Roll v. Howard

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
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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
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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
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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
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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.
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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—
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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."
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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.
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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.
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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.
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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.
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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