Maryland Disability Law Center, Inc. v. Mt. Washington Pediatric Hospital, Inc.

FISCHER, Judge. Appellant, Maryland Disability Law Center (MDLC), 1 is a private non-profit corporation organized for the purpose of ⁵⁸ protecting the rights of and advocating for. individuals with developmental disabilities throughout Maryland. MDLC appeals from an injunction entered by the Circuit Court for Baltimore City (Kaplan, J.). Appellee and cross appellant is Mt.

Washington Pediatric Hospital, Inc. (Mt. Washington), a private, non-profit corporation that operates a facility on Ashburton Street as part of its continuing care program for children with developmental disabilities. MDLC receives its responsibilities and authority from 42 U.S.C. § 6042 (a)(2), Md.Code (1995), § 3-1001, of the Courts and Judicial Proceedings Article, and Executive Order 01.01.1986.12 dated June 25, 1986. One of MDLC’s authorized functions is to investigate reports and allegations of abuse and neglect of persons with developmental disabilities.

In December 1992, MDLC personnel visited the Ashburton Street facility of Mt. Washington without apparent difficulty. Mt. Washington avers that, at the time of the December, 1992 visitation, MDLC had no knowledge of any real or alleged abuse or neglect and had no basis for a probable cause determination that such abuse or neglect existed.

The underlying dispute arose when Mt. Washington attempted to relocate its operations at the Ashburton site to the former North Charles General Hospital. In order to relocate, Mt. Washington was required to obtain a Certificate of Public Need (CON) from the State Resource Planning Commission.

By letter of January 11, 1993, MDLC intervened in the CON proceeding to oppose the relocation. In its letter, MDLC argued that the CON was unnecessary since the children should be discharged from Mt. Washington and placed in “family settings.” Mt. Washington avers that it was deceived by MDLC into supplying MDLC with information due to the mistaken belief that MDLC was interested in serving individual patients.

In response to MDLC’s opposition to Mt. Washington’s CON application, on January 14, 1993, Mt. Washington promulgated a somewhat restrictive protocol for further visitations by MDLC personnel. On the same date, Mt.

Washington filed a complaint seeking injunctive relief limiting MDLC’s access to Ashburton and a declaratory judgment limiting MDLC’s ⁵⁹ rights as a Protection and Advocacy System (P & A system). MDLC thereupon filed a counterclaim, stating among other allegations that it “has received multiple reports of abuse and neglect of MDLC clients at Ashburton.” MDLC further alleged that it believed those reports to be reliable and that Mt. Washington refused to permit MDLC to investigate those reports. The parties filed cross motions for summary judgment, and on March 8, 1994, the circuit court issued its Memorandum Opinion and Order.

The circuit court denied Mt. Washington’s motion for summary judgment and granted MDLC’s motion for summary judgment. The court held that MDLC is Maryland’s federally mandated P & A system for individuals with developmental disabilities and that it is entitled to access to Mt. Washington.

The circuit court then requested that the parties endeavor to fashion a mutually acceptable plan consistent with the court’s opinion and the Developmental Disabilities Act. 2 The circuit court also stated that if the parties fail to reach agreement, the court will conduct a further hearing. An agreement was not reached and, after further hearing on March 15, 1994, the circuit court entered the order that is the subject of this appeal. Although the court ostensibly enjoined Mt. Washington, both parties appealed.

The circuit court injunction, in pertinent part, provides: Access to facility, patients and staff 1. MDLC shall give prior notice within a reasonable time before visiting Mt. Washington; provided, however, that no prior notice need be provided for visits during normal visiting hours. However, attorney/advocates for MDLC shall not be required to provide the name or other identifying information regarding the patient(s) with whom they plan to meet, nor are MDLC agents to be required to otherwise justify or explain their contacts with patients. ⁶⁰ 2.

When visiting Mt. Washington, MDLC may visit any building’s facility utilized by patients, including any living quarters; however, MDLC agents shall in no way interfere with ongoing therapy sessions, but may secure the name or identifying information of any patient who should seek to communicate with them. 3. Mt. Washington shall permit agents of MDLC to have access to and the most effective communication possible with patients of Mt.

