Roll v. Howard ( 2020 )


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  •                                         No. 121,447
    IN THE COURT OF APPEALS OF THE STATE OF KANSAS
    CATHERINE ROLL, a disabled person, by and through her co-guardians
    TERESA ROLL KERWICK and MARY ANN BURNS,
    Appellants,
    v.
    LAURA HOWARD, SECRETARY OF THE KANSAS DEPARTMENT FOR AGING
    AND DISABILITY SERVICES, and MIKE DIXON, SUPERINTENDENT
    OF THE PARSONS STATE HOSPITAL AND TRAINING CENTER,
    Appellees.
    SYLLABUS BY THE COURT
    1.
    Appellate courts defer to a district court's factual findings when they are supported
    by substantial competent evidence in the record. Substantial competent evidence is
    evidence which possesses both relevance and substance and which furnishes a substantial
    basis of fact from which the issues can reasonably be resolved.
    2.
    Appellate courts do not reweigh the evidence or make determinations about the
    credibility of witnesses. Instead, appellate courts view the evidence in the light most
    favorable to the prevailing party, disregarding conflicting evidence or other inferences
    that might be drawn.
    3.
    A person seeking permanent injunctive relief must show that five factors weigh in
    favor of the requested injunction. First and foremost, the person seeking a permanent
    injunction must prevail on the merits of his or her claim. But though the success on the
    merits weighs heavily in favor of issuing an injunction, the person seeking injunctive
    1
    relief must also demonstrate that the absence of an injunction would lead to irreparable
    harm; that no adequate legal remedy exists to address the person's claim; that the person's
    injury would outweigh the harm any injunction may cause to the opposing party; and that
    the injunction, if issued, would not be adverse to the public interest.
    4.
    Appellate courts review the grant or denial of injunctive relief for an abuse of
    discretion. The scope of that discretion varies based on the contours of the issues
    presented to the district court. A district court has no discretion to make errors of law.
    5.
    The interpretation of the Americans with Disabilities Act and its regulations is a
    question of law appellate courts review de novo.
    6.
    When interpreting statutes, courts' primary aim is to determine the intent of the
    body enacting the legislation. Courts look to the plain language of the statute or
    regulation in question, giving common words their ordinary meanings. But this analysis
    does not occur in isolation. Rather, courts must consider the various provisions of an act
    in context—in pari materia—and seek to reconcile those provisions into workable
    harmony.
    7.
    Unjustified segregation of persons with mental-health conditions in an institution
    constitutes discrimination under Title II of the Americans with Disabilities Act. To
    determine whether unjustified discrimination—and thus a violation of the ADA—exists,
    courts apply a three-pronged test: A public entity has the duty to move patients from an
    institutional setting to a community-based setting when (1) its treatment professionals
    determine that such placement is appropriate, (2) the affected persons do not oppose such
    2
    treatment, and (3) the placement can be reasonably accommodated, taking into account
    the resources available to the State and the needs of others with mental disabilities.
    8.
    If a patient opposes receiving treatment in a more integrated environment, as Roll
    has here, the Americans with Disabilities Act does not require integration. But a person's
    opposition does not deprive the institution of the power to place a person into a more
    integrated environment.
    9.
    Courts apply a two-part, burden-shifting test when determining whether a federal
    law creates a right enforceable under 42 U.S.C. § 1983 (2018). The plaintiff bears the
    initial burden to demonstrate that a law creates an enforceable right by establishing three
    factors. First, Congress must have intended the provision to benefit the plaintiff. Second,
    the right cannot be so vague and amorphous that it would be difficult for courts to
    enforce. And third, the statute must unambiguously impose a binding obligation on the
    States. Meeting these three factors creates a presumption of enforceability. The burden
    then shifts to the State, which may rebut that presumption by demonstrating a
    congressional intent to foreclose enforcement through § 1983.
    10.
    Medicaid's "freedom of choice" provision under the Social Security Act, 42 U.S.C.
    § 1396n(c)(2)(C) (2018), creates an individual right that can be enforced under 42 U.S.C.
    § 1983.
    11.
    Under the Social Security Act, persons who are determined to be likely to require
    the level of care provided in a hospital must be informed of feasible alternatives to
    inpatient hospital services. And those individuals must be given the choice of either
    3
    institutional or home and community-based services. This choice only arises, however,
    when a court has determined someone is likely to require the level of care provided in a
    hospital or one of the other facilities listed in the Act.
    Appeal from Sedgwick District Court; FAITH A.J. MAUGHAN, judge. Opinion filed December 11,
    2020. Affirmed.
    David P. Calvert, of David P. Calvert, P.A., of Wichita, and Stephen M. Kerwick, of Wichita, for
    appellants.
    Arthur S. Chalmers, assistant attorney general, and Derek Schmidt, attorney general, for
    appellees.
    Before WARNER, P.J., STANDRIDGE and GARDNER, JJ.
    WARNER, J.: Catherine Roll is a patient at Parsons State Hospital, where she has
    lived and been treated for an intellectual disability and schizophrenia for several decades.
    In 2016, the Department for Aging and Disability Services, in conjunction with Parsons,
    indicated an intent to transfer Roll to a more integrated community-based treatment
    program (though the specific program where she would be transferred was not yet
    determined). Roll's guardians sought a permanent injunction to prevent the transfer,
    alleging the Americans with Disabilities Act (ADA) and the Social Security Act (SSA)
    prevented the Department from transferring her without her consent.
    After a trial, the district court found that the Department had shown that the
    treatment available at a community-based program was appropriate to meet Roll's needs.
    The court also found that, because Parsons provided a level of care and restriction beyond
    what was medically necessary, neither the ADA nor the SSA prevented the State from
    transferring her to a different program. After carefully reviewing the record and the
    parties' arguments, we find the district court's crucial finding—that Roll does not need to
    4
    be treated in a facility as restrictive as Parsons—is supported by the record. And we agree
    that there is no right under the ADA and SSA for patients to remain at a more restrictive
    facility if the level of care provided is medically unnecessary. Thus, we affirm the district
    court's denial of the permanent injunction.
    FACTUAL AND PROCEDURAL BACKGROUND
    Catherine Roll's parents brought her to Parsons State Hospital in 1970, when she
    was 15 years old, to treat her intellectual disability and schizophrenia. She has lived there
    for the past 50 years. Roll's parents passed away in the 1990s and her two sisters, Teresa
    Kerwick and Mary Ann Burns, have served as her guardians since that time.
    Parsons provides housing and treatment for individuals with intellectual
    disabilities and mental-health conditions. To qualify for admission (and to receive state
    and federal funding), applicants must have an intellectual disability (which begins at an
    IQ of 70) and demonstrate active treatment needs. Once admitted, patients live in
    communal housing units called cottages. A team of professionals creates an active
    treatment program to identify the needs of and assess each patient. Staff, who have often
    worked at Parsons for several years if not decades, monitor and inform patients of their
    progress at monthly and annual reviews.
    Roll is identified as appropriate for transfer to a community-based treatment facility.
    When Roll was admitted to Parsons, individuals were often admitted to institutions
    because their families could not adequately address their needs. But a series of societal
    and treatment-based changes beginning in the late 1970s enabled individuals to live their
    lives outside of institutions. New medications addressed mental-health issues while
    advances in educational technology allowed the needs of individuals with intellectual
    disabilities to be met at home or through noninstitutional, community-based services.
