A trio of federal statutes often referred to collectively as the P&A Acts, which includes the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI), the Developmental Disabilities Assistance and Bill of Rights Act (PADD), and the Protection and Advocacy of Individual Rights Act (PAIR), authorize the creation and operation of a protection and advocacy system (P&A system) to monitor the care of individuals with mental illness and developmental disabilities.

On March 26, 2019, Chief Judge Edmund A. Sargus, Jr. of the United States District Court for the Southern District of Ohio issued an important ruling in a dispute between Buckeye Ranch and Disability Rights Ohio (DRO) over the scope of a P&A system’s authority. In a 36-page decision, Judge Sargus granted a preliminary injunction in favor of DRO, requiring Buckeye Ranch to (1) provide certain records that Buckeye Ranch had declined to provide and (2) permit DRO to have reasonable unaccompanied access to interview youths at Buckeye Ranch without the consent of their parents or guardians.

Factual Background of the Dispute

Buckeye Ranch provides mental health, drug and alcohol treatment, and other services and houses an average of over 80 youths in its residential program. It is licensed by the State of Ohio Department of Mental Health and Addiction Services (ODMHAS) and is obligated to report any allegation of abuse and neglect to ODMHAS under Ohio Revised Code § 2151.421. In 2018, Buckeye Ranch self-reported to ODMHAS five incidents in which staff used restraint techniques on four youths. DRO, a P&A system duly established by the state of Ohio, received the five incident reports from ODMHAS. Though ODMHAS found no substantiation of actual abuse or neglect, DRO commenced its own investigation of the incidents at Buckeye Ranch.

As part of the investigation, Buckeye Ranch provided video footage and numerous records requested by DRO. But Buckeye Ranch refused to provide additional documents DRO requested and also denied a request for unaccompanied access to the youths who were the subjects of the incident reports. Buckeye Ranch took the position that unaccompanied access to the youths was not permitted until it could obtain consent from the government agencies who were the legal guardians of the youths in question. When the dispute could not be resolved, DRO filed suit against Buckeye Ranch, seeking injunctive relief requiring Buckeye Ranch to provide the record and access DRO sought. Buckeye Ranch countersued, seeking a determination that DRO was exceeding the lawful powers of a P&A system under federal law.

DRO’s Authority to Investigate

Buckeye Ranch contended that DRO had no statutory authority to begin an investigation in the first place because there was no incident of alleged abuse or neglect directly reported to them. Because DRO received the reports from ODMHAS, which itself found no substantiation of abuse or neglect, Buckeye Ranch argued there was no predicate report of abuse that triggered DRO’s investigatory power.

The court rejected Buckeye Ranch’s interpretation of the P&A Acts, finding nothing in the statutory or regulatory scheme that limited a P&A system’s power based on the source of the report of alleged abuse or neglect. The court cited a rule of the Department of Health and Human Services (DHHS), which implied strongly that a P&A system could take action based upon reports not specifically directed to the P&A system.

Access to Records

Having found DRO was entitled to investigate the reports it received from ODMHAS about Buckeye Ranch, the court proceeded to determine whether DRO was entitled to the records Buckeye Ranch declined to provide. The court made a distinction between the types of records sought: (1) records related to the four youths who were the subjects of the alleged abuse and neglect and (2) facility records not directly related to the subjects of the reports.

As to the first set of records, the court rejected Buckeye Ranch’s claim DRO needed to obtain consent from the county children’s services agency that was the legal guardian of the youths. The court found that when the legal guardian is the state (or an agency of the state), there is no requirement of consent from the state or agency before the P&A system may gain access to records.

Alternatively, Buckeye Ranch argued DRO lacked the requisite probable cause to believe the four youths may have been abused or neglected. The statute in question allows a P&A system to obtain records when there is probable cause to believe an individual has been subjected to abuse or neglect. Because the ODMHAS had found the reports of alleged abuse and neglect to be unsubstantiated, Buckeye Ranch took the position that the reports could not form the basis of probable cause to obtain records.

The court rejected Buckeye Ranch’s argument and found probable cause existed to support DRO’s request for records. Citing numerous cases from other federal courts (including another case from the Southern District of Ohio), Judge Sargus noted the P&A system is generally considered the final arbiter of whether probable cause exists. And Judge Sargus found nothing in the regulations promulgated by DHHS that undercuts the P&A system’s role in that regard.

