Thanks to Susan Stefan, J.D.
The Good News: In Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003), the Ninth Circuit reversed a district court's summary judgment on the Olmstead claims of a class of medically needy Medicaid recipients who were limited to receiving nursing home care because Washington State had not applied for a community based services waiver for that population.
The district court had held that the exclusion of medically needy people from Washington's community based waiver program was discrimination based on income level rather than disability. In addition, the district court invoked Rodriguez v. City of New York to hold that the ADA does not require states to provide new services that they do not already provide to people with disabilities.
The Ninth Circuit held that plaintiffs had established that they were being discriminated against, since the plaintiff was disabled, preferred to be served in the community, and the State did provide community services of the kind that the plaintiff class requested. The majority distinguished Rodriguez by pointing out that "where the issue is the location of services, not whether services will be provided, Olmstead controls."
In a nice footnote, the court noted that "Washington's law, explicitly providing only nursing-home based long term care services to the medically needy, may be read to facially discriminate against disabled persons..."
The Bad News:
The court remands for consideration of a fundamental alteration argument, which I have not seen before, and which it appears to consider a valid argument. Essentially, the argument boils down to the proposition that if community based service waivers were offered, there might be considerable additional costs attributable to the fact that nursing home care is so odious that it provides a disincentive for people to apply for it. It also appears to accept the argument that if providing community based services to medically needy individuals resulted in cutbacks in services to other Medicaid recipients, that this would make out a valid fundamental alteration defense.
Other Bad News (in my opinion)
This is another Ninth Circuit decision where the majority opinion appears to have been written hastily in comparison with an extensive, detailed, meticulous dissent. Judge Beezer has written a dangerous dissent, arguing that "the comprehensive structure of the Medicaid program" forecloses the application of the ADA. This is a new procedural/substantive argument; citing Traynor v. Turnage, 485 U.S. 535 (1988), Judge Beezer finds that because the Medicaid Act is a "narrow, comprehensive statute," it is not superseded by the later-enacted Americans with Disabilities Act. Since Congress gave the States discretion in the Medicaid Act to not provide community care, by making nursing home services mandatory and community services available only through waiver programs, "the Americans with Disabilities Act should not transform Washington's exercise of congressionally-conferred discretion into discrimination."
The Washington State disability groups should be alerted to this case to try to persuade the State of Washington not to appeal this decision to the U.S. Supreme Court. The dissent's reasoning has the potential to undermine the application of the ADA to the Medicaid program in many cases currently being litigated at the district court level.
Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003)
Williams v. Wasserman, 164 F. Supp. 2d 591 (D. Md. 2001)
Williams v. Wasserman was brought in federal court in 1994 to challenge the inappropriate institutionalization of two groups of patients: those with traumatic brain injuries and those who were developmentally disabled, although not mentally retarded. The core of the plaintiffs' claim was that both the etiology and treatment of the behavior problems manifested by these clients were crucially different from those of the psychiatric patient population at these institutions. Plaintiffs charged that defendants failed to treat these clients in a manner appropriate to their condition, resulting in violations of their constitutional rights to safety, freedom from undue restraint, and minimally adequate treatment. In addition, the Department failed in its obligations to provide this group of clients with services in the community, leaving them stranded in inappropriate institutions long after their treatment teams recommended community placements.
The Williams case involved two sets of claims: substantive Due Process claims and claims for integration under the ADA. After denying the State's motion for summary judgment, a trial was held in 1996, post-trial briefs were filed in 1997, and the court remained silent for four years. On Sept. 27, 2001, the judge released an 84-page opinion finding that the defendants prevailed on all claims, granting defendants' motion to exclude the testimony of Nancy Ray, and closing the case.
Procedurally, this case was not tried as a class action, but on behalf of a "representative" group of twelve plaintiffs. In 1995, the plaintiffs withdrew their motion for class certification after defendants agreed to apply any individual relief to all other persons similarly situated. This decision may have had significant consequences for the analysis in the case.
I. Due Process Claims
A. Reconfiguration of Professional Judgment Standard
Although the court cites Youngberg's professional judgment standard as the appropriate basis for determining whether plaintiffs'constitutional rights to safety, freedom from bodily restraint, and minimally adequate training were violated, the court restructures the Youngberg standard in unprecedented ways. Within two pages, the court uses language that resonates first of a deliberate indifference test and then of a negligence standard.
For example, while the court explicitly rejects defendants' invitation to apply the standard announced by the Supreme Court in County of Sacramento v. Lewis, 523 U.S. 833 (1998)(constitutional rights of person killed during high speed car chase violated only if police acted in an arbitrary manner or in a way that shocks the conscience), the judge's standard appears to resemble City of Sacramento: "the focus of the court's inquiry should be on whether the plaintiffs have proven that the defendants' conduct was sufficiently arbitrary or egregious to deprive them of due process," p. 39, note 21. This sounds almost like a deliberate indifference standard.
Only two pages later, however, the court states that its job is to "determine whether the treating professionals employed reasonable judgment in caring for these patients, whether any of the treatment recommendations so deviated from ordinary care as to violate the patients' due process rights, and whether any failure to follow treatment recommendations resulted in a constitutional violation." p. 41. This sounds like a negligence standard.
In fact, the court cites to virtually no case law in support of its opinion. Given the length of time it took for the court to issue its opinion, and the wealth of case law interpeting Youngberg, the opinion is remarkable for its concentration on facts and slim discussion of applicable case law. It refers to the Thomas S. line of cases occasionally, but for the most part, the court concentrates entirely on the testimony of plaintiffs' and defendants' experts.
The decision specifically examines claims in the area of medical care, safety, restraint, treatment, and community treatment. Most of these are discussed below.
Although many of the plaintiffs were severely and repeatedly injured at the state facilities, the court found that "to prove a constitutional violation, the plaintiffs must show that the State abdicated its responsibility to `take thought and make reasonable provision for their welfare," p. 47 (citing [Cty of Sacramento v. Lewis](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=96-1337)). Although many of the plaintiffs were assaulted frequently, and one suffered "lacerations requiring sutures, a fractured finger, scratches, bruises and abrasions, a bloodied nose, a shoulder fracture, and a right hip fracture," the court cited approvingly defendants' expert testimony that "he saw nothing unusual about the number of injuries suffered by the plaintiffs." p. 48.
