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Disability Rights New Jersey, Inc v. Jennifer Velez

July 20, 2011

DISABILITY RIGHTS NEW JERSEY, INC., PLAINTIFF,
v.
JENNIFER VELEZ, IN HER OFFICIAL CAPACITY AS COMMISSIONER, STATE OF NEW JERSEY DEPARTMENT OF HUMAN SERVICE, AND MARY O'DOWD, IN HER CAPACITY AS THE ACTING COMMISSIONER OF THE STATE OF NEW JERSEY, DEPARTMENT OF HEALTH AND SENIOR SERVICES, DEFENDANTS.



The opinion of the court was delivered by: Debevoise, Senior District Judge

NOT FOR PUBLICATION

OPINION

Plaintiff, Disability Rights New Jersey ("DRNJ") brings this action against Defendants Jennifer Velez and Mary O'Dowd in their capacities as Commissioners of the New Jersey Department of Human Services ("DHS") and New Jersey Department of Health and Senior Services ("DHSS") respectively. Plaintiff represents psychiatric patients who either are or will be treated at psychiatric hospitals in the state of New Jersey. Plaintiff alleges that Administrative Bulletin A.B. 5:04, governing the involuntary administration of psychotropic drugs, is routinely violated in New Jersey hospitals. As a result, psychiatric patients are forced to consume psychotropic drugs against their will in violation of New Jersey law, the New Jersey and Federal Constitutions, and the regular and prudent practice of medicine. Plaintiff also alleges that the "Three Step" process by which patients are involuntarily medicated is constitutionally infirm even if followed, as it denies patients the ability to meaningfully challenge this dangerous violation of their bodies and minds.

Defendants now move to dismiss this action. For the reasons set forth below, Defendants' Motion is GRANTED as to all Counts with respect to Defendant O'Dowd, and GRANTED as to Count IV with respect to Defendant Velez. Count IV of Plaintiff's Complaint is DISMISSED. Defendant's Motion is otherwise DENIED.

I.BACKGROUND

DRNJ is a not-for-profit corporation that engages in advocacy on behalf of individuals with disabilities. Plaintiff is under contract with New Jersey to provide services as authorized under the Protection and Advocacy for Individuals with Mental Illness Act ("PAIMI"). 42 U.S.C. § 10801 et seq. Pursuant to PAIMI, DRNJ has been allocated federal funds to "investigate incidents of abuse and neglect of individuals with mental illness", "pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness", and initiate legal action "to ensure the protection of individuals with mental illness who are receiving care or treatment in the State.." Id.

DHS is a state agency that provides medical care and assistance programs for economically disadvantaged or disabled residents of New Jersey. As part of its role in caring for individuals suffering from mental illness, DHS operates five inpatient psychiatric hospitals (the "State Hospitals").*fn1 The State Hospitals have a combined average daily population of approximately 1,800 patients as of May 2010. (Complaint ¶ 33). DHS also funds most of the cost of indigent inpatient care at six other psychiatric units and hospitals that are independently operated (the "County Hospitals").*fn2 The County Hospitals have approximately 750 patient beds. Id. at 34. DHSS is a state agency charged with overseeing the delivery of medical care in New Jersey. DHSS does not operate any hospitals, but instead acts as a licensing body for all hospitals in the state, public and private.*fn3 As part of these duties, DHSS drafts and enforces regulations concerning billing rates, medical records, patient care, and other aspects of hospital operations.

Plaintiff brings this case as a broad challenge to the current rules and practices surrounding the involuntary administration of psychotropic drugs in New Jersey. Specifically, Plaintiff questions the application of Administrative Bulletin A.B. 5:04, published by the New Jersey Division of Mental Health and Hospitals and entitled "The Administration of Psychotropic Medication to Adult Voluntary and Involuntary Patients." (Complaint Ex. 3). A.B. 5:04 codifies procedures designed to protect the constitutional and statutory rights of patients receiving treatment for mental illness. Plaintiff claims that the procedures set forth in A.B. 5:04 are constitutionally infirm as written and rarely followed in practice. (Complaint ¶ 83). Plaintiff sues for an order compelling Defendants to reform their regulations, procedures, and practices to appropriately protect the rights of psychiatric patients as guaranteed by the United States and New Jersey constitutions and applicable laws. Id. at 11.

