Washington Cert Petition

Case 2:08-cv-00200-EFS Document 88 Filed 03/23/2009
1 Laura D. Cooper
2 Kevin P. Byers
Lawrence W. Williamson, Jr.
3 Eugene V. Gorokhov
4
5 William J. Powell
Powell, Kuznetz & Parker
6 Rock Pointe Tower
7 316 West Boone Ave., Suite 380
Spokane, WA 99201-2346
8 Tel: 509.455.4151
9 bill@pkp-law.com
10
ATTORNEYS FOR PLAINTIFFS
11
12 IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
13
14 MERLE JANES, MD, et al, )
Plaintiffs, ) No. CV-08-200-EFS
15
)
16 vs. ) PLAINTIFF’S MEMORANDUM IN
17 ) SUPPORT OF MOTION OF
PETER J. HARRIS, et al, ) PARTIAL SUMMARY JUDGMENT
18 Defendants. ) PURSUANT TO FRCP 56 ON ADA
19 _______________________________ ) CLAIMS
20
By way of this motion, Plaintiffs seek Partial Summary Judgment under
21
22 F.R.C.P. 56.1 Plaintiffs, consisting of individuals and two as-yet uncertified
23
24
1
25 Summary judgment shall be granted where there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
26 56(c).
27
28 LAURA D. COOPER, ESQ.
Partial Summary Judgment ADA Memo 2 -1 808 Lariat Drive
Eugene, Oregon 97401
(541) 302-6527
laura@lauracooper.com
1 classes of similarly situated chronic pain patients along with a physician

2
representative challenge prohibitions imposed by state public health authorities on
3
4 treatment of severe chronic pain with opioid medications using two administrative
5
methodologies, including (1) the InterAgency Guidelines on Opioid Dosing for
6
7 noncancer Pain [hereinafter “Dosing Guidelines”]2 and (2) specific clinical practice
8 standards published within the MQAC Hunt Decision [hereinafter “Hunt
9
Decision”].3 Physicians simultaneously owe professional and ethical duties to their
10
11 patients which are irreconcilable with the challenged state mandates.
12
Issue 1: Count 3 - ADA Title II Content of the Dosing Guidelines
13
14 Plaintiffs have asserted Title II4 Americans With Disabilities Act (“ADA”)
15
claims5 which are derived from liability the public entities6 themselves impose
16
17
18 2
Doc. 31, pages 151-165. This document is self-authenticated based on the
19 document’s masthead showing that it is an official Washington government
20 publication. See Fed. R. Ev. 902(5).
3
The Hunt Decision is a written MQAC adjudication constituting Exhibit E to
21 Doc. 31, at pages 177-et seq. Based on the document’s masthead, the Hunt
22 Decision is self-authenticated as an official Washington government publication.
See Fed. R. Ev. 902(5).
23 4
See 42 U.S.C. §12132.
24 5
See, e.g., Doc. 29 Count 3 at ¶¶213-237, and Count 7 at ¶¶277-293.
25
6
The InterAgency Group is a “public entity” as defined in 42 U.S.C.§12131(1).
The InterAgency Medical Group constitutes an “instrumentality” of the State
26 composed of a workgroup of state employees. See Doc. 32 at ¶XII.
27
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1 upon physicians under ADA Title III as public accommodations7 through

