On behalf of herself and all others similarly situated,

                                Plaintiff-Appelllee,

                                Plaintiff-Intervenor-Appellee,

AND MENTAL HEALTH SERVICES, and SUSAN BESIO in her capacity as

                                    Defendants-Appellants.

for the District of Vermont

BRIEF FOR NATIONAL ASSOCIATION OF PROTECTION AND ADVOCACY SYSTEMS, THE JUDGE DAVID BAZELON CENTER FOR MENTAL HEALTH LAW AND NATIONAL ASSOCIATION OF RIGHTS PROTECTION AND ADVOCACY AS AMICI CURIAE IN SUPPORT OF THE APPELLEE AND FOR AFFIRMANCE

                        Susan Stefan

                            Robert D. Fleischner

                            Center for Public Representation

                            22 Green Street

                            Northampton, MA 01060

                            413-586-6024

                            Counsel for Amici Curiae

July 2, 2002

TABLE OF AUTHORITIES    iii

INTEREST OF AMICI    1

SUMMARY OF ARGUMENT    3

ARGUMENT    7

    I.    Persons Subject To Act 114 Are Qualified

        To Have Their DPOAs Honored    7

    II.    Enactments Such As Act 114 That Facially Restrict

        On The Basis Of Commitment Status Violate the ADA    9

        A.    Enactments Such as Act 114 that Facially

            Restrict Statutory Rights on the Basis of

            Commitment Status Violate the ADA    9

        B.    Statutes Which Restricted Basic Rights on

            the Basis of Commitment or Guardianship

            Status Have Consistently Been Invalidated    14

    III.    Appellants' Fundamental Alteration Defense Fails    18

        A.    The Affirmative Defense of Fundamental

            Alteration Is Inapplicable in Cases Where

            the Plaintiff Does Not Seek a Reasonable

            Accommodation    18

        B.    Even if the State Is Entitled to Assert

            a Fundamental Alteration or Necessity

            Defense, It Cannot Carry Its Burden of

            Proof Because There Is No Evidence Linking

            Treatment Refusals Under DPOAs to Increased

            Lengths of Stay in Hospital Settings    21

CONCLUSION    28

    TABLE OF AUTHORITIES

CASES

Allen v. Heckler, 780 F.2d 64 (D.C. Cir. 1985)    14

Bangerter v. Orem, 46 F.3d 1491 (10th Cir. 1995)    14, 20

Borkowski v. Central Valley School District, 63 F.3d 131

(2nd Cir. 1995)    19

Bragdon v. Abbott, 524 U.S. 624 (1998)    21

Doe v. Stincer, 990 F.Supp 1427 (S.D.Fla. 1997), vacated on

other grounds,175 F.3d 879 (11th Cir. 1999)                    10, 15, 16

Doe v. Rowe, 156 F.Supp.2d 35 (D.Me. 2001)    14

Ellen S. v. Florida Board of Bar Examiners, 859 F.Supp. 1489

(S.D.Fla. 1994)    17

Garcia v. State of New York Health Sciences Center, 280 F.3d 98

(2nd Cir. 2001)    6, 19

Garrity v. Gallen, 522 F. Supp 171, (D.N.H. 1981)    10

Guckenberger v. Boston University, 947 F.Supp. 106 (D.Mass. 1997)    17

In re Hatsuye T., 689 N.E.2d 248 (Ill. App. Div. 1997)    16

In re Janet S., 712 N.E. 2d 422 (Ill. App.Ct. 1999)    16

In re L.R., 146 Vt. 17 (1985)    11, 12

In re P.S., 167 Vt. 63 (1997)    9, 11, 12

In re Rosa M., 155 Misc.2d 103 (N.Y.Sup.Ct. 19991)    11, 16

J.S. v. City of Newark, 652 A.2d 265 (N.J. Super. 1993)    27

Manhattan State Citizens' Group v. Bass, 524 F.Supp. 1270

(S.D.N.Y. 1981)    14

Martin v. Voinovich, 840 F.Supp. 1175 (S.D. Ohio 1993)    10

Messier v. Southbury Training School, 1999 U.S. Dist. Lexis 1479

(D. Conn. Jan. 5, 1999)    10

Mx. Group v. City of Covington, 2002 U.S.App Lexis 11249

(6th Cir. June 12, 2002)    16, 20

Olmstead v. L.D. ex rel. Zimring, 527 U.S. 581 (1999)    9

Regional Economic Community Action Program v. City of Middletown,

281 F.3d 333 (2nd Cir 2002)    17

Rivers v. Katz, 495 NE2d 337 (N.Y. 1986)    23

Rogers v. Commissioner of Mental Health, 458 NE2d 308 (Mass. 1983)    23, 27

Rogers v. Okin, 478 F.Supp. 1242 (D.Mass. 1979)    23

Staron v. McDonald's Corp., 51 F.3d 353 (2nd Cir. 1995)    19

State ex. rel. Jones v. Gerhardstein, 416 N.W. 2d 883 (Wisc. 1987)    23

Toraty v. Mental Hygiene Legal Services, (In re Joseph O.)

