Roll v. Howard

• Decision Date: 11 December 2020
• Docket Number: No. 121,447,121,447
• Citation: 480 P.3d 192
• Parties: Catherine ROLL, a disabled person, by and through her co-guardians Teresa Roll Kerwick and Mary Ann Burns, Appellants, v. Laura HOWARD, Secretary of The Kansas Department for Aging and Disability Services, and Mike Dixon, Superintendent of the Parsons State Hospital and Training Center, Appellees.
• Court: Kansas Court of Appeals

480 P.3d 192

Catherine ROLL, a disabled person, by and through her co-guardians Teresa Roll Kerwick and Mary Ann Burns, Appellants,

v.Laura HOWARD, Secretary of The Kansas Department for Aging and Disability Services, and Mike Dixon, Superintendent of the Parsons State Hospital and Training Center, Appellees.

No. 121,447

Court of Appeals of Kansas.

Opinion filed December 11, 2020.

David P. Calvert, of David P. Calvert, P.A., of Wichita, and Stephen M. Kerwick, of Wichita, for appellants.

Arthur S. Chalmers, assistant attorney general, and Derek Schmidt, attorney general, for appellees.

Before Warner, P.J., Standridge and Gardner, JJ.

Warner, J.:

Catherine Roll is a patient at Parsons State Hospital, where she has lived and been treated for an intellectual disability and schizophrenia

for several decades. In 2016, the Department for Aging and Disability Services, in conjunction with Parsons, indicated an intent to transfer Roll to a more integrated community-based treatment program (though the specific program where she would be transferred was not yet determined). Roll's guardians sought a permanent injunction to prevent the transfer, alleging the Americans with Disabilities Act (ADA) and the Social Security Act (SSA) prevented the Department from transferring her without her consent.

After a trial, the district court found that the Department had shown that the treatment available at a community-based program was appropriate to meet Roll's needs. The court also found that, because Parsons provided a level of care and restriction beyond what was medically necessary, neither the ADA nor the SSA prevented the State from transferring her to a different program. After carefully reviewing the record and the parties' arguments, we find the district court's crucial finding—that Roll does not need to be treated in a facility as restrictive as Parsons—is supported by the record. And we agree that there is no right under the ADA and SSA for patients to remain at a more restrictive facility if the level of care provided is medically unnecessary. Thus, we affirm the district court's denial of the permanent injunction.

FACTUAL AND PROCEDURAL BACKGROUND

Catherine Roll's parents brought her to Parsons State Hospital in 1970, when she was 15 years old, to treat her intellectual disability and schizophrenia

. She has lived there for the past 50 years. Roll's parents passed away in the 1990s and her two sisters, Teresa Kerwick and Mary Ann Burns, have served as her guardians since that time.

Parsons provides housing and treatment for individuals with intellectual disabilities and mental-health conditions. To qualify for admission (and to receive state and federal funding), applicants must have an intellectual disability (which begins at an IQ of 70) and demonstrate active treatment needs. Once admitted, patients live in communal housing units called cottages. A team of professionals creates an active treatment program to identify the needs of and assess each patient. Staff, who have often worked at Parsons for several years if not decades, monitor and inform patients of their progress at monthly and annual reviews.

Roll is identified as appropriate for transfer to a community-based treatment facility.

When Roll was admitted to Parsons, individuals were often admitted to institutions because their families could not adequately address their needs. But a series of societal and treatment-based changes beginning in the late 1970s enabled individuals to live their lives outside of institutions. New medications addressed mental-health issues while advances in educational technology allowed the needs of individuals with intellectual disabilities to be met at home or through noninstitutional, community-based services.

These changes in treatment affected Parsons in at least two important ways. First, expectations about the extent and duration of institutionalization have evolved. A preference has emerged to treat individuals in more integrated settings—such as community-based treatment programs that provide individuals opportunities to interact with both disabled and nondisabled persons—rather than the isolated environment of an institution such as Parsons. The goal of institutional treatment is no longer to "cure" a mental disability

, as it was in the early 1970s, but to return a patient to a community-based program that adequately addresses his or her treatment needs. In other words, a person's treatment at Parsons should only last until he or she can successfully transition to a more integrated setting.

