TN Protection v. Wells

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 9, 2004
• Docket: 02-6221
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Tenn. Protection & Advocacy No. 02-6221 ELECTRONIC CITATION: 2004 FED App. 0172P (6th Cir.) v. Wells, Esquire, et al. File Name: 04a0172p.06 _________________ UNITED STATES COURT OF APPEALS COUNSEL FOR THE SIXTH CIRCUIT ARGUED: Gary Housepian, TENNESSEE PROTECTION _________________ & ADVOCACY, INC., Nashville, Tennessee, for Appellant. Tyree B. Harris IV, WILLIS & KNIGHT, Nashville, TENNESSEE PROTECTION & X Tennessee, Brigid M. Carpenter, BAKER, DONELSON, ADVOCACY , INC., - BEARMAN, CALDWELL & BERKOWITZ, Nashville, Plaintiff-Appellant, - Tennessee, for Appellees. ON BRIEF: Gary Housepian, - No. 02-6221 TENNESSEE PROTECTION & ADVOCACY, INC., - Nashville, Tennessee, for Appellant. Tyree B. Harris IV, v. > WILLIS & KNIGHT, Nashville, Tennessee, Brigid M. , - Carpenter, BAKER, DONELS ON, BEARMAN, JON A. WELLS, ESQUIRE; - CALDWELL & BERKOWITZ, Nashville, Tennessee, RONALD BRUCE ARRISON; - Ronald L. Smith, Michael Kirkman, OHIO LEGAL RIGHTS - SERVICE, Columbus, Ohio, for Appellees. and KING’S DAUGH TERS & SONS NURSING HOME, INC., - BOGGS, C. J., delivered the opinion of the court, in which Defendants-Appellees. - ALDRICH, D. J., joined. DAUGHTREY, J. (pp. 18-20), - delivered a separate dissenting opinion. N Appeal from the United States District Court _________________ for the Middle District of Tennessee at Cookeville. No. 01-00078—William J. Haynes, Jr., District Judge. OPINION _________________ Argued: March 9, 2004 BOGGS, Chief Judge. Tennessee Protection & Advocacy, Decided and Filed: June 9, 2004 Inc. (TP&A) is a federally-mandated independent non-profit agency that investigates allegations of abuse against the Before: BOGGS, Chief Judge; DAUGHTREY, Circuit disabled. It appeals the district court’s holding that one of its Judge; and ALDRICH, District Judge.* clients, Martin Earle Bentley, is not covered under the Developmental Disabilities Assistance and Bill of Rights Act (DD Act), and that therefore TP&A has no statutory authority to obtain Bentley’s records without the permission of his court-appointed conservator. We hold that the plain meaning * of the statutory definition of developmental disability covers The Honorab le Ann Aldrich, United States District Judge for the Northern District of Ohio, sitting by designation.

1 No. 02-6221 Tenn. Protection & Advocacy 3 4 Tenn. Protection & Advocacy No. 02-6221 v. Wells, Esquire, et al. v. Wells, Esquire, et al.

