Washington Cert Petition

Case 2:08-cv-00200-EFS

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Document 88

Filed 03/23/2009

Laura D. Cooper Kevin P. Byers Lawrence W. Williamson, Jr. Eugene V. Gorokhov

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William J. Powell Powell, Kuznetz & Parker Rock Pointe Tower 316 West Boone Ave., Suite 380 Spokane, WA 99201-2346 Tel: 509.455.4151 [email protected] ATTORNEYS FOR PLAINTIFFS

11 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

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MERLE JANES, MD, et al, Plaintiffs,

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vs. PETER J. HARRIS, et al, Defendants. _______________________________

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No. CV-08-200-EFS PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION OF PARTIAL SUMMARY JUDGMENT PURSUANT TO FRCP 56 ON ADA CLAIMS

20 By way of this motion, Plaintiffs seek Partial Summary Judgment under

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F.R.C.P. 56.1 Plaintiffs, consisting of individuals and two as-yet uncertified

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Summary judgment shall be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

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Partial Summary Judgment ADA Memo 2 -1

LAURA D. COOPER, ESQ. 808 Lariat Drive Eugene, Oregon 97401 (541) 302-6527 [email protected]

Case 2:08-cv-00200-EFS

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classes of similarly situated chronic pain patients along with a physician

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representative challenge prohibitions imposed by state public health authorities on treatment of severe chronic pain with opioid medications using two administrative methodologies, including (1) the InterAgency Guidelines on Opioid Dosing for

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noncancer Pain [hereinafter “Dosing Guidelines”]2 and (2) specific clinical practice

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standards published within the MQAC Hunt Decision [hereinafter “Hunt

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Decision”].3 Physicians simultaneously owe professional and ethical duties to their patients which are irreconcilable with the challenged state mandates.

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Issue 1: Count 3 - ADA Title II Content of the Dosing Guidelines

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Plaintiffs have asserted Title II4 Americans With Disabilities Act (“ADA”)

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claims5 which are derived from liability the public entities6 themselves impose

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Doc. 31, pages 151-165. This document is self-authenticated based on the document’s masthead showing that it is an official Washington government publication. See Fed. R. Ev. 902(5). 3 The Hunt Decision is a written MQAC adjudication constituting Exhibit E to Doc. 31, at pages 177-et seq. Based on the document’s masthead, the Hunt Decision is self-authenticated as an official Washington government publication. See Fed. R. Ev. 902(5). 4 See 42 U.S.C. §12132. 5 See, e.g., Doc. 29 Count 3 at ¶¶213-237, and Count 7 at ¶¶277-293. 6 The InterAgency Group is a “public entity” as defined in 42 U.S.C.§12131(1). The InterAgency Medical Group constitutes an “instrumentality” of the State composed of a workgroup of state employees. See Doc. 32 at ¶XII.

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Partial Summary Judgment ADA Memo 2 -2

LAURA D. COOPER, ESQ. 808 Lariat Drive Eugene, Oregon 97401 (541) 302-6527 [email protected]

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upon physicians under ADA Title III as public accommodations7 through “contracting, licensing,8 or other arrangements.”9 See 42 U.S.C. §12182(b)(1)(D); 28 C.F.R. §36.204. An ADA Title II prima facie case requires each Plaintiff to prove 3 elements: (1) that he or she is qualified to sue under the ADA; and (2) was

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impermissibly excluded from participating in a public entity’s services, programs,

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or activities (3) by reason of his or her disability. See Weinreich v. Los Angeles

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County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997).

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As a fact-based inquiry the issue of qualification as an “individual with a disability” for each Plaintiff is reserved for trial. The remaining two legal