    5
    These changes in treatment affected Parsons in at least two important ways. First,
    expectations about the extent and duration of institutionalization have evolved. A
    preference has emerged to treat individuals in more integrated settings—such as
    community-based treatment programs that provide individuals opportunities to interact
    with both disabled and nondisabled persons—rather than the isolated environment of an
    institution such as Parsons. The goal of institutional treatment is no longer to "cure" a
    mental disability, as it was in the early 1970s, but to return a patient to a community-
    based program that adequately addresses his or her treatment needs. In other words, a
    person's treatment at Parsons should only last until he or she can successfully transition to
    a more integrated setting.
    Second, as individuals have transitioned out of Parsons and into new community-
    based programs, the profile of Parsons' treatment population has changed. As individuals
    with less severe conditions have moved out, the proportion of patients with much more
    severe conditions increased. Most of Parsons' incoming patients now have a severe
    behavioral issue, such as aggression, self-injury, or sexual conditions such as pedophilia,
    and have generally been transferred either from incarceration or a state psychiatric
    hospital.
    In 2010, former Governor Mark Parkinson issued an executive order
    recommending that state hospitals serving individuals with developmental disabilities
    downsize as, among other reasons, a cost-cutting measure. More recently, Parsons
    identified two concerns with keeping patients who could live in community-based
    environments: staff resources and bed space. Patients with less severe conditions require
    staff supervision that could otherwise be spent on monitoring patients with more severe
    conditions, and their place in a cottage could be more appropriately used by someone on
    the hospital's waiting list. To address these concerns, Parsons Superintendent Dr. Jerry
    Rea asked staff in December 2015 to identify individuals who could be successfully
    transferred to community placements. Staff identified 21 patients, including Roll.
    6
    To gauge Roll's level of cognitive and physical function, Parsons staff have
    administered the Vineland-II test, which measures adaptive functioning—the ability to
    perform everyday skills—in 11 areas across 4 domains: communication, daily living
    skills, socialization, and motor skills. The test contextualizes the test taker's skill levels
    by comparing them to the age at which a person from the general population (which
    includes individuals without developmental disabilities) would demonstrate similar skills.
    In a test administered in July 2012, Roll exhibited skills across the tested areas equivalent
    to a person between the age of 2½ and 8½ years old.
    Roll receives a very low dose of a psychotropic medication to prevent symptoms
    of withdrawal associated with a previous medication for her schizophrenia. She does not
    appear to display any schizophrenic symptoms. She has a moderate intellectual disability,
    which generally means that she requires physical assistance in performing some tasks but
    requires only verbal prompts to perform others.
    The guardians oppose Roll's transfer to a community-based treatment program.
    Roll's guardians have historically been opposed to transferring her to a community
    placement. In 2002, Parsons believed Roll would do well in a community placement and
    encouraged the guardians to tour a few facilities where she might be transferred. Roll's
    guardians toured three, but they did not believe any were suitable for her. The guardians
    expressed their desire at that time that Roll not be transferred to a community placement.
    In February or March 2016, a Parsons social worker called Kerwick to inform her
    that Roll had been selected to transition into a community-based treatment program.
    Kerwick replied she would not approve a transition. During a subsequent call, Parsons
    staff set up a meeting between Kerwick and Dr. Rea to discuss community placement.
    During the meeting in late March, Dr. Rea explained his rationale for transferring Roll—
    7
    Parsons currently treats patients with more severe conditions, these patients present safety
    concerns to other patients, and a $1.3 million decrease in Parsons' budget would require
    closing a cottage (each of which provides housing and treatment for about 20 patients).
    Kerwick agreed to tour some facilities with Burns, but due to her sister's schedule, the
    tours would have to be in the summer.
    In early June, Dr. Rea sent a letter to Roll's guardians in an effort to pressure them
    to begin considering community-placement options. His letter stated that Parsons would
    transfer Roll to their care if they had not begun the community-placement transfer
    process by September 1.
    In July, the guardians toured several facilities, but they still preferred Parsons to
    the community-based facilities they visited. Because Roll had remained at Parsons for the
    past 50 years, she had developed a routine there: she wakes up when she wants, eats
    breakfast, may choose to work in the Parsons library, returns to her cottage to eat lunch
    and take a nap, spends the afternoon doing leisure activities, and goes to bed when she
    wants. The guardians believed the community-placement facilities they toured would not
    afford Roll that same level of comfort and freedom. She would have to be outside her
    home for at least 20 hours per week at times dictated by a day-services program, and she
    would spend those hours in a crowded setting. Though community placement would give
    Roll some freedoms Parsons does not provide—input in meal selection, fewer
    housemates, and possibly a private bedroom—Roll's guardians did not believe that those
    benefits outweighed the stability of her long duration at Parsons.
    Roll's guardians file suit to enjoin the transfer.
    In August 2016, Roll (through her guardians) filed a petition seeking an injunction
    and temporary restraining order to prevent the Department and Parsons from discharging
    her, either to a community-based program or to the guardians' care. The petition alleged
    8
    that the ADA prohibited the State from transferring Roll to a community-based facility
    without her (and her guardians') consent. The district court granted the temporary
    restraining order and later appointed a guardian ad litem to represent Roll's interests.
    After reviewing various hospital reports on Roll's condition (though without
    speaking with Roll or any of the treating professionals at Parsons), the guardian ad litem
    initially reported that he believed it was in Roll's best interests to remain at Parsons until
    a proper community placement could be found. The guardian ad litem later filed a second
    letter after meeting with Roll and speaking with treatment professionals at two
    community-based programs. In that second letter, the guardian ad litem indicated that the
    "advantages of community placement appear to be less residents in one location, having
    [Roll's] own bedroom or sharing with one person, some choice in meals, meal preparation
    and perhaps more freedom to do other things." The drawbacks were that Parsons "has
    been her home for a very long time, she is happy, familiar with the residents, staff and the
    routine." He indicated that he would advise Roll's guardians to meet with the facilities he
    contacted to "see if it might be beneficial for Ms. Roll to be placed in the community."
    The district court held a four-day bench trial in October 2018. Several members of
    Parsons' treatment staff and two professionals from resource centers for community-
    based treatment testified—from a medical, social, and psychological standpoint—that
    Roll's treatment needs could be adequately met in a community-based setting. The
    Parsons staff and physicians underscored that Roll is one of the calmest and least severe
    patients at the hospital, and that she could receive similar but more integrated treatment
    in a community setting. And some also noted the downsides of remaining at Parsons:
    Tammy Manues, a member of the treatment staff, indicated that from time to time
    multiple residents with more serious conditions who lived in Roll's cottage would
    become upset and act out—"hollering out" or "screaming." During those outbursts, Roll
    would withdraw to her room and essentially "shut[] down."
    9
    The guardian ad litem also testified briefly at trial. Though he had not spoken with
    any of Roll's treating staff or any other medical professional to discuss her records, he
    testified that, given Roll's age and the length of time she had been at Parsons, it would not
    be in her best interests to transfer her to a different facility. He emphasized that Roll was
    happy where she was and had a predictable routine. When asked how Roll's age and the
    length of her stay at Parsons might affect her transition, Heather Pace, a witness from one
    of the resource centers, indicated that she believed that there would likely be an initial
    transition period that was difficult, given Roll's extended treatment at the hospital and
    settled routine. But Pace also stated that the transition would be easier because Roll
    enjoyed a set routine—that "once you get through and get over the bump of the transition,
    you settle into a new routine and life goes back to some kind of normalcy and it gets
    better again."