The court's legal approach to chemical and physical restraints does not appear to focus on whether the restraint is a substantial departure from professional judgment. For example, with no case law or clinical citation, the court appears to determine that drugs cannot be chemical restraints if they are taken orally rather than intravenously (citing defendant's expert as saying "generally, chemical restraints are given intravenously and against the patient's will. In this case, most of the patients were given Ativan or a smilar medication orally on an as-needed basis when they became overly agitated. Even assuming that excessive use of oral medications could amount to chemical restraint, the court finds that the use of PRN medication reflected in the plaintiffs'records does not rise to the level of a constitutional violation" p. 53).
The court finds that tying a client continuously to a geri-chair by a posey vest did not violate the constitution because the defendants'experts stated that the alternatives were "keeping him in 6-point restraints continuously or surrounding him by staff on four sides at all times." p.51. The posey vest is preferable because it allows him freedom to move his arms and legs, and therefore "struck an appropriate balance between freedom and safety." The court does not analyze whether the use of the vest and chair is a departure from professional judgment. It is important to remember that the Supreme Court has already struck the balance between freedom and safety through the professional judgment standard.
In other portions of this section, the court appears to allude obliquely to the professional judgment standard: "The plaintiffs have not proven that the State did not appropriately rely on the recommendations of the hospital doctors in secluding or restraining the patients. Nor has it shown that the recommendations substantially deviated from any accepted standards."
Again, the Youngberg standard appears to be reconfigured. Plaintiffs charged that staff were not trained to deal with TBI/NMRDD clients, and the judge decided that experience was the equivalent of training. The court cited defendants' expert testimony that "state hospital staff and environments have had the most experience in taking care of these particular patients. So I think the level of training is adequate."This appears to equate longevity with expertise. The expert and the court confirm this conclusion, with the expert going on immediately to state "In many cases it's better than anybody else has simply because they have had the experience with these very difficult patients." The court again quotes the expert as saying that patients like one of the plaintiffs "have been around for a while...and essentially they have been in the state hospitals...And these are the staff members who have been taking care of these patients. They do a good job at it. They have the most experience with it." The court follows the defendants'experts in dismissing these same staff members' statements that they do not have sufficient training or expertise to deal with this patient population by saying, rather incredibly, that there are no experts in treating this population of patients. The court states, "although the staff members apparently thought that there was some expertise out there that they didn't have that would enable them to provide better care' no such expertise existed." (p. 61)
d. Community Placement
Although the court reiterates the Thomas S. holding that "the state may not confine patients to mental institutions who do not belong there simply because it is financially or politically expedient to do so" the court also holds that "it is sufficient if a state acts reasonably to implement community placement, without arbitrary or undue delay in light of legitimate budget constraints and the competing demands of other disabled individuals." pp. 62-63. This, of course, sounds as though the court is engrafting a version of the ADA integration mandate on to the Due Process analysis. But as a practical matter, it is difficult to imagine how future plaintiffs will distinguish between individuals who are trapped in institutional settings because of "financial convenience" (unconstitutional) as opposed to "legitimate budget constraints and the demands of other disabled citizens"(constitutional). Given the court's analysis of the ADA standard, proving the former condition appears to present formidable obstacles.
In addition, defendants' experts testified, rather suprisingly, that there was no standard of care established in the published literature for people with traumatic brain injury or developmental disability unrelated to mental retardation. Rather, the defendants' experts testified, and the court credited, that, like Potter Stewart, they knew adequate care when they saw it. ("Each judged the sufficiency of care administered by the hospitals in accordance with his own clinical experience, familiarity with treatment facilities, and the standards published for`other psychiatric patients who may have these kinds of behavioral problems," p. 40. (Of course, the crux of the plaintiffs' case was that the etiology and treatment of behavior problems associated with traumatic brain injury and developmental disabilities was entirely different from the etiology and treatment of behavior problems manifested by psychiatric patients).
The court makes clear it knows that it is rejecting the process by which qualified experts "describe a set of uniform treatment standards and then determine whether the care administered at the state institutions met those criteria" and adopting instead a "flexible"standard based on looking at each individual and the treatment he or she received.
Given the courts' acceptance of defendants' individualized approach, and given the unequivocal way in which the court resolves the case in favor of defendants, it is surprising that the court goes out of its way to exclude the testimony of plaintiffs' expert Nancy Ray because she isn't a medical doctor and only summarized the contents of patients'files and her conversations with patients.
This approach to evidence is possible because the fact section of the opinion is entirely focused on the twelve representative plaintiffs. Had this been pursued as a class action, it is hard to believe that the court could have rejected testimony about "a set of uniform treatment standards" in favor of an individual-by-individual approach.
II. Americans with Disabilities Act
The opinion recites the Olmstead requirements in a pretty standard way, leaving little room to argue with its understanding of the Olmstead legal standard, but its application of the standard is problematic.
Although Maryland's argument was clearly that the costs involved in placing the TBI/NMRDD population constituted a fundamental alteration, the reader never gets a glimmer of how much that cost would be, annually or over time, how it compares with the Department's budget annually and over time, or how specifically it would impact on the placement of other disabled people in the community. The time issue is significant. This opinion represents the first time a district court has answered one of the questions raised by the Olmstead fundamental alteration defense: if costs are asserted as a defense, what is the time frame in which costs are to be assessed? The court states that "measured against the three to five year time frame, and considering the need to maintain a minimum number of hospital beds and also to fund placements for other persons in need of community treatment, the State's progress in placing members of the TBI/NRDD population into the community has been acceptable." However, there is only one sentence in which the judge tells us what that progress has been: "In 1994[(1)], DHMD initiated a special TBI project to develop and fund community placements...Many but not all of the TBI/NRDD population eventually were successfully placed in the community." (emphasis mine) pp.78-79. Thus, although the costs are assessed in a three to five year framework, the state is given a significantly longer period of time over which to assess its success in placing clients. And although the court explicitly notes that "It appears that the state's focus on de-institutionalization and community treatment also has been affected by pressure of litigation," p. 77, the fact that the placements of TBI/NRDD patients all took place during the pendency of litigation that has now been permanently and definitively terminated by the court is not taken into consideration.