2
“contracting, licensing,8 or other arrangements.”9 See 42 U.S.C. §12182(b)(1)(D);
3
4 28 C.F.R. §36.204. An ADA Title II prima facie case requires each Plaintiff to
5
prove 3 elements: (1) that he or she is qualified to sue under the ADA; and (2) was
6
7 impermissibly excluded from participating in a public entity’s services, programs,
8 or activities (3) by reason of his or her disability. See Weinreich v. Los Angeles
9
County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997).
10
11 As a fact-based inquiry the issue of qualification as an “individual with a
12
disability” for each Plaintiff is reserved for trial. The remaining two legal
13
14
15
7
Title III of the ADA prohibits discrimination based on disability by regulated
“service establishments” which specifically includes a professional office of a
16 health care provider, including a physician. 42 U.S.C. §12181(7)(F); 28 CFR §
17 36.104. Licensed physicians who provide health-care services in their offices in
the State of Washington are prohibited from discriminating based upon a person’s
18
disability. See 42 U.S.C. §12182(a); Mayberry v. Von Valtier, 843 F Supp 1160
19 (E.D. Mich. 1994).
8
20 “Licensing” includes state professional licensing requirements, such as those
imposed by the MQAC upon physicians. See Hason vs. Md. Bd. of Cal., 279 F.3d
21 1167 (2002).
9
22 By implementing discriminatory regulatory requirements on a physician, the state
places the licensed professional in an impossible situation: the physician who
23
becomes the purveyor of the discrimination becomes an appropriate defendant in
24 an ADA Title III case brought by a patient against him (see, e.g., Hoepfl v. Barlow,
25 906 F. Supp. 317 (E.D. Va. 1995)) even when they arise from “contracting,
licensing, or other arrangements.” However, the physician risks state enforcement
26 action by failing to impose those requirements.
27
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1 questions are a) whether the Dosing Guidelines contain one or more exclusions
2
based on disability; and b) if so, whether such exclusions are impermissible within
3
4 the terms of Title II as a matter of law.
5
Regulations implementing Title II prohibit public entities from using
6
7 eligibility requirements that “tend to screen out an individual with a disability.”10
8 The Dosing Guidelines specifically target patients based on their necessary
9
mitigation measures.11 The Ninth Circuit has ruled that undue burdens placed on
10
11 the availability of mitigation measures constitutes discrimination based on the
12
13
14
15
16
10
17 “A public entity shall not impose or apply eligibility criteria that screen out or
tend to screen out an individual with a disability or any class of individuals with
18
disabilities from fully and equally enjoying any service, program, or activity,
19 unless such criteria can be shown to be necessary for the provision of the service,
20 program, or activity being offered.” 28 C.F.R. §35.130(b)(8); see also parallel
provisions for Title III, 42 U.S.C. §§12182(b)(1)(D), 12182(b)(2)(A)(i);
21 28§§C.F.R. 36.204, 36.301(a).
22 11
Medications that ameliorate the effects of an underlying disability (such as
opioids for chronic pain treatment) are considered “mitigation measures” within
23
the meaning of the ADA. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 481
24 (1999). The ADA Restoration Act of 2008, P.L. 110-325, has changed the
25 definition of disability as well as the effect of mitigation medication by specifically
overruling Sutton. However, those issues are not relevant for the Court’s decision
26 at this time.
27
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1 underlying disability within the meaning of the ADA. Crowder v. Kitagawa, 81

