Gieseking v. Schafer

• Decision Date: 13 August 1987
• Docket Number: No. 86-4636-CV-C-5.,86-4636-CV-C-5.
• Citation: 672 F. Supp. 1249
• Parties: Donald GIESEKING, Jeffrey Snatilli, Mark Miget, Joseph Nowotny, Cecil Hancock, Darlene Declue, Missouri Protection & Advocacy Services, Plaintiffs, v. Keith SCHAFER, Gary V. Sluyter, Otis R. Bowen, Secretary of Health & Human Services, John Ashcroft, Governor, State of Missouri, Defendants.
• Court: U.S. District Court — Western District of Missouri

672 F. Supp. 1249

Donald GIESEKING, Jeffrey Snatilli, Mark Miget, Joseph Nowotny, Cecil Hancock, Darlene Declue, Missouri Protection & Advocacy Services, Plaintiffs, v. Keith SCHAFER, Gary V. Sluyter, Otis R. Bowen, Secretary of Health & Human Services, John Ashcroft, Governor, State of Missouri, Defendants.

No. 86-4636-CV-C-5.

United States District Court, W.D. Missouri, C.D.

August 13, 1987.

Ann B. Lever, Roger J. Bertling, St. Louis, for plaintiffs.

Mary Stewart Tansey, Joann Leykam, Jefferson City, Mo., for State defendants.

Christy Schmidt, Office of Gen. Counsel, Dept. of Health & Human Services, Kansas City, Mo., for Federal defendant.

ORDER

SCOTT O. WRIGHT, Chief Judge.

Before the Court are the Federal and State defendants' motion to dismiss or, in the alternative, for summary judgment as to all counts of plaintiffs' first amended complaint. For the following reasons, the Court concludes that plaintiffs' claims under the Rehabilitation Act and the due process clause must be dismissed. However, defendants' motion to dismiss as to the remaining claims must be denied.

Factual Background

Plaintiffs bring this action individually and on behalf of other similarly situated individuals pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. Plaintiffs seek certification of a class which consists of all handicapped persons within the State of Missouri who have been or will be determined by the Missouri Department of Mental Health ("DMH") or one of its regional centers to be developmentally disabled and for whom DMH and its regional centers have failed or will fail to develop individual habilitation/treatment plans or to secure treatment, training, placement, residential care, habilitation or other services consistent with their individual habilitation/treatment plans and comprehensive service needs. The proposed plaintiff class also includes a sub-class of developmentally disabled persons who have been or will be committed to institutions operated by DMH and for whom DMH and its regional centers have failed or will fail to secure the community group living arrangements called for by their individual habilitation/treatment plans.

Plaintiffs bring this action against the State defendants pursuant to 42 U.S.C. § 1983, alleging that the State defendants' failure to develop and implement individual habilitation plans for developmentally disabled individuals and the failure to meet their comprehensive service needs violate the Developmental Disabilities Act of 1984, 42 U.S.C. § 6000 et seq. (Supp.1987) ("DD Act"). The DD Act is a federal-state grant program whereby the federal government provides financial assistance to participating states to assist in creating programs to care for and treat the developmentally disabled. Additionally, plaintiffs allege that implementing individual habilitation plans and providing comprehensive services to some developmentally disabled individuals while denying them to plaintiffs and the class they seek to represent also violates section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Plaintiffs further allege that the Secretary of Health and Human Services has failed to perform his statutory duties to ensure compliance with the DD Act and section 504 of the Rehabilitation Act. Finally, plaintiffs contend that allowing plaintiff Donald Gieseking and his putative sub-class to remain institutionalized despite professional recommendations for community placement violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Plaintiffs seek both declaratory and injunctive relief and reasonable attorneys' fees pursuant to 42 U.S.C. § 1988 and 29 U.S.C. § 794a.

Both the Federal defendant and the State defendants have moved to dismiss or, in the alternative, for summary judgment. The Federal defendant has moved to dismiss on the following grounds:

(1) The State program referred to in plaintiffs' complaint does not receive federal funds and, thus, is not a program assisted by DD Act funds; (2) the DD Act does not create an implied right of action against the Secretary of the Department of Health and Human Services; and (3) no private cause of action exists against the Secretary under § 504 of the Rehabilitation Act.