    Roll's guardians testified about Roll generally, her history, and the reasons why
    they believed keeping her at Parsons was in her best interests. They also testified at
    length about their dismay at receiving Dr. Rea's letter in June 2016 (which indicated a
    need to find an alternative placement by September 2016 to avoid a discharge) and their
    reasons for not consenting to any transfer.
    After the trial, the court granted Roll's guardians permission to add a claim under
    the SSA that the proposed transfer from Parsons violated Roll's right to choose which
    facility would provide her treatment. The parties submitted lengthy proposed findings of
    fact and conclusions of law, as well as trial briefs on the ADA and SSA claims.
    The district court denied the requested injunction in a lengthy journal entry. The
    court found that the evidence presented at trial supported Parsons' position that Roll's
    treatment needs could be adequately addressed in a community-based setting—a setting
    more integrated and less restrictive than Parsons' institutionalized approach. The court
    explained:
    10
    "Ms. Roll's Social Work Assessment Annual Reviews, Psychological Annual Reviews,
    and Individual Program Plans from 2010 through 2017 supports good cause for her
    discharge. This documentation collectively speaks to the very issue of the adaptive living
    skills Ms. Roll has developed over time which make her appropriate for placement in a
    less restrictive living environment. This documentation, in conjunction with testimony
    offered by staff of Parsons State Hospital, provides evidence to the Court of her desire to
    partake in community based activities, her ability to work and earn wages, her ability to
    take care of her own hygiene needs, her ability to dress herself, her ability to exercise
    choices about daily living, her ability to perform various tasks to include setting a table,
    maintaining her bedroom, assisting with sweeping and mopping, doing art projects,
    working on puzzles, shopping, going out to eat, attending church, partaking in religious
    studies, reading her bible, reading magazines or the newspaper and communicating her
    wants, needs and desires.
    "In addition, various staff of Parsons State Hospital testified that Ms. Roll's needs
    could be easily met in the community. This evidence was supported by numerous defense
    exhibits including documents setting forth a comparison of services between Parsons
    State Hospital and various community service agencies, an illustration of the types of
    services offered by Parsons State Hospital and an analogous counterpart through
    community-based services, a listing of various community outings Ms. Roll participated
    in monthly, from October of 2017 through August of 2018 and a tracking summary
    describing Ms. Roll's performance in reaching, maintaining and exceeding training
    objectives of the Informed Consent for Behavior Support Program/Medication from 2009
    through 2017."
    Turning to Roll's legal claims, the district court found she could not prevail on her
    claims under the ADA and SSA. As to the ADA claim, the court found that Roll's (or her
    guardians') opposition did not prevent the Department from transferring her to an
    appropriate, more integrated treatment setting. And the court found that Kansas was
    permitted, under the SSA, to pay for appropriate community-based treatment, which the
    Department proposed here.
    11
    Because Roll and her guardians had not prevailed on these legal claims, they could
    not meet the first requirement for a permanent injunction—success on the merits—or
    recover attorney fees. This appeal followed.
    DISCUSSION
    The petition Roll's guardians filed on her behalf sought an injunction to prevent
    the Department from transferring her from Parsons. Roll did challenge Parsons' position
    that a community-based program was an appropriate treatment setting for her. But the
    focus of her case was consent. The petition pointed out that Roll and her guardians had
    not agreed to a transfer from Parsons. And it argued that federal law—provisions of the
    ADA and SSA—provided a right to refuse more integrated treatment than Parsons
    provides. Under these provisions, Roll argued, Parsons could not transfer her to a
    different facility without her (or her guardians') consent.
    The district court found that Roll had not prevailed on her legal claims under the
    ADA and SSA and therefore denied her request for an injunction. On appeal, Roll
    challenges the district court's legal conclusions from several angles:
    • She argues that the court used an incorrect standard for evaluating her claims and
    that the court's legal conclusions regarding the ADA and SSA are contrary to the
    law.
    • She argues that several of the court's factual findings—primarily relating to Roll's
    treatment needs and her consent—are contrary to compelling evidence in the
    record.
    • She argues that various other decisions and journal entries by the court were
    incorrect. And she asserts that because, in her view, the district court should have
    12
    granted the requested injunction, it also should have granted her request for
    attorney fees.
    For the reasons we explain in this opinion, we conclude that Roll does not have a
    right under either the ADA or the SSA to demand a higher level of treatment in a less-
    integrated setting than is appropriate. And we find there is ample evidence in the record
    to support the district court's finding that Roll's treatment needs can be appropriately
    addressed in a community-based setting. Thus, even though we agree with Roll that
    neither she nor her guardians have consented to a transfer from Parsons to a community-
    based setting, federal law does not demand her consent before a transfer to an appropriate
    treatment setting may occur. As Roll cannot prevail on the merits of her claims, we
    affirm the district court's denial of a permanent injunction.
    1.     Substantial evidence supports the district court's finding that Roll's treatment
    needs can be appropriately met in a community-based treatment program.
    Roll's primary arguments on appeal relate to whether the ADA and SSA provide a
    right to refuse the proposed transfer to a community-based treatment program. Before we
    can analyze those claims, however, we must have a clear view of the facts underlying the
    district court's analysis. We thus turn to Roll's challenges to the district court's factual
    findings.
    The district court's journal entry included more than 25 pages of factual findings,
    as well as additional factual findings and analysis throughout the court's other written
    analyses. Roll—through her guardians—asserts that several of the court's factual findings
    regarding her abilities and treatment needs are either unsupported by the record or
    contrary to other evidence presented. She also claims that the district court disregarded
    important evidence that mitigated its findings, such as the guardian ad litem's reports and
    testimony.
    13
    Because appellate court judges are not present at trial, we defer to a district court's
    factual findings when they are supported by substantial competent evidence in the record.
    Substantial competent evidence is "'evidence which possesses both relevance and
    substance and which furnishes a substantial basis of fact from which the issues can
    reasonably be resolved.'" Wiles v. American Family Life Assurance Co., 
    302 Kan. 66
    , 73,
    
    350 P.3d 1071
    (2015). Appellate courts do not reweigh the evidence or make
    determinations about the credibility of witnesses. Instead, we view the evidence in the
    light most favorable to the prevailing party, disregarding conflicting evidence or other
    inferences that might be drawn. See Gannon v. State, 
    298 Kan. 1107
    , 1175-76, 
    319 P.3d 1196
    (2014).
    In paragraph 27 of its factual findings, the district court summarized the evidence
    it relied on for its determination that Roll was "appropriate for community placement,"
    explaining:
    "This was established by testimony from Dr. Rea who was employed with Parsons State
    Hospital since 1984; Social Work Supervisor/ Ombudsman Karen VanLeeuwen who was
    employed at Parsons State Hospital for 31 years; Qualified Intellectual Disability
    Professional Nathan Grommet who was employed with Parsons State Hospital since
    2014; Activity Specialist Cory Medlam who was employed with Parsons State Hospital
    for 6 years; Dr. Menon who was employed with Parsons State Hospital since 1977; Client
    Training Supervisor Nancy Holding who was employed with Parsons State Hospital since
    1986; and Direct Support Worker Tammy Manues who was employed with Parsons State
    Hospital since 1991. Each of these individuals are personally familiar with Ms. Roll and
    worked with her in various capacities."