individuals with Bentley’s kind of traumatic brain injury, and with developmental disabilities.” 42 U.S.C. § 15043(a)(F)- we reverse the decision of the district court. (G). In general, the P&A System serves individuals with a range of developmental disabilities by, among other things, I investigating allegations of abuse; the agency is authorized to take legal action on behalf of its clients if claims cannot Martin Earle Bentley, a long-haul truck driver, suffered a otherwise be resolved. See 42 U.S.C. § 15043(a) (giving full traumatic brain injury from an on-the-job crash in 1976, when recitation of the agency’s powers). he was 20 years old. As a result, he was permanently disabled and must live in a nursing home because he is unable Following normal procedures, a case advocate with TP&A to care for himself. In light of Bentley’s condition after the faxed a letter to Wells on December 8, 2000 asking to see accident, the Probate Court of Macon County, Tennessee Bentley’s records and offering to help resolve any dispute appointed attorney Jon Wells to be the conservator of between the two. She then called Wells on December 11, Bentley’s person and estate in 1980. when he informed her that he would only release Bentley’s records in response to a court order. TP&A also tried to In 2001, Bentley contacted TP&A because he had concerns secure the records through the King’s Daughters and Sons about both the handling of his financial affairs and restraints Nursing Home, where Bentley is a resident, but met with the on his personal autonomy. In a conference call with TP&A same response. The Nursing Home administrator also representatives, including a TP&A staff attorney, Bentley forbade his staff to discuss the litigation with Bentley. explained his grievances. In the staff attorney’s opinion, Bentley demonstrated “adequate cognitive ability” to speak Unable to obtain the necessary information to investigate for himself, and expressed his wishes in an “unequivocal Bentley’s allegations, TP&A filed suit in district court in consistent manner.” Bentley summed up his situation as September 2001 against Wells, the Nursing Home, and its follows: “A man of my age and ability should not be locked administrator, Ronald Arrison. TP&A moved for summary up in a nursing home.” Bentley authorized TP&A to examine judgment and a preliminary injunction; Wells cross-claimed all the necessary records to advocate on his behalf. for summary judgment. The Nursing Home did not respond to TP&A’s motion for summary judgment. TP&A is the Tennessee chapter of a network of independent agencies, known as the Protection & Advocacy In September 2002, the district court granted Wells System, that Congress funded in the DD Act as part of the summary judgment on the grounds that the DD Act did not Protection and Advocacy for Persons with Developmental cover traumatic brain injury, Bentley’s type of disability, and Disabilities (PADD) Program. In order to receive funding therefore TP&A had no right to review Bentley’s records. under the Act, each state must “have in effect a system to This appeal then followed. protect and advocate the rights of individuals with developmental disabilities.” 42 U.S.C. § 15043(a)(1). For II the state to qualify for funding, the agency must “not be administered by the State Council on Developmental This court reviews a grant of summary judgment de novo. Disabilities [and must] be independent of any agency that Copeland v. Machulis, 57 F.3d 476, 478 (6th Cir. 1995) (per provides treatment, services, or habilitation to individuals curiam). Summary judgment is appropriate when the No. 02-6221 Tenn. Protection & Advocacy 5 6 Tenn. Protection & Advocacy No. 02-6221 v. Wells, Esquire, et al. v. Wells, Esquire, et al.

evidence submitted shows “that there is no genuine issue as and therefore Bentley was not qualified for protection under to any material fact and the moving party is entitled to the Act. Id. at 5. judgment as a matter of law.” Fed. R. Civ. P. 56(c). The facts in this case are not disputed, and therefore one of the However, the statute in Holmquist did not define the term parties is entitled to summary judgment as a matter of law. in dispute. Instead, the court had to solve an “interpretive Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, riddle” presented by a customs statute. Holmquist, 36 F.3d at 909 (6th Cir. 1999). 158. In contrast, the DD Act contains an explicit and multi- faceted definition of the term “developmental disability,” and To demonstrate that it has legal authority to gain access to that definition must govern the resolution of this case; we are Bentley’s records, TP&A must show that he is covered by the not at liberty to put our gloss on the definition that Congress DD Act. 42 U.S.C. § 15001 et seq.1 This case turns on provided by looking to the generally accepted meaning of the whether the term “developmental disability,” as used in the defined term. Babbitt v. Sweet Home Chapter of Act, can apply to those who suffer from traumatic brain Communities for a Great Oregon, 515 U.S. 687, 698 n.10 injury, rather than being limited to those afflicted by some (1995) (pointing out that “Congress explicitly defined the type of congenital or disease-related defect. The district court operative term ‘take’ in the [Endangered Species Act] . . . concluded that the “clear language of the statute reflects that thereby obviating the need for us to probe its meaning”); it is intended to cover individuals who have some physical or United States v. Smith, 155 F.3d 1051, 1057 (9th Cir. 1998) mental disability or condition as a result of natural causes.” (observing that when “the meaning of a word is clearly Tenn. Protection & Advocacy v. Wells, No. 2:01-0078, at 4 explained in a statute, courts are not at liberty to look beyond (M.D. Tenn. Sept. 30, 2002) (Mem. Op.) (emphasis added). the statutory definition”). Therefore, although it may not be The court invoked the rule of statutory construction that all intuitive to think of a brain injury that results from a vehicle words of the statute are intended to have meaning and no accident when the victim is 20 years old as a “developmental interpretation should be adopted that “would render statutory disability,” we must do so because Bentley’s condition fits the phrases meaningless, redundant, or superfluous.” Ibid. (citing definition that is provided in the statute. United States v. Holmquist, 36 F.3d 154, 160 (1st Cir. 1994)). To expand the definition further to include disabilities TP&A is not reading the term “developmental” out of the resulting from injury, would, according to the district court’s statute, but is asking us to follow the definition that Congress opinion, ignore the meaning of the word “developmental,” crafted. According to the statute: The term “developmental disability” means a severe, chronic disability of an individual that-- 1 There appea rs to be no dispute that if Bentley is covered, then TP&A has authority to access his records under the DD Act. 42 U.S.C. (i) is attributable to a mental or physical impairment or § 15043 (a)(2)(I)(iii) (stating that the P& A system shall have a ccess to all combination of mental and physical impairments; records of any individual with a develop mental disab ility in a situation in which 1) the individual has a legal conservator; 2) a complaint has been (ii) is manifested before the individual attains age 22; received; 3) there is probable cause to believe the person has been subject to abuse or neglect; and 4) the representative has been contacted and (iii) is likely to continue indefinitely; offered assistance but has failed to act on behalf of the ind ividual). No. 02-6221 Tenn. Protection & Advocacy 7 8 Tenn. Protection & Advocacy No. 02-6221 v. Wells, Esquire, et al. v. Wells, Esquire, et al.

(iv) results in substantial functional limitations in 3 or Congress consistently expanded the definition to include more of the following areas of major life activity: more diagnoses; in 1978, it amended the statute again, (I) Self-care. “deleting all references to specific handicapping conditions (II) Receptive and expressive language. and establishing a definition based on functional limitations.” (III) Learning. Rehabilitation, Comprehensive Services, and Developmental (IV) Mobility. Disabilities Amendments of 1978, Pub. L. No. 95-602, Sec. (V) Self-direction. 503, 42 U.S.C. § 6001, 92 Stat. 2955 (1978); S. Rep. No. 103- (VI) Capacity for independent living. 120, at 5 (1994), reprinted in 1994 U.S.C.C.A.N. 164, 168. (VII) Economic self-sufficiency; and Functional limitations, i.e., the result of the condition, govern the determination of whether a person falls under the Act’s (v) reflects the individual's need for a combination and protection, not medical history, i.e., the cause. No one doubts sequence of special, interdisciplinary, or generic services, that Bentley meets the functional limitation requirements of individualized supports, or other forms of assistance that the DD Act.3 The statute treats the words “functional” and are of lifelong or extended duration and are individually “developmental” as essentially synonymous and we conclude planned and coordinated. that his disability meets the statutory definition. 42 U.S.C. § 15002 (8)(A). Chronic Condition For the reasons below, we reject Wells’s2 arguments that Bentley’s brain injury resulted in a severe, “chronic” Bentley does not have a developmental disability because disability that is a result of physical impairment (subsection 1) he did not gradually acquire it; 2) his condition does not i). Chronic means “persisting over a long period of time.” satisfy the medical definition of chronic; and 3) it did not Dorland’s Illustrated Medical Dictionary 363 (30th ed. manifest, or reveal, itself over a period of time. Under a 2003). The DD Act does not define the term, but the Family straightforward reading of the statute, Bentley is covered. Leave and Medical Act defines a “chronic serious health condition” as one which “[c]ontinues over an extended period Nature of the Disability of time (including recurring episodes of a single underlying condition); and [is characterized by a] . . . period of incapacity The definition of developmental disability in the DD Act is which is permanent or long-term due to a condition for which framed in terms of a person’s functional limitations and does treatment may not be effective. . . . Examples include not refer to any specific diseases or causes. Earlier versions Alzheimer's, a severe stroke, or the terminal stages of a of the DD Act defined the term by a list of specific disease.” Perry v. Jaguar of Troy, 353 F.3d 510, 515 (6th conditions, such as mental retardation or cerebral palsy. Cir. 2003) (quoting 29 C.F.R. § 825.114(a)(2)). A “severe

