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PA. PROTECTION v. DEPART. OF PUBLIC WELFARE

January 15, 2003

PENNSYLVANIA PROTECTION AND ADVOCACY, INC., PLAINTIFF
v.
DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA; MARK S. SCHWEIKER, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA; FEATHER O. HOUSTOUN, IN HER OFFICIAL CAPACITY AS SECRETARY OF PUBLIC WELFARE FOR THE COMMONWEALTH OF PENNSYLVANIA; GERALD RADKE, IN HIS OFFICIAL CAPACITY AS DEPUTY SECRETARY FOR MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES; AND S. REEVES POWER, PH.D., IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF SOUTH MOUNTAIN RESTORATION CENTER, DEFENDANTS



The opinion of the court was delivered by: Caldwell, District Judge

MEMORANDUM

I. Introduction.

Plaintiff, Pennsylvania Protection and Advocacy, Inc., (PP&A), the entity charged with protecting the rights of institutionalized Pennsylvanians, filed this lawsuit on behalf of residents of South Mountain Restoration Center (SMRC), a state-run nursing facility. PP&A alleges violations of Title XIX of the Social Security Act (the "Medicaid Act"), 42 U.S.C. § 1396a to 1396v; the Rehabilitation Act (RA), 29 U.S.C. § 794; and The II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131-12134. The Pennsylvania Department of Public Welfare (DPW) is a defendant, along with certain individuals sued in their official capacities. The individual defendants are: Mark S. Schweiker, the Governor of the Commonwealth of Pennsylvania; Feather O. Houstoun, the Secretary of DPW; Gerald Radke, the Deputy Secretary for Mental Health and Substance Abuse Services; and S. Reeves Power, the Superintendent at SMRC. The complaint seeks only declaratory and injunctive relief.

Plaintiff bases its ADA and RA claims on Defendants' alleged failure to comply with the integration mandates of those acts by not providing community-based living programs for SMRC residents and instead limiting them to the institutional setting of SMRC. As defenses to these claims in part, Defendants contend that the relief requested would create a fundamental alteration in the commonwealth's services for those with mental-health needs by shifting spending to SMRC residents and that SMRC is the appropriate setting for those residing there, given their physical and mental needs.

Plaintiff bases its Medicaid Act claims on alleged violations of the act's requirements: (1) that Defendants provide activities serving the residents' physical and mental well-being, (2) that Defendants review annually prescribed antipsychotic medications, (3) that Defendants provide the services the residents need to attain their highest mental and psychosocial well-being, (4) that Defendants provide specialized rehabilitative services for residents, and (5) that Defendants provide specialized services for residents with mental retardation.

We are considering the parties' cross-motions for summary judgment. We will evaluate the motions under the well established standard. See Showalter v. University of Pittsburgh Medical Center, 190 F.3d 231, 234 (3d Cir. 1999).

II. Background.

In connection with their motions, the parties have submitted detailed and well-organized statements of undisputed material facts (designated below either as "PSUF" or "DSUF"), and the following background will sometimes quote language without attribution from the uncontested statements of either side.

A. Background Primarily Relating to the ADA and RA Claims Based on the Integration Mandate.

The Commonwealth of Pennsylvania has the following policies. It provides services for individuals with severe and persistent mental illness in the most integrated setting appropriate to their needs, meaning that individuals are (or should be) serviced in a community setting rather than in an institutional one. (PSUF 22; DSUF 6). It provides services for persons with mental retardation in the community, if appropriate. (Plaintiff's exhibit 28 at p. 5; PSUF 24; DSUF 14). It provides community alternatives to nursing-facility care for Pennsylvanians who are elderly and/or medically fragile. (PSUF 25).

Many persons with serious mental disabilities who are also elderly and/or have medical needs can live in their communities with appropriate residential and nonresidential services and support. (PSUF 30). Some individuals who meet the eligibility criteria for nursing-facility services may, with appropriate residential and nonresidential services and support, be able to live in other, more integrated settings. (PSUF 36).

Plaintiff, PP&A, is a nonprofit Pennsylvania corporation. Pennsylvania has designated PP&A as the advocate and protector of the rights of individuals with disabilities, including those who are institutionalized.

