Opinion
CIVIL ACTION NO. 1:15-CV-03372-AT
04-25-2016
Georgia Advocacy Office, Inc., Plaintiff, v. Clyde L. Reese, III, in his official Capacity as Commissioner of the Georgia Department of Community Health, Defendant.
Joshua H. Norris, Katherine Leigh D'Ambrosio, Georgia Advocacy Office, for Plaintiff Calandra A. Harps, State of Georgia Law Department, for Defendant.
Joshua H. Norris, Katherine Leigh D'Ambrosio, Georgia Advocacy Office, for Plaintiff
Calandra A. Harps, State of Georgia Law Department, for Defendant.
ORDER
Amy Totenberg, United States District Judge
Plaintiff, Georgia Advocacy Office, Inc. ("GAO") initiated this action after the Georgia Health Facility Regulation Division ("HFR") denied Plaintiff's request for records relating to alleged incidents of abuse and neglect at skilled nursing facilities in the state. GAO's Complaint [Doc 1] seeks declaratory and injunctive relief under 42 U.S.C. § 1983 for Defendant's alleged violations of its rights to conduct investigations and access records of individuals with disabilities pursuant to the Developmental Disabilities Assistance and Bill of Rights Act of 2000 ("DD Act"), 42 U.S.C. §§ 15001 et seq. ; the Protection and Advocacy for Individuals with Mental Illness ("PAIMI") Act, 42 U.S.C. §§ 10801 et seq. ; and the Protection and Advocacy of Individual Rights ("PAIR") Program of the Rehabilitation Act, 29 U.S.C. § 794e.
Defendant filed a Motion to Dismiss [Doc. 4] Plaintiff's Complaint, arguing that: (1) Plaintiff has failed to state a claim upon which relief can be granted because federal regulations prohibit HFR from releasing the requested information, and (2) Plaintiff failed to join the federal Centers for Medicare and Medicaid Services ("CMS") as an indispensible party in violation of Federal Rule of Civil Procedure 19(a)(1).
I. FACTUAL BACKGROUND
Plaintiff, GAO is a private, non-profit Georgia corporation that provides protection and advocacy services to individuals with disabilities. (Compl. ¶ 6.) GAO alleges that it operates as Georgia's designated protection and advocacy system ("P&A") for protecting the rights of individuals with disabilities pursuant to federal legislation collectively referred to as the Protection and Advocacy Acts ("P&A Acts"). (Id. ) The P&A Acts include the Developmental Disabilities Assistance and Bill of Rights Act of 2000 ("DD Act"), 42 U.S.C. §§ 15001 et seq. ; the Protection and Advocacy for Individuals with Mental Illness ("PAIMI") Act, 42 U.S.C. §§ 10801 et seq. ; and the Protection and Advocacy of Individual Rights ("PAIR") Program of the Rehabilitation Act, 29 U.S.C. § 794e. (Id. ) According to the Complaint, the P&A Acts vest GAO with "the authority to investigate specific incidents of abuse and neglect and to conduct monitoring activities to protect the rights and safety of individuals with disabilities." (Id. ¶ 7.) GAO further alleges that as a P&A, it has "broad federal authority" to access records of individuals with disabilities pursuant to 42 U.S.C. § 10805(a)(4), 42 U.S.C. § 15043(a)(2)(I)-(J), and 29 U.S.C. § 794e(f)(2). (Id. )
HFR, a division of the Georgia Department of Community Health ("DCH"), is a state licensing and certification agency responsible for the oversight of various health care facilities and services in the state of Georgia. (Id. ¶ 9.) GAO alleges that HFR—through a contract with CMS—serves as Georgia's state survey agency for the investigation of complaints or incidents at skilled nursing facilities in the state. (Id. ) The Defendant in this case, Clyde L. Reese III, Esq., is sued in his official capacity as the Commissioner of the DCH. (Id. ¶ 8.)
GAO initiated this action after HFR denied GAO's requests for investigatory records related to the alleged abuse and neglect of two individuals with disabilities at three skilled nursing facilities in Georgia. (Id. ¶¶ 17, 20-24, 28-31.) GAO made its first request for records from HFR on July 27, 2015 after receiving information that a person with a disability, identified in the Complaint as "R.," had been sexually assaulted at Pruitt Health-Eastside, a skilled nursing facility in Macon, Georgia. (Id. ¶¶ 17, 20.) Specifically, GAO sent a letter to HFR requesting investigatory records related to R.'s assault. (Id. ¶ 20.) HFR denied the request on July 29, 2015. (Id. ¶ 21.) GAO further alleges that on July 30, 2015, it sent a subsequent request to HFR's legal officer, clarifying its access authority and entitlement to R.'s records under the P&A Acts. (Id. ¶ 22.) HFR denied this request on August 6, 2015. (Id. ¶ 23.)