Washington during mealtimes, break times, or such times and places as such patients are not occupied in a scheduled therapeutic activity. 4. If MDLC so requests, Mt. Washington is to make available a private meeting room for use by MDLC in conferring with patients. Mt.

Washington shall cooperate in transporting the patients and arranging such meetings as required; however, the agents of MDLC are hereby ordered to abide by the request of any patient to refuse or terminate such meetings. 5. Mt. Washington. shall not require written retainer agreements from MDLC before permitting MDLC to interview a patient of Mt. Washington. 6.

Mt. Washington shall make available to the legal guardians or conservators and family members or other representatives of the Mt. Washington patients an explanation of MDLC’s services, said explanation to be provided by MDLC at the time of admission of each patient to Mt. Washington and every six months thereafter. 7.

Mt. Washington shall permit staff to talk openly with MDLC about clients of MDLC. With regard to any patient who is not a client of MDLC, Mt. Washington’s staff need only provide the patient’s name and room number, the names of any doctor, nurse, or attendant caring for the patient, the name of any guardian or legal representative, and any other general non-confidential information.

Further information from staff about non-clients shall be provided according to the procedure for accessing patient records as described in Paragraphs 11 through 19. ⁶¹ 8. Mt. Washington shall permit MDLC to do its own investigation of abuse or neglect including interviewing staff witnesses as provided above in Paragraph 7, patient witnesses, observing the physical environment, and reviewing patient records as defined in Paragraph 11. 9. Mt.

Washington may supply MDLC with current schedules in effect at Mt. Washington, and MDLC is hereby ordered to seek to avoid interference with such schedules as are provided to them, to the maximum extent possible in conjunction with their duties. It is anticipated by the court that MDLC investigations based on reported abuse or neglect or probable cause shall be made by MDLC during normal visiting hours, and so as not to interfere with a scheduled therapeutic activity. However, if MDLC receives reports of abuse or neglect or has probable cause to believe that there exists conditions of abuse or neglect during the nighttime hours or during or at the location of therapeutic activities, then MDLC shall, after notice to Mt.

Washington, be permitted to engage in a full and complete investigation during those times or at those locations. 10. Mt. Washington shall treat any experts or consultants retained by MDLC, whether independent contractors or employees, just as Mt. Washington must treat other MDLC employees.

Access to Records 11. For purposes of this injunction, the term ‘records’ means both ‘records’ as described by 42 U.S.C. § 6042 (e) and verbal responses about non-clients elicited by MDLC from Mt. Washington’s staff which are generally considered the equivalent of medical records. In addition, ‘abuse’ means (1) the sustaining of any physical injury by a patient as a result of cruel or inhumane treatment or malicious act, (2) physical injury under circumstances that indicate a patient’s health or welfare is significantly harmed or at risk of being significantly harmed, or (3) sexual abuse of a patient, whether physical injuries are sustained or not. ‘Neglect’ means (1) the willful deprivation of a patient of adequate food, clothing, essential medical treatment or habi ⁶² litative therapy, shelter, or supervision, or (2) leaving a patient unattended, or other failure to give proper care and attention to a patient under circumstances that indicate that the patient’s health or welfare is significantly harmed or placed at risk of significant harm. 12.

MDLC shall have access to all records at Mt. Washington of any person with developmental disabilities who is a client of MDLC if such person, or the legal guardian, conservator, or other legal representative of such person has authorized MDLC to have such access. 13. The following shall constitute satisfactory authorizations for records access which Mt. Washington shall accept from MDLC as valid: (a) a signed and dated statement that T hereby retain the Maryland Disability Law Center, Inc. (MDLC) to represent [name of client] to fully investigate all relevant facts, and obtain copies of all relevant records and other documents.’; (b) a signed and dated Child in Need of Assistance (CINA) Order appointing MDLC or any of its representatives to represent a child and inspect his or her records; or (c) any other form that substantially resembles (a) or (b).

If these authorizations refer to a specific employee of MDLC, Mt. Washington shall nonetheless accept them as sufficient to authorize access by any MDLC employee or consultant if the person authorized is an MDLC employee or agent. 14. MDLC shall also have access to all records at Mt. Washington of any person with developmental disabilities (a) who by reason of the mental or physical condition of such person, is unable to authorize MDLC to have such access; (b) who does not have a legal guardian, conservator, or other legal representative, or for whom the legal guardian is the State; and ⁶³ (c) with respect to whom there is probable cause to believe that such person has been subject to abuse or neglect. 15.

