Alabama Disabilities Advocacy Program v. SafetyNet YouthCare, Inc.

Filing 78

ORDER, DENYING 62 Motion for Summary Judgment filed by SafetyNet Youthcare, Inc.; GRANTING 63 Motion for Summary Judgment filed by Alabama Disabilities Advocacy Program; and DENYING 64 Motion for Summary Judgment filed by Alabama Departmen t of Human Resources. ADAP and SafetyNet are required to meet and to develop a protocol consistent with this order for presentation to the Court no later than January 30, 2015. Declaratory judgment is entered against SafetyNet, and SafetyNet is perm anently enjoined from denying ADAP reasonable access to its intensive and moderate programs at the Minter, Alabama facility. A separate judgment will be entered. The Court retains jurisdiction to enforce the injunction. Signed by Judge Callie V. S. Granade on 12/12/2014. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ALABAMA DISABILITIES
ADVOCACY PROGRAM,
Plaintiff,
vs.
SAFETYNET YOUTHCARE, INC.,
Defendant/Third-Party
Plaintiff,
vs.
ALABAMA DEPARTMENT OF
HUMAN RESOURCES,
Third-Party Defendant.

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Civil Action No. 13-0519-CG-B

ORDER
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 ThirdParty 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

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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 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.

I.

FACTS
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].”

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(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).

The 2009 RFP cited the Fourth Edition (DSM-IV) of the manual. (Doc. 66,
Exh. 15, p. 17)
1

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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).
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

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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

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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 Catch22: 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.

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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 activities designed to protect
the civil rights and safety of individuals with disabilities.” (Doc. 63, Exh. 2, p.
1 – 2).
II.

STANDARD OF REVIEW
The court may grant summary judgment “if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(a). The substantive law
applicable to the case determines what is material. Lofton v. Sec’y of Dep’t of
Children & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004), cert. den., 534
U.S. 1081 (2005). If the nonmoving party fails to make “a sufficient showing
on an essential element of her case with respect to which she has the burden
of proof,” the moving party is entitled to summary judgment. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
In evaluating the movant’s arguments, the court must view all
evidence and resolve all doubts in the light most favorable to the nonmovant.
Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). “If
reasonable minds might differ on the inferences arising from undisputed
facts, then [the court] should deny summary judgment.” Hinesville Bank v.
Pony Express Courier Corp., 868 F.2d 1532, 1535 (11th Cir. 1989). The basic

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issue before the court then is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251–52 (1986). The mere existence of any factual dispute
will not automatically necessitate denial of a motion for summary judgment;
rather, only factual disputes that are material preclude entry of summary
judgment. Lofton, 358 F.3d at 809.
III.

THE STATUTES AND REGULATIONS AT ISSUE
PADD, PAMII, and PAIR help protect and advance the interests of

those with mental illness or developmental disabilities. Collectively, these
laws grant a state’s protection and advocacy system (“P&A”) the powers to
investigate allegations of abuse and neglect, respond to rights violations, and
provide general advocacy services on behalf of state residents with
disabilities or mental illness.2 See Ala. Disabilities Advocacy Program v. J.S.
Tarwater Developmental Ctr., 97 F.3d 492, 497 (11th Cir. 1996) (discussing
“broad remedial framework” of the P&A laws). The statutes grant each P&A
certain rights and responsibilities, including the authority to “pursue legal,
The statutes authorizing the PAMII P&A systems are currently codified in
42 U.S.C. §§ 10801 – 10851, and the corresponding regulations are found in
42 C.F.R. part 51. The PADD P&A systems are currently codified in 42
U.S.C. §§ 15041 – 15045, and the corresponding regulations are found in 45
C.F.R. parts 1385, 1386, 1387, and 1388. The PAIR P&A systems are
currently codified in 29 U.S.C. § 794e, and the corresponding regulations are
found in 34 C.F.R. part 381. The United States Code is published every six
years, so each citation to the statutes refers to the 2012 version unless
otherwise stated. The Code of Federal Regulations is updated annually, so
each citation to the regulations refers to the 2014 edition.
2

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administrative, and other appropriate remedies” on behalf of individuals with
disabilities. 42 U.S.C. § 15043(a)(2)(A)(i); see also § 10805(a)(1)(B) (giving
P&A the authority to “pursue administrative, legal, and other appropriate
remedies to ensure the protection of individuals with mental illness who are
receiving care or treatment in the State”).
To “carry out the purpose” of the laws, the statutes and regulations
expressly provide each P&A with access authority to 1) individuals, 2)
records, and 3) public and private facilities. 42 U.S.C. §§ 15043(a)(2)(H);
10805(a)(3) (authorizing “access to facilities in the State providing care or
treatment”); see also Tarwater Developmental Ctr., 97 F. 3d at 497 (“It is
clear that the Act provides express authority for P&As to gain broad access to
records, facilities, and residents to ensure that the Act’s mandates can be
effectively pursued.”). P&A access to individuals is authorized “at reasonable
times . . . in a location in which services, supports, and other assistance are
provided to such an individual.”42 U.S.C. § 15043(a)(2)(H); see also 42 C.F.R.
§ 51.42(c) (“a P&A system shall have reasonable unaccompanied access to
facilities including all areas which are used by residents, are accessible to
residents, and to programs and their residents at reasonable times, which at
a minimum shall include normal working hours and visiting hours”)
(emphasis added). P&A access to the records of individuals with mental
illness or disabilities is also authorized; and, in certain situations, a P&A
may access records without consent of either the individual or her legal