In addition, the court rejected Buckeye Ranch’s concern that a P&A system’s determination of probable cause could create constitutional problems. Because a P&A system cannot charge a facility with a crime, and there was no evidence that DRO was “a subterfuge for a law enforcement agency,” Judge Sargus found a P&A system’s determination of probable cause is not analogous to that required in criminal investigations. Thus, the DRO’s investigation did not run afoul of the Fourth Amendment.

The court also rejected as being “of no moment” the fact state and local agencies found the reports of abuse and neglect to be unsubstantiated. The PAIMI Act exists, the court said, as an independent check on existing state systems for investigating abuse and neglect of mentally ill individuals. Accordingly, the state and local investigations did nothing to undermine DRO’s probable cause for initiating its own investigation. The court therefore concluded DRO was entitled to the records at issue, namely the grievances and complaints made by the youths, restraint logs and denial-of-privilege logs of the youths, information regarding staff involved in the incidents, and video recordings of the hours before and after the reported incidents.

The court also allowed DRO to obtain records not directly related to the subjects of the reports of alleged abuse and neglect from Buckeye Ranch. In seeking this category of records, DRO argued its investigation into the individual youths also led to probable cause to believe there is widespread and systemic abuse at Buckeye Ranch. In light of this alleged probable cause, DRO sought records about the use of restraints on youth at Buckeye Ranch for whom DRO did not have a complaint or report. Buckeye Ranch opposed DRO’s request on the basis the PAIMI Act did not allow a P&A system to obtain records that do not pertain to a specific individual or incident.

The court rejected Buckeye Ranch’s position, citing other federal cases that allowed the broad discovery of records similar to what DRO sought in this case. The court also noted that any privacy concerns with regard to such records were not significant, as the P&A systems are under a significant duty of confidentiality to safeguard the privacy of persons with disabilities and mental illness. Because DRO was under the same confidentiality strictures as Buckeye Ranch, the information was adequately protected.

The court recognized some merit to Buckeye Ranch’s argument that providing DRO with records not directly related to the subjects of the reports would implicate constitutional concerns. Nonetheless, the court alleviated this concern by requiring the P&A system “to articulate to the facility the bases of its finding of probable cause to believe there is a systemic problem or other specific individuals have been subjected to abuse or neglect” when the P&A system seeks records not related to the initial subjects of reported abuse or neglect. If the facility does not agree probable cause exists, it or the P&A system may seek a court’s determination of whether probable cause exists. In this case, Judge Sargus determined DRO provided enough evidence to conclude probable cause existed. The court therefore ordered DRO was entitled to the requested records.

Access to Youth

The final issue before the court was whether DRO was entitled to reasonable unaccompanied access to the youths residing at Buckeye Ranch as part of the investigation. Buckeye Ranch contended DRO’s demand for unaccompanied access was beyond the regulatory authority granted to a P&A ystem, was unreasonable, and required consent from the youths’ guardians.

The court first rejected Buckeye Ranch’s argument the DHHS regulation allowing access to its residents was beyond statutory authority. Even assuming the PAIMI Act was ambiguous on the question of access, Judge Sargus deemed DHHS’s interpretation of the statute to be reasonable and deferred to the regulation. He further found the type of access sought by DRO fulfilled the fundamental purposes of the P&A Acts, namely the protection of the rights of those with developmental disabilities.

The court also rejected Buckeye Ranch’s argument DRO sought unreasonable access. Buckeye Ranch contended DRO’s requests were unreasonable because a facility should be allowed some period of time to determine whether the selected youth is mentally capable of participating in an interview with a P&A system investigator and whether the youth would suffer additional trauma. The court disagreed, finding the applicable regulations allowed the access DRO sought when investigating complaints of potential or confirmed abuse and neglect.

Finally, the court found nothing in the P&A Acts that required a P&A system to have consent of a youth’s parents or guardians before being able to interview the youth. When a P&A system opens an investigation based upon a report and probable cause finding, no parental or guardian consent is required to obtain reasonable unaccompanied access to the youth in question.

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Facilities throughout Ohio treating patients for mental illness or other disabilities are subject to various reporting requirements. Like Buckeye Ranch in this case, facilities must report suspected abuse or neglect to state and/or local agencies. Under Judge Sargus’s ruling, any report by a facility required by state law will be a sufficient predicate for an investigation by DRO regardless of whether the report is substantiated by state or local authorities. In turn, that investigation may ultimately expand to other areas of the facility’s operations.