MDLC shall also have access to all records at Mt. Washington of any person with developmental disabilities, regardless of whether he or she has a legal guardian, conservator, or other legal representative, with respect to whom (a) MDLC has probable cause to believe the health or safety of the individual is in serious and immediate jeopardy; (b) MDLC has contacted the legal guardian, conservator, or other legal representative; (c) MDLC has offered assistance to the legal guardian, conservator, or other legal representative to resolve the situation; and (d) the legal guardian, conservator, or other legal representative has failed to act or refused to act on behalf of the person with development disabilities. 16. Whenever probable cause is a prerequisite for MDLC’s access to staff or records at Mt. Washington, as specified in Paragraphs 14 and 15, MDLC shall apply ex parte to this Court for an order directing staff to answer questions and/or to produce records. 17.

MDLC is not required to reveal to Mt. Washington the source of its knowledge of events of abuse or neglect, but the time, place and details of such events and identity of the disabled individual(s) must be set forth in the court order. 18. If the court finds such probable cause based on a general policy of Mt. Washington, as opposed to a specific instance or instances of abuse or neglect, the court order shall by its terms so specify and provide seven (7) days from its date to Mt.

Washington to show cause why the information sought should not be made available to MDLC. 19. Mt. Washington shall provide these records to MDLC notwithstanding the provisions of any state law that ⁶⁴ might otherwise prohibit access to such records, including but not limited to Md.Health Occ.Code Ann. § 14-501. In this appeal, MDLC raises six issues for our review as follows: I. Does the Circuit Court’s Injunction violate the explicit statutory language of the DD Act by eliminating a P & A system’s authority to investigate in response to reports and complaints it receives about abuse and neglect?

II

Does the Circuit Court’s Injunction violate the DD Act by requiring prior judicial approval of the P & A system’s abuse and neglect investigations?

III

Does the Circuit Court’s Injunction violate the DD Act by requiring a contested hearing on the P & A system’s probable cause determination before the P & A system can investigate abuse and neglect allegations that involve general practices as opposed to specific incidents?

IV

Should the federal DD Act’s terms “abuse” and “neglect” be defined by reference to an amalgam of unrelated state statues or by reference to a related federal statute? V. Does the DD Act require a federally mandated P & A system to disclose to the subject of its investigation details of the allegations of abuse or neglect that prompted its investigation?

VI

Does the DD Act permit a federally mandated P & A system to obtain basic information about a facility’s residents with developmental disabilities so that it can decide whether there is a need to conduct a formal investigation? In its cross-appeal, Mt. Washington presents five issues: 1. Does the Act of Congress, as amended, operate so as to pre-empt State statutory law and does it mandate the State to confer protection and advocacy system authority over a private hospital such as Mt.

Washington which did not receive federal funds? 2. Does the Executive Order of 1986 have any effect upon a private hospital which is not a unit of State government and can it, in effect, operate to repeal statute law? ⁶⁵ 3. Does the Governor of Maryland have the power by contract representation or assurance, to bind a non-party and to exempt that non-party from the application of statute law? 4. If, arguendo, the Injunction is affirmed, is court oversight of MDLC determinations of probable cause unlawful?

Is it unlawful to use State statutory definitions of terms used, without definition, in the Act of Congress? 5. If, arguendo, the Injunction is affirmed, is it lawful to hold that a non-specific CINA order is sufficient to authorize disclosure of confidential hospital records and reports? DISCUSSION The Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. §§ 6000 et seq. (the DD Act), is a federal law that creates a federal-state grant program whereby the Federal Government provides financial assistance to participating States to aid them in creating programs to care for and treat the developmentally disabled.

Like other federal-state cooperative programs, the Act is voluntary and the States are given the choice of complying with the conditions set forth in the Act or forgoing the benefits of federal [funding]. Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 11 , 101 S.Ct. 1531, 1536-37 , 67 L.Ed.2d 694 (1981). The DD Act lists conditions for the receipt of federal funds. Section 6042 of the DD Act states that “[i]n order for a State to receive an allotment ... 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)(1).