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guardian. 42 U.S.C. §§ 10805(a)(4); 15043(a)(2)(I). Additionally, P&A access
to individuals and records is available at any time for the purposes of
conducting a “full investigation of an incident of abuse or neglect.” 42 C.F.R. §
51.42(b); 45 C.F.R. § 1386.22(f). Where a P&A is not investigating a specific
incident, it is entitled to access facilities “at reasonable times” for the
purposes of general advocacy (for example, the distribution of information or
routine health and safety monitoring). 42 C.F.R. § 51.42(c); 45 C.F.R. §
1386.22(g); see also 42 C.F.R. § 51.31(c) (a P&A “should establish an ongoing
presence in residential mental health care or treatment facilities, and
relevant hospital units”). Because the statutes and regulations applicable to
this action are numerous, they are discussed in more detail below.
A. PADD
In 1975, Congress passed the Developmental Disabled Assistance and
Bill of Rights Act (the “DD Act”). Pub. L. 94-103, 89 Stat. 486 (1975). The DD
Act offered federal funding to assist states in providing services to individuals
with developmental disabilities. To receive this funding, states were required
to establish a “system to protect and advocate the rights of persons with
developmental disabilities.” 42 U.S.C. § 6012 (1975); Pub. L. 94-103, 89 Stat.
504. At that time, the DD Act defined developmental disability to include
specific conditions (e.g., mental retardation and other conditions closely
related to mental retardation, cerebral palsy, epilepsy, autism, and dyslexia),
that originated prior to age 18, were expected to continue indefinitely, and

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constituted a substantial handicap. 42 U.S.C. § 6001(7) (1975). In 1978,
Congress amended the DD Act by raising the age of onset to 22, deleted all
references to specific handicapping conditions, and effectively broadened the
definition of “developmental disabilities” by basing it on functional
limitations. REHABILITATION , COMPREHENSIVE SERVICES, AND
DEVELOPMENTAL DISABILITIES AMENDMENTS OF 1978, Pub. L. No. 95–602,
Sec. 503, 92 Stat. 2955, 3005. Congress also made clear “the overall purpose”
of the DD Act is “to assure that persons with developmental disabilities
receive the care, treatment, and other services necessary to enable them to
achieve their maximum potential through a system which coordinates,
monitors, plans, and evaluates those services and which ensures the
protection of legal and human rights of persons with developmental
disabilities.” Id. at 3004.
In 2000, Congress repealed the 1975 DD Act and replaced it with the
Developmental Disabilities Assistance and Bill of Rights Act of 2000. Pub. L.
No. 106-402, 114 Stat. 1677 (codified as amended at 42 U.S.C. §§ 15001 –
15115 (2012)). In doing so, Congress specifically included the need for
“protection and advocacy systems in each State to protect the legal and
human rights of individuals with developmental disabilities” as one of the
primary purposes of the law. 42 U.S.C. § 15001(b)(2). The 2000 DD Act
redefined “developmental disability” and again framed it in terms of a
person’s functional limitations, instead of referring to any specific diseases or

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causes. 42 U.S.C. § 15002(8);3 see also Tenn. Protection & Advocacy, Inc. v.
Wells, 371 F.3d 342, 347 (6th Cir. 2004) (discussing “how functional
limitations, i.e., the result of the condition, govern the determination of
whether a person falls under the Act’s protection, not medical history, i.e., the
cause”). The legislative history of the DD Act shows that Congress has
consistently sought to assist all developmentally disabled persons, and has
routinely acted to ensure P&As are empowered by law.

The statute defines “developmental disability” as follows:
(A) In general
The term “developmental disability” means a severe, chronic disability of an
individual that –
(i)
is attributable to a mental or physical impairment or combination
of mental and physical impairments;
(ii)
is manifested before the individual attains age 22;
(iii) is likely to continue indefinitely;
(iv) results in substantial functional limitations in 3 or more of the
following areas of major life activity:
(I)
Self-care.
(II)
Receptive and expressive language.
(III) Learning.
(IV) Mobility.
(V)
Self-direction.
(VI) Capacity for independent living.
(VII) Economic self-sufficiency; and
(v)
reflects the individual’s need for a combination and sequence of
special, interdisciplinary, or generic services, individualized
supports, or other forms of assistance that are of lifelong or
extended duration and are individually planned and coordinated.
(B) An individual from birth to age 9, inclusive, who has a substantial
developmental delay or specific congenital or acquired condition, may be
considered to have a developmental disability without meeting 3 or more of
the criteria described in clauses (i) through (v) of subparagraph (A) if the
individual, without services and supports, has a high probability of meeting
those criteria later in life. 42 U.S.C. § 15002(8).
3

