Jennings v. Wolf

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

RUSSEL “JOEY” JENNINGS, :

RINALDO SCRUCI, ROBERT B.

CARSON, LAUREN LOTZI, BETH :

LAMBO, MARIA KASHATUS,

DAVID NAULTY, MAUREEN :

JORDA, JANINE WINSOCK,

CYNTHIA MARTIN, TERRY D. :

HETRICK, SHARON MCCABE and

VIOLA “VIANNE” CAYE, :

Plaintiffs : CIVIL ACTION NO. 3:20-0148

v. :

(JUDGE MANNION)

TOM WOLF, TERESA D. MILLER, :

KRISTIN AHRENS, SUE RODGERS,

MARK J. GEORGETTI, :

PENNSYLVANIA DEPARTMENT OF

HUMAN SERVICES, :

PENNSYLVANIA OFFICE OF

DEVELOPMENT PROGRAMS, :

POLK CENTER and WHITE HAVEN

CENTER, :

Defendants :

MEMORANDUM

On January 29, 2020, Russel Jennings, Rinaldo Scruci, Robert Carson,

Lauren Lotzi, Beth Lambo, Maria Kashatus, David Naulty, Maureen Jorda,

Janine Winsock, Cynthia Martin, Terry Hetrick, Sharon McCabe and Viola

Caye, (collectively, “Plaintiffs”), all residents of Intermediate Care Facilities

for Individuals with Intellectual Disabilities (“ICF/IID”) in the state of

Pennsylvania, by and through their guardians or substitute decision makers,

filed a complaint in this District seeking equitable and injunctive relief on

behalf of a prospective class. The complaint named as defendants

Pennsylvania Governor Tom Wolf, the Pennsylvania Department of Human

Services (“DHS”), Secretary of the Pennsylvania DHS Teresa Miller,

Pennsylvania DHS Office of Developmental Programs (“ODP”), Deputy

Secretary of ODP Kristin Ahrens, ICF/IID Polk Center, Polk Center Facility

Director Sue Rodgers, ICF/IID White Havens Center, and White Haven

Facility Director Mark Georgetti, (collectively, “Defendants”).

The complaint contained four separate claims seeking injunctive relief,

including claims alleging violations of the Americans with Disabilities Act, 42

U.S.C. §12132; the Rehabilitation Act, 29 U.S.C. §794; various Medicaid

federal statutes and regulations incorporated into Pennsylvania Law; and the

United States Constitution, 42 U.S.C. §1983. On July 10, 2020, Defendants

filed a motion to dismiss Plaintiffs’ complaint pursuant to Federal Rules of

Civil Procedure 12(b)(6). For the reasons set forth below, the Court will

DENY Defendants’ motion.

I. BACKGROUND

Plaintiffs are individuals suffering from severe intellectual disabilities

and other ailments, and are residents of one of two ICF/IIDs in Pennsylvania,

Polk Center or White Haven Center. These two centers are operated by the

Pennsylvania Department of Human Services in conjunction with the Center

for Medicare and Medicaid Services (“CMS”), and offer various resources

and programs including extensive personal care, health care services,

ambulation assistance, and significant behavioral support. Accordingly,

eligibility for residence in one of these centers allegedly requires “a

developmental disability that is a severe, chronic disability of an individual,

which is attributable to a mental impairment, physical impairment, or

combination of both; is likely to continue indefinitely; results in a combination

of functional limitations in major life activities; reflects the need for a

combination of special interdisciplinary care or treatment of lifelong or

extended duration; and includes, but is not limited to, developmental

disabilities, autism, cerebral palsy, epilepsy, spina bifida, and other

neurological impairments.” See (Doc. 1 at ¶¶ 47-48).