GOA alleges that R. is a person with a disability who is eligible for GAO's protection and advocacy services pursuant to 29 U.S.C. § 794e(a)(1). (Compl. ¶ 18.) In addition, GAO alleges that R. is capable of authorizing access to her records and did authorize GAO to have access to her records pursuant to the P&A Acts. Id.
GAO does not plead any facts indicating that HFR provided a reason for its denial of GAO's records requests.
GAO made its second records request to HFR on August 10, 2015. Before making this request, GAO received information that Pinehill Nursing Center, a skilled nursing facility in Byromville, Georgia, and Miona Geriatric and Dementia Center, a skilled nursing facility in Ideal, Georgia, caused physical injury to an individual with physical disabilities, identified in the Complaint as "G.," by failing to provide G. with an appropriate wheelchair. (Id. ¶¶ 24-25.) GAO filed a complaint regarding G.'s injuries with the federal Centers for Medicare and Medicaid Services ("CMS"). (Id. ¶ 27.) According to GAO, CMS delegated the investigation of the complaint to HFR. (Id. ) GAO's August 10, 2015 records request sought access to records related to HFR's investigations of Pinehill Nursing Center and Miona Geriatric and Dementia Center arising out of G.'s injuries. (Id. ¶ 29.) HFR denied GAO's request on August 12, 2015. (Id. ¶ 30.)
GOA alleges that G. is a person with a disability who is eligible for GAO's protection and advocacy services pursuant to 29 U.S.C. § 794e(a)(1). (Compl. ¶ 26.) In addition, GAO alleges that G. is capable of authorizing access to his records and did authorize GAO to have access to his records pursuant to the P&A Acts. Id.
GAO asserts that it submitted each records request pursuant to its federal access authority under 29 U.S.C. § 794e(f)(1)-(2) (incorporating 42 U.S.C. § 15043(a)(2)(I)(i) ). (Id. ¶¶ 20, 28.) According to GAO, 42 U.S.C. § 15043(a)(2)(J)(i) and 45 C.F.R. § 1386.25(c)(2) require that records requested by a P&A system be provided within three business days of receiving a written request. (Id. ¶ 16.) However, to date, GAO has not received any responsive records from HFR related to R. or G. (Id. ¶¶ 23, 31.)
II. DISCUSSION
Defendant has moved to dismiss Plaintiff GAO's Complaint on two grounds. First, Defendant seeks to dismiss GAO's Complaint for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6), arguing that federal CMS regulations prevent HFR from disclosing records to GAO as a matter of law. Second, Defendant argues that CMS is a necessary party to this action and because CMS has not been joined, this action must be dismissed under Rule 12(b)(7).
Defendant also moves to dismiss GAO's Complaint for failing to meet the requisite showing for injunctive relief. (Def.'s Br. at 8-9.) However, Plaintiff has not yet moved for injunctive relief under Rule 65. Thus, Defendant's Motion to Dismiss on this ground is premature.
A. Access to Records Under the P&A Acts
Congress enacted the P&A Acts to protect the legal and human rights of individuals with disabilities through the creation of state, P&A Systems. 29 U.S.C. 794e(a)(1) ; 42 U.S.C. § 15041. To achieve this aim, the P&A Acts prevent states from receiving certain types of federal funding unless they "have in effect a system to protect and advocate the rights of individuals with disabilities." 29 U.S.C. 794e(f)(1) ; see also 42 U.S.C. § 15043(a)(1). Part of satisfying this federal mandate includes vesting P&As with the authority to investigate incidents of abuse or neglect when such incidents are reported to the system, or when the P&A has probable cause to believe the events occurred. 42 U.S.C. § 15043(a)(2)(B). The legislation also entitles a P&A to access "all records" relevant to investigating incidents of abuse or neglect, including individual's records under certain circumstances. Most pertinent to this case, 42 U.S.C. § 15043(a)(2)(I)(i) authorizes a P&A to access all records of an individual who has authorized the P&A to have such access. Here, Plaintiff asserts that it received authorization from R. and G. to access their records. (Compl. ¶¶ 18, 20, 26, 28.)
