Disability Rights Washington v. Joseph

• Court: District Court, W.D. Washington
• Decided: September 30, 2024
• Docket: 2:23-cv-01668
• Status: Unknown

Opinion

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3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 DISABILITY RIGHTS WASHINGTON, CASE NO. 23-cv-01668 8 a nonprofit membership organization for the federally mandated Protection ORDER DENYING PLAINTIFF’S 9 and Advocacy Systems, MOTION FOR PARTIAL SUMMARY JUDGMENT 10 Plaintiff, 11 v. 12 TONIK JOSEPH, in her official capacity as Interim Assistant Secretary 13 for the Developmental Disabilities Administration of the Washington 14 Department of Social & Health Services, 15 Defendant. 16

17 1. INTRODUCTION 18 Plaintiff Disability Rights Washington (DRW) moves for partial summary 19 judgment on its claim for declaratory relief. DRW asks the Court to find that it has 20 a right to obtain the identities and contact information of disabled individuals 21 receiving Remote Support services—a state-administered program designed to help 22 people with developmental disabilities— under the Developmental Disability 23 1 Assistance and Bill of Rights Act (“DD Act”) and its implementing regulations. 2 Upon review of the briefing, the record, and the law, the Court is fully informed and

3 DENIES DRW’s motion, Dkt. No. 11. While the material facts are undisputed, the 4 DD Act does not authorize DRW to access the requested personal information under 5 the circumstances presented here. 6 2. BACKGROUND 7 Congress enacted the DD Act to ensure “that individuals with developmental 8 disabilities and their families participate in the design of and have access to needed

9 community services” and other forms of assistance. 42 U.S.C. § 15001(b). For a state 10 to receive federal funding under the DD Act, it must have a Protection and 11 Advocacy (P&A) system “to protect and advocate the rights of individuals with 12 developmental disabilities.” 42 U.S.C. § 15043(a)(1). The Protection and Advocacy 13 for Individuals with Mental Illness Act (PAIMI), 42 U.S.C. § 10801 et seq., and the 14 Protection and Advocacy of Individual Rights Act (PAIR), 29 U.S.C. § 794e et seq., 15 contain similar requirements.

16 DRW is the designated P&A agency for Washington state. In this role, DRW 17 supports individuals with developmental disabilities by providing them advocacy 18 and legal services, monitoring their service providers, and investigating allegations 19 of abuse and neglect. The DD Act grants DRW access to the records of 20 developmentally disabled individuals in some cases. 21 In July 2022, DRW sent a letter to the Washington Department of Social &

22 Health Services’ Developmental Disabilities Administration (DDA) requesting the 23 names and contact information, among other things, of Remote Support recipients 1 “and/or [their] guardians.” Dkt. 13-1 at 1. DRW requested the information under its 2 monitoring authority to see “how [Remote Support] is being provided in respect to

3 the rights and safety of … [DDA] service recipients.” Dkt. No. 13-1 at 2 (internal 4 quotations omitted). 5 Remote Support is a Medicaid program administered by DDA,1 offering 6 “supervision, coaching, and consultation from a contracted remote support provider 7 . . . from a distant location.” WAC 388-845-0945(1). Remote Support recipients can 8 access the service from their homes or a community-based setting. Id. DDA

9 contracts with Remote Support providers and authorizes Medicaid payment for such 10 services, but DDA does not provide the services directly to recipients. Dkt. No. 17 ¶ 11 5. 12 DDA declined to provide DRW with the information requested because, 13 according to DDA, the DD Act does not authorize DRW to access personal 14 information unless DRW is investigating the Remote Support program. Dkt. No. 13- 15 2. Id.

