Significant Developments in Mental Health Law and ADA 2018-19

1. Significant Developments in Mental Health Law and ADA2018-19 NARPA Annual Rights Conference Hartford, CT September 20, 2019 Prof. Robert D. Dinerstein American University, Washington College of Law

2. Cases to Discuss • Supreme Court, October 2018 Term • Supreme Court, October 2019 Term • Federal Court of Appeals Cases • Federal District Court Cases • State Court Cases • Other Matters

3. Supreme Court, 2018 Term • Moore v. Texas, 586 US ___ (Feb. 2, 2019) (Per curiam—Roberts, concurring, Alito, with Thomas & Gorsuch dissenting). • Madison v. Alabama, 586 U.S. __ (Feb. 27, 2019) (5-3; Kagan; Alito, with Thomas & Gorsuch, dissenting; Kavanaugh did not participate) • Box v. Planned Parenthood of Indiana and Kentucky, 587 US ___ (May 28, 2019)—Indiana abortion law that bans abortion on basis of gender or Down syndrome. Court denies cert on this issue but Thomas writes a long concurrence addressing issue of eugenics, Margaret Sanger’s role in the movement, etc.

4. Supreme Court, 2019 Term • Kahler v. Kansas, No. 18-6135 (to be argued Oct. 7, 2019)(first day of the term). Case below-State v. Kahler, 307 Kan. 374 (2018). Death penalty case with multiple issues. Kansas eliminated insanity defense for a mens rea approach, thus doing away with the M’Naugten element that a defendant did not know the difference between right and wrong. Lower court rejected challenge.

5. Federal Court of Appeals Cases • Parent/Professional Advocacy League v. City of Springfield, No. 18-177818, 2019 WL 3729033 (1st Cir. 8-8-19)(need to exhaust IDEA procedures)— Title II and IDEA. Class certification and organizational standing. Students with mental health disabilities unnecessarily segregated in an inferior school. No common policies applicable to the class. • Powers v. Block, 750 Fed. Appx. 480 (7th Cir. 2018) (detainee claims lack of treatment for sex offenders. Court cites Youngberg for deference to professionals) • Cooper v. Montgomery County, Ohio Sheriff’s Dep’t, 768 Fed. Appx. 385 (6th Cir. 2019)-pretrial detainee with mental illness claimed deliberate indifference to serious psychiatric needs. Placed in loud open area because on suicide watch. Court upheld jail considering his safety a priority. Attended to his needs, provided him with suicide mattress (though not until his mother complained)

6. Federal Court of Appeals Cases Coleman v. Brown, 756 Fed Appx. 677 (9th Cir. 2018)—Long-running CA prison case re inadequate services for prisoners with mental illness. Aff’m order (state appealed) requiring CA to comply with remedial order that required them to transfer prisoners with mental illness to a mental health crisis bed w/in 24 hrs.) Disability Rights Montana v. Batista, 930 F. 3d 1090 (9th Cir. 2019)—Class action states a plausible 8th A claim—1983 case alleging prisoners w/ serious mental illness were denied diagnosis and treatment, were placed in solitary confinement for long periods w/o mental health care, and did not receive response to suicide threats. Note: reassignment to different judge because of his confusion of two cases and failure to correct his mistake.

7. Federal Court of Appeals Cases-mental health treatment as a sentence condition • US v .Westbrooks, 2019 WL 3812776, No. 18-20628 (5th Cir. Aug. 13, 2019)—C of A strikes mental health treatment as condition of supervised release after imprisonment for filing false tax returns. Lower court noted def’s “history of complete defiance of the truth,” but C of A no diagnosis or history of mh treatment. • US v. Bree, 752 Fed. Appx. 564 (10th Cir. 2018)—Same issue as in Westbrooks. Def’s substance abuse problems did not justify mental health treatment condition. Suicide attempt 40 years earlier, and gov’t suggestion that def might be depressed b/c of loss of job insufficient. • US v. Garrido, 751 Fed. Appx. 479 (5th Cir. 2018)-Same. Possession of drugs w/ intent to distribute. No evidence that he needed mh treatment or was diagnosed w/ mental illness. • US v. Corbet, 767 Fed. Appx. 191 (2d Cir. 2019)—contra the above cases, C of A said it was not plain error to impose mental health treatment as a condition. No greater deprivation of liberty than necessary to achieve sentencing goals; prior notice to def; judge did not delegate to probation

8. Federal Court of Appeals Cases • Charles v. Orange County, 925 F. 3d 73 (2d Cir. 2019)—C of A reverses district court dismissal for failure to state a claim former civil immigrant detainees’ 1983 suit alleging def’s failure to engage in d/c planning or to provide d/c plans. Violation of substantive due process. C of A said defs were deliberately indifferent to pl’s serious medical needs for d/c planning.

