In each issue of the Law Reporter, the "Case Law Developments" section contains summaries of over 300 state and federal court decisions, organized by 22 subject matter topics in 3 categories (civil mental disability law, criminal mental disability law, disability discrimination law-federal and state). For more case summaries, subscribe now!

Sample Case Law Developments from September /October 2009 Issue

Civil Mental Disability Law

Nursing Home; §1983; FNHRA: Private Right of Action
The Third Circuit found that the Federal Nursing Home Reform Amendments (FNHRA), 42 U.S.C. §1396r et seq., conferred substantive rights on a county nursing home resident and Medicaid recipient, as required to confer on the resident’s daughter individual federal rights enforceable under 42 U.S.C. §1983, arising out of the home’s alleged failure to provide the resident with proper care. Grammer v. John J. Kane Reg’l Ctrs.-Glen Hazel, 570 F.3d 520 (3d Cir. 2009).

Melviteen Daniels resided at the John J. Kane Regional Center, a residential skilled nursing care and rehabilitation center. Daniels’s daughter, Sarah Grammer, maintained that, due to Kane Center’s failure to provider proper care, Daniels developed decubitus ulcers, became malnourished, and ultimately developed sepsis, from which she died. Grammer sued under §1983 for wrongful death, alleging that the center deprived Daniels of her civil rights by breaching a duty to ensure quality care under the FNHRA. The center moved to dismiss, arguing that the FNHRA does not provide a right that is enforceable through §1983, because the statute merely sets forth requirements a nursing facility must comply with to receive federal Medicaid funds. The district court granted the motion.

The Third Circuit reversed and remanded. In Blessing v. Freestone, 520 U.S. 329 (1997), the U.S. Supreme Court ruled that courts, in determining whether a statute confers a federal right on an individual, should consider whether (1) Congress intended the statutory provision at issue to benefit the plaintiff; (2) the right asserted is so “vague and amorphous” that its enforcement would strain judicial competence; and (3) the statute unambiguously imposes a binding obligation on the states. Id. at 340-41. Courts must then inquire into whether the statute at issue unambiguously confers a substantive right, i.e., whether it contains rights-creating language that clearly imparts an individual entitlement with an “unmistakable focus on the benefited class.” Sabree ex rel. Sabree v. Richman, 367 F.3d 180 (3d Cir. 2004), 28 MPDLR 514.

The FNHRA satisfies all three prongs of the Blessing test. As both a Medicaid recipient and a nursing home resident, Daniels was an intended beneficiary of the statute. The repeated use of the phrases “must provide,” “must maintain,” and “must conduct” are not unduly vague or amorphous, but make clear that nursing homes must provide a basic level of service and care for residents and Medicaid patients. Finally, the language unambiguously binds the states and the nursing homes by the repeated use of “must.”

In addition, the FNHRA is sufficiently rights-creating, and the rights conferred  are neither “vague and amorphous” nor impose on states mere precatory obligation. See Gonzaga Univ. v. Doe, 536 U.S. 273 (2002). The amendments confer on nursing facility residents the right to choose their personal attending physicians, to be fully informed about and to participate in care and treatment, to be free from physical or mental abuse, to voice grievances, and to enjoy privacy and confidentiality. 42 U.S.C. §1396r(c)(1)(A). Further, the statute guarantees residents the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for discipline. §1396r(l)(A)(iii). These provisions are mandatory, and clearly phrased in terms of the residents benefited. See Gonzaga Univ., 536 U.S. at 284. Finally, the court concluded that §1983 provides the proper avenue of relief because the Kane Center failed to demonstrate that Congress foreclosed that option by adopting another, more comprehensive enforcement scheme. Id. at 284.

Criminal Mental Disability Law

Prison; Overcrowding; Treatment; Eighth Amendment; Release; PLRA
A three-judge Ninth Circuit California federal court panel issued a final ruling that overcrowding was the primary cause of the state’s failure to deliver constitutionally adequate physical or mental health care to inmates; that no relief other than a prisoner-release order under the Prison Litigation Reform Act (PLRA), 18 U.S.C. §3626(g), will remedy the unconstitutional conditions; that the prison population must be reduced to 137.5 percent of design capacity within two years; and that this reduction can be achieved without an adverse effect on public safety. Also, there was no public safety reason to treat mentally ill offenders differently in this population-reduction program. Coleman v. Schwarzenegger, 2009 WL 2430820 (E.D. Cal. Aug. 4, 2009).

This decision supersedes the court’s February 9, 2009 tentative ruling, 2009 WL 330960 (E.D. Cal. Feb. 9, 2009), 33 MPDLR 269. In the underlying cases—2007 WL 2122636 (E.D. Cal. July 23, 2007) (mental health care), 31 MPDLR 745, and 2005 WL 2932253 (N.D. Cal. Oct. 3, 2005) (medical care)—the court found that the state failed to deliver constitutionally adequate care, in violation of the Eighth Amendment. None of the prior orders, which avoided prisoner release, remedied the unconstitutional conditions.