2
F.3d 1480, 1485 (9th Cir. 1996).12
3
4 The Dosing Guidelines specifically instruct physicians to screen patients
5
based on their opioid mitigation requirements. For example, the Dosing
6
7 Guidelines contain the following bullet-point provisions [see Doc. 31, Exhibit A, at
8 page 154, column 2]:
9
10 • In general, the total daily dose of opioid should not exceed 120 mg of oral
morphine equivalents.
11
12 • Rarely, and only after pain management consultation, should the total daily
dose of opioid be increased above 120 mg oral morphine equivalents.
13
[Emphasis added.] Under these specific provisions, patients are divided into two
14
15 groups for differential treatment: those whose opioid mitigation requirements13 are
16
17
12
In Crowder, a class of visually impaired persons who used guide dogs brought
18
suit seeking exemption from imposition of a120-day quarantine on carnivorous
19 animals entering Hawaii on the ground that the quarantine program violated ADA
20 Title II, even though the state requirement was designed to prevent importation of
rabies. The Court of Appeals held that the quarantine effectively prevented
21 visually-impaired persons from enjoying the benefits of state services and activities
22 in violation of Title II. In reaching that result, the Court noted that Congress
intended in the ADA to prohibit forms of discrimination which deny disabled
23
persons public services disproportionately due to their disability. Crowder, 81
24 F.3d at 1483. Under Crowder, neither a physician nor the state may unduly burden
25 the availability of a necessary mitigation measure directly or indirectly, even as
against a state’s assertion of a competing state health interest. See Crowder, 81 F.
26 3d at 1485.
27
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1 below 120 MEQ, and those whose opioid mitigation requirements meet or exceed
2
120 MEQ.
3
4 After performing an initial screening based on required mitigation measures,
5
the Dosing Guidelines tell a physician to impose specific requirements on the latter
6
7 group that are not imposed on the former. Patients in that latter group are required
8
to go someplace else first in order to obtain care. In so doing, the Dosing
9
10 Guidelines instruct physicians to “apply eligibility criteria that . . . tend to screen
11
out” people requiring more than 119 MEQ of opioid medication. See 28 C.F.R.
12
13 §35.130(b)(8). Moreover, the Dosing Guidelines subject the class of patients who
14 exceed the 119 MEQ threshhold to treatment that is different from that provided to
15
all other patients. This provision creates segregated (e.g., separate treatment).
16
17 For purposes of Title II, this screening results in a “different or separate” service
18
for these particular patients.
19
20
21
22
13
For consistency, Plaintiffs here incorporate the measurements utilized by the
23
Dosing Guidelines to describe Plaintiffs’ own necessary medical mitigation
24 requirements, which is “milligrams of oral morphine equivalents per day.” For
25 shorthand, Plaintiffs designate “MEQ” for that measurement, such that a patient’s
total required milligrams of oral morphine equivalents per day will hereinafter be
26 referred to as their required “MEQ.”
27
(541) 302-6527
1 The state can only defend14 the screening required by the Dosing Guidelines
2
by demonstrating that it “is necessary to provide qualified individuals with
3
4 disabilities with aids, benefits, or services that are equally as effective as those
5
provided to others,” 28 C.F.R. § 35.130(b)(1)(iv) [emphasis added], or “unless
6
7 such criteria can be shown to be necessary for the provision of the service,
8 program, or activity being offered.” 28 C.F.R. § 35.130(b)(8). [Emphasis added.]
9
10
14
The Dosing Guidelines were authored by a public entity for application by
11 physicians in their clinical practice, as evidenced by text on an InterAgency
12 webpage: “The principles in this guideline are intended for use by all
providers who prescribe opioids for chronic, non-cancer pain.” See
13
InterAgency webpage, http://www.agencymeddirectors.wa.gov/opioiddosing.asp,
14 Doc. 78-2, page 8 [bold in original]. Within this document, “providers” can only
15 refer to physicians with valid DEA registrations, who are the sole legally-
authorized gatekeepers for prescribing scheduled opioid medications under federal
16 law (see 21 U.S.C. §822(a)(2)). Defendants assert that the InterAgency
17 Defendants’ motive was to create a “merely advisory” policy statement. See Doc.
72 at page 10. However, discrimination is not vitiated by making it a mere
18
suggestion; harm emanating from discriminatory public policy is actionable
19 regardless of the authors’ stated motive or intent. Crowder, 81 F.3d at 1483;
20 Schonfeld v. City of Carlsbad, 978 F. Supp. 1329, 1334 (S.D. Cal. 1997), aff d, 172
F.3d 876 (9th Cir. 1999); Tsombanidis v. City of West Haven, 180 F. Supp. 2d 262,
21 289-290 (D. Conn. 2001) ; see 42 U.S.C. §§12182(b)(1)(D) and
22 12182(b)(2)(A)(i); see also 28§§C.F.R. 36.204, 36.301(a), and 35.130(b)(8). A
common principle of equity and statutory construction requires a court to assume
23
that lawmakers do not engage in useless, ineffective, or absurd things. See, e.g.,
24 Pennsylvania v. Nelson, 350 U.S. 497, 509-510 (1956). Consequently, the Dosing
25 Guidelines are presumptively purposeful and their foreseeable application
constitutes an “other arrangement” within the meaning of 42 U.S.C.
26 §12182(b)(1)(D) and 28 C.F.R. §36.204.
27
(541) 302-6527
1 Thus, necessity in either formulation of 28 C.F.R. § 35.130(b) is an

