PHILADELPHIA – A 16-year-old dependent minor alleges that several Montgomery County youth residential facilities have refused to admit him solely on the basis of his Type I diabetes diagnosis, which an accompanying lawsuit argues is disability discrimination and a violation of federal law.
N.B. (by and through his next friend, Maura McInerney) of Montgomery County filed suit in the U.S. District Court for the Eastern District of Pennsylvania on April 9 versus Montgomery County, Valerie Arkoosh (in her official capacity as Secretary of the Pennsylvania Department of Human Services) of Harrisburg and Phoenix House, LLC, of Warminster.
“After an altercation with his father in October 2023, Plaintiff was placed in the Montgomery County Youth Center and the Montgomery County Office of Children and Youth was granted temporary physical custody of him. Plaintiff was thereafter adjudicated dependent and OCY was granted both legal and physical custody of plaintiff. Once it was awarded legal and physical custody of plaintiff, OCY began searching for an appropriate residential placement for plaintiff. On Dec. 1, 2023, OCY placed plaintiff at defendant Phoenix House’s group home in Warminster. Prior to his placement at Phoenix House, plaintiff was treated for Type II diabetes,” the suit says.
“While plaintiff lived at Phoenix House, he regularly tested his blood glucose levels and took Metformin to treat his diabetes. Upon information and belief, there were no reported issues with his diabetes care. On Dec. 7, 2023, plaintiff was seen by an endocrinologist who determined he did not have Type II diabetes but rather, had Type I diabetes, which required that plaintiff begin taking insulin. Plaintiff’s doctor admitted plaintiff to Children’s Hospital of Philadelphia to stabilize him and determine an appropriate dose of insulin. He remained at CHOP for two days. While at CHOP, plaintiff received treatment and additional training in diabetes management and was started on injectable insulin, which he continues to take daily.”
The suit adds CHOP educated the plaintiff in how to calculate insulin doses, draw them up and self-administer injections, which he has now been able to do independently from adults – but that when CHOP offered to instruct Phoenix House staff on these procedures, that facility refused the training.
“Defendant Montgomery County also offered to provide training resources to Defendant Phoenix House, but Phoenix House turned down the offer of assistance. Upon plaintiff’s release from CHOP on Dec. 9, 2023, Phoenix House discharged plaintiff based entirely and explicitly on his need to take insulin to treat his Type I diabetes. Defendant Phoenix House expressed concerns that plaintiff had a ‘very new…and very serious diagnosis that can be deadly if not monitored properly.’ Because defendant ‘Phoenix [House] is a new program that does not have the staff to do so,’ it denied plaintiff participation in its residential program because of his diabetes. Diabetes was not a ‘new’ diagnosis for plaintiff; he had already been undergoing treatment for Type II diabetes and was familiar with how to treat and monitor the condition, including by testing his blood glucose levels. The only thing that was ‘new’ to plaintiff was taking injectable insulin, but he quickly learned how to do this while hospitalized at CHOP,” the suit states.
“After defendant Phoenix House discharged plaintiff from its program, Montgomery County OCY then placed plaintiff back in the MCYC, where he remains. Phoenix House was considerably less restrictive of a placement than is the MCYC. While at Phoenix House, plaintiff was able to go outside unsupervised, unlike in the MCYC, where he is required to always be accompanied by staff and can only go out during designated ‘yard time.’ While at Phoenix House, plaintiff was allowed to have a cell phone, which is very important to a 16-year-old and their sense of community; without access to a cell phone at the MCYC, plaintiff cannot stay connected with his friends. He can only use the phone at limited, designated times and only if he is ‘on level,’ meaning he is conforming to the MCYC’s behavioral expectations. When allowed to use the phone, plaintiff can only call select people who are on his call list. While at Phoenix House, plaintiff had access to activities and opportunities to socialize with other teens, something he struggles to do in the MCYC, which primarily serves as Montgomery County’s youth detention center.”
The suit continues that the plaintiff has lived at the MCYC since October, with the exception of his one week at Phoenix House and his two-day hospitalization at CHOP – but that MCYC staff generally do not participate in his diabetes treatment.
