603 F.3d 365 (7th Cir. 2010), 08-3183, Indiana Protection and Advocacy Services v. Indiana Family and Social Services Admin.

Docket Nº:08-3183.
Citation:603 F.3d 365
Opinion Judge:HAMILTON, Circuit Judge.
Party Name:INDIANA PROTECTION AND ADVOCACY SERVICES, Plaintiff-Appellee, v. INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION; Anne W. Murphy, in her official capacity as Secretary of the Indiana Family and Social Services Administration; Gina Eckhart, in her official capacity as Director of the Division of Mental Health and Addiction; and Larry Lisak, in his
Attorney:Seth M. Galanter (argued), Morrison & Foerster LLP, Washington, DC, for Plaintiff-Appellee. Thomas M. Fisher (argued), Office of the Attorney General, Indianapolis, IN, for Defendants-Appellants. Alisa B. Klein (argued), Department of Justice, Civiol Division, Appellate Staff, Jonathan Lave, Paul...
Judge Panel:Before EASTERBROOK, Chief Judge, and POSNER, FLAUM, KANNE, ROVNER, WOOD, WILLIAMS, SYKES, and HAMILTON, Circuit Judges.[*] POSNER, Circuit Judge, concurring. EASTERBROOK, Chief Judge, dissenting.
Case Date:April 22, 2010
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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603 F.3d 365 (7th Cir. 2010)

INDIANA PROTECTION AND ADVOCACY SERVICES, Plaintiff-Appellee,

v.

INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION; Anne W. Murphy, in her official capacity as Secretary of the Indiana Family and Social Services Administration; Gina Eckhart, in her official capacity as Director of the Division of Mental Health and Addiction; and Larry Lisak, in his official capacity as Superintendent of Larue Carter Memorial Hospital, Defendants-Appellants.

No. 08-3183.

United States Court of Appeals, Seventh Circuit

April 22, 2010

Argued Feb. 24, 2010.

Page 366

Seth M. Galanter (argued), Morrison & Foerster LLP, Washington, DC, for Plaintiff-Appellee.

Thomas M. Fisher (argued), Office of the Attorney General, Indianapolis, IN, for Defendants-Appellants.

Alisa B. Klein (argued), Department of Justice, Civiol Division, Appellate Staff, Jonathan Lave, Paul, Weiss, Rifkind, Wharton & Garrison, LLP, Washington, DC, for Amicus Curiae.

Page 367

Before EASTERBROOK, Chief Judge, and POSNER, FLAUM, KANNE, ROVNER, WOOD, WILLIAMS, SYKES, and HAMILTON, Circuit Judges.[*]

HAMILTON, Circuit Judge.

Pursuant to the federal Protection and Advocacy for Individuals with Mental Illness Act of 1986 (" the PAIMI Act" ), 42 U.S.C. § 10801 et seq., the district court ordered Indiana state officials and a state agency to give plaintiff Indiana Protection and Advocacy Services (" IPAS" ) access to records of two mentally ill patients in a state hospital. On appeal, a panel of this court reversed, finding that the Eleventh Amendment and the lack of a statutory cause of action barred the action. Indiana Protection and Advocacy Services v. Indiana Family and Social Services Admin., 573 F.3d 548, 550-52 (7th Cir.2009). We granted rehearing en banc and hold: (1) the Eleventh Amendment does not bar plaintiff IPAS from seeking injunctive and declaratory relief against named state officials; (2) the PAIMI Act itself provides a cause of action for injunctive and declaratory relief to enforce the Act; and (3) plaintiff is entitled to access to peer review records of treatment of covered mentally ill patients. Accordingly, we affirm the judgment of the district court as modified to direct that the relief runs only against the named state officials in their official capacities.

I. Legislative, Factual, and Procedural Background

A. The PAIMI Act and IPAS

Upon finding that " individuals with mental illness are vulnerable to abuse and serious injury" Congress enacted the PAIMI Act in 1986 to " ensure that the rights of individuals with mental illness are protected" and to " assist States to establish and operate a protection and advocacy system for individuals with mental illness which will ... protect and advocate the rights of such individuals through activities to ensure the enforcement of the Constitution and Federal and State statutes...." 42 U.S.C. §§ 10801(a)(1), (b)(1), (b)(2)(A). The Act provides funding for a state on the condition that the state designates a " protection and advocacy system" to accomplish these goals. 42 U.S.C. § 10803(2)(A). The Act gives each state a choice. The designated protection and advocacy system may be either an independent state agency or a private entity. 42 U.S.C. § 15044(a) (Developmental Disabilities and Bill of Rights Act), incorporated by reference in 42 U.S.C. § 10802(2). IPAS, an independent state agency, is Indiana's designated protection and advocacy system under the PAIMI Act. Like any protection and advocacy system, it has the power to contract with other agencies or individuals to help provide its services. 42 U.S.C. § 10804.

