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Date: 09-09-2022

Case Style:


Case Number: 121,447




On appeal from Sedgwick District Court

Plaintiff's Attorney:

Topeka, Kansas- Best Disability Lawyer Directory

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Defendant's Attorney: Arthur S. Chalmers, assistant attorney genera


Topeka, Kansas – Disability lawyer represented Appellant with seeking to relocate to a community based treatment center.

A case is moot when it is clearly and convincingly shown the actual controversy
has ended, the only judgment that could be entered would be ineffectual for any purpose,
and it would not impact any of the parties' rights.
In order to be entitled to an award of costs and fees under 42 U.S.C. § 1988(b)
(2018), a party must demonstrate they are the prevailing party.
A "prevailing party" is the party that has been awarded some relief by the court on
the merits of at least some of the claims. Generally, when a case is dismissed as moot
without a judgment by the court on the merits of any of the claims or a court-ordered
consent decree, there is no prevailing party entitled to an award of attorney fees even
though a party may have achieved the desired result of the litigation.
Review of the judgment of the Court of Appeals in 59 Kan. App. 2d 161, 480 P.3d 192 (2020).
Appeal from Sedgwick District Court; FAITH A.J. MAUGHAN, judge. Opinion filed August 12, 2022.
Appeal dismissed.
David P. Calvert, of David P. Calvert, P.A., of Wichita, and Stephen M. Kerwick, of Wichita,
argued the cause and were on the briefs for appellant.
Arthur S. Chalmers, assistant attorney general, argued the cause, and Derek Schmidt, attorney
general, was with him on the briefs for appellee.
PER CURIAM: The defendants sought to relocate Catherine Roll, an individual
with significant mental and physical disabilities, from the Parsons State Hospital and
Training Center (Hospital), where she has been a long-term resident, to a communitybased treatment center. Roll, through her guardians, resisted such a transfer and
contended that the Americans with Disabilities Act (ADA) and the Social Security Act
(SSA) prohibited the defendants from changing her placement without her approval. The
district court held that she did not have a statutory right to remain at the Hospital. The
Court of Appeals affirmed that order, and we granted review.
We dismiss the appeal as moot. But in order to explain this determination, we find
it necessary to recount the long and convoluted course the litigation in this case has taken.
Catherine Roll was born in 1955. She has had developmental delays since infancy
and developed schizophrenia as a teenager. She was in mainstream public schooling into
second grade, when she was transferred to parochial schooling specializing in children
with intellectual and developmental disabilities. She was eventually placed in the Larned
State Hospital for a short time and then, in 1970, transferred to Parsons State Hospital.
She has been on a long-term regimen of psychotropic medication to treat her
Roll had a generally successful experience at the Hospital, recently achieving 96
percent of her treatment objectives. She also appeared to be happy and comfortable at the
Hospital. She would go out into the community with escorts approximately eight times a
month, including trips to Walmart, manicures, and baseball games. Roll had some work
duties at the Hospital, including tasks such as folding and shredding papers and
delivering things to staff members. She received physical therapy for an ankle injury and
other conditions.
Roll's parents died in the late 1990s. Teresa Kerwick and Mary Ann Burns are
Roll's sisters, and they became her co-guardians in 2002.
In the spring of 2016, Hospital staff contacted Teresa and told her the Hospital had
to cut approximately 1.3 million dollars from its operating budget, and Roll was a good
candidate for transfer from the facility. On June 8, 2016, Teresa received a letter
informing her that she needed to find a community care institution or Roll would be
discharged to the guardians' homes. Believing that community-based residential centers
would provide less desirable services for Roll and that she benefited from the long-term
relationship she had with the Hospital staff and her familiarity with the campus, the
guardians ultimately rejected voluntary transfer to another facility.
On August 19, 2016, Kerwick and Burns filed a petition seeking injunctive relief
and an application for a temporary restraining order seeking to prevent the defendants
from discharging Roll to community services or the petitioners' homes. The original
petition included only a claim that the defendants' conduct violated the ADA with an
accompanying claim of a civil rights violation under 42 U.S.C. § 1983 (2018). On the
same day, the district court granted an ex-parte order temporarily restraining the
defendants from discharging Roll from Parsons State Hospital and Training Center. The
record does not reflect that the temporary restraining order was ever converted to a
separate preliminary injunction, but the order remained in effect while the case was
pending in district court.
The court granted a motion by the defendants for the appointment of a guardian ad
litem to represent Roll's interests. The guardian examined a multitude of documents,
including social worker assessments, psychological evaluations, and case notes, and