On or about August 14, 2019, defendant DHS, through its Secretary,

defendant Miller, announced that it would be closing both the Polk Center

and the White Haven Center, and projected that the process of closing these

facilities would take roughly three years. According to Plaintiffs, before this

point, all residents of the Polk Center and the White Haven Center were

“evaluated by their treating professionals and determined to be in need of

ICF/IID services, and the best setting for Plaintiffs to receive those services

was at PC or WHC as determined by the professional judgment of these

professionals.” As a result, Plaintiffs claim that the Defendants’ efforts to

relocate the Plaintiffs to other facilities would be improper as the Polk and

White Haven Centers provide the least restrictive and most appropriate

setting for their needs. Therefore, Plaintiffs seek injunctive and equitable

relief to ensure that any potential relocation not result in the Plaintiffs

receiving treatment and services in a setting more restrictive to their rights

than the current location or failing to meet the accepted professional

standards inequal to the care they currently received, and that the Plaintiffs

and their treating professionals maintain a certain level of control over

placement in a new facility while ensuring that staffing levels are maintained

and independent treatment plans are followed.

II. STANDARD

The Defendants’ motion to dismiss is brought pursuant to the Federal

Rule of Civil Procedure Rule 12(b)(6). This rule provides for the dismissal of

a complaint, in whole or in part, if the plaintiff fails to state a claim upon which

relief can be granted. Fed. R. Civ. P. 12(b)(6). The moving party bears the

burden of showing that no claim has been stated, Hedges v. United States,

404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only if,

accepting all of the facts alleged in the complaint as true, the plaintiff has

failed to plead “enough facts to state a claim to relief that is plausible on its

face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating “no

set of facts” language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

The facts alleged must be sufficient to “raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. This requirement “calls for

enough fact[s] to raise a reasonable expectation that discovery will reveal

evidence” of necessary elements of the plaintiff’s cause of action. Id. at 556.

A court “take[s] as true all the factual allegations in the Complaint and

the reasonable inferences that can be drawn from those facts, but …

disregard[s] legal conclusions and threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements.” Ethypharm S.A.

France v. Abbott Labs., 707 F.3d 223, 231 n. 14 (3d Cir. 2013) (internal

citation and quotation marks omitted). Thus “the presumption of truth

attaches only to those allegations for which there is sufficient ‘factual matter’

to render them ‘plausible on [their] face.’” Schuchardt v. President of the

United States, 839 F.3d 336, 347 (3d Cir. 2016) (alterations in original)

(quoting Iqbal, 556 U.S. at 679). “Conclusory assertations of fact and legal

conclusions are not entitled to the same presumption.” Id.

Twombly and Iqbal require [a district court] to take the following

three steps to determine the sufficiency of a complaint: First, the

court must take note of the elements a plaintiff must plead to

state a claim. Second, the court should identify allegations that,

because they are no more than conclusions, are not entitled to

the assumption of truth. Finally, where there are well-pleaded

factual allegations, a court should assume their veracity and then

determine whether they plausibly give rise to an entitlement for

relief.

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).

“Although the plausibility standard ‘does not impose a probability

requirement,’ it does require a pleading to show ‘more than a sheer

probability that a defendant has acted unlawfully.” Connelly v. Lane Constr.

Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal citation omitted) (first

quoting Twombly, 550 U.S. at 556; then quoting Iqbal, 556 U.S. at 678).

In considering a motion to dismiss, courts generally rely on the

complaint, attached exhibits, and matters of public record. Sands v.

McCormick, 502 F.3d 263 (3d Cir. 2007). A court may also consider

“undisputedly authentic document[s] that a defendant attaches as an exhibit

to a motion to dismiss if the plaintiff's claims are based on the [attached]

documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998

F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are

alleged in the complaint and whose authenticity no party questions, but which

are not physically attached to the pleading, may be considered.” Pryor v.

Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002). A court,

however, may not rely on other parts of the record in determining a motion

to dismiss. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,

1261 (3d Cir. 1994).

III. DISCUSSION

Plaintiffs raise four separate grounds upon which they claim they are

entitled to equitable and injunctive relief. These claims include violations of

(1) the Americans with Disabilities Act (“ADA”), (2) the Rehabilitation Act

(“RA”), (3) the Medicaid Act, and (4) Constitutional Due Process. The Court

will separately review these four claims and the grounds upon which

Defendants seek dismissal.