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B. PAMII
In 1986, Congress enacted PAMII. PROTECTION AND ADVOCACY FOR
MENTALLY ILL INDIVIDUALS ACT OF 1986; Pub. Law 99–319, 100 Stat 478
(1986). Modeled after the DD Act,4 Congress crafted PAMII in response to
horrific reports of abuse and neglect in state psychiatric hospitals.5 As a
result, the Act is meant to “ensure that the rights of individuals with mental
illness are protected.” 42 U.S.C. § 10801(b).
Since its inception, Congress has amended PAMII four times.
PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS AMENDMENTS
ACT OF 1988, Pub. L No. 100-509, 102 Stat. 2543; PROTECTION AND
Congress intended that the PAMII Act “would provide for the same kind of
assistance for institutionalized mentally ill patients as that which is now
available for mentally disabled patients. It would do that by expanding the
mandate of state protection and advocacy agencies to include services for the
mentally ill.” 132 Cong. Rec. H204-03 (daily ed. Jan. 30, 1986) (statement of
Rep. Anthony Beilenson (D-Cal.)).
5 Representative Lott noted, “(t)his legislation is the result of committee
findings that the mentally ill have been subjected to serious abuse and
neglect in institutions, including physical, emotional and sexual abuse.” 132
Cong. Rec. H204-03 (daily ed. Jan. 30, 1986) (statement of Rep. Trent Lott (RMiss.)); see also S. Rep. No. 99-109, at 2 (1985) (documenting the need for
legislation). Sadly, numerous reports of abuse and neglect at institutions for
mentally ill or disabled individuals still exist today. In 2007, for example, the
Atlanta-Journal Constitution published a ten part series of articles
concerning Georgia’s mental health system. The series revealed that from
2002 until 2007, more than 100 patients of Georgia’s state psychiatric
hospitals had died under suspicious circumstances. See, e.g., Alan Judd &
Andy Miller, Sarah Crider was among 115 patients in the state’s care who
might have lived, (A Hidden Shame, Part One), THE ATLANTA JOURNALCONSTITUTION , Jan. 7, 2007; see also Joseph Shapiro, Abuse At Texas
Institutions Is Beyond ‘Fight Club,’ NPR, Mar. 17, 2009 (detailing abuse by
forcing patients to fight one another at a facility for the “entertainment” of
hospital employees).
4

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ADVOCACY FOR MENTALLY ILL INDIVIDUALS AMENDMENTS ACT OF 1991, Pub.
L. No. 102-173, 105 Stat. 1217; CHILDREN ’S HEALTH ACT OF 2000, Pub. L.
106-310, 114 Stat. 1101, 1194; DEVELOPMENTAL DISABILITIES ASSISTANCE
AND

BILL OF RIGHTS ACT OF 2000, Pub. L. 106-402, 114 Stat. 1677, 1739.

Originally, the statute contemplated only individuals who suffered from
mental illness and resided in a facility providing treatment. PAMII’s current
definition of “individuals with mental illness” includes anyone with “a
significant mental illness or emotional impairment, as determined by a
mental health professional” regardless of where that person resides. 42
U.S.C. § 10802(4).
Throughout PAMII’s legislative history, Congress has maintained and
reiterated the importance of P&As for individuals with mental illness. See,
e.g., PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS ACT OF
1986, S. Rep. No. 109, 99TH Cong., 1ST Sess. 1985, 1986 U.S.C.C.A.N. 1361,
1370 (“The Committee recognizes the need for full [P&A] access to facilities
and clients and to their records in order to ensure the protection of mentally
ill persons.”). Congress has clearly stated that it:
[E]xpects that facilities will provide the [P&A] system with
reasonable access to all inpatients and residents in such
facilities to enable the systems to inform all such individuals of
their rights under Federal and State law and the U.S.
Constitution and to explain the nature and scope of the system’s
authority under the Act. Informing a mentally ill individual of
his or her rights is a critical function of a protection and
advocacy system.
PROTECTION & ADVOCACY FOR MENTALLY ILL INDIVIDUALS ACT OF 1988, S.

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Rep. 100-454, at 11 (1988) reprinted in 1988 U.S.C.C.A.N. 3217, 3227; see
also H.R. Rep. No. 102-319 (1991), reprinted in 1991 U.S.C.C.A.N. 777, 778
(discussing amendments and purpose of PAMII).
In addition to the statutes and corresponding legislative history, there
are also regulations implementing PAMII. In 1997, the Department of Health
and Human Services (“DHHS”) published the regulations in a final rule.
SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION ;
REQUIREMENTS APPLICABLE TO PROTECTION AND ADVOCACY OF INDIVIDUALS
WITH

MENTAL ILLNESS; Final Rule, 62 Fed. Reg. 53,548-01 (Oct. 15, 1997) (to

be codified at 42 C.F.R. part 51). When adopting the PAMII regulations,
DHHS explained, “monitoring compliance with patient rights is an
opportunity to prevent incidents from occurring and to ensure that facility
staff, as well as residents, understand what their rights are.” 62 Fed. Reg. at
53,561. And, “while an investigation involves access to facilities, [P&A]
systems have authority in their monitoring role to access facilities regardless
of whether or not a complaint has been registered or probable cause exits.” 62
Fed. Reg. at 53,551 – 552. “Determination of ‘probable cause’ may result from
P&A system monitoring or other activities, including observation by P&A
system personnel, and reviews of monitoring and other reports prepared by
others whether pertaining to individuals with mental illness or to general
conditions affecting their health or safety.” 42 C.F.R. § 51.31(g).
DHHS further explained in the rule that “reasonable access” means

