Arkansas Court Rules against US Department of Justice in CRIPA/ADA/IDEA Lawsuit Brought Against State of Arkansas

United States v. State of Arkansas, et al., 2011 U.S.Dist. LEXIS 61347 (June 8, 2011)

Following a six-week trial from September 8 through October 15, 2010, the United States District Court for the Eastern District of Arkansas has found that the United States Department of Justice (“DOJ”) did not meets its burden of proving as alleged under the Civil Rights of Institutionalized Persons Act (“CRIPA”) that the State of Arkansas and Arkansas state officials were failing to provide reasonably safe conditions and habilitation and training services necessary to protect the residents’ liberty interests, at Conway Human Development Center, a training center for 509 persons with developmental disabilities. The Court also held that DOJ failed to prove that Conway Development Center violated the integration mandate of the Americans with Disabilities Act as alleged by failing to provide services in the most integrated, least restrictive setting appropriate to the needs of qualified individuals with disabilities. The Court did find that Conway Development Center failed to comply with all the requirements of the IDEA, but because Congress provided for a state educational agency to enforce compliance with that Act and because evidence established that the state agency was enforcing the Act and the Center had submitted a corrective action plan, no injunction was appropriate.

The Court began its opinion noting how unusual it was for the US Department of Justice’s Civil Rights Division to be enforcing the rights of individuals with disabilities when most of the residents of Conway Development Center had parents or guardians to enforce those rights. Most of the parents or residents were fully satisfied with the services provided and opposed the DOJ claims. Six members of the Conway Human Development Center Parents’ Association, an association comprised of parents and guardians concerned about the Center, its residents and staff, testified at trial regarding the services. The Court noted that two of the witnesses were nurses themselves. Many of the same parents were also members of Families and Friends of Care Facility Residents, a statewide umbrella organization for all of the parent and guardian groups of the human development centers.

Conditions of Care

DOJ alleged that the policies and practices at Conway Development Center departed from generally accepted professional standards and residents were subjected to abuse and neglect, unconstitutional use of restraints, and unprofessional levels of psychological and medical services. DOJ also alleged that the Center’s procedures used to prevent choking, aspiration pneumonia, fractures, decubitis ulcers and other injuries were subpar, and that residents died prematurely. The Court reviewed in detail the testimony of the experts, Center staff and parents on each of the allegations and concluded that the DOJ experts were holding Center staff to a “best practices” standard as opposed to the standard in Youngberg v. Romeo, 57 U.S. 307 (1982) that requires proof of a departure from generally accepted professional standards. The Court specifically noted that the Center was certified by the Centers for Medicare and Medicaid Services (“CMS”) and complied with all CMS standards. DOJ’s experts had testified that professional standards in each of the disciplines were constantly changing and one DOJ expert testified that the CMS standards were outdated. The Court therefore found that the DOJ experts had presented no standards with which the Conway staff could be expected to comply, nor did the experts present any benchmarks to compare the Center’s alleged deviations involving, for example, the numbers of abuse or neglect complaints, choking incidents or aspiration pneumonia with other comparable facilities. In fact, the Court found that one of DOJ’s experts “had no formal education in any field relevant to her testimony,” Opinion at 28, and that another expert “presented no evidence that convinced the Court that she was qualified to testify as an expert in any area other than occupational therapy.” Opinion at 83. Applying the Youngberg standards to this case, the Court held that “[e]ven if the professional judgment of some or all of the plaintiff’s experts were better than the professional judgment of some or all of the professionals at Conway Human Development Center, the evidence does not prove that decisions of the latter represent such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that professional judgment was not actually exercised.” Opinion at 133-134.

Americans with Disabilities Act

DOJ also alleged that Conway Developmental Center was violating the integration mandate of the Americans with Disabilities Act by failing to provide services, programs and activities in the most integrated, least restrictive setting appropriate to the needs of qualified individuals with disabilities as upheld in Olmstead v. Zimring, 527 U.S. 581 (1999). DOJ also alleged that the Center’s staff failed to provide parents and guardians with adequate information about other services that DOJ considered more integrated, and that staff did not exercise professional judgment in determining the most integrated setting appropriate for residents.