A. Claim Preclusion Under Benjamin v. Dept. of Public Welfare

As a preliminary matter, Defendants contend that the current litigation

is precluded by the settlement agreement in Benjamin v. Department of

Public Welfare, 1:09-cv-01182-JEJ (M.D. Pa.). “The doctrine of claim

preclusion ‘is not a mere matter of technical practice or procedure but a rule

of fundamental and substantial justice.’” Jackson v. Dow Chem. Co., 518 F.

App’x 99, 101 (3d Cir. 2013) (quoting Equal Emp’t Opportunity Comm’n v.

U.S. Steel Corp., 921 F.2d 489, 492 (3d Cir.1990) (internal quotation marks

and citation omitted)).

The defense of claim preclusion may be raised and adjudicated on a

motion to dismiss and the court can take notice of all facts necessary for the

decision. Connelly Found. v. Sch. Dist. of Haverford Twp., 461 F.2d 495, 496

(3d Cir. 1972) (res judicata may be raised in motion to dismiss prior to

answer). A court may also take judicial notice of the record from a previous

court proceeding between the parties. See Oneida Motor Freight, Inc. v.

United Jersey Bank, 848 F.2d 414, 416 n. 3 (3d Cir. 1988). “The party

seeking to take advantage of claim preclusion has the burden of establishing

it.” Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 158 (3d Cir. 2001).

Specifically, where a defense of claim preclusion is based on a settlement

agreement between the parties, “[t]he express terms of a settlement

agreement, not merely the terms of the judgment, determine the bounds of

preclusion after a settlement.” Toscano v. Connecticut Gen. Life Ins. Co.,

288 F. App’x 36, 38 (3d Cir. 2008) (citing Norfolk S. Corp. v. Chevron, U.S.A.,

Inc., 371 F.3d 1285 1291 (11th Cir. 2004) (holding that “to preclude a wider

range of matters than those specified in the Agreement would frustrate the

parties’ expressed intent and bestow upon [the defendant] a windfall of

immunity from litigation”)).

A review of the settlement in Benjamin indicates that the initial class

action litigation was brought on behalf of individuals who “currently or in the

future will reside in one of Pennsylvania’s state ICFs/ID” that “could reside in

the community with appropriate supports and services” and “do not or would

not oppose community placement.” (Doc. 26-1 at 5). Though the Plaintiffs do

represent individuals currently residing in a State ICF/IID that may have

qualified as members of the Benjamin class,1 the settlement itself merely

provided the choice for class members to move to a community setting if they

so desired. See (Id. at 19) (“The Planning List will not include any class

member who has not chosen or on whose behalf a choice was not made for

a community placement.”). Instead, “[i]f any class member voluntarily

wishe[d] to return to a state ICF/ID,” the class member was allowed to do so.

(Id. at 26); see also Benjamin, 1:09-cv-01182-JEJ (Doc. 399-4 at 3) (class

1 Under the Benjamin settlement agreement, “‘Class members’ means

all individuals who have resided or will reside in a state ICF/ID at any time

from the effective date of this Agreement until the termination of this

Agreement under Paragraph 40.” (Doc. 26-1 at 8). The settlement

agreement would thus extend from May 30, 2014 to either June 30, 2018 or

thirty days after counsel for Defendants notified counsel for Plaintiffs that the

last class member had moved to the community, whichever is later, unless

the parties agreed to an extension. (Id. at 36-37).

action settlement notice establishing that “no class member will be removed

from a State Center to a community placement, and no class member will be

required to remain in a State Center rather than being moved to a community

placement, unless that class member or a person authorized to make

decisions on behalf of the class member chooses that location for the class

member.”).