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access during all hours and shifts, and not only on weekdays during facility
“business hours.” 62 Fed. Reg. at 53,561; see also 42 C.F.R. § 51.42(c)
(discussing “reasonable access” to facilities). Access “should be to all areas
used by residents or accessible to residents. Access is afforded [to the P&A] in
order to monitor compliance with respect to the rights and safety of
residents.” 62 Fed. Reg. at 53,561; see also 42 C.F.R. § 51.42(b) (discussing
access to facilities). “Residents include adults or minors who have legal
guardians or conservators.” 42 C.F.R. § 51.42(c). “The intent of the
regulations” is clear, P&A systems must “have full unaccompanied access to
residents and to all areas of the facility accessible to residents. In the interest
of safety, access to certain nonpublic areas or to certain residents may be
restricted by the facility but only in accordance with the procedures
stipulated in section [42 C.F.R. section] 51.43 (Denial or Delay of Access).” 62
Fed. Reg. at 53,561.
C. PAIR
PAIR extends P&A services to individuals not otherwise afforded
PADD or PAMII protection. 29 U.S.C. § 794e(a)(1); 34 C.F.R. §§ 381.1,
381.5(b). Although enacted earlier, Congress fully funded the PAIR program
in 1993. REHABILITATION ACT AMENDMENTS OF 1993, Pub. L. 103–73, 107
Stat. 718. PAIR grants the “same general authorities, including access to
records and program income, as are set forth in [PADD]; [and] the authority
to pursue legal, administrative, and other appropriate remedies or

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approaches to ensure the protection of, and advocacy for, the rights of
[certain] individuals.” 29 U.S.C. § 794e(f)(2)–(3). The wide range of
disabilities encompassed by PAIR may include, for example, certain persons
with physical or sensory disabilities (such as blindness or deafness), some
persons with traumatic head injuries incurred after age 22, individuals with
neurological impairments such as muscular dystrophy or multiple sclerosis,
or some persons with learning disabilities. See, e.g., Doe v. Stincer, 175 F.3d
879, 883 (11th Cir. 1999) (“PAIR authorizes [P&A] organizations . . . to
provide services to individuals with disabilities who are not eligible for
services under pre-existing [P&A] legislation, including PAMII.”); Tenn.
Protection & Advocacy, Inc., 371 F.3d at 351 (discussing how individuals with
traumatic brain injuries may be covered by the P&A statutory scheme). As a
result, PAIR extends the reach of P&As, which allows them to serve more
individuals. With these PADD, PAMII, and PAIR statutes and regulations in
mind, the Court turns to the legal analysis.
IV.

ANALYSIS
A. JURISDICTION
This Court has jurisdiction over this action because it arises under

federal law. 28 U.S.C. § 1331. Furthermore, ADAP has standing because it
seeks to establish that SafetyNet’s actions are causing injury to the P&A
system itself. (Doc. 1, p. 10); Stincer, 175 F.3d at 884 (citing Tarwater
Developmental Ctr., 97 F.3d 492).

18

B. PADD, PAMII, and PAIR APPLY TO THE SAFETYNET
FACILITY
Courts have found that P&A systems need not “make a threshold
showing” of mental illness or developmental disabilities in order to exercise
their access authority. See J.H. ex rel. Gray v. Hinds Cnty., Miss., No. 3:11CV-327-DPJ-FKB, 2011 WL 3047667, at *4 (S.D. Miss. July 25, 2011);
Disability Rights Wash. v. Penrith Farms, No. CV-09-024-JLQ, 2009 WL
777737, at *3 (E.D. Wash. Mar. 20, 2009); Protection & Advocacy for Persons
with Disabilities v. Armstrong, 266 F. Supp. 2d 303, 313 (D. Conn. 2003); Ky.
Protection & Advocacy Div. v. Hall, No. CIV.A.3:01CV-538-H, 2001 WL
34792531, at *1 (W.D. Ky. Sept. 24, 2001); Mich. Protection & Advocacy Serv.
v. Miller, 849 F. Supp. 1202, 1207 (W.D. Mich. 1994). Instead of requiring
conclusive evidence that a particular person or persons qualifies as an
individual with mental illness or developmentally disability for the purposes
of PADD, PAMII, or PAIR, courts have held that a showing of “substantial
evidence” suffices. Mich. Protection & Advocacy Serv. at 1207. “‘[E]vidence
that a facility has previously housed individuals who are mentally ill, as well
as evidence that some current residents may be mentally ill[,] is sufficient
under PAMII to merit access by [the P&A].’” Protection & Advocacy for
Persons with Disabilities, 266 F. Supp. 2d at 314 (quoting Ky. Prot. &
Advocacy Div., 2001 WL 34792531, at *3 (W.D. Ky. Sept. 24, 2001)).
There is no question that SafetyNet houses and treats individuals with