DPW is the state agency responsible for providing mental-health and mental-retardation services to Pennsylvania residents who have mental disabilities. (DSUF 1). It also administers Pennsylvania's Medical Assistance program. (Id.) DPW is comprised of various offices, including the Office of Mental Health and Substance Abuse Services (OMHSAS), the Office of Mental Retardation (OMR) and the Office of Medical Assistance Programs (OMAP). (DSUF 3; PSUF 7).

In addition to SMRC, OMHSAS operates nine psychiatric hospitals and one juvenile forensic facility. OMHSAS also funds community-based services for Pennsylvanians with severe and persistent mental illness. OMHSAS has authority to shift funding, as needed, from institutional to community-based programs. (PSUF 7(a)). In the Commonwealth's fiscal year 1998-99, some 200,000 persons, including impaired and chronically ill older persons, received community-based mental-health services designed to maintain them in the community and delay or avoid institutional care. (DSUF 17 and Plaintiff's response).

OMR operates seven state centers for persons with mental retardation. OMR also funds community-based services for Pennsylvanians with mental retardation. (PSUF 7(b)). OMAP operates the Medical Assistance Program, which funds physical and behavioral health services in nursing facilities and in the community. (PSUF 7(c)).

SMRC is a "psychiatric transitional facility" located in South Mountain, Franklin County, Pennsylvania. (PSUF 11; DSUF 5). It is the only nursing-type facility operated by the Commonwealth of Pennsylvania. (PSUF 12; DSUF 5).

As of August 31, 2001, SMRC had 175 residents. (PSUF 13). This is a downward trend from 1,091 in 1969 and about 800 in 1985. (DSUF 22). The median age of a resident is 75. (DSUF 23). Over 90% of them were admitted from state psychiatric facilities and the remainder from Pennhurst State School and Hospital, local or state prisons, community hospital psychiatric units or nursing facilities. (PSUF 15). Many SMRC residents had been institutionalized for decades in state-operated facilities, including many years at SMRC. Approximately forty SMRC residents have been institutionalized for more than fifty years. (PSUF 16).

The residents suffer from serious mental and physical ills. Virtually all have multiple, significant physical impairments that require regular monitoring by physicians and nursing staff. (DSUF 28). These ailments include cardiopulmonary disease, epilepsy, and osteoporosis that significantly limit one or more of the residents' major life activities. (PSUF 20). Over 90% of them have an active diagnosis of schizophrenia, schizoaffective disorder, bipolar disorder, personality disorder, or a history of such diagnoses. (PSUF 18; DSUF 25). Over 60% of them have dementia. (DSUF 27). There were fourteen with mental retardation. (DSUF 26).

Each resident is supervised by a core interdisciplinary treatment team, consisting of the attending physician (the team leader), the nurse supervisor (the team coordinator), the charge nurse and a social worker, which meets to discuss the needs of a resident and develop a plan of care ("POC") for the resident designed to address those needs. The treatment team also determines if the resident is appropriate for discharge. (DSUF 31). Using a standard of whether a resident "could handle and benefit from a transfer", in March and April 2002, the treating physicians and the treatment teams decided that only thirteen residents could possibly benefit from a transfer. (DSUF 89). This position was buttressed by defense experts Marie Boltz and Susan Renz but was contradicted by Plaintiff's experts.

B. Background Primarily Relating to the Title XIX Activities Claim.

SMRC has a Therapeutic Activities Service Department which has ten full-time staff members in addition to the Department's director and an additional supervisor. (DSUF 179). The ratio of activities staff to residents is approximately one to sixteen which is far above the average ratio of 1:52 or 1:66 for the average nursing facility with 120 to 150 beds. (DSUF 181).

The Joint Commission on the Accreditation of Hospitals (JCAHO) inspects and certifies hospitals and nursing facilities. (DSUF 38). The certification is voluntary on the part of the health-care facility. (DSUF 40). In March 2000, JCAHO inspected SMRC and gave it a score of 97 out of 100, finding a deficiency only in activities for residents. (DSUF 41, 43).