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Title III of the ADA prohibits discrimination based on disability by regulated “service establishments” which specifically includes a professional office of a health care provider, including a physician. 42 U.S.C. §12181(7)(F); 28 CFR § 36.104. Licensed physicians who provide health-care services in their offices in the State of Washington are prohibited from discriminating based upon a person’s disability. See 42 U.S.C. §12182(a); Mayberry v. Von Valtier, 843 F Supp 1160 (E.D. Mich. 1994). 8 “Licensing” includes state professional licensing requirements, such as those imposed by the MQAC upon physicians. See Hason vs. Md. Bd. of Cal., 279 F.3d 1167 (2002). 9 By implementing discriminatory regulatory requirements on a physician, the state places the licensed professional in an impossible situation: the physician who becomes the purveyor of the discrimination becomes an appropriate defendant in an ADA Title III case brought by a patient against him (see, e.g., Hoepfl v. Barlow, 906 F. Supp. 317 (E.D. Va. 1995)) even when they arise from “contracting, licensing, or other arrangements.” However, the physician risks state enforcement action by failing to impose those requirements. 7

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LAURA D. COOPER, ESQ. 808 Lariat Drive Eugene, Oregon 97401 (541) 302-6527 [email protected]

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questions are a) whether the Dosing Guidelines contain one or more exclusions

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based on disability; and b) if so, whether such exclusions are impermissible within the terms of Title II as a matter of law.

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Regulations implementing Title II prohibit public entities from using

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eligibility requirements that “tend to screen out an individual with a disability.”10

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The Dosing Guidelines specifically target patients based on their necessary

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mitigation measures.11 The Ninth Circuit has ruled that undue burdens placed on the availability of mitigation measures constitutes discrimination based on the

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“A public entity shall not 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 such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.” 28 C.F.R. §35.130(b)(8); see also parallel provisions for Title III, 42 U.S.C. §§12182(b)(1)(D), 12182(b)(2)(A)(i); 28§§C.F.R. 36.204, 36.301(a). 11 Medications that ameliorate the effects of an underlying disability (such as opioids for chronic pain treatment) are considered “mitigation measures” within the meaning of the ADA. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 481 (1999). The ADA Restoration Act of 2008, P.L. 110-325, has changed the definition of disability as well as the effect of mitigation medication by specifically overruling Sutton. However, those issues are not relevant for the Court’s decision at this time.

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Partial Summary Judgment ADA Memo 2 -4

LAURA D. COOPER, ESQ. 808 Lariat Drive Eugene, Oregon 97401 (541) 302-6527 [email protected]

Case 2:08-cv-00200-EFS

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underlying disability within the meaning of the ADA. Crowder v. Kitagawa, 81 F.3d 1480, 1485 (9th Cir. 1996).12 The Dosing Guidelines specifically instruct physicians to screen patients

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based on their opioid mitigation requirements. For example, the Dosing

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Guidelines contain the following bullet-point provisions [see Doc. 31, Exhibit A, at

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page 154, column 2]:

9 • In general, the total daily dose of opioid should not exceed 120 mg of oral morphine equivalents.

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• Rarely, and only after pain management consultation, should the total daily dose of opioid be increased above 120 mg oral morphine equivalents.

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[Emphasis added.] Under these specific provisions, patients are divided into two

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groups for differential treatment: those whose opioid mitigation requirements13 are

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In Crowder, a class of visually impaired persons who used guide dogs brought suit seeking exemption from imposition of a120-day quarantine on carnivorous animals entering Hawaii on the ground that the quarantine program violated ADA Title II, even though the state requirement was designed to prevent importation of rabies. The Court of Appeals held that the quarantine effectively prevented visually-impaired persons from enjoying the benefits of state services and activities in violation of Title II. In reaching that result, the Court noted that Congress intended in the ADA to prohibit forms of discrimination which deny disabled persons public services disproportionately due to their disability. Crowder, 81 F.3d at 1483. Under Crowder, neither a physician nor the state may unduly burden the availability of a necessary mitigation measure directly or indirectly, even as against a state’s assertion of a competing state health interest. See Crowder, 81 F. 3d at 1485.

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Partial Summary Judgment ADA Memo 2 -5

LAURA D. COOPER, ESQ. 808 Lariat Drive Eugene, Oregon 97401 (541) 302-6527 [email protected]

Case 2:08-cv-00200-EFS

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below 120 MEQ, and those whose opioid mitigation requirements meet or exceed

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120 MEQ.

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After performing an initial screening based on required mitigation measures,

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the Dosing Guidelines tell a physician to impose specific requirements on the latter group that are not imposed on the former. Patients in that latter group are required to go someplace else first in order to obtain care. In so doing, the Dosing Guidelines instruct physicians to “apply eligibility criteria that . . . tend to screen out” people requiring more than 119 MEQ of opioid medication. See 28 C.F.R.

