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No. 121,447

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CATHERINE ROLL, a disabled person, by and through her co-guardians

TERESA ROLL KERWICK and MARY ANN BURNS,

Appellants,

v.

LAURA HOWARD, SECRETARY OF THE KANSAS DEPARTMENT FOR AGING 

AND DISABILITY SERVICES, and MIKE DIXON, SUPERINTENDENT 

OF THE PARSONS STATE HOSPITAL AND TRAINING CENTER,

Appellees.

SYLLABUS BY THE COURT

1.

Appellate courts defer to a district court's factual findings when they are supported 

by substantial competent evidence in the record. Substantial competent evidence is 

evidence which possesses both relevance and substance and which furnishes a substantial 

basis of fact from which the issues can reasonably be resolved.

2.

Appellate courts do not reweigh the evidence or make determinations about the 

credibility of witnesses. Instead, appellate courts view the evidence in the light most 

favorable to the prevailing party, disregarding conflicting evidence or other inferences 

that might be drawn.

3.

A person seeking permanent injunctive relief must show that five factors weigh in 

favor of the requested injunction. First and foremost, the person seeking a permanent 

injunction must prevail on the merits of his or her claim. But though the success on the 

merits weighs heavily in favor of issuing an injunction, the person seeking injunctive
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relief must also demonstrate that the absence of an injunction would lead to irreparable 

harm; that no adequate legal remedy exists to address the person's claim; that the person's 

injury would outweigh the harm any injunction may cause to the opposing party; and that 

the injunction, if issued, would not be adverse to the public interest.

4.

Appellate courts review the grant or denial of injunctive relief for an abuse of 

discretion. The scope of that discretion varies based on the contours of the issues 

presented to the district court. A district court has no discretion to make errors of law.

5.

The interpretation of the Americans with Disabilities Act and its regulations is a 

question of law appellate courts review de novo.

6.

When interpreting statutes, courts' primary aim is to determine the intent of the 

body enacting the legislation. Courts look to the plain language of the statute or 

regulation in question, giving common words their ordinary meanings. But this analysis 

does not occur in isolation. Rather, courts must consider the various provisions of an act 

in context—in pari materia—and seek to reconcile those provisions into workable 

harmony.

7.

Unjustified segregation of persons with mental-health conditions in an institution 

constitutes discrimination under Title II of the Americans with Disabilities Act. To 

determine whether unjustified discrimination—and thus a violation of the ADA—exists, 

courts apply a three-pronged test: A public entity has the duty to move patients from an 

institutional setting to a community-based setting when (1) its treatment professionals 

determine that such placement is appropriate, (2) the affected persons do not oppose such 
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treatment, and (3) the placement can be reasonably accommodated, taking into account 

the resources available to the State and the needs of others with mental disabilities.

8.

If a patient opposes receiving treatment in a more integrated environment, as Roll 

has here, the Americans with Disabilities Act does not require integration. But a person's 

opposition does not deprive the institution of the power to place a person into a more 

integrated environment.

9.

Courts apply a two-part, burden-shifting test when determining whether a federal 

law creates a right enforceable under 42 U.S.C. § 1983 (2018). The plaintiff bears the 

initial burden to demonstrate that a law creates an enforceable right by establishing three 

factors. First, Congress must have intended the provision to benefit the plaintiff. Second, 

the right cannot be so vague and amorphous that it would be difficult for courts to 

enforce. And third, the statute must unambiguously impose a binding obligation on the 

States. Meeting these three factors creates a presumption of enforceability. The burden 

then shifts to the State, which may rebut that presumption by demonstrating a 

congressional intent to foreclose enforcement through § 1983.

10.

Medicaid's "freedom of choice" provision under the Social Security Act, 42 U.S.C. 

§ 1396n(c)(2)(C) (2018), creates an individual right that can be enforced under 42 U.S.C. 

§ 1983.

11.

Under the Social Security Act, persons who are determined to be likely to require 

the level of care provided in a hospital must be informed of feasible alternatives to 

inpatient hospital services. And those individuals must be given the choice of either 
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institutional or home and community-based services. This choice only arises, however, 

when a court has determined someone is likely to require the level of care provided in a 

hospital or one of the other facilities listed in the Act.

Appeal from Sedgwick District Court; FAITH A.J. MAUGHAN, judge. Opinion filed December 11, 

2020. Affirmed.

David P. Calvert, of David P. Calvert, P.A., of Wichita, and Stephen M. Kerwick, of Wichita, for 

appellants.

Arthur S. Chalmers, assistant attorney general, and Derek Schmidt, attorney general, for 

appellees.

Before WARNER, P.J., STANDRIDGE and GARDNER, JJ.

WARNER, J.: Catherine Roll is a patient at Parsons State Hospital, where she has 

lived and been treated for an intellectual disability and schizophrenia for several decades. 

In 2016, the Department for Aging and Disability Services, in conjunction with Parsons, 

indicated an intent to transfer Roll to a more integrated community-based treatment 

program (though the specific program where she would be transferred was not yet 

determined). Roll's guardians sought a permanent injunction to prevent the transfer, 

alleging the Americans with Disabilities Act (ADA) and the Social Security Act (SSA) 

prevented the Department from transferring her without her consent. 

After a trial, the district court found that the Department had shown that the 

treatment available at a community-based program was appropriate to meet Roll's needs. 

The court also found that, because Parsons provided a level of care and restriction beyond 

what was medically necessary, neither the ADA nor the SSA prevented the State from 

transferring her to a different program. After carefully reviewing the record and the 

parties' arguments, we find the district court's crucial finding—that Roll does not need to 
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be treated in a facility as restrictive as Parsons—is supported by the record. And we agree 

that there is no right under the ADA and SSA for patients to remain at a more restrictive 

facility if the level of care provided is medically unnecessary. Thus, we affirm the district 

court's denial of the permanent injunction.

FACTUAL AND PROCEDURAL BACKGROUND

Catherine Roll's parents brought her to Parsons State Hospital in 1970, when she 

was 15 years old, to treat her intellectual disability and schizophrenia. She has lived there 

for the past 50 years. Roll's parents passed away in the 1990s and her two sisters, Teresa 

Kerwick and Mary Ann Burns, have served as her guardians since that time. 

Parsons provides housing and treatment for individuals with intellectual 

disabilities and mental-health conditions. To qualify for admission (and to receive state 

and federal funding), applicants must have an intellectual disability (which begins at an 

IQ of 70) and demonstrate active treatment needs. Once admitted, patients live in 

communal housing units called cottages. A team of professionals creates an active 

treatment program to identify the needs of and assess each patient. Staff, who have often 

worked at Parsons for several years if not decades, monitor and inform patients of their 

progress at monthly and annual reviews. 

Roll is identified as appropriate for transfer to a community-based treatment facility.