The court reviewed the unconstitutional conditions. Overcrowding has created severe bed shortages at every level of the mental health care system. Inmates requiring mental health placement often remain in general population yards because there is no space in an appropriate facility. The medication delivery system is overwhelmed. Blood samples taken from seriously mentally ill inmates over a two-year period showed that the vast majority had little or no psychotropic medication in their systems at the time of the test. Those requiring medication while in the general population often become medication-noncompliant and decompensate. Ramifications include rising acuity levels, increased suicide rates, and a greater need for forcible medication orders. The medical records system is chaotic and unwieldy, making it difficult for care providers to follow the inmates’ clinical course of treatment. Overcrowding has caused staff shortages. The total vacancy rate among existing mental health positions ranges from 22 to 36 percent; for psychiatrist positions, the vacancy ranges from 31 to 54 percent.

Seven experts testified that overcrowding is the primary cause of the state’s inability to provide constitutionally adequate care. Four experts were prison administrators. The other three were correctional physician Ronald Shansky, M.D.; psychologist Craig Haney, Ph.D.; and psychiatrist Pablo Stewart, M.D. State expert, ophthalmologist Dr. David Thomas, was the only one who testified that overcrowding was not the primary cause of any of the identified problems, but his testimony unpersuasive because, at the time he drafted his initial report, he had not visited a single prison in the state. He later visited eight and reported that what he saw supported his initial conclusions; however, he took no notes during the visits and could not recall any details. The state’s other expert, psychologist Ira Packer, testified that overcrowding was the cause of the unconstitutional conditions only as to the reception centers and blamed it on the unanticipated influx of mentally ill prisoners. His testimony was also unpersuasive because, since the Coleman litigation was almost a decade old, there is nothing “unanticipated” about overcrowding or the size of the mentally ill inmate population.

The PLRA makes prisoner release a remedy of last resort, requiring a three-judge court to first find that no other relief could remedy the constitutional violations. Here, despite years of remedial orders being issued and a special master and receiver appointed, absolutely no progress was apparent. The PLRA also requires that such an order be narrowly drawn by the federal court to allow the state as much discretion as possible in carrying it out. Taking guidance from Bounds v. Smith, 430 U.S. 817 (1977) (remedying constitutionally inadequate access to state prison law libraries), the court concluded that its order for the state to develop its own plan in the first instance satisfied the criterion.

The PLRA also requires that a prisoner-release order not have an adverse impact on public safety. Overcrowding, with its concomitant inadequate mental health treatment and inadequate rehabilitation, is “criminogenic”—current prison conditions have a substantial adverse impact on public safety. Moreover, the court’s order does not require the state to throw open its prison doors. The state can choose among options for reducing the inmate population, such as enhancing good time and program participation credits, diverting technical parole violators and low-risk prisoners with short sentences, reducing the length of parole supervision, implementing rehabilitative programming to reduce recidivism, and diverting mentally ill offenders to community programs.

The court rejected the state’s claim that mentally ill inmates should be excluded from the population-reduction order. Under the current system, mentally ill inmates are routinely released when their sentences end. Evidence shows that they do not, due to their mental illness, present a higher risk to the public than do other inmates. Psychiatrist Dr. Gilligan testified that mentally ill parolees are not more likely to commit violent crimes after discharge than are other discharged inmates. The state’s expert, Dr. Packer, agreed, based on the research literature. Dr. Packer did not support the mass early release of mentally ill inmates, but recommended their diversion to community-based programs as a population-reduction method. The court found that, as to mentally ill technical parole violators, diversion might improve public safety because it would end the “churning” of violators in and out of prison, which disrupts  their treatment programs.

Disagreement among the experts centered on whether California’s communities have sufficient mental health programs to support the early release or diversion of mentally ill inmates. The court credited testimony that the state’s community mental health systems are already overburdened, but concluded that the Coleman class can be included in the prison population-reduction order by structuring the plan so that only the most stable mentally ill inmates and those most like to comply with community treatment would be released until more programming is in place. The resource gap can be addressed by collaboration between the mental health and criminal justice systems and by shifting resources. As for the larger context of the state’s financial resources, the court found credible evidence that it is cheaper to treat mentally ill persons outside prison than inside prison. For example, it costs $24,000 less annually to provide a therapeutic bed in the community than to incarcerate a mentally ill person, and it is easier to recruit mental health professions for a civil setting.

Disability Discrimination Law

FAPE; Rowley Standard; IDEA; Procedural Violations
The Ninth Circuit ruled that a district court erred in declaring that the 1997 Amendments to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400 et seq., superseded the standard enunciated in Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982), 6 MDLR 235, for determining whether a child received a free appropriate public education (FAPE)—services reasonably calculated to enable children to receive educational benefits. The district court also erred in finding that the school district had committed procedural violations under the IDEA. J.L. v. Mercer Island Sch. Dist., 575 F.3d 1025 (9th Cir. 2009).