In light of the terms of the agreement, if the Benjamin settlement was

to hold sway on the present action, as Defendants argue, it would thus seem

that the Plaintiffs would maintain the ability to choose whether they would

prefer either a community-based setting or an institutional setting. As the

settlement agreement, however, seemingly terminated in June 2018 and the

settlement does not reflect the same factual allegations or “waive any

potential claims [of] a class member … to challenge or object to a decision

to close or attempt to close that state ICF/ID,” (Doc. 26-1 at 18), the current

litigation appears free from any preclusion.

B. Americans With Disabilities Act Violation

Title II of the Americans with Disabilities Act provides that “no qualified

individual with a disability shall, by reason of such disability, be excluded

from participation in or be denied the benefits of the services, programs, or

activities of a public entity, or be subjected to discrimination by any such

entity. 42 U.S.C. §12132. Under the ADA, the term “qualified individual with

a disability” means “an individual with a disability who, with or without

reasonable modifications to rules, policies, or practices, the removal of

architectural, communication, or transportation barriers, or the provision of

auxiliary aids and services, meets the essential eligibility requirements for

the receipt of services or the participation in programs or activities provided

by a public entity.” 42 U.S.C. § 12131(2).

To establish a claim under Title II of the ADA, “a person ‘must

demonstrate: (1) he is a qualified individual; (2) with a disability; (3) [who]

was excluded from participation in or denied the benefits of the services,

programs, or activities of a public entity, or was subjected to discrimination

by any such entity; (4) by reason of his disability.’” Haberle v. Troxell, 885

F.3d 170, 178-79 (3d Cir. 2018) (quoting Bowers v. Nat’l Collegiate Athletic

Ass’n, 475 F.3d 524, 553 n. 32 (3d Cir. 2007)).

In addition, the parties agree that Plaintiffs’ ADA claim is also governed

by Olmstead v. L.C., 527 U.S. 581 (1999). See (Doc. 29 at 12). Olmstead

created a three-prong test that the Supreme Court used to determine when

the ADA “require[s] placement of persons with mental disabilities in

community settings rather than in institutions.” Olmstead, 527 U.S. at 587.

Under this test, the Supreme Court established that the state was required

to provide community-based services for persons with mental disabilities

when “(1) the State’s treatment professionals determine that such placement

is appropriate, (2) the affected persons do not oppose such treatment, and

(3) the placement can be reasonably accommodated, taking into account the

resources available to the state and the needs of others.” Id. at 606. The

Court noted that the integration mandate “is not boundless” and is limited if

integration would be unduly burdensome or require a fundamental alteration

of policy. Id. at 603.

Consistent with these provisions, a state “generally may rely on the

reasonable assessments of its own professionals in determining whether an

individual ‘meets the essential eligibility requirements’ for habilitation in a

community-based program.” Id. at 602. “Absent such qualification, it would

be inappropriate to remove a patient from the more restrictive setting.” Id.

(citing 28 CFR §35.130(d) (1998) (public entities shall administer services

and programs in “the most integrated setting appropriate to the needs of

qualified individuals with disabilities” (emphasis added))).

It is unquestioned that Plaintiffs are qualified individuals who suffer

from different forms of mental disabilities. See 42 U.S.C.A. §12102 (defining

the term “disability” under the ADA as, amongst other things, “a physical or

mental impairment that substantially limits one or more major life activities of

such individual”). It is also unquestioned by the parties that the State intends

to close both the Polk and White Haven Centers, and that Plaintiffs will be

“denied the benefits of the services, programs, or activities” provided by

these facilities. As the Defendants thus do not assert that the Plaintiff failed

to meet the basic requirements for an ADA claim, the Court will deny

Defendants’ motion in this regard.