When Roll was admitted to Parsons, individuals were often admitted to institutions 

because their families could not adequately address their needs. But a series of societal 

and treatment-based changes beginning in the late 1970s enabled individuals to live their 

lives outside of institutions. New medications addressed mental-health issues while 

advances in educational technology allowed the needs of individuals with intellectual 

disabilities to be met at home or through noninstitutional, community-based services. 
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These changes in treatment affected Parsons in at least two important ways. First, 

expectations about the extent and duration of institutionalization have evolved. A 

preference has emerged to treat individuals in more integrated settings—such as

community-based treatment programs that provide individuals opportunities to interact 

with both disabled and nondisabled persons—rather than the isolated environment of an 

institution such as Parsons. The goal of institutional treatment is no longer to "cure" a 

mental disability, as it was in the early 1970s, but to return a patient to a communitybased program that adequately addresses his or her treatment needs. In other words, a 

person's treatment at Parsons should only last until he or she can successfully transition to 

a more integrated setting. 

Second, as individuals have transitioned out of Parsons and into new communitybased programs, the profile of Parsons' treatment population has changed. As individuals 

with less severe conditions have moved out, the proportion of patients with much more 

severe conditions increased. Most of Parsons' incoming patients now have a severe 

behavioral issue, such as aggression, self-injury, or sexual conditions such as pedophilia, 

and have generally been transferred either from incarceration or a state psychiatric 

hospital. 

In 2010, former Governor Mark Parkinson issued an executive order 

recommending that state hospitals serving individuals with developmental disabilities

downsize as, among other reasons, a cost-cutting measure. More recently, Parsons 

identified two concerns with keeping patients who could live in community-based 

environments: staff resources and bed space. Patients with less severe conditions require 

staff supervision that could otherwise be spent on monitoring patients with more severe 

conditions, and their place in a cottage could be more appropriately used by someone on 

the hospital's waiting list. To address these concerns, Parsons Superintendent Dr. Jerry 

Rea asked staff in December 2015 to identify individuals who could be successfully 

transferred to community placements. Staff identified 21 patients, including Roll. 
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To gauge Roll's level of cognitive and physical function, Parsons staff have 

administered the Vineland-II test, which measures adaptive functioning—the ability to 

perform everyday skills—in 11 areas across 4 domains: communication, daily living 

skills, socialization, and motor skills. The test contextualizes the test taker's skill levels 

by comparing them to the age at which a person from the general population (which 

includes individuals without developmental disabilities) would demonstrate similar skills. 

In a test administered in July 2012, Roll exhibited skills across the tested areas equivalent 

to a person between the age of 21⁄2 and 81⁄2 years old.

Roll receives a very low dose of a psychotropic medication to prevent symptoms 

of withdrawal associated with a previous medication for her schizophrenia. She does not 

appear to display any schizophrenic symptoms. She has a moderate intellectual disability, 

which generally means that she requires physical assistance in performing some tasks but 

requires only verbal prompts to perform others.

The guardians oppose Roll's transfer to a community-based treatment program.

Roll's guardians have historically been opposed to transferring her to a community 

placement. In 2002, Parsons believed Roll would do well in a community placement and 

encouraged the guardians to tour a few facilities where she might be transferred. Roll's 

guardians toured three, but they did not believe any were suitable for her. The guardians 

expressed their desire at that time that Roll not be transferred to a community placement. 

In February or March 2016, a Parsons social worker called Kerwick to inform her 

that Roll had been selected to transition into a community-based treatment program. 

Kerwick replied she would not approve a transition. During a subsequent call, Parsons 

staff set up a meeting between Kerwick and Dr. Rea to discuss community placement. 

During the meeting in late March, Dr. Rea explained his rationale for transferring Roll—
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Parsons currently treats patients with more severe conditions, these patients present safety 

concerns to other patients, and a $1.3 million decrease in Parsons' budget would require 

closing a cottage (each of which provides housing and treatment for about 20 patients). 

Kerwick agreed to tour some facilities with Burns, but due to her sister's schedule, the 

tours would have to be in the summer. 

In early June, Dr. Rea sent a letter to Roll's guardians in an effort to pressure them 

to begin considering community-placement options. His letter stated that Parsons would 

transfer Roll to their care if they had not begun the community-placement transfer 

process by September 1. 

In July, the guardians toured several facilities, but they still preferred Parsons to 

the community-based facilities they visited. Because Roll had remained at Parsons for the 

past 50 years, she had developed a routine there: she wakes up when she wants, eats 

breakfast, may choose to work in the Parsons library, returns to her cottage to eat lunch 

and take a nap, spends the afternoon doing leisure activities, and goes to bed when she 

wants. The guardians believed the community-placement facilities they toured would not

afford Roll that same level of comfort and freedom. She would have to be outside her 

home for at least 20 hours per week at times dictated by a day-services program, and she 

would spend those hours in a crowded setting. Though community placement would give

Roll some freedoms Parsons does not provide—input in meal selection, fewer 

housemates, and possibly a private bedroom—Roll's guardians did not believe that those 

benefits outweighed the stability of her long duration at Parsons.

Roll's guardians file suit to enjoin the transfer.

In August 2016, Roll (through her guardians) filed a petition seeking an injunction 

and temporary restraining order to prevent the Department and Parsons from discharging 

her, either to a community-based program or to the guardians' care. The petition alleged 
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that the ADA prohibited the State from transferring Roll to a community-based facility 

without her (and her guardians') consent. The district court granted the temporary 

restraining order and later appointed a guardian ad litem to represent Roll's interests.

After reviewing various hospital reports on Roll's condition (though without 

speaking with Roll or any of the treating professionals at Parsons), the guardian ad litem 

initially reported that he believed it was in Roll's best interests to remain at Parsons until 

a proper community placement could be found. The guardian ad litem later filed a second 

letter after meeting with Roll and speaking with treatment professionals at two 

community-based programs. In that second letter, the guardian ad litem indicated that the 

"advantages of community placement appear to be less residents in one location, having 

[Roll's] own bedroom or sharing with one person, some choice in meals, meal preparation 

and perhaps more freedom to do other things." The drawbacks were that Parsons "has 

been her home for a very long time, she is happy, familiar with the residents, staff and the 

routine." He indicated that he would advise Roll's guardians to meet with the facilities he 

contacted to "see if it might be beneficial for Ms. Roll to be placed in the community."

The district court held a four-day bench trial in October 2018. Several members of 

Parsons' treatment staff and two professionals from resource centers for communitybased treatment testified—from a medical, social, and psychological standpoint—that 

Roll's treatment needs could be adequately met in a community-based setting. The 

Parsons staff and physicians underscored that Roll is one of the calmest and least severe 

patients at the hospital, and that she could receive similar but more integrated treatment 

in a community setting. And some also noted the downsides of remaining at Parsons: 

Tammy Manues, a member of the treatment staff, indicated that from time to time 

multiple residents with more serious conditions who lived in Roll's cottage would 

become upset and act out—"hollering out" or "screaming." During those outbursts, Roll 

would withdraw to her room and essentially "shut[] down." 
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The guardian ad litem also testified briefly at trial. Though he had not spoken with 

any of Roll's treating staff or any other medical professional to discuss her records, he 

testified that, given Roll's age and the length of time she had been at Parsons, it would not 

be in her best interests to transfer her to a different facility. He emphasized that Roll was 

happy where she was and had a predictable routine. When asked how Roll's age and the 

length of her stay at Parsons might affect her transition, Heather Pace, a witness from one 

of the resource centers, indicated that she believed that there would likely be an initial 

transition period that was difficult, given Roll's extended treatment at the hospital and 

settled routine. But Pace also stated that the transition would be easier because Roll 

enjoyed a set routine—that "once you get through and get over the bump of the transition, 

you settle into a new routine and life goes back to some kind of normalcy and it gets 

better again."