16 In July 2023, DRW requested “de-identified” service plans for each individual 17 authorized to receive Remote Support services from DDA, as well as any incident 18 reports regarding those individuals. Dkt. No. 13-5. DRW sought, in the alternative, 19 the names, addresses, and contact information of Remote Support recipients and 20 their legal guardians. Id. In response, DDA claimed there was “no meaningful way 21

22 1 This program has also been known as Distance Based Observation and Reporting (DBOR). See WAC 388-845-2019(2)(g)(vii) (“What modifications to waiver services 23 apply during the COVID-19 outbreak?”). 1 to redact” or “de-identify” the personal service plans, and so it refused to provide 2 them. DDA informed DRW, however, that it had run a search for incident reports

3 and had found none. Dkt. No. 13-6 at 2. And DDA once again denied DRW’s request 4 for recipient contact information, stating it could not disclose protected health 5 information under the DD ACT unless DRW was investigating the Remote Support 6 program. Id. 7 DRW renewed its request in October 2023. Dkt. No. 14-1 at 2. This time, it 8 also requested the names and contact information of individuals who were denied

9 Remote Support services. Id. DRW clarified that it was “not investigating [DDA’s] 10 provision of remote supports for potential abuse and neglect[.]” Id. at 2. Again, DDA 11 denied the request. Dkt. No. 14-2. It also informed DRW that it “does not track who 12 requested [Remote Supports],” and thus had no information about who was denied 13 Remote Support services. Id. 14 This lawsuit followed. DRW requests injunctive relief and declaratory relief 15 as follows:

16 Declare in favor of Plaintiff … that Defendants violated the DD Act, by refusing to provide DRW with the names and contact information of 17 DDA participants who are currently receiving DDA remote supports and of those who have requested DDA remote supports and were 18 subsequently denied the service for the period of January 1, 2021, to October 10, 2023. 19 Dkt. No. 1 at 16–17. 20 DRW now seeks partial summary judgment, asking the Court to find that 21 DRW has the right to access contact details of individuals with developmental 22 disabilities through state service providers under its monitoring authority found in 23 1 the DD Act. Dkt. No. 11-1 at 1 (citing 42 U.S.C. § 15043(H) and 45 C.F.R. 2 § 1326.27(c), (c)(2)(ii)). It defines the requested contact details as “the names,

3 address, phone numbers, and email addresses of such individuals, and of their 4 guardians or legal representatives, if applicable.” Id. 5 3. DISCUSSION 6 3.1 Legal standard. 3.1.1 Summary judgment. 7 Summary judgment is appropriate if there is no genuine dispute as to any 8 material fact and the moving party is entitled to judgment as a matter of law. Fed. 9 R. Civ. P. 56(a). To succeed on the motion, the moving party must first show that no 10 issues of material fact exist, referring to portions of “the pleadings, depositions, 11 answers to interrogatories, [] admissions on file, [and] [] affidavits” to support its 12 argument. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting former Fed. R. 13 Civ. P. 56(c)). If the moving party meets its initial burden of demonstrating the 14 absence of a genuine issue of material fact, then the nonmoving party must present 15 “specific facts” showing a “genuine issue for trial.” Fed. Trade Comm’n v. 16 Stefanchik, 559 F.3d 924, 927–28 (9th Cir. 2009). Whether a fact is material 17 depends on the substantive law governing the claim. Suever v. Connell, 579 F.3d 18 1047, 1056 (9th Cir. 2009). On summary judgment, the Court considers all facts in 19 the light most favorable to the nonmoving party and draws all reasonable 20 inferences in their favor. Earl v. Nielsen Media Rsch., Inc. et al., 658 F.3d 1108, 21 1112 (9th Cir. 2011). 22 23 1 3.1.2 Statutory interpretation. “The preeminent canon of statutory construction requires [courts] to presume 2 that the legislature says in a statute what it means and means in a statue what it 3 says.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009) 4 (quotation omitted). Thus, the court’s analysis “begins with the statutory text, and 5 ends there as well if the text is unambiguous.” Id. (quotation omitted). 6 If the text is ambiguous, courts must turn to other canons of statutory 7 construction. When construing statutory language, courts “must interpret the 8 statute as a whole, giving effect to each word and making every effort not to 9 interpret a provision in a manner that renders other provisions of the same statute 10 inconsistent, meaningless or superfluous.” Rodriguez v. Sony, 801 F.3d 1045, 1051 11 (9th Cir. 2015) (quotation omitted). “[P]articular phrases must be construed in light 12 of the overall purpose and structure of the whole statutory scheme.” Id. (quotation 13 omitted). The rules of statutory interpretation apply equally to regulations that 14 carry the force of law. Aguayo v. U.S. Bank, 653 F.3d 912, 925 (9th Cir. 2011). 15 16 3.2 DRW’s monitoring authority does not grant it unfettered access to the records and contact information of disabled individuals. 17 DRW, as a P&A agency, has “three primary functions: to investigate, to 18 educate, and to monitor.” Equip for Equal., Inc. v. Ingalls Mem’l Hosp., 292 F. Supp. 19 2d 1086, 1094 (N.D. Ill. 2003). The DD Act lays out rules circumscribing DRW’s 20 authority under each function, including when and how DRW may access facilities 21 and service providers and collect personal records and information from 22 developmentally disabled persons. See e.g., 42 U.S.C. § 15043(a)(2)(I), (J), (H). Since 23 1 DRW has disavowed any investigative purpose in seeking the names and contact 2 information of Remote Support recipients under its investigative authority, the

