New Jersey Protection and Advocacy, Inc. New Jersey's designated protection and advocacy system for people with disabilities

Sarah W. Mitchell, Executive Director of New Jersey Protection & Advocacy, Inc. added that New Jersey has been cited repeatedly by the U.S. Department of Education for its failure to implement the Individuals with Disabilities Education Act. "This litigation is prompted by the State's failure to step up to the plate and take this issue on with the resolve and attention that it deserves," she said. "With few exceptions these deficiencies are the norm throughout New Jersey's 640 plus school districts due to lack of enforcement of the special education mandate to provide students with disabilities a 'free and appropriate public education' in the 'least restrictive environment' ," said special education attorney Michaelene Loughlin of the law firm of Loughlin & Latimer.

In November, plaintiffs filed a brief in opposition to the defendent's motion to dismiss.

• NJP&A Sues State Over Waiting List

NJP&A and a prominent law firm filed a lawsuit against the Department of Human Services, saying 8,000 developmentally disabled people have had their rights violated because they have been waiting -- some for a decade -- to move into government-sponsored community housing.

The federal lawsuit alleges the state is failing to meet its legal responsibility to provide housing for people who want or need to live outside of their family homes. The department has established a waiting list, but few ever leave it unless a parent or other caretaker becomes ill or dies, the lawsuit said.

"These individuals have been for years diverted to a so-called 'wait-list' for such services, with no guarantee, and little hope, of accessing the services they need," said R. Scott Thompson of Lowenstein Sandler, which is representing the federally funded legal rights group, New Jersey Protection and Advocacy Inc., for free.

"The failure of the state to provide community services for thousands of individuals has had a devastating effect," said Emmett Dwyer, NJP&A's director of litigation. "Thousands of people are stuck at home going nowhere, and many of them have been unnecessarily placed in institutions when their elder parents could no longer care for them."

For additional information, contact:
Emmett Dwyer, Director of Litigation,
Telephone: 1-800-922-7233 or 609-292-9742
E-mail: edwyer@njpanda.org

• Lawsuit Charges State with Illegal and Unnecessary Segregation of Residents in Psychiatric Institutions

On April 5, 2005, New Jersey Protection and Advocacy, Inc. (NJP&A) filed a lawsuit in federal district court against James Davy, Commissioner of the Department of Human Services for the State of New Jersey. The lawsuit seeks the release of hundreds of New Jersey residents from unnecessary confinement in state psychiatric institutions.

Nearly half of all individuals in state psychiatric hospitals remain confined needlessly because the State of New Jersey has failed to develop suitable community residences and programs to support their return to the community. The Conditional Extension Pending Placement (CEPP) status was created by the State Supreme Court in the 1983 S.L. case [In re S.L., 94 N.J. 128 (1983)] to give the State time to develop community placements before discharging individuals. Now, however, CEPP status is used by the State to retain those individuals long past their need for hospitalization.

According to Emmett Dwyer, Director of Litigation for NJP&A, “The State has for far too long failed to live up to its obligations under the Americans with Disabilities Act (ADA) as interpreted by the United States Supreme Court. The State continues to retain large numbers of individuals in locked and dangerous facilities while simultaneously failing to plan for their discharge and transfer into the community with appropriate supports. The time these individuals have lost and continue to lose in institutions can never be regained. Their continued confinement long after a court has determined that they are no longer a danger to themselves or others constitutes an egregious violation of their rights.”

Carol C., a 60 year old woman who was committed to a state psychiatric hospital in 1993, is but one of hundreds who was illegally confined. Less than one month after her commitment, the court determined that Carol could be discharged. Twelve years later she remained hospitalized despite her desire to return to the community. For years she remained hospitalized on a restrictive and volatile ward where she endured assaults from other patients. Such assaults frequently required emergency medical treatment.

Likewise, Brian B., a 38 year old man has been hospitalized since 2003 on CEPP status despite the judgment of both the court and his doctor that he is ready for discharge. Both Brian and his mother wish for his return to the community where he can enjoy his interests in music and cooking. But because the State has failed to find a community placement, Brian remains hospitalized on an extremely violent ward where his safety and security are in jeopardy.