Roll's guardians testified about Roll generally, her history, and the reasons why 

they believed keeping her at Parsons was in her best interests. They also testified at 

length about their dismay at receiving Dr. Rea's letter in June 2016 (which indicated a

need to find an alternative placement by September 2016 to avoid a discharge) and their 

reasons for not consenting to any transfer. 

After the trial, the court granted Roll's guardians permission to add a claim under 

the SSA that the proposed transfer from Parsons violated Roll's right to choose which 

facility would provide her treatment. The parties submitted lengthy proposed findings of 

fact and conclusions of law, as well as trial briefs on the ADA and SSA claims.

The district court denied the requested injunction in a lengthy journal entry. The 

court found that the evidence presented at trial supported Parsons' position that Roll's 

treatment needs could be adequately addressed in a community-based setting—a setting 

more integrated and less restrictive than Parsons' institutionalized approach. The court 

explained:
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"Ms. Roll's Social Work Assessment Annual Reviews, Psychological Annual Reviews, 

and Individual Program Plans from 2010 through 2017 supports good cause for her 

discharge. This documentation collectively speaks to the very issue of the adaptive living 

skills Ms. Roll has developed over time which make her appropriate for placement in a 

less restrictive living environment. This documentation, in conjunction with testimony 

offered by staff of Parsons State Hospital, provides evidence to the Court of her desire to 

partake in community based activities, her ability to work and earn wages, her ability to 

take care of her own hygiene needs, her ability to dress herself, her ability to exercise 

choices about daily living, her ability to perform various tasks to include setting a table, 

maintaining her bedroom, assisting with sweeping and mopping, doing art projects, 

working on puzzles, shopping, going out to eat, attending church, partaking in religious 

studies, reading her bible, reading magazines or the newspaper and communicating her 

wants, needs and desires.

"In addition, various staff of Parsons State Hospital testified that Ms. Roll's needs 

could be easily met in the community. This evidence was supported by numerous defense 

exhibits including documents setting forth a comparison of services between Parsons 

State Hospital and various community service agencies, an illustration of the types of 

services offered by Parsons State Hospital and an analogous counterpart through 

community-based services, a listing of various community outings Ms. Roll participated 

in monthly, from October of 2017 through August of 2018 and a tracking summary 

describing Ms. Roll's performance in reaching, maintaining and exceeding training 

objectives of the Informed Consent for Behavior Support Program/Medication from 2009 

through 2017."

Turning to Roll's legal claims, the district court found she could not prevail on her 

claims under the ADA and SSA. As to the ADA claim, the court found that Roll's (or her 

guardians') opposition did not prevent the Department from transferring her to an 

appropriate, more integrated treatment setting. And the court found that Kansas was 

permitted, under the SSA, to pay for appropriate community-based treatment, which the 

Department proposed here. 
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Because Roll and her guardians had not prevailed on these legal claims, they could 

not meet the first requirement for a permanent injunction—success on the merits—or 

recover attorney fees. This appeal followed.

DISCUSSION

The petition Roll's guardians filed on her behalf sought an injunction to prevent 

the Department from transferring her from Parsons. Roll did challenge Parsons' position 

that a community-based program was an appropriate treatment setting for her. But the 

focus of her case was consent. The petition pointed out that Roll and her guardians had 

not agreed to a transfer from Parsons. And it argued that federal law—provisions of the 

ADA and SSA—provided a right to refuse more integrated treatment than Parsons 

provides. Under these provisions, Roll argued, Parsons could not transfer her to a 

different facility without her (or her guardians') consent.

The district court found that Roll had not prevailed on her legal claims under the 

ADA and SSA and therefore denied her request for an injunction. On appeal, Roll 

challenges the district court's legal conclusions from several angles: 

• She argues that the court used an incorrect standard for evaluating her claims and 

that the court's legal conclusions regarding the ADA and SSA are contrary to the 

law. 

• She argues that several of the court's factual findings—primarily relating to Roll's 

treatment needs and her consent—are contrary to compelling evidence in the 

record.

• She argues that various other decisions and journal entries by the court were 

incorrect. And she asserts that because, in her view, the district court should have 
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granted the requested injunction, it also should have granted her request for 

attorney fees.

For the reasons we explain in this opinion, we conclude that Roll does not have a 

right under either the ADA or the SSA to demand a higher level of treatment in a lessintegrated setting than is appropriate. And we find there is ample evidence in the record 

to support the district court's finding that Roll's treatment needs can be appropriately 

addressed in a community-based setting. Thus, even though we agree with Roll that 

neither she nor her guardians have consented to a transfer from Parsons to a communitybased setting, federal law does not demand her consent before a transfer to an appropriate 

treatment setting may occur. As Roll cannot prevail on the merits of her claims, we 

affirm the district court's denial of a permanent injunction. 

1. Substantial evidence supports the district court's finding that Roll's treatment 

needs can be appropriately met in a community-based treatment program.

Roll's primary arguments on appeal relate to whether the ADA and SSA provide a 

right to refuse the proposed transfer to a community-based treatment program. Before we 

can analyze those claims, however, we must have a clear view of the facts underlying the 

district court's analysis. We thus turn to Roll's challenges to the district court's factual 

findings. 

The district court's journal entry included more than 25 pages of factual findings, 

as well as additional factual findings and analysis throughout the court's other written 

analyses. Roll—through her guardians—asserts that several of the court's factual findings 

regarding her abilities and treatment needs are either unsupported by the record or 

contrary to other evidence presented. She also claims that the district court disregarded 

important evidence that mitigated its findings, such as the guardian ad litem's reports and 

testimony.
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Because appellate court judges are not present at trial, we defer to a district court's 

factual findings when they are supported by substantial competent evidence in the record. 

Substantial competent evidence is "'evidence which possesses both relevance and 

substance and which furnishes a substantial basis of fact from which the issues can 

reasonably be resolved.'" Wiles v. American Family Life Assurance Co., 302 Kan. 66, 73, 

350 P.3d 1071 (2015). Appellate courts do not reweigh the evidence or make 

determinations about the credibility of witnesses. Instead, we view the evidence in the 

light most favorable to the prevailing party, disregarding conflicting evidence or other 

inferences that might be drawn. See Gannon v. State, 298 Kan. 1107, 1175-76, 319 P.3d 

1196 (2014).