19

mental illness in its intensive program, thus it is subject to PAMII. There is
also evidence that some residents in the moderate program may suffer from
mental illness or developmental disabilities based on the diagnoses of those
residents and their need for involved, daily care and support. (Doc. 63, Exh.
2, p. 24; Doc. 70, pp. 2 – 4). Moreover, PAIR expands on the rights and
protections created by PAMII and PADD, and includes individuals with
disabilities who do not otherwise qualify for services under those statutes. 29
U.S.C. § 794e. If a child diagnosed with “major depressive disorder” or
“pervasive developmental disorder,” for example, is not considered disabled
for the purposes of PADD or to have a mental illness for the purposes of
PAMII, that child may nevertheless be subject to PAIR. Regardless, ADAP is
entitled access to the intensive and moderate programs at SafetyNet in
accordance with PAMII.
DHR, however, tries to argue that “the plain meaning of the statutes”
differentiates between “severe” and “moderate” mental illness or disability,
and individuals with only “moderate” illness or disability are not afforded
P&A protection. (Doc. 65, pp. 33 – 35). For this argument, DHR contends
“significant mental illness,” 42 U.S.C. § 10802(4), and “severe, chronic
disability,” 42 U.S.C. § 15002(8)(A), means “more than just a diagnosis.” (Doc.
65, pp. 31 - 36, 43; Doc. 72, pp. 13, 15). The Court disagrees, and finds that
the statutes and regulations do not state that individuals with “moderate”
mental illness or developmental disability are excluded from P&A services.

20

Nothing in the legislative history of the P&A system suggests that Congress
sought to restrict P&As from serving individuals with “moderate” mental
illness or disabilities. To the contrary, the statutes and regulations speak of
general access to residents and facilities, e.g., 42 C.F.R. § 51.42(c), and the
definitions of mental illness and developmental disability are intentionally
broad in scope. Congress also expanded P&A reach by enacting PAIR to
specifically cover individuals not protected by PADD or PAMII. DHR’s
argument that moderately ill or developmentally disabled individuals are
excluded from P&A oversight is without merit.
Furthermore, assuming for the sake of argument that the law requires
“more than just a diagnosis,” that heightened standard is met here. Residents
in the moderate program receive regular care and instruction on “basic living
skills for a minimum of 2 hours daily,” counseling, medication, mental
consultations, bi-weekly contact with a therapist, and bi-weekly group
therapy, among other things. (Doc. 65, pp. 18 – 19). Residents are placed in
the moderate program because the “child’s needs can only be met in a more
restrictive placement.” (Doc. 65, p. 12; Doc. 66, Exh. 15, pp. 17, 36). The
residents thus need care that extends beyond a mere diagnosis, and they
receive several treatment options and individualized service plans for their
behavioral health needs.
Moreover, SafetyNet is operating a “facility” that provides “care or
treatment” to “individuals with mental illness.” 42 C.F.R. § 51.42(b).

21

SafetyNet is not, for instance, a hospital that is fixing broken bones on one
side and providing some patients with psychiatric care on the other. (Doc. 74,
p. 2). Indeed, SafetyNet exists for one purpose: to provide care and treatment
for children with a variety of mental health and emotional disorders. This
puts it squarely under the purview of PAMII. Nothing in the statutes,
regulations, or legislative history suggests that P&A access is determined one
resident at a time. Nor is P&A access limited to only those residents with the
most severe mental illness, especially when SafetyNet can at any time
change a child’s placement to a more or less restrictive setting.
DHR also relies on Alabama’s Medicaid statutes and regulations for its
position. (Doc. 65, pp. 36 – 37; Doc. 77, pp. 5 – 7). The Medicaid rules do not
trump PADD, PAMII, or PAIR, nor do the rules control the interpretation of
these federal laws. States and state-licensed facilities must comply with
federal law. See M’Culloch v. Maryland, 17 U.S. 316, 435 (1819) (discussing
state laws in relation to the Supremacy Clause).
Additionally, DHR cannot successfully argue that PADD, PAMII, or
PAIR do not apply to SafetyNet because certain Medicaid services are billed
on an outpatient basis. (Doc. 65, p. 9). The statutes make clear that P&A
systems are afforded monitoring and access rights to individuals with mental
illness or disability even when they are not residing full-time in a facility.
Congress designed PAMII to protect individuals with mental illness who live
and receive treatment outside of inpatient treatment facilities. 42 U.S.C. §§

22

10802(3), (4)(B); 10841(3)(C); Conn. Office of Prot. & Advocacy for Persons
with Disabilities v. Hartford Bd. of Educ., 464 F.3d 229, 240 (2d Cir. 2006)
(protecting school students from abuse and neglect within educational
settings). The laws also protect patients in community-run programs like
outpatient facilities, boarding and group homes, homeless shelters, and even
the patient’s own home. 42 U.S.C. §§ 10802(3), (4)(B); 15043. The argument
that ADAP cannot access the moderate program because some of the services
provided by that program are considered “outpatient” services under the
state Medicaid regulations fails.
It is also perplexing that DHR “thought it best to follow the Tarwater
case to resolve issues with ADAP.” (Doc. 65, p. 38). Tarwater is a case about
records, not facility access or monitoring, and it analyzed whether an
anonymous telephone call implying that abuse or neglect may have caused
death constituted a “complaint” and established probable cause for purposes
of gaining record access. 97 F.3d 492, 496 (11th Cir. 1996).6 DHR and
SafetyNet cannot claim that Tarwater applies to the moderate program, and
yet deny ADAP access to monitor its facility and moderate program residents.
In doing so, DHR and SafetyNet essentially decided they must comply only
with some provisions of the P&A statutes and regulations. DHR and
SafetyNet do not get to conveniently pick and choose which provisions of
federal law they will ignore.

