United States Court of Appeals,
Eleventh Circuit.
No. 95-6584.
ALABAMA DISABILITIES ADVOCACY PROGRAM, the Statewide Protection
and Advocacy System Organized in Accordance with Public Laws 100-
146 and 99-139, on behalf of Persons Labeled Developmentally
Disabled or Mentally Ill, Plaintiff-Appellee,
v.
J.S. TARWATER DEVELOPMENTAL CENTER, an Alabama Institution for
People with Mental Retardation, Organized and Operated Under the
Alabama Department of Mental Health and Mental Retardation; Levi
Harris, Director of J.S. Tarwater Developmental Center; Custodian
of Records of J.S. Tarwater Developmental Center; Alabama
Department of Mental Health and Mental Retardation, an Alabama
Governmental Agency; Virginia Rogers, Commissioner of the Alabama
Department of Mental Health and Mental Retardation; Billy Ray
Stokes, Associate Commissioner for Mental Health, Retardation,
Alabama Department of Mental Health and Retardation; Custodian of
Records of the Alabama Department of Mental Health and Mental
Retardation, Defendants-Appellants.
Oct. 10, 1996.
Appeal from the United States District Court for the Middle
District of Alabama. (No. CV-95-D-383-N), Myron N. Thompson, Chief
Judge.
Before EDMONDSON and DUBINA, Circuit Judges, and FARRIS*, Senior
Circuit Judge.
DUBINA, Circuit Judge:
The Defendants-Appellants J.S. Tarwater Developmental Center
("Tarwater"), et al. (collectively, "the Defendants") appeal the
district court's judgment in favor of the Plaintiff-Appellee
Alabama Disabilities Advocacy Program ("the Advocacy Program"),
which enjoined and restrained the Defendants from failing to
release to the Advocacy Program the medical records of two former
Tarwater residents. Our review of the record, the district court's
*
Honorable Jerome Farris, Senior U.S. Circuit Judge for the
Ninth Circuit, sitting by designation.
memorandum opinion, and the controlling statutory law persuade us
that the injunction was appropriately entered. Accordingly, we
affirm.
I. BACKGROUND
A. The Developmental Disabilities Assistance and Bill of Rights
Act.
Disturbed by the inhumane and despicable conditions discovered
at New York's Willowbrook State School for persons with
developmental disabilities, Congress enacted the Developmental
Disabilities Assistance and Bill of Rights Act ("the Act") to
protect the human and civil rights of this vulnerable population.
42 U.S.C. §§ 6000 et seq. Pursuant to the Act, a state cannot
receive federal funds for services to persons with developmental
disabilities unless it has established a protection and advocacy
("P & A") system. 42 U.S.C. § 6042(a)(1).
Indeed, the Act does not merely require that the state have an
advocacy system, but specifically declares: "In order for a State
to receive an allotment under Subchapter II of this chapter—(1) the
State must have in effect a system to protect and advocate the
rights of persons with developmental disabilities." 42 U.S.C. §
6042(a). Thus, P & As are empowered, among other things, to: (1)
investigate incidents of abuse and neglect of persons with
developmental disabilities; (2) pursue legal, administrative, and
other appropriate remedies on behalf of such persons to ensure the
enforcement of their constitutional and statutory rights; and (3)
provide information and referrals relating to programs and services
addressing the needs of these persons. 42 U.S.C. § 6042(a)(2)(A)
and (B). The Advocacy Program is the federally mandated and funded
P & A system Alabama has established pursuant to 42 U.S.C. §
6042(a)(1). Defendant Tarwater is an intermediate care facility
for habitation of mentally retarded persons.
B. The Advocacy Program's Investigation of the Deaths of G.A. and
M.V.
On February 24, 1995, the Advocacy Program received an
anonymous telephone message on its answering machine questioning
the circumstances of the deaths of two Tarwater residents known as
G.A. and M.V. The transcript of the telephone call reads as
follows:
Ugh yes I'm calling in regard to the Wyatt vs. Hanan Lawsuit.
