UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

MICHIGAN PROTECTION AND

ADVOCACY SERVICE, INC.,

Case No. 2: 15-cv-12470

Plaintiff,

Hon. David M. Lawson

v.

FLINT COMMUNITY SCHOOLS and

LARRY WATKINS, JR., in his official

capacity as Interim Superintendent of

Flint Community Schools,

Defendants.

MICHIGAN PROTECTION AND ADVOCACY

SERVICE, INC.

Brad Dembs (P76692)

Crystal Grant (P71488)

Attorneys for Plaintiff

4095 Legacy Parkway, Suite 500

Lansing, MI 48911

Phone: (517) 487-1755

PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

AND MEMORANDUM IN SUPPORT OF ITS MOTION

FOR PRELIMINARY INJUNCTION

Plaintiff, Michigan Protection and Advocacy Service, Inc. ("Plaintiff')

moves this Court to enter a Preliminary Injunction pursuant to Rule 65(a) of

the Federal Rules of Civil Procedure. In support of this Motion, Plaintiff

states as follows:

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1. Plaintiff refers this court to, and incorporates by reference,

Plaintiff's Complaint and Memorandum in Support of Plaintiffs Motion for

Preliminary Injunction.

2. As shown by Plaintiffs Complaint and Memorandum, immediate

and irreparable harm will result to Plaintiff and children with disabilities

unless the relief prayed for is granted.

3. It is likely that Plaintiff will succeed on the merits.

4. No harm to Defendants will result if such relief is granted.

5. The injunction requested will serve the public interest.

WHEREFORE, Plaintiff requests that this Court enter a preliminary

injunction ordering Defendants to do the following:

A. Provide Plaintiff with the records requested in each of Plaintiffs

outstanding records request letters;

B. Respond to any records requests made during the pendency of

this litigation by providing copies of all requested records within three days,

as required by the P&A Acts; and

C. Cease and desist from violating Plaintiffs rights and the rights

of individuals with disabilities under 42 U.S.C. §1983 pursuant to the P&A

Acts, specifically the Protection and Advocacy for Individuals with Mental

Illness Act, 42 U.S.C. §§ 10801 et seq.; the Developmental Disabilities

2

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Assistance and Bill of Rights Act of 2000, 42 U.S.C. §§ 15001 et seq.; the

Protection and Advocacy of Individual Rights Program, 29 U.S.C. §§ 794e

et seq.

Respectfully submitted,

Dated: July 13, 2015 s/Brad Dembs

Michigan Protection and Advocacy

Service, Inc.

4095 Legacy Parkway, Ste. 500

Lansing, MI 48911

(517) 487-1755

bdembs@mpas.org

P76692

3

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

MICHIGAN PROTECTION AND

ADVOCACY SERVICE, INC.,

Plaintiff,

Case No. 2:15-cv-12470

v.

Hon. David M. Lawson

FLINT COMMUNITY SCHOOLS and

LARRY WATKINS, JR., in his official

capacity as Interim Superintendent of

Flint Community Schools,

Defendants.

MICHIGAN PROTECTION AND ADVOCACY

SERVICE, INC.

Brad Dembs (P76692)

Crystal Grant (P71488)

Attorneys for Plaintiff

4095 Legacy Parkway, Suite 500

Lansing, MI 48911

Phone: (517) 487-1755

PLAINTIFF'S MEMORANDUM IN SUPPORT OF ITS

MOTION FOR PRELIMINARY INJUNCTION

I. SUMMARY OF ARGUMENT

Plaintiff, Michigan Protection and Advocacy Service, Inc. ("MPAS")

brings this action pursuant to 42 U.S.C. § 1983 to enforce its rights

guaranteed by federal law. Advocacy Ctr v. Stalder, 128 F. Supp. 2d 358

4

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(M.D. La. 1999). MPAS is the protection and advocacy system for

individuals with disabilities in the state of Michigan. The State receives

funding from the federal government and in return must designate a

protection and advocacy system under the Protection and Advocacy for

Individuals with Mental Illness Act ("PAlMI Act"), 42 U.S.C. §§ 10801 et

seq.; the Developmental Disabilities Assistance and Bill of Rights Act of

2000 ("DO Act"), 42 U.S.C. §§ 15001 et seq.; and the Protection and

Advocacy of Individual Rights Program ("PAIR Act"), 29 U.S.C. § 794e.