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§35.130(b)(8). Moreover, the Dosing Guidelines subject the class of patients who

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exceed the 119 MEQ threshhold to treatment that is different from that provided to

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all other patients. This provision creates segregated (e.g., separate treatment). For purposes of Title II, this screening results in a “different or separate” service for these particular patients.

20 21 22 For consistency, Plaintiffs here incorporate the measurements utilized by the Dosing Guidelines to describe Plaintiffs’ own necessary medical mitigation requirements, which is “milligrams of oral morphine equivalents per day.” For shorthand, Plaintiffs designate “MEQ” for that measurement, such that a patient’s total required milligrams of oral morphine equivalents per day will hereinafter be referred to as their required “MEQ.” 13

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Partial Summary Judgment ADA Memo 2 -6

LAURA D. COOPER, ESQ. 808 Lariat Drive Eugene, Oregon 97401 (541) 302-6527 [email protected]

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The state can only defend14 the screening required by the Dosing Guidelines

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by demonstrating that it “is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are equally as effective as those provided to others,” 28 C.F.R. § 35.130(b)(1)(iv) [emphasis added], or “unless

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such criteria can be shown to be necessary for the provision of the service,

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program, or activity being offered.” 28 C.F.R. § 35.130(b)(8). [Emphasis added.]

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The Dosing Guidelines were authored by a public entity for application by physicians in their clinical practice, as evidenced by text on an InterAgency webpage: “The principles in this guideline are intended for use by all providers who prescribe opioids for chronic, non-cancer pain.” See InterAgency webpage, http://www.agencymeddirectors.wa.gov/opioiddosing.asp, Doc. 78-2, page 8 [bold in original]. Within this document, “providers” can only refer to physicians with valid DEA registrations, who are the sole legallyauthorized gatekeepers for prescribing scheduled opioid medications under federal law (see 21 U.S.C. §822(a)(2)). Defendants assert that the InterAgency Defendants’ motive was to create a “merely advisory” policy statement. See Doc. 72 at page 10. However, discrimination is not vitiated by making it a mere suggestion; harm emanating from discriminatory public policy is actionable regardless of the authors’ stated motive or intent. Crowder, 81 F.3d at 1483; Schonfeld v. City of Carlsbad, 978 F. Supp. 1329, 1334 (S.D. Cal. 1997), aff d, 172 F.3d 876 (9th Cir. 1999); Tsombanidis v. City of West Haven, 180 F. Supp. 2d 262, 289-290 (D. Conn. 2001) ; see 42 U.S.C. §§12182(b)(1)(D) and 12182(b)(2)(A)(i); see also 28§§C.F.R. 36.204, 36.301(a), and 35.130(b)(8). A common principle of equity and statutory construction requires a court to assume that lawmakers do not engage in useless, ineffective, or absurd things. See, e.g., Pennsylvania v. Nelson, 350 U.S. 497, 509-510 (1956). Consequently, the Dosing Guidelines are presumptively purposeful and their foreseeable application constitutes an “other arrangement” within the meaning of 42 U.S.C. §12182(b)(1)(D) and 28 C.F.R. §36.204. 14

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Partial Summary Judgment ADA Memo 2 -7

LAURA D. COOPER, ESQ. 808 Lariat Drive Eugene, Oregon 97401 (541) 302-6527 [email protected]

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Thus, necessity in either formulation of 28 C.F.R. § 35.130(b) is an

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affirmative statutory defense, for which the Defendants bear the statutory burdens

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of both pleading and proof. See, e.g., Bates v. United Parcel Service, Inc., 511

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F.3d 974, 992 (9th Cir. 2007)(“business necessity” is an affirmative defense); cf.

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Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247-48 (9th Cir. 1999) (“direct

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threat” is an affirmative defense for which the defendant bears the statutory burden

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of proof).