6

Notably, PAMII and its regulations have been amended since Tarwater.
23

DHR also complains that giving ADAP “access to moderate really
undermines” the work performed by SafetyNet and the state. (Doc. 72, p. 13).
To be clear, the focus here is not on any party “undermining” the other. The
priority remains the safety, health, and well being of SafetyNet’s residents,
and all individuals served by the P&A system.
C. ADAP MAY ACCESS AND MONITOR THE MODERATE
PROGRAM
Through PADD, PAMII, and PAIR, Congress created a nationwide
system of organizations with a mandate to provide protection and advocacy
for individuals with mental illness or disabilities. The access authority is one
of the most important features of the P&A system. The three primary types of
access - to individuals, their records, and the facilities or residences in which
they live - are key to ensuring the P&A system fulfills its Congressional
purpose. See, e.g., EXAMINING THE ISSUES RELATED TO THE CARE AND
TREATMENT OF THE NATION ’S INSTITUTIONALIZED MENTALLY DISABLED
PERSONS: JOINT HEARINGS BEFORE THE SUBCOMM . ON THE HANDICAPPED OF
THE

S. COMM . ON LABOR AND HUMAN RESOURCES AND THE SUBCOMM . ON

LABOR, HEALTH AND HUMAN SERVS., EDUC. AND RELATED AGENCIES OF THE
COMM . ON APPROPRIATIONS, 99th Cong., 1st Sess. (1985) (Hr’g No. 99-50, pt.
II). Courts have recognized that P&A access is fundamental, and P&A
agencies have almost universally prevailed in litigation based on access.7

7

See, e.g., Disability Law Ctr. of Alaska, Inc. v. Anchorage Sch. Dist., 581
24

F.3d 936, 940 (9th Cir. 2009) (FERPA does not bar a P&A from obtaining
access to the name and contact information for a parent, guardian, or other
legal representative); Ind. Protection & Advocacy Servs. v. Ind. Family & Soc.
Servs. Admin., 603 F.3d 365, 380-81 (7th Cir. 2010) (affirming declaratory
and injunctive relief for P&A); Conn. Office of Protection & Advocacy for
Persons with Disabilities v. Hartford Bd. of Educ., 464 F.3d 229 (2d Cir.
2006) (affirming injunction in favor of state agency under PAMII); Disability
Rights Wis., Inc. v. State of Wis. Dep’t of Pub. Instruction, 463 F.3d 719, 725
(7th Cir. 2006) (reversing denial of injunction where P&A sought records
from state agency, and providing history of protection and advocacy
legislation); Protection & Advocacy for Persons with Disabilities v. Mental
Health & Addiction & Advocacy Servs., 448 F.3d 119 (2d Cir. 2006) (affirming
injunction in favor of state agency to obtain access to patient records); Mo.
Protection & Advocacy Servs. v. Mo. Dep’t of Mental Health, 447 F.3d 1021
(8th Cir. 2006) (affirming injunction requiring access to patient records);
Center for Legal Advocacy v. Hammons, 323 F.3d 1262 (10th Cir. 2003)
(reversing denial of injunction); Pa. Protection & Advocacy, Inc. v. Houstoun,
228 F.3d 423 (3d Cir. 2000) (affirming injunction requiring access to patient
records); Miss. Protection & Advocacy Sys., Inc. v. Cotten, 929 F.2d 1054,
1059 (5th Cir. 1991) (upholding injunction in favor of P&A); Hawaii
Disability Rights Ctr. v. Cheung, 513 F. Supp. 2d 1185, 1195 (D. Haw. 2007)
(P&A has standing to sue and demand access to records); Ohio Legal Rights
Service v. Buckeye Ranch, Inc., 365 F. Supp. 2d 877, 883–84 (S.D. Ohio 2005)
(granting injunction under PAMII in favor of P&A against private caregiver);
Equip for Equality, Inc. v. Ingalls Memorial Hosp., 292 F. Supp. 2d 1086
(N.D. Ill. 2003) (granting injunction against private caregiver under PAMII
Act and state law); Iowa Protection & Advocacy Services, Inc. v. Gerard
Treatment Programs, L.L.C., 152 F. Supp. 2d 1150 (N.D. Iowa 2001) (P&A
entitled access to the records and patients in a psychiatric medical institution
in connection with its investigation of possible abuse or neglect, even where
the parents and guardians had indicated that they opposed such access); Wis.
Coalition for Advocacy, Inc. v. Czaplewski, 131 F. Supp. 2d 1039, 1047–50
(E.D. Wis. 2001) (ordering both public and private caregivers to provide
access to P&A under PAMII); Ariz. Ctr. for Disability Law v. Allen, 197
F.R.D. 689, 693 (D. Ariz. 2000) (P&A entitled to access records to make
probable cause determination); Advocacy Ctr. v. Stalder, 128 F. Supp. 2d 358,
361 (M.D. La. 1999) (P&A entitled to access records); Mich. Protection &
Advocacy Service, Inc. v. Miller, 849 F. Supp. 1202 (W.D. Mich. 1994) (state
violated federal law by limiting P&A access to individuals and records in
facilities); Robbins v. Budke, 739 F. Supp. 1479, 1487 (D.N.M. 1990) (“While
24–hour, unlimited access is not necessary to accomplish the purpose of the
Act, P&A must be permitted to present regular informal patients’ rights
education to all patients at [Las Vegas Medical Center] who are mentally ill
25