(hereafter collectively referred to as the "P&A Acts").

MPAS, as a protection and advocacy program, has the authority to

pursue legal, administrative, and other remedies to ensure the protection of

individuals with disabilities who are clients of MPAS. In order to ensure that

protection and advocacy programs such as MPAS can carry out this

authority, the P&A Acts provide them with broad access rights to records

kept by Defendants for the purpose of providing protection and advocacy

services to their clients. See e.g. 42 U.S.C. §§ 10805(a)(4)(A),

15043(a)(2)(I)(i); 42 C.F.R. § 51.41(b)(1) (PAlMI regulations); 45 C.F.R. §

1386.22(a)(1) (DO regulations).

MPAS has been contacted by numerous families of children with

disabilities who have concerns that Defendants are failing to provide a free

5

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and appropriate public education and other rights and protections afforded

by federal and state law to their children with disabilities who are enrolled in

Defendants' schools. Upon receiving notice of these alleged failures, as

well as authorization from the parents or legal guardians of these children

with disabilities, Plaintiff sent letters to Defendants requesting copies of

educational records 1. Defendants have repeatedly blocked Plaintiff's ability

to carry out its responsibilities to protect and advocate on behalf of its

clients by refusing to respond to Plaintiff's records requests or by

responding after such a lengthy delay that irreparable harm has been done.

The issue in the instant case concerns Plaintiff's right and authority

under the P&A Acts to utilize effective measures, including access to

records, in order to protect and advocate on behalf of its clients. Because

Defendants are interfering with these rights and authority, Plaintiff is

entitled to an injunction in order to fulfill its mandate under the P&A Acts.

Defendants' refusal to comply has created a "chilling effect" on Plaintiff's

ability to promptly and effectively provide protection and advocacy to

students with disabilities, thereby causing irreparable harm, which

outweighs any harm to the Defendants in providing effective access and

releasing copies of the requested records. The P&A Acts are very explicit in

1 See Exhibit A - Plaintiffs 18 Records Request Letters.

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granting Plaintiff the access they seek, virtually assuring that Plaintiff will

ultimately succeed on the merits of its claim. Providing Plaintiff with this

access would cause no harm to others and would enable Plaintiff to

continue its responsibility to advocate on behalf of individuals with

disabilities.

As a result of the ongoing nature of this issue, and the failure to

resolve it within a reasonable time, Plaintiff requests that this court order

Defendants, in accordance with the P&A Acts, to immediately provide

Plaintiff access to the requested records.

II. STATEMENT OF FACTS

The evidence will show that over the course of approximately the past

year, Plaintiff has made multiple attempts to obtain education records for

numerous children with disabilities who are enrolled as students at

Defendants' schools. Although Plaintiff has submitted multiple requests on

behalf of its clients, Defendants have either wholly ignored Plaintiff's

requests or delayed in providing records for extended periods of time, often

exceeding several months. Even when records were provided after lengthy

delays, they were minimal and incomplete.

Plaintiff has attempted various approaches to negotiate with

Defendants in the past to eliminate their illegal and inconsistent policy and

7

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practice of refusing to provide records. In addition to its multiple records

request letters, Plaintiff also sent Defendants a letter expressing their

concerns and offering to meet in order to work cooperatively to resolve this

issue. Consistent with their lack of response to Plaintiff's records requests,

Defendants never acknowledged this letter in any way.

