State files response to Polk-related lawsuit

• By SARAH TITLEY Staff Writer The state has filed its long-awaited response to a lawsuit related to the proposed closures of Polk and White Haven state centers.

The lawsuit, filed in January by residents of Polk and White Haven centers, contends the residents' rights were violated by the decision announced in August 2019 to close the centers within three year.

Violations refer to the U.S. Constitution, the Americans with Disabilities Act, the Rehabilitation Act of 1973 and the Medical Assistance Program.

The response, filed Monday by state attorneys, doesn't acknowledge any specific allegations made by the plaintiffs in the suit. The plaintiffs include six Polk Center residents and seven White Haven residents, and their families.

Instead, the response supports a motion to dismiss the suit that was filed last month by the state.

The state claims the lawsuit - which was filed against Gov. Tom Wolf, several state officials and departments, and the Polk and White Haven centers - fails to meet standards required for a lawsuit to move forward.

Attorneys said "pleading standards have shifted," meaning that plaintiffs must "plead more than the simple possibility of relief to survive a motion to dismiss."

"A complaint must do more than merely allege the plaintiffs entitlement to relief; a complaint has to 'show' such an entitlement with its facts," attorneys for the state said.

Aside from the alleged inability to prove relief is possible, the state claims the plaintiffs have no case.

"Plaintiffs cannot state a claim for relief under the Americans with Disabilities Act (ADA), the Rehabilitation Act (RA), the Medicaid Act or the Due Process Clause," the state said.

Attorneys claim that "generally" it is the responsibility of the federal government to investigate and terminate funds given to a state under the Medicaid Act.

In regards to a due process clause, or allegations that the plaintiffs will be deprived of their Fifth Amendment rights due to the closure of the centers, the state claims the plaintiffs can't provide supporting evidence.

"Their complaint is based on speculative harm that might occur if Polk and (White) Haven centers are closed and the plaintiffs are moved to the community," the response said.

The state said the plaintiffs must show that their liberty is "substantially curtailed" by the state and argued that "individuals are not physically restrained in community settings, nor is (their) freedom substantially curtailed, which prevents the assertion of a Due Process Claim."

To dispute the plaintiffs' claims under ADA and RA, the state turned to a familiar defense under the Olmstead Act.

The defense has been wielded by both state officials and proponents of closing the centers in almost every public hearing regarding Polk Center.

In the response, attorneys quoted the decision made by the Supreme Court in the original Olmstead v. L.C. lawsuit in 1999 and go on to say that federal courts have "consistently held that there is no obverse Olmstead argument that requires that developmentally disabled individuals are discriminated against by being required to live in the community."

The state also said courts have "rejected" the argument that a state's decision to close an institution like Polk or White Haven violates the rights of residents of those facilities.

Attorneys claim another familiar lawsuit in their defense that supporters of the centers have often championed as an example of fighting back - Benjamin v. Department of Public Welfare.

The Benjamin case was a lawsuit filed by several residents of White Haven in 2009 in which several more residents - including two named plaintiffs in the current lawsuit - successfully intervened.

State attorneys say the Benjamin case "addressed the need to move residents of (Intermediate Care Facilities for Individuals with Intellectual Disabilities) ICF/IIDs into the community," and, ultimately, is similar to the current lawsuit.

Because Benjamin was a class action lawsuit and, according to the state, included all residents of ICF/IIDs to those living in the centers today, the lawsuit is "barred by res judicata."

Res judicata, or claim preclusion, is a legal loophole of sorts that means a matter that has had a formal judgment or decision by a competent court may not be pursued further by the same parties, according to the term's dictionary definition.

The state claims that because all plaintiffs named in the current lawsuit were part of the Benjamin case, "are barred ... from filing new claims with the same factual underpinnings or theory."