2 3 This opinion refers to the appellees collective ly as “Wells.” Bruce Bentley’s brain injury is perm anent (42 U .S.C. § 150 02(8)(A )(iii) Arrison, the nursing home administrator, indicated that he was following and has resulted in more than three “substantial functional limitations” W ells’s instructions and does not obje ct per se to releasing B entley’s (subsection iv). Finally, B entley requ ires “lifelong” specialized and information. T herefore, W ells is de facto the sole appellee in this case. general care (subse ction v). No. 02-6221 Tenn. Protection & Advocacy 9 10 Tenn. Protection & Advocacy No. 02-6221 v. Wells, Esquire, et al. v. Wells, Esquire, et al.

stroke” is also a condition that comes on suddenly, with various legal contexts, consistently with the meaning of devastating consequences, meaning that a chronic condition obvious: e.g., “manifest injustice,” defined as “[a]n error in is not limited to those characterized by a slow and steady the trial court that is direct, obvious, and observable,” Black’s deterioration. The focus is on the prognosis for recovery, not Law Dictionary 974 (7th ed. 1999); “manifest necessity” is on the cause or onset of the medical disorder.4 defined as a “sudden and overwhelming emergency” that precludes completion of a trial. Id. at 975. Furthermore, a chronic condition can result from an outside agent: the Black Lung Benefits Act defines Wells argues that “manifest” means “revealed” and “pneumoconiosis,” the condition needed for an award of therefore refers exclusively to the exposure of something that benefits, as “a chronic dust disease of the lung and its already existed but was hidden. Bentley’s brain injury was sequelae, including respiratory and pulmonary impairments, not a condition that lay dormant, but rather was the instant arising out of coal mine employment.” 30 U.S.C. § 902(b) result of his collision in the truck, leading Wells to conclude (emphasis added). On one occasion, this circuit even that Bentley’s injury did not “manifest” itself, as the statute described a series of suicide attempts as a “chronic” health requires. Although “reveal” is one plausible meaning, it is problem. Williams v. Mehra, 135 F.3d 1105, 1109 (6th Cir. not the only one. This circuit has consistently used the term 1998) rev’d en banc, 186 F.3d 685 (6th Cir. 1999). “manifest” to mean “be apparent:” Am. Ship Bldg. Co. v. Dir., Therefore, neither Congress nor this circuit has limited its Office of Workers' Compensation Programs, United States understanding of a chronic medical problem to a long-term Dep’t of Labor, 865 F.2d 727, 732 (6th Cir. 1989) (stating a condition resulting from natural causes. It is undisputed that preexisting condition must have manifested itself either to the Bentley’s brain injury has resulted in permanent incapacity, employer through observation or to a doctor from a medical which would qualify it under the general understanding of the examination for the company to qualify for special fund term “chronic,” as used in § 15002(8)(A). disability payments due to subsequent injury); Abbott v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990) (stating that an Manifestation of the Disability impairment must be taken into consideration under the Medical-Vocational guidelines for determining disability, Bentley’s disability “manifested” itself, that is became even if it does not manifest itself as a limitation on strength) obvious, before age 22 (subsection ii). The dictionary defines (emphases added). Therefore, nothing in either the dictionary “manifest” as “[c]learly apparent to the sight or definition of “manifest,” the legal usage of the term, or the understanding; obvious” and “manifested” as “[t]o show or way that this circuit has used the word, suggests that it must demonstrate plainly.” American Heritage Dictionary 1064 refer to a condition that always existed and became obvious. (4th ed. 2000). Black’s Law Dictionary uses the term in We see no reason why “manifest” cannot just as easily be used to describe something newly created that is now visible. It simply is another way of saying that a condition is readily 4 W e construe the term “chronic” in the D D A ct in pari materia with observable. the FMLA, as both acts seek to protect those who have pressing medical needs and their families. Cf. Sho tz v. City o f Plan tation, Fla., 344 F.3d 1161, 1168 (11 th Cir. 2003) (drawing upon T itle VII, the Americans with Disabilities Act, and the Fair Labor Standards Act to construe the term “person” in the FM LA in confo rmity with o ther civil rights statutes). No. 02-6221 Tenn. Protection & Advocacy 11 12 Tenn. Protection & Advocacy No. 02-6221 v. Wells, Esquire, et al. v. Wells, Esquire, et al.