    The court expanded on this summary later in its journal entry, observing:
    "Ms. Roll is appropriate for placement in a less restrictive living environment for several
    reasons. Ms. Roll does not display behavioral issues which would indicate she has active
    treatment needs. Given that Ms. Roll has no active treatment needs, members of Ms.
    14
    Roll's treatment team at Parsons State Hospital have simply been providing supervision
    to Ms. Roll, which can be accomplished in a community based setting."
    And the court concluded its decision by explaining that the assessments by Parsons staff
    that Roll's needs could be appropriately met in a community-based treatment program
    was supported by "Roll's Social Work Assessment Annual Reviews, Psychological
    Annual Reviews, and Individual Program Plans," as well as
    "documents setting forth a comparison of services between Parsons State Hospital and
    various community service agencies, an illustration of the types of services offered by
    Parsons State Hospital and an analogous counterpart through community-based services,
    a listing of various community outings Ms. Roll participated in monthly, from October of
    2017 through August of 2018 and a tracking summary describing Ms. Roll's performance
    in reaching, maintaining and exceeding training objectives of the Informed Consent for
    Behavior Support Program/Medication from 2009 through 2017."
    Roll attempts to undermine this broad finding—that the evidence supports the
    assessment of Parsons staff that Roll can be appropriately treated in a community-based
    program—by challenging several individual findings by the district court regarding her
    abilities and treatment needs. For example, Roll, through her guardians, argues that
    findings by the district court regarding her ability to read (or understand what she is
    reading), function without verbal prompts, or play the piano are contradicted by
    conflicting evidence presented at trial. Roll also argues that the district court's finding
    that she was not in "active treatment" conflicts with the testimony of her guardians and
    others. And Roll notes that after touring two community-based programs, her guardians
    testified that in their opinion neither would be able to provide the level of treatment she
    received at Parsons.
    These arguments are not persuasive on appeal, however. It is not this court's role
    to reweigh the conflicting testimony and evidence before the district court. Rather, we
    15
    must determine whether there is evidence in the record to support the court's findings.
    Having reviewed the record of the trial, we conclude there is. For example, Parsons staff
    testified that Roll would often sit by herself and read magazines, the newspaper, or the
    Bible. The district court found that during the afternoon, Roll would "work on puzzles,
    read magazines, read the newspaper or her bible." Contrary to Roll's arguments on
    appeal, the court did not make any finding regarding Roll's level of comprehension of
    that material. Similarly, Roll's argument as to whether she is in "active treatment" reflects
    a difference of opinion between what Roll's guardians believe to be active treatment and
    the descriptions of the Parsons medical staff; the district court's finding is supported by
    substantial competent evidence in the record.
    But more importantly, the district court's finding regarding the appropriateness of
    community-based treatment did not center on any of Roll's particular abilities or
    challenges. Instead, it was based on the testimony and documentary evidence provided by
    the doctors and staff at Parsons—the only medical professionals to testify throughout the
    trial—who explained that a community setting would adequately address Roll's treatment
    needs. Though the guardians disagreed, often vehemently, with this assessment and
    continue to do so on appeal, the fact remains that the court's finding is supported by
    extensive evidence in the record.
    Finally, Roll correctly points out that the district court's journal entry makes no
    reference to the guardian ad litem's reports or testimony. A district court does not have
    discretion to disregard undisputed relevant evidence. See State v. Smith, 
    303 Kan. 673
    ,
    679, 
    366 P.3d 226
    (2016). But the guardian ad litem's conclusions in this case were
    contested. The guardian ad litem concluded that it would be in Roll's best interests, given
    her age and settled routine, to remain at Parsons. During his testimony, the guardian ad
    litem admitted that though he had reviewed Roll's medical and psychological
    assessments, he had not spoken with any of the medical professionals who treated her—
    and who had reached the opposite conclusion. Nor did he provide any opinion on whether
    16
    Roll would be able to successfully transition to a community-based program, though
    other witnesses did. In short, the district court's failure to reference or analyze the
    guardian ad litem's position in its written opinion does not undermine its finding that
    community-based treatment can appropriately serve Roll's needs. Accord Garetson
    Brothers v. American Warrior, Inc., 
    51 Kan. App. 2d 370
    , 387, 
    347 P.3d 687
    (2015)
    (finding the district court "did not ignore undisputed evidence," but rather "weighed the
    conflicting evidence—which included [the Division of Water Resources'] final report—
    and made factual findings"), rev. denied 
    303 Kan. 1077
    (2016).
    The district court's finding that Roll's treatment needs can be adequately addressed
    in a community-based treatment program is supported by substantial competent evidence.
    2.     The Americans with Disabilities Act and the Social Security Act do not provide
    Roll the relief she seeks.
    Having determined that the evidence in the record supports the district court's
    factual finding about the adequacy of community-based treatment, we turn to the
    question of whether the district court erred when it denied the permanent injunction.
    Though the court analyzed multiple factors in its analysis, the primary reason for its
    denial was the court's conclusion that Roll could not succeed as a matter of law on her
    claims under the SSA or the ADA.
    Injunctions are equitable remedies. A person seeking permanent injunctive
    relief—in this case, an order to permanently prevent the Department from transferring
    Roll to a different facility—must show that five factors weigh in favor of the requested
    injunction. First and foremost, the person seeking a permanent injunction must prevail on
    the merits of his or her claim—he or she must "actually succeed[] on the merits of the
    lawsuit . . . after a final determination of the controversy." Wolfe Electric, Inc. v.
    Duckworth, 
    293 Kan. 375
    , 410, 
    266 P.3d 516
    (2011); see also Downtown Bar and Grill v.
    State, 
    294 Kan. 188
    , 191, 
    273 P.3d 709
    (2012); Husky Ventures, Inc. v. B55 Investments,
    17
    Ltd., 
    911 F.3d 1000
    , 1011 (10th Cir. 2018) (listing standards for obtaining a permanent
    injunction under federal law). Though the success on the merits weighs heavily in favor
    of issuing an injunction, the person seeking injunctive relief must also demonstrate that
    the absence of an injunction would lead to irreparable harm; that no adequate legal
    remedy exists to address the person's claim; that the person's injury would outweigh the
    harm any injunction may cause to the opposing party; and that the injunction, if issued,
    would not be adverse to the public interest. See Downtown Bar and 
    Grill, 294 Kan. at 191
    ); Husky 
    Ventures, 911 F.3d at 1011
    .
    Because injunctive relief is equitable in nature, the weighing of these factors
    necessarily involves an exercise of judicial discretion. See Friess v. Quest Cherokee,
    L.L.C., 
    42 Kan. App. 2d 60
    , 63, 
    209 P.3d 722
    (2009). Appellate courts review the grant
    or denial of injunctive relief for an abuse of discretion. Downtown Bar and 
    Grill, 294 Kan. at 191
    . The scope of that discretion varies, however, based on the contours of the
    issues presented to the district court. A district court has no discretion to make errors of
    law; we exercise unlimited review over a court's legal conclusions. See Brown v.
    ConocoPhillips Pipeline Co., 
    47 Kan. App. 2d 26
    , 36, 
    271 P.3d 1269
    (2012). Similarly,
    to the extent a court's analysis rests on factual findings, we review those findings to
    determine whether they are based on substantial competent evidence and are sufficient to
    support the district court's conclusions of 
    law. 47 Kan. App. 2d at 32
    .