After the JCAHO report, SMRC personnel developed a plan of correction which included identifying times of inactivity in each living area, creating an activity schedule for every floor, and hiring additional staff. (DSUF 44). Nursing staff were assigned to all lounges to interact with nonambulatory residents or engage them in an activity. (DSUF 44).

SMRC provides a program of activities seven days per week from 8:00 a.m. to 9:00 p.m. (DSUF 186). Defense expert, Karla Dreisbach, a nursing facilities activities expert, noted the number of activities, (Defendants' exhibit A-6 at pp. 11-15), which includes an ongoing music therapy program and a "multisensory environment program." (DSUF 190). The staff tracks resident participation in activities by computer. (DSUF 187). Residents can also go on regular trips outside SMRC, about twenty-four per month. Additionally, there are over 200 volunteers and 142 groups who spend time with the residents. (DSUF 197).

Periodic reports within SMRC from July 6, 2000, through March 13, 2001, indicate that on particular days staff had not observed residents participating in activities. (Doc. 87, Plaintiff's opposition brief at pp. 15). "Facility Quality Indicator Profiles" also show SMRC with a low percentile rank averaging 75% compared to other commonwealth nursing facilities. Additionally, SMRC "Performance Improvement/Risk Management Committee Meeting Minutes," ranging from June 28, 2001, through January 31, 2002, indicate problems with resident participation. (Plaintiff's reply exhibit 7). Plaintiff experts, Neal G. Ranen, M.D., and G. David Smith, have both observed a lack of participation by residents while they were inspecting SMRC.

C. Background Primarily Relating to Mental-Health and Mental-Retardation Services.

Over 90% of SMRC residents have an active diagnosis of serious and persistent mental illness or a history of such a diagnosis. (PSUF 18). And 96% of the residents are taking one or more psychoactive medications. (Plaintiff's reply exhibit 4).

The behavioral-health consultants examine residents who have been referred for consultations, usually the same week. However, if there are too many referrals, the reviews are delayed. Thereafter, the consultants see the residents quarterly. (Plaintiff's motion, Exhibit 46, Christie deposition at p. 50; exhibit 49, Newcomer deposition at pp. 12, 24-25). The consultants review about eight residents a week and saw about eighty residents in their first year of consulting. (Plaintiff's motion, Exhibit 49, Newcomer deposition at pp. 16-17, 23).

SMRC staff did not always follow the consultants' recommendations. In about September 2000, it was noted that the consultants were "not seeing evidence that their recommendations [were] being consistently followed." (Plaintiff's reply brief, exhibit 6, minutes of executive staff meeting). On June 28, 2001, Dr. S. Reeves Powers, SMRC superintendent, noted his concern that behavioral-health consults were "not always reviewed by all of the team members who should see them." (Plaintiff's reply brief, exhibit 7, "Performance Improvement/Risk Management Committee Meeting Minutes," dated July 26, 2001). The solution was to note the recommendations in the resident's chart and have the treatment team review them for possible incorporation in the plan of care. (Plaintiff's motion, exhibit 56, Christie deposition at pp. 55-54)

Rebecca Newcomer, one of the behavioral consultants, stated that there was a short time lag in the process before their recommendations were placed in the plans of care, but that their recommendations were generally being followed. (Plaintiff's motion, exhibit 49, Newcomer deposition at p. 37-38.*fn2

D. Background Primarily Related to the Administration off Psychotropic Medication

SMRC residents are seen by the behavioral consultants who make recommendations concerning behavioral issues that might impact on use of drugs. Psychotropic medications are prescribed using the lowest effective doses of the safest and best-tolerated agents. They are tapered downward when appropriate. (DSUF 217). As Dr. Hegarty elaborates in his report, by September 2001 57% of the 76 residents on the older antipsychotic drugs had been switched from them to the newer, safer, so-called "atypical" agents, and 75% of residents on antipsychotic drugs are now receiving the newer drugs. (Defendants' exhibit A-9, Hegarty report at p. 5). Further, administration of some of these medications in a dose greater than the recommended maximum dose simply reflects the need of the individual patient, as determined by his treating physicians, for a greater dose, and such use of the medication is supported by the medical literature. (DSUF 221, citing Defendants' exhibit ...


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