Sarah Mitchell, NJP&A’s Executive Director/President, states that, “We applaud Acting Governor Codey for his long time commitment to addressing the needs and concerns of people with mental illness. The work of the Mental Health Task Force is certainly further evidence of this. But we read nothing in the Task Force’s recently released report to suggest that the rights and needs of the individuals we represent in this lawsuit will be addressed anytime soon. New Jersey has long been on notice about its unnecessary confinement of large numbers of individuals on CEPP status, without developing the placements and supports necessary for their transfer to less restrictive community placements. The State is in violation of both the letter and the spirit of the law we know as the Americans with Disabilities Act. The U.S. Supreme Court in the Olmstead v. L.C. case, 527 U.S. 581 (1999), discusses such unnecessary segregation as illegal discrimination based on disability. The individuals on CEPP status that the State has kept waiting in institutions long past their need for such restrictive settings deserve more than recognition that the CEPP situation is a problem. They deserve an immediate plan that details, within a reasonable time frame, when they can expect to return to the community."

In their lawsuit, NJP&A charges that the State not only ignores the mandates of Olmstead and the ADA, but also violates other state and federal laws that protect the rights of individuals with mental disabilities, including Section 504 of the Rehabilitation Act, the New Jersey Patients’ Bill of Rights, and fundamental state and federal constitutional laws.

NJP&A seeks a court order requiring the State to provide individuals on CEPP status with services in the most integrated settings appropriate to their needs, to limit CEPP status to 60 days, and to provide monthly reports to NJP&A detailing the progress of individuals on CEPP status towards return to the community.
Subsequent to filing the lawsuit the Judge David L. Bazelon Center for Mental Health Law based in Washington. D.C., and Pepper Hamilton, LLP, a private law firm based in Philadelphia with offices in Princeton, NJ joined NJP&A as co-counsel.

The response from the State of New Jersey to the law suit was to file a Motion to Dismiss claiming that NJP&A was not a proper party to bring the law suit. NJP&A and co-counsel filed an Objection. The court ruled in favor of NJP&A finding that NJP&A was a proper plaintiff. The State of New Jersey then attempted to prevent attorneys from the Bazelon Center from assisting NJP&A in the case. NJP&A and Pepper Hamilton responded to the State's objection. Once again the court ruled in favor of NJP&A finding that there was no basis to exclude the attorneys from assisting NJP&A in the case. The State has answered the complaint denying most of the allegations and raising some defenses.

We will continue to provide updates on this case as it develops.

For additional information, contact:
Emmett Dwyer, Director of Litigation, or
Joe Young, Deputy Director
Telephone: 1-800-922-7233 or 609-292-9742
E-mail: edwyer@njpanda.org or jyoung@njpanda.org

• Hagedorn Psychiatric Hospital Settlement

On March 24, 2004, NJP&A signed a settlement agreement in a case filed in the U.S. District Court concerning a mass strip search that was conducted in a state psychiatric hospital. New Jersey Protection & Advocacy, Inc. v. James Smith, Jr., Acting Commissioner of the New Jersey Department of Human Services et al., Docket No.: 01-5505 (SRC).

The agreement provides for a damage award for every person who was a patient on the ward where the searches occurred, attorney fees, and the adoption of a hospital-wide search policy that was drafted by NJP&A’s expert, Clarence Sundram.

The search policy establishes standards and guidelines for conducting searches of the person, their room, and mail. The settlement also requires the defendants to submit a monthly report to NJP&A detailing any searches that occur in the hospital. The report will include the circumstances of the search, whether the patient cooperated, the extent of the search, whether any contraband was found, the disposition of the contraband, whether force was used, clinical justification for the search, the unit where and shift when the search was conducted.

For a more comprehensive account of NJP&A activities, please see our annual report available on the Publications page.

 

[Home] [About NJP&A] [Programs] [What's New] [Priorities]

[Publications] [Frequently Asked Questions] [Contact NJP&A] [Useful Links]