In paragraph 27 of its factual findings, the district court summarized the evidence 

it relied on for its determination that Roll was "appropriate for community placement,"

explaining:

"This was established by testimony from Dr. Rea who was employed with Parsons State 

Hospital since 1984; Social Work Supervisor/ Ombudsman Karen VanLeeuwen who was 

employed at Parsons State Hospital for 31 years; Qualified Intellectual Disability 

Professional Nathan Grommet who was employed with Parsons State Hospital since 

2014; Activity Specialist Cory Medlam who was employed with Parsons State Hospital 

for 6 years; Dr. Menon who was employed with Parsons State Hospital since 1977; Client 

Training Supervisor Nancy Holding who was employed with Parsons State Hospital since 

1986; and Direct Support Worker Tammy Manues who was employed with Parsons State 

Hospital since 1991. Each of these individuals are personally familiar with Ms. Roll and 

worked with her in various capacities."

The court expanded on this summary later in its journal entry, observing:

"Ms. Roll is appropriate for placement in a less restrictive living environment for several 

reasons. Ms. Roll does not display behavioral issues which would indicate she has active 

treatment needs. Given that Ms. Roll has no active treatment needs, members of Ms. 
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Roll's treatment team at Parsons State Hospital have simply been providing supervision 

to Ms. Roll, which can be accomplished in a community based setting."

And the court concluded its decision by explaining that the assessments by Parsons staff 

that Roll's needs could be appropriately met in a community-based treatment program 

was supported by "Roll's Social Work Assessment Annual Reviews, Psychological 

Annual Reviews, and Individual Program Plans," as well as 

"documents setting forth a comparison of services between Parsons State Hospital and 

various community service agencies, an illustration of the types of services offered by 

Parsons State Hospital and an analogous counterpart through community-based services, 

a listing of various community outings Ms. Roll participated in monthly, from October of 

2017 through August of 2018 and a tracking summary describing Ms. Roll's performance 

in reaching, maintaining and exceeding training objectives of the Informed Consent for 

Behavior Support Program/Medication from 2009 through 2017."

Roll attempts to undermine this broad finding—that the evidence supports the 

assessment of Parsons staff that Roll can be appropriately treated in a community-based 

program—by challenging several individual findings by the district court regarding her 

abilities and treatment needs. For example, Roll, through her guardians, argues that 

findings by the district court regarding her ability to read (or understand what she is 

reading), function without verbal prompts, or play the piano are contradicted by 

conflicting evidence presented at trial. Roll also argues that the district court's finding 

that she was not in "active treatment" conflicts with the testimony of her guardians and 

others. And Roll notes that after touring two community-based programs, her guardians 

testified that in their opinion neither would be able to provide the level of treatment she 

received at Parsons.

These arguments are not persuasive on appeal, however. It is not this court's role 

to reweigh the conflicting testimony and evidence before the district court. Rather, we 
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must determine whether there is evidence in the record to support the court's findings. 

Having reviewed the record of the trial, we conclude there is. For example, Parsons staff 

testified that Roll would often sit by herself and read magazines, the newspaper, or the 

Bible. The district court found that during the afternoon, Roll would "work on puzzles, 

read magazines, read the newspaper or her bible." Contrary to Roll's arguments on 

appeal, the court did not make any finding regarding Roll's level of comprehension of 

that material. Similarly, Roll's argument as to whether she is in "active treatment" reflects 

a difference of opinion between what Roll's guardians believe to be active treatment and 

the descriptions of the Parsons medical staff; the district court's finding is supported by 

substantial competent evidence in the record. 

But more importantly, the district court's finding regarding the appropriateness of 

community-based treatment did not center on any of Roll's particular abilities or 

challenges. Instead, it was based on the testimony and documentary evidence provided by 

the doctors and staff at Parsons—the only medical professionals to testify throughout the 

trial—who explained that a community setting would adequately address Roll's treatment 

needs. Though the guardians disagreed, often vehemently, with this assessment and 

continue to do so on appeal, the fact remains that the court's finding is supported by 

extensive evidence in the record. 

Finally, Roll correctly points out that the district court's journal entry makes no 

reference to the guardian ad litem's reports or testimony. A district court does not have 

discretion to disregard undisputed relevant evidence. See State v. Smith, 303 Kan. 673, 

679, 366 P.3d 226 (2016). But the guardian ad litem's conclusions in this case were 

contested. The guardian ad litem concluded that it would be in Roll's best interests, given 

her age and settled routine, to remain at Parsons. During his testimony, the guardian ad 

litem admitted that though he had reviewed Roll's medical and psychological 

assessments, he had not spoken with any of the medical professionals who treated her—

and who had reached the opposite conclusion. Nor did he provide any opinion on whether 
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Roll would be able to successfully transition to a community-based program, though 

other witnesses did. In short, the district court's failure to reference or analyze the 

guardian ad litem's position in its written opinion does not undermine its finding that 

community-based treatment can appropriately serve Roll's needs. Accord Garetson 

Brothers v. American Warrior, Inc., 51 Kan. App. 2d 370, 387, 347 P.3d 687 (2015)

(finding the district court "did not ignore undisputed evidence," but rather "weighed the 

conflicting evidence—which included [the Division of Water Resources'] final report—

and made factual findings"), rev. denied 303 Kan. 1077 (2016).

The district court's finding that Roll's treatment needs can be adequately addressed 

in a community-based treatment program is supported by substantial competent evidence. 

2. The Americans with Disabilities Act and the Social Security Act do not provide 

Roll the relief she seeks. 

Having determined that the evidence in the record supports the district court's 

factual finding about the adequacy of community-based treatment, we turn to the 

question of whether the district court erred when it denied the permanent injunction. 

Though the court analyzed multiple factors in its analysis, the primary reason for its 

denial was the court's conclusion that Roll could not succeed as a matter of law on her 

claims under the SSA or the ADA.

Injunctions are equitable remedies. A person seeking permanent injunctive 

relief—in this case, an order to permanently prevent the Department from transferring 

Roll to a different facility—must show that five factors weigh in favor of the requested 

injunction. First and foremost, the person seeking a permanent injunction must prevail on 

the merits of his or her claim—he or she must "actually succeed[] on the merits of the 

lawsuit . . . after a final determination of the controversy." Wolfe Electric, Inc. v. 

Duckworth, 293 Kan. 375, 410, 266 P.3d 516 (2011); see also Downtown Bar and Grill v. 

State, 294 Kan. 188, 191, 273 P.3d 709 (2012); Husky Ventures, Inc. v. B55 Investments, 
18

Ltd., 911 F.3d 1000, 1011 (10th Cir. 2018) (listing standards for obtaining a permanent 

injunction under federal law). Though the success on the merits weighs heavily in favor 

of issuing an injunction, the person seeking injunctive relief must also demonstrate that 

the absence of an injunction would lead to irreparable harm; that no adequate legal 

remedy exists to address the person's claim; that the person's injury would outweigh the 

harm any injunction may cause to the opposing party; and that the injunction, if issued, 

would not be adverse to the public interest. See Downtown Bar and Grill, 294 Kan. at

191 ); Husky Ventures, 911 F.3d at 1011.

Because injunctive relief is equitable in nature, the weighing of these factors 

necessarily involves an exercise of judicial discretion. See Friess v. Quest Cherokee, 

L.L.C., 42 Kan. App. 2d 60, 63, 209 P.3d 722 (2009). Appellate courts review the grant 

or denial of injunctive relief for an abuse of discretion. Downtown Bar and Grill, 294 

Kan. at 191. The scope of that discretion varies, however, based on the contours of the 

issues presented to the district court. A district court has no discretion to make errors of 

law; we exercise unlimited review over a court's legal conclusions. See Brown v. 