Instead, Defendants base their motion to dismiss on the Plaintiffs’

apparent inability to satisfy the Olmstead factors. Defendants claim that

Plaintiffs are making “[a]n obverse Olmstead argument” through an assertion

that if a community-based setting is required when the three Olmstead

factors are met, then an institutional setting is required if any of the three

Olmstead factors are not met. The Court, however, cannot ascribe such an

interpretation to the Plaintiffs’ claim. Instead, the Plaintiffs seemingly argue

that they are entitled to the medical recommendation of a treating

professional, per the first factor of the Olmstead test, to determine the

placement best appropriate for Plaintiffs’ needs. If such a medical

recommendations were to reflect that Plaintiffs would be best suited for an

institutional rather than a community-based setting, as Plaintiffs claim, and

the other two Olmstead factors were to be met, then attempts by the

Defendants to remove Plaintiffs from an institutional setting may constitute a

violation of the ADA.2

As Plaintiffs allege that a reasonable accommodation that would best

reflect the most “integrated setting appropriate” for the Plaintiffs would be an

2 In the Court’s view, Olmstead would appear to require that a state

provide certain placement, be that a community-based or institutional setting,

when, in addition to the other two factors, the state’s treatment professionals

determine that such a placement is appropriate (i.e. constituting “the most

integrated setting appropriate to the needs of qualified individuals with

disabilities”). In contrast, if one of the Olmstead factors was not met, it may

merely be presumed that the state was no longer per se required to provide

the requested placement, though establishing such a presumption would

likely result in ample legal commentary and is not necessary to the analysis

here.

institutionalized setting rather than a community-based setting, and that

Defendants intend to deprive them of these accommodations, Plaintiffs have

met their burden.3 Accordingly, Defendants’ motion to dismiss Plaintiffs’

claim under the ADA will be denied.

C. Rehabilitation Act Violations

It is well settled that the same standard governs both Rehabilitation Act

and Americans with Disabilities Act violations. McDonald v. Pennsylvania,

62 F.3d 92, 95 (3d Cir. 1995). Section 504 of the RA provides that “[n]o

otherwise qualified individual with a disability in the United States ... shall,

solely by reason of his or her disability, be excluded from the participation in,

be denied the benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance.” 29 U.S.C. §794.

The Rehabilitation Act defines an individual with a disability as one who “has

a physical or mental impairment which substantially limits one or more of

such person’s major life activities.” 29 U.S.C. § 706(8)(B).

3 Defendants also assert that the Plaintiffs have not properly pleaded

facts sufficient to suggest that integration would not result in a “fundamental

alteration.” Although Plaintiffs will bear the initial burden of demonstrating the

availability of a reasonable accommodation, if Plaintiffs are successful in that

task then the burden of proof would shift to the Defendants to establish that

the relief demanded would be unduly burdensome or require a fundamental

alteration of policy. See Frederick L. v. Dep’t of Public Welfare, 364 F.3d 487,

492 n. 4 (3d Cir. 2004). An analysis regarding whether Defendants have

sufficiently met their burden, however, would not be properly decided at the

motion-to-dismiss stage.

To prevail on a claim for violation of the RA, like the ADA, a plaintiff

must demonstrate that he or she: (1) has a disability; (2) was otherwise

qualified to participate in a federally funded program; and (3) was denied the

benefits of the program or was otherwise subject to discrimination because

of his disability. 29 U.S.C. § 794; Chambers ex rel. Chambers v. Sch. Dist.

of Philadelphia Bd. of Educ., 587 F.3d 176 (3d Cir. 2009). The RA, however,

also requires the additional showing that the program receives federal

financial assistance. 29 U.S.C. § 794(a); Wagner v. Fair Acres Geriatric Ctr.,

49 F.3d 1002, 1009 (3d Cir. 1995). The RA, however, like the ADA, favors

“[t]he most integrated setting appropriate to the needs of qualified individuals

with disabilities.” See Frederick L., 364 F.3d at 491 (quoting 28 C.F.R.

§35.130(d)).

As set forth above in regards to their claim under the ADA, Plaintiffs

sufficiently assert that the proposed class includes qualified individuals

suffering from disabilities who face the denial of benefits of the services,

programs, or activities of a public entity. In addition, it is clear that

Pennsylvania’s Medicaid program received federal financial assistance. As

a result, Defendants’ motion to dismiss Plaintiffs’ RA claim will be denied.