End point of the Developmental Period expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382(c)(3)(A). However, to Nor is age 22 a random cut-off point; it is an eligibility receive SSI disability payments for mental retardation requirement that resulted from policy, rather than medical,5 evidenced simply by a low IQ score, a claimant must judgments. In 1978, Congress revised the DD Act and raised demonstrate “a significantly subaverage general intellectual the eligibility age for assistance from 18 to 22 years. H.R. functioning with deficits in adaptive functioning initially Rep. No. 95-1188, at 8 (1978), reprinted in 1978 manifested during the developmental period; i.e., the evidence U.S.C.C.A.N. 7355, 7362. The initial objective was to demonstrates or supports onset of the impairment before age include everyone with a severe disability within the purview 22.” 20 CFR Pt. 404, Subpt. P, App. 1 § 12.05 (emphasis of the statute. Advocates for disabled children objected, added). This circuit has denied benefits to claimants who however, fearing that universal coverage would spread the could not demonstrate mental deficiency before age 22. available resources too thinly. Rehabilitation Amendments of Foster v. Halter, 279 F.3d 348, 354-55 (6th Cir. 2001) 1978: Hearings Before the Subcomm. on Human Resources (denying claim because Foster’s first IQ test was done when of the United States Senate, 95th Cong. 83, 113 (1978) she was 42 years old and therefore she could not demonstrate (testimony advocating that the Senate adopt the definition of that her subaverage intellectual functioning manifested itself development disability drafted by a task force that before age 22); Brown v. Sec’y of Health and Human Servs., recommended an eligibility cut off at age 22). Therefore, the 948 F.2d 268, 271 (6th Cir. 1991) (remanding to determine if eligibility age of 22 represents the limitation that Congress the claimant's mental impairment was “‘manifested during determined would provide the optimal balance between a [claimant's] developmental period’ or rather [was] a partial general commitment to helping the disabled and funding consequence of claimant's history of heavy alcohol use after realities. Restricting eligibility further through the cramped the age of twenty-two”). We accept the eligibility provision reading of the statute that Wells proposes would ignore both in the DD Act at face value in order to be consistent with our the plain meaning of the legislation and its intent. interpretation of the same age requirement in the context of other public welfare legislation. In adjudicating disability claims, we must respect the eligibility requirements established by Congress. For Congress has determined that it is appropriate to consider instance, the Supplemental Security Income (SSI) program a person’s “developmental period” to extend to age 22 to considers someone disabled “if he is unable to engage in any assess eligibility for government assistance. However natural substantial gainful activity by reason of any medically it would be to consider a 20-year old truck driver as a fully determinable physical or mental impairment which can be grown adult, it is well-settled law that when a statutory expected to result in death or which has lasted or can be definition contradicts the everyday meaning of a word, the statutory language generally controls: judges should “construe legislation as it is written, not as it might be read by 5 a layman.” Meese v. Keene, 481 U.S. 465, 485 (1987). Only See, e.g., American A cademy o f Child a nd A dolescent P sychiatry, when following the literal language of the statute would lead Practice Parameters for the Assessment and Treatment of Children, to “an interpretation which is inconsistent with the legislative Ado lescents, and Adults with Mental R etard ation and Como rbid Mental Disord ers, 1999 (explaining that “deve lopm ental disability is actually not intent or to an absurd result” can a court modify the meaning a medical term but a ‘legislative/legal co ncep t’”). of the statutory language. Appleton v. First Nat’l Bank of No. 02-6221 Tenn. Protection & Advocacy 13 14 Tenn. Protection & Advocacy No. 02-6221 v. Wells, Esquire, et al. v. Wells, Esquire, et al.