In addition, the way in which the court decides that defendants have shown that they have made sufficient progress in placing TBI/NMRDD patients focuses neither on the twelve representative plaintiffs nor even on TBI/NMRDD patients as a whole. Although the court acknowledges that substantial amounts of money can be saved in the long run by treating people in the community, it points to the necessity of maintaining hospitals, which grow more expensive as more people are placed in the community.
As to the State's pace of community placement, the court looks to Maryland's success in placing patients who are not TBI/NMRDD, which seems to miss the plaintiffs' basic contention that they are the ones who have been left behind in the overall community movement in Maryland. This reaches its apex of incongruity when the court dismisses the argument that Maryland could have applied for Medicaid Home and Community Based Services waivers for the TBI/NMRDD population (as almost a third of other states have done) and chose not to do so with the observation that "Maryland officials have made significant efforts to take advantage of other Medicaid waivers." I have argued elsewhere that defendants should be precluded from asserting a defense based on cost if they have not applied for Medicaid waiver funds to defray the costs of community integration, since the majority in Olmstead referred to the defense "in view of the resources available to the state."
The most coherent way to package the court's fundamental alteration analysis (although this is never explicitly stated in the decision) is that the relevant group for "reasonable pace of discharge" analysis is all clients for whom the Department is responsible, not simply the plaintiff group, especially if the plaintiff group is so small that placing them in the community cannot by itself generate cost savings for the Department. The number of institutionalized TBI/NMRDD clients--sixty--and the court notes that "reaching the large volume of change necessary for replacing a substantial portion of the fixed costs of institutionalization depends on the state's overall progress." Because Maryland has made reasonable progress with other institutionalized disabled people, the court seems to say, it has met the ADA standard.
Of course, this is extraordinarily problematic when the plaintiffs'claim is that Maryland's progress has been made while leaving them behind--segregated precisely on the basis of their specific disabilities. I don't think that the theory of this case was that the plaintiffs were discriminated against compared to other clients with developmental and psychiatric disabilities, and I don't know how the fundamental alteration defense would work in the face of such a claim.
It appears that using representative plaintiffs rather than a class action may have permitted a focus on individuals to the exclusion of information and expert testimony about the group of clients as a whole, to the detriment of the case. It also may have permitted the court's unusual departures from traditions of evidence and expert testimony, such as citing extensively to defendants' experts' conclusions based on their experience rather than any standards in the field; indeed, the court accepted the assertion from experts that there was no expertise available on treating this population. In most instances, depending on the particular facts of the case, Olmstead cases should probably be brought as class actions.
Second, we should recognize that general Olmstead claims should be made on behalf of as large and generalized a class as possible, encompassing as many of the defendants' clients as possible to avoid invoking "other persons in need of community treatment." The specific case here, where the claim is that a specific group of disabled people are being discriminated against compared to other disabled people, raises the question of whether the ADA supports claims that one group of disabled people is being discriminated against as compared to another group, a claim that has survived in cases such as Martin v. Voinovich, and appears to be endorsed in dicta by the Supreme Court in Olmstead when it cited cases supporting discrimination claims by one minority even though defendant treated other minorities equitably.
Impact of the Decision
It is hard to gauge what the impact of this case will be. The intense focus on the representative patients and expert testimony makes this a heavily fact-specific case, which may have little impact on other cases in the constitutional area. However, the court's detailed analysis of novel issues in the ADA arena is likely to attract attention. The degree to which it is influential depends on whether other courts are just looking for answers and precedent, or whether they focus on whether the analysis is coherent and sound. --
[1.] This was the year that Williams v. Wasserman was filed.
For an interesting decision affirming the continuing viability of actions for injucntive relief in the Eighth Circuit under the ADA, see Salcido v. Woodbury County, 1999 U.S.Dist LEXIS 14642 (N.D. Iowa, Sept. 16, 1999) (The case also raises interesting issues arising out of financing mechanisms of the kind generally support by advocates as keeping people out of hospitals.)
Salcido v. Woodbury County, 1999 U.S.Dist LEXIS 14642 (N.D. Iowa, Sept. 16, 1999)
Olmstead v. L.C., 1999 U.S. LEXIS 4368 (June 22, 1999)
This decision is many things: a mixed bag, a great victory, and a tremendous opportunity. As framed by Justice Ruth Bader Ginsberg, the question before the Supreme Court was "Whether the proscription of discrimination may require placement of persons with mental disabilities in community settings rather than institutions." The Court answered this question "Yes", but, as Justice Ginsberg made clear, it is a "qualified yes."
Nevertheless, in Chief Justice Rehnquist's Supreme Court, dominated by Republicans, a Court that on the same day rejected both the EEOC's and the Department of Justice's interpretations of their own ADA regulations, the answer "Yes" reflects the enormous achievement of the entire community of people with disabilities, including the attorneys who worked endless hours to get to that "Yes." When Homeward Bound v. Hissom Mem'l Ctr., 963 F.2d 1352 (10th Cir. 1992), was brought a little over a decade ago, even sympathetic advocates were skeptical about the concept that unnecessary institutionalization was discriminatory segregation. Twelve years after Hissom, the United States Supreme Court holds that "unjustified placement or retention of persons in institutions... constitutes a form of discrimination based on disability..." Many, many people contributed to the change in mind-set represented by that "Yes." What follows is an analysis of the case itself. The fact that the "yes" represents five out of nine Justices, and that two of those five were appointed by the current administration, strongly suggests that continuing victories in the Supreme Court may depend on who gets elected in November 2000. Suggestions for political follow-up of this decision will appear in a separate article.
Essentially, the Court sided with L.C. and E.W. on the question of whether inappropriate and unwanted institutionalization constituted discrimination under the ADA, then resolved its own hesitations and doubts about the enormity of this proclamation by handing defendants fairly substantial cover in its interpretation of affirmative defenses available in such cases. The Court left many unanswered questions about how its vision of the ADA will be translated in actual terms in court and in the states. These questions are likely to be answered by what happens in L.C. on remand, as well as what happens in similar cases currently progressing through the federal court system: Williams v. Wasserman, 164 F. Supp. 2d 591, 531 (D. Md. 1996), in Maryland, Kathleen S. v. Dept. of Public Welfare in Pennsylvania (see entry below), and Brown v. Chiles [AKA "Cramer v. Bush"] and Johnson v. Bradley in Florida, to name a few. (For a fairly comprehensive list of litigation raising ADA segregation claims, see the Appendix to the Amicus Brief filed by seven states -- down from 22 after ADAPT got through with them.) These cases, as well as the political arena reflected in the current Presidential and other electoral races, represent the tremendous opportunity created by Olmstead v. L.C.