666 N.Y.S.2d 322 (N.Y.App.Div. 1997)    27

United Auto Workers v. Johnson Controls, 499 U.S. 187 (1991)    21

STATUTES, REGULATIONS AND RULES

42 U.S.C. § 10801     1

42 U.S.C. § 12102(a)(5)    3

42 U.S.C. §12131(2)    8, 10, 16

Section 504 of the Rehabilitation Act    10, 15

28 C.F.R. § 35.130(b)(7)     19

14 V.S.A. 3451    3, 5, 6, 13

14 V.S.A. 3452(5)    3

14 V.S.A. 3466    22

18 V.S.A. 1058    13

18 V.S.A. 7624(a)(2)    22

18 V.S.A. 7626 (“Act 114”)    passim

18 V.S.A. 7627(d)    8

18 V.S.A. 8401-8402    13

18 V.S.A. 8839    13

ARTICLES AND BOOKS

Appelbaum, Paul S., Gutheil, "Drug Refusal: A Study of Psychiatric

Inpatients," 137 Am.J. Psychiatry 340 (1980)    23

Appelbaum, Paul S., Grisso, "The MacArthur Treatment Competence

Student: I. Mental Illness and Competence to Consent to Treatment,"

19 L. and Human Behavior 105 (1995)    16

Backler, Patricia, McFarland, “A Survey on the Use of Advance

Directives for Mental Health Treatment in Oregon,” 47 Psychiatric

Services 1387 (1996)    16

Bloom, J.D., Williams, Land, et al., "Treatment Refusal Procedures

and Service Utilization: A Comparison of Involuntarily Hospitalized

Populations," 25 J. of the Am. Acad. of Psychiatry and L. 349 (1997)    24

Clayton, Ellen Wright, "From Rogers to Rivers: The Rights of the

Mentally Ill to Refuse Medication," 13 American J. of L. and

Medicine 7 (1987)    24

Cournos, F., McKinnon, Stanley, "Outcome of Involuntary Medication in

a State Hospital System," 148 Am. J. of Psychiatry 489 (1991)    24, 25

Gordon, Phil, "Psychiatric Treatment Refusal, Patient Competence

and Informed Consent," 8 Int'l J. of Psychiatry and Law 83 (1986)    23

Hassenfeld, Irwin, Grumet, "A Study of the Right to Refuse Treatment,"

12 Bulletin of the American Academy of Psychiatry and Law 65 (1984)    24

Kasper, J.A., Hoge, Feucht-Haviar, Cortina, et al., "Prospective Study

of Patients' Refusal of Antipsychotic Medication Under a Physician

Discretion Review Procedure," 154 Am. J. of Psychiatry (1997)    25

Levin, Shelly, et al., "A Controlled Comparison of Involuntarily

Hospitalized Medicaton Refusers and Acceptors," 19 Bul. of the Am.

Acad. of Psychiatry and L. 161 (1991)    24

Rodenhauser, P., Schwenker, Khamis, "Factors Related to Drug

Treatment Refusal in a Forensic Hospital," 38 Hospital and

Community Psychiatry 631 (1987)    24, 25

Williams, et al., "Drug Treatment Refusal and Length of

Hospitalization of Insanity Acquittees," 16 Am. Aca. of

Psychiatry and L. 279 (1988)    24

Zito, Julie, et al., "Drug Treatment Refusal, Diagnosis,

and Length of Hopitalization in Involuntary Psychiatric

Patients," 4 Behavioral Science and the Law 327 (1986)    24

The three organizations submitting this brief are national organizations that advocate for individuals with disabilities. This case involves the scope and interpretation of the Americans with Disabilities Act (“ADA”), which protects people with disabilities against discrimination, as it applies to advance directives for mental health care. Because individuals served by or members of these organizations have encountered discrimination in government programs, amici have an interest in this Court's decision, and particularly the impact it will have on the availability of advance directives as an effective tool for mental health treatment planning. Amici have substantial expertise with regard to the interpretation and application of the laws relevant to this case. The Appellants have consented to the filing of the brief.

The National Association of Protection and Advocacy Systems (“NAPAS”), founded in 1981, is the membership association for protection and advocacy ("P&A") agencies. P&As were established in each state under the Protection and Advocacy for Individuals with Mental Illness Act (hereinafter "PAIMI" or "the Act"), 42 U.S.C. § 10801 et seq., and related federal statutes, to investigate abuse and neglect of persons with mental illness and other disabilities, and to provide them legal representation and advocacy services. In fiscal year 2001 alone, P&As served hundreds of thousands of people with disabilities.