Ohio, 62 F.3d 791, 801 (6th Cir. 1995). Congress may not participate in and contribute to their communities have had truck drivers with brain injuries in mind when it through full integration . . .; [but that] (5) individuals drafted the legislation, but Bentley easily falls into the with developmental disabilities are at greater risk than category of people whom Congress intended to protect. the general population of abuse, neglect, financial and Cleland v. Bronson Health Care Group, 917 F.2d 266, 270 sexual exploitation, and the violation of their legal and (6th Cir. 1990) (clarifying that if the plain language of a human rights. statute leads to a broader result than Congress might have anticipated, it is still not automatically tantamount to an 42 U.S.C. § 15001(a)(1), (5). The statute contrasts the absurd result). We have no basis on which to second guess disabled with the general population, but does not distinguish the language that Congress used because applying the statute among the different categories of disability, because its to Bentley neither contradicts the legislative intent nor purpose is to erase all distinctions made because of handicap. produces an absurd result. Narrowing the definition of “developmental disability” to prevent TP&A from assisting Bentley in achieving greater The district court erred in inferring a requirement that the personal autonomy contravenes the basic intent of the statute. disability result from natural causes because reference to The declaration that it is a “goal of the nation” that people injury is lacking in the statute. It is axiomatic that the with disabilities “live free of abuse, neglect, financial and statutory definition of the term excludes unstated meanings of sexual exploitation, and violations of their legal and human that term. Colautti v. Franklin, 439 U.S. 379, 392 n.10 rights,” 42 U.S.C. § 15001(a)(16)(F), confirms the (1979). The Supreme Court reiterated this rule last term, conclusion that the cause of the disability is immaterial for the rejecting the plaintiff’s attempt to read a requirement for purposes of determining eligibility under the DD Act. heightened burden of proof for a “mixed motive” jury instruction into the 1991 Civil Rights Act. Desert Palace, III Inc. v. Costa, 539 U.S. 90 (2003). In a unanimous opinion, the Court dismissed the plaintiff’s interpretation because The district court bolstered its reading of the statute to “[o]n its face, the statute does not mention, much less require, exclude Bentley from its protection by pointing to the that a plaintiff make a heightened showing through direct enactment in 2000 of the “State Grants for Protection and evidence.” Id. at 99. Advocacy Services,” which authorizes the Secretary of Health and Human Services to make grants to agencies such as In this case, the statute does not distinguish between TP&A to provide services to individuals with traumatic brain disabilities caused by injury and those that result from organic injuries. 42 U.S.C. § 300d-53. The statute’s general defects, but emphasizes improving the condition of all provision states: citizens with disabilities by delivering various kinds of assistance: The Secretary, acting through the Administrator of the Health Resources and Services Administration (referred (1) disability is a natural part of human experience that to in this section as the “Administrator”), shall make does not diminish the right of individuals with grants to protection and advocacy systems for the developmental disabilities to live independently, to exert purpose of enabling such systems to provide services to control and choice over their own lives, and to fully individuals with traumatic brain injury. No. 02-6221 Tenn. Protection & Advocacy 15 16 Tenn. Protection & Advocacy No. 02-6221 v. Wells, Esquire, et al. v. Wells, Esquire, et al.