The parents of K.L., a student with severe learning disabilities in reading and writing, sued the Mercer Island School District (MISD) under the IDEA for failing to provide K.L. with a FAPE. The administrative law judge (ALJ) analyzed plaintiffs’ claim using Rowley’s “meaningful educational benefits” standard. A Washington federal court reversed and remanded, holding that Congress superseded Rowley in the 1997 IDEA Amendments, and that K.L. was denied a FAPE. 2006 WL 3628033 (W.D. Wash. Dec. 8, 2006), 31 MPDLR 117. On remand, the ALJ found that the private residential school where the parents had enrolled K.L. was appropriate and awarded reimbursement for tuition and related expenses. The district court mostly upheld the ALJ’s decision and entered judgment for the parents. 2007 WL 2253304 (W.D. Wash. Aug. 2, 2007), 32 MPDLR 310.

The Ninth Circuit vacated the district court’s ruling that Rowley had been superseded by the 1997 Amendments, which yielded a new FAPE standard focused on transition services:  “equality of opportunity, full participation, independent living, and economic sufficiency.” Following Rowley, Congress amended the IDEA in 1983, see Pub. L. No. 98-199, 97 Stat. 1357 (1983); in 1986, see Pub. L. No. 99-457, 100 Stat. 1145 (1986); in 1990, see Pub. L. No. 101-476, 901(a)(1), 104 Stat. 1103, 1141-142; and in 1997, Pub. L. No. 105-17, 111 Stat. 37 (1997). “Neither Plaintiffs nor the district court have pointed to authority supporting the proposition that we should consider the legislation ‘evolution’ of a statute when determining Congress’ intent. Plain meaning interpretation is a ‘cardinal canon’ of statutory construction, and evolution arguments are by no means plain.” Also, for spending clause legislation like the IDEA, “it would seem that ‘evolutionary’ theories by their nature are foreclosed by the Supreme Court.” See Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006), 30 MPDLR 588.

The district court relied on the definition of “transition services” in the 1997 Amendments:  “a coordinated set of activities for a student, designed within an outcome-oriented process, which promotes movement from school to post-school activities . . . and shall be based upon the individual student’s needs.” However, the appeals court found “no plausible way to read the definition of ‘transition services’ as changing the free appropriate public education standard.” The court reasoned:  “It seems obvious to us that the word ‘process’ denotes a praxis or procedure; it does not imply a substantive standard or a particular measure of progress. The adjectival phrase ‘outcome-oriented’ is similarly agnostic with respect to ultimate results; it specifies the perspective that participants in the process should strive to attain but does not establish a standard for evaluating the fruits of that process.” See Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 518 F.3d 18 (1st Cir. 2008), 32 MPDLR 469. The court concluded that, “[h]ad Congress sought to change the free appropriate public education ‘educational benefit’ standard—a standard that courts have followed vis-a-vis Rowley since 1982—it would have expressed a clear intent to do so.”

The appeals court cited to “three omissions suggest[ing] that Congress intended to keep Rowley intact.” “First, Congress did not change the definition of a [FAPE] in any material respect.” Had Congress wanted to do so, “the most logical way . . . would have been to amend the . . . definition itself.” “Second, Congress did not indicate in its definition of ‘transition services,’ or elsewhere, that a disabled student could not receive a [FAPE] absent the attainment of transition goals.” “Third, Congress did not express disagreement with the ‘educational benefit’ standard or indicate that it sought to supersede Rowley. In fact, Congress did not even mention Rowley.” Congress had reenacted the FAPE definition in all of the IDEA amendments, and “presumably was aware of Rowley and its renowned ‘educational benefit’ [FAPE] standard.”

Furthermore, the appeals court held that the district court erred in holding that MISD failed to confer a FAPE to K.L. based on procedural violations of the IDEA. As to transition services, K.L.’s parents had not raised such an argument in their due process complaint, the ALJ did not address transition services, and the district court lacked subject matter jurisdiction over this issue because the parents had not exhausted their administrative remedies under the IDEA. As to the pre-meeting, there was no evidence that MISD made program decisions at a preparatory meeting. See 34 C.F.R. §300.501(b)(3). The parents had actively participated in the individualized education program (IEP) meetings, and MISD had changed various aspects of the IEPs based on their recommendations. As to not specifying a teaching methodology in K.L.’s IEPs, the appeals court accorded deference to MISD’s and the ALJ’s findings that K.L.’s teachers needed flexibility because no single methodology would always be effective. As to MISD not specifying the minutes of instruction to be devoted to each of K.L.’s services in her IEPs, the appeals court found that the amount of time to be devoted to K.L.’s services was clearly known to K.L.’s IEP team, and, even if unknown, any procedural violation did not deny K.L. a FAPE. See O’Toole v. Olathe Dist. Schs. Unified Sch., 144 F.3d 692 (10th Cir. 1998), 22 MPDLR 501.