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Alabama Disabilities Advocacy Program v. Safetynet Youthcare, Inc.

United States District Court, S.D. Alabama, Northern Division

December 12, 2014

SAFETYNET YOUTHCARE, INC., Defendant/Third-Party Plaintiff,

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For Alabama Disabilities Advocacy Program, Plaintiff: David John Slawkowski, Nancy Ellen Anderson, LEAD ATTORNEYS, Andrea Jane Mixson, William Van Der Pol, Jr., Alabama Disabilities Advocacy Program, Tuscaloosa, AL.

For SafetyNet YouthCare, Inc., Defendant: Martha Leach Thompson, LEAD ATTORNEY, Stewart D. McCloud, Huie, Fernambucq & Stewart, LLP, Birmingham, AL.

For UNITED STATES OF AMERICA, Non-Party: Holly Lee Wiseman, U.S. Attorneys Office, Mobile, AL.

For SafetyNet YouthCare, Inc., Defendant, ThirdParty Plaintiff: Martha Leach Thompson, LEAD ATTORNEY, Stewart D. McCloud, Huie, Fernambucq & Stewart, LLP, Birmingham, AL.

For Alabama Department of Human Resources (DHR), ThirdParty Defendant: Felicia Marshea Brooks, State of Alabama, Department of Human Resources, Legal Office, Montgomery, AL.

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This matter is before the Court on 1) the motion for summary judgment (Doc.63) filed by Plaintiff Alabama Disabilities Advocacy Program (" ADAP" ) on its claim for declaratory and injunctive relief against Defendant SafetyNet Youthcare, Inc. (" SafetyNet" ); 2) the motion for summary judgment (Doc. 62) filed by Defendant/Third-Party Plaintiff SafetyNet on ADAP's claim against it; and 3) the motion for summary judgment (Doc. 64) filed by Third-Party Defendant Alabama Department of Human Resources (" DHR" ) on SafetyNet's claims against it for indemnity and contribution.

SafetyNet operates a residential facility, licensed by DHR, which provides services and treatment for males, from the age 10 years to the age of 18 years, who have certain behavioral and mental health needs. It provides both a Moderate Residential Service (" moderate program" ) and an Intensive Residential Service (" intensive program" ). ADAP is Alabama's designated, federally funded program authorized by Congress to protect and advocate for the civil rights of persons with disabilities in Alabama.

The issues involved in the motions require the Court to determine whether ADAP may legally access SafetyNet's moderate program over the objections of DHR. ADAP, seeking injunctive and declaratory relief, alleges SafetyNet failed or refused to provide ADAP access to monitor all programs at its facility, in violation of the Protection and Advocacy for Mentally Ill Individuals Act (" PAMII" ), 42 U.S.C. § § 10801 -- 10851 (2012); the Protection and Advocacy for Individuals with Developmental Disabilities statutes (" PADD" ), 42 U.S.C. § § 15041 -- 15045 (2012); and the Protection and Advocacy of Individual Rights statute (" PAIR" ), 29 U.S.C. § 794e (2012). (Doc. 1, pp. 1 - 2, 10). SafetyNet answered ADAP's complaint (Doc. 7) and filed a third-party complaint against DHR (Doc. 8), requesting indemnification and contribution from the state agency. SafetyNet alleges DHR told it not to allow ADAP access to the moderate program. (Doc. 8, p. 3). ADAP, SafetyNet, and DHR subsequently filed motions for summary judgment. (Docs. 62, 63, 64, 70). All three parties responded, opposing each other's motions. (Docs. 71, 72, 73). SafetyNet and DHR then filed their replies. (Docs. 75, 76, 77). The Department of Justice filed a Statement of Interest supporting ADAP's position. (Doc. 74). After careful consideration, the Court finds that ADAP's motion for summary judgment is due to be granted for the reasons set forth herein, and SafetyNet's motion

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for summary judgment and request for indemnification and contribution are due to be denied. DHR's motion for summary judgment is also due to be denied.


The dispute began in October 2012, when ADAP sought access to a state-licensed facility, SafetyNet, which provides residential care and treatment to male youths with behavioral health needs. (Doc. 62, Exh. 1, p. 2; Exh. 3, p. 1 - 5; Doc. 63, Exh. 2, p. 8). The parties agree ADAP is allowed access to the intensive program at the facility. (Doc. 65, p. 4). The dispute lies in whether ADAP may access the moderate program.

A. The Moderate Program

The intensive and moderate programs at the SafetyNet facility provide a residential setting with overnight care for males ages 10- to 18-years-old. (Doc. 62, Exh. 1, p. 1). Residents in the intensive and moderate programs are housed separately at the facility. (Doc. 62, Exh. 1, p. 2). " Intensive residential services are provided in a more restrictive setting," (Doc. 65, p. 12), whereas the moderate program is less restrictive. (Doc. 65, pp. 18 - 19). DHR generally " pursues the least restrictive setting ... possible [for the child]." (Doc. 65, p. 12).

According to the DHR Moderate Residential Services for Children Request for Proposals (" RFP" ), the moderate program is specifically intended to provide:

[R]oom, board and an array of services for a child with moderate and/or serious emotional and/or behavioral management problems that interfere with the child's ability to function in the family, school and/or community setting in other than a residential environment. Moderate placement services are limited to children whose needs cannot be met in their own home, traditional foster home, basic residential care, or children who have reached their treatment goals in a more restrictive setting and are ready to be " stepped down." (Doc. 66, Exh. 15, pp. 17, 36).