To comply with § 6042, Maryland enacted a statute to create a P & A system. Md.Code (1974, 1995 RepLVol.), § 3-1001(a) of the Courts & Judicial Proceedings Article provides: “There shall be provided protection and advocacy services to persons with developmental disabilities.” The governor is authorized to “make the designation of a unit as the official State agency for participation in a federal program.... ” ⁶⁶ McLCode (1984, 1993 Repl.Vol., 1994 Cum.Supp.), § 8-304 of the State Government Article. By Executive order on June 25, 1986, the governor designated MDLC as the agency responsible for the implementation of the State system for the protection and advocacy of the rights of the developmentally disabled.” COMAR 01.01.1086.12. 1, 2, 3 In its cross-appeal, Mt. Washington challenges MDLC’s authority to investigate a private hospital.

We shall therefore address the cross-appeal first and consider the first three issues together. Mt. Washington contends that the DD Act contains no mandate of authority to MDLC, that it is merely a funding statute. To support its assertion, Mt.

Washington points to the Supreme Court’s opinion in Pennhurst, wherein the Court states: There is virtually no support for the lower court’s conclusion that Congress created rights and obligations pursuant to its power to enforce the Fourteenth Amendment. The Act nowhere states that that is its purpose. Quite the contrary, the Act’s language and structure demonstrate that it is a mere federal-state funding statute. The explicit purposes of the Act are simply ‘to assist’ the States through the use of federal grants to improve the care and treatment of the mentally retarded. § 6000(b) (1976 ed., Supp. III).

Nothing in the ‘overall’ or ‘specific’ purpose of the Act reveals an intent to require the States to fund new, substantive rights. Surely Congress would not have established such elaborate funding incentives had it simply intended to impose absolute obligations on the States. Pennhurst, 451 U.S. at 18 , 101 S.Ct. at 1540 . Mt.

Washington insists that neither federal nor state law gives MDLC the authority it purports to assert. The Executive Order of Governor Hughes, effective June 25, 1986, promulgated as COMAR 01.01.1986.12, designates MDLC as the “official agency, for purposes of Public Law 94-103, re ⁶⁷ sponsible for the implementation of the State system for the protection and advocacy of the rights of the developmentally disabled.” The Order also empowers MDLC to perform the duties and responsibilities to be delegated to it by the State of Maryland Plan under Public Law 94-103. As Mt. Washington points out, however, there is no Maryland Plan.

The affidavit of Jack Buffington, Chief Executive Officer of the Maryland Disabilities Administration, filed on January 7, 1994, states that such a document does not exist. Mt. Washington argues that, in the absence of a plan, MDLC is an entity without governmental authority. Upon remand of this case from the United States District Court to the Circuit Court for Baltimore City, 3 the District Court stated that MDLC “is a statewide legal services program, designated by the State of Maryland to provide protection and advocacy services to protect the rights of persons with developmental disabilities, pursuant to § 3-1001(c) of the Maryland Courts and Judicial Proceedings Article and the Developmental Disabilities Act, 42 U.S.C. §§ 6000 et seq.” Judge Kaplan, in his Memorandum Opinion and Order, recognized that 42 U.S.C. §§ 6000 et seq., the Developmental Disabilities Act, provides that the State (receiving funds) “must have in effect a system to protect and advocate the rights of persons with developmental disabilities.” Judge Kaplan continued, the General Assembly of Maryland “has declared that ‘[t]here shall be provided protection and advocacy services to persons with developmental disabilities,’ Md.Cts. & Jud.Proc. § 3-1001(a).

Section 8-304 of the State Government Article authorizes the governor to ‘make the designation of a unit as the official State Agency for participation in a federal program....’” Judge Kaplan thereupon held that MDLC is the protection and advocacy system for the State of Maryland as required by the Federal Act. ⁶⁸ We agree with Judge Kaplan’s analysis. Md.Code (1974, 1995 RepLVol.), § 3-1001 of the Courts and Judicial Proceedings Article provides, “There shall be provided protection and advocacy services to persons with developmental disabilities,” and “