The Judge David Bazelon Center for Mental Health Law (“Bazelon Center”) is a national legal-advocacy organization that works to advance the rights and dignity of individuals with mental disabilities and ensure their equal access to the services and supports they need for full participation in community life. Through litigation and in the public-policy arena, the Center strives to ensure that people with mental disabilities have equal access to health and mental health care, education, housing and employment.

In 1987, Vermont enacted legislation which allowed all Vermont citizens to create durable powers of attorney for health care (“DPOAs”) in order “to enable adults to retain control over their own medical care during periods of incapacity through the prior designation of an individual to make health care decisions on their behalf.” 14 V.S.A. 3451. The statute contemplated that “health care decisions” would include “consent, refusal to consent, or withdrawal of consent to any care, treatment service or procedure to maintain, diagnose or treat an individual’s physical or mental condition.” 14 V.S.A. 3452(5).

Eleven years later, new legislation significantly restricted the right to implement DPOAs for three groups: people involuntarily committed to psychiatric hospitals, people involuntarily committed to the community who had previously been committed to psychiatric hospitals, and convicted felons receiving mental health treatment under the joint custody of the Department of Corrections and the Department of Developmental and Mental Health Services, 18 V.S.A. 7626 (“Act 114”).

    The appellants argue that “a person subject to Act 114 is not a qualified individual with a disability” because he or she have been committed for treatment of a mental illness “based on a finding of dangerousness and…[is] incompetent to make treatment decisions.” Appellants’ Brief at 24. The definition of a “qualified individual with a disability” is “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices…meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). The eligibility requirements for implementing and executing a DPOA are contained in the statute, and by its terms it does not exclude people in appellees’ situation.

    Under Vermont law, including Act 114, commitment status alone neither empowers the State to medicate an individual against his or her will nor precludes the execution of a DPOA. Involuntary medication of persons subject to Act 114 is precluded if a court finds that they are competent. 18 V.S.A. 7627(d). If commitment status alone does not disqualify an individual from the right to refuse psychotropic medication, or from executing a DPOA, it is difficult to see how commitment status plus incompetence would disqualify an individual from implementation of a DPOA since being incompetent is a necessary qualification for its implementation. It makes very little sense to give competent psychiatric patients—even committed ones—the right to refuse psychotropic medication, but to deny them the right to implementation of their DPOAs. The State’s arguments about commitment, dangerousness, and custody are just as applicable to competent individuals under orders of treatment, and yet they have the right to refuse medication.

    Finally, it is clear that if a person is presently assaultive or threatening assault or to harm him or herself, the DPOA would not preclude emergency intervention. Appellees have never contested this. Medication used to prevent imminent harm is not the same as the ongoing medication for treatment covered by a DPOA. Since a committing court need only find dangerousness on a person’s first commitment, In re P.S. 167 Vt. 63, 71 (1997), and individuals can be recommitted many times, the appellants’ argument that all persons subject to Act 114 are unqualified because they are presently dangerous is incorrect. An initial finding of dangerousness—perhaps years earlier—is not sufficient to disqualify an individual from the right to have a DPOA implemented years after the initial commitment.

II.     Enactments Such as Act 114 that Facially Restrict Statutory Rights on the Basis of Commitment Status Violate the ADA

    Although people subject to Act 114 are disabled, otherwise qualified to implement DPOAs, and singled out as a group for differential and adverse limitations on their DPOAs, appellants argue that they are not discriminated against because of their mental illness. Rather, appellants contend their right to have their DPOAs honored is limited because 1) they are either dangerous or substantially likely to become dangerous and 2) they are in state custody. Appellants’ Brief at 20,27,32,34. However, competent persons who are committed and in state custody are allowed to make treatment choices regardless of their clinical improvement. It is difficult to understand a distinction that forbids these same people, while competent, from completing an enforceable written document indicating their treatment choices and appointing an agent. As the court said in In re Rosa M., the first case involving the advance directive of a hospitalized individual,

    The only time that the State actually needs to prove dangerousness is in an individual’s initial commitment. In re P.S., 167 Vt. at 71. Even at the initial commitment hearing, there is no need to show an overt act of dangerousness nor need the act of dangerousness be recent. In re L.R., 146 Vt. 17, 20-22 (1985). In fact, it need not even be “dangerous” under the common understanding of the word: deterioration of mental status is enough for an initial commitment. Id. Thus, while in everyday discourse “dangerousness” connotes credible threats directed at others, in the commitment context it may simply mean that soon the individual will be unable to care for himself or herself. As the Vermont Supreme Court has said, “In this context, dangerousness is an ‘amorphous concept,’ that is highly dependent on its application…many states have defined the concept with no more certainty and imminence than our ‘patient in need of further treatment’ standard…” In re P.S., 167 Vt. at 104-105. Thus, to say that Act 114 applies only to people who are dangerous or substantially likely to become dangerous is simply another way of saying that a certain subset of people with mental illness are singled out by a state statute to be excluded from the benefit of having a DPOA honored for more than 45 days.