Summary of Decision
A. The Good News: Unnecessary Institutionalization is Segregation Banned by the ADA
First, the good news. The Court clearly holds that "unjustified placement or retention of persons in institutions, severely limiting their exposure to the outside community, constitutes a form of discrimination based on disability prohibited by Title II." (28). In deciding what constitutes discrimination, the Court (as it did in Bragdon v. Abbott but certainly did not do in Sutton v. United Air Lines, 527 U.S. 471 (1999), gave deference to the Department of Justice's interpretation of its own regulations. Paradoxically, the Court also cautioned that it was not determining the validity of those regulations (22). A finding of discrimination requires neither animus against people with disabilities nor the presence of a comparison class of people without disabilities who were treated better is required. This is a tremendously important holding, underscored by the outrage of the three dissenters, who wrote at length (but futilely) arguing that there must be a comparison class of non-disabled people who are preferentially treated. However, not all decisions which disfavor people with disabilities are discriminatory. The Court hastens to point out that a State may reasonably decide to expend more funds on programs for people with one kind of disability than another without exposing themselves to liability under the ADA.
Notwithstanding its finding that "Congress had a more comprehensive view of the concept of discrimination" than one which would require a comparison class, the Court suggests -- and Justice Kennedy makes clear his preference for -- the possibility that such a class in fact exists: non-mentally disabled people do not have to be locked up away from the community to receive needed medical care, while people with mental disabilities do. The practical problems of proving such a case clearly worry Justice Kennedy, and the majority underscores that these comparisons are not necessary to establish discrimination.
Why is unnecessary institutionalization discrimination? The Court gives two answers to this. First, "institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life and cultural enrichment." Second, "confinement in an institution severely diminishes the every day life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment." (35). Interestingly, these two indicia of institutionalization as discrimination do not vary with the quality of institutional care -- inappropriate institutionalization is discrimination regardless of whether you're in the snakepit or the newest and fanciest facility. In addition, the emphasis placed on access to normal community activities raises questions about whether some "community" placements segregate as much as institutional placements.
Although the Court notes that the Department of Justice's interpretation of inappropriate institutionalization as segregation dates back to Section 504 days, the majority makes few references to Section 504 in figuring out what constitutes discrimination under the ADA, and is entirely silent with regard to its own Section 504 jurisprudence. Instead, it makes a slighting reference to Section 504 as "a single sentence attached to vocational rehabilitation legislation"which "has yielded divergent court interpretations." (34) The ADA is seen as having "stepped up" earlier anti-discrimination measures. The inference that ADA jurisprudence--at least in this area--will not look back to Section 504 case law is underscored again by examination of the dissent, which refers repeatedly to Southeastern Community College v. Davis, 442 U.S. 397 (1979), Alexander v. Choate, 469 U.S. 287 (1985), and Traynor v. Turnage, 485 U.S. 535 (1988).
B. The Unsurprising Qualifier to the Good News: While Individuals May be Inappropriately Institutionalized, Professionals Get to Decide Who is "Appropriate" for Community Placement and Institutions Themselves are Appropriate Forms of Treatment
In order to benefit from the holding in L.C., one must be "inappropriately" placed in an institution. In order to determine whether an individual is "inappropriately" placed in an institution, the "State generally 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."(*38)
This is not terribly surprising. It is the position taken by the Department of Justice, and to decide otherwise risks turning every placement decision into a federal matter, not something this Court in particular -- with its amply articulated concerns about intruding on state prerogatives--was likely to endorse.
Nor is it as bad as it could be. It is quite clear that the professional's assessment must be based solely on the individual's condition, and not on the availability of community placements -- lack of placements is part of the State's affirmative defense, not part of the decision of whether an individual is "otherwise qualified" to be placed in the community.
What will be more painful to advocates reading the decision, although also not surprising given the Court's concerns at oral arguments about people ending up on the streets with no care, is the outpouring of assurance that "the ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk." The Court goes so far as to state that for some people, "no placement outside the institution may ever be appropriate." (Shades of Youngberg v. Romeo, 457 U.S. 307 (1982), where the Court found that Romeo would never be able to survive outside of an institutional setting -- he was placed in the community several years later, even before Pennhurst closed).
C. The Bad News: State Defenses Expanded
The two worst features of this decision are 1) the conclusion -- also made by the Eleventh Circuit -- that community placement is a "reasonable accommodation," and the accompanying importation of the defense of "undue hardship" into segregation jurisprudence. Although the exposition of the "undue hardship" comes in Section III-B, and is not technically the opinion of the Court, Justice Kennedy's concurring opinion gives little hope to those "undue hardship" or, as even more loosely renamed by the Court, "undue burden" is a defense that applies only to requests for reasonable accommodation. Not being segregated should not be seen as a "reasonable accommodation" any more than making restaurants and schools admit blacks would be called "affirmative action." Title II of the ADA permits discrimination only if prohibiting it would "fundamentally alter" a program. Although other defenses are available under Titles I and III, no other defense was provided by Congress in the language of the statute or by the Department of Justice in its regulations.
In its strong concern that State programs be permitted to "maintain a range of facilities and to administer services with an even hand," the Court has essentially imported a new defense into Title II from Section 504, adopting the more flexible "undue burden" or "undue hardship"defense in place of the "fundamental alteration" defense. While the fundamental alteration defense had been interpreted (probably incorrectly) to include only measurements of cost, the Court underscores that undue burden also involves "the overall size of the recipient's program with respect to number of employees, number and type of facilities, and size of budget; (2) the type of the recipient's operation, including the composition and structure of the recipient's workforce; and (3) the nature and cost of the accommodation requested. If these factors seem a bit bizarre in the institutional context, it is because they were written for the employment context. All of these factors are extremely fuzzy, and they leave a lot of play for the federal judge to exercise his or her own discretion.
Going even farther, the Court spells out to defendants what they can show to successfully combat a segregation case: "If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated, the reasonable modification standard would be met"(*44-45). The Court clearly believes that this is necessary to discourage people from bringing litigation simply to jump to the top of the waiting list. Depending on how the lower courts interpret the requirement of a "comprehensive, effectively working plan" and a "reasonable pace" of placements, this requirement could be either sensible or fatal to any kind of progress in placement.