Because PAMII applies to the SafetyNet facility, SafetyNet must
comply with the P&A regulatory scheme. This means ADAP is authorized to
monitor both the intensive and moderate programs. Furthermore, ADAP is
allowed “reasonable access” to the facility as required by law. The
regulations, discussed above, are helpful in outlining what is considered
“reasonable.” To clarify, ADAP is entitled access to the residents and facilities
at SafetyNet to perform its monitoring and educating functions, despite the
lack of a court order, an investigation, or a complaint. DHR and SafetyNet
thwarted the purpose of the P&A system by refusing to grant ADAP any
access whatsoever to the moderate program. Such inaction clearly violates
federal law.
P&A access is broad, but it is not unfettered. P&As must conduct their
activities “so as to minimize interference with facility programs, respect
residents’ privacy interests, and honor a resident’s request to terminate an
interview.” 42 C.F.R. § 51.42(c). “Reasonable access” must also take into
account the distinctions between the right of access to facilities versus the
right of access to patients, as well as between the right of access for
monitoring purposes versus the right of access for educating or advocacy
purposes. When a P&A system exercises its monitoring function, reasonable
access includes unannounced access. If it is monitoring the program, the P&A
system may inspect, view, and photograph those areas to which it has access,
or developmentally disabled.”).

26

and photograph patients under strict guidelines. When a P&A system
exercises its educating function, reasonable access does not include
unannounced access. Giving at least 24-hours notice before accessing
facilities and exercising this function is reasonable. DHR complained that an
ADAP representative interrupted a classroom session in the intensive
program to announce her name and provide materials to the residents. (Doc.
77, pp. 15 – 16). When planning to engage with residents for educating
purposes, ADAP should provide notice before entering the classroom and
refrain from interrupting.
Finally, this Court ORDERS ADAP and SafetyNet to meet and
prepare a protocol with respect to situations in which ADAP requests access
but lacks a court order, a complaint, or an investigation. See, e.g., Protection
& Advocacy Sys., Inc. v. Freudenthal, 412 F. Supp. 2d 1211, 1212 (D. Wyo.
2006) (submitting “Access Agreement” for court approval). This protocol
must be submitted to the Court for approval no later than January
30, 2015. Furthermore, this Court strongly encourages ADAP and DHR to
develop a standard protocol that will govern to what extent ADAP will
request access to a facility, and to distribute the protocol to facilities ADAP
serves within Alabama. In the end, the parties in this case have the same
interests in mind—the best interests of the SafetyNet residents—and should
work together to serve those common interests.

27

D. INJUNCTIVE RELIEF
A plaintiff seeking a permanent injunction must satisfy a four-factor
test before a district court may grant such relief. “A plaintiff must
demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies
available at law, such as monetary damages, are inadequate to compensate
for that injury; (3) that, considering the balance of hardships between the
plaintiff and defendant, a remedy in equity is warranted; and (4) that the
public interest would not be disserved by a permanent injunction.” eBay Inc.
v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (citations omitted). In this
case, ADAP satisfies each factor. (Doc. 73, pp. 9 – 10). It has suffered an
irreparable injury by being denied access to fulfill its statutorily authorized
legal duty, monetary damages will not fix the problem, a remedy in equity is
warranted, and the public interest is served by a permanent injunction.
ADAP is awarded injunctive relief, and SafetyNet must give ADAP access to
the moderate program in accordance with this Order.
E. COSTS
ADAP and SafetyNet seek from each other an award of attorney’s fees
and costs. (Doc. 62, Exh. 1, p. 9; Doc. 71, p. 3; Doc. 73, p. 11; Doc. 75, p. 4).
Neither party provides legal authority for awarding fees and costs in this
type of dispute. The P&A statutes and regulations are silent on this issue,
though the regulations provide that a P&A system receives allotments that
may be used to bring lawsuits in their own right to redress incidents of abuse

28

or neglect, discrimination, and other violations. 45 C.F.R. § 1386.25.
Generally, litigants are expected to bear their own attorney’s fees and costs
pursuant to the “American Rule.” Mayer v. Wall St. Equity Grp., Inc., 514 F.
App’x 929, 932 (11th Cir. 2013). Because neither party cites an applicable
exception to this rule, the Court finds that each party must bear its own
costs.
F. INDEMNIFICATION AND CONTRIBUTION
SafetyNet is not entitled to indemnification and contribution from
DHR as a matter of law.8 SafetyNet seeks indemnification and contribution
from DHR because SafetyNet followed DHR’s instructions to deny ADAP
access to the moderate program. To support its position, SafetyNet states,
“ADAP has not and cannot provide any Alabama precedent or statutory
authority that would legally compel SafetyNet to disregard instructions from
[DHR], the governmental agency which licenses SafetyNet.” (Doc. 62, Exh. 1,
pp. 5, 8). SafetyNet also argues DHR could have revoked SafetyNet’s license
or refused to renew their contract should it fail to follow DHR’s directive.
(Doc. 62, Exh. 1, p. 7). SafetyNet cites its contract with DHR to support the
Eleventh Amendment Immunity is not at issue here. The Supreme
Court “has consistently held that an unconsenting State is immune from
suits brought in federal courts by her own citizens as well as by citizens of
another State.” Edelman v. Jordan, 415 U.S. 651, 662–63 (1974) (internal
citations omitted). If properly raised, the Eleventh Amendment bars actions
in federal court against a state, state agencies, or state officials acting in
their official capacities. Id. at 663. By failing to raise this Eleventh
Amendment issue, DHR waived this non-jurisdictional defense. See Wisc.
Dep’t of Corrections v. Schacht, 524 U.S. 381, 389 (1998).
8