There can be no doubt that all patients in New Jersey, including patients with severe mental illness or injury, have the right to participate meaningfully in the course of their treatment, to be free from unnecessary or unwanted medication, and to have their rights to personal autonomy and bodily integrity respected by agents of the state. The New Jersey Patient's Bill of Rights specifically provides that "[e]ach patient in treatment shall have" the rights to, inter alia, "be free from unnecessary or excessive medication", "[n]ot to be subjected to experimental research", "To be free from physical restraint and isolation", "[t]o be free from corporal punishment", "[t]o privacy and dignity", and "[t]o the least restrictive conditions necessary to achieve the purposes of treatment." N.J.S.A. 30:4-24.2(d)-(e). In addition, the constitutional basis for each individual to control his or her own medical treatment is well established. Washington v. Harper, 494 U.S. 210, 221-222 (1990) ("in addition to the liberty interest created by the State's Policy, respondent possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment.").*fn4

To uphold these rights and protect the interests of patients who have been involuntarily committed and may be forcibly medicated, A.B. 5:04 requires that hospitals retain "Rennie Advocates" to review the administration of psychotropic drugs. These Rennie Advocates are charged with counseling patients about their medical decisions and right to refuse treatment. They are also responsible for advocating on behalf of of patients to Medical Directors and other individuals with supervisory authority over the administration of drugs. However these Rennie Advocates are not independent of the hospital organizational structure. They are instead hospital employees "responsible to the CEO and Division director."

A.B. 5:04 provides four mechanisms by which adult voluntary or involuntary patients in New Jersey hospitals may be given psychotropic medication. First, under Section IV(A) a psychotropic medication may be administered to a patient "after the patient has given informed, voluntary, consent in writing to that specific medication."*fn5 Informed consent to a psychotropic medication requires that

(a) A physician has discussed with the patient: the nature of the patient's condition, the purpose, nature, type and dosage of the medication prescribed, the anticipated benefits of the medication, the probability that the medication will be successful in achieving its purposes, the risks, consequences and side effects of the medication, the advantages and risks of feasible alternative treatments, the prognosis if medication is not given and the method of administering medication; and

(b) The physician, assisted by members of the treatment team, has provided the patient with a consent form and medication fact sheet, discussed the consent of the forms, offered to answer questions and advised the patient that s/he may revoke consent at any time.

Consent forms and medication fact sheets for specific medications are available from the Medical Director. The physician is responsible for ensuring that the contents of the consent form and medication fact sheets are communicated to the patient in his/her primary language or mode of communication. If such communication is other than in English and through the documents provided, the nature of the communication shall be document ed on the consent form by the physician; and

(c) The physician determines that the patient understands the information disclosed pursuant to paragraph A 1(a), above, and has based his/her decision on rational grounds.

If a patient does not consent to the medication or is incapable of giving the informed consent necessary for the administration of psychotropic drugs, there are three alternatives mechanisms by which the drugs may be administered.

Under Section IV(C)(1), drugs may be administered to a patient on an emergency basis if "a physician certifies in a patient's chart that it is essential to administer psychotropic medication, because without medication there is a substantial likelihood that the patient will harm him/herself or others or that the patient's health will be significantly impaired, in the recently foreseeable future.." Such emergency authorizations are effective only for 72 hours and may not involve "long acting medication." The emergency authorizations are also reviewable by the Medical Director at the direction of the Hospital Liason or Rennie Advocate.

Additionally, under Section IV(C)(3), drugs may be administered to patients who are not capable of giving informed consent, provided that a physician certifies that:

(1) Medication is a necessary part of the patient's treatment plan; and

(2) The patient is unable, because of his/her illness, to give informed consent to the medication, and

(3) The patient is not refusing the medication.

Like emergency authorizations, the delivery of psychotropic drugs to patients unable to consent is reviewable by the Medical Director at the direction of the Hospital Liason or Rennie Advocate.

Last, under Section IV(C)(2), non-emergency psychotropic drugs may be involuntarily given to a patient who refuses medication if a "Three Step" procedure is followed. First, the treating physician who wants to administer the drugs must "speak to the patient to discuss and attempt to respond to the patient's concerns about the medication." As a part of this conversation, the doctor must inform the patient that "the matter will be discussed at a meeting of the patient's treatment team," inform the patient of his or her rights to "discuss the matter with a person of his own choosing, such as a relative or friend [or] Rennie Advocate" and "invite the patient to attend the treatment team meeting."

Second, the treatment team must "meet to discuss the physician's determinations and recommendations and the patient's response." If the treatment team concurs with the physician, then "the Medical Director shall conduct a personal examination of the patient and a review of the patient's chart" to determine whether the psychotropic drugs are appropriate. If Medical Director agrees with the treating physician and the treatment team, and the patient is involuntary-that is to say, forcibly committed to the hospital as the result of a civil proceeding-the drugs may be involuntarily administered.

The decision to medicate psychiatric patients against their will must be reviewed by the Rennie Advocate as soon as possible and once per month thereafter. Throughout the Three Step process, participants must document compliance with A.B. 5:04 by completing the appropriate portions of a "Three Step Form."

