Disability Law Center v. Millcreek Health Center, 2:04CV690 PGC.
| Decision Date | 12 October 2004 |
| Docket Number | No. 2:04CV690 PGC.,2:04CV690 PGC. |
| Citation | 339 F.Supp.2d 1280 |
| Parties | DISABILITY LAW CENTER, Plaintiff, v. MILLCREEK HEALTH CENTER, et al., Defendants. |
| Court | U.S. District Court — District of Utah |
Virginia L. Sudbury, Esq., Disability Law Center, Salt Lake City, UT, for Plaintiff.
Robert B. Denton, Esq., Disability Law Center, Steven T. Waterman, Esq., Ray Quinney & Nebeker, Bonnie Thornley, Salt Lake City, UT, for Defendants.
CORRECTED OPINION AND ORDER
Plaintiff Disability Law Center ("DLC") has filed a motion for a preliminary injunction seeking declaratory judgment and injunction allowing it access to the medical records of a resident of Millcreek Health Center and access to the facility for investigative purposes. Defendant Millcreek Health Center, Michael Daskalas, and Bonnie Thornley ("Millcreek") filed a motion to dismiss the matter for lack of jurisdiction as well as a response to the request for injunctive relief. The court finds that jurisdiction is proper, but that there is no on-going controversy to be resolved. Accordingly, the case is dismissed as moot.
As a preliminary matter, it appears that the full name of a Millcreek resident has been inadvertently revealed in a pleading. The court places under seal the Declaration of Michael J. Daskalas, dated September 10, 2004, to insure the name of the individual is not made a part of the public record in this case. Millcreek is directed to file a redacted version of this pleading by October 6, 2004.
Plaintiff DLC is a non-profit corporation duly organized under the laws of the State of Utah. It functions as the statewide protection and advocacy agency to protect and advocate for the legal and civil rights of those Utah citizens that have disabilities pursuant to the Protection and Advocacy for Individuals with Mental Illnesses Act ("PAIMI"); the Developmental Disabilities Assistance and Bill of Rights Act ("DD"); and the Protection and Advocacy for Individuals with Traumatic Brain Injuries Act ("PATBI").
Defendant Millcreek is a health care facility/nursing facility certified to participate in the state's Medicaid program and is owned by NMP, Inc. In the Spring of 2004, DLC employees Christina Wong and Virginia Sudbury visited Millcreek. During this visit two Millcreek residents indicated they had "complaints and questions" about their situation at Millcreek.1 These residents — W.J. and T.K. — signed authorizations to release their records to the DLC.
On April 2, 2004, the DLC sent a letter to Millcreek requesting the records of several Millcreek residents in an effort to investigate complaints the DLC had received from residents.
On April 9, 2004, the DLC received a letter from T.K. which "cancelled" the authorization to release her records.
On April 12, 2004, three employees of the DLC, including Ms. Sudbury, met with T.K. and questioned whether her withdrawal of the release was truly "voluntary." T.K. indicated concern that release of her records would expose her life to unwanted public scrutiny. The DLC then asked a Millcreek employee to confirm their explanation to T.K. to "verify our legal representations."2
On May 19, 2004, the DLC received a complaint from J.B., another resident of Millcreek. J.B. complained to DLC advocate Maree Webb that "he wanted to leave and was being kept at Millcreek against his will."
On May 26, 2004, Ms. Sudbury, legal counsel with the DLC, visited with J.B., and was asked to leave by the Director of Nursing at Millcreek, Ms. Bonnie Thornley. Shortly afterwards the DLC decided they needed full access to J.B.'s records to investigate his complaints.
On May 27, 2004, Ms. Kathleen Geary, J.B.'s legal guardian appointed by Elko County, Nevada, called the DLC and asked someone to contact her immediately. Over the next two weeks, Ms. Geary, an attorney in the Elko County District Attorney's Office, and Ms. Sudbury held several telephone conferences. Ms. Sudbury told Ms. Geary she was investigating complaints " the substance which, under federal mandate, she could not reveal."3
In a June 21, 2004 letter, Ms. Geary invited Ms. Sudbury to participate in J.B.'s Care Plan conference. Ms. Sudbury declined and responded that she was "not a social worker."4
On June 23, 2004, the DLC received word from Mr. Daskalas that J.B.'s records would be ready on June 28, 2004. Millcreek ultimately did not provide access to J.B.'s medical records.
On July 2, 2004, the DLC received information it deemed credible that Millcreek does not have complaint or incident forms.5 The DLC also received information that new hires at Millcreek do not receive any training, that aids do not have access to care plans, and that residents of the facility are in jeopardy of being abused and neglected.