2
affirmative statutory defense, for which the Defendants bear the statutory burdens
3
4 of both pleading and proof. See, e.g., Bates v. United Parcel Service, Inc., 511
5
F.3d 974, 992 (9th Cir. 2007)(“business necessity” is an affirmative defense); cf.
6
7 Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247-48 (9th Cir. 1999) (“direct
8 threat” is an affirmative defense for which the defendant bears the statutory burden
9
of proof).
10
11
Defendants have clearly failed that burden here. In their answer, the
12
13 Defendants assert neither “necessity” nor any other similar15 ADA affirmative
14 statutory defense, and thereby waive any assertion they might now make that the
15
challenged state actions are “necessary” to accomplish the purposes of any
16
17 legitimate state public health program.16 See Doc. 32 at ¶CXIX. The Plaintiffs’
18
ADA Title II claim can thus be established as a matter of law by demonstrating
19
20 Plaintiffs’prima facie case.
21
22
23 15
The only affirmative defense asserted by defendants relevant to these ADA
24 claims is Eleventh Amendment immunity. See Doc. 32 at ¶CXIX.
16
25 This waiver is legally consistent with Defendants’ legal position that the Dosing
Guidelines are permissive in nature; a permissive regulation is by definition not
26 “necessary.” See Doc. 18 at page 4, lines 1-2; see also Doc. 72 at page 10.
27
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1 The Dosing Guidelines categorically exclude all persons who require opioids
2
of more than 119 MEQ; those persons are sent elsewhere as a precondition for
3
4 treatment. This requirement burdens the availability of a necessary mitigation
5
measure for all chronic pain patients whose dosage requirements exceed that
6
7 amount, and under Crowder that burden can be deemed imposed “by reason of”
8 the patient’s disability. Moreover, because that categorical exclusion is not
9
“necessary” it is “undue” as a matter of law. No further causation is statutorily
10
11 required to establish liability under Title II. See Helen L. v. Didario, 46 F.3d 325,
12
335 (3d Cir. 1995)("The unnecessary segregation of individuals with disabilities in
13
14 the provision of public services is itself a form of discrimination within the
15
meaning of [Title II of the ADA].”)
16
17 The only liability issue remaining for trial on Plaintiffs’ ADA Title II Claim
18
with respect to the Dosing Guidelines [Count 3] are Plaintiffs’ individual
19
20 qualifications as an “individual with a disability.” No other genuine issue of
21 material fact remains, and Plaintiffs thus request partial summary judgment on
22
23 liability for Count 3 with the issue of disability reserved for trial.17
24
Issue 2: Count 7A - ADA Title II - Hunt Decision
25
26 17
Plaintiffs’ entitlement to compensatory damages is established below in issue 3.
27
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1
2 The Hunt Decision is an MQAC adjudication in which licensure action was
3 taken against a physician based on, inter alia, specific clinical practice standards it
4
5 applied which appear on Page 9, ¶1.9 [Doc. 31 at 186]. Those standards assert that
6 both depression and asthma are categorical contraindications for the prescription
7
of opioid18 medications, and further that opioid medications are categorically
8
9 inappropriate for the treatment of any chronic condition. MQAC in this decision
10
applies clinical practice standards which constitute a per se, categorical prohibition
11
12 against prescribing by a licensed physician of opioid medication for all chronic
13 conditions, including pain, regardless of diagnosis, severity, or any other
14
mitigating factors. The exclusionary standards used in the Hunt decision are
15
16 intentional and complete—and prohibit the use of opioids on a chronic basis for
17
any chronic condition as a matter of law.19 Such a categorical, facial prohibition
18
19
18
20 The Hunt Decision uses the inappropriate and perjorative term “narcotic” instead
of the appropriate term “opioid” which is defined in Washington health regulation
21 WAC 246-919-800(3) to mean “any natural or synthetic medication that has
22 morphine like activity.” This class includes such medications as oxycodone,
oxycontin, hydrocodone, morphine, methadone, Demerol, Percocet, and codeine.
23 19
Moreover, the categorical nature of the prohibition is emphasized where the
24 purported rationale for this thinking appears on page 15, ¶1.23 [Doc. 31 at 192,
25 ¶1.23]: “[a]s with other narcotic [sic] medication, it carries the risk of addiction in
long-term or continued use.”
26
27
Partial Summary Judgment ADA Memo 2 - LAURA D. COOPER, ESQ.
28
10 808 Lariat Drive
(541) 302-6527
1 [known as per se discrimination] forecloses the possibility of consideration of

2
individual reasonable accommodation requests within the meaning of the
3
4 Americans With Disabilities Act. See Lovel v. Chandler, 303 F.3d 1039, 1050-51
5
(9th Cir. 2002).
6
7 The propriety of this complex medical issue is not subject to factual dispute
8 here because it has already been decided by the state legislature. The factual
9
existence of a group of patients with chronic pain who have legitimate medical
10
11 need for opioid medications to achieve effective treatment of their chronic pain is
12
explicitly recognized by the text of RCW §18.130.340.20 That statute also
13
14 commands the Department of Health to preserve for this group of patients, among
15
others, “effective medical treatment in accordance with recognized national
16
17 standards.” 21 This treatment command is an explicit legislative “carve-out” from
18
19 20
RCW §18.130.340 presumes that this group of patients exists. A fundamental
20 principle of statutory construction requires a court to assume that lawmakers do
not engage in useless, ineffective, or absurd things. See, e.g., Pennsylvania v.
21 Nelson, 350 U.S. 497, 509-510 (1956).
21
22 This statutory provision also impliedly recognizes that physicians with valid
DEA registrations are the sole legally-authorized gatekeepers for prescribing such
23
medications (see 21 U.S.C. §822(a)(2)), and thus that physicians have a heightened
24 fiduciary obligation for scheduled FDA-regulated prescription medications because
25 when those medications are necessary for effective treatment of severe chronic
pain, the physician – quite literally – possesses the power to determine whether an
26
27
28
11 808 Lariat Drive
(541) 302-6527
1 the disciplinary authority of the MQAC, thereby establishing a statutory boundary