Let me put a bug in your ear[,] this is for the lawyers
representing Wyatt. We had two deaths at Tarwater; one of
them was a gentleman named G[.]A[.] He was exposed to the
cold and died two days later of pneumonia. He was forced to
go down to programming. He was not dressed for it plus he was
very, very sick at the time he went. Now there is a video
tape that exists of his being sick but ugh it is my
understanding the ugh administration at Tarwater has
confiscated the video. If you people act very quickly you
might actually get some action taken because ugh there ugh
whatchacallit the administration at Tarwater are being very
very careful. There [sic] covering this thing up big time.
You want to act now. I suggest you check up on G[.]A[.] death
and ugh the fact that he was exposed to the cold weather, he
was taken to the hospital on Thursday with hyperthermic
conditions and died two days later. Also a week, not less
than a week later M[.]V[.] died. You need to check that one
out. That was also one of these strange situations. Anyway
Good luck.
The Advocacy Program verified the existence of G.A. and M.V. and
their residence at Tarwater. The Advocacy Program learned that
G.A. was a 36-year-old male who died from respiratory failure on
February 12, 1995, while residing at Tarwater. It also learned
that M.V. was a 35-year-old woman who died from acute cardio
respiratory failure on February 16, 1995, while residing at
Tarwater.
The Advocacy Program requested that Alabama state officials
release to it the records of G.A. and M.V. When that request was
refused, the Advocacy Program filed a complaint pursuant to the Act
to have the district court order the following Defendants to
release the records: (1) Tarwater, its director, and its custodian
of records; and (2) the Alabama Department of Mental Health and
Mental Retardation, its commissioners, its associate commissioner,
and its custodian of records.
After the Advocacy Program filed its complaint, the Department
of Mental Health and Mental Retardation gave the Advocacy Program
the telephone numbers of the former guardians of G.A. and M.V.
When the Advocacy Program called the families to report the
anonymous phone call, the families objected to the Advocacy
Program's investigation. On July 6, 1995, the district court
enjoined the Defendants from failing to release the requested
records to the Advocacy Program. The Defendants then perfected
this appeal and moved for a stay of judgment. The district court
denied the stay on August 7, 1995.
II. ISSUES
A. Whether this appeal was rendered moot because the Defendants
have already complied with the order of the district court and
have granted the Advocacy Program access to the records of
G.A. and M.V.
B. Whether the grant of an injunction was proper. This issue
requires us to resolve two subissues:
1. Whether a parent of an individual with developmental
disabilities, who has also been appointed guardian of such
person, ceases to be the legal representative of such person
within the meaning of 42 U.S.C. § 6042(a)(2)(I) after such
individual's death.
2. Whether an anonymous telephone call implying that abuse and/or
neglect may have caused death both constitutes a complaint
within the meaning of 42 U.S.C. § 6042(a)(2)(I)(ii)(III) and
establishes probable cause, either of which justifies the P &
A's access to the records of G.A. and M.V.
III. STANDARDS OF REVIEW
The reviewing court determines questions of mootness under a
plenary standard of review. United States v. Florida Azalea
Specialists, 19 F.3d 620, 621 (11th Cir.1994).
This court reviews the grant of an injunction for abuse of
discretion; however, if the trial court misapplies the law this
court will correct the error without deference to that court's
determination. See Wesch v. Folsom, 6 F.3d 1465, 1469 (11th
Cir.1993), cert. denied, 510 U.S. 1046, 114 S.Ct. 696, 126 L.Ed.2d
663 (1994).
IV. DISCUSSION
A. Mootness.
During oral arguments in this case, this court sua sponte
requested that the parties file supplemental briefs responding to
a suggestion of mootness. Specifically, the court inquired of
counsel whether this appeal was rendered moot due to the fact that
the Defendants had already complied with the district court's order
to grant the Advocacy Program access to the records of G.A. and
M.V.