9. Federal District Court Cases • Rasho v. Walker (ND Illinois) Court held that the Illinois Department of Corrections violated the settlement agreement and the Constitution. Specifically, the judge found that “Defendants have been deliberately indifferent to Plaintiffs’ medical needs in medication management, mental health treatment in segregation, mental health treatment on crisis watch, mental health evaluations, and mental health treatment plans within the meaning of the Eighth Amendment.”

10. Federal District Court Cases Reyes v. Clarke, 2019 WL 4044316 (E.D. Va. Aug. 27, 2019). • Inmate was assaulted by cell mate but then was charged with assault and sent to solitary confinement where he remained until the time of this action (form 2006 to 2019). On multiple occasions he was denied food, showers, contact with non-incarcerated people, and more. Inmate alleges his rights under the ADA were violated by Defendants for ailing to accommodate his mental illness and deny him benefits of services because of these disabilities. Court denied defendants motion to dismiss this claim because plaintiff’s allegations satisfy the elements (qualified disability, otherwise qualified to receive even fits of a public program and was excluded from participation or otherwise discriminated against).

11. Federal District Court Cases Brown v. Semple, 2018 WL 4308564 (D. Con. Sep. 10, 2018). Pro se inmate civil rights claim against correctional facility. Plaintiff diagnosed with PTSD, borderline personality, anti-social personality and has suicidal thoughts—facility classified him as seriously mentally ill. There are no mental health units at his facility, he submitted many requests for treatment and facility failed to periodically review his health and did not develop a mental health plan. He was confined to a small cell for 23 hours a day, required to wear full restraints whenever he left his cell, not permitted to have any contact visits, and more. Court concludes that plaintiff plausibly alleged deliberate indifference to mental health by the staff, and denied defendant’s motion to dismiss. Similarly it denies the motion to dismiss the deliberate indifference to unconstitutional conditions of confinement claim.

12. Federal District Court Cases Ganes v. Jones, 2019 WL 1400470 (M.D. Fla. Mar. 28, 2019) Plaintiff’s son was an inmate; she brings ADA claim among other things for denying her son adequate nutrition and treatment for basic and serious mental health and medical needs, resulting in his malnourishment and starving to death. Court found that Plaintiff stated a claim upon which relief should be granted for the ADA claim, but dismissed claim for punitive damages.

13. Federal District Court Cases J.S.X. v. Foxhaven, 361 F. Supp. 3d 822 (S.D. Iowa Feb. 19, 2019) Students brought putative class action against state officials and superintendent seeking declaratory judgement and alleging unconstitutional and illegal treatment practices with respect to students with significant mental illness at a state institution for male juveniles who have been adjudicated delinquent. Court found that there was a genuine issue of material fact as to whether students were denied educational opportunities available to other students without disabilities on the ADA claim.

14. Federal District Court Cases Corbierv. Watson, 2019 WL 351498 (S.D. Ill. Jan. 29, 2019) Plaintiff is administrator of inmate’s estate who attempted suicide while detained in county jail and died several days later, he was “really depressed and emotional” and underwent screening when he was detained. Plaintiff brings seven claims, including ADA claim. Court found that the inmate did not have a qualified disability because, although he was depressed and had bipolar disorder, his conditions did not substantially limit or impair his ability to care for himself.

15. State Court Cases Iowa • Slaughter v. Des Moines University College of Osteopathic Medicine, 925 NW 2d 793 (2019). Former medical student sues for failure to accommodate mental disability (depression). Court said could not impute school staff psychologist’s knowledge to academic d-makers, and there was no RA proposed that could have allowed her to meet academic standards.