ConocoPhillips Pipeline Co., 47 Kan. App. 2d 26, 36, 271 P.3d 1269 (2012). Similarly, 

to the extent a court's analysis rests on factual findings, we review those findings to 

determine whether they are based on substantial competent evidence and are sufficient to 

support the district court's conclusions of law. 47 Kan. App. 2d at 32. 

For the reasons we explain below, we agree that neither of these Acts provides a 

right for Roll to refuse community-based treatment and insist on receiving institutional 

care when medical professionals have concluded such community-based treatment is 

appropriate. Because Roll cannot succeed on the merits of her claims, the district court 

did not err when it denied her request for a permanent injunction. See Wolfe Elec., 293 

Kan. at 411. 
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2.1. There is no right under the ADA or its regulations for a person to demand 

institutional treatment when more integrated, community-based services 

are adequate to address his or her treatment needs.

The ADA was enacted by Congress in 1990 to diminish discrimination against 

persons with disabilities. Though federal law had attempted to tackle this issue in the past 

in various ways, for the first time, the ADA sought to address, among other forms of 

unfair treatment, discrimination that arose from institutionalization and segregation of 

people with disabilities. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 589 n.1, 119 

S. Ct. 2176, 144 L. Ed. 2d 540 (1999). In the ADA's general findings, Congress 

recognized that society has historically "tended to isolate and segregate individuals with 

disabilities, and . . . such forms of discrimination against individuals with disabilities 

continue to be a serious and pervasive social problem." 42 U.S.C. § 12101(a)(2) (2018). 

Congress noted that "discrimination against individuals with disabilities persists in such 

critical areas as . . . institutionalization." 42 U.S.C. § 12101(a)(3). And "individuals with 

disabilities continually encounter various forms of discrimination, including outright 

intentional exclusion [and] segregation." 42 U.S.C. § 12101(a)(5).

Title II of the ADA governs state and other public entities that provide public 

accommodations and services. Relevant here, Title II of the ADA states: "Subject to the 

provisions of this subchapter, no qualified individual with a disability shall, by reason of 

such disability, be excluded from participation in or be denied the benefits of the services, 

programs, or activities of a public entity, or be subjected to discrimination by any such 

entity." 42 U.S.C. § 12132 (2018). 

This statute is implemented, in part, through 28 C.F.R. § 35.130 (2019). See 42 

U.S.C. § 12134(a) (2018) (attorney general to promulgate regulations to implement Title 

II's directives). The first section of that regulation essentially incorporates the ADA's 

language, stating again that "[n]o qualified individual with a disability shall, on the basis 

of disability, be excluded from participation in or be denied the benefits of the services, 
20

programs, or activities of a public entity, or be subjected to discrimination by any public 

entity." 28 C.F.R. § 35.130(a). The regulation goes on to provide multiple examples of 

unlawful discrimination, including "[d]eny[ing] a qualified individual with a disability 

the opportunity to participate in or benefit from [the public entity's] aid, benefit, or 

service." 28 C.F.R. § 35.130(b)(1)(i). 

Consistent with the general findings of Congress articulated in the ADA itself, the 

regulation directs 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). At the same time, however, "[n]othing in this part 

shall be construed to require an individual with a disability to accept an accommodation, 

aid, service, opportunity, or benefit provided under the ADA or this part which such 

individual chooses not to accept." C.F.R. § 35.130(e)(1); see 42 U.S.C. § 12201(d).

Roll argues that these statutory and regulatory provisions—either individually or 

in combination, as they were interpreted and applied by the Supreme Court in 

Olmstead—establish a right for Roll to refuse transfer to a community-based setting and 

remain at Parsons. The interpretation of the ADA and its regulations is a question of law 

we review de novo. See State v. Keel, 302 Kan. 560, Syl. ¶ 4, 357 P.3d 251 (2015). 

When interpreting statutes, our primary aim is to determine the intent of the body 

enacting the legislation (here, Congress). 302 Kan. 560, Syl. ¶ 5. We look to the plain 

language of the statute or regulation in question, giving common words their ordinary 

meanings. 302 Kan. 560, Syl. ¶ 6. But this analysis does not occur in isolation. Rather, 

courts must consider the various provisions of an act in context—in pari materia—and 

seek to reconcile those provisions into workable harmony. Friends of Bethany Place v. 

City of Topeka, 297 Kan. 1112, 1123, 307 P.3d 1255 (2013).
21

In Olmstead, the Supreme Court interpreted these same provisions when 

considering whether Title II of the ADA required placement of certain individuals with 

mental disabilities in community-based treatment programs instead of institutions. 

Olmstead involved two women with mental disabilities and mental illnesses who were 

admitted to and received treatment in the psychiatric unit of a Georgia state hospital. 

After their conditions stabilized, both women sought—and their doctors recommended—

treatment in a community-based program. When the hospital declined to release them, the 

women sued, arguing their continued confinement despite the doctors' recommendations

violated Title II of the ADA.

After considering both the ADA and its regulations, Olmstead held that unjustified 

segregation in an institution constitutes discrimination under Title II. 527 U.S. at 597.

The Court observed that the congressional findings in the ADA relating to 

institutionalization and segregation reflect an understanding that institutionalization 

severely restricts a person's daily life activities. And the institutionalization of individuals 

who can function in a community-based environment perpetuates a stereotype that such 

individuals should not be in the community. 527 U.S. at 600-01. 

To determine whether unjustified discrimination—and thus a violation of the 

ADA—exists, the Court established a three-pronged test: A public entity has the duty to 

move patients from an institutional setting to a community-based setting when (1) "[its]

treatment professionals determine that such placement is appropriate," (2) "the affected 

persons do not oppose such treatment," and (3) "the placement can be reasonably 

accommodated, taking into account the resources available to the State and the needs of 

others with mental disabilities." 527 U.S. at 607.

The first prong in this analysis, whether community-based treatment is 

appropriate, establishes whether a placement potentially constitutes discrimination by 

comparing the individual's treatment needs with the appropriateness of more integrated 
22

alternatives. To make this determination, the State or other public entity "may rely on the 

reasonable assessments of its own professionals in determining whether an individual 

'meets the essential eligibility requirements' for habilitation in a community-based

program." 527 U.S. at 602. Without a determination that community-based treatment is 

appropriate, Olmstead observed that "it would be inappropriate to remove a patient from 

the more restrictive setting." 527 U.S. at 602.

As a result of this qualification prong, public entities have an ongoing duty under 

the ADA to assess whether an individual's treatment can be met in a more integrated (or 

less restrictive) environment. See Messier v. Southbury Training School, 562 F. Supp. 2d 

294, 337-38 (D. Conn. 2008) (to comply with the integration mandate, institutions cannot 

wait until a patient requests a transfer to determine whether that patient's needs could be 

met in a more integrated setting). This analysis also seeks to ensure that people who need 

institutional care are not denied those services—"nothing in the ADA or its implementing 

regulations condones termination of institutional settings for persons unable to handle or 

benefit from community settings." Olmstead, 527 U.S. at 601-02. 