Much like the situation we faced in United States v. Florida
Azalea Specialists, 19 F.3d 620 (11th Cir.1994), the question of
mootness in the present case is controlled by the Supreme Court's
decision in Church of Scientology of California v. United States,
506 U.S. 9, 11-12, 113 S.Ct. 447, 449, 121 L.Ed.2d 313 (1992). In
Church of Scientology, the district court ordered a state-court
clerk to comply with a summons issued by the Internal Revenue
Service ("IRS"). The Church filed a timely notice of appeal, but
its request for a stay of the summons enforcement order failed, and
copies of the tapes were given to the IRS while the appeal was
pending. The Ninth Circuit dismissed the appeal as moot, finding
that no controversy existed because the IRS had already obtained
the tapes. United States v. Zolin, No. CV 85-0440-HLH (CA9, Sept.
10, 1991). The Supreme Court, however, vacated and remanded,
holding that the compliance with the enforcement order did not moot
the Church's appeal. In so holding, the Court reasoned that
although it could not return the parties to the "status quo ante,"
the court could nevertheless effectuate a partial remedy by
ordering the government to destroy or return any and all copies of
the tapes still in its possession. Church of Scientology, 506 U.S.
at 12-13; 113 S.Ct. at 449-50.
Likewise, if we should hold that the anonymous phone call is
not a "complaint" or does not constitute probable cause as required
by 42 U.S.C. § 6042(a)(2)(I)(ii)(III), or that the natural parent
of a deceased person with developmental disabilities is a legal
representative as contemplated by Congress in 42 U.S.C. §
6042(a)(2)(I)(ii)(II), then the parents of G.A. and M.V. would be
entitled to have their childrens' confidential medical records
either returned or destroyed. Similarly, the Department of Mental
Health and Mental Retardation would be entitled to have its records
either returned or destroyed. Even though this court cannot return
the parties to the "status quo ante," it can effectuate a partial
remedy. Therefore, this appeal is not moot.1
B. The Injunction.
Resolving the issue of whether the injunction regarding the
Advocacy Program's access to records was proper involves the
interpretation of 42 U.S.C. § 6042(a)(2)(I). Pursuant to that
statute, three requirements must be met for the Advocacy Program to
gain access to records: (1) the individual must be unable to
authorize access due to a mental or physical condition; (2) the
individual must not have a legal representative, including a legal
guardian (except the state); and (3) the system must either have
received a complaint relating to the individual or have probable
cause to believe there has been abuse or neglect. 42 U.S.C. §
6042(a)(2)(I). On appeal here, the Defendants contend that the
Advocacy Program did not meet the second and third requirements of
the statute.2 See Defendants' Br. at 1; id. at 27 ("The problem
in this case is that the statute in question does not define
1
Alternatively, even if the appeal would otherwise be moot,
this case is an appropriate one to decide on the merits because
the challenged action is capable of repetition, yet evading
review. See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498,
515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). Specifically, there
is a reasonable expectation that Tarwater and the Advocacy
Program will, in the future, find themselves in the same dispute
over an individual's records. Moreover, this dispute will evade
review because of the need to access records quickly in order to
investigate effectively. See Honig v. Doe, 484 U.S. 305, 317-23,
108 S.Ct. 592, 601-04, 98 L.Ed.2d 686 (1988).
2
While not listed as an issue on appeal, we note that §
6042(a)(2)(I)'s first requirement has been met. Death clearly is
a physical condition that renders both G.A. and M.V. unable to
authorize record access. See 42 U.S.C. § 6042(a)(2)(I)(ii)(I);
see also Alabama Disabilities Advocacy Program v. J.S. Tarwater
Developmental Center, 894 F.Supp. 424, 428 (M.D.Ala.1995). There
is no evidence that the Act does not apply to deceased persons,
and it would be utterly absurd to read into the Act an exception
for the most serious abuses, i.e., those that result in death.
"complaint' or "legal representative.' ").