Plaintiff has also filed multiple due process complaints against

Defendants, pursuant to 20 U.S.C. § 1415, for the purpose of securing the

requested records through administrative remedies. 42 U.S.C. § 10807.

Although Defendants responded to these complaints by providing Plaintiff

with many of the documents sought, they did not provide all of the

necessary records and have continued to deny access to requested

records by refusing to respond to Plaintiff's requests on behalf of other

students with disabilities since that time.

As a result of Defendants' failure to provide Plaintiff with access to

the records that were requested, Plaintiff has been unable to fulfill its

mandate under the P&A Acts. Without access to records, no specific

determinations can be made, and therefore, no effective protection and

advocacy assistance can be provided. In short, Defendants are thwarting

Plaintiff's ability to fulfill its responsibilities under federal law, and children

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with disabilities and their families are being denied meaningful access to

Plaintiff's services.

See Plaintiff's Complaint, parents' Affidavits (attached as Exhibits 8-

I), and Affidavit of Judith L. Lindstrom (attached as Exhibit J) for more

detailed information on Plaintiff's efforts to obtain education records from

Defendants and how Defendants' inappropriate response has led to

negative effects for the students with disabilities that Plaintiff represents.

III.ARGUMENT

A. PLAINTIFF HAS THE AUTHORITY TO OBTAIN ACCESS TO

RECORDS PURSUANT TO THE P&A ACTS.

There are three Federal statutes that require each state to maintain a

P&A system:

1. The Developmental Disabilities Assistance and Bill of Rights Act,

Public Law 101-496, Part C, as amended ("DO Act");

2. The Protection and Advocacy for Individuals with Mental Illness Act,

Public Law 99-319, as amended ("PAlMI Act"); and

3. The Protection and Advocacy for Individual Rights Act, Public Law

93-112, as amended ("PAIR Act").

Plaintiff is designated as Michigan's "eligible [protection and

advocacy] system," 42 U.S.C. § 10802(2), and is part of a nationwide

network of disability rights agencies which are mandated under the P&A

Acts to provide legal representation and advocacy services to persons with

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disabilities who are clients of the system. See, e.g. 42 U.S.C. §§

10805(a)(1)(8), 15043(a)(2)(A).

The first of these statutes, the DD Act, was enacted in 1975 to protect

the human and civil rights of persons with developmental disabilities. 42

U.S.C. § 6000 et seq, as amended 42 U.S.C. § 15001 et seq. The P&A

system was established, as an integral component of this Act, to ensure

that these protections became a reality.

The second of these statutes, the PAlMI Act, was passed in 1986 on

behalf of persons with mental illness. 42 U.S.C. § 10801 et seq? The

PAlMI Act, which is modeled after the DD Act, provides parallel protections

for individuals with mental illness using the same mechanisms as the DD

Act.

The last of these statutes, the PAIR Act, was passed in 1992 as an

amendment to the Rehabilitation Act on behalf of a broad spectrum of

person with disabilities. Under the PAIR Act, P&As are authorized to use

the same mechanisms as provided under the DD Act to serve persons with

disabilities who are not eligible under either the DD or PAlMI Act. 29 U.S.C.

§ 794e.

2 The PAlMI Act was amended by the Children's Health Act of 2000, Pub.L. No. 106-310, 114 Stat. 1101.

10

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Courts have consistently held that the P&A Acts require P&A

agencies to be allowed to operate effectively, and with broad discretion and

independence in exercising their access authority. See Michigan Protection

& Advocacy Service, Inc. v Miller, 849 F. Supp. 1202 (W.O. Mich. 1994);

Mississippi Protection & Advocacy System, Inc. v Cotten, 929 F.2d 1054

(5th Cir. 1991); Alabama Disabilities Advocacy Program v Tarwater

Developmental Center, 894 F. Supp. 424 (M.D. Ala. 1995); Advocacy Ctr.

v. Stalder, 128 F. Supp. 2d 358 (M.D. La. 1999); Robbins v. Budke, 739

F. Supp. 1479 (O.N.M. 1990). The court in Cotten expounded upon this

obligation as follows:

The Act not only describes the range of services to be provided

by the protection and advocacy systems, it also states that the

systems must have the authority to perform these services. The

state cannot satisfy the requirements of the [DO Act] by

establishing a protection and advocacy system which has this

authority in theory, but then taking action which prevents the

system from exercising that authority.