Not surprisingly, this decision creates as many questions as it answers. For example, the Court completely failed to address the fact that L.C. and E.W. fell through the cracks of two service systems because they had dual diagnoses of developmental disability and mental illness. Whose waiting lists have to move at a reasonable pace? What is the universe of clients whose needs must be "evenly served?" These questions and others will be answered in days to come.
A heartfelt thank you to Steven Caley, Sue Jamieson, Michael Gottesman, Ira Burnim, Jonathan Ezekiel, and all the others who worked so hard for so long on this case.
See the Bazelon Center's analysis of the case on its web site as well as our analysis of the Eleventh Circuit's decision below.
See additional links relating to Olmstead v.LC, including various briefs (including NARPA's) and information about the work of activists' efforts to support the community integration. Click here to go the NARPA Rights Tenet.
Olmstead v. L.C., 1999 U.S. LEXIS 4368 (June 22, 1999).
May 14, 1999
Rodriguez v. DeBuono, 44 F. Supp. 2d 601 (S.D.N.Y. 1999), is a very good decision. Plaintiffs challenged certain aspects of New York's procedures to determine the number of hours of personal care services that eligible Medicaid recipients could receive. These procedures ultimately resulted in fewer personal care hours being allocated to people with certain kinds of mental disabilities. The disparity between the services received by people with mental disabilities and others was challenged as violating the Medicaid Act, Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act. Defendants objected that Section 504 and the ADA did not prohibit discrimination as between people with different kinds of disabilities, only discrimination as between disabled and non-disabled people. The court rejected this argument, and rejected defendants'proposed analogy to Alexander v. Choate, 469 U.S. 287 (1985), finding that "Choate challenged a general limitation which applied equally to handicapped and nonhandicapped recipients. Here, plaintiffs challenge a restriction placed only on individuals with mental disabilities who are denied the services offered to individuals with physical disabilities.
The court characterized defendants' reading of Section 504 and the ADA -- that "anti-discrimination statutes offer no protection for the mentally disabled when they are discriminated against by a public entity which does not provide any services to healthy individuals" -- as extreme, and not the result intended by Congress.
Furthermore, the court held that the defense of additional cost was permitted only in the most limited circumstances where the extra cost would fundamentally alter the program, and held that institutionalization (not "unnecessary institutionalization" but institutionalization) was an irreparable harm sufficient to justify injunctive relief.
The two ADA cases of the week are both good news. The Second Circuit affirmed the result in Bartlett v. New York State Board of Law Examiners, 156 F.3d 321 (2nd Cir. 1998), although on arguably better grounds than the district court's decision below.
Bartlett revolves around the efforts of a 49 year old woman with a learning disability to receive accommodations on the New York State Bar exam. The defendants argued that their finding that she did not have a disability should be treated with deference. The Second Circuit rejected that argument, finding that when deference was due to a state agency, it was not because of the fact-finder's status as a state agency, but because of the expertise of the agency in the area in question. The Board of Law Examiners has no expertise in determining learning disabilities. Moreover, the Second Circuit cautioned, "even when an agency has expertise, courts should not allow agency factual determinations to go unchallenged, and deference is particularly inappropriate once that agency is a defendant in a discrimination suit."
Although the district court had found that Dr. Bartlett was not substantially limited in the areas of reading and learning because she had self-accommodated to the point that she had average reading skills compared to the rest of the population (but very low skills compared to the average law student), and instead found her substantially limited in the major life activity of working, the Second Circuit disagreed. A person's ability to self-accommodate does not foreclose a finding of disability. Referring to another case involving a policeman who was blind in one eye, the panel found that "personal, subconscious adjustments to the impairment" do not "take her outside the protective provisions of the ADA." Although the Second Circuit approved the finding of liability for damages, it remanded for reconsideration of the amount.
Your worst nightmare about psychiatric expert testimony came true in the district court's decision in Nichols v. American National Life Insurance, but was fortunately shot down by the Eighth Circuit in the decision of that name, 168 F.3d 1318 (8th Cir. 1998). The defendants in that case hired an expert, Dr. Elizabeth Pribor, who opined that the plaintiff, who complained about sexual harassment, had "poor psychiatric credibility." This was defined as "poor ability to assess the cause of her own psychological state or to report her psychological symptoms accurately." The psychiatrist further opined that the plaintiff was "malingering" for "secondary gain." The Eighth Circuit found that this opinion did not meet the standards of Daubert v. Merrell-Dow for expert testimony, and impermissibly invaded the province of the jury in judging credibility. The Eighth Circuit also found that the decision of the district court to admit testimony regarding the plaintiff's earlier abortion was error.
Bartlett v. New York State Board of Law Examiners, 156 F.3d 321 (2nd Cir. 1998).
Nichols v. American National Life Insurance, 168 F.3d 1318 (8th Cir. 1998).
The Eighth Circuit partially reversed a district court's grant of summary judgment in Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998) (at the district court level, this case was Gorman v. Bishop). In this case, a man in a wheelchair was not permitted on a dance floor in a bar; when he protested, he was thrown out of the bar. When he sought police assistance to gain readmission to the bar, he was arrested. When he asked permission to go to the bathroom before being transported to the police station, the police said no. He was then transported in a van that was not equipped for people in wheelchairs, tied to wire mesh of the police van, which gave way, so that he fell to the floor and lay there in his own urine. The district court granted the police department's motion to dismiss and found that the individual officers had qualified immunity against suit in their personal capacities, since they could not have known that what they were doing was illegal. The Eighth Circuit reversed as to the police department, rejecting its arguments that because Gorman did not voluntarily seek the services of the police, he was not a qualified individual with a disability. The court did so on the basis of Yeskey. Imagine what damage a holding that the ADA only applied to services voluntarily sought by the plaintiff could wreak. The court repeated Justice Scalia's injunction in Yeskey that the scope of the ADA was broad; and that the intention to cover all activities of public entities was not ambiguous. The Eighth Circuit did hold, however, that the individual officers were entitled to qualified immunity in the actions against them in their individual capacity.