    The exclusion of Act 114 is not based on any judgment or inquiry as to the competence of such individuals when executing the DPOA. Rather it is based on a disagreement with the choices they may have while competent . People whose DPOAs happen to agree with clinical recommendations will not be subject to Act 114’s restrictions. This is a content-based restriction that nullifies the ability of a competent person with a psychiatric disability, who often has previous experience of treatment and its effects, to make treatment choices while competent and have those choices honored later. Act 114 suspends the operation of a DPOA based on the treatment choice of the individual—the protection of which is the core function of a DPOA.

    Similarly, in this case, discrimination on the basis of commitment status is discrimination on the basis of disability under the ADA. People with mental disabilities or who are regarded as being mentally disabled are subject to commitment, so appellants’ argument that they are discriminating on the basis of commitment status amounts to an argument that they are discriminating against a sub-group of people with mental disabilities. The State under the ADA need not disadvantage all persons with a certain disability in order to discriminate: if every person disadvantaged by a certain enactment, such as Act 114, is necessarily a person with a certain disability, the act is discriminatory on the basis of disability. This is especially true in the case of laws such as Act 114, which are discriminatory on their face, as opposed to laws that have disparate impact.

    This was confirmed in Doe v. Stincer, 990 F.Supp. 1427 (S.D.Fla. 1997), where a statute requiring facilities to give former patients unfettered access to their medical treatment records but which permitted facilities to deny access to mental health treatment records, was held to violate the ADA because it operated to “impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless criteria can be shown to be necessary for the provision of the service, program or activity being offered.” Id. At 1432.

    In both Doe and this case, legislatures enacted broad rights for state citizens, then created exclusions to those rights for people receiving psychiatric treatment. In both, the exclusions were justified as protections in the best interests of the disadvantaged class. In both, available research did not support dire predictions of harm to psychiatric patients if they were allowed to exercise their rights in the same way as other citizens. In both, there is at least some evidence that citizens in other states exercise similar rights without disaster or difficulty.

A.    The Affirmative Defense of Fundamental Alteration Is Inapplicable in Cases Where the Plaintiff Does Not Seek a Reasonable Accommodation

    Appellants claim that requiring them to honor the DPOAs of people under orders of treatment would “fundamentally alter their program.” In the first place, the "program or benefit" from which appellees have been excluded is not the state’s mental health program, but the benefit of being able to implement a DPOA in the same way as other Vermont citizens. Including appellees in this program—as was done in the decade between 1987 and 1997—was hardly a fundamental alteration to objectives of the statute.

In addition, appellants misunderstand the nature of the affirmative defense of "fundamental alteration." As is clear from the regulations and case law, "fundamental alteration" and "undue hardship" are affirmative defenses that can be raised only when an individual plaintiff requests a reasonable accommodation from a defendant.

    As to the first argument, since many people subject to Act 114 are not hospitalized,

                        Respectfully submitted,

Amici NAPAS, Bazelon Center, NARPA

                        By their attorneys,    

                        ________________________

                        Susan Stefan

                        Robert D. Fleischner

                        Center for Public Representation

                        22 Green Street

                        Northampton, MA 01060

                        (413) 586-6024

I hereby certify that two copies of the above document were served upon Bridget C. Asay, Assistant Attorney General, State of Vermont, Office of the Attorney General, 109 State Street, Montpelier, VT 05609-1001, Paul M. Smith, Jenner & Block, LLC, 601 Thirteenth Street, N.W., Washington, DC 2005, Whitman Smith, Mickenberg, Dunn, Kochman, Lachs & Smith, 28 Pine Street, P.O. Box 406, Burlington, VT 05609-1001, Beth A. Danon, Vermont Protection & Advocacy, 141 Main Street, Suite 7, Montpelier, VT 05602, John Townsend Rich, Shea & Gardner, 1800 Massachusetts Avenue, N.W., Washington, D.C. 20036 by first class mail on July 2, 2002,

                            ______________________________

                            Robert D. Fleischner

I hereby certify that this brief was prepared using MS Word and that the program’s word count tool indicates that the brief (not including the cover page, tables, the corporate disclosure statement and the certificates of counsel) is 6723 words.

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