)
114 Letter from William Gidson to Judge Bongiovanni concerning service of updated Rule 26 Disclosures. (BERKLEY, BRIAN) (Entered: 08/12/2011)
115 Letter from Brenda C. Liss to Court dated 8.12.11. (LISS, BRENDA) (Entered: 08/12/2011)
116 Letter from William Gibson. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(GIBSON, WILLIAM) (Entered: 09/02/2011)
117 Letter from Lance Kalik to Hon. Bongiovanni dated Sept. 6, 2011 re 116 Letter. (KALIK, LANCE) (Entered: 09/06/2011)
118 LETTER ORDER that, in light of Defts' apparent confusion, its discovery responses which are overdue, are to be produced by 9/12/2011. Signed by Magistrate Judge Tonianne J. Bongiovanni on 9/6/2011. (gxh) (Entered: 09/06/2011)
Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 10/12/2011. (mm) (Entered: 10/12/2011)
119 NOTICE of Appearance by BRENDA C. LISS on behalf of STATE OF NEW JERSEY, JENNIFER VELEZ (LISS, BRENDA) (Entered: 10/13/2011)
120 Letter from Robert P. Duffield, II. (DUFFIELD, ROBERT) (Entered: 10/17/2011)
121 Letter from William Gibson. (GIBSON, WILLIAM) (Entered: 10/26/2011)
122 LETTER ORDER that Defts' expert reports shall be due on 12/20/2011; that the Final Pretrial Conference set for 12/22/2011 at 11:00 AM is converted to a Telephone Conference which shall be initiated by Pltf. Signed by Magistrate Judge Tonianne J. Bongiovanni on 10/27/2011. (gxh) (Entered: 10/27/2011)
123 Letter from Brenda Liss to Hon. Bongiovanni re: deliberative process privilege re 120 Letter. (Attachments: # 1 Exhibit A)(KALIK, LANCE) (Entered: 10/27/2011)
124 AFFIDAVIT of Dawn Agar re 123 Letter as to deliberative process privilege by STATE OF NEW JERSEY, JENNIFER VELEZ. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(KALIK, LANCE) (Entered: 10/27/2011)
125 Notice to be terminated and withdraw from Notices of Electronic filing as to case. Attorney DAVID L. DACOSTA terminated. (DACOSTA, DAVID) (Entered: 10/31/2011)
126 Letter from William Gibson. (Attachments: # 1 Exhibit A)(GIBSON, WILLIAM) (Entered: 10/31/2011)
127 Letter from Brenda Liss to Hon. Bongiovanni re: Plaintiffs' 10/31 ltr on deliberative process privilege. (KALIK, LANCE) (Entered: 11/01/2011)
128 Letter from William Gibson. (GIBSON, WILLIAM) (Entered: 11/04/2011)
129 Letter from Brenda Liss to Hon. Bongiovanni dated November 4, 2011. (LISS, BRENDA) (Entered: 11/04/2011)
130 Letter from William Gibson re 129 Letter. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(GIBSON, WILLIAM) (Entered: 11/07/2011)

Case: 3:05-cv-4723 As of: 04/13/2013 05:52 PM EDT 19 of 20

11/08/2011 11/09/2011 11/09/2011
11/09/2011
11/16/2011 12/15/2011 12/19/2011
02/17/2012 02/22/2012 03/30/2012 04/02/2012 04/30/2012 05/01/2012 06/01/2012 06/11/2012
08/10/2012