The evidence established that Arkansas participates in and serves 4083 individuals in the Home and Community Based Waiver program, or four times the number of individuals served in its training centers. In 2007, there were approximately 700 persons on its waiver waiting list, and as of April 2010, that number had risen to 1400. By the time of trial, the waiting list included 1600-1700 people. The evidence revealed that if a parent or guardian of a resident in a developmental center sought a waiver placement, that resident went to the top of the waiting list. The superintendent of Conway Development Center testified that many or all of the Center’s residents could be served under the waiver with the proper supports and if resources were sufficient. The evidence also demonstrated though that from June 2007 to July 2009, only 18 residents were discharged.

After considering all of the evidence, the Court held that the terms “restrictive” and ”integrated” in the ADA refer to the level of interaction disabled individuals have with nondisabled persons. It then found that the Center provided a significant number of opportunities for individuals to interact with people in the community, sponsoring 305 off-campus activities, including some work opportunities, attendance at movies, eating out, bowling, shopping, fishing, going to parks, going to the state fair, going to the library, attending athletic events, attending church, and participating in the Special Olympics. The Court also heard evidence that nondisabled volunteers visited and worked with residents in about 592 on-campus activities held the previous year, in addition to unrestricted visits permitted from families and friends. The Court also found that individuals in community settings, including those residing in individual apartments had no more contact with nondisabled individuals than did those residing at the Conway Developmental Center. The Court stated, “just as it is an error to assume that because Conway Human Development Center is an institution, its residents have no interaction with nondisabled person, so too is it an error to assume that a community placement ipso facto precludes the possibility of isolation or automatically provides more interaction with nondisabled persons than an institutional setting.” Opinion at 109. The Court noted that no evidence was presented that the Center refused to discharge a resident when requested by the parent or guardian.

Before each annual interdisciplinary team meeting, the Center sent the parent or guardian a brochure explaining services available under the waiver program with a list with contact information of waiver providers in the state and in the county where the resident’s family resided. The Center also sent the parent or guardian a choice of services form on which the parent or guardian indicated whether they wanted to receive services through the waiver program or at the Center. In addition, the Center invited providers to attend meetings of the Friends and Families of Care Facilities and whenever there was a vacancy in a home in a resident’s community, the Center notified the family. The Court thus found that the Center adequately informed parents and guardians of the nature and scope of the home and community based waiver program and provided them with a comprehensive list of waiver providers.

The Court also found that the interdisciplinary team discussed whether the Center was the least restrictive most integrated placement at each annual team meeting and made sure the parent or guardian had received the brochure and list of waiver providers. The Court therefore found staff members at the Center made professional judgments in determining the least restrictive placement appropriate for each resident, even though staff and families agreed that the professionals often did not recommend placement with a waiver provider unless requested to do so by the parents or guardians.

Impact on Virginia

DOJ notified Virginia on February 10, 2011 of the results of its investigation finding that Virginia and Central Virginia Training Center are also violating the integration mandate in Americans with Disabilities Act, making most of the same allegations it made in its losing case against Arkansas: http://www.justice.gov/crt/about/spl/documents/cvtc_findlet_02-10-2011.pdf. With DOJ having lost the Arkansas case, Virginia may now have greater leverage in its negotiations with DOJ that it seemed to have lost when the State of Georgia agreed in October 2010 when faced with a similar federal court complaint to close all of its facilities for individuals with intellectual disabilities rather than go to trial.

DOJ had also previously launched a CRIPA investigation in 2008 at Central Virginia Training Center alleging it had probable cause to believe that CVTC was not protecting residents there from harm and was providing professionally inadequate psychological and psychiatric services. It expanded its investigation in 2009 to investigate CVTC’s nutrition services and occupational therapy and physical therapy programs, alleging many of the same violations at issue in the Arkansas lawsuit. After three on-site visits in 2008 and 2009, DOJ has yet to issue a “findings” letter detailing the results of that investigation.

Most DOJ investigations result in settlement agreements with the state that are filed with the court either before the original complaint is filed or before going to trial. Settlements are reached because of the extraordinary expense involved in month-long trials involving prior document-intensive discovery, the hiring of experts in every discipline under attack and the prolonged diversion of staff time and resources away from the delivery of care to individuals. Whether Virginia will be able to significantly increase its waiver program and switch from an institutionally-based system of care to a community-based system under a reasonable settlement agreement and or will decide to litigate remains to be seen as DOJ and Virginia continue their negotiations.

Found in DMHL Volume 30 Issue 6