Additionally, the moderate program serves only youth with a " Diagnostic & Statistical Manual, Fifth Edition (DSM-V) diagnosed mental illness from a psychological evaluation conducted within the past 24 months." (Doc. 66, Exh. 15, pp. 17, 36).[1] Individuals with a diagnosis of mental retardation are excluded from moderate programs, unless DHR makes an exception. (Doc. 65, p. 27; Doc. 66, Exh. 10, p. 8). Moderate programs also exclude individuals who pose a substantial risk to the safety of others, individuals who need frequent physical management because of aggressive behavior or require intensive behavioral modification strategies, and individuals identified as sex offenders. (Doc. 65, p. 27).

In general, " [m]oderate residential facilities are rehabilitative and group home in focus where individual basic living skills and group and individual counseling are emphasized." (Doc. 65, p. 25). To help care for moderate program residents, SafetyNet provides daily instruction on basic living skills. (Doc. 65, pp. 13, 18). SafetyNet also provides its moderate program residents with individual and group counseling, crisis intervention, psychiatric services, psychological testing, medication monitoring and administering, mental health consultations, constant adult supervision, and special education. (Doc. 63, Exh. 2, p. 8; Doc. 65, pp. 13, 18).

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Between January 1, 2012, and August 31, 2014, the moderate program at SafetyNet housed forty-two children with a variety of diagnoses, which included: Bi-Polar Disorder, Major Depressive Disorder, Mood Disorder, Complex Post Traumatic Stress Disorder with mixed Disturbance of Emotions (anxiety) and Conduct, Generalized Anxiety Disorder, Oppositional Defiant Disorder, Persistent Depressive Disorder, Asperger's Disorder, Disruptive Behavior Disorder, Pervasive Developmental Disorder, Disorder of Written Expression, Dysthymic Disorder, Reactive Attachment Disorder, Anxiety Disorder, Intermittent Explosive Disorder, Learning Disorder NOS, Attention Deficit Hyperactivity Disorder (ADHD), Depressive Disorder, Conduct Disorder, Adjustment Disorder with mixed disturbance of emotion and Conduct. (Doc. 70, pp. 2 - 3; Doc. 70, Exh. 1, pp. 4 - 7). Approximately 72% of the residents took medication to treat a psychiatric condition, mental disorder, emotional disorder, or a behavioral disorder during this period. (Doc. 63, Exh. 2, p. 10). Pursuant to the DSM-V, many of the listed disorders are not " static" but are diagnosed on a continuum from " moderate" to " severe." (Doc. 65, p. 28; Doc. 72, p. 6). Thus depending on the individual needs of residents in the moderate program, it is possible that they can be " stepped up" to an acute setting or " stepped down" to a less restrictive setting following an evaluation. (Doc. 65, pp. 20 - 21).

B. Refusing ADAP Access to the Moderate Program

From October 2012 to October 2013, ADAP wrote to SafetyNet, requesting, but never gaining, direct physical access to the moderate program. (Doc. 63, Exh. 2, p. 12; Doc. 72, p. 2). ADAP also tried to monitor the moderate program during this period. (Doc. 63, Exh. 2, p. 12). SafetyNet, adhering to " explicit instructions" from DHR, continuously denied ADAP access to the moderate program. (Doc. 8, p. 2; Doc. 62, Exh. 1, pp. 2 - 3).

On October 7, 2013, ADAP sent a demand letter to SafetyNet (Doc. 62, Exh. 5, p. 1), threatening suit if SafetyNet again refused them access. SafetyNet called DHR to " confirm that it was still [DHR's] position that ADAP did not have authority to access residents in the Moderate Program." (Doc. 62, Exh. 1, p. 3). On October 10, 2013, Sharon Ficquette, DHR General Counsel, responded to ADAP in writing. (Doc. 62, Exh. 6, p. 1). Ficquette's letter said " [DHR] and SafetyNet agree to access by ADAP to SafetyNet's moderate program based upon Eleventh Circuit standard for intensive programs as set out in the case of Alabama Disabilities Advocacy Program v. J.S. Tarwater Developmental Ctr., 97 F.3d 492 (11th Cir. 1996)." (Doc. 62, Exh. 6, p. 1; Doc. 65, p. 5). Based on this case, the letter further stated, " access to the SafetyNet Moderate Program is conditioned upon" " an incident or complaint made to ADAP" about the program; or " probable cause to believe an incident has occurred" at the program. (Doc. 62, Exh. 6, p. 1). DHR also asserted, " Moderate facilities are not Intensive treatment programs and are not considered a part of the Psychiatric Services for Individuals under the Age of 21." (Doc. 62, Exh. 6, pp. 2 - 3; Doc. 65, p. 7). Therefore, DHR did not believe ADAP had the right to access or monitor the moderate program. (Doc. 62, Exh. 6, p. 2).

DHR argues " [t]his case involves a fundamental difference in the concept and purpose of moderate residential services between ADAP and [DHR]. [DHR] maintains that the moderate services program is not accessible to ADAP." (Doc. 65, p. 4). SafetyNet argues it is caught in a Catch-22:

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it can either comply with ADAP and violate the orders of DHR, its licensing authority, or follow the advice of DHR and violate federal law. (Doc. 62, Exh. 1, p. 7). SafetyNet asserts it " does not, nor has it ever, objected to granting ADAP access to residents in SafetyNet's Moderate Program. SafetyNet has and continues to comply with the explicit instructions of its licensing agency, [DHR]." (Doc. 62, Exh. 1, p. 5). ADAP states SafetyNet violated its federal right to access the facility, thereby preventing it from " conducting statutorily-authorized monitoring ...

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