42 U.S.C. § 300d-53. The rest of the section describes guidelines, all of which lack the force of law, do not warrant funding mechanisms. Therefore, the statute is most easily Chevron-style deference”). Furthermore, we are forbidden to read as a funding earmark to support those with traumatic defer to agency guidelines that contradict the plain meaning brain injury. Its language does not shed any light on whether of the statute. Sutton v. United Air Lines, 527 U.S. 471, 482 TP&A should have access to Bentley’s records under the (1999) (holding that the EEOC guidelines reflected an current statutory regime because it does not address authority impermissible interpretation of the Americans with to serve those with brain injuries under the DD Act. The Disabilities Act and therefore did not warrant judicial language is too sketchy to support the district court’s deference). conclusion that it is “highly probative of Congress’ intention as [to] the scope of Section 15002(8) [the statutory definition The statement in the annual report may reflect the reality of developmental disability].” Mem. Op. at 4. that agencies such as TP&A have generally not, as a matter of fact, included people with traumatic brain injuries in their The Protection and Advocacy System is the network of programs. It cannot, however, provide a basis to preclude congressionally mandated advocacy agencies, of which such individuals from receiving services under the DD Act TP&A is a member. The 2001 annual report described the because, on its face, the statute’s definition of “development § 300d-53 legislation as a program “for [a] new population in disability” encompasses individuals, such as Bentley, who special need of our services — persons with traumatic brain have suffered traumatic brain injury. injury.”6 Mem. Op. at 5. A court should consider any agency publication because it reflects expertise in the subject matter. The case law is not helpful in resolving this question of United States v. Mead Corp., 533 U.S. 218, 234-35 (2001). statutory construction. TP&A is correct that federal courts Nevertheless, this court is not bound by the annual report’s have generally interpreted 42 U.S.C. § 15043 to allow the assertion that those with traumatic brain injuries constitute a P&A system access to client records. Wisconsin Coalition for “new population” of clients. Christensen v. Harris County, Advocacy v. Czaplewski, 131 F. Supp. 2d 1039 (E.D. Wis. 529 U.S. 576, 587 (2000) (holding that interpretations “in 2001) (holding right of access to patient records under the DD policy statements, agency manuals, and enforcement Act preempts more restrictive state regulations); Iowa Protection & Advocacy Services v. Rasmussen, 206 F.R.D. 630 (S.D. Iowa 2001) (same). Wells has not provided any case law that prevents us from following the general trend of 6 The parties dispute the lega l significance, if any, of this document: allowing organizations in the P&A system liberal access to TP&A argues that it is the wo rk of a private organization that has the patient records. same weight as “commentary by a co lumnist in a trade journal.” Appellant Br. at 34. W ells argues in his brief that it is a “federally- Wells properly challenges the cases that TP&A cites in its mandated” report and therefore authoritative. Appellee Br. at 8. The report itself was prepared by the Advocacy Training and Technical brief for the proposition that traumatic brain injury is covered Assistance Center, which receives funding from three government under the DD Act because the cited precedent addresses the agencies. Because the governm ent paid for the publication, and it does legal rights of those with traumatic brain injuries under not bear a disclaimer divorcing the sponsoring agencies from the opinions different statutes, e.g., the Federal Tort Claims Act. See expressed in the report, we consider the extent to which we should be Colleen v. United States, 843 F.2d 329 (9th Cir. 1987). guided by the report’s characterization of those with traum atic bra in injuries as a “new” populatio n under the D D A ct. Furthermore, the court in each cited case assumed that the No. 02-6221 Tenn. Protection & Advocacy 17 18 Tenn. Protection & Advocacy No. 02-6221 v. Wells, Esquire, et al. v. Wells, Esquire, et al.