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Defendants have clearly failed that burden here. In their answer, the

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Defendants assert neither “necessity” nor any other similar15 ADA affirmative

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statutory defense, and thereby waive any assertion they might now make that the

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challenged state actions are “necessary” to accomplish the purposes of any legitimate state public health program.16 See Doc. 32 at ¶CXIX. The Plaintiffs’ ADA Title II claim can thus be established as a matter of law by demonstrating Plaintiffs’prima facie case.

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The only affirmative defense asserted by defendants relevant to these ADA claims is Eleventh Amendment immunity. See Doc. 32 at ¶CXIX. 16 This waiver is legally consistent with Defendants’ legal position that the Dosing Guidelines are permissive in nature; a permissive regulation is by definition not “necessary.” See Doc. 18 at page 4, lines 1-2; see also Doc. 72 at page 10.

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Partial Summary Judgment ADA Memo 2 -8

LAURA D. COOPER, ESQ. 808 Lariat Drive Eugene, Oregon 97401 (541) 302-6527 [email protected]

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The Dosing Guidelines categorically exclude all persons who require opioids

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of more than 119 MEQ; those persons are sent elsewhere as a precondition for treatment. This requirement burdens the availability of a necessary mitigation measure for all chronic pain patients whose dosage requirements exceed that

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amount, and under Crowder that burden can be deemed imposed “by reason of”

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the patient’s disability. Moreover, because that categorical exclusion is not

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“necessary” it is “undue” as a matter of law. No further causation is statutorily required to establish liability under Title II. See Helen L. v. Didario, 46 F.3d 325, 335 (3d Cir. 1995)("The unnecessary segregation of individuals with disabilities in the provision of public services is itself a form of discrimination within the meaning of [Title II of the ADA].”)

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The only liability issue remaining for trial on Plaintiffs’ ADA Title II Claim with respect to the Dosing Guidelines [Count 3] are Plaintiffs’ individual

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qualifications as an “individual with a disability.”

No other genuine issue of

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material fact remains, and Plaintiffs thus request partial summary judgment on

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liability for Count 3 with the issue of disability reserved for trial.17 Issue 2: Count 7A - ADA Title II - Hunt Decision

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Plaintiffs’ entitlement to compensatory damages is established below in issue 3.

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Partial Summary Judgment ADA Memo 2 -9

LAURA D. COOPER, ESQ. 808 Lariat Drive Eugene, Oregon 97401 (541) 302-6527 [email protected]

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The Hunt Decision is an MQAC adjudication in which licensure action was

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taken against a physician based on, inter alia, specific clinical practice standards it

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applied which appear on Page 9, ¶1.9 [Doc. 31 at 186]. Those standards assert that

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both depression and asthma are categorical contraindications for the prescription

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of opioid18 medications, and further that opioid medications are categorically inappropriate for the treatment of any chronic condition. MQAC in this decision applies clinical practice standards which constitute a per se, categorical prohibition

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against prescribing by a licensed physician of opioid medication for all chronic

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conditions, including pain, regardless of diagnosis, severity, or any other

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mitigating factors. The exclusionary standards used in the Hunt decision are intentional and complete—and prohibit the use of opioids on a chronic basis for any chronic condition as a matter of law.19 Such a categorical, facial prohibition

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The Hunt Decision uses the inappropriate and perjorative term “narcotic” instead of the appropriate term “opioid” which is defined in Washington health regulation WAC 246-919-800(3) to mean “any natural or synthetic medication that has morphine like activity.” This class includes such medications as oxycodone, oxycontin, hydrocodone, morphine, methadone, Demerol, Percocet, and codeine. 19 Moreover, the categorical nature of the prohibition is emphasized where the purported rationale for this thinking appears on page 15, ¶1.23 [Doc. 31 at 192, ¶1.23]: “[a]s with other narcotic [sic] medication, it carries the risk of addiction in long-term or continued use.”

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[known as per se discrimination] forecloses the possibility of consideration of

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individual reasonable accommodation requests within the meaning of the Americans With Disabilities Act. See Lovel v. Chandler, 303 F.3d 1039, 1050-51 (9th Cir. 2002).