It is clear that the Act provides express authority for P & As
to gain broad access to records, facilities, and residents to
ensure that the Act's mandates can be effectively pursued. See 42
U.S.C. § 6042(a)(2)(H) and (I); see also Mississippi Protection &
Advocacy System, Inc. v. Cotten, 929 F.2d 1054, 1058-59 (5th
Cir.1991) ("The state cannot satisfy the requirements of [the Act]
by establishing a protection and advocacy system which has this
authority in theory, but then taking action which prevents the
system from exercising that authority."). In adopting the
provision of the Act mandating P & A access to facility residents,
42 U.S.C. § 6042(a)(2)(H)), Congress gave substance to its intent
to "assure that the most vulnerable individuals [institutionalized
persons] who may not be able to contact the P & A system will have
access to protection and advocacy services." S.Rep. 120, 103rd
Cong., 1st Sess. 36, reprinted in 1994 U.S.Code Cong. & Admin.News
164, 199. In reauthorizing the Act in 1984, Congress stated its
intention that "all developmentally disabled persons who reside in
facilities for developmentally disabled persons [ ] be eligible for
services from the protection and advocacy system." H.Conf.Rep.
1074, 98th Cong., 2d Sess. 34 (1984), reprinted in 1984 U.S.Code
Cong. & Admin.News 4334, 4376-77. It is within this broad remedial
framework that we analyze whether the injunction was proper.
1. G.A. and M.V. Do Not Have Legal Representatives.
The Defendants argue that the families' unwillingness to
release the records should be controlling. Pursuant to § 6042,
this contention is incorrect if G.A. and M.V. do not have a legal
representative, including a legal guardian. 42 U.S.C. §
6042(a)(2)(I). Guardianship is governed by Alabama state law,
which clearly states: "The authority and responsibility of a
guardian of an incapacitated person terminates upon the death of
the guardian or ward." Ala.Code § 26-2A-109 (1992). Moreover,
although Alabama law contains certain preferences for people who
may be appointed to administer a decedent's estate, these
preferences do not automatically confer any legal status on a
former guardian. Ala.Code §§ 43-2-42, 43-2-833 (1991 & Supp.1994).
The personal representative must be appointed by a probate judge,
Ala.Code §§ 43-2-40, 43-2-831 (1991 & Supp.1994). The Defendants
have introduced no evidence that either of the former guardians was
appointed administratrix of her child's estate. The statutory
preference in favor of a relative cannot be elevated into an
automatic grant of the powers of an administrator. Thus, neither
G.A. nor M.V. has a legal representative, including a legal
guardian, at the present time.
The Defendants urge that this construction of 42 U.S.C. § 6042
ignores the intent of Congress to enhance the role of the family in
providing care to persons with developmental disabilities. This
court recognizes the statute's emphasis on family; however, the
Advocacy Program's access to the records of G.A. and M.V. does not
weaken the role of the family, nor does it deprive the parents of
any rights they may still have after the deaths of their wards.
For example, the Advocacy Program's attempt to obtain the records
does not stop the parents from obtaining their children's medical
records if they wish, and if they are still entitled to them.
Moreover, by federal regulation, the Advocacy Program is required
to keep all record information, including information about the
family, confidential. See 45 C.F.R. § 1386.21(b) (1994).3
2. An Anonymous Telephone Call Implying that Abuse and/or Neglect
May Have Caused Death Both Constitutes a "Complaint" and
Establishes "Probable Cause," Either of Which Justifies the P
& A's Access to the Records of G.A. and M.V.
Among the situations in which the Act authorizes a P & A to
have access to an individual's records are when the incidents are
reported to the system or when there is probable cause to believe
that neglect or abuse has occurred. 42 U.S.C. §
6042(a)(2)(I)(ii)(III). We conclude that the district court was
correct in finding that the Advocacy Program was entitled to access
to G.A. and M.V.'s records because a complaint had been received
and, alternatively, because the phone call established probable
cause.
a. The Anonymous Telephone Call Constitutes a Complaint.