    For the reasons we explain below, we agree that neither of these Acts provides a
    right for Roll to refuse community-based treatment and insist on receiving institutional
    care when medical professionals have concluded such community-based treatment is
    appropriate. Because Roll cannot succeed on the merits of her claims, the district court
    did not err when it denied her request for a permanent injunction. See Wolfe 
    Elec., 293 Kan. at 411
    .
    18
    2.1.   There is no right under the ADA or its regulations for a person to demand
    institutional treatment when more integrated, community-based services
    are adequate to address his or her treatment needs.
    The ADA was enacted by Congress in 1990 to diminish discrimination against
    persons with disabilities. Though federal law had attempted to tackle this issue in the past
    in various ways, for the first time, the ADA sought to address, among other forms of
    unfair treatment, discrimination that arose from institutionalization and segregation of
    people with disabilities. See Olmstead v. L.C. ex rel. Zimring, 
    527 U.S. 581
    , 589 n.1, 
    119 S. Ct. 2176
    , 
    144 L. Ed. 2d 540
    (1999). In the ADA's general findings, Congress
    recognized that society has historically "tended to isolate and segregate individuals with
    disabilities, and . . . such forms of discrimination against individuals with disabilities
    continue to be a serious and pervasive social problem." 42 U.S.C. § 12101(a)(2) (2018).
    Congress noted that "discrimination against individuals with disabilities persists in such
    critical areas as . . . institutionalization." 42 U.S.C. § 12101(a)(3). And "individuals with
    disabilities continually encounter various forms of discrimination, including outright
    intentional exclusion [and] segregation." 42 U.S.C. § 12101(a)(5).
    Title II of the ADA governs state and other public entities that provide public
    accommodations and services. Relevant here, Title II of the ADA states: "Subject to the
    provisions of this subchapter, no qualified individual with a disability shall, by reason of
    such disability, be excluded from participation in or be denied the benefits of the services,
    programs, or activities of a public entity, or be subjected to discrimination by any such
    entity." 42 U.S.C. § 12132 (2018).
    This statute is implemented, in part, through 28 C.F.R. § 35.130 (2019). See 42
    U.S.C. § 12134(a) (2018) (attorney general to promulgate regulations to implement Title
    II's directives). The first section of that regulation essentially incorporates the ADA's
    language, stating again that "[n]o qualified individual with a disability shall, on the basis
    of disability, be excluded from participation in or be denied the benefits of the services,
    19
    programs, or activities of a public entity, or be subjected to discrimination by any public
    entity." 28 C.F.R. § 35.130(a). The regulation goes on to provide multiple examples of
    unlawful discrimination, including "[d]eny[ing] a qualified individual with a disability
    the opportunity to participate in or benefit from [the public entity's] aid, benefit, or
    service." 28 C.F.R. § 35.130(b)(1)(i).
    Consistent with the general findings of Congress articulated in the ADA itself, the
    regulation directs that a public entity "shall administer services, programs, and activities
    in the most integrated setting appropriate to the needs of qualified individuals with
    disabilities." 28 C.F.R. § 35.130(d). At the same time, however, "[n]othing in this part
    shall be construed to require an individual with a disability to accept an accommodation,
    aid, service, opportunity, or benefit provided under the ADA or this part which such
    individual chooses not to accept." C.F.R. § 35.130(e)(1); see 42 U.S.C. § 12201(d).
    Roll argues that these statutory and regulatory provisions—either individually or
    in combination, as they were interpreted and applied by the Supreme Court in
    Olmstead—establish a right for Roll to refuse transfer to a community-based setting and
    remain at Parsons. The interpretation of the ADA and its regulations is a question of law
    we review de novo. See State v. Keel, 
    302 Kan. 560
    , Syl. ¶ 4, 
    357 P.3d 251
    (2015).
    When interpreting statutes, our primary aim is to determine the intent of the body
    enacting the legislation (here, Congress). 
    302 Kan. 560
    , Syl. ¶ 5. We look to the plain
    language of the statute or regulation in question, giving common words their ordinary
    meanings. 
    302 Kan. 560
    , Syl. ¶ 6. But this analysis does not occur in isolation. Rather,
    courts must consider the various provisions of an act in context—in pari materia—and
    seek to reconcile those provisions into workable harmony. Friends of Bethany Place v.
    City of Topeka, 
    297 Kan. 1112
    , 1123, 
    307 P.3d 1255
    (2013).
    20
    In Olmstead, the Supreme Court interpreted these same provisions when
    considering whether Title II of the ADA required placement of certain individuals with
    mental disabilities in community-based treatment programs instead of institutions.
    Olmstead involved two women with mental disabilities and mental illnesses who were
    admitted to and received treatment in the psychiatric unit of a Georgia state hospital.
    After their conditions stabilized, both women sought—and their doctors recommended—
    treatment in a community-based program. When the hospital declined to release them, the
    women sued, arguing their continued confinement despite the doctors' recommendations
    violated Title II of the ADA.
    After considering both the ADA and its regulations, Olmstead held that unjustified
    segregation in an institution constitutes discrimination under Title 
    II. 527 U.S. at 597
    .
    The Court observed that the congressional findings in the ADA relating to
    institutionalization and segregation reflect an understanding that institutionalization
    severely restricts a person's daily life activities. And the institutionalization of individuals
    who can function in a community-based environment perpetuates a stereotype that such
    individuals should not be in the 
    community. 527 U.S. at 600-01
    .
    To determine whether unjustified discrimination—and thus a violation of the
    ADA—exists, the Court established a three-pronged test: A public entity has the duty to
    move patients from an institutional setting to a community-based setting when (1) "[its]
    treatment professionals determine that such placement is appropriate," (2) "the affected
    persons do not oppose such treatment," and (3) "the placement can be reasonably
    accommodated, taking into account the resources available to the State and the needs of
    others with mental 
    disabilities." 527 U.S. at 607
    .
    The first prong in this analysis, whether community-based treatment is
    appropriate, establishes whether a placement potentially constitutes discrimination by
    comparing the individual's treatment needs with the appropriateness of more integrated
    21
    alternatives. To make this determination, the State or other public entity "may rely on the
    reasonable assessments of its own professionals in determining whether an individual
    'meets the essential eligibility requirements' for habilitation in a community-based
    
    program." 527 U.S. at 602
    . Without a determination that community-based treatment is
    appropriate, Olmstead observed that "it would be inappropriate to remove a patient from
    the more restrictive 
    setting." 527 U.S. at 602
    .
    As a result of this qualification prong, public entities have an ongoing duty under
    the ADA to assess whether an individual's treatment can be met in a more integrated (or
    less restrictive) environment. See Messier v. Southbury Training School, 
    562 F. Supp. 2d 294
    , 337-38 (D. Conn. 2008) (to comply with the integration mandate, institutions cannot
    wait until a patient requests a transfer to determine whether that patient's needs could be
    met in a more integrated setting). This analysis also seeks to ensure that people who need
    institutional care are not denied those services—"nothing in the ADA or its implementing
    regulations condones termination of institutional settings for persons unable to handle or
    benefit from community settings." 
    Olmstead, 527 U.S. at 601-02
    .