The second and third prongs of the Olmstead test create exceptions to excuse 

otherwise discriminatory acts—that is, they establish when discriminatory segregation 

does not violate Title II. Under the second prong, a patient may consent to ongoing 

segregation (by opposing transfer), giving up his or her ability to challenge that action. 

See Schwartz et al., Realizing the Promise of Olmstead: Ensuring the Informed Choice of 

Institutionalized Individuals with Disabilities to Receive Services in the Most Integrated 

Setting, 40 J. Legal Med. 63, 83-85 (May 2020). In explaining the role of a person's 

consent, the Olmstead Court noted that federal law does not require "that communitybased treatment be imposed on patients who do not desire it." 527 U.S. at 602 (citing 

28 C.F.R. § 35.130[e][1]). Thus, the ADA does not require a public entity to transfer a 

person from an institution to a community-based program if the person wishes to remain 

at the institution. Instead, a disabled person can consent to a government's discriminatory 
23

practice, excusing an otherwise actionable violation. And the third prong gives the public 

entity an affirmative defense even when the patient either desires or does not oppose 

placement in a more integrated environment to explain why a more integrated placement 

cannot be accommodated under the particular facts presented.

Turning to the case before us, Roll argues that even if community-based treatment 

were appropriate in her case—a finding supported by substantial competent evidence in 

the record—Olmstead's second prong is not merely a caveat to the ADA's antidiscrimination provisions. Rather, she asserts, Olmstead recognized a disabled person's 

affirmative right under the ADA to refuse community-based services and insist on 

continued institutional treatment. We disagree for several reasons.

First, the Department's proposed transfer from Parsons to a community-based 

treatment setting does not fall within the scope of governmental discrimination 

proscribed by the ADA. The ADA defines discrimination as, among other things, 

unjustified segregation (including institutionalization) of disabled persons from the 

greater community. See 42 U.S.C. § 12101(a)(2), (3), (5). Had the Department insisted 

that Roll remain at Parsons, as the Georgia hospital did in Olmstead, such a directive 

would be prima facie evidence of discrimination under the ADA because it would have 

excluded her from participating in a more integrated program for which she was 

qualified. See 42 U.S.C. § 12132; Olmstead, 527 U.S. at 607. Here, however, we are 

presented with the factual inverse of Olmstead; it is the Department that seeks to transfer 

Roll to an appropriate and more integrated—that is, less discriminatory—environment 

while Roll (and her guardians) oppose the transfer. The Department has not proposed a 

discriminatory act that triggers the ADA's protections.

Second, nothing in the language of the ADA or its regulations establishes a right 

for a person to demand more restrictive treatment (i.e. greater discrimination) than what

is appropriate for his or her treatment. Olmstead recognizes that a person may agree to 
24

remain in an institutionalized setting, thereby giving up the right to challenge a State's 

discriminatory actions. This recognition does not establish an affirmative right to demand 

more extensive and restrictive treatment than is medically necessary. 

Rather, the ADA's implementing regulations underscore that a public entity must 

provide the option of an accommodation commensurate with the person's disability. See 

28 C.F.R. § 35.130(b)(1)(i). As a person's need increases, the services the State offers 

must also increase and be commensurate to the aid provided others. See 28 C.F.R. 

§ 35.130(b)(1)(i)-(iii). If the person's needs diminish, the State may choose to provide 

care beyond the level required. See 28 C.F.R. § 35.130(c). But nothing in the ADA or its 

regulations imposes an obligation on the public entity to provide the level of aid the 

person previously required or came to expect. Indeed, such a provision would contradict 

Congress' aim in enacting the ADA—discouraging discrimination against those with 

mental disabilities through needless segregation from their communities. Accord Friends 

of Bethany Place, 297 Kan. at 1123 (statutory provisions should be read in harmony to 

effect legislative objectives).

Third, though 28 C.F.R. § 35.130(e)(1) recognizes that individuals do not have to 

accept a government service for which they are qualified, they must still be that—

"qualified." See 28 C.F.R. § 35.130(b)(1)(i). In other words, the ADA does not require a 

person to accept government services and treatment, even when that treatment is 

appropriate. But the ADA cannot be used to justify a demand for treatment beyond that

which is appropriate for a person's condition.

Indeed, Roll's argument as to Olmstead's second prong cannot be reconciled with 

the Court's holding in that case. Olmstead's focus was on an institution's compliance with 

the ADA. An institution does not violate Title II, and is not required to transfer a patient, 

when a patient consents to remain in a less integrated environment. It does not follow that 
25

a person has the right to choose to remain at an institution regardless of his or her medical 

needs, or that an institution lacks the power to move a person who does not consent. 

The cases Roll cites in her brief do not lead us to a different conclusion. For 

example, Jensen v. Minnesota Department of Human Services, 138 F. Supp. 3d 1068 (D. 

Minn. 2015), involved a class action alleging Minnesota had not been providing 

treatment for individuals with mental-health conditions in the most integrated setting, in 

violation of Olmstead. As part of a settlement agreement, the State adopted an "Olmstead

Plan" outlining steps for greater integration in community programs. In approving the 

plan, the court noted that "the Olmstead decision is not about forcing integration upon 

individuals who choose otherwise," and the goal of "placing individuals with disabilities 

in the most integrated setting must be balanced against what is appropriate and desirable 

for the individual." Jensen, 138 F. Supp. 3d at 1075. Thus, Jensen recognizes, like the 

ADA and Olmstead, that the appropriateness of more integrated treatment requires an

individualized analysis for each person receiving treatment. This does not mean, 

however, that a State must always provide more segregated treatment than is appropriate 

or necessary at a patient's request. See also Joseph S. v. Hogan, 561 F. Supp. 2d 280 

(E.D.N.Y. 2008) (denying motion to dismiss plaintiff class' claims that New York was 

essentially warehousing individuals with mental-health conditions in nursing homes 

instead of seeking more integrated and effective community-based treatment). But see In 

re Easly, 771 A.2d 844, 851-52 (Pa. Cmwlth. Ct. 2001) (concluding, in a divided opinion, 

that Olmstead's second prong implied a right to insist on continued institutionalization).

Fourth, we disagree with Roll's argument on appeal that the district court erred 

when it repeatedly described the ADA's integration requirement as requiring placement in 

the "least restrictive setting" (rather than the "most integrated setting") appropriate. While 

the ADA requires placement in the "most integrated setting," the district court often used 

the phrase "least restrictive setting" to describe community-based programs—a phrase 

that arises out of Kansas guardianship law. Our review of the district court's discussion 
26

demonstrates the court understood that the relevant focus of the ADA and Olmstead was 

to integrate individuals with mental-health conditions in their communities to the greatest 

extent possible and appropriate. The variation between the terminology the court 

employed and the language used in the ADA, in this instance, is a distinction without a 

difference. Accord Olmstead, 527 U.S. at 602 (contrasting community-based treatment 

with "the more restrictive setting" of institutionalization).