3 Court must decide whether it may do so under its monitoring authority.2 4 DRW maintains that the DD Act at 42 U.S.C. § 15043(a)(2)(H) (“Subsection 5 (a)(2)(H)”) and its implementing regulation at 45 C.F.R. § 1326.27(c) authorize 6 access to the requested information. For the reasons below, the Court rejects DRW’s 7 arguments and finds that neither provision authorizes the access sought. The 8 Court addresses Subsection (a)(2)(H) and 45 C.F.R. § 1326.27(c) in turn.

9 3.2.1 The plain language of Subsection (a)(2)(H) does not grant DRW access to the records or contact information of 10 individuals receiving Remote Support services. 11 Subsection (a)(2)(H) grants P&A systems access to individuals with 12 developmental disabilities. It states that P&A systems like DRW “shall”: 13 have access at reasonable times to any individual with a developmental disability in a location in which services, supports, and other assistance 14 are provided to such an individual, in order to carry out the purpose of this part. 15

42 U.S.C. § 15043(a)(2)(H). 16 DRW claims that this provision requires DDA to disclose personal 17 information related to Remote Support recipients, people who were denied Remote 18 Support services, and any legal guardians. But the express statutory language of 19 Subsection (a)(2)(H) does not support DRW’s interpretation, as it does not require 20 21

22 2 DRW confirms this fact in its reply brief, stating, “This case is not about Plaintiff’s access under its investigatory function, but rather its monitoring function.” Dkt. No. 23 18 at 7 (emphasis in original). 1 service providers to disclose the private information of people with developmental 2 disabilities. See id. Rather, it authorizes access “at reasonable times” to individuals

3 with developmental disabilities in “location[s]” where they receive services. Id.; see 4 also Conn. Office of Prot. & Advoc. for Persons with Disabilities v. Hartford Bd. of 5 Educ., 464 F.3d 229, 241 (2d Cir. 2006) (Subsection (a)(2)(H) “provides more 6 generalized access to any individual with a disability in a location that provides 7 services.”) (emphasis added). The language does not require service providers to 8 disclose personal information. Indeed, Hartford Board of Education, the case mainly

9 relied upon by DRW, notes that no DD Act provision expressly requires a service 10 provider to produce a list of service recipients with their contact information and 11 that of their legal guardians. See id. at 244. 12 Further, DRW’s request for declaratory relief exceeds the scope of Subsection 13 (a)(2)(H), as conveyed by the Subsection’s plain language. Subsection (a)(2)(H) only 14 authorizes “access” to individuals with developmental disabilities who receive 15 “services, supports, and other assistance” at a given location. 42 U.S.C.

