Opinion
Civil Action No. SA-00-CA-0297 HG
September 30, 2001
MEMORANDUM OPINION AND ORDER
The parties having agreed, stipulated to all relevant facts and fully briefed all issues, this matter comes before the court for final decision pursuant to Federal Rule of Civil Procedure 52(a).
See Morton Denlow, Trial on the Papers: An Alternative to Cross Motions for Summary Judgment, 46 AUG Fed. Law. 30 (1999).
The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
This case arises under the Protection and Advocacy for Mentally Ill Individuals Act of 1991 ("PAMII" Act), codified at 42 U.S.C. § 10801, et seq. The essential facts are undisputed.
Exhibit P to Docket Entiy no. 34, Plaintiff's Trial Brief To the extent defendants object to plaintiff's submission of affidavits and other evidence to which defendants did not stipulate, the court has not considered that evidence in making this ruling.
Plaintiff, Advocacy, Inc., which is a designated "protection and advocacy system" ("PA") under the Act, learned that a minor had died while a resident at defendant's Laurel Ridge facility. Plaintiff requested access to the medical records of the deceased child under PAMII. The natural parents refused to consent to disclosure of those records and defendants in turn denied the request for access. Advocacy then requested defendants to release the names, addresses and phone numbers of the parents. Defendants refused. Subsequently, Advocacy was able to obtain the names of the parents through other means and, after contacting the parents directly, the parents gave authorization for the release of the requested records to plaintiff.
By this action Advocacy seeks a declaration that, pursuant to 42 U.S.C. § 10805(a)(4)(B), it was entitled to the records initially, notwithstanding the parents' refusal to consent to the release. Alternatively, Advocacy asks the court to declare that when the parents of a minor child have withheld authorization, that defendants are required to provide the parents' names and addresses, pursuant to 42 C.F.R. § 51.43. Defendants deny that they violated federal law or regulation when denying either request, and have counterclaimed, asking for declaratory relief on the same issues.
As noted above the parties have stipulated to all material facts: That Advocacy is a PA under PAMII; that the decedent was a minor, an individual with a mental illness, with natural parents, residing at defendants' facility when he died; that Advocacy received a complaint regarding this death; Advocacy requested access to decedent's records; decedent's parents declined to authorize defendants to provide access; and defendants in turn denied the request for access to records, as well as the subsequent request for the parents' names and addresses.
Access to Records Request
The first of plaintiff's claims involves Section 10805(a) of Title 42, U.S.C. That section provides:
A system established in a State under section 10803 of this title to protect and advocate the rights of individuals with mental illness shall —
. . .
(4) in accordance with section 10806 of this title, have access to all records of —
(A) any individual who is a client of the system if such individual, or the legal guardian, conservator, or other legal representative of such individual, has authorized the system to have such access;
(B) any individual (including an individual who has died or whose whereabouts are unknown) —
(i) who by reason of the mental or physical condition of such individual is unable to authorize the system to have such access;
(ii) who does not have a legal guardian, conservator, or other legal representative, or for whom the legal guardian is the State; and
(iii) with respect to whom a complaint has been received by the system or with respect to whom as a result of monitoring or other activities (either of which result from a complaint or other evidence) there is probable cause to believe that such individual has been subject to abuse or neglect; and
(C) any individual with a mental illness, who has a legal guardian, conservator, or other legal representative, with respect to whom a complaint has been received by the system or with respect to whom there is probable cause to believe the health or safety of the individual is in serious and immediate jeopardy, whenever —
(i) such representative has been contacted by such system upon receipt of the name and address of such representative;
(ii) such system has offered assistance to such representative to resolve the situation, and
(iii) such representative has failed or refused to act on behalf of the individual[.]
42 U.S.C. § 10805(a)(4) (1995).
Simply stated, the above recited section addresses the situations when the PA may have access to otherwise confidential records of individuals with mental illness. Here, the parties concede that subsection (A) does not apply in that neither the individual or legal representative consented or authorized the requested access. The parties also agree that subsection (C) is not at issue: there was neither a complaint or probable cause to believe that an individual's health or safety was in serious and immediate jeopardy.