“Medical staff at MCYC do not administer plaintiff’s insulin injections, nor do they test his blood glucose levels; they provide limited supervision of his diabetes management. Plaintiff takes one injection of Lantus insulin before bedtime, and he takes injections of Novolog insulin as needed, depending on how his blood glucose levels are running and what food he is eating. Plaintiff tests his blood glucose approximately three times per day. Plaintiff wears a Dexcom continuous glucose monitor on his upper arm, which constantly monitors his blood glucose levels. Plaintiff can check his blood glucose levels by looking at the screen on his Dexcom receiver, which is a palm sized device that provides continuous updates and alerts plaintiff if his blood glucose is either running too high or too low,” the suit states.
“The Dexcom system enables plaintiff to identify problematic blood glucose levels before they occur, and he can therefore respond proactively, greatly decreasing the chances of him experiencing either hyper or hypoglycemia. Plaintiff understands the importance of safely disposing of the lancets and syringes he uses to test his blood glucose levels and administer insulin, respectively, and while at MCYC, he has always placed his sharps in a designated sharps container immediately after using them. Plaintiff would do the same if living in a group home, such as defendant Phoenix House’s facility. Montgomery County OCY and defendant Montgomery County’s assistant solicitor reached out to defendant Phoenix House in the aftermath of plaintiff’s wrongful discharge to see if Phoenix House might be willing to readmit him.”
Following the plaintiff’s discharge from Phoenix House, Montgomery County OCY attempted to place him at eight other facilities, but five of them allegedly rejected admitting him solely on the basis of his diabetes diagnosis.
As a result, the plaintiff has not been offered a foster care placement by Montgomery County OCY and remains in the MCYC. Recently, the plaintiff has been sleeping at his parent’s home up to three nights per week – but the suit notes that arrangement is conditional upon the plaintiff’s behavior at the MCYC.
The suit states that “as the regulatory entity tasked with overseeing Pennsylvania’s child welfare system, DHS has taken a ‘hands-off’ approach to monitoring the providers it licenses to ensure that they comply with state and federal anti-discrimination laws.”
“Upon information and belief, DHS does not advise providers who lack adequately trained staff to administer injectable medications to dependent youth with diabetes that they can seek a waiver of 55 Pa Code Sections 3800.187-89. Upon information and belief, DHS also fails to give providers any guidance about where they might seek appropriate training for their staff. This in turn means that the Commonwealth’s child welfare system can offer only restrictive placements, such as the MCYC, to Type I diabetics like plaintiff who cannot be otherwise placed in a foster home or kinship care,” the suit says.
“Defendant Secretary Arkoosh could order DHS staff to advise providers to seek a waiver when a county OCY wants to place a dependent Type I diabetic in their facility, thereby opening up many residential placement options to these youth. Defendant Secretary Arkoosh could also ensure that, as a prerequisite to obtaining a license to operate a residential facility in Pennsylvania, providers demonstrate that they understand their obligations under the ADA. Under state law, the counties operate local children and youth services agencies, which have the power and duty to provide child welfare services. Pursuant to state law, defendant Montgomery County is responsible for contracting with private residential facilities, such as Phoenix House, to serve the County’s dependent children.”
According to the suit, “defendant Montgomery County, through its ongoing contracts with defendant Phoenix House, as well as the eight other residential providers who denied plaintiff admission because he is diabetic, is both aiding and perpetuating discrimination against plaintiff by providing these residential providers with financial assistance and ongoing support.”
For counts of violating Titles II and III of the Americans with Disabilities Act, the plaintiff is seeking the Court to exercise jurisdiction over this action, issue appropriate declaratory and injunctive relief, award reasonable attorneys’ fees, litigation expenses and costs, and grant such other relief as may be appropriate.
The plaintiff is represented by Alexandra Hermann and Rhonda Brownstein of Disability Rights Pennsylvania, in Philadelphia.
Defendant Montgomery County is represented by Brian O. Phillips and Philip W. Newcomer of the Montgomery County Solicitor’s Office, in Norristown.
U.S. District Court for the Eastern District of Pennsylvania case 2:24-cv-01474
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com