29

fact that it agreed “to adhere to DHR policies and requirements, which have
been provided to [SafetyNet].” (Doc. 62, Exh. 1, p. 8). Because SafetyNet
followed DHR’s instructions, SafetyNet argues equity and fairness favor
awarding it indemnification and contribution from DHR.
The Court first notes SafetyNet is required to follow federal law. To
argue indemnification is required because ADAP did not provide SafetyNet
with any Alabama precedent or statutory authority saying it could ignore
DHR’s instructions is erroneous. ADAP wrote to SafetyNet explaining its
authority, and provided SafetyNet with citations to federal law supporting its
position. ADAP cannot provide SafetyNet with Alabama precedent or
statutory authority that contravenes the Supremacy Clause, i.e., telling
SafetyNet it must adhere to instructions from a state agency even when those
instructions violate federal law, because such precedent does not exist. See
Const. Art. VI cl. 2; PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2577 (2011)
(explaining when the Supremacy Clause of the U.S. Constitution mandates
state law give way to federal statute); Iowa Protection & Advocacy Servs.,
Inc. v. Rasmussen, 206 F.R.D. 630, 639 (S.D. Iowa 2001) (“In the case of
[PAMII], the state law is expressly preempted.”). Though it is unfortunate
SafetyNet and DHR failed to understand the federal rules and regulations
applicable to this dispute, this lack of understanding does not entitle
SafetyNet to indemnification.
Second, nothing in the record supports the notion that DHR

30

threatened retaliation against SafetyNet should it allow ADAP access to the
moderate program. (Doc. 76). SafetyNet merely argues its contract with DHR
requires compliance, “and non-compliance could result in [DHR] revoking
SafetyNet’s license.” (Doc. 62, Exh. 2, p. 3). Nor does the record show
SafetyNet objected to DHR’s instructions, or promptly sought independent
legal counsel or mediation to help resolve this dispute. Instead, the record
shows that for twelve months ADAP tried to gain access to the moderate
program, only to have SafetyNet refuse them. SafetyNet was not without
options. Only after a year of being denied access did ADAP file this lawsuit.
Additionally, SafetyNet, as a behavioral health care facility, is responsible for
understanding and following the federal and state laws that apply to its
programs. It cannot use DHR’s flawed guidance as an impenetrable shield for
its own violations.
Finally, the contract requires the parties to adhere to DHR policies and
requirements. (Doc. 62, Exh. 1, p. 8). But the contract does not authorize the
parties to violate federal law. To the contrary, the contract states more than
once that SafetyNet must “comply with all federal, state, and local laws.”
(Doc. 66, Exh. 16, pp. 6, 9, 11). Moreover, the contract and RFPs refer
repeatedly to Alabama’s Medicaid manual and regulations, and Alabama’s
Medicaid program must be administered in compliance with federal law.9

As the Eleventh Circuit has explained, “Medicaid is a cooperative
venture of the state and federal governments. A state which chooses to
participate in Medicaid submits a state plan for the funding of medical
9

31

Simply put, SafetyNet and DHR cannot contract their way out of compliance
with the applicable federal rules, and nothing in the record suggests that
they attempted to do so. Instead it appears that DHR and SafetyNet did not
understand the P&A broad remedial framework, and this led to violations of
federal law. For the foregoing reasons, SafetyNet is not entitled to indemnity
and contribution from DHR.
CONCLUSION
After careful consideration, the Court finds that there is no genuine
dispute as to any material fact and ADAP is entitled to judgment as a matter
of law. SafetyNet’s complete refusal to allow ADAP to access its moderate
program violates PAMII. ADAP is entitled to reasonable unaccompanied
access to both programs at SafetyNet, as well as the patients and programs
therein. ADAP’s motion for summary judgment is therefore GRANTED, and
SafetyNet’s motion for summary judgment is DENIED. DHR’s motion for
summary judgment is DENIED, but SafetyNet is not entitled to
indemnification and contribution from DHR. ADAP and SafetyNet are
required to meet and to develop a protocol consistent with this order for
presentation to the Court no later than January 30, 2015. Declaratory
judgment, therefore, is entered against SafetyNet, and SafetyNet is hereby

services for the needy which is approved by the federal government. The
federal government then subsidizes a certain portion of the financial
obligations which the state has agreed to bear. A state participating in
Medicaid must comply with [the applicable federal laws]. Harris v. James,
127 F.3d 993, 996 (11th Cir. 1997) (citations and quotations omitted).
32

permanently enjoined from denying ADAP reasonable access to its intensive
and moderate programs located at the Minter, Alabama facility. A separate
judgment will be entered. This Court retains jurisdiction to enforce the
injunction.
DONE and ORDERED this 12th day of December, 2014.
/s/ Callie V.S. Granade
UNITED STATES DISTRICT JUDGE

33