6 The propriety of this complex medical issue is not subject to factual dispute

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here because it has already been decided by the state legislature. The factual

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existence of a group of patients with chronic pain who have legitimate medical need for opioid medications to achieve effective treatment of their chronic pain is explicitly recognized by the text of RCW §18.130.340.20 That statute also commands the Department of Health to preserve for this group of patients, among others, “effective medical treatment in accordance with recognized national

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standards.” 21 This treatment command is an explicit legislative “carve-out” from

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RCW §18.130.340 presumes that this group of patients exists. A fundamental principle of statutory construction requires a court to assume that lawmakers do not engage in useless, ineffective, or absurd things. See, e.g., Pennsylvania v. Nelson, 350 U.S. 497, 509-510 (1956). 21 This statutory provision also impliedly recognizes that physicians with valid DEA registrations are the sole legally-authorized gatekeepers for prescribing such medications (see 21 U.S.C. §822(a)(2)), and thus that physicians have a heightened fiduciary obligation for scheduled FDA-regulated prescription medications because when those medications are necessary for effective treatment of severe chronic pain, the physician – quite literally – possesses the power to determine whether an 20

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LAURA D. COOPER, ESQ. 808 Lariat Drive Eugene, Oregon 97401 (541) 302-6527 [email protected]

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the disciplinary authority of the MQAC, thereby establishing a statutory boundary

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beyond which MQAC’s own officials have no authority to impose disciplinary clinical practice standards that would require a licensee to deny treatment .22 The specific “carve-out” is demonstrated in the legislative history of RCW

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§18.130.340, whereby its provision was inserted as a specific limitation in an individual s life will be worth living. As a consequence, the State is obligated to take this “special trust” into account when regulating physicians on this particular subject. See Washington v. Glucksberg, 521 U.S. 702, 751-52 (1997) and Abigail Alliance v. Eschenbach, 495 F.3d 695 (D.C.Cir. 2007) (recognizing an individual’s fundamental liberty interest in receiving medically necessary pain care based on FDA-approved pharmaceuticals); Glucksberg, 521 U.S. at 751-52 and Vacco v. Quill, 521 U.S. 793, 810 (1997) (judicial intervention by the Supreme Court under 14th Amendment substantive due process principles would become necessary if state law were “to prevent the provision of pain care, including the administration of drugs as needed to avoid pain …”). 22 RCW §18.130.340 specifically disempowers MQAC officials who attempt to limit legitimate and effective pain treatment despite any particular panel’s own alternative views on the subject. The Legislative History contained in the 1995 Washington Legislature Substitute Senate Bill 5365 New Section 10, when compared with the complete Substitute Senate Bill 5365, establishes that the opioid treatment mandate was actually presented as a “carve out” from the overall professional disciplinary machinery. In other words, the legislature thought it necessary to specify that this was an area in which the State Department of Health had to be affirmatively directed and its power specifically limited. Additional evidence of this view is suggested by the language of the statute defining “medical necessity” for purposes of “effective pain treatment” by reference to “recognized national standards.” This objective provision prevents “capture” of the requirement of effective treatment through subjective administrative interpretations that would substitute a local official’s own judgment for consensus science – precisely what was attempted in the Hunt Decision.

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LAURA D. COOPER, ESQ. 808 Lariat Drive Eugene, Oregon 97401 (541) 302-6527 [email protected]

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overall legislative bill revamping the Uniform Disciplinary Act at the request of

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the Department of Health, and was a specific exclusion from that newly-created disciplinary authority. Instead, the MQAC’s authority on this subject was specifically limited. See 1995 Legislature, SB 5365 History, [Doc. 68, Exhibits 1

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and 2, pages 21-26].23

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MQAC here purports to create a medical duty for physicians to deny opioid

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treatment to all patients with chronic conditions -- period. For patients for whom there is no alternative, effective treatment, MQAC has effectively created in the Hunt Decision a medical duty for licensed physicians to abandon such patients as a matter of law. Txhose particular clinical standards, which are precedential as applied by the MQAC in the Hunt Decision (see Heinmiller v. Dept. of Health, 127

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Wn.2d 565, 903 P.2d 433 (Wn. 1995)) mandate per se discrimination based on a

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categorical exclusion as a matter of law; however, this MQAC-imposed “duty” as

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applied in the Hunt Decision exceeds MQAC’s own statutory boundaries under RCW §18.130.340. As with the Dosing Guidelines, this provision is not

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This information is available online at: http://dlr.leg.wa.gov/billsummary/default.aspx?year=1995&bill=5365. 23

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“necessary” and thus cannot be sustained under Title II of the ADA. See 28 C.F.R.