    The second and third prongs of the Olmstead test create exceptions to excuse
    otherwise discriminatory acts—that is, they establish when discriminatory segregation
    does not violate Title II. Under the second prong, a patient may consent to ongoing
    segregation (by opposing transfer), giving up his or her ability to challenge that action.
    See Schwartz et al., Realizing the Promise of Olmstead: Ensuring the Informed Choice of
    Institutionalized Individuals with Disabilities to Receive Services in the Most Integrated
    Setting, 40 J. Legal Med. 63, 83-85 (May 2020). In explaining the role of a person's
    consent, the Olmstead Court noted that federal law does not require "that community-
    based treatment be imposed on patients who do not desire 
    it." 527 U.S. at 602
    (citing
    28 C.F.R. § 35.130[e][1]). Thus, the ADA does not require a public entity to transfer a
    person from an institution to a community-based program if the person wishes to remain
    at the institution. Instead, a disabled person can consent to a government's discriminatory
    22
    practice, excusing an otherwise actionable violation. And the third prong gives the public
    entity an affirmative defense even when the patient either desires or does not oppose
    placement in a more integrated environment to explain why a more integrated placement
    cannot be accommodated under the particular facts presented.
    Turning to the case before us, Roll argues that even if community-based treatment
    were appropriate in her case—a finding supported by substantial competent evidence in
    the record—Olmstead's second prong is not merely a caveat to the ADA's anti-
    discrimination provisions. Rather, she asserts, Olmstead recognized a disabled person's
    affirmative right under the ADA to refuse community-based services and insist on
    continued institutional treatment. We disagree for several reasons.
    First, the Department's proposed transfer from Parsons to a community-based
    treatment setting does not fall within the scope of governmental discrimination
    proscribed by the ADA. The ADA defines discrimination as, among other things,
    unjustified segregation (including institutionalization) of disabled persons from the
    greater community. See 42 U.S.C. § 12101(a)(2), (3), (5). Had the Department insisted
    that Roll remain at Parsons, as the Georgia hospital did in Olmstead, such a directive
    would be prima facie evidence of discrimination under the ADA because it would have
    excluded her from participating in a more integrated program for which she was
    qualified. See 42 U.S.C. § 12132; 
    Olmstead, 527 U.S. at 607
    . Here, however, we are
    presented with the factual inverse of Olmstead; it is the Department that seeks to transfer
    Roll to an appropriate and more integrated—that is, less discriminatory—environment
    while Roll (and her guardians) oppose the transfer. The Department has not proposed a
    discriminatory act that triggers the ADA's protections.
    Second, nothing in the language of the ADA or its regulations establishes a right
    for a person to demand more restrictive treatment (i.e. greater discrimination) than what
    is appropriate for his or her treatment. Olmstead recognizes that a person may agree to
    23
    remain in an institutionalized setting, thereby giving up the right to challenge a State's
    discriminatory actions. This recognition does not establish an affirmative right to demand
    more extensive and restrictive treatment than is medically necessary.
    Rather, the ADA's implementing regulations underscore that a public entity must
    provide the option of an accommodation commensurate with the person's disability. See
    28 C.F.R. § 35.130(b)(1)(i). As a person's need increases, the services the State offers
    must also increase and be commensurate to the aid provided others. See 28 C.F.R.
    § 35.130(b)(1)(i)-(iii). If the person's needs diminish, the State may choose to provide
    care beyond the level required. See 28 C.F.R. § 35.130(c). But nothing in the ADA or its
    regulations imposes an obligation on the public entity to provide the level of aid the
    person previously required or came to expect. Indeed, such a provision would contradict
    Congress' aim in enacting the ADA—discouraging discrimination against those with
    mental disabilities through needless segregation from their communities. Accord Friends
    of Bethany 
    Place, 297 Kan. at 1123
    (statutory provisions should be read in harmony to
    effect legislative objectives).
    Third, though 28 C.F.R. § 35.130(e)(1) recognizes that individuals do not have to
    accept a government service for which they are qualified, they must still be that—
    "qualified." See 28 C.F.R. § 35.130(b)(1)(i). In other words, the ADA does not require a
    person to accept government services and treatment, even when that treatment is
    appropriate. But the ADA cannot be used to justify a demand for treatment beyond that
    which is appropriate for a person's condition.
    Indeed, Roll's argument as to Olmstead's second prong cannot be reconciled with
    the Court's holding in that case. Olmstead's focus was on an institution's compliance with
    the ADA. An institution does not violate Title II, and is not required to transfer a patient,
    when a patient consents to remain in a less integrated environment. It does not follow that
    24
    a person has the right to choose to remain at an institution regardless of his or her medical
    needs, or that an institution lacks the power to move a person who does not consent.
    The cases Roll cites in her brief do not lead us to a different conclusion. For
    example, Jensen v. Minnesota Department of Human Services, 
    138 F. Supp. 3d 1068
    (D.
    Minn. 2015), involved a class action alleging Minnesota had not been providing
    treatment for individuals with mental-health conditions in the most integrated setting, in
    violation of Olmstead. As part of a settlement agreement, the State adopted an "Olmstead
    Plan" outlining steps for greater integration in community programs. In approving the
    plan, the court noted that "the Olmstead decision is not about forcing integration upon
    individuals who choose otherwise," and the goal of "placing individuals with disabilities
    in the most integrated setting must be balanced against what is appropriate and desirable
    for the individual." 
    Jensen, 138 F. Supp. 3d at 1075
    . Thus, Jensen recognizes, like the
    ADA and Olmstead, that the appropriateness of more integrated treatment requires an
    individualized analysis for each person receiving treatment. This does not mean,
    however, that a State must always provide more segregated treatment than is appropriate
    or necessary at a patient's request. See also Joseph S. v. Hogan, 
    561 F. Supp. 2d 280
    (E.D.N.Y. 2008) (denying motion to dismiss plaintiff class' claims that New York was
    essentially warehousing individuals with mental-health conditions in nursing homes
    instead of seeking more integrated and effective community-based treatment). But see In
    re Easly, 
    771 A.2d 844
    , 851-52 (Pa. Cmwlth. Ct. 2001) (concluding, in a divided opinion,
    that Olmstead's second prong implied a right to insist on continued institutionalization).
    Fourth, we disagree with Roll's argument on appeal that the district court erred
    when it repeatedly described the ADA's integration requirement as requiring placement in
    the "least restrictive setting" (rather than the "most integrated setting") appropriate. While
    the ADA requires placement in the "most integrated setting," the district court often used
    the phrase "least restrictive setting" to describe community-based programs—a phrase
    that arises out of Kansas guardianship law. Our review of the district court's discussion
    25
    demonstrates the court understood that the relevant focus of the ADA and Olmstead was
    to integrate individuals with mental-health conditions in their communities to the greatest
    extent possible and appropriate. The variation between the terminology the court
    employed and the language used in the ADA, in this instance, is a distinction without a
    difference. Accord 
    Olmstead, 527 U.S. at 602
    (contrasting community-based treatment
    with "the more restrictive setting" of institutionalization).
    The second prong of the Olmstead analysis cannot be divorced from the Court's
    holding in that case. If a patient opposes receiving treatment in a more integrated
    environment, as Roll has here, the ADA does not require integration. But a person's
    opposition does not deprive the institution of the power to place a person into a more
    integrated environment. See Bagenstos, Taking Choice Seriously in Olmstead
    Jurisprudence, 40 J. Legal Med. 5, 7-9 (May 2020) (explaining Olmstead is about
    integration, comparing its integration requirement to Brown v. Board of Education, and
    noting federal court decisions that rejected objections by patients who wished to remain
    in a more segregated environment); Note, Integration as Discrimination Against People
    with Disabilities? Olmstead's Test Shouldn't Work Both Ways, 46 Cal. W. L. Rev. 177,
    189-91 (2009) (discussing the basis of the "do not oppose" provision, 28 C.F.R. §
    35.130[e][1]).