929 F. 2d at 1029.As the court in Tarwater noted, any other reading "would

attribute to Congress an intent to pass an ineffective law." 824 F. Supp. at

429. It was also Congress' intent that the DO and PAlMI Acts be applied in

a like manner. See, e.g., S.Rep. No. 109, 99th Cong., 1st Sess. 3 (1986);

S.Rep. 113, 100th Cong., 1st Sess. 24 (1987).

11

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Under the P&A Acts, Plaintiff has broad authority to access the

records that it is seeking in the present case. As the statutes and their

implementing regulations provide, P&A systems shall have access to ml

records of any individual with a developmental disability or mental illness

who is a client of the system if such individual or legal guardian has

authorized the system to have such access. 42 U.S.C. §§ 10805(a)(4)(A),

15043(a)(2)(I)(i); 42 C.F.R. § 51.41(b)(1); 45 C.F.R. § 1386.22(a)(1).

Plaintiff is entitled to inspect and copy information and records, subject to a

reasonable charge to offset duplicating costs, and to have such access

within three business days of making a written request for records. 42

C.F.R. § 51.41(e); 45 C.F.R. § 1386.22(d);42 U.S.C. § 15043(a)(2)(I),(J).

Individual records to which P&A systems must have access can be

written or in another medium, draft or final, including handwritten notes,

electronic files, photographs, video or audio tape records and shall include,

but shall not be limited to information and individual records obtained in the

course of providing intake, assessment, evaluation, education, training,

supportive and other services, including medical records, financial records,

and reports prepared or received by a member of the staff of a facility or

program rendering care or treatment, including any location at which

services, supports, or other assistance is provided to individuals with

12

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developmental disabilities. 42 U.S.C. §§ 10806(b)(3)(A), 15043(c)(1); 42

C.F.R. § 51.41; 45 C.F.R. § 1386.22(b)(1). "Care and treatment" expressly

includes special education services designed to address mental illness or

emotional impairment. 42 C.F.R. §51.2.

Under the P&A Acts, the term "facilities" may include, but need not be

limited to, hospitals, nursing homes, community facilities (such as group

homes, board and care homes, individual residences and apartments), day

programs, juvenile detention centers, homeless shelters, and jails and

prisons. 42 U.S.C. § 10802(3); 45 C.F.R. § 1386.19.3 The PAlMI Act's

implementing regulations define facilities more narrowly to only include

"any public or private residential setting that provides overnight care

accompanied by treatment services." 42 C.F.R. § 51.2.

Nevertheless, courts have held that non-residential facilities, including

schools, are not precluded from being considered facilities under the P&A

Acts. See Connecticut Office of Prot. & Advocacy For Persons With

Disabilities v. Hartford Bd. of Educ., 464 F.3d 229, 240 (2d Cir. 2006)

(Sotomayor, J.) (school constituted a facility to which P&A must have

reasonable access under PAlMI Act); Disability Law Ctr. of Alaska, Inc. v.

3 See Michigan Prot. & Advocacy Serv., Inc. v. Miller, 8~9 F. Sup~. at 1207, hol~i.ng.that"[t]he simple fact

that [Defendant's] facilities are primarily concerned With education and rehabilitation does not prevent

them from falling under the auspices of [PAlMI]."

13

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Anchorage Sch. Dist., 581 F.3d 936, 939-40 (9th Cir. 2009) (P&A obtained

access to intensive special needs education class at school under PAlMI

Act and DD Act); Disability Rights Wis., Inc. v. Wis. Dep't of Pub.