Plaintiff asserts that it submitted records requests to HFR pursuant to PAIR, 29 U.S.C. § 794e. (Compl. ¶¶ 20, 28.) In describing P&As' investigatory and access authorities under PAIR, the statute incorporates by reference the authorities prescribed under the DD Act, 42 U.S.C. §§ 15001 et seq. 29 U.S.C. § 794e(f)(2). Thus, the Court's analysis of GAO's statutory entitlement to records cites directly to these sections.
The P&A Acts also authorize a P&A to access records of individuals who, due to a mental or physical condition, are unable to grant authorization when the P&A receives a complaint about the treatment of the individual, or has probable cause to believe that abuse occurred. 42 U.S.C. § 15043(a)(2)(I)(ii)-(iii).
The express language of the statute makes clear that P&As must have broad and ready access to records and information to effectively pursue their mandates under the P&A Acts. Alabama Disabilities Advocacy Program v. J.S. Tarwater Dev. Ctr. , 894 F.Supp. 424, 429 (M.D.Ala.1995)aff'd 97 F.3d 492 (11th Cir.1996) ("The authority to investigate would mean nothing and advocacy in the form of investigation would be ineffective without access to records."); see also Mississippi Protection and Advocacy Sys., Inc. v. Cotten , 929 F.2d 1054, 1058–59 (5th Cir.1991) (holding that a state facilities' regulations limiting a P&A's access to residents violated the DD Act and stating, "[t]he state cannot satisfy the requirements of the DDA by establishing a protection and advocacy system which has this authority in theory, but then taking action which prevents the system from exercising that authority"). The Court undertakes its analysis of Defendant's position with this framework in mind.
B. Whether Federal Regulations Prevent the Release of Records to GAO
Defendant contends that GAO fails to state a claim upon which relief can be granted because HFR lacks "ownership or control" of the documents GAO seeks and federal regulations prevent HFR from independently granting GAO's records request. Defendant asserts that under its contract with CMS, HFR must conduct investigations of skilled nursing facilities pursuant to CMS' regulations, 42 CFR pt. 488. Specifically, Defendant argues that 42 C.F.R. § 401.101 prohibits the disclosure of information obtained during these investigations except as provided for in 42 C.F.R. pt. 401. According to Defendant, the CMS regulations require that requests for survey agency information must be submitted directly to CMS under Freedom of Information Act ("FOIA"). Defendant also notes that 42 C.F.R. § 401.105 states that CMS will apply FOIA rules to all proposed disclosures.
The Court does not undertake the typical Rule 12(b)(6) Twombly and Iqbal analysis here because Defendant's arguments do not raise any issues regarding the sufficiency of GAO's pleadings. Rather, Defendant asserts that Court cannot grant relief to GAO as a matter of law.
--------
Plaintiff responds by asserting that the Defendant's cited disclosure regulations, 42 C.F.R. pt. 401, have no application to this case. Specifically, Plaintiff argues that 42 C.F.R. pt. 401 only restricts HFR in disclosing information to the public, not to P&As. The Court agrees. 42 C.F.R. § 401.101 expressly provides that the regulations contained in 42 C.F.R. pt. 401 relate to the availability of CMS' records "to the public." 42 C.F.R. § 401.101(a)(2). GAO did not request records from HFR as a member of the public, but rather, claims it requested records pursuant to its federal mandate as Georgia's designated P&A system. (Compl. ¶¶ 20, 28.)
As discussed in the preceding section, the P&A Acts make clear that P&As are permitted broad and ready access to records and information, even records purportedly"owned and controlled" by CMS. In addition, regulations promulgated under the DD Act specifically identify reports prepared by state and federal licensing and certification agencies, such as HFR, among the types of records that must be disclosed to P&As. 45 C.F.R. § 1386.25(b)(1)-(2). Defendant fails to recognize both the express language and the policy aims of the P&A Acts by attempting to argue that CMS must evaluate disclosures to P&As with the same scrutiny it applies to potential disclosures to the public.
Defendant also attempts to bolster its argument for nondisclosure by citing to 45 C.F.R. Part 2, "Testimony by Employees and the Production of Documents in Proceedings Where the United States is Not a Party." (Def.'s Br. at 6.) But again, Defendant's reliance on CMS' regulations is misplaced. 45 C.F.R. § 2.3 provides that "[n]o employee or former employee of the DHHS may provide testimony or produce documents in any proceedings to which this part applies concerning information acquired in the course of performing official duties or because of the person's official relationship with the Department unless authorized by the Agency head." However, the "proceedings to which this part applies" include only legal proceedings where the United States, HHS, or any HHS agencies are not a party. 45 C.F.R. § 2.1(c) ("This part applies to state, local and tribal judicial, administrative, and legislative proceedings, and to federal judicial and administrative proceedings."); 45 C.F.R. § 2.1(d)(1) (This part does not apply to [a]ny civil or criminal proceedings where the United States, the Department of Health and Human Services, and any agency thereof, or any other Federal agency is a party."). Here, GAO requested records pursuant to its investigatory responsibilities as Georgia's P&A and not as a party to any litigation.