2
beyond which MQAC’s own officials have no authority to impose disciplinary
3
4 clinical practice standards that would require a licensee to deny treatment .22 The
5
specific “carve-out” is demonstrated in the legislative history of RCW
6
7 §18.130.340, whereby its provision was inserted as a specific limitation in an
8
individual s life will be worth living. As a consequence, the State is obligated to
9 take this “special trust” into account when regulating physicians on this particular
10 subject. See Washington v. Glucksberg, 521 U.S. 702, 751-52 (1997) and Abigail
Alliance v. Eschenbach, 495 F.3d 695 (D.C.Cir. 2007) (recognizing an individual’s
11 fundamental liberty interest in receiving medically necessary pain care based on
12 FDA-approved pharmaceuticals); Glucksberg, 521 U.S. at 751-52 and Vacco v.
Quill, 521 U.S. 793, 810 (1997) (judicial intervention by the Supreme Court under
13
14th Amendment substantive due process principles would become necessary if
14 state law were “to prevent the provision of pain care, including the administration
15 of drugs as needed to avoid pain …”).
22
RCW §18.130.340 specifically disempowers MQAC officials who attempt to
16 limit legitimate and effective pain treatment despite any particular panel’s own
17 alternative views on the subject. The Legislative History contained in the 1995
Washington Legislature Substitute Senate Bill 5365 New Section 10, when
18
compared with the complete Substitute Senate Bill 5365, establishes that the opioid
19 treatment mandate was actually presented as a “carve out” from the overall
20 professional disciplinary machinery. In other words, the legislature thought it
necessary to specify that this was an area in which the State Department of Health
21 had to be affirmatively directed and its power specifically limited. Additional
22 evidence of this view is suggested by the language of the statute defining “medical
necessity” for purposes of “effective pain treatment” by reference to “recognized
23 national standards.” This objective provision prevents “capture” of the
24 requirement of effective treatment through subjective administrative interpretations
25 that would substitute a local official’s own judgment for consensus science –
precisely what was attempted in the Hunt Decision.
26
27
28
12 808 Lariat Drive
(541) 302-6527
1 overall legislative bill revamping the Uniform Disciplinary Act at the request of
2
the Department of Health, and was a specific exclusion from that newly-created
3
4 disciplinary authority. Instead, the MQAC’s authority on this subject was
5
specifically limited. See 1995 Legislature, SB 5365 History, [Doc. 68, Exhibits 1
6
7 and 2, pages 21-26].23
8 MQAC here purports to create a medical duty for physicians to deny opioid
9
treatment to all patients with chronic conditions -- period. For patients for whom
10
11 there is no alternative, effective treatment, MQAC has effectively created in the
12
Hunt Decision a medical duty for licensed physicians to abandon such patients as
13
14 a matter of law. Txhose particular clinical standards, which are precedential as
15
applied by the MQAC in the Hunt Decision (see Heinmiller v. Dept. of Health, 127
16
17 Wn.2d 565, 903 P.2d 433 (Wn. 1995)) mandate per se discrimination based on a
18 categorical exclusion as a matter of law; however, this MQAC-imposed “duty” as
19
applied in the Hunt Decision exceeds MQAC’s own statutory boundaries under
20
21 RCW §18.130.340. As with the Dosing Guidelines, this provision is not
22
23
24
25
23
This information is available online at:
http://dlr.leg.wa.gov/billsummary/default.aspx?year=1995&bill=5365.
26
27
28
13 808 Lariat Drive
(541) 302-6527
1 “necessary” and thus cannot be sustained under Title II of the ADA. See 28 C.F.R.
2
§ 35.130(b)(6).
3
4 Issue 3: Compensatory Damages Arising From Categorical Exclusions
5
6 Plaintiffs who establish liability based on categorical exclusions under ADA
7
Title II are also entitled to compensatory damages as a matter of law. See Lovel,
8
9 303 F.3d at 1057-58. 24 The MQAC clinical standards establish a categorical
10 exclusion for all chronic pain treatment with opioid medications, and the Dosage
11
Guidelines establish a categorical exclusion for all persons who require opioid
12
13 dosages for effective treatment of chronic pain which exceed 119 MEQ. As to
14
those groups of people the regulatory provisions constitute facial or per se
15
16 discrimination. See Lovel, 303 F.3d at 1057-58. 25
17
18 24
The same remedies are available for violations of ADA Title II as are available
19 for §504 of the Vocational Rehabilitation Act. See 42 U.S.C. § 12133. Those
20 remedies, in turn, are the same as those set forth in Title VI of the Civil Rights Act
of 1964, 42 U.S.C. § 2000d et seq. See 29 U.S.C. §794a(a)(2); Ferguson v. City of
21 Phoenix, 157 F.3d 668, 674 (9th Cir. 1998). In accord with Title VI case law, see
22 Guardians Ass n v. Civil Serv. Comm n, 463 U.S. 582 (1983), compensatory
damages are available under Title II upon a showing of discriminatory intent.
23
Ferguson, 157 F.3d at 674; see also Memmer v. Marin Cty. Courts, 169 F.3d 630,
24 633 (9th Cir. 1999).
25
25 Lovel described facial discrimination as a categorical exclusion of disabled
persons; when such exclusion is contained in a public program without adequate
26
27
28
14 808 Lariat Drive
(541) 302-6527
1 Both regulatory classifications specifically affected persons that the