Second, as individuals have transitioned out of Parsons and into new community-based programs, the profile of Parsons' treatment population has changed. As individuals with less severe conditions have moved out, the proportion of patients with much more severe conditions increased. Most of Parsons' incoming patients now have a severe behavioral issue, such as aggression, self-injury, or sexual conditions such as pedophilia, and have generally been transferred either from incarceration or a state psychiatric hospital.

In 2010, former Governor Mark Parkinson issued an executive order recommending that state hospitals serving individuals with developmental disabilities downsize as, among other reasons, a cost-cutting measure. More recently, Parsons identified two concerns with keeping patients who could live in community-based environments: staff resources and bed space. Patients with less severe conditions require staff supervision that could otherwise be spent on monitoring patients with more severe conditions, and their place in a cottage could be more appropriately used by someone on the hospital's waiting list. To address these concerns, Parsons Superintendent Dr. Jerry Rea asked staff in December 2015 to identify individuals who could be successfully transferred to community placements. Staff identified 21 patients, including Roll.

To gauge Roll's level of cognitive and physical function, Parsons staff have administered the Vineland-II test, which measures adaptive functioning—the ability to perform everyday skills—in 11 areas across 4 domains: communication, daily living skills, socialization, and motor skills. The test contextualizes the test taker's skill levels by comparing them to the age at which a person from the general population (which includes individuals without developmental disabilities) would demonstrate similar skills. In a test administered in July 2012, Roll exhibited skills across the tested areas equivalent to a person between the age of 2½ and 8½ years old.

Roll receives a very low dose of a psychotropic medication to prevent symptoms of withdrawal associated with a previous medication for her schizophrenia

. She does not appear to display any schizophrenic symptoms. She has a moderate intellectual disability, which generally means that she requires physical assistance in performing some tasks but requires only verbal prompts to perform others.

The guardians oppose Roll's transfer to a community-based treatment program.

Roll's guardians have historically been opposed to transferring her to a community placement. In 2002, Parsons believed Roll would do well in a community placement and encouraged the guardians to tour a few facilities where she might be transferred. Roll's guardians toured three, but they did not believe any were suitable for her. The guardians expressed their desire at that time that Roll not be transferred to a community placement.

In February or March 2016, a Parsons social worker called Kerwick to inform her that Roll had been selected to transition into a community-based treatment program. Kerwick replied she would not approve a transition. During a subsequent call, Parsons staff set up a meeting between Kerwick and Dr. Rea to discuss community placement. During the meeting in late March, Dr. Rea explained his rationale for transferring Roll—Parsons currently treats patients with more severe conditions, these patients present safety concerns to other patients, and a $1.3 million decrease in Parsons' budget would require closing a cottage (each of which provides housing and treatment for about 20 patients). Kerwick agreed to tour some facilities with Burns, but due to her sister's schedule, the tours would have to be in the summer.

In early June, Dr. Rea sent a letter to Roll's guardians in an effort to pressure them to begin considering community-placement options. His letter stated that Parsons would transfer Roll to their care if they had not begun the community-placement transfer process by September 1.

In July, the guardians toured several facilities, but they still preferred Parsons to the community-based facilities they visited. Because Roll had remained at Parsons for the past 50 years, she had developed a routine there: she wakes up when she wants, eats breakfast, may choose to work in the Parsons library, returns to her cottage to eat lunch and take a nap, spends the afternoon doing leisure activities, and goes to bed when she wants. The guardians believed the community-placement facilities they toured would not afford Roll that same level of comfort and freedom. She would have to be outside her home for at least 20 hours per week at times dictated by a day-services program, and she would spend those hours in a crowded setting. Though community placement would give Roll some freedoms Parsons does not provide—input in meal selection, fewer housemates, and possibly a private bedroom—Roll's guardians did not believe that those benefits outweighed the stability of her long duration at Parsons.

Roll's guardians file suit to enjoin the transfer.

In August 2016, Roll (through her guardians) filed a petition seeking an injunction and temporary restraining order to prevent the Department and Parsons from discharging her, either to a community-based program or to the guardians' care. The petition alleged that the ADA prohibited the State from transferring Roll to a community-based facility without her (and...