16 § 15043(a)(2)(H). But DRW asks the Court to declare that Subsection (a)(2)(H) 17 entitles it to obtain the contact information of any “individual[ ] with developmental 18 disabilities” through “state service providers.” Dkt. 11-1 at 1 (DRW’s proposed 19 order). This is a step beyond what the statute contemplates. Likewise, DRW argues 20 that Subsection (a)(2)(H) entitles it to the names and contact information of 21 individuals who were denied Remote Support services and thus did not receive

22 them. See Dkt. 1 at 16. DRW also argues that it is entitled to the names and 23 personal contact information of legal representatives for individuals with 1 developmental disabilities. Dkt. 11-1 at 2. These arguments fail because, as 2 explained, Subsection (a)(2)(H) only authorizes access to a defined group of

3 individuals that does not include these categories of persons. DRW’s reliance on this 4 subsection for broader access is unpersuasive. 5 3.2.2 Construing the DD Act as a whole confirms the Court’s plain- language reading of Subsection (a)(2)(H). 6 Setting aside the plain meaning of Subsection (a)(2)(H), DRW’s reading of the 7 statute fails because it impermissibly conflicts with other provisions of the DD Act 8 that expressly govern records disclosures. DRW’s reading of Subsection (a)(2)(H) 9 would inexplicably render those neighboring records-governing provisions 10 meaningless when individuals with developmental disabilities receive services at 11 home. See 42 U.S.C. § 15043(a)(2)(I), (J); c.f. Hartford Bd. of Educ., 464 F.3d at 241 12 (rejecting interpretation of 42 U.S.C. § 15043(a)(2)(B) that would render 42 U.S.C. 13 § 15043(a)(2)(H) meaningless). In general, these neighboring provisions authorize 14 P&A agency access to records during certain investigations and emergencies, as 15 well as through consent from the individual or their legal guardian. 42 U.S.C. 16 § 15043(a)(2)(B), (I)–(J). Outside of these specific situations, a P&A system must, 17 among other things, find “probable cause to believe that [an] individual has been 18 subject to abuse or neglect” before accessing that individual’s records. 42 U.S.C. 19 § 15043(a)(2)(I)(ii)(III), (iii)(II). Unlike the generalized provision governing access to 20 individuals in locations where they receive services (set out in Subsection (a)(2)(H)), 21 the provisions governing access to records are “very explicit about what type of 22 authorization is required for a P&A system to view an individual’s records: they 23 1 detail from whom a P&A system must have authority to access records and when 2 prior consent is necessary.” Hartford Bd. of Educ., 464 F.3d at 242–3; see also id. at

3 242 (The DD Act “distinguish[es] between a P&A system’s authority to speak with 4 an individual [at a location where they receive services] and its authority to obtain 5 an individual’s records.”). 6 The specific statutory requirements governing P&A access to individual 7 records would make little sense if DRW’s broad interpretation of Subsection 8 (a)(2)(H) were correct. Indeed, P&A systems could circumvent the DD Act’s

9 requirements for records access simply by invoking their Subsection-(a)(2)(H) 10 monitoring authority. Accordingly, the Court finds that DRW’s proposed 11 interpretation of Subsection (a)(2)(H) cannot be harmonized with the rest of the 12 statute and rejects it. 13 In the same vein, allowing P&A systems to have such broad access to contact 14 information under Subsection (a)(2)(H) would conflict with existing precedent 15 interpreting Subsection (a)(2)(I)(iii), which permits access to a legal representative’s

16 contact information only if the P&A system has probable cause to believe that the 17 represented individual with developmental disabilities “has been subject to abuse or 18 neglect.” Disability L. Ctr. Of Alaska, Inc., 581 F.3d at 939 (finding P&A system 19 entitled to contact information for guardians of students with intensive needs 20 because it had probable cause to believe that those students “may have been subject 21 to abuse or neglect”). Stated differently, if a P&A system cannot make the requisite

22 probable cause finding, then it lacks authorization to access legal representatives’ 23 contact information. Id.; see also Disability Rts. Wash. v. Rolfe, No. 3:12–cv–05004– 1 RBL, 2012 WL 1409628, at *3–4 (W.D. Wash. Apr. 12, 2012) (finding “DRW’s 2 request to compel disclosure of personal [contact] information [was] unlikely to