In O'Keefe v. Varian, No. 95C 4281, 1998 U.S. Dist. LEXIS 11382 (N.D. Ill. July 23, 1998), a woman with diabetes, depression and bulimia brought suit against her employer. The court, referring to Bragdon v. Abbott, found that "a number of principles emerge from this decision." It is "clear that a disease must not produce continuous, identifiable (to the casual observer) symptoms in order to constitute an impairment." (Nevertheless, while finding that the plaintiff's diabetes was a disability, the court found that the plaintiff had not produced sufficient evidence of the impact of depression and bulimia on plaintiff's major life activities for them to constitute disabilities.) Furthermore, the court pointed out that after Abbott, the adverse employment action need not necessarily be based on the substantial limitation of the disability on major life activities, since in Abbott, the refusal to provide dental services in an office environment was not based on the Abbott's limitations in reproduction. Both of these observations will be helpful to people who have or are perceived as having psychiatric disabilities. Finally, the court emphasized the requirement that both sides engage in discussions and attempts to discern reasonable accommodations, and made it clear that the employer's failure to do so in this case constituted a problem for it as a defendant.
Bragdon v. Abbott also had an interesting discussion about the level of scientific authority necessary to butress direct threat decisions, which is already creeping as dicta into analyses under Daubert v. Merrell-Dow, 509 U.S. 579 (1993). For a very interesting, detailed blueprint on how to attack certain forms of psychological/psychiatric expert witness testimony based on surveys done at the behest of plaintiffs' counsel, see Black v. Rhone-Poulenc, 19 F. Supp. 2d 592 (S.D. W.Va. 1998). The interesting question is whether this decision can be applied to the kind of expert testimony on individuals' mental condition that comes up so often, and if so, how.
Pennsylvania Dept. of Corrections v. Yeskey, 524 US 206 (1998).
Bragdon v. Abbott, 524 U.S. 624 (1998).
Two ADA cases of major significance were decided on consecutive days at the end of June. Both are generally good news for plaintiffs, although both raise almost as many questions as they answer.
The first, of course, is Bragdon v. Abbott, 118 S.Ct. 2196, 1998 U.S. LEXIS 4212, 1998 WL 332958 (June 25, 1998). If you have wondered why you voted for Bill Clinton, count the votes in this 5-4 decision and imagine how appointees selected by George Bush would have voted.
Before Abbott, lower courts had been headed in the direction of finding that no one qualified as a disabled person under the ADA. It made you wonder where the 43 million people Congress found had disabilities were, reading decisions like Runnbaum (HIV infection not even an impairment under the ADA) and Ellison (breast cancer not a disability under the ADA). That trend should slow down now, due to several aspects of Abbott.
First, the Supreme Court determined that HIV-seropositivity was a disability by looking at the medical literature about the course of the disease, and its impact on a life activity determined to be a major life activity, without any close examination of Sidney Abbott's life. (This is one of the major criticisms of the dissenters). Courts had recently been finding that conditions such as cancer, diabetes, epilepsy and even tuberculosis were not disabilities by close scrutiny of how the plaintiff lived his or her life. Plaintiffs who struggled to maintain their jobs and lead a semblance of a normal life were penalized by being found not to be substantially limited in a major life activity. It appears that the Court is signalling lower courts to investigate the disability rather than the plaintiff.
Second, the Court noted that the ADA must grant at least as much protection as the Rehabilitation Act. While the Rehabilitation Act left much to be desired, recent court decisions were clearly giving even less in some cases.
Finally, the Court sent a strong signal about the appropriate level of deference to be accorded to agency interpretations by heavily citing Justice Department and EEO regulations and interpretations. Of particular joy to attorneys seeking to end segregation in institutional settings, the Court appeared to explicitly give a great deal of weight -- the controlling weight of law -- to the so-called coordination regulations on which the Department of Justice regulation mandating services in integrated settings is based. Interestingly, the Court hardly cited legislative history or Congressional debates at all, although both were replete with evidence supporting its conclusions and holding.
Although the Court claimed not to decide whether HIV-seropositivity was a per se disability under the ADA, its approach left little room for argument in any case that being HIV-positive is not a disability. The Court held that being HIV-positive constituted an impairment from the moment of infection as a matter of law. It held that reproduction was a major life activity, and that being HIV-positive substantially limited reproduction both because of the risk of infection to the child and to the partner (thus, people with vasectomies or who are sterilized are still covered). I believe that the Supreme Court ducked the per se disability issue because it did not want to have to come up with a standard by which to judge whether other conditions were per se disabilities, and it envisioned a flood of litigation from per se wannabes (although if you are not going to answer a question, you should have enough consideration for the attorneys writing the briefs and preparing the argument to not grant cert. on it).
Although it did not address a question on which it had granted cert., the Court did pursue an issue on which it had explicitly refused to grant cert., Question 5: Did petitioner Bragdon raise a genuine issue for trial as to whether he was warranted in his judgment that performing the filling in his office would have posed a direct threat?
This direct threat issue is, of course, of vital concern to all who litigate on behalf of people perceived as being psychiatrically disabled, as was Dr. Bragdon's attempt to assert a professional judgment standard for determining direct threat. The Supreme Court thankfully rejected that effort in no uncertain terms, holding clearly that "petitioner receives no special deference simply because he is a health care professional." The folks who are entitled to special deference are the U.S Public Health Service, the CDC, and the National Institute of Health. This has troubling implications about the status of NIMH, but it is clearly a lot better than the standard proposed by Dr. Bragdon and may be the best we could hope for.
The direct threat discussion, and its counterpart in the dissent, is what makes a vote for Bill Clinton worthwhile after all. Justice Rehnquist would have found that "Given the severity of the risk... and the fact that no public health authority had outlined a protocol for ELIMINATING THE RISK emphasis mine... it seems likely that petitioner can establish that it was objectively reasonable for him to conclude that treating respondent in his office posed a direct threat to his safety." The majority more reasonably states, "Because few, if any activities in life are risk free, Arline and the ADA do not ask whether a risk exists, but whether it is significant." (Phew! And they are the majority). The existence of a significant risk must be based on medical or other objective evidence. "Our conclusion that the courts should assess the objective reasonableness of the views of health care professionals without deferring to their individual judgments" leads the Court to remand, although the majority decision is written in terms that makes clear that they won't swoon with surprise if the courts below reach the same decisions the second time around. The majority further states that "Scientific evidence and expert testimony must have a traceable, analytic basis in objective fact before it may be considered on summary judment." Gives psychiatric expert witnesses something to think about.