The second prong of the Olmstead analysis cannot be divorced from the Court's 

holding in that case. If a patient opposes receiving treatment in a more integrated 

environment, as Roll has here, the ADA does not require integration. But a person's 

opposition does not deprive the institution of the power to place a person into a more 

integrated environment. See Bagenstos, Taking Choice Seriously in Olmstead

Jurisprudence, 40 J. Legal Med. 5, 7-9 (May 2020) (explaining Olmstead is about 

integration, comparing its integration requirement to Brown v. Board of Education, and 

noting federal court decisions that rejected objections by patients who wished to remain 

in a more segregated environment); Note, Integration as Discrimination Against People 

with Disabilities? Olmstead's Test Shouldn't Work Both Ways, 46 Cal. W. L. Rev. 177, 

189-91 (2009) (discussing the basis of the "do not oppose" provision, 28 C.F.R. § 

35.130[e][1]).

The ADA may excuse a person's institutionalization by a government entity, even 

if he or she could be appropriately treated in a community setting, if the person consents 

to his or her continued segregation. But it does not prohibit the government from placing 

that person in an appropriate community-based treatment program. The Department has 

chosen to transfer Roll to a community placement. The district court correctly concluded 

that neither the ADA, its regulations, nor the Supreme Court's decision in Olmstead

establish a right to remain at Parsons when community-based treatment is appropriate.
27

2.2. The Social Security Act's "freedom of choice" provision does not establish

a right to choose more segregated treatment than what is appropriate.

After the trial, the court allowed Roll to add a claim, pursuant to 42 U.S.C. § 1983, 

for a violation of § 1915 of the Social Security Act, traditionally referenced as Medicaid's 

"freedom of choice" provision. This statute involves Medicaid waivers, which allow the 

federal government to waive rules that usually apply to the Medicaid program. Under a 

waiver, states can provide services to their residents that normally would not be covered 

by Medicaid. For example, a waiver would allow Medicaid funds to be spent on in-home 

care for people who otherwise would have to go into long-term institutional care. The 

"freedom of choice" provision cited by Roll requires a State, in order to receive federal 

Medicaid funding, to provide an assurance that

"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 alternatives, if available under the [Medicaid] 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." 42 U.S.C. 

§ 1396n(c)(2)(C).

The SSA's accompanying regulations authorize a state to obtain a Medicaid waiver that 

provides funding for home and community-based services (HCBS)—not merely hospitalbased services—if it agrees to provide a person

"[a]ssurance that when a beneficiary is determined to be likely to require the level of care 

provided in a hospital, NF [nursing facility], or ICF/IID [intermediate care facilities for 

individuals with intellectual disabilities], the beneficiary or his or her legal representative 

will be—

"(1) Informed of any feasible alternatives available under the waiver; and

"(2) Given the choice of either institutional or home and community-based services."

42 C.F.R. § 441.302(d) (2019).
28

Roll alleges that since she is qualified to remain at Parsons (in that her mentalhealth conditions fall within the hospital's broader treatment mission), these provisions of 

the SSA indicate that she has the option to stay there—to choose "either institutional or 

home and community-based services." The district court did not analyze whether Parsons' 

proposed transfer without Roll's consent violated these provisions; it simply noted the 

Kansas Medicaid plan contains this assurance and summarily ruled that the proposed 

transfer did not violate these provisions. 

As a preliminary matter, the Department argues that Roll does not have standing to 

bring this claim, as federal law does not recognize a private right of action under 

Medicaid's "freedom of choice" provisions. Under 42 U.S.C. § 1983, a person deprived of 

"any rights, privileges, or immunities secured by the Constitution and laws" may sue to 

vindicate the deprivation of those rights. Section 1983 does not create independent rights, 

however; instead, it provides a procedural vehicle—a remedy—through which a person 

may vindicate rights secured elsewhere. Gonzaga University v. Doe, 536 U.S. 273, 284, 

122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002). Since most statutes do not contain such a 

remedy, claims are often brought under § 1983. See Blessing v. Freestone, 520 U.S. 329, 

347, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997). But before proceeding under § 1983, a 

person must demonstrate a law provides an individual right to sue.

Courts apply a two-part, burden-shifting test when determining whether a federal 

law creates a right enforceable under § 1983. The plaintiff bears the initial burden to 

demonstrate a law creates an enforceable right by establishing three factors. First, 

Congress must have intended the provision to benefit the plaintiff. Second, the right 

cannot be so "'vague and amorphous'" that it would be difficult for courts to enforce. 520 

U.S. at 340. And third, the statute "must unambiguously impose a binding obligation on 

the States." 520 U.S. at 341. Meeting these three factors creates a presumption of 

enforceability. The burden then shifts to the State to rebut that presumption by 

demonstrating a congressional intent to foreclose § 1983 enforcement. 520 U.S. at 341.
29

Only rights are enforceable under § 1983, not benefits or interests. Gonzaga 

University, 536 U.S. at 283. To determine whether an individual right exists, courts 

examine whether Congress used rights-creating language. 536 U.S. at 284; Alexander v. 

Sandoval, 532 U.S. 275, 288-89, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001). For example, 

statutes that focus on the entities regulated rather than the individuals protected are 

generally insufficient to create an individual right. 532 U.S. at 289. Similarly, statutes 

that focus on the administration of a system instead of on the individuals in that system 

also indicate that Congress did not intend to create a right. See Blessing, 520 U.S. at 343.

Several courts across the country have analyzed Medicaid's "freedom of choice" 

provision in 42 U.S.C. § 1396n(c)(2)(C) and found that it provides a private right 

enforceable under § 1983. See Ball v. Rodgers, 492 F.3d 1094, 1117 (9th Cir. 2007); Ball 

by Burba v. Kasich, 244 F. Supp. 3d 662, 683-84 (S.D. Ohio 2017); Guggenberger v. 

Minnesota, 198 F. Supp. 3d 973, 1014-15 (D. Minn. 2016); Michelle P. ex rel. 

Deisenroth v. Holsinger, 356 F. Supp. 2d 763, 768-69 (E.D. Ky. 2005); Waskul v. 

Washtenaw County Community Mental Health, No. 16-10936, 2019 WL 1281957, at *5

(E.D. Mich. 2019) (unpublished opinion); Illinois League of Advocates for the 

Developmentally Disabled v. Quinn, No. 13 C 1300, 2013 WL 5548929, at *9 (N.D. Ill. 

2013) (unpublished opinion); Zatuchni v. Richman, No. 07-CV-4600, 2008 WL 3408554, 

at *10 (E.D. Pa. 2008) (unpublished opinion). At least one court, after squarely 

considering the question on the merits, has held that no right exists. See M.A.C. v. Betit, 

284 F. Supp. 2d 1298, 1307 (D. Utah 2003) (provision lacks sufficient rights-creating 

language, turning largely on pre-Affordable Care Act Spending Clause jurisprudence).