The PAIMI Act gives a designated protection and advocacy system like IPAS the authority to investigate incidents of abuse and neglect of individuals with mental illness and to pursue administrative, legal, and other remedies on behalf of those individuals. 42 U.S.C. § 10805(a)(1). To achieve those objectives, the Act requires that IPAS have a right to access certain patient records. Specifically, the Act requires that IPAS " shall ... have access to all records of any individual who is a client of the system if such individual ... has authorized the system to have such access." 42 U.S.C. § 10805(a)(4)(A). The Act also requires that IPAS " shall ... have access to all records of ... any individual (including an individual who has died or whose whereabouts are unknown) (i) who ... is unable to authorize the

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system to have such access; (ii) who does not have a legal guardian ...; and (iii) with respect to whom ... there is probable cause to believe that such individual has been subject to abuse or neglect." 42 U.S.C. § 10805(a)(4)(B).

Whether a state designates an independent state agency or a private entity as its protection and advocacy system, the system such as IPAS must have, under federal law:

the authority to ... pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the State; and pursue administrative, legal, and other appropriate remedies on behalf of an individual who ... was [an] individual with [a] mental illness; and ... is a resident of the State, but only with respect to matters which occur within 90 days after the date of discharge of such individual from a facility providing care or treatment.

42 U.S.C. §§ 10805(a)(1)(B), (C). The Act further requires:

Prior to instituting any legal action in a Federal or State court on behalf of a[n] individual with mental illness, an eligible system, or a State agency or non-profit organization which entered into a contract with an eligible system under section 10804(a) of this title, shall exhaust in a timely manner all administrative remedies where appropriate. If, in pursuing administrative remedies, the system, agency, or organization determines that any matter with respect to such individual will not be resolved within a reasonable time, the system, agency, or organization may pursue alternative remedies, including the initiation of a legal action.

42 U.S.C. § 10807(a).

The PAIMI Act requires that the designated system, whether it is a public or private entity, " shall be independent of any agency which provides treatment or services (other than advocacy services) to individuals with mental illness" 42 U.S.C. § 10805(a)(2). In states like Indiana, in which the governing authority of the agency is a multi-member governing board, the governor may appoint no more than one-third of the board members. 42 U.S.C. §§ 10802(2), 15044(a)(2). Consistent with that requirement, IPAS is governed by a board of thirteen persons. Four are appointed by the governor. The other nine are appointed by majority vote of the governing board itself. Ind.Code § 12-28-1-6(a). No board member may be an official or employee of any state agency that delivers services to the population served by IPAS. Ind.Code § 12-28-1-6(b). Having designated IPAS as the state's protection and advocacy system, Indiana is prohibited from redesignating a different agency or entity without " good cause." 42 U.S.C. § 15043(a)(4)(A).

B. Patients 1 and 2 and the Record Requests

Larue Carter Memorial Hospital is a psychiatric hospital operated by the Division of Mental Health and Addiction of the Indiana Family and Social Services Administration. A person identified in the record as Patient 1 was admitted to Larue Carter on June 21, 2006. Patient 1 was transferred to Wishard Memorial Hospital six days later and died at Wishard on July 31st. In response to Patient 1's death, a Mortality Review Committee convened at Larue Carter on August 11th. The Committee's report was completed on August 28th. In the meantime, a Larue Carter staff member provided information to IPAS that led it to open an abuse and neglect investigation concerning Patient l's care while at Larue Carter. An IPAS

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advocate reviewed Patient l's chart at Larue Carter and then requested Patient l's " complete chart" on August 30th. The hospital denied IPAS's request, explaining that Patient l's parents had not signed a release. On September 13th, IPAS also requested a copy of reports prepared by the Mortality Review Committee. The hospital also denied this request.1

Another person identified as Patient 2 was admitted to Larue Carter in November 2003. On August 26, 2006, Patient 2 left Larue Carter's grounds without approved leave. He was apprehended by a state police officer with assistance from hospital staff. Upon his return to the hospital, Patient 2 filed a grievance with the hospital alleging that three hospital employees and two police officers had battered, assaulted, and attempted to murder him. Patient 2 also filed a complaint with IPAS and signed a release authorizing IPAS to have access to his records. IPAS requested a copy of the hospital's investigation into Patient 2's grievance. The hospital provided a summary of its " investigation results" but did not provide any of the underlying records. IPAS also requested the " incident report" generated by Larue Carter in response to the events of August 26th. The hospital also denied this request.2

The PAIMI Act defines " records" broadly to include " reports prepared by any staff of a facility rendering care and treatment or reports prepared by an agency charged with investigating reports of incidents of abuse, neglect, and injury occurring at such facility that describe incidents of abuse, neglect, and injury occurring at such facility and the steps taken to investigate such incidents, and discharge planning records." 42 U.S.C. § 10806(b)(3)(A). In 1997, the United States Department of Health & Human Services issued a set of regulations for the PAIMI Act. The regulations define the word "...

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