Plaintiff's complaint contains a panoply of serious allegations concerning the practice of psychiatric medicine in New Jersey hospitals. Plaintiff alleges that hospitals routinely violate the Three Step process set out in A.B. 5:04 by, inter alia:

 Failing to inform patients about the Rennie Advisor and their rights to refuse medication. (Complaint ¶ 84).

 Performing steps two and three of the process in a rapid and cursory fashion that precludes meaningful review. Id. at ¶ 85.

 Approving "blank check" Three Step Forms that permit involuntary administration of virtually any psychotropic drug. Id. at ¶ 87.

 Forbidding patients from attending step two "team meetings." Id. at ¶ 89.  Failing to perform meaningful Medical Director reviews. Id. at ¶ 91.  Delegating Medical Director reviews to a lower level functionary who lacks independence and the ability to overrule the treatment team. Id.  Failing to conduct required weekly reviews of involuntary medication orders. Id. at ¶¶ 92-93.  Approving involuntary medication treatment plans that do not expire and are not reviewed. Id. at ¶ 93.  Misusing emergency procedures for non-emergency medication of patients. Id. at ¶ 94.  Threatening patients with painful and unnecessary medical procedures to coerce "consent" to treatment. Id.  Failing to have a Rennie Advisor on staff for years at a time. Id. at ¶ 100.  Discouraging Rennie Advisors from reviewing treatment decisions. Id. at ¶ 104  Failing to review treatment decisions. Id. at ¶¶ 105-106  Forcibily medicating patients who have not been involuntarily committed. Id. at ¶ 128.

Moreover, Plaintiff alleges that psychopharmacology practices in New Jersey hospitals substantially deviate from generally accepted professional standards. Plaintiff makes explicit reference to a 2009 report from the Department of Justice which concluded that Ancora Hospital prescribed excessive psychiatric medication and had little or no means to track the amount of medication administered to psychiatric patients. Id. at ¶ 115. Plaintiff provides anecdotal evidence of numerous episodes of reckless polypharmacy and unchecked medication errors, often resulting in tragic consequences. Id. at ¶¶ 116-119.

Moreover, Plaintiff contends that the rules set forth in A.B. 5:04, even if followed, would not past constitutional or statutory muster. Plaintiff argues that the Three Step procedure lacks meaningful due process protections due to its lack of a judicial hearing, access to legal counsel, independent outside review, or evaluation of less invasive alternatives. Id. at ¶ 140. Plaintiff submits that patients in New Jersey hospitals are accorded substantially fewer protections than convicts in New Jersey prisons. (Complaint ¶ 8). Plaintiff further argues that the functional incompetence procedures described under Section IV(C)(3) fail to meet any conceivable standard of constitutional due process, as they permit a single doctor to involuntarily medicate a patient without any hearing or review. Id. at ¶¶ 108-110.

Defendants now move to dismiss, arguing that Plaintiff's numerous claims are each defective as a matter of law.

II.DISCUSSION

A. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a complaint for failure to state a claim upon which relief can be granted. When considering a motion under Rule 12(b)(6), the court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The court's inquiry "is not whether plaintiffs will ultimately prevail in a trial on the merits, but whether they should be afforded an opportunity to offer evidence in support of their claims." In re Rockefeller Ctr. Prop., Inc., 311 F.3d 198, 215 (3d Cir. 2002).

The Supreme Court recently clarified the standard for a motion to dismiss under Rule 12(b)(6) in two cases: Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The decisions in those cases abrogated the rule established in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim, which would entitle him to relief." In contrast, the Court in Twombly held that "[f]actual allegations must be enough to raise a right to relief above the speculative level." 550 U.S. at 545. The assertions in the complaint must be enough to "state a claim to relief that is plausible on its face," Id. at 570, meaning that the facts alleged "allow[] the court to draw the reasonable inference that the defendant is liable for the conduct alleged." Iqbal, 129 S. Ct. at 1949; see also, Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008) (in order to survive a motion to dismiss, the factual allegations in a complaint must "raise a reasonable expectation that discovery will reveal evidence of the necessary element," thereby justifying the advancement of "the case beyond the pleadings to the next stage of litigation.").

When assessing the sufficiency of a complaint, the court must distinguish factual contentions -- which allege behavior on the part of the defendant that, if true, would satisfy one or more elements of the claim asserted -- from "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 129 S. Ct. at 1949. Although for the purposes of a motion to dismiss the court must assume the veracity of the facts asserted in the complaint, it is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. at 1950. Thus, "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id.

Defendants do not substantially challenge the truth or plausibility of the factual averments made by Plaintiff. Rather, they claim that the allegations of lawless and barbaric conduct detailed in Plaintiff's complaint are not actionable as a matter of law. ...


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