Disability Rights New Jersey Home Page

DRNJ Sues State Over Division of Developmental Disabilities Residential Waiting List

DRNJ 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.

The lawsuit 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.

On June 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.

On July 20, 2009, the Court denied the State's motion to dismiss. Click here to access a copy of the Court's decision.

The U.S. Department of Justice (DOJ) has filed a brief in support of DRNJ’s Olmstead litigation against the Division of Developmental Disabilities. Click here for a copy of DOJ’s press release and click here to access a copy of the DOJ brief.

DRNJ Files Complaint Regarding Involuntary Administration of Medication

DRNJ, in collaboration with Kirkland & Ellis, has filed a complaint in U.S. District Court in New Jersey against the Departments of Human Services and Health and Senior Services regarding the involuntary administration of medication to psychiatric patients in New Jersey's public and private hospitals. The lawsuit challenges the currrent implementation of procedures put in place in the state-operated psychiatric hospitals in response to the litigation in Rennie v Klein (1978-1983) and the lack of any formal procedures or oversight in the other hospitals. The lawsuit alleges that the current procedures, which do not provide for an independent review in the event of a challenge to the need for involuntary medication no longer conforms to today's understanding of patient rights and good clinical practice.

Click here to access a copy of the complaint.

Click here to access a copy of the opinion denying protective order.

Click here to access a copy of the opinion regarding motion to dismiss.

to access a copy of the opinion denying Plaintiff’s Motion for a Protective Order that sternly admonishes the State to instruct its staff not to intimidate hospital patients who wish to testify regarding their experiences being involuntarily medicated.

Court Opinion denying Plaintiff’s Motion for a Protective Order sternly admonishes State to instruct staff not to intimidate hospital patients who wish to testify regarding their experiences being involuntarily medicated

The court wrote the following; "The Court does not dismiss the possibility that judicial intervention, including a protective order, preliminary injunction, or sanctions may be later required if evidence of harassment or intimidation is found. To be clear, even some of the conduct that Defendants already admit is clearly improper.3 Counsel would be advised to ensure that physicians and staff who may have access to patient files or occasion to discuss this litigation with patients are well informed as to the ethical duties of litigants and the severe penalties associated with witness tampering and/or spoliation. Plaintiff is entitled to a fair hearing, and the Court is obligated to protect the integrity of that process."

Defendants’ Motion to Dismiss the Case is denied.

In upholding DRNJ’s argument that the current practice of forcibly administering medication to psychiatric patients violates the ADA and the Rehabilitation Act the court wrote the following; "Plaintiff alleges that its constituents have been denied the opportunity to meaningfully participate in the treatment offered by state facilities because of their mental illness. (Complaint ¶¶ 218, 225). Plaintiff further alleges that other medical patients under the care and supervision of the state, such as patients without mental illness, prisoners with mental illness, and individuals with both mental illness and developmental illness are accorded this ability, resulting in superior treatment and greater access to the benefits provided by the state program. Id. at 205. Defendants have offered no argument as to why this differential treatment does not constitute a denial of benefits by reason of disability. Consequently, Plaintiff’s claims under the ADA and RA will be permitted to proceed."

Motion To Dismiss State’s Affirmative Defenses Granted in it’s entirety, and DRNJ awarded attorney fees

DRNJ filed a Motion to Dismiss 33 Affirmative Defenses filed by the State. In so doing DRNJ pointed out that many of the defenses were irrelevant to the case, and had already been rejected by the court and were a waste of time. Agreeing with DRNJ the court dismissed all 33 Affirmative Defenses, awarded attorney fees to DRNJ, and wrote the following; "If Defendant wishes to appeal a final judgment of this Court, she has the right to do so. She may raise any legal or procedural challenges that she believes appropriate. Until then however she will not be permitted to waste the time and attention of the parties or the Court by continuing to reassert legally groundless defenses that have already been rejected."

DRNJ Joins Amicus Brief in Litigation Disputing Funding for Special Education

DRNJ, 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.

Governor 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.

Joining 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.

Click here to access a copy of the amicus curiae brief.

Lawsuit Charges State with Illegal and Unnecessary Segregation of Residents in Psychiatric Institutions

On April 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.

Nearly 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.

According 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.”

Carol 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.

Likewise, 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.

Sarah 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."

In their 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 constitutional laws.

DRNJ 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.

Subsequent 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.

The response 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.

Click here to access a copy of the settlement agreement.

DRNJ Sues New Jersey Department of Education on Behalf of Children with Disabilities

DRNJ, 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.

"Countless 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."

Sarah 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.

In November, plaintiffs filed a brief in opposition to the defendent's motion to dismiss.

DRNJ 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.

To access the notices and disclosure forms, please click here for English or click here for Spanish.

DRNJ's Olmstead Case Against the State of New Jersey

On May 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….”

Case Developments...

An important 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.

Summary 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.

Notwithstanding 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.

Click here to access a copy of Judge Thompson's decision on the motions for summary judgment in the DD Olmstead litigation.