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§ 35.130(b)(6). Issue 3: Compensatory Damages Arising From Categorical Exclusions

5 Plaintiffs who establish liability based on categorical exclusions under ADA

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Title II are also entitled to compensatory damages as a matter of law. See Lovel,

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303 F.3d at 1057-58. 24 The MQAC clinical standards establish a categorical exclusion for all chronic pain treatment with opioid medications, and the Dosage

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Guidelines establish a categorical exclusion for all persons who require opioid dosages for effective treatment of chronic pain which exceed 119 MEQ. As to those groups of people the regulatory provisions constitute facial or per se discrimination. See Lovel, 303 F.3d at 1057-58. 25

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The same remedies are available for violations of ADA Title II as are available for §504 of the Vocational Rehabilitation Act. See 42 U.S.C. § 12133. Those remedies, in turn, are the same as those set forth in Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. See 29 U.S.C. §794a(a)(2); Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998). In accord with Title VI case law, see Guardians Ass n v. Civil Serv. Comm n, 463 U.S. 582 (1983), compensatory damages are available under Title II upon a showing of discriminatory intent. Ferguson, 157 F.3d at 674; see also Memmer v. Marin Cty. Courts, 169 F.3d 630, 633 (9th Cir. 1999). 25 Lovel described facial discrimination as a categorical exclusion of disabled persons; when such exclusion is contained in a public program without adequate

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LAURA D. COOPER, ESQ. 808 Lariat Drive Eugene, Oregon 97401 (541) 302-6527 [email protected]

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Both regulatory classifications specifically affected persons that the

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Defendants knew or should have known included “individuals with disabilities” within the meaning of Title II of the ADA.26 The regulations constitute facial

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statutory justification, the exclusion is considered per se. The court found that a per se exclusion expressly violates Title II regulations when not coupled with a reasonable accommodation requirement; the Title II principle of integration only permits a public entity to offer different or separate benefits to people with disabilities if “such action is necessary to provide qualified individuals with disabilities with aids, benefits or services that are as effective as those provided to others.” 28 C.F.R. §35.130(b)(I)(iv); 28 C.F.R. §41.51(b)(1)(iv). The Lovel court held that when a categorical exclusion is not coupled with a requirement for a reasonable accommodation -- thus providing no effective alternative allowing for consideration of the individual circumstances of a person with a disability, that public program effectively offers no benefit at all for those persons whose needs are not met by the categorical exclusion. Lovel, 303 F.3d at 1056. Moreover, the Lovel court found that in implementing a categorical exclusion, the public entity is, at the very least “deliberately indifferent” by its very terms, and that facial discrimination is thus deemed “intentional.” Lovel, 303 F.3d at 1056; see also Pandazides v. Va. Bd. of Ed., 13 F.3d 823, 830 n.9 (4th Cir. 1994) (reasoning that because “intentional discrimination” is “synonymous with discrimination resulting in ‘disparate treatment,’ which contrasts with disparate impact,” no greater proof of mental state is necessary to prove intent) (citing Guardians, 463 U.S. at 584 n.2 (opinion of White, J.)). 26 Both sets of Defendants held themselves out as “expert” regulators in the area of chronic pain who could create clinical practice standards for physicians. As such, these state officials are fairly chargeable with knowledge about the nature and severity of the impairments faced by the plaintiffs here as well as other similarly situated individuals. This necessarily includes knowledge about public health prevalence data as well as the nature of the underlying impairments – and therefore the scope of the specific harm endured by the entire population of indivduals with

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LAURA D. COOPER, ESQ. 808 Lariat Drive Eugene, Oregon 97401 (541) 302-6527 [email protected]

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exclusion based upon a necessary mitigation measure, which is a form of per se

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discrimination based on disability. See Lovel, 303 F.3d at 1055-56. Lovel extensively quoted Duvall v. County of Kitsap, 260 F.3d 1124 (9th Cir. 2001), wherein a “deliberate indifference” standard is applied to determine