More on the second case, Kathleen S. v. Department of Public Welfare, below. That case is, by the way, the very first case to cite Bragdon v. Abbott, which was decided the day before Kathleen S. was issued.
Bragdon v. Abbott, 118 S.Ct. 2196 (1998).
Kathleen S. v. Department of Public Welfare, 10 F. Supp. 2d 460 (E.D. Pa. 1998) can be seen as the beginning of the next generation of Helen L. cases under the ADA. It is one of the first major class actions requiring substantial desegregation under the ADA, and its division of sub-classes probably foretells the categories of the future: people the State has planned to place in the community (but just hasn't gotten around to); people the State believes could be placed in the community if sufficient resources were available, and people the State thinks should stay in the institution. (Look for that last category to increase in the coming years). boogaThe court in Kathleen found that people in the first two categories were subject to inappropriate segregation under the ADA, and ordered that they be placed in the community. The clearest indication that this case is the beginning of a second wave of ADA litigation is that the court told defendants when to do this: in eighteen months, rather than the defendants' schedule of three years. This may be the part of the court's ruling most vulnerable on appeal, although this is the Third Circuit, and the judge laid a good foundation for selecting this timetable in terms of the defendants' own past practices. It is noteworthy that the court in Charles Q v. Houston, an individual case, gave the defendants three weeks to come up with a discharge plan for Charles and 60 days to get him out of the hospital where he had spent 44 years of his life. Finally, the defendants' defenses, although given short shrift by this court, show that defendants are finally beginning to give some thought to procedural defenses that other courts might be more receptive to considering: abstention and Rooker-Feldman arguments. The Rooker-Feldman doctrine holds that a federal district court may not serve as an appellate court for state court decisions. The defendants' argument was apparently (it's hard to tell from the case) that plaintiffs were in effect appealing commitment decisions to the federal court. The defendants also argued that the plaintiffs were inappropriately using the ADA as a habeas corpus remedy, a less troubling argument.
Finally, the court rejected defendants' fundamental alteration argument,noting that the language of the Pennsylvania statute defining the department's duties spoke in precisely the same terms as the plaintiffs: the primacy of community based care over institutions. Because so many state statutes mouth the same noble principles, never having thought they would actually be taken seriously, this is a great source for attorneys doing these cases across the country to defeat defenses of fundamental alteration. Thanks to the plaintiffs' lawyers and Judge Broderick -- it's nice to get some good news for a change.
Kathleen S. v. Department of Public Welfare, 10 F. Supp. 2d 460 (E.D. Pa. 1998).
The Eleventh Circuit decided L.C. v. Olmstead, 138 F.3d 893, on April 8, 1998 (the decision can also be found at 1998 WL 163707, and at 1998 U.S. App. LEXIS 6878).
In L.C. the Eleventh Circuit followed the lead of the Third Circuit in [Helen L. v. DiDario](https://www.leagle.com/decision/199537146f3d3251310), 46 F.3d 325 (3d Cir. 1995), holding that "where...the State confines an individual with a disability in an institutionalized setting when a community placement is appropriate, the State has violated the core principle underlying the ADA's integration mandate."
The Court rejected the State's argument that the ADA only protects against discrimination that disadvantages disabled people compared to non-disabled people in the strongest terms, and at great length. Noting (correctly) that this argument means that "the ADA affords no protection to individuals who receive public services designed only for individuals with disabilities," the Court conducted an exhaustive review of statutory provisions, legislative history, and the Department of Justice regulations that support the contrary conclusion. The Court distinguished Traynor v. Turnage, 485 U.S. 535 (1988), in a footnote as standing for the proposition that benefits may be accorded one group of people with disabilities without the requirement that they be extended to all people with disabilities, and having nothing to say about the question of whether segregation of people in institutions is appropriate.
In addition to finding that the claims were not moot because of the plaintiffs' placement in community settings, and in addition to holding that the ADA imposes duty on states "to place individuals with disabilities in the most integrated setting appropriate to their needs when receiving services for their disabilities to ensure that they become integrated into communities, not isolated from the rest of our society in state-run institutions," the Court had significant things to say about the role of budget shortfalls in ADA anti-segregation claims.
First, the court rejected the argument that denial of community placement because of lack of funding was not based on disability and therefore not discriminatory. The Court essentially found that cost concerns were always matters of affirmative defense in ADA cases (not, as the defendants were trying to argue here, a trump to plaintiff's prima facie case requiring the plaintiffs to prove discrimination). Judge Barkett wrote that "the plain language of the ADA's Title II regulations, as well as the ADA's legislative history, make clear that Congress wanted to permit a cost defense in only the most limited of circumstances." The court said flat out that a public entity could not justify its refusal to comply with the ADA by asserting that it lacked the money to do so.
The court did caution that its holding does not mandate deinstitutionalization, and is limited to circumstances where the disabled individual's treting professionals find that a community-based placement is appropriate for the individual. Even the best of the district court decisions have not held as a matter of law that segregation in institutions always violates the ADA (although Judge Broderick in Pennsylvania just certified a Helen L. -type class).
Those limited circumstances under which the state can raise costs refer to the "fundamental alteration" defense. Although the panel remanded to the district court for further evidence on whether placing the plaintiffs in the community would fundamentally alter defendants'mental health system, the court gave clear indications of its position on the issue. The court instructed the district court to investigate (1) whether the additional expenditures necessary to treat the plaintiffs in the community would be unreasonable given the demands of the State's mental health budget (after making it clear that the extra money -- if any -- required would be compared to the entire state mental health budget on the previous page); (2) whether it would be unreasonable to require the State to use additional available Medicaid waiver slots (of 2100 Medicaid waiver slots available in 1996, the State used on 700); and (3) whether any difference in the cost of providing institutional or community-based care will lessen the State's financial burden. I read this as giving the district court a blueprint for making the kind of factual findings that would support affirmance if and when the state appeals the district court's findings regarding fundamental alteration, and a good opportunity to make more good law on these ADA issues. Interestingly, the panel indicated its awareness that "the State will be able to save money by moving patients from institutionalized care to community-based care only when it shuts down entire hospitals or hospital wings, but not when it moves one or two patients from a hospital into the community." Thus, it is possible that the panel is setting up a very astute doctrinal path for plaintiffs to travel: in individual cases, the cost of moving people into the community will always be de minimus as compared to the State's budget, and therefore a fundamental alteration defense will fail; however, if the remedy requested is on a larger scale, it will become more financially feasible, and therefore costs as a premise for fundamental alteration defenses are difficult to assert. The court does seem to indicate that a defense that eliminating institutions entirely would fundamentally alter a mental health system would be received with more sympathy, and makes clear that this holding does not serve as precedent for deinstitutionalizing an entire hospital.