2
Defendants knew or should have known included “individuals with disabilities”
3
4 within the meaning of Title II of the ADA.26 The regulations constitute facial
5
6
7 statutory justification, the exclusion is considered per se. The court found that a
per se exclusion expressly violates Title II regulations when not coupled with a
8
reasonable accommodation requirement; the Title II principle of integration only
9 permits a public entity to offer different or separate benefits to people with
10 disabilities if “such action is necessary to provide qualified individuals with
disabilities with aids, benefits or services that are as effective as those provided to
11 others.” 28 C.F.R. §35.130(b)(I)(iv); 28 C.F.R. §41.51(b)(1)(iv). The Lovel court
12 held that when a categorical exclusion is not coupled with a requirement for a
reasonable accommodation -- thus providing no effective alternative allowing for
13
consideration of the individual circumstances of a person with a disability, that
14 public program effectively offers no benefit at all for those persons whose needs
15 are not met by the categorical exclusion. Lovel, 303 F.3d at 1056. Moreover, the
Lovel court found that in implementing a categorical exclusion, the public entity is,
16 at the very least “deliberately indifferent” by its very terms, and that facial
17 discrimination is thus deemed “intentional.” Lovel, 303 F.3d at 1056; see also
Pandazides v. Va. Bd. of Ed., 13 F.3d 823, 830 n.9 (4th Cir. 1994) (reasoning that
18
because “intentional discrimination” is “synonymous with discrimination resulting
19 in ‘disparate treatment,’ which contrasts with disparate impact,” no greater proof of
20 mental state is necessary to prove intent) (citing Guardians, 463 U.S. at 584 n.2
(opinion of White, J.)).
21 26
Both sets of Defendants held themselves out as “expert” regulators in the area of
22 chronic pain who could create clinical practice standards for physicians. As such,
these state officials are fairly chargeable with knowledge about the nature and
23 severity of the impairments faced by the plaintiffs here as well as other similarly
24 situated individuals. This necessarily includes knowledge about public health
25 prevalence data as well as the nature of the underlying impairments – and therefore
the scope of the specific harm endured by the entire population of indivduals with
26
27
28
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(541) 302-6527
1 exclusion based upon a necessary mitigation measure, which is a form of per se