16. State Court Cases • Illinois: • In re Christine R., 2019 IL. App. 3d 180264 (9-10-19) [Laurel Spahn]—Atty said she could proceed w/o presence of client at commitment hearing (after judge removed her). Atty essentially at subsequent medication hearing Ct granted petitions for invol commit and psychotropic meds. Ct reverses. Committed for 90 days. PD representing her did not put on witnesses and waived closing [“her behavior is her closing”]. Appellate court finds moot but proceeds on exception (capable of repetition; public interest). Court did not make findings that respondent presented risk of substantial harm to s/o if present, nor any indication that resp could return to the proceedings. Statutory grounds. • In re LK, 2019 IL. App. (1st) 163156-U (9-4-19) [unpublished]—reverse trial court invol commitment based on stat ground not alleged in the petition and expert medical opinion that contradicted stat ground the petition alleged. [Petition claimed unable to provide for his basic physical needs; testimony was re danger to s/o]. Pro se respondent. Commitment could have been for 90 days.

17. State Court Cases • Illinois, con’t. • In re H.P., 2019 IL App. (5th) 150302 (7-1-19). Appeal from invol med order. State must present evidence of known interactions b/w multiple meds in order to show that the benefits of the proposed meds outweigh the harms. Incompetent to stand trial. Schizoaffective disorder, depressive type, multiple prior hospitalizations. Good statutory protections. OK to have different psych drugs if they treat different symptoms or behavior.

18. State Court Cases Alaska In re Lucy G. (9-13-19) ECT for non-consenting, catatonic patient. Arguing that ECT requires more protection than the Myers v Alaska Psychiatric Institute factors for involuntary medication—medication must be in the person’s best interest and there must be no least intrusive alternative. Raised for the first time on appeal so clear error standard. Court says state must show compelling interest. Reject argument that ECT can only be used if meds are insufficient. In re Naomi B. (1-11-19; 1-14-19) Also Linda M. Naomi committed as gravely disabled. Linda M. could have functioned in Solteria facility (private) that is now closed. Appellant argued that state could not de-fund the program and then say that it was not feasible for the person to be served in it. Court concluded that if the alternative did not currently exist it was not actually available.

19. State Court Decisions Massachusetts In re C.R. v. Mass Gen Hosp, MA App Div, No. 1801MH0235 (9-4-19). Dismissal of commitment because although court concluded it was permissible to confine a psychiatric person in an ER (and not a psych facility) for the 3-day statutory period, the time started from that commitment and not from when the person later entered the psych facility. Do not reach issue of whether commitment did not meet BRD/no LRA standard. Pembroke Hospital v. DL , Mass Sup Ct (5-23-19) Person is not discharged from a hospital if not released and then sent from one hospital to another. Court denied original petition for civil commitment (pt allegedly suicidal) but Pembroke found no family to whom to release him and decided he could not survive on his own.

20. Recent ADA Cases • MJ v. DC, 1:18-cv-1901 (EGS) (DDC, 7-25-19) –children with mental illness placed in residential settings in lieu of community-based treatment. Need for intensive community-based services—intensive care coordination, intensive behavioral support, and mobile crisis services. • Brown v. DC, No. 17-7152 (DC Cir, 7-5-19) (nursing home)— Olmstead case. Reverse lower court that denied relief to class of people with physical disabilities in nursing homes because reason for lack of community placement was said to be lack of housing and not disability-based discrimination.

21. Recent ADA Cases • US v. Mississippi (DOJ), No. 3:16-CV-622-CWR-FKB (D Miss. 9-3-19)—people with severe mental illness unnecessarily institutionalized. Olmstead. Special Master • US v State of Florida, No. 17-13595(11th Cir. 9-17-19) Recent 11th Circuit case upholding DOJ right to sue under Title II

22. Miscellaneous • Mental illness/health and mass/gun violence President Trump’s linking mental health problems to violence and suggesting need to repopulate institutions NCD letter to president Bazelon Center Statement DOJ Consent Decree Policy (11-18) Balcom v. Americorps– ACLU settlement 9-16-19. Screening process screened out person with anxiety

23. The End Thank you rdiners@wcl.american.edu 202-274-4141