submitted a letter to the district court. The letter noted Roll's numerous special needs, the
manner in which the Hospital was meeting those needs, and the difficulty in finding an
adequate substitute for the care she was receiving. It recommended retaining Roll at the
Hospital. At the defendants' request, the guardian ad litem then carried out in-person
interviews with Roll, the Hospital staff, and representatives of community treatment
facilities, and issued a follow-up letter modifying his recommendation to include the
possibility of relocation to a community-based center and noting advantages to both the
Hospital and the community facilities.
Roll filed a motion for summary judgment. Following multiple responses and
replies, the district court denied the motion, determining that genuine issues of material
fact precluded summary judgment, and the case went to a bench trial.
Many of the witnesses were current or former Hospital staff who generally
testified that Roll was in active treatment, was highly successful in responding to her
treatment, did not exhibit aggressive or psychotic behavior, and was pleasant and
compliant. The staff members also testified that, in their opinion, Roll would do well in a
community-based program. The guardians testified about their personal experiences with
Roll and explained why they did not consider any of the community-based centers
suitable for placement.
After the trial, the district court granted the guardians permission to add a claim
under the SSA that the proposed transfer from the Hospital violated Roll's right to choose
which facility would provide her treatment. The parties submitted proposed findings of
fact and conclusions of law, as well as trial briefs on the ADA and SSA claims.
On May 23, 2019, the district court entered judgment in favor of the defendants
with a 69-page journal entry including extensive findings of fact and conclusions of law.
Based on the evidence presented at trial, the district court found that treatment available
at a community-based program was appropriate to meet Roll's needs and that the Hospital
provided a level of care and restrictions beyond what was medically necessary for Roll.
In rejecting the ADA and SSA claims, the district court explained:
"There is no discrimination in the agency action initiated by Parsons State
Hospital. Ms. Roll's treatment team has assessed her needs and abilities. A determination
has been made that Ms. Roll is capable of living independently in a community based
environment with the assistance of community service providers. This does not constitute
an act of discrimination entitling Plaintiffs to injunctive relief.
. . . .
" . . . Ms. Roll's Social Work Assessment Annual Reviews, Psychological Annual
Reviews, and Individual Program Plans from 2010 through 2017 supports good cause for
her discharge. This documentation collectively speaks to the very issue of the adaptive
living skills Ms. Roll has developed over time which make her appropriate for placement
in a less restrictive living environment. This documentation, in conjunction with
testimony offered by staff of Parsons State Hospital, provides evidence to the Court of
her desire to partake in community based activities, her ability to work and earn wages,
her ability to take care of her own hygiene needs, her ability to dress herself, her ability to
exercise choices about daily living, her ability to perform various tasks to include setting
a table, maintaining her bedroom, assisting with sweeping and mopping, doing art
projects, working on puzzles, shopping, going out to eat, attending church, partaking in
religious studies, reading her bible, reading magazines or the newspaper and
communicating her wants, needs and desires."
Roll took a timely appeal to the Kansas Court of Appeals, and the district court
granted Roll a stay of the effect of the judgment pending appellate resolution, effectively
keeping the temporary restraining order in place. The Court of Appeals affirmed in Roll
v. Howard, 59 Kan. App. 2d 161, 480 P.3d 192 (2020). The intermediate appellate court
summarized its ruling in the opinion's introduction:
"Catherine Roll is a patient at Parsons State Hospital, where she has lived and
been treated for an intellectual disability and schizophrenia for several decades. In 2016,
the Department for Aging and Disability Services, in conjunction with Parsons, indicated
an intent to transfer Roll to a more integrated community-based treatment program
(though the specific program where she would be transferred was not yet determined).
Roll's guardians sought a permanent injunction to prevent the transfer, alleging the
Americans with Disabilities Act (ADA) and the Social Security Act (SSA) prevented the
Department from transferring her without her consent.
"After a trial, the district court found that the Department had shown that the
treatment available at a community-based program was appropriate to meet Roll's needs.
The court also found that, because Parsons provided a level of care and restriction beyond
what was medically necessary, neither the ADA nor the SSA prevented the State from
transferring her to a different program. After carefully reviewing the record and the
parties' arguments, we find the district court's crucial finding—that Roll does not need to
be treated in a facility as restrictive as Parsons—is supported by the record. And we agree