2
discrimination based on disability. See Lovel, 303 F.3d at 1055-56.
3
4 Lovel extensively quoted Duvall v. County of Kitsap, 260 F.3d 1124 (9th
5
Cir. 2001), wherein a “deliberate indifference” standard is applied to determine
6
7 whether public entity conduct is compensable. Id. at 1138. “Deliberate
8 indifference requires both knowledge that a harm to a federally protected right is
9
substantially likely,27 and a failure to act upon that likelihood.” Id. at 1139 (citing
10
11 City of Canton v. Harris, 489 U.S. 378, 389 (1988)). The Lovel court found that in
12
a case of a categorical exclusion the public entity is, at the very least, “deliberately
13
14
15
16
17 severe, chronic pain who depend upon the opioid medications they are
categorically excluding.
18 27
The Lovel court also concluded that when a state facially discriminates against
19 the disabled, it is chargeable with notice that federal rights are implicated by such
20 discrimination, and by choosing categorically to exclude disabled persons, the
State has failed to act with the requisite care to protect the rights of the disabled.
21 Nevertheless, by categorically excluding a class of persons from the state program
22 which includes the disabled, the State was imputed with knowledge about and
notice of the effects of its conduct on the plaintiffs and similarly situated people.
23
Lovel, 303 F.3d at 1057-58. By analogy, categorically subjecting chronic pain
24 patients to the exclusionary clinical practice standards imposed by MQAC and the
25 InterAgency Defendants imputes the public entity Defendants here with knowledge
about and notice of the effects of its conduct on chronic pain patients.
26
27
28
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1 indifferent,”28 which satisfies the requirement of proof of “intentional

2
discrimination.” Lovel, 303 F.3d at 1057.
3
4 The same is true here. The categorical exclusions are clear and Dr. Janes
5
and pain patients who qualify as persons with disabilities within the meaning of the
6
7 ADA should be entitled to partial summary judgment on the issue of liability;
8 moreover, compensatory damages under Lovel should be available as a matter of
9
law to qualifying plaintiffs for damages resulting from Defendants’ conduct.
10
11 Issues reserved for trial include individual plaintiffs’ statutory qualification as well
12
as amounts of compensatory damages flowing from the imposition of state-
13
14 imposed categorical opioid treatment limitations.
15
Issue 4: Counts 3 and 7 - ADA Title II- Physician s Association Claim
16
17
28
In Lovel, the Ninth Circuit held that by creating a categorical exclusion, and also
18
by failing to provide effective alternatives for persons with disabilities within that
19 exclusion, the State acted with at least deliberate indifference with respect to those
20 excluded individuals. Accordingly, regardless of the State’s asserted long-term
motivations or competing interests, the State’s facial exclusion of the disabled
21 from the program entitled the plaintiffs to compensatory damages as a matter of
22 law on summary judgment (in amounts to be determined later). By its very terms,
facial discrimination is “intentional.” See Pandazides v. Va. Bd. of Ed., 13 F.3d
23
823, 830 n.9 (4th Cir. 1994) (reasoning that because “intentional discrimination”
24 was “synonymous with discrimination resulting in ‘disparate treatment,’ which
25 contrasts with disparate impact,” no greater proof of mental state was necessary)
(citing Guardians, 463 U.S. at 584 n.2 (opinion of White, J.)).
26
27
28
17 808 Lariat Drive
(541) 302-6527
1 The physician’s standing to sue as a result of his “association” with his

2
qualifying patients is explicitly recognized in 42 U.S.C. §12182(b)(1)(E).
3
4 However, the primary ADA claims are against public entities under Title II. The
5
physician is not a person with a disability, and Title II lacks an explicit parallel to
6
7 the Title III “association discrimination” counterpart.29 The Ninth Circuit has not
8 yet ruled on the question whether to recognize a cause of action under Title II for
9
“association discrimination” on behalf of a physician who finds himself having to
10
11 impose state-mandated discrimination based on disability against his patients,
12
although the 4th Circuit has explicitly done so. A Helping Hand, LLC v. Baltimore
13
14 County, 515 F.3d 356, 363-64 (4th Cir. 2008)(“Helping Hand”.)
15
Thus, Plaintiffs request this Court to recognize, as an issue of first
16
17 impression in the Ninth Circuit, that an individual who resists discriminatory state
18
authority on behalf of a person with whom he is “associated” within the meaning
19
20 of ADA Title III under 42 U.S.C. §12182(b)(1)(E) should be deemed an
21 appropriate plaintiff in his own right under ADA Title II. The imputation of that
22
23 29
For that reason, and out of an abundance of legal caution, Plaintiffs pleaded the
24 physician as a direct plaintiff in a claim of association discrimination (see Doc. 29,
25 ¶¶118, 297, 300) as well as a patient representative under the standing doctrine of
jus tertii (see Doc. 29, ¶¶119-120, 298, 301).
26
27
28
18 808 Lariat Drive
(541) 302-6527
1 “association discrimination” cause of action is strongly suggested by both the

