Complaint Regarding Involuntary Administration of Medication
New Jersey has undermined the dignity and rights of the people in
its care by forcibly administering mind-altering psychotropic drugs
to legally competent patients. However, no other group of people
within the state can be forcibly medicated without having access
to a court hearing. This blatant discrimination against involuntarily-committed
patients with mental illness violates both the Americans with Disabilities
Act (“ADA”) and the Rehabilitation Act of 1972 (“Rehabilitation
Act” or “RA”) as well as the Constitution of the United States.
2012 – in the midst of this litigation – Defendants implemented
a new involuntary medication policy. It is undisputed that this
policy does not provide access to counsel and does not provide a
court hearing before a patient can be medicated against her will.
Though the policy is only a few months old, already, the minimal
rights afforded to patients on paper are being abridged in practice.
Whatever powers the state may have, involuntary mind control must
not be one of them, absent extraordinary circumstances.
put, Defendants’ inadequate, discriminatory practices cannot pass
muster under the Constitution or federal anti-discrimination laws.
Forcing powerful psychotropic drugs on competent patients who have
declined to give informed consent is a tremendous invasion of patients’
rights and should not occur without oversight from a court and without
the assistance of counsel.
28, 2012 both the State of New Jersey and Disability Rights New
Jersey filed competing motions for summary judgment with the court.
The State has asked that the court dismiss DRNJ’s case, and DRNJ
has asked the court to declare the State of New Jersey’s practice
of involuntarily medicating people without a hearing and a lawyer
to be illegal.
of both the State and DRNJ making those arguments are listed, so
too is DRNJ’s Statement of Undisputed Facts. DRNJ's
Statement of Undisputed Facts
of NJ Summary Judgement DRNJ
On September 27, 2013,
the Court ruled that the state could not use the current process
to medicate people against their will if they were on CEPP status.
CEPP status means that a patient is ready for discharge but has
not left the hospital because the state has not found a suitable
community placement for the individual.
However, if a patient
is not on CEPP status, the state can continue to use the current
method of an internal hearing and medicate psychiatric patients
against their will. The Court then issued an injunction to make
the state cease it's practice of forcibly medicating CEPP patients.
DRNJ filed an appeal
on October 25, 2013 with the Court of Appeals for the Third Circuit
appealing that part of the lower court's order that permits the
state to involuntarily medicate patients who do not have CEPP status.
A copy of our notice of appeal is also included. Notice
Sues State Over Division of Developmental Disabilities Residential
and Lowenstien Sandler, a prominent NJ law firm, filed a complaint
in the U.S. District Court against the Department of Human Services,
saying 8,000 people with developmental disabilities have had their
rights violated because they have been waiting too long to move
into Division-sponsored community housing.
alleges the state is failing to meet its legal responsibility to
provide housing for people who want or need to live outside of their
family homes. The Department has established a waiting list, but
few ever leave it unless a parent or other caretaker becomes ill
or dies, the lawsuit said.
29, 2009 the U.S. Department of Justice (“DOJ”) filed
a brief in DRNJ’s waiting list case against the State of NJ.
The DOJ’s brief rebutted the State’s claim that the
Americans with Disabilities Act and the Rehab Act were not constitutionally
valid, and that DRNJ was attempting to apply the rights established
under Olmstead in an impermissible manner. Click
here to access a copy of the DOJ brief.
20, 2009, the Court denied the State's motion to dismiss. Click
here to access a copy of the Court's decision.
Department of Justice (DOJ) has filed a brief in support of DRNJ’s
Olmstead litigation against the Division of Developmental Disabilities.
here for a copy of DOJ’s press release and click
here to access a copy of the DOJ brief.
five years of litigation, DRNJ settled this case and its Olmstead
case on favorable terms. The settlement agreement for both cases
can be found here.
Olmstead Case Against the State of New Jersey
24, 2010 the Department of Justice filed a Motion to Intervene in
DRNJ's Olmstead case against the State for its failure to move people
into the community.
In filing its brief in
support of DRNJ the Dept. of Justice wrote the following “[The]
undisputed facts … reveal that the State provides services to far
too many individuals with disabilities in the most segregated setting
imaginable – its large, congregate institutions. Indeed, there are
admittedly hundreds of institutionalized residents (at least 2,303
as of May 2007) who meet ADA and Olmstead criteria for community
integration. Yet, these qualified and unopposed residents remain
inappropriately segregated in the State’s institutional facilities….”
here to access the brief by the Department of Justice.
hearing occurred in federal court on Wednesday, September 22, 2010
at the U.S. Courthouse in Trenton, NJ. At that hearing the law firm
of Pepper Hamilton appearing on behalf of DRNJ was joined by the
Principal Deputy Assistant Attorney General of the Civil Rights
Division of the U.S. Department of Justice in arguing for summary
judgment in an Olmstead case filed by DRNJ.