Instruction, 463 F.3d 719, 726 (7th Cir. 2006) (school providing special

education program "easily meets the definition of a facility" providing care

and treatment under the DD Act).

In Hartford Board of Education, the defendant school district argued

against P&A access to one of its public schools on the basis of the PAlMI

implementing regulations. The court rejected this argument, reasoning that

after the implementing regulations had gone into effect, Congress amended

PAlMI through the Children's Health Act of 2000 to extend its protection

from just individuals who were inpatients or residents of a care or treatment

facility to also include individuals with mental illness who live in community

settings, including their own homes. 42 U.S.C. § 10802(4)(8)(ii). The court

found that "reading the facility-access provision as limited to residential

facilities is contrary to Congress's clearly expressed intent to provide

protection and advocacy services for individuals with mental illness living in

their own homes" and therefore concluded that the regulatory interpretation

of "facilities" promulgated by 42 C.F.R. § 51.2 is no longer consistent with

14

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PAlMI after the 2000 amendments." 464 F.3d at 240. The court held that

the P&A was entitled to appropriate access to the public school.

Defendants' practice of ignoring Plaintiff's requests for records, or

failing to respond for several months in some cases, violates the P&A Acts

and denies Plaintiff access to the information it needs in order to effectively

protect and advocate on behalf of students with disabilities. See Robbins v.

Budke, 739 F. Supp. 1479 (D.N.M. 1990) (P&A challenged a highly

restrictive policy regarding access to records imposed by a State mental

health facility. Court held that limitations on access violated P&A's

constitutional and statutory rights of access and thwarted the

purposes of the PAlMI Act). As the court in Robbins explained:

Access to patient records is necessary for P & A to serve its

clients, evaluate its clients' concerns, and determine whether a

client has a legal claim...Timely access to records is essential

for effective communication between P & A and its clients just

as it is for other advocates and attorneys.

Id. at 1488. Delays of up to one month in processing requests for the

release of records could preclude the P&A "from acting within prescribed

deadlines or may cause a violation to go unaddressed until it is too late to

remedy." Id. In the present case, the students for whom Plaintiff is seeking

records all have disability-related academic or behavior issues that are

causing them to fall behind their peers. The more time they attend school

15

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without appropriate services in place, the further behind they are at risk of

becoming. There are also timelines imposed by the Individuals with

Disabilities Education Act (IDEA), 20 U.S.C. §§ 1401 et seq., and other

applicable laws that could expire before legal efforts could be undertaken if

records are not provided in a timely manner.

Indeed, courts have not hesitated in the past to issue injunctive relief

on behalf of P&A systems when their ability to access records was being

hampered or denied. In Robbins, the court ordered the facility to "provide

immediate access to all records, including incident reports, medical

referrals, seclusion and restraint logs, and internal investigation reports

which may not be in residents' charts with informed consent provided by

the resident or guardian or as provided [in the access provisions of the

PAlMI Act]." 739 F. Supp. at 1489.

Defendants may cite the Federal Educational Rights and Privacy Act

("FERPA") and the Individuals with Disabilities Education Act ("IDEA") to

argue that the restrictions they are imposing are based on concerns over

confidentiality. These concerns, as important as they are, are unwarranted.

As the court in Miller reasoned, "given the unequivocal statutory mandate

afforded to protection and advocacy systems to access records in specific

situations and the statutory responsibility of such organizations to keep

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such records confidential, FERPA and IDEA did not prevent educational

institutions and agencies from providing such systems with records." State

of Connecticut Office of Prot. & Advocacy for Persons with Disabilities v.

Hartford Bd. of Educ., 355 F. Supp. 2d 649, 663 (D. Conn. 2005), citing

Michigan Prot. & Advocacy Serv., Inc. v. Miller, 849 F. Supp. 1202 (W.O.

Mich. 1994).

