In 2010, The York Legal Group filed a Brief of Amicus Curiae on behalf of the Association for Public and Private Developmental Facility Administrators (APPDA) in ARC of Virginia, Inc. v. Timothy Kaine, et al. wherein ARC of Virginia filed a preliminary injunction attempting to stop the construction of a new ICF/MR facility being built in Virginia. The Court denied the preliminary injunction and ruled in favor of a motion to dismiss the case. The United States Department of Justice (DOJ) filed an Amicus Brief in support of ARC's position. On behalf of the APPDA, the York Legal Group filed an Amicus Brief in support of the State's interests to dismiss the case.
The United States Department of Justice argued that a preliminary injunction was necessary to stop individuals from being moved to the new facility housing. The DOJ cited Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175, 1181 (10th Cir. 2003), for the proposition that an individual need not be institutionalized before he could challenge a discriminatory law or policy. As seen in the Order, the Judge addressed the DOJ’s use of Fisher by stating that Fisher is “distinct from this case”…”because there, the plaintiffs stated that they would ‘rather die’ than reside in a nursing home.” The Judge went on to point out that “[h]ere, there is evidence that shows that many individuals will chose to live in the new facility. In fact, at least 84 of the 155 legal representatives of the current SEVTC residents have made formal pleas to permit their loved ones to remain in the new facility rather than be placed in community housing. (Shrewsberry Declaration at ¶ 7; Dix Declaration at ¶¶ 7-10.) Thus, the argument made by ARC and the United States regarding the risk of institutionalization fails to account for a key principle in the Olmstead decision, personal choice.” (Emphasis added). The judge concluded by stating that since more residents desire to remain in institutionalized care than what the new facility can provide for, there is little risk that anyone would be moved there who does not require it and who did not desire it.
The United States also attempted to extend the decision in Disability Advocates, 598 F.Supp.2d. 289 (E.D.N.Y. 2009), but the Court swiftly rejected this attempt by the United States, stating “in so doing, they distort its holding and ignore the context in which the case was decided.” The Court in this case found that the United States’ attempts to distort the law and apply rulings in cases which were not analogous were misplaced and inappropriate, thereby ruling for the Defendants and rejecting the attempts of ARC and the United States Department of Justice to obtain an injunction.
To view the Amicus Brief and the Court's decision to dismiss, click on the PDF links below.
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