that there is no right under the ADA and SSA for patients to remain at a more restrictive
facility if the level of care provided is medically unnecessary. Thus, we affirm the district
court's denial of the permanent injunction." 59 Kan. App. 2d at 163-64.
On March 25, 2021, this court granted Roll's petition for review. She filed a
supplemental brief on April 28, 2021, and this court heard oral argument on September
Then, about a week after oral argument, on September 24, the defendants filed a
Notice of Change of Circumstances and Motion for Dismissal in which they asserted that
Roll's physical and mental health had suffered a significant decline and the defendants no
longer considered community-based treatment an option. The notice stated, in part:
"8. However, Ms. Roll's medical and mental health conditions and her associated
treatment needs have changed. The PSH [Parsons State Hospital] professionals, familiar
with Ms. Roll's needs and capabilities, have now determined that community placement
is not appropriate. They believe that she should receive her care and treatment at PSH.
"9. In later January 2021, Ms. Roll was diagnosed with an intracranial
atherosclerosis, commonly referred to as hardening of the arteries in the brain. As late as
March 2021, PSH's professionals did not believe this condition required her continued
residence and treatment at PSH.
"10. Yet, the condition has worsened. Ms. Roll's behaviors, needs and abilities
are now such that Ms. Roll cannot be cared for and treated in community placement. She
needs the care and treatment provided by PSH.
"11. Ms. Roll's deteriorating condition is progressive and, at best, it will not
improve for community placement to ever be an appropriate option for her.
"12. Whether this Court were to reverse or affirm the decisions of the Court of
Appeals and trial court, the defendants will not transfer Ms. Roll to a community-based
treatment program or away from PSH."
In light of these alleged changed circumstances, the defendants moved to dismiss
the appeal as moot. They further asked the court to vacate both the district court and
Court of Appeals judgments.
On September 29, contending she had prevailed in the litigation, Roll filed a
motion for attorney fees totaling $143,290 and for costs totaling $8,345.80. The
defendants filed a response opposing the motion for monetary award, arguing that neither
party prevailed because the entire case had become moot. On October 20, Roll filed a
response to the motion to dismiss and a separate motion requesting an additional $17,640
in fees generated preparing the response. In the response, the guardians alleged that the
Hospital knew about Roll's deteriorating medical condition for many months. The
guardians asserted that on December 16, 2020, they received "the first of many emails"
from a social worker at the Hospital documenting the decline of Roll's condition. They
claimed the case was not moot and that exceptions to the mootness doctrine applied.
On December 3, this court ordered the parties to engage in mediation. The court
directed the parties to address issues including the extent and permanency of Roll's
changed circumstances, when the defendants knew or should have known about the
changes in her condition, and what effect those changes had on the parties' respective
positions in the appeal.
A mediation session took place on March 4, 2022 and lasted about 3 1/2 hours. On
April 4, the parties filed a joint statement informing the court they had reached no
settlement and were unable to agree on disputed facts.
In September 2021, before this court reached a decision on the merits, the
defendants informed this court they no longer were seeking to transfer Roll and they
intended to maintain her residence at the Hospital. Based on substantial changes in Roll's
medical condition after the district court's factual findings and legal conclusions, the
defendants voluntarily provided the plaintiff with the relief she has been seeking through
litigation for the past six years. This court can offer the plaintiff no further relief than
what she has already received.
A case is moot when a court determines that "'it is clearly and convincingly shown
the actual controversy has ended, the only judgment that could be entered would be
ineffectual for any purpose, and it would not impact any of the parties' rights.'" State v.
Roat, 311 Kan. 581, 584, 466 P.3d 439 (2020) (quoting State v. Montgomery, 295 Kan.
837, 840-41, 286 P.3d 866 [2012]).
Here, due to Roll's declining condition, the defendants no longer oppose Roll's
request to remain at the Hospital. The parties are therefore in agreement, and this court
can enter no ruling that would affect the contested issue. "When, by reason of changed
circumstances between commencement of an action and judgment on that action, a
judgment would be unavailing as to the issue presented, the case is moot. [Citation
omitted.]" Roat, 311 Kan. at 596.
Courts have a duty to decide actual controversies by judgments that can be given
an effect and not to give opinions on abstract propositions. Mere "rightness" does not
suffice to justify the continued exercise of authority over an appeal. Roat, 311 Kan. at
599. Were this court to rule either in favor of the defendants or in favor of Roll, the
judgment would have no effect on her long-term placement. The defendants have
represented in a written notice filed