2
statutory scheme as well as the legislative history, as explained in Helping Hand,
3
4 515 F.3d at 363-64.30 The legal effect31 of this decision would be to grant Dr.
5
6
7
30
Title II provides a remedy to "any person alleging discrimination on the basis of
8
disability. . ." 42 U.S.C. § 12133 (emphasis added). Helping Hand points out that
9 Titles I and III list specific actions that constitute discrimination but Title II simply
10 provides a blanket prohibition. Cf. 42 U.S.C. §12112(b) (Title I) and 42 U.S.C.
§12182(b) (Title III) with 42 U.S.C. §12132 (Title II). When listing the specific
11 actions that constitute discrimination in Titles I and III, Congress expressly
12 protected those who suffer discrimination "because of the known disability of an
individual with whom [they are]. . . known to have a relationship or association."
13
42 U.S.C. § 12182(b)(1)(E) (Title III); see also id. § 12112(b)(4) (Title I). The
14 asymmetry of Title II was explained by the House Committee on Education and
15 Labor: "[t]he Committee has chosen not to list all the types of actions that are
included within the term `discrimination', as was done in titles I and III. . . . The
16 Committee intends, however, that the forms of discrimination prohibited by [Title
17 II] be identical to those set out in the applicable provisions of titles I and III of this
legislation." H.R.Rep. No. 101-485(II), at 84 (1990), as reprinted in 1990
18
U.S.C.C.A.N. 303, 367; see also S.Rep. No. 101-116, at 44 (1989). Both Titles I
19 and III explicitly provide a cause of action for associational discrimination. See 42
20 U.S.C. §§ 12112(b)(4), 12182(b)(1)(E). The regulations implementing Title II
were directed to “incorporate interpretations of the term discrimination set forth in
21 titles I and III. . . .” See 42 U.S.C. § 12134(a), (b); see also H.R.Rep. No. 101-
22 485(111), at 52 (1990), as reprinted in 1990 U.S.C.C.A.N. 445, 475; H.R.Rep. No.
101-485(II), at 84 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 367. The
23 regulations under Title II fulfill the Congressional directive and bar associational
24 discrimination. 28 C.F.R. § 35.130(g).
25
31
The regulations’ appendix demonstrates the intent "to ensure that entities such as
health care providers . . . and others who provide professional services to persons
26
27
28
19 808 Lariat Drive
(541) 302-6527
1 Janes the same Title II statutory remedies as other plaintiffs, without which he
2
would be limited to remedies he would receive as a jus tertii representative.
3
4 DATED this 23rd day of March, 2008.
5
Respectfully Submitted,
6
7 Laura D. Cooper
By: s/Laura D. Cooper
8 Attorney at Law
9 808 Lariat Drive
Eugene, OR 97401
10
Tel: 541.302.6527
11 laura@lauracooper.com
12 Oregon SB #863589
13 William J. Powell
14 By: s/William J. Powell
Powell, Kuznetz & Parker
15
Rock Pointe Tower
16 316 West Boone Ave., Suite 380
17 Spokane, WA 99201-2346
Tel: 509.455.4151
18 bill@pkp-law.com
19 WSBA #672
20
Kevin P. Byers
21 Eugene V. Gorokhov
22 Lawrence W. Williamson, Jr.
23
24
25 with disabilities are not subjected to discrimination because of their professional
association with persons with disabilities." 28 C.F.R. § 35.130(g) app. A.
26
27
28
20 808 Lariat Drive
(541) 302-6527

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Case 2:08-cv-00200-EFS Document 88 Filed 03/23/2009

1 classes of similarly situated chronic pain patients along with a physician

1 upon physicians under ADA Title III as public accommodations7 through

1 underlying disability within the meaning of the ADA. Crowder v. Kitagawa, 81

1 Thus, necessity in either formulation of 28 C.F.R. § 35.130(b) is an

1 [known as per se discrimination] forecloses the possibility of consideration of

1 the disciplinary authority of the MQAC, thereby establishing a statutory boundary

1 Both regulatory classifications specifically affected persons that the

1 exclusion based upon a necessary mitigation measure, which is a form of per se

1 indifferent,”28 which satisfies the requirement of proof of “intentional

1 The physician’s standing to sue as a result of his “association” with his

1 “association discrimination” cause of action is strongly suggested by both the

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