C. Whether GAO Must Join CMS as an Indispensible Party
Defendant next argues that the Court must dismiss GAO's Complaint for failing to join CMS as an indispensible party. Defendant asserts that CMS is an indispensible party for two primary reasons: (1) CMS has "sole ownership and control" over the requested documents and providing GAO with access to the records in its absence is adverse to CMS' interests, and (2) ordering HFR to disclose the requested information subjects HFR to conflicting obligations by forcing it to violate CMS' regulations. (Def.'s Br. at 7.) The Court finds each of these arguments unpersuasive.
The inquiry into whether a party is indispensible to an action is not a rigid or formulaic one, rather it is a particularized and contextual inquiry. Provident Tradesmens Bank & Trust Co. v. Patterson , 390 U.S. 102, 118–19, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968) (citing Niles – Bement – Pond Co. v. Iron Moulders' Union, Local No. 68 , 254 U.S. 77, 80, 41 S.Ct. 39, 65 L.Ed. 145 (1920) ); see also City of Marietta v. CSX Transp., Inc. , 196 F.3d 1300, 1305 (11th Cir.1999)certified question answered , 272 Ga. 612, 533 S.E.2d 372 (2000). Making this determination requires a two-step analysis. The first question is whether complete relief can be afforded without joining the nonparty, or whether the nonparty's absence will impede either the nonparty's protection of an interest at stake or subject parties to a risk of inconsistent obligations. See Fed. R. Civ. P. 19(a)(1)-(2). Only if a court can answer this threshold question in the affirmative and if the nonparty cannot be joined for some reason, does a court proceed to step two. See Temple v. Synthes Corp., Ltd., 498 U.S. 5, 8, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990). Step two requires a court to determine whether, in equity and good conscience, the action should proceed. See Fed. R. Civ. P. 19(b).
Defendant does not pass the first step of this analysis. Defendant attempts to argue that HFR lacks the ability to provide GAO with the requested records because the documents remain under the control of CMS. Yet, Plaintiff's Complaint asserts that HFR had possession of records relevant to investigating the alleged abuse and neglect of R. and G. (Compl. ¶¶ 19, 27.) Each of Plaintiff's requests were submitted to and then denied by HFR, not CMS. (Compl. ¶¶ 21, 30.) Assuming that HFR remains in possession of the requested records, the Court can grant GAO complete relief without joining CMS.
The Court also finds Defendant's argument that CMS has a protectable interest in controlling the disclosure of records to GAO unpersuasive within the context of this case. Defendant asserts that ordering HFR to grant GAO's records request deprives CMS of the ability to apply the FOIA rules to the proposed release and ensure that disclosure is "legally appropriate." (Def.'s Br. at 7.) However, as discussed above, the FOIA rules do not govern disclosures to P&As. Although CMS' public disclosure regulations establish that CMS has a potential protectable interest in controlling the disclosure of survey agency information to the public, that interest would not be threatened by requiring HFR to disclose information to GAO, a state sanctioned P&A System.
Likewise, Defendant cannot rely on these same, inapplicable regulations to argue that ordering HFR to grant GAO's request would subject HFR to inconsistent legal obligations. Defendant has not cited and the Court has not found any regulation expressly prohibiting a state survey agency from releasing records to a P&A. Rather, the DD Act at 42 U.S.C. § 15043 and its corresponding regulations make clear that state survey agencies, like HFR, must disclose individual records and reports relating to incidents of abuse and neglect to P&A Systems under federal law. 42 U.S.C. § 15043(a)(2)(I)(i)-(ii) ; 45 C.F.R. § 1386.25(b)(1)-(2). At least on the pleadings at this juncture, complying with the statutes and regulations under the P&A Acts is HFR's only obligation. Thus, the Court finds that CMS need not be joined as a necessary party.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion to Dismiss [Doc. 4] is DENIED . The Court will convene a scheduling conference with counsel as soon as feasible to discuss the future proceedings in this matter as well as the scheduling of a preliminary injunction hearing.
IT IS SO ORDERED this 25th day of April, 2016.