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whether public entity conduct is compensable. Id. at 1138. “Deliberate

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indifference requires both knowledge that a harm to a federally protected right is

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substantially likely,27 and a failure to act upon that likelihood.” Id. at 1139 (citing City of Canton v. Harris, 489 U.S. 378, 389 (1988)). The Lovel court found that in a case of a categorical exclusion the public entity is, at the very least, “deliberately

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severe, chronic pain who depend upon the opioid medications they are categorically excluding. 27 The Lovel court also concluded that when a state facially discriminates against the disabled, it is chargeable with notice that federal rights are implicated by such discrimination, and by choosing categorically to exclude disabled persons, the State has failed to act with the requisite care to protect the rights of the disabled. Nevertheless, by categorically excluding a class of persons from the state program which includes the disabled, the State was imputed with knowledge about and notice of the effects of its conduct on the plaintiffs and similarly situated people. Lovel, 303 F.3d at 1057-58. By analogy, categorically subjecting chronic pain patients to the exclusionary clinical practice standards imposed by MQAC and the InterAgency Defendants imputes the public entity Defendants here with knowledge about and notice of the effects of its conduct on chronic pain patients.

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indifferent,”28 which satisfies the requirement of proof of “intentional

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discrimination.” Lovel, 303 F.3d at 1057. The same is true here. The categorical exclusions are clear and Dr. Janes

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and pain patients who qualify as persons with disabilities within the meaning of the

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ADA should be entitled to partial summary judgment on the issue of liability;

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moreover, compensatory damages under Lovel should be available as a matter of

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law to qualifying plaintiffs for damages resulting from Defendants’ conduct. Issues reserved for trial include individual plaintiffs’ statutory qualification as well as amounts of compensatory damages flowing from the imposition of state-

14

imposed categorical opioid treatment limitations.

15

Issue 4: Counts 3 and 7 - ADA Title II- Physician s Association Claim

16 17 18 19 20 21 22 23 24 25

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In Lovel, the Ninth Circuit held that by creating a categorical exclusion, and also by failing to provide effective alternatives for persons with disabilities within that exclusion, the State acted with at least deliberate indifference with respect to those excluded individuals. Accordingly, regardless of the State’s asserted long-term motivations or competing interests, the State’s facial exclusion of the disabled from the program entitled the plaintiffs to compensatory damages as a matter of law on summary judgment (in amounts to be determined later). By its very terms, facial discrimination is “intentional.” See Pandazides v. Va. Bd. of Ed., 13 F.3d 823, 830 n.9 (4th Cir. 1994) (reasoning that because “intentional discrimination” was “synonymous with discrimination resulting in ‘disparate treatment,’ which contrasts with disparate impact,” no greater proof of mental state was necessary) (citing Guardians, 463 U.S. at 584 n.2 (opinion of White, J.)).

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Partial Summary Judgment ADA Memo 2 17

LAURA D. COOPER, ESQ. 808 Lariat Drive Eugene, Oregon 97401 (541) 302-6527 [email protected]

Case 2:08-cv-00200-EFS

1

Document 88

Filed 03/23/2009

The physician’s standing to sue as a result of his “association” with his

2 3 4 5

qualifying patients is explicitly recognized in 42 U.S.C. §12182(b)(1)(E). However, the primary ADA claims are against public entities under Title II. The physician is not a person with a disability, and Title II lacks an explicit parallel to

6 7

the Title III “association discrimination” counterpart.29 The Ninth Circuit has not

8

yet ruled on the question whether to recognize a cause of action under Title II for

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“association discrimination” on behalf of a physician who finds himself having to impose state-mandated discrimination based on disability against his patients, although the 4th Circuit has explicitly done so. A Helping Hand, LLC v. Baltimore County, 515 F.3d 356, 363-64 (4th Cir. 2008)(“Helping Hand”.)