3
Since children living in institutions necessarily live away
from their parents, the most involved and concerned parents
cannot observe the majority of events experienced by their
children in institutions. Institutionalized people with
disabilities are by-and-large under the exclusive control of
facility staff. Regular telephone calls or visits often will not
uncover abuse or neglect. The opportunity to observe possible
abuse or neglect is limited, particularly when institution staff
offer plausible explanations for injuries. If their children are
subject to passive neglect rather than active abuse, parents are
highly unlikely to know. These long-distance family ties would
operate to suggest that legal guardians have even less control
over their wards, and consequently less reason for extending that
control after the ward has died.
We have no reason to doubt that the families of G.A.
and M.V. are concerned and caring parents who did what they
believed best for their children. However, their faith in
the institution does not alter the fact that abuse or
neglect may have occurred. Congress legislated the Act to
protect disabled people who are unable to protect
themselves.
The anonymous phone caller asserted specific wrongdoing with
respect to G.A. and stated that M.V.'s death "was also one of these
strange situations." The Act imposes no special requirements on
the source of the complaint or of the person making it, and we
agree with the district court that no such requirements should be
read into the statute. Anonymous complaints are not uncommon
occurrences for P & As and for other investigatory agencies. See
Mississippi Protection & Advocacy System, Inc. v. Cotten, 929 F.2d
at 1056. Complainants, particularly staff and sometimes family
members, may prefer to remain anonymous for fear of overt or subtle
retaliation. Indeed, we find persuasive that the proposed Act
regulations, in the preamble discussion, concur that informal
complaints or those transmitted by telephone are sufficient:
ADD understands that P & As undertake investigations of
incidents of abuse and neglect based on media reports, general
investigations, inspection reports, and other credible
information regarding abuse and neglect. P & As also may use
information gained through telephone calls or informal
complaints by residents, staff, relatives, or friends. The
proposed regulations are intended to confirm the authority of
the P & As to rely on such information as grounds for
investigations of abuse or neglect either because they are
reports of incidents, or because they constitute probable
cause.
60 F.R. at 26778 (emphasis added). Accordingly, we hold that, for
purposes of the Act, the anonymous phone call in this case
constitutes a complaint.
b. The Anonymous Telephone Call Established Probable Cause.
Alternatively, we also agree with the district court's
finding that "the anonymous phone call provides enough evidence to
support allegations of abuse and neglect and thereby establishes
probable cause." 894 F.Supp. at 429. In so doing, we note that
unlike criminal law probable cause, the consequence of a P & A's
determination of probable cause is not an indictment or an
accusation, but rather a civil investigation. Moreover, no
fundamental liberty or privacy interest is impinged when a P & A
finds probable cause to investigate an incident at a facility.
In the P & A probable cause process, the interests of three
parties are implicated—those of the facility, those of the
individual who may have been subject to abuse and his or her
family, and those of the P & A, which has an obligation and mandate
to protect from abuse the individual(s) and others who are
similarly situated. In this balance, the facility's interests
surely are less viable and of less import than those of the
individual and the P & A. The facility can claim no interest in
avoiding investigations of harm or injury to a person with a
disability. Minor inconveniences to staff or some disruption of
the facility's routine hardly rise to the level of the liberty
interest that is generally at issue in a criminal investigation.
Michigan Protection & Advocacy Service, Inc. v. Miller, 849 F.Supp.
1202, 1208-09 (W.D.Mich.1994) (defendants' objections that the P &
A access to facility for children will interfere with programming
have no merit). Indeed, one would suppose that a facility's
legitimate interests are served when abuse and neglect are
uncovered and can be corrected. Likewise, when a P & A makes a
finding of probable cause, no liberty interest of the
developmentally disabled person is threatened, as it is precisely
that individual's interest that the P & A seeks to protect. See
United States v. Allis-Chalmers, 498 F.Supp. 1027, 1031
(E.D.Wis.1980) (occupational safety agency may have access to
employees' health records since agency "is acting on behalf of the
very employees" the company claims it is seeking to protect by
alleging that access violated employees' privacy).
V. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED.