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Belton v. State

United States District Court, N.D. Georgia, Atlanta Division

October 3, 2014

RENITA BELTON and MATTHEW ERICKSON, individually and as Class Representatives, Plaintiffs,
v.
STATE OF GEORGIA, et al., Defendants.

DAVID F. WALBERT, A. LEE PARKS, PARKS, CHESIN & WALBERT, P.C., Atlanta, GA, Counsel for Plaintiffs.

JENNIFER DALTON, Senior Assistant Attorney General, Department of Law, State of Georgia, Atlanta, Georgia, Counsel for Defendants.

CONSENT ORDER

RICHARD W. STORY, District Judge.

I. Introduction

Plaintiffs Renita Belton and Matthew Erickson, on behalf of themselves and all those similarly situated, brought this action pursuant to Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act ("Section 504"), 29 U.S.C. § 701 et seq. (Compl., Dkt. [1].) The Court certified the case as a class action. (Order, Dkt. [82] at 1.) Plaintiffs filed a Motion for Summary Judgment seeking injunctive relief for themselves and the class on the issue of Defendants' liability under Title II of the ADA and Section 504 (Dkt. [88]), which summary judgment motion was granted in part. (Dkt. [115]). The Court appointed Roger Williams to assist the Court and the parties in the development of a remedial order and monitor implementation of that order. (Order, Dkt. [166].) The Court then entered a remedial Order. (Dkt. [172]). Defendants filed a Notice of Appeal of the order granting class certification, the order granting partial summary judgment and the remedial order. (Dkt. [185].) Defendants' appeal was argued before the United States District Court for the Eleventh Circuit. The Eleventh Circuit subsequently entered an order referring the appeal to mediation. (Case No. 13-13316, Order of April 11, 2014.)

The parties engaged in lengthy negotiations, discussions, and several mediation sessions. Monitor Williams participated in those mediation sessions and other related discussions. While Defendants deny liability, the present consent order is a result of that mediation process and resolves Plaintiffs' claims for injunctive relief, individually and on behalf of the class, against Commissioner Frank Berry, in his official capacity as Commissioner of the Georgia Department of Behavioral Health and Developmental Disabilities. The consent order does not resolve or address any claims for damages.

II. Definitions

As used in this Order, the following definitions apply to the terms below, without regard to case, gender, tense, or number:

A. Deaf Class Members - Deaf individuals (1) eligible for or receiving state-funded services for mental illness, including in state hospitals; or (2) Deaf individuals awarded Comprehensive Supports Waiver Program ("COMP") funding.

B. D/MI Class Members - Deaf individuals eligible for or receiving state funded services for mental illness, including in state hospitals, who need non-crisis related therapy or counseling services provided by ASL fluent therapists or counselors or through the use of interpreters.

C. D/DD Class Members - Deaf individuals awarded COMP funding.

D. American Sign Language fluent (" ASL-fluent ") - The ability to achieve a score of "Advanced" or higher on the Sign Language Proficiency Interview ("SCPI") or its predecessor, the Signed Communication Proficiency Interview ("SCPI").

E. Deaf individual - Any individual whose hearing is totally impaired or whose hearing is so seriously impaired as to prohibit the individual from understanding oral communications spoken in a normal conversational tone. This can be a self-identified classification regardless of the severity of the hearing loss or mode of manual communication preferred.

F. The State - The State of Georgia.

G. The Department or DBHDD - The Georgia Department of Behavioral Health and Developmental Disabilities, or successor department or agency of the State of Georgia.

H. Developmentally Disabled - An individual with an intellectual disability and/or a related condition as those terms are used in 42 C.F.R. § 435.1010.

I. Provider - An organization approved by DBHDD to serve individuals with mental illness and/or developmental disabilities and which has a contract or letter of agreement or other legal funding arrangement with DBHDD.

J. Designated Providers ("DP") - Designated community service boards ("CSB") with which DBHDD contracts to provide state funded services for mental illness specifically targeted to D/MI class members. Each county in the State will have at least one (1) DP designated to provide services for D/MI class members residing in that county. A minimum of six (6) DPs will be designated state-wide to provide services for Deaf D/MI class members.

K. Qualified Interpreter - An interpreter who has:

1. A current national certification as a sign language interpreter as awarded or honored by the Registry of Interpreters for the Deaf, Inc.;
2. Attended at least forty (40) hours of mental health interpreter training administered by a state-operated agency or a nationally recognized mental health interpreter training program; and
3. Verification of participating in at least forty (40) hours of a practicum as approved by DBHDD's Deaf Services office.

L. Communication Accessible Host Home - A host home as defined in O.C.G.A. § 37-1-20(18), occupied by one or two D/DD Class Member(s) and staffed according to the needs identified in the D/DD Class Member's communication assessment that is incorporated into the Individual Service Plan ("ISP").

M. Communication Accessible Group Home - A waiver funded group home occupied by one to four D/DD Class Members that is staffed according to the needs identified in the D/DD Class Members' communication assessments that are incorporated into the ISPs.

III. Substantive Provisions

A. Deaf Services ...


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