15 Thus, Plaintiffs request this Court to recognize, as an issue of first

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impression in the Ninth Circuit, that an individual who resists discriminatory state authority on behalf of a person with whom he is “associated” within the meaning

20

of ADA Title III under 42 U.S.C. §12182(b)(1)(E) should be deemed an

21

appropriate plaintiff in his own right under ADA Title II. The imputation of that

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For that reason, and out of an abundance of legal caution, Plaintiffs pleaded the physician as a direct plaintiff in a claim of association discrimination (see Doc. 29, ¶¶118, 297, 300) as well as a patient representative under the standing doctrine of jus tertii (see Doc. 29, ¶¶119-120, 298, 301). 29

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Partial Summary Judgment ADA Memo 2 18

LAURA D. COOPER, ESQ. 808 Lariat Drive Eugene, Oregon 97401 (541) 302-6527 [email protected]

Case 2:08-cv-00200-EFS

1

Document 88

Filed 03/23/2009

“association discrimination” cause of action is strongly suggested by both the

2 3 4

statutory scheme as well as the legislative history, as explained in Helping Hand, 515 F.3d at 363-64.30 The legal effect31 of this decision would be to grant Dr.

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

30

Title II provides a remedy to "any person alleging discrimination on the basis of disability. . ." 42 U.S.C. § 12133 (emphasis added). Helping Hand points out that Titles I and III list specific actions that constitute discrimination but Title II simply provides a blanket prohibition. Cf. 42 U.S.C. §12112(b) (Title I) and 42 U.S.C. §12182(b) (Title III) with 42 U.S.C. §12132 (Title II). When listing the specific actions that constitute discrimination in Titles I and III, Congress expressly protected those who suffer discrimination "because of the known disability of an individual with whom [they are]. . . known to have a relationship or association." 42 U.S.C. § 12182(b)(1)(E) (Title III); see also id. § 12112(b)(4) (Title I). The asymmetry of Title II was explained by the House Committee on Education and Labor: "[t]he Committee has chosen not to list all the types of actions that are included within the term `discrimination', as was done in titles I and III. . . . The Committee intends, however, that the forms of discrimination prohibited by [Title II] be identical to those set out in the applicable provisions of titles I and III of this legislation." H.R.Rep. No. 101-485(II), at 84 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 367; see also S.Rep. No. 101-116, at 44 (1989). Both Titles I and III explicitly provide a cause of action for associational discrimination. See 42 U.S.C. §§ 12112(b)(4), 12182(b)(1)(E). The regulations implementing Title II were directed to “incorporate interpretations of the term discrimination set forth in titles I and III. . . .” See 42 U.S.C. § 12134(a), (b); see also H.R.Rep. No. 101485(111), at 52 (1990), as reprinted in 1990 U.S.C.C.A.N. 445, 475; H.R.Rep. No. 101-485(II), at 84 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 367. The regulations under Title II fulfill the Congressional directive and bar associational discrimination. 28 C.F.R. § 35.130(g). 31 The regulations’ appendix demonstrates the intent "to ensure that entities such as health care providers . . . and others who provide professional services to persons

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Partial Summary Judgment ADA Memo 2 19

LAURA D. COOPER, ESQ. 808 Lariat Drive Eugene, Oregon 97401 (541) 302-6527 [email protected]

Case 2:08-cv-00200-EFS

1

Document 88

Filed 03/23/2009

Janes the same Title II statutory remedies as other plaintiffs, without which he

2 3 4 5

would be limited to remedies he would receive as a jus tertii representative. DATED this 23rd day of March, 2008. Respectfully Submitted,

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Laura D. Cooper By: s/Laura D. Cooper Attorney at Law 808 Lariat Drive Eugene, OR 97401 Tel: 541.302.6527 [email protected] Oregon SB #863589 William J. Powell By: s/William J. Powell Powell, Kuznetz & Parker Rock Pointe Tower 316 West Boone Ave., Suite 380 Spokane, WA 99201-2346 Tel: 509.455.4151 [email protected] WSBA #672 Kevin P. Byers Eugene V. Gorokhov Lawrence W. Williamson, Jr.

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with disabilities are not subjected to discrimination because of their professional association with persons with disabilities." 28 C.F.R. § 35.130(g) app. A.

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Partial Summary Judgment ADA Memo 2 20

LAURA D. COOPER, ESQ. 808 Lariat Drive Eugene, Oregon 97401 (541) 302-6527 [email protected]