disability is covered under the relevant statute. See, e.g., _____________ Blackmon ex rel. Blackmon v. Springfield R-XII School District, 198 F.3d 648 (8th Cir. 1999) (noting without DISSENT elaboration that student with a bilateral brain injury was _____________ covered under the Individuals with Disabilities Education Act). However, Wells did not cite any case in which a court MARTHA CRAIG DAUGHTREY, Circuit Judge, held that traumatic brain injury is not covered under the DD dissenting. In construing statutes, we are frequently Act. Since Bentley can fulfill the five requirements in the admonished to avoid interpretations that will produce absurd statute and construing the statute to include his kind of injury results. In stretching the meaning, intuitive or as statutorily furthers the legislative intent of the Act, the district court defined, of the term “developmental disability” to cover the erred in finding that it did not apply to him. effect of a traumatic brain injury suffered spontaneously by a fully-functioning 20-year-old, however, the majority in this IV case has failed to heed the admonition. To demonstrate the absurdity of this interpretation of the statute at issue here, one We therefore REVERSE the district court’s grant of need only ask: Why would Congress provide protection under summary judgment and REMAND so that the district court the Developmental Disabilities Assistance and Bill of Rights may consider the release of Mr. Bentley’s records to TP&A Act, 42 U.S.C. § 15043, to an adult who suffers such an under the standards of the DD Act. injury one day short of his or her twenty-second birthday, but not to the same person injured in exactly the same manner 24 hours later? The answer is, of course, as the district judge held, that the Act was never meant to apply to individuals in Martin Bentley’s situation – the holder of a GED, who served two years in the United States Army and then became a long- distance truck driver, and who, according to the majority, retains the “‘adequate cognitive ability’ to speak for himself . . . and express[ ] his wishes in an ‘unequivocal consistent manner’.” It is not surprising that Congress initially attempted to describe the term “developmental disability” in terms of a diagnosis but then abandoned the effort. The term is a contemporary euphemism for “mental retardation,” which itself came into use in an effort to erase the stigma attached to much cruder descriptive terms used in the early part of the last century and before, terms such as “moron” (used to describe those with intelligence quotients ranging from 50-69), “imbecile” (having an IQ of 25-50), “idiot” (having an IQ under 25), and the like. No. 02-6221 Tenn. Protection & Advocacy 19 20 Tenn. Protection & Advocacy No. 02-6221 v. Wells, Esquire, et al. v. Wells, Esquire, et al.

But there are many causes of mental retardation, and the best of intentions, I would affirm the district court for the disability can (but does not necessarily) accompany other reasons set out in its memorandum opinion and deny relief. conditions, such as cerebral palsy and autism – hence the effort to describe developmental disability in terms of function, rather than diagnosis. As the district court recognized, however, the key concept here is not “disability,” from which Mr. Bentley undoubtedly suffers. The key, rather, is the descriptive term “developmental,” referring obviously to an impairment that “manifests” itself over time and impedes an individual’s progress from childhood to post- adolescence and into adulthood, equipped with what are recognized as adequate skills to live independently and productively. Mr. Bentley was living independently, and presumably productively, at the time he became the victim of an unexpected and debilitating accident, one which unfortunately befalls other adults all too frequently but which does not implicate a potential for the denial of civil rights such as the statute in question here was designed to protect against. Perhaps the problem here is merely poor legislative drafting, an impediment we sometimes face in trying rationally to construe statutes conceived by special interest groups, drafted by committees working under pressure to reach political consensus, and thereafter amended and made increasingly complex. If so, the majority has compounded the problem by reading a badly drafted statute too literally and has thereby reached what I believe is a result that Congress did not intend and would never have envisioned, had it been prescient enough to foresee the application of this civil rights statute to a situation such as the one before us. This seems obvious from the fact that this case presents itself as one of first impression, suggesting that the legislation has never been understood to apply to victims of sudden traumatic injury, regardless of age. Despite my sympathy for Mr. Bentley’s disabled condition and my conviction that the plaintiff here is acting with the