The Ninth Circuit's decision in Ball, which provides the most thorough postGonzaga discussion of whether § 1396n(c)(2)(C) confers an individual right, concluded 

that it does. See Ball, 492 F.3d at 1119-20. The court devoted most of its analysis to the 

first factor—whether Congress intended to create an individual right—and found several 
30

indicia that Congress intended that result. 492 F.3d at 1106-15. For example, the 

provision's language refers to individuals and their need to both be informed of and 

choose a less restrictive environment; it addresses the needs of specific individuals, not 

the needs of the aggregate. 492 F.3d at 1107. The court likewise found the provision uses 

rights-creating language. 492 F.3d at 1108-11. And surrounding statutes, agency 

regulations, and legislative history also indicate a legislative intent to create an individual 

right to effectuate a person's choice of treatment facility. 492 F.3d at 1112-15.

We find this analysis persuasive and agree with the majority of courts that have 

considered the question whether § 1396n(c)(2)(C) creates an individual right that can be 

enforced under § 1983. As Ball noted, rights to participate in appropriate treatment 

choices are not vague or amorphous. A court can determine compliance based on a state's

Medicaid plan, state records, and patient and provider testimony. 492 F.3d at 1115. The 

provision imposes an obligation on the State to inform patients of options, meeting the 

third factor. 492 F.3d at 1116. And the SSA does not express a legislative intent to 

prohibit a claim through § 1983 or to provide an alternative remedy. 492 F.3d at 1116-17.

The Department's other arguments as to why we should not proceed to consider 

the merits of Roll's claim under the SSA are similarly unconvincing. It is true, as the 

Department points out, that the merits of this claim were not meaningfully discussed in 

the district court's opinion. But the record here is sufficient to allow us to address this 

claim, which turns largely on legal questions: the interpretation of Medicaid statutes and 

their implementing regulations.

The relevant Medicaid statute provides that persons who are "determined to be 

likely to require the level of care provided in a hospital" must be "informed of . . . 

feasible alternatives [to] inpatient hospital services." 42 U.S.C. § 1396n(c)(2)(C). And 

those individuals must be "[g]iven the choice of either institutional or home and 

community-based services." 42 C.F.R. § 441.302(d)(2). This choice only arises, however, 
31

when a court has determined someone is "likely to require the level of care provided in" 

one of the facilities listed in the statute. 42 U.S.C. § 1396n(c)(2)(C). 

The district court concluded that community-based treatment was appropriate for 

Roll's needs. In other words, Roll does not require an institutionalized level of care. 

Indeed, for several years, Parsons medical personnel have believed Roll could function 

well in a community environment, though the hospital has previously allowed Roll to 

remain given her guardians' opposition. Contrary to Roll's arguments on appeal, the 

choice afforded by the Medicaid waiver program is not unlimited. As with Roll's claims 

under the ADA, Roll's choice of treatment options only extends to those options 

appropriate for her medical needs. Because the court found that Roll does not require 

institutionalized care, the Department had no obligation to let her choose to stay in an 

institutional setting. Thus, Roll cannot succeed on her § 1983 claim under the SSA.

Roll cannot prevail on the merits of her claims under the ADA or the SSA. 

Without succeeding on the merits, a "permanent injunction simply cannot stand as a 

matter of law." Wolfe Electric, 293 Kan. at 411. The district court did not abuse its 

discretion when it denied the permanent injunction. 

3. Roll's remaining arguments do not change these conclusions.

Roll's brief asserts several other challenges relating to the district court's factual 

findings and statements in its journal entry, as well as various procedural claims 

regarding the court's pretrial denial of her motion for summary judgment. But these 

claims do not alter this court's conclusion that Roll cannot succeed, as a matter of law, on 

her claims under the ADA and SSA. 

For example, Roll challenges two references in the district court's journal entry 

indicating that Roll herself desired to move to a community setting (instead of Parsons). 
32

As background, Roll did not testify at the trial. But during the trial, Roll's attorney asked 

a Parsons administrator to talk with Roll off the record and ask whether she wanted to 

live in the community or at Parsons. The court agreed to allow the parties to proceed in 

this matter, stating it would take Roll's mental condition into consideration when 

evaluating what the administrator reported back. Based on the administrator's 

conversation with Roll, Roll appears to have answered "yes" when asked if she wanted to 

live in a community placement. Though multiple witnesses testified that Roll enjoys the 

community outings arranged by Parsons for its residents, the record includes no other 

evidence that Roll wished to move to a community-based facility. Yet the court found

that Roll desired the transfer.

We, like Roll, question whether this finding regarding Roll's desire is supported by 

substantial competent evidence. We do not believe the summary of a brief extrajudicial, 

out-of-court conversation between the Parsons administrator and Roll constitutes "'a 

substantial basis of fact'" as to Roll's desires, particularly given Roll's intellectual and 

mental-health condition. Wiles, 302 Kan. at 73. But as we have discussed previously, 

neither the ADA nor the SSA provide an unqualified right to remain at a mental-health 

institution if Roll's needs can be appropriately addressed in a community-based setting. 

Thus, the question of whether Roll (or her guardians) consented to the proposed transfer 

is a red herring. Instead, the controlling question is whether a community-based program 

is an appropriate treatment setting.

Likewise, because Roll has not succeeded on her claims under the ADA or the 

SSA, the district court did not err when it denied her request for attorney fees. See 42 

U.S.C. § 12205 (2018); 42 U.S.C. § 1988(b) (2018) (both allowing the district court 

discretion to award reasonable attorney fees to the prevailing party). And though Roll has 

again requested attorney fees on appeal, that request is similarly denied. See Supreme 

Court Rule 7.07(b) (2020 Kan. S. Ct. R. 50) (appellate court may award attorney fees 

when those fees were available before the district court). 
33

Finally, in light of our decision affirming the denial of the permanent injunction

after a trial on the merits, we need not address Roll's claims that the court should have 

granted her previous motion for summary judgment or that the court's journal entry 

unnecessarily addressed a claim Roll had previously withdrawn. See Evergreen Recycle 

v. Indiana Lumbermens Mut. Ins. Co., 51 Kan. App. 2d 459, 490, 350 P.3d 1091 (2015).

Before concluding, we pause to reflect on the scope of today's decision. The 

question presented in Roll's petition was whether, under the ADA or SSA, her consent (or 

her guardians' consent) is required before the Department or Parsons could transfer her to 

an appropriate community-based treatment program. We find that it is not. 

At this point, the parties have not identified which community-based program Roll 

will be joining. The district court made no finding that any specific program was 

adequate to address Roll's needs, noting instead that the next step going forward—now 

that these threshold legal questions have been resolved—is for the parties to select a 

program for Roll (or, in the case of Roll and her guardians, to determine whether they 

would prefer to decline assistance and have Roll discharged).

Our decision today does not and cannot address these remaining practical 

questions—questions that were beyond the scope of Roll's petition. See State ex rel. 

Morrison v. Sebelius, 285 Kan. 875, 890-91, 179 P.3d 366 (2008) (Kansas courts do not 

have jurisdiction to issue advisory opinions.). We hold only that the ADA and SSA do 

not require Roll's consent before she is transferred from Parsons to an appropriate 

community-based treatment program. Thus, the district court correctly denied a 

permanent injunction.

Affirmed.