    The ADA may excuse a person's institutionalization by a government entity, even
    if he or she could be appropriately treated in a community setting, if the person consents
    to his or her continued segregation. But it does not prohibit the government from placing
    that person in an appropriate community-based treatment program. The Department has
    chosen to transfer Roll to a community placement. The district court correctly concluded
    that neither the ADA, its regulations, nor the Supreme Court's decision in Olmstead
    establish a right to remain at Parsons when community-based treatment is appropriate.
    26
    2.2.    The Social Security Act's "freedom of choice" provision does not establish
    a right to choose more segregated treatment than what is appropriate.
    After the trial, the court allowed Roll to add a claim, pursuant to 42 U.S.C. § 1983,
    for a violation of § 1915 of the Social Security Act, traditionally referenced as Medicaid's
    "freedom of choice" provision. This statute involves Medicaid waivers, which allow the
    federal government to waive rules that usually apply to the Medicaid program. Under a
    waiver, states can provide services to their residents that normally would not be covered
    by Medicaid. For example, a waiver would allow Medicaid funds to be spent on in-home
    care for people who otherwise would have to go into long-term institutional care. The
    "freedom of choice" provision cited by Roll requires a State, in order to receive federal
    Medicaid funding, to provide an assurance that
    "individuals who are determined to be likely to require the level of care provided in a
    hospital, nursing facility, or intermediate care facility for the mentally retarded are
    informed of the feasible alternatives, if available under the [Medicaid] waiver, at the
    choice of such individuals, to the provision of inpatient hospital services, nursing facility
    services, or services in an intermediate care facility for the mentally retarded." 42 U.S.C.
    § 1396n(c)(2)(C).
    The SSA's accompanying regulations authorize a state to obtain a Medicaid waiver that
    provides funding for home and community-based services (HCBS)—not merely hospital-
    based services—if it agrees to provide a person
    "[a]ssurance that when a beneficiary is determined to be likely to require the level of care
    provided in a hospital, NF [nursing facility], or ICF/IID [intermediate care facilities for
    individuals with intellectual disabilities], the beneficiary or his or her legal representative
    will be—
    "(1) Informed of any feasible alternatives available under the waiver; and
    "(2) Given the choice of either institutional or home and community-based services."
    42 C.F.R. § 441.302(d) (2019).
    27
    Roll alleges that since she is qualified to remain at Parsons (in that her mental-
    health conditions fall within the hospital's broader treatment mission), these provisions of
    the SSA indicate that she has the option to stay there—to choose "either institutional or
    home and community-based services." The district court did not analyze whether Parsons'
    proposed transfer without Roll's consent violated these provisions; it simply noted the
    Kansas Medicaid plan contains this assurance and summarily ruled that the proposed
    transfer did not violate these provisions.
    As a preliminary matter, the Department argues that Roll does not have standing to
    bring this claim, as federal law does not recognize a private right of action under
    Medicaid's "freedom of choice" provisions. Under 42 U.S.C. § 1983, a person deprived of
    "any rights, privileges, or immunities secured by the Constitution and laws" may sue to
    vindicate the deprivation of those rights. Section 1983 does not create independent rights,
    however; instead, it provides a procedural vehicle—a remedy—through which a person
    may vindicate rights secured elsewhere. Gonzaga University v. Doe, 
    536 U.S. 273
    , 284,
    
    122 S. Ct. 2268
    , 
    153 L. Ed. 2d 309
    (2002). Since most statutes do not contain such a
    remedy, claims are often brought under § 1983. See Blessing v. Freestone, 
    520 U.S. 329
    ,
    347, 
    117 S. Ct. 1353
    , 
    137 L. Ed. 2d 569
    (1997). But before proceeding under § 1983, a
    person must demonstrate a law provides an individual right to sue.
    Courts apply a two-part, burden-shifting test when determining whether a federal
    law creates a right enforceable under § 1983. The plaintiff bears the initial burden to
    demonstrate a law creates an enforceable right by establishing three factors. First,
    Congress must have intended the provision to benefit the plaintiff. Second, the right
    cannot be so "'vague and amorphous'" that it would be difficult for courts to 
    enforce. 520 U.S. at 340
    . And third, the statute "must unambiguously impose a binding obligation on
    the 
    States." 520 U.S. at 341
    . Meeting these three factors creates a presumption of
    enforceability. The burden then shifts to the State to rebut that presumption by
    demonstrating a congressional intent to foreclose § 1983 
    enforcement. 520 U.S. at 341
    .
    28
    Only rights are enforceable under § 1983, not benefits or interests. Gonzaga
    
    University, 536 U.S. at 283
    . To determine whether an individual right exists, courts
    examine whether Congress used rights-creating 
    language. 536 U.S. at 284
    ; Alexander v.
    Sandoval, 
    532 U.S. 275
    , 288-89, 
    121 S. Ct. 1511
    , 
    149 L. Ed. 2d 517
    (2001). For example,
    statutes that focus on the entities regulated rather than the individuals protected are
    generally insufficient to create an individual 
    right. 532 U.S. at 289
    . Similarly, statutes
    that focus on the administration of a system instead of on the individuals in that system
    also indicate that Congress did not intend to create a right. See 
    Blessing, 520 U.S. at 343
    .
    Several courts across the country have analyzed Medicaid's "freedom of choice"
    provision in 42 U.S.C. § 1396n(c)(2)(C) and found that it provides a private right
    enforceable under § 1983. See Ball v. Rodgers, 
    492 F.3d 1094
    , 1117 (9th Cir. 2007); Ball
    by Burba v. Kasich, 
    244 F. Supp. 3d 662
    , 683-84 (S.D. Ohio 2017); Guggenberger v.
    Minnesota, 
    198 F. Supp. 3d 973
    , 1014-15 (D. Minn. 2016); Michelle P. ex rel.
    Deisenroth v. Holsinger, 
    356 F. Supp. 2d 763
    , 768-69 (E.D. Ky. 2005); Waskul v.
    Washtenaw County Community Mental Health, No. 16-10936, 
    2019 WL 1281957
    , at *5
    (E.D. Mich. 2019) (unpublished opinion); Illinois League of Advocates for the
    Developmentally Disabled v. Quinn, No. 13 C 1300, 
    2013 WL 5548929
    , at *9 (N.D. Ill.
    2013) (unpublished opinion); Zatuchni v. Richman, No. 07-CV-4600, 
    2008 WL 3408554
    ,
    at *10 (E.D. Pa. 2008) (unpublished opinion). At least one court, after squarely
    considering the question on the merits, has held that no right exists. See M.A.C. v. Betit,
    
    284 F. Supp. 2d 1298
    , 1307 (D. Utah 2003) (provision lacks sufficient rights-creating
    language, turning largely on pre-Affordable Care Act Spending Clause jurisprudence).