The law is abundantly clear that Plaintiff has the authority to access

the education records of students with disabilities who are clients of the

system. Defendants' actions have barred Plaintiff from fulfilling its federal

mandate and have prevented students with disabilities from accessing

Plaintiff's services.

B. PLAINTIFF IS ENTITLED TO A PRELIMINARY INJUNCTION TO

FULFILL ITS MANDATE UNDER THE P&A ACTS.

In granting preliminary injunctive relief, courts consider and balance

four factors to determine whether such a motion should be granted: (1)

whether the movant has a strong likelihood of success on the merits of the

claim; (2) whether the movant would suffer irreparable harm without the

injunction; (3) whether issuance of the injunction would cause substantial

harm to others; and (4) whether the public interest would be served by the

issuance of the injunction. City of Pontiac Retired Employees Ass'n v.

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Schimmel, 751 F.3d 427 (6th Cir. 2014). Application of this analysis shows

that Plaintiff is entitled to preliminary injunctive relief.

As argued above, the P&A Acts grant Plaintiff broad access rights for

the purpose of providing protection and advocacy services to people with

disabilities. This includes the right to access and obtain copies of all

records of any individual who is a client of the system, with authorization

from that client or legal guardian. As this right to access the records being

sought in the present case is explicitly granted to Plaintiff by the P&A Acts,

Plaintiff has a strong likelihood of success on the merits of its claim.

Plaintiff will be irreparably harmed if the preliminary injunction is not

issued. Plaintiff is unable to perform its statutory functions without the

access rights at issue in this case. Likewise, the imposition of undue

limitations on P&A access presents an immediate and realistic threat of

harm to the students with disabilities that Plaintiff represents. These

students and their parents remain unaware of their rights, how those rights

are being violated by Defendants, and what they can do to ensure that the

supports and services they are entitled to are provided. Absent such

information, these students with disabilities will continue to struggle in the

school setting and will begin the next school year without the counsel of a

fully informed advocate or attorney to assist them.

18

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There is no risk of substantial harm to Defendants in granting the

preliminary injunction since Defendants often provide access to records

consistent with the P&A Acts to parents, transfer school districts, and other

parties. In addition, the P&A Acts account for any financial harm that could

be incurred by Defendants by providing that Plaintiff's right to inspect and

copy records is "subject to a reasonable charge to offset duplicating costs."

42 C.F.R. § 51.41(e); 45 C.F.R. § 1386.22(d).

Finally, the P&A Acts are evidence of a strong public interest in

protecting the legal rights of individuals with disabilities. Issuance of a

preliminary injunction in this case would only advance the public interest

that is the very basis for the P&A Acts by allowing Plaintiff to fulfill its

protection and advocacy duties under the law.

WHEREFORE, Plaintiff requests that this Court enter a preliminary

injunction as prayed for in its Complaint.

Respectfully submitted,

Dated: July 13, 2015 s/Brad Dembs

Michigan Protection and Advocacy

Service, Inc.

4095 Legacy Parkway, Ste. 500

Lansing, MI 48911

(517) 487-1755

bdembs@mpas.org

P76692

19

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CERTIFICATE OF SERVICE

I hereby certify that on July 13, 2015, I electronically filed the foregoing

Motion for Preliminary Injunction and Plaintiff's Memorandum in Support of

Its Motion for Preliminary Injunction with the Clerk of the Court using the

ECF system. In addition, I hereby certify that a process server will serve the

papers to the following non-ECF participants:

Isaiah Oliver, School Board President

Flint Community Schools

421 Garland Street, Apt. 206

Flint, MI 48503

Larry Watkins, Jr., Interim Superintendent

Flint Community Schools

923 East Kearsley Street

Flint, MI 48503

s/Brad Dembs

Michigan Protection and Advocacy

Service, Inc.

4095 Legacy Parkway, Ste. 500

Lansing, MI 48911

(517) 487-1755

bdembs@mpas.org

P76692

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