We seem to have entered an era where deinstitutionalization is not permitted, but desegregation is. Let us make the most of it.
L.C. v. Olmstead, 138 F.3d 893 (11th Cir. 1998)
The Supreme Court just decided to hear its third ADA case this term, making it clear that the Court is intending to shape ADA jurisprudence in a wide variety of areas. In addition to Abbott v. Bragdon, 107 F.3d 934 (1st Cir. 1997), which will permit the Court to decide whether any disabilities are per se disabilities (a likely negative answer to that question despite persuasive legislative history to the contrary), whether reproduction is a major life activity, and (of greatest importance to people in the mental health field) how professional judgment intersects with the ADA, the Supreme Court has agreed to decide whether the ADA applies in the prison setting, and, recently, whether a claimant under the ADA must submit his claim to arbitration under a collective bargaining agreement prior to bringing a court action.
All of these cases have one thing in common: the circuit courts are badly split on the issues involved. There are a number of other issues dividing the circuits that the Supreme Court has not decided to hear (so far): whether mitigating measures such as medication or glasses should be considered in deciding whether an individual is disabled; whether application for disability benefits judicially estops a plaintiff from claiming that he or she is qualified for the job; and (another important one for the mental health community) whether and how the ADA applies to decisions by state agencies to terminate parental rights.
Recently, the Fifth Circuit, arguably the most conservative circuit in the country, reexamined the question of whether Congress had the power to pass the ADA at all and answered in the affirmative, in Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir. 1998).
The decision regarding the intersection of the ADA and collective bargaining/labor law is Wright v. Universal Maritime Service Corporation, 1997 U.S. App. LEXIS 19299, 1997 WL 422869 (4th Cir. July 29, 1997).
The cases from the Circuit Courts in Februrary so far look like versions of the Good News/Bad News joke. The good news is Ralph v. Lucent Technologies, 135 F.3d 166 (1st Cir. 1998). This case is good news on a variety of fronts. The facts in the case are that Ralph, who worked for Lucent successfully for over twenty years, began to be harassed by his co-workers for being "a homosexual" and "a child molester" (the court informs us that he is neither). There is a fairly substantial set of cases involving people alleging that their psychiatric disabilities were caused by harassment at work because of gender, sexual orientation, race and/or physical disability. These cases tend to fare badly, and no case involving harassment because of purported sexual orientation has ever succeeded before. In this case, Ralph ended up trying to kill himself and hospitalized, but he came back to work, where he found allegations about being a child molester on his locker. He took some time off, but his psychiatrist (the mental health professionals are the good guys in this case) said (1) medication would cause him more harm than good, and (2) he really should get back to work. The company tried to force him to take disability. There is also a substantial body of case law involving employers who try to get rid of problem employees by urging / encouraging / forcing them to go on disability (the same disability plans that give limited benefits for emotional disabilities compared to physical disabilities). He requested an accommodation of being allowed to return to work part-time for four weeks. The company said no. The district judge issued a preliminary injunction requiring the company to grant the accommodation, which the company appealed (?!) to the First Circuit. This seems a little extreme for a time-limited accommodation, and the First Circuit pointed this out. It affirmed the injunction of the District Court.
The bad news is EEOC v. Prevo's Market, 135 F.3d 1089 (6th Cir. 1998). The EEOC has been losing a lot of ADA Title I cases lately. They should have won this one. A grocery clerk who was HIV-positive was fired for refusing to undergo medical examination after he revealed his condition to his employer, and the court upheld this result. In a memorable line, the Sixth Circuit says, "This is not the sort of unfounded and biased discrimination the ADA was created to prevent." Rather, I suppose, it is considered to be founded and unbiased discrimination. The food handler exception in the ADA was clearly limited to food handlers; there is no medical indication whatsoever that a grocery clerk who is HIV-positive poses a direct threat to anyone. This is a sad day, and an outrageous case.
Ralph v. Lucent Technologies, 135 F.3d 166 (1st Cir. 1998).
EEOC v. Prevo's Market, 135 F.3d 1089 (6th Cir. 1998).
The case of the month (a little belated) is Chris Doe et al. v. Dr. Carlos Stincer, et al., 990 F. Supp. 1427 (S.D. Fla. 1997), which found that a Florida statute requiring medical facilities to release all medical records to former patients upon their request, but permitting the facilities to deny requests for mental health records, violated Title II of the Americans with Disabilities Act. This case is important for a variety of reasons. First, while the disparity between the right of access to medical and mental health records in most states is not as egregious as it is in Florida (for example, in most states, a facility must make a finding that releasing the records would be harmful to the patient, and provide for some right of appeal; the Florida statute required no finding of harm, and provided no right of appeal), all states have some differentiation in their statutes. The plaintiff's position was that any differentiation is unsupported by the substantial research literature developed over the last twenty years in this field.
The case also held that the Advocacy Center, which is the Florida Protection and Advocacy Agency, had independent standing to bring this suit, which was fortunate. In other rules, the court appeared to cast doubt on the standing of the individual plaintiff. This highlights a real problem with the Americans with Disabilities Act: under Title III, a plaintiff cannot sue for damages (although the Department of Justice can). Every time a person with a psychiatric label sues under the ADA, the defendants can simply turn over the records, and potentially moot the case, since the plaintiff will be unable to bring a lawsuit for damages. Plaintiffs can sue for damages under Title II of the ADA, but this would be an extremely weak claim since it was not the government but the facility that denied our plaintiff access to her records.
This case is being appealed to the Eleventh Circuit. Briefing schedules have not yet been set.
Doe v. Stincer, 990 F. Supp. 1427 (S.D. Fla. 1997).
Last updated January 2005, by Tom Behrendt. (Links updated November 2019.)