Judgment is granted to a party if the facts are not in dispute and
if the facts therefore dictate that one side or the other should
prevail in the case. DRNJ filed a Motion for Summary Judgment because
the Division was not disputing the fact that there are hundreds
of people confined to its seven developmental centers who do not
belong there and are not likely to be discharged anytime soon, nor
is the Division disputing the fact that it is still actively admitting
people to its developmental centers because it has nowhere else
to place people, including people who have chosen to receive services
in the community. The Division’s defense is that it has no
money to develop community placements.
the Division’s claim of a lack of money, DRNJ claims, and
the Division does not dispute, that it costs over twice as much
money to place an individual in a developmental center instead of
caring for them in the community. Furthermore, DRNJ claims that
it is a violation of the ADA to keep people in segregated institutions,
and that the ADA does not make an exception for a state that claims
a lack of funds; in short, civil liberties are not dependent on
whether or not a state is running a deficit.
here to access a copy of Judge Thompson's decision on
the motions for summary judgment in the DD Olmstead litigation.
five years of litigation, DRNJ settled this case and its waiting
list case on favorable terms. The settlement agreement for both
cases can be found
DRNJ Joins Amicus
Brief in Litigation Disputing Funding for Special Education
represented by White and Case, filed an amicus curiae (friend of
the court) brief with the New Jersey Supreme Court on behalf of
itself and seven other organizations in support of litigation against
the State of New Jersey contesting the amount of funding in the
new FY 2011 state budget for special education. The original litigation,
begun in 1981 and now known as Abbott v. Burke, established a right
under New Jersey’s constitution to a “thorough and efficient”
education. Over the last three decades there have been numerous
legal contests and court decisions involving the funding of educational
programs, primarily in the state’s poorest districts, known
as Abbot districts. In 2008, Governor Corzine proposed a revised
school funding formula that also changed the funding of special
education in each of the local districts. Instead of allocating
special education funding based on the actual number of students
in need of special education services in each district, the new
funding formula assumed that every district had the same percentage
of students (about 14.6%) using special education services. In a
decision in 2009, the NJ Supreme Court held that the new funding
formula, including the special education provisions, did not violate
New Jersey’s constitution as long as that formula was funded
at the proposed level.
Christie’s proposed FY 2011 budget, while still applying Governor
Corzine’s funding formula, significantly reduced the level
of funding for schools, including a reduction of some $300 million
for special education programs. The Education Law Center is asking
the NJ Supreme Court to declare that the funding reductions violate
the NJ constitution’s “thorough and efficient”
requirement. The amicus brief argues that the funding reduction
for special education violates the Court’s 2009 decision that
expected the 2008 funding formula to be fully funded. The brief
also argues that the funding reduction violates the federal Individuals
with Disabilities Education Act (IDEA) by jeopardizing the statutory
right of students with disabilities to a free and appropriate public
education. IDEA conditions the receipt of federal funds for special
education on the state’s maintaining a level of state funding
for special education programs.
DRNJ on the amicus brief are the Alliance for the Betterment of
Citizens with Disabilities, the Cherry Hill Special Education Parent
Teacher Association, the New Jersey Down Syndrome Government Affairs
Committee, the New Jersey Speech-Language-Hearing Association, the
Special Education Clinic at Rutgers University School of Law-Newark,
the Special Education Leadership Council of New Jersey, and the
Statewide Parent Advocacy Network.
here to access a copy of the amicus curiae brief.
Charges State with Illegal and Unnecessary Segregation of Residents
in Psychiatric Institutions
5, 2005, Disability Rights New Jersey filed a lawsuit
in federal district court against James Davy, Commissioner of the
Department of Human Services for the State of New Jersey. The lawsuit
seeks the release of hundreds of New Jersey residents from unnecessary
confinement in state psychiatric institutions.
half of all individuals in state psychiatric hospitals remain confined
needlessly because the State of New Jersey has failed to develop
suitable community residences and programs to support their return
to the community. The Conditional Extension Pending Placement (CEPP)
status was created by the State Supreme Court in the 1983 S.L. case
[In re S.L., 94 N.J. 128 (1983)] to give the State time to develop
community placements before discharging individuals. Now, however,
CEPP status is used by the State to retain those individuals long
past their need for hospitalization.
to Emmett Dwyer, Director of Litigation for DRNJ, “The State
has for far too long failed to live up to its obligations under
the Americans with Disabilities Act (ADA) as interpreted by the
United States Supreme Court. The State continues to retain large
numbers of individuals in locked and dangerous facilities while
simultaneously failing to plan for their discharge and transfer
into the community with appropriate supports. The time these individuals
have lost and continue to lose in institutions can never be regained.
Their continued confinement long after a court has determined that
they are no longer a danger to themselves or others constitutes
an egregious violation of their rights.”
C., a 60 year old woman who was committed to a state psychiatric
hospital in 1993, is but one of hundreds who was illegally confined.
Less than one month after her commitment, the court determined that
Carol could be discharged. Twelve years later she remained hospitalized
despite her desire to return to the community. For years she remained
hospitalized on a restrictive and volatile ward where she endured
assaults from other patients. Such assaults frequently required
emergency medical treatment.