131 Letter from Brenda Liss to Hon. Bongiovanni re: Plaintiffs' 11/7 letter re 130 Letter, 112 Transcript,,. (KALIK, LANCE) (Entered: 11/08/2011)
132 LETTER ORDER granting Pltfs' request that the deadline to serve their expert report be extended to 11/7/2011. Signed by Magistrate Judge Tonianne J. Bongiovanni on 11/7/2011. (gxh) (Entered: 11/09/2011)
133 LETTER ORDER that, having reviewed the submission of the parties and for the reasons cited herein by Deft, the Court finds that the identified documents, which it has reviewed in camera as described by the Deputy Commissioner of DDD, Dawn Apgar (see Docket Entry No. 124 ) in her affidavit dated 10/27/2011, have appropriately been withheld pursuant to the deliberative process privilege. Signed by Magistrate Judge Tonianne J. Bongiovanni on 11/7/2011. (gxh) (Entered: 11/09/2011)
134 TEXT ORDER − Status Conference via telephone set for November 16, 2011 at 10:00 AM before Magistrate Judge Tonianne J. Bongiovanni. It shall be plaintiffs counsels responsibility to contact all counsel to set up the conference as well as to initiate the call. Kindly mark your calendar accordingly. Ordered by Magistrate Judge Tonianne J. Bongiovanni.(mm) (Entered: 11/09/2011)
135 Minute Entry for proceedings held before Magistrate Judge Tonianne J. Bongiovanni: Telephone Conference held on 11/16/2011. (DIGITALLY RECORDED) (mm) (Entered: 11/16/2011)
136 Letter from William Gibson regarding joint proposed discovery schedule. (GIBSON, WILLIAM) (Entered: 12/15/2011)
137 LETTER ORDER setting certain deadlines; that fact discovery is to be completed by 2/29/2012; setting a Telephone Conference, which Pltf shall initiate, for 3/1/2012 at 3:30 PM before Magistrate Judge Tonianne J. Bongiovanni. Signed by Magistrate Judge Tonianne J. Bongiovanni on 12/16/2011. (gxh) (Entered: 12/19/2011)
138 Letter from Lance Kalik. (KALIK, LANCE) (Entered: 02/17/2012)
139 LETTER ORDER that this matter is stayed; that an update is to be provided by 3/30/2012. Signed by Magistrate Judge Tonianne J. Bongiovanni on 2/21/2012. (gxh) (Entered: 02/22/2012)
140 Letter from Lance J. Kalik. (KALIK, LANCE) (Entered: 03/30/2012)
141 LETTER ORDER granting counsel's request for an additional 30−day stay of the deadlines. Signed by Magistrate Judge Tonianne J. Bongiovanni on 4/2/2012. (gxh) (Entered: 04/02/2012)
142 Letter from Lance Kalik. (KALIK, LANCE) (Entered: 04/30/2012)
143 LETTER ORDER granting counsel's request for an additional 30−day stay of the deadlines. Signed by Magistrate Judge Tonianne J. Bongiovanni on 5/1/2012. (gxh) (Entered: 05/01/2012)
144 Letter from Brenda C. Liss to Court dated June 1, 2012. (LISS, BRENDA) (Entered: 06/01/2012)
145 LETTER ORDER that the Court will conduct a Settlement Conference in these matters on 8/3/2012 at 02:00 PM in Trenton − Courtroom 7E before Magistrate Judge Lois H. Goodman. Signed by Magistrate Judge Lois H. Goodman on 6/11/2012. (eaj) (Entered: 06/11/2012)
146 PRETRIAL SCHEDULING ORDER setting a Settlement Conference for 10/1/2012 at 2:00 PM in Trenton − Courtroom 7E before Magistrate Judge Lois H. Goodman; setting a Telephone Status Conference, which Ms. Liss shall initiate, for 9/24/2012 at 4:00 PM before Magistrate Judge Lois H. Goodman; that Pltfs are to submit their itemized bills to Deft by 8/17/2012; that Deft is to respond to Pltfs' submission by 9/17/2012. Signed by Magistrate Judge Lois H. Goodman on 8/10/2012. (gxh) (Entered: 08/10/2012)

Case: 3:05-cv-4723 As of: 04/13/2013 05:52 PM EDT 20 of 20

08/30/2012 09/26/2012 09/27/2012
12/21/2012 12/21/2012 02/15/2013 02/15/2013 02/19/2013
03/05/2013 03/06/2013

147 CONSENT ORDER as to confidentiality of Pltfs' attys' fees and costs. Signed by Magistrate Judge Lois H. Goodman on 8/30/2012. (gxh) (Entered: 08/30/2012)
148 NOTICE by STATE OF NEW JERSEY, JENNIFER VELEZ Notice of Withdrawal of Appearance of Stephanie Beaty, Esq. (JENKINS, KIMBERLY) (Entered: 09/26/2012)
CLERK'S QUALITY CONTROL MESSAGE − The Withdrawal of Appearance 148 filed by K. Jenkins, Esq. on 9/26/2012 was submitted incorrectly as a Notice (Other). PLEASE have Stephanie Beaty, Esq. RESUBMIT the Withdrawal of Appearance USING the event NOTICE TO WITHDRAW FROM NEF AS TO CASE found under Other Filings −> Notices. This submission will remain on the docket unless otherwise ordered by the court. (gxh) (Entered: 09/27/2012)
149 ORDER dismissing case without prejudice as settled. Signed by Judge Anne E. Thompson on 12/21/2012. (gxh) (Entered: 12/21/2012)
***Civil Case Terminated. (gxh) (Entered: 12/21/2012)
150 Letter from Brenda C. Liss to Court dated 2.15.13 with attached order requesting extension of time to consummate the settlement. (LISS, BRENDA) (Entered: 02/15/2013)
151 Letter from William Gibson re 150 Letter, 149 Order. (GIBSON, WILLIAM) (Entered: 02/15/2013)
152 ORDER that the time in which this action may, upon good cause shown, be reopened if the settlement is not consummated shall be and hereby is extended for two weeks, to 3/5/2013. Signed by Judge Anne E. Thompson on 2/19/2013. (gxh) (Entered: 02/19/2013)
153 Letter from William Gibson. (Attachments: # 1 Exhibit Settlement Agreement, # 2 Exhibit Stipulation of Dismissal with Prejudice)(GIBSON, WILLIAM) (Entered: 03/05/2013)
154 STIPULATION AND ORDER of dismissal with prejudice. Signed by Judge Anne E. Thompson on 3/5/2013. (gxh) (Entered: 03/06/2013)