On July 27, 2004, the DLC brought the present suit seeking injunctive relief.
On August 26, 2004, Millcreek's counsel confirmed its willingness to comply with the DLC's requests. Millcreek promised:
To be specific, to the extent Millcreek has patients that are within the jurisdiction of each of the federal statutes set forth in your complaint, Millcreek will provide access as outlined in the applicable acts. Further, Millcreek strives to comply with the provisions of 45 CFR § 51.42 and 45 CRF § 1386.22, which provide an applicable protection and advocacy system access to records and patient areas of facilities as provided and limited therein.6
According to Millcreek, after the DLC's visit, J.B. began removing his wander guard bracelet and struck a Millcreek employee. On September 10, 2004, due in part to these problems, Ms. Geary transferred J.B. to a facility in Burley, Idaho.
Millcreek argues this court lacks jurisdiction because the DLC has not established that J.B. is a person with disabilities, a traumatic brain injury, or that he is mentally ill. This argument points to the dichotomy of the DLC's requests in this case. The DLC seeks access to the individual medical records of J.B. The DLC also seeks general unrestricted access to investigate any complaints from Millcreek. These two distinct requests are lumped together in the DLC's general request that it receive its "federal statutory rights."
Under PAMII, the DLC may investigate "hospitals, nursing homes, community facilities for individuals with mental illness, board and care homes, homeless shelters, and jails and prisons."7 Court's have interpreted PAMII's reach to allow investigation of both youth training schools, youth detention centers8 and prisons.9 PAMII does not require the DLC demonstrate a threshold showing of mental illness on the part of J.B. to acquire general investigatory access to Millcreek.10 As the District court for the Western District of Kentucky aptly observed:
Demanding a conclusive, individualized showing of ... mental illness before permitting [access] would reserve to Defendant a gatekeeping function contrary to the specific terms and general purpose of the Acts.11
The DLC is plainly authorized by federal statute to investigate claims of abuse or neglect at nursing homes. It is undisputed that Millcreek is a nursing home facility. Accordingly, no additional showing of mental illness on J.B.'s part is required for this court to have subject matter jurisdiction over this case.
Millcreek also raises the argument that because J.B. is not a resident of Utah, this court does not have jurisdiction under PAMII. PAMII states that the DLC has the authority to "pursue administrative, legal, and other remedies on behalf of an individual who — (i) was an individual with a mental illness; and (ii) is a resident of the state."12 The plain language of the statute discusses the limitations on the DLC's authority to seek remedies, not its investigatory authority.
In investigating allegations of abuse at Millcreek, the DLC would likely encounter individuals who are not residents of the state of Utah. Yet, this does not bar the investigative effort. Under its investigatory authority he DLC may generally review Millcreek's operations, policies, procedures, patient areas, without regard to the status of patients as residents of Utah.
As a result, this court too would have jurisdiction over resulting legal disputes.
The parties have filed opposing motions to strike, and both counsel have accurately noted that the supporting affidavits and declarations are rife with impermissible legal opinions. To the extent that any declaration or affidavit includes an impermissible legal opinion, the court will not rely on the opinions.
Ms. Sudbury's affidavit, however, presents a different set of problems. Ms. Sudbury is potentially in the role of both witness and attorney in this case. As discussed at the hearing, the court will permit this dual role for purposes of this case, but encourages the DLC to avoid such dual roles in the future.
Turning to the merits of this case, the court has before it a concrete dispute about whether the DLC can obtain access to records of persons (like J.B.) for whom a legal guardian has been appointed. To be sure, the DLC has withdrawn its request for J.B.'s records through the preliminary injunction since his move to Idaho. Both sides to this dispute agree, however, that there are other persons in the same position as J.B. was in before his move. Accordingly, the court has before it a specific dispute regarding records access that it will resolve, will J.B. serving as an illustration of the problem.
The dispute over records access centers on whether J.B.'s guardian should control access to his records or whether the DLC can obtain access without involving the guardian. The relevant portions of the governing statute state the DLC shall have access to all records of persons without guardians (including person's whose...
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...a threshold showing of mental illness on the part of [the individual whose records are sought]." Disability Law Center v. Millcreek Health Center, 339 F.Supp.2d 1280, 1283-84 (D.Utah 2004) (citing Protection & Advocacy For Persons With Disabilities v. Armstrong, 266 F.Supp.2d 303, 314-16 (D......
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...of these events, the district court concluded DLC's request for a preliminary injunction was moot. Disability Law Ctr. v. Millcreek Health Ctr., 339 F.Supp.2d 1280, 1286 (D.Utah 2004). Because Millcreek agreed to allow DLC access to other patients and patient records, the dispute about gene......