Brian B., a 38 year old man has been hospitalized since 2003 on
CEPP status despite the judgment of both the court and his doctor
that he is ready for discharge. Both Brian and his mother wish for
his return to the community where he can enjoy his interests in
music and cooking. But because the State has failed to find a community
placement, Brian remains hospitalized on an extremely violent ward
where his safety and security are in jeopardy.
Mitchell, DRNJ’s Former Executive Director/President, states
that, “We applaud Acting Governor Codey for his long time
commitment to addressing the needs and concerns of people with mental
illness. The work of the Mental Health Task Force is certainly further
evidence of this. But we read nothing in the Task Force’s
recently released report to suggest that the rights and needs of
the individuals we represent in this lawsuit will be addressed anytime
soon. New Jersey has long been on notice about its unnecessary confinement
of large numbers of individuals on CEPP status, without developing
the placements and supports necessary for their transfer to less
restrictive community placements. The State is in violation of both
the letter and the spirit of the law we know as the Americans with
Disabilities Act. The U.S. Supreme Court in the Olmstead v. L.C.
case, 527 U.S. 581 (1999), discusses such unnecessary segregation
as illegal discrimination based on disability. The individuals on
CEPP status that the State has kept waiting in institutions long
past their need for such restrictive settings deserve more than
recognition that the CEPP situation is a problem. They deserve an
immediate plan that details, within a reasonable time frame, when
they can expect to return to the community."
lawsuit, DRNJ charges that the State not only ignores the mandates
of Olmstead and the ADA, but also violates other state and federal
laws that protect the rights of individuals with mental disabilities,
including Section 504 of the Rehabilitation Act, the New Jersey
Patients’ Bill of Rights, and fundamental state and federal
seeks a court order requiring the State to provide individuals on
CEPP status with services in the most integrated settings appropriate
to their needs, to limit CEPP status to 60 days, and to provide
monthly reports to DRNJ detailing the progress of individuals on
CEPP status towards return to the community.
to filing the lawsuit the Judge David L. Bazelon Center for Mental
Health Law based in Washington. D.C., and Pepper Hamilton, LLP,
a private law firm based in Philadelphia with offices in Princeton,
NJ joined DRNJ as co-counsel.
from the State of New Jersey to the law suit was to file a Motion
to Dismiss claiming that DRNJ was not a proper party
to bring the law suit. DRNJ and co-counsel filed an Objection.
The court ruled in favor
of DRNJ finding that DRNJ was a proper plaintiff. The State of New
Jersey then attempted to prevent
attorneys from the Bazelon Center from assisting DRNJ in the case.
DRNJ and Pepper Hamilton responded
to the State's objection. Once again the court ruled
in favor of DRNJ finding that there was no basis to exclude the
attorneys from assisting DRNJ in the case. The State has answered
the complaint denying most of the allegations and raising some defenses.
here to access a copy of the settlement agreement.
Sues New Jersey Department of Education on Behalf of Children with
along with Lowenstein Sandler PC, the Education Law Center, and
the Hackensack law firm Loughlin & Latimer filed a lawsuit
on June 27, 2007, in the United States District Court for the District
of New Jersey against the New Jersey Department of Education to
enforce laws governing the education of children with disabilities.
Plaintiffs in the case are DRNJ, the Education Law Center, the Statewide
Parent Advocacy Network of New Jersey and The Arc of New Jersey
on behalf of children with disabilities across the state.
children with disabilities in New Jersey have been unnecessarily
segregated and denied their right to an inclusive education, to
the maximum extent appropriate, with children who do not have disabilities,"
said lead attorney David L. Harris, who chairs Lowenstein Sandler’s
Litigation Department. "The State’s Performance Plan
holds little promise for redressing this situation within the educational
lifetime of today’s students."
W. Mitchell, Former Executive Director of DRNJ added that New Jersey
has been cited repeatedly by the U.S. Department of Education for
its failure to implement the Individuals with Disabilities Education
Act. "This litigation is prompted by the State's failure to
step up to the plate and take this issue on with the resolve and
attention that it deserves," she said. "With few exceptions
these deficiencies are the norm throughout New Jersey's 640 plus
school districts due to lack of enforcement of the special education
mandate to provide students with disabilities a 'free and appropriate
public education' in the 'least restrictive environment' ,"
said special education attorney Michaelene Loughlin of the law firm
of Loughlin & Latimer.
plaintiffs filed a brief
in opposition to the defendent's motion to dismiss.
continues to litigate the case of Disability Rights New Jersey v.
New Jersey Department of Education which seeks to ensure that students
with disabilities in New Jersey are educated in the "least
restrictive environment." Pursuant to a Court Order in the
case, DRNJ is posting a "Notice of Disclosure of Student Records"
in English and Spanish to allow DRNJ and its co-plaintiffs -- Education
Law Center, The ARC of New Jersey and the Statewide Parent Advocacy
Network -- to obtain relevant documents.
the notices and disclosure forms, please click
here for English or click
here for Spanish.
years of litigation, DRNJ settled this case. The settlement agreement
can be found here.