The basis for plaintiff's claim for access involves subsection (B). Plaintiff argues that because the individual could not authorize access, because he did not have a "legal guardian, conservator, or other legal representative," and because there was a complaint concerning the individual's death, defendants were required to provide access. The disagreement between plaintiff and defendants focuses on whether a minor, with natural parents, is an individual with no "legal guardian, conservator, or other legal representative." Plaintiff's reading of the statute would require the court to find that parents do not qualify as "other legal representatives," that a parent's right to consent or refuse access to records terminates upon the death of a minor child, and/or that even if parents of minor children refuse consent, the PA can nevertheless obtain the records under 10805(a)(4)(B). This, the court declines to do.
Paraphrasing section 10805(a)(4), it is clear that access by the PA is allowed in three situations: (1) where there is consent, (2) where consent is impossible, and (3) where there is no clear consent, but the health or safety of an individual is in immediate jeopardy. In the situation presented here — where there are surviving natural parents — it would make no sense for Congress to have specifically found when implementing PAMII that "family members of individuals with mental illness play a crucial role in being advocates for the rights of individuals with mental illness who are minors," but direct that those parents have no voice with respect to release of potentially sensitive and clearly confidential records if their minor child died while in a mental health facility. This is a particularly incongruous result recognizing that if an individual has a legal guardian (rendering section 10805(a)(4)(B) inapplicable), and that guardian declines to consent to access, the guardian's wishes control. Congress could not have intended these divergent results.
Defendants have referred to the second situation, that addressed in section 10805(a)(4)(b), as the "orphan provision" and the third situation, addressed in section 10805(a)(4)(C), as the "guardian inaction provision."
42 U.S.C. § 10801(a)(1)(1995).
Although plaintiff has argued that a natural parents' legal authority to consent or withhold consent terminates on the death of the child, the only authority plaintiff can muster on this point addresses the rights of guardians, not natural parents. The distinction is important, as defendants note. Furthermore, as defendants aptly argue, after plaintiff obtained consent from the parents, everyone treated that consent as effective, and access to the records was provided. For all these reasons, the Court declines to adopt plaintiff's reading of the statute.
Alabama Disabilities Advocacy Program v. J.S. Tarwater Developmnental Center, 97 F.3d 492 (11th Cir. 1996); Tex. Probate Code §§ 694(b), 745(a) (Vernon 1999).
Disclosure of Contact Information
In the alternative, plaintiff asks the court to find that defendants were required to disclose the names, address and phone numbers of the parents when refusing access to the records. Plaintiff relies on 42 C.F.R. § 51.43 which provides as follows:
If a P A system's access to facilities, programs, residents or records covered by the Act or this part is delayed or denied, the P A system shall be provided promptly with a written statement of reasons, including, in the case of a denial for alleged lack of authorization, the name, address and telephone number of the legal guardian, conservator, or other legal representative of an individual with mental illness. Access to facilities, records or residents shall not be delayed or denied without the prompt provision of written statements of the reasons for the denial.
42 C.F.R. § 51.43 (2000).
In essence, plaintiff asks the court to find that when the facility refuses to permit access based on the parents withholding of consent, defendants must promptly provide contact information, presumably so that plaintiff can contact the parents themselves and once again request consent.
Defendants' reasons for refusing to provide the contact information appear to revolve around their interpretation of the term, "in the case of a denial for alleged lack of authorization." They ask the court to find that what took place in this case was not a denial for lack of authorization. Rather, defendants argue that access was denied because this section, 10805(a)(4)(B), what they refer to as the "orphan provision," was not applicable because the decedent had natural parents. This, they argue, is not a denial for lack of authorization, but denial for lack of applicability.
Defendants' argument denies the reality of what took place here. Plaintiff requested the records relating to the reported death, without reference to any subsection of § 10805(a)(4). When access was refused plaintiff requested the contact information, again without any reference to a particular subsection of PAMII. Regardless of whether defendants characterized the initial request as made pursuant to section 10805(a)(4)(B) . . . or 10805(a)(4)(A) . . . they refused access because it had not been authorized; by the parents or by statute.
See Exhibit F to Docket Entry no 34.
Id.
See Penn. Protection Advocacy, Inc. v. Royer-Greaves Sch. for the Blind, Civ. No. A 98-3995, 1999 WL 179797 at 9-10 (E.D.Penn. 1999) (discussing companion legislation, the Development Disability Assistance Bill of Rights, 42 U.S.C. § 6000, et seq., and its implementing regulations, the court held that focus of inquiry should be whether denial was for lack of authorization and not whether the records as to which access had been denied were covered by the act.)
Defendants justify their refusal to provide the contact information by raising the obvious inconsistency in plaintiff's position in this case. Undeniably, plaintiff attempts to argue that section 10805(a)(4)(B) mandates access because the decedent here had natural parents who were, therefore, not "legal guardians, conservators, or other legal representatives." Alternatively, plaintiff argues that when the regulation directs disclosure of contact information for "legal guardians, conservators, or other legal representatives," it also includes contact information for natural parents. Defendants' complaint that plaintiff is attempting to have it both ways, is of course, true. However the weakness of plaintiff's first argument, does not foreclose consideration of their second, nor relieve defendants from their obligation to follow the obvious intent of the regulation.
The Court acknowledges that if the agency, i.e, the Department of Health and Human Services, when promulgating section 51.43 wanted to include natural parents among those for whom contact information must be disclosed, it was a very easy matter to have said so. This it did not do. Rather, it listed only "legal guardians, conservators, and other legal representatives." Nevertheless, in the Federal Register commentary accompanying the regulations, the agency addressed a public inquiry concerning whether the definition for "legal guardian, conservator and other legal representative" included parents of minor children. In response, the agency made clear, "natural and adoptive parents are legal guardians unless the State has appointed another legal guardian under applicable State law."
The definition section is found at 42 C.F.R. § 51.2 (2000).
62 Fed. Reg. 53548, 53552 (Oct. 15, 1997).
Defendants argue that the agency's response found in the Federal Register is merely interpretative guidance. To the extent the commentary found in the Federal Register conflicted with federal law, the court would not follow same. However, inclusion of natural parents within the definition of legal guardian for purposes of the regulation is entirely consistent with the purposes of PAMII. As noted above, Congress found that family members of minors with mental illness play a crucial role of advocacy for the rights of their children. Accordingly, why would Congress or the agency require the disclosure of contact information for legal guardians, but not for natural parents? PAMII gives the PA broad powers to protect and advocate for the rights of those with mental illness, to ensure enforcement of federal laws with respect to such persons, and to investigate instances of abuse and neglect. In this regard, it is no less critical to access the records of those with natural parents as those with legal guardians. Without the disclosure by the facility of the parents' names and addresses, it may be impossible for the PA to contact those parents; at the very least, it might significantly delay the process. As the facts in this case suggest, a parent who initially denies access, may subsequently change his or her mind and permit access after being contacted by the PA. Disclosure of the contact information, whether natural parents or court-appointed guardians, furthers the purposes of the Act.
42 U.S.C. § 10801(a)(2) (1995).
42 U.S.C. § 10801(b) (1995).
Conclusion
For the reasons stated above, plaintiff has failed to demonstrate that it was entitled to access pursuant to section 10805(a)(4) when it made its initial request of defendants. To the extent it has requested declaratory relief on this claim, it is denied.
However, plaintiff has shown that 42 C.F.R. § 51.43 required defendant to have disclosed the names, addresses and phone numbers of the parents of the decedent for whom those records were sought. Declaratory relief is granted as to this claim.
Both parties have requested attorneys fees. They are ordered to brief any continuing claim to attorneys fees as well as costs, if any, in light of this Memorandum Opinion and Order, and file same consistent with Local Rule CV-7(i).
SIGNED.