3 prevail on the merits” because DRW did not demonstrate probable cause under the 4 applicable DD Act provision); Wash. Prot. & Advoc. Sys., No. CV03-5062 FDB, Dkt. 5 No. 25 (finding P&A system’s request for the contact information of “all disabled 6 students participating” in the program was unlikely to succeed on the merits for 7 lack of probable cause). Reading Subsection (a)(2)(H) as DRW suggests would 8 render the probable-cause finding requirement meaningless if P&A systems could

9 access the same information at any time merely by invoking their monitoring 10 authority. See Cal. v. Azar, 911 F.3d 558, 569 (9th Cir. 2018) (Courts should make 11 “every effort not to interpret a provision in a manner that renders other provisions 12 of the same statute inconsistent, meaningless or superfluous.”). 13 For these reasons, the Court rejects DRW’s interpretation of Subsection 14 (a)(2)(H). Given the discussion above, the Court need not decide whether a service 15 recipient’s private home is a “location in which services, supports, and other

16 assistance are provided” to that individual under Subsection (a)(2)(H). 17 3.2.3 The plain language of 45 C.F.R. § 1326.27(c) does not grant DRW access to the records or contact information of 18 individuals receiving Remote Support services. 19 DRW also maintains that 45 C.F.R. § 1326.27(c) requires DDA to produce the 20 requested information. It states: 21 [A] P&A system shall have reasonable unaccompanied access to service providers for routine circumstances. This includes areas which are used 22 by individuals with developmental disabilities and are accessible to individuals with developmental disabilities at reasonable times, which 23 1 at a minimum shall include normal working hours and visiting hours. A P&A also shall be permitted to attend treatment planning meetings 2 concerning individuals with developmental disabilities with the consent of the individual or his or her guardian . . . . 3 45 C.F.R. § 1326.27(c). 4 This regulation is inapposite. Its plain language entitles DRW to have “access 5 to service providers”—that is, those who provide services. By its own terms, this 6 regulation obviously contemplates a P&A system’s access to service provider 7 facilities, explaining that access to those facilities includes access to patients and 8 clients “at reasonable times,” including “normal working hours and visiting hours.” 9 Id. 10 Nothing in the regulation’s language suggests that service providers must 11 provide access to service recipients who are not present at their facilities. Indeed, 12 the same regulation later defines “access” as “[a]cess including . . . all areas of a 13 service provider’s premises or under the service provider’s supervision or control 14 which are used by individuals with developmental disabilities or are accessible to 15 them.” 45 C.F.R. § 1326.27(c)(2)(iii). Here, there is no contention that the online 16 service providers have supervision or control over the service recipients’ homes. 17 Thus, the Court rejects DRW’s argument. The Court ends its analysis here, as the 18 regulation is unambiguous. See Satterfield, 569 F.3d at 951. 19 The Court notes that the outcome might be different in a case in which the 20 service provider has some level of access to or control over the service recipient’s 21 private home. But neither side suggests that those are the facts here. 22 23 1 3.3 The Court need not decide whether DDA is a “service provider” under the DD Act. 2 DDA argues that it is not a service provider for the Remote Support program. 3 Dkt. No. 16 at 13. Because the Court has concluded that DRW is not entitled to the 4 records it requested on other grounds, the Court does not address whether DDA is a 5 service provider under these facts. 6 4. CONCLUSION 7 The DD Act empowers P&A systems like DRW to collect individuals’ private 8 information under certain circumstances. Those circumstances do not apply here. 9 Accordingly, DRW’s Motion for Partial Summary Judgment, Dkt. No. 11, is 10 DENIED. The Parties will submit a Joint Status Report by October 14, 2024, 11 indicating whether any additional discovery or motions practice is necessary before 12 trial. 13 Dated this 30th day of September, 2024. 14

15 a 16 Jamal N. Whitehead United States District Judge 17

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