D. Medicaid Act and Regulatory Violations

The Medicaid Act established a combined federal-state funding

program for the purpose of providing medical assistance to eligible low-

income persons. Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 182 (3d

Cir. 2004). “[O]nce the state voluntarily accepts the conditions imposed by

Congress, the Supremacy Clause obliges it to comply with federal

requirements.” Zahner v. Sec’y Pa. Dep’t of Human Servs., 802 F.3d 497,

512 (3d Cir. 2015) (citing Lankford v. Sherman, 451 F.3d 496, 510 (8th Cir.

2006)).

Plaintiffs allege that “[t]he Commonwealth of Pennsylvania has

voluntarily assumed certain obligations under federal law in return for federal

funding under the Medical Assistance Program authorized by 42 U.S.C.

§1396, et seq.” (Doc. 1 at ¶ 139). Plaintiffs argue that these obligations

include: “(a) choice of an ICF/IID institutional placement, subject to a hearing,

under 42 U.S.C. §1396n and 42 CFR §441.302(d); (b) provision of ICF/IID

services under 42 U.S.C. §§1396a(a)(10) and 1396d(a)(l5); (c) competent

evaluation for placement in an institutional ICF/IID facility under 42 CFR

§483.440(b)(3); [and] (d) a continuous active treatment program as defined

in 42 CFR §483.440(a)(1).” As Plaintiffs allege that Defendants violated

these obligations by deciding to close the Polk and White Haven Centers

and Defendants do not claim Plaintiffs failed to meet their burden, the

Defendants’ motion to dismiss Plaintiffs’ Medicaid Act and regulatory

violations will be denied.

E. Constitutional Due Process Violations

Plaintiffs raise a claim under 42 U.S.C. §1983 alleging a deprivation of

their civil rights. Section 1983 authorizes redress for violations of

constitutional rights and provides in relevant part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory ...

subjects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for

redress....

42 U.S.C. §1983. Thus, to establish a violation of Section 1983, a plaintiff

must demonstrate that the challenged conduct was committed by a person

acting under color of state law and deprived the plaintiff of rights, privileges,

or immunities secured by the Constitution or laws of the United States. Lake

v. Arnold, 112 F.3d 682, 689 (3d Cir. 1997). By its terms, Section 1983 does

not create a substantive right, but merely provides a method for vindicating

federal rights conferred by the United States Constitution and the federal

statutes that it describes. Baker v. McCollan, 443 U.S. 137 (1979); see also

Hart v. Tannery, 2011 WL 940311 (E.D. Pa. Mar. 14, 2011).

Regarding the constitutional-violation prong of Section 1983, Plaintiffs

claim a violation of the Due Process Clause of the Fourteenth Amendment,

which prohibits states from depriving “any person of life, liberty, or property,

without due process of law[.]” U.S. CONST. amend. XIV, §1. It is

unquestioned that the Defendants were “persons acting under the color of

state law,” as required for any Section 1983 claim. In addition, Plaintiffs claim

that Defendants should know or have reason to know that placing the

Plaintiffs in other settings, including non-ICF/IID settings, would substantially

increase Plaintiffs’ likelihood of injury from abuse, neglect, error, lack of

appropriate services, or other causes. Defendants’ alleged failure to provide

such adequate safeguards to prevent such harm would thus arguably be a

violation of Plaintiffs’ constitutional right not to be deprived of life or liberty

without due process of law.

Defendants, in response, argue that any harm to the Plaintiffs resulting

from discharge from the Polk or West Haven Centers would be prospective

as “[t]heir complaint is based on speculative harm that might occur.” Such a

determination, however, would be improper at this juncture and would best

be reserved for a motion for summary judgment following further factual

development. Therefore, Defendants’ motion to dismiss Plaintiffs’ due

process claim will be denied.

IV. CONCLUSION

For the reasons discussed above, the Court will DENY the Defendants’

motion to dismiss. A separate order will follow.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Date: July 19, 2021

20-0148-01.wpd