    The Ninth Circuit's decision in Ball, which provides the most thorough post-
    Gonzaga discussion of whether § 1396n(c)(2)(C) confers an individual right, concluded
    that it does. See 
    Ball, 492 F.3d at 1119-20
    . The court devoted most of its analysis to the
    first factor—whether Congress intended to create an individual right—and found several
    29
    indicia that Congress intended that 
    result. 492 F.3d at 1106-15
    . For example, the
    provision's language refers to individuals and their need to both be informed of and
    choose a less restrictive environment; it addresses the needs of specific individuals, not
    the needs of the 
    aggregate. 492 F.3d at 1107
    . The court likewise found the provision uses
    rights-creating 
    language. 492 F.3d at 1108-11
    . And surrounding statutes, agency
    regulations, and legislative history also indicate a legislative intent to create an individual
    right to effectuate a person's choice of treatment 
    facility. 492 F.3d at 1112-15
    .
    We find this analysis persuasive and agree with the majority of courts that have
    considered the question whether § 1396n(c)(2)(C) creates an individual right that can be
    enforced under § 1983. As Ball noted, rights to participate in appropriate treatment
    choices are not vague or amorphous. A court can determine compliance based on a state's
    Medicaid plan, state records, and patient and provider 
    testimony. 492 F.3d at 1115
    . The
    provision imposes an obligation on the State to inform patients of options, meeting the
    third 
    factor. 492 F.3d at 1116
    . And the SSA does not express a legislative intent to
    prohibit a claim through § 1983 or to provide an alternative 
    remedy. 492 F.3d at 1116-17
    .
    The Department's other arguments as to why we should not proceed to consider
    the merits of Roll's claim under the SSA are similarly unconvincing. It is true, as the
    Department points out, that the merits of this claim were not meaningfully discussed in
    the district court's opinion. But the record here is sufficient to allow us to address this
    claim, which turns largely on legal questions: the interpretation of Medicaid statutes and
    their implementing regulations.
    The relevant Medicaid statute provides that persons who are "determined to be
    likely to require the level of care provided in a hospital" must be "informed of . . .
    feasible alternatives [to] inpatient hospital services." 42 U.S.C. § 1396n(c)(2)(C). And
    those individuals must be "[g]iven the choice of either institutional or home and
    community-based services." 42 C.F.R. § 441.302(d)(2). This choice only arises, however,
    30
    when a court has determined someone is "likely to require the level of care provided in"
    one of the facilities listed in the statute. 42 U.S.C. § 1396n(c)(2)(C).
    The district court concluded that community-based treatment was appropriate for
    Roll's needs. In other words, Roll does not require an institutionalized level of care.
    Indeed, for several years, Parsons medical personnel have believed Roll could function
    well in a community environment, though the hospital has previously allowed Roll to
    remain given her guardians' opposition. Contrary to Roll's arguments on appeal, the
    choice afforded by the Medicaid waiver program is not unlimited. As with Roll's claims
    under the ADA, Roll's choice of treatment options only extends to those options
    appropriate for her medical needs. Because the court found that Roll does not require
    institutionalized care, the Department had no obligation to let her choose to stay in an
    institutional setting. Thus, Roll cannot succeed on her § 1983 claim under the SSA.
    Roll cannot prevail on the merits of her claims under the ADA or the SSA.
    Without succeeding on the merits, a "permanent injunction simply cannot stand as a
    matter of law." Wolfe 
    Electric, 293 Kan. at 411
    . The district court did not abuse its
    discretion when it denied the permanent injunction.
    3.     Roll's remaining arguments do not change these conclusions.
    Roll's brief asserts several other challenges relating to the district court's factual
    findings and statements in its journal entry, as well as various procedural claims
    regarding the court's pretrial denial of her motion for summary judgment. But these
    claims do not alter this court's conclusion that Roll cannot succeed, as a matter of law, on
    her claims under the ADA and SSA.
    For example, Roll challenges two references in the district court's journal entry
    indicating that Roll herself desired to move to a community setting (instead of Parsons).
    31
    As background, Roll did not testify at the trial. But during the trial, Roll's attorney asked
    a Parsons administrator to talk with Roll off the record and ask whether she wanted to
    live in the community or at Parsons. The court agreed to allow the parties to proceed in
    this matter, stating it would take Roll's mental condition into consideration when
    evaluating what the administrator reported back. Based on the administrator's
    conversation with Roll, Roll appears to have answered "yes" when asked if she wanted to
    live in a community placement. Though multiple witnesses testified that Roll enjoys the
    community outings arranged by Parsons for its residents, the record includes no other
    evidence that Roll wished to move to a community-based facility. Yet the court found
    that Roll desired the transfer.
    We, like Roll, question whether this finding regarding Roll's desire is supported by
    substantial competent evidence. We do not believe the summary of a brief extrajudicial,
    out-of-court conversation between the Parsons administrator and Roll constitutes "'a
    substantial basis of fact'" as to Roll's desires, particularly given Roll's intellectual and
    mental-health condition. 
    Wiles, 302 Kan. at 73
    . But as we have discussed previously,
    neither the ADA nor the SSA provide an unqualified right to remain at a mental-health
    institution if Roll's needs can be appropriately addressed in a community-based setting.
    Thus, the question of whether Roll (or her guardians) consented to the proposed transfer
    is a red herring. Instead, the controlling question is whether a community-based program
    is an appropriate treatment setting.
    Likewise, because Roll has not succeeded on her claims under the ADA or the
    SSA, the district court did not err when it denied her request for attorney fees. See 42
    U.S.C. § 12205 (2018); 42 U.S.C. § 1988(b) (2018) (both allowing the district court
    discretion to award reasonable attorney fees to the prevailing party). And though Roll has
    again requested attorney fees on appeal, that request is similarly denied. See Supreme
    Court Rule 7.07(b) (2020 Kan. S. Ct. R. 50) (appellate court may award attorney fees
    when those fees were available before the district court).
    32
    Finally, in light of our decision affirming the denial of the permanent injunction
    after a trial on the merits, we need not address Roll's claims that the court should have
    granted her previous motion for summary judgment or that the court's journal entry
    unnecessarily addressed a claim Roll had previously withdrawn. See Evergreen Recycle
    v. Indiana Lumbermens Mut. Ins. Co., 
    51 Kan. App. 2d 459
    , 490, 
    350 P.3d 1091
    (2015).
    Before concluding, we pause to reflect on the scope of today's decision. The
    question presented in Roll's petition was whether, under the ADA or SSA, her consent (or
    her guardians' consent) is required before the Department or Parsons could transfer her to
    an appropriate community-based treatment program. We find that it is not.
    At this point, the parties have not identified which community-based program Roll
    will be joining. The district court made no finding that any specific program was
    adequate to address Roll's needs, noting instead that the next step going forward—now
    that these threshold legal questions have been resolved—is for the parties to select a
    program for Roll (or, in the case of Roll and her guardians, to determine whether they
    would prefer to decline assistance and have Roll discharged).
    Our decision today does not and cannot address these remaining practical
    questions—questions that were beyond the scope of Roll's petition. See State ex rel.
    Morrison v. Sebelius, 
    285 Kan. 875
    , 890-91, 
    179 P.3d 366
    (2008) (Kansas courts do not
    have jurisdiction to issue advisory opinions.). We hold only that the ADA and SSA do
    not require Roll's consent before she is transferred from Parsons to an appropriate
    community-based treatment program. Thus, the district court correctly denied a
    permanent injunction.
    Affirmed.
    33