The State defendants have moved to dismiss on the following grounds:

(1) The DD Act does not allow a private cause of action against state officials, nor does it create substantive rights to an individual habilitation/treatment plan or services; (2) plaintiffs' Rehabilitation Act claim should be dismissed because the exclusive remedy for claimed inappropriate use of DD funds is the DD Act; and (3) plaintiffs' Constitutional claims should be dismissed because there is no Constitutional right to an individual habilitation/treatment plan or to community placement.

Program Assisted With DD Act Funds

The initial question before the Court is whether plaintiffs have properly alleged that the state program alleged in plaintiffs' complaint is a program assisted with DD Act funds. As noted by the Federal defendant, if the program does not receive federal funds under the DD Act, then the state is under no obligation to assure the Secretary that each person found to be developmentally disabled has a habilitation plan or receives appropriate services. See Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981) ("Pennhurst I").

Section 123(a) of the DD Act provides that:

"The Secretary shall require as a condition to a State's receiving an allotment under this subchapter that the State provide the Secretary satisfactory assurances that each program (including programs of any agency, facility, or project) which receives funds from the State's allotment under this subchapter (1) has in effect for each developmentally disabled person who receives services from or under the program a habilitation plan meeting the requirements of subsection (b) of this section, and (2) provides for an annual review, in accordance with subsection (c) of this section of each such plan." (emphasis added)

Section 6022(b)(5)(C), in reference to the requirements of state plan approval, provides that:

"The plan must contain or be supported by assurances satisfactory to the Secretary that the human rights of all persons with developmental disabilities (especially those persons without familial protection) who are receiving treatment, services or habilitation under programs assisted under this part will be protected consistent with section 6009 of this title (relating to rights of the developmentally disabled)." (emphasis added)

The Federal defendant asserts that because plaintiffs did not receive services under a program assisted by DD Act funds, then plaintiffs have failed to state a claim under the DD Act upon which relief may be granted. Plaintiffs counter by arguing that plaintiffs do indeed receive habilitation services under a program assisted by DD Act funds, and that the assisted program under which they receive services is the Missouri Division of Mental Retardation and Developmental Disabilities' service delivery program, comprised of the regional centers for the developmentally disabled and the regional advisory councils on developmental disabilities. In order to answer the question of whether the program alleged in plaintiffs' complaint is a "program assisted" with DD Act funds, the Court must first analyze the Missouri scheme for the administration of services to developmentally disabled individuals.

The Missouri Department of Mental Health ("DMH") is the state agency designated to administer or supervise administration of the state plan submitted for Missouri's allotment of DD Act funds. See 42 U.S.C. § 6022(b)(1)(B). The Division of Mental Retardation and Developmental Disabilities is the actual grantee of Missouri's DD Act funds; it makes the application for those funds and has final decision-making authority on sub-grants of those funds. The Division of Mental Retardation and Developmental Disabilities ("Division") is, by state law, charged with the responsibility of providing services to mentally retarded and developmentally disabled clients of the DMH. Mo.Rev.Stat. § 633.010.2(1).

The Division has a service delivery system to link developmentally disabled clients with the services that they need. To ensure the accessibility of services for the developmentally disabled, the DMH has divided the state into eleven (11) regions. Mo.Rev.Stat. § 633.035. Each region has a regional council on developmental disabilities and a regional center for the developmentally disabled. See Mo.Rev.Stat. § 633.040, 633.100. As noted by plaintiffs, the regional councils and regional centers are the principal vehicles for the Division's service delivery system.

The regional centers are the entry or primary access points for developmentally disabled individuals into the Division's service delivery system. The regional centers evaluate whether applicants meet the developmental disability eligibility criteria. Once eligibility is determined, the client is assigned to a regional center case manager who is responsible for organizing the individual habilitation planning process for the client. Through the individual habilitation planning process, the client's service needs and least restrictive environment are identified. The case manager then links the client with appropriate services for his or her individual needs. Once the client's service needs are identified, the Division meets those needs in two ways: (1) directly through its own facilities; or (2) by contracts with community-based providers. Regardless of whether a client's services are provided directly by the Division or are purchased from community vendors with funds allocated to each regional center, it is the regional center which...