janek response to wallace

8/10/2019 Janek Response to Wallace

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UNITED STATES DISTRICT COURTWESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

STEPHEN WALLACE ASGUARDIAN FOR JUSTINWALLACE,

Plaintiffs,

V.

DR. KYLE JANEK,COMMISSIONER OF TEXASHEALTH AND HUMANSERVICES COMMISSION, CHRISTRAYLOR, DEPUTYCOMMISSIONER, SCOTTSCHALCHLIN, ASSISTANTCOMMISSIONER OF THE TEXASDEPARTMENT OF AGING ANDDISABILITY SERVICES,

Defendants.

§§§§§§§§§§§§§§§§§§

Civil Action No. A14CV0830 LY

DEFENDANTS JANEK AND TRAYLOR’S REPLY TO

PLAINTIFF’S RESPONSE TO MOTION TO DISMISS

Defendants Dr. Kyle Janek, Executive Commissioner of Texas Health and Human

Services Commission (HHSC), and Chris Traylor, Chief Deputy Commissioner of

HHSC, 1 by and through Greg Abbott, Attorney General for the State of Texas, file this

Reply to Plaintiff’s Response to their Motion to Dismiss pursuant to Federal Rules of

Civil Procedure 12(b)(1) and (6).

1 Scott Schalchlin, Department of Aging and Disability Services (“DADS”) Assistant Commissioner for StateSupported Living Centers, is a named defendant but has not been served.

Case 1:14-cv-00830-LY Document 10 Filed 11/05/14 of 6



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I.ARGUMENT AND AUTHORITIES

Plaintiff’s response to Defendants’ Motion to Dismiss fails to allege the violation

of any constitutional right or federal law, fails to state a claim upon which relief may be

granted and fails to invoke the limited jurisdiction of this federal court. The plaintiff's

response only clarifies that he seeks to enjoin defendants from transferring his son from

Austin State Supported Living Center (AuSSLC), a residential facility for individuals with

intellectual disabilities, to Brenham State Support Living Center (BSSLC), another such

facility. The grounds plaintiff offers for his requested injunctive relief are: 1) the state’s

alleged violation of unspecified “state policy;” 2) th e alleged damage the move to BSSLC

would cause his son; and 3) the state’s alleged monetary motivation for closure of some

AuSSLC living spaces. Because none of these asserted grounds is sufficient to overcome

the grounds for Defendants’ Motion to Dismiss, plaintiff’s claim should be dismissed

pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6).

A. Unnamed state policy

Plaintiff argues that defendants have chosen to ignore a state policy for determining

the “orderly location and relocation of disabled individuals” in state care. Response at 4.

Plaintiff neglects to identify this policy and defendants deny that any such “policy”

applies to this circumstance.

State law authorizes DADS to specify the facility in which a client receiving

services is housed (Tex. Health & Safety Code Ann. § 533.038(b)) and provides a process

by which the department’s selection may be challenged. Id., §§ 594.011-.019. Federal




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law requires the annual placement analysis referenced in plaintiff’s response. 42 C.F.R. §

483.440(f)(2), (c).

There is no state or federal law or policy that defendants have ignored or

circumvented relative to the challenged transfer. Plaintiff fails to state a claim upon which

relief may be granted and fails to invoke the limited jurisdiction of this federal court.

B. Transfer Process

As previously stated, clients who oppose transfer to another SSLC are entitled to

the processes provided in state law. Tex. Health & Safety Code Ann. §§ 594.011-.019.

These processes include an administrative evidentiary hearing in a convenient location

(§ 594.015) and the right to de novo review of the administrative decision in the county

court of the client’s residence (§ 594.017). These proceedings determine, inter alia ,

whether the client’s treatment and habilitation needs will be met in the facility to which

transfer is proposed. Tex. Health & Safety Code Ann. § 594.011. 2

Most significantly for purposes of the requested injunctive relief, the harm plaintiff

anticipates is not imminent because his son may not be transferred until the administrative

hearing and appeal process is final. Tex. Health & Safety Code Ann. §§ 594.014(b),

594.016(c). The administrative review hearing regarding the transfer of plaintiff’s son

was set for September 2, 2014, but it was continued at plaintiff’s request based on his

filing of the instant lawsuit. Pl.’s Am. Compl. at 2.

2 The proposed transfer is allowed if: 1) the client’s [existing] placement is no longer appropriate to his individualneeds; or 2) the client can be better treated and habilitated in another setting; and 3) placement in another setting thatcan better treat and habilitate the client has been secured. Tex. Health & Safety Code Ann. § 594.011.




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Ironically, plaintiff has prevented the very assessment he requests that this court

perform, i.e ., whether his son’s placement in BSSLC will serve his needs. Each client is

afforded the protection of state processes ( see e.g ., Tex. Health & Safety Code Ann. §§

594.011-.019) and this federal court lacks jurisdiction to interfere with these processes.

Therefore, Plaintiff fails to state a claim upon which relief may be granted and fails to

invoke the jurisdiction of this federal court.

C. Motivation for Closure

Finally, plaintiff states that a series of events involving, inter alia , the Texas Land

Commissioner and the Austin City Council, cast doubt on the state’s motive for closure of

the cottage in which his son has been housed. Response at 11-12. Defendants deny that

their motive is financial rather than treatment based.3 As explained in Defendants’

Motion to Dismiss, reduction of the client population at AuSSLC is necessary to address

staffing shortages that may impact the quality of care and jeopardize the state’s eligibility

for federal funding.

Regardless, however, the state’s motive is not a proper object of the court’s

consideration. Fed eral law does not protect a patient’s preference for treatment in a

particular institution. O’Bannon v. Town C t. Nursing Ctr. , 447 U.S. 773 (1980)

(decertified nursing home); Punikaia v. Clark , 720 F.2d 564 (9th Cir. 1983) (closure of

leprosarium); Bell v. Thornburgh , 420 A.2d 443 (Pa. 1980) (closure of state mental health

3 The February 2013 report by the General Land Office, referenced in the Response at 12, was simply a periodic review of the state’s real property required by statut e. Tex. Nat. Res. Code Ann. § 31.156.




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facility); Hoolick v. Retreat State Hosp ., 354 A.2d 609 (Pa. Commw. Ct. 1976) (same).

Therefore, plaintiff has failed to allege the violation of any constitutional right.

II.CONCLUSION AND PRAYER FOR RELIEF

Plaintiff has failed to allege the violation of any constitutional right, failed to state a

claim upon which relief may be granted and failed to invoke the limited jurisdiction of this

federal court. Accordingly, defendants Janek a nd Traylor pray that plaintiff’s claim be

dismissed pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6).

V.Respectfully submitted,

GREG ABBOTTAttorney General of Texas

DANIEL T. HODGESFirst Assistant Attorney General

DAVID C. MATTAXDeputy Attorney General for Defense Litigation

DAVID A. TALBOT, JR.Chief, Administrative Law Division




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/s/ Robin SandersROBIN SANDERSAssistant Attorney GeneralState Bar No. 09310900OFFICE OF THE TEXAS ATTORNEY GENERAL ADMINISTRATIVE LAW D IVISION P.O. Box 12548Austin, Texas 78711-2548Telephone: (512) 475-4005Facsimile: (512) [email protected]

ATTORNEYS FOR DEFENDANTS

CERTIFICATE OF SERVICE

I hereby certify that on the 5th day of November, 2014, I served the foregoingdocument upon plaintiff by United States mail:

Stephen Wallace875 Sandhills RoadRed Rock, Texas 78662Tel.: (512) 909-5998

/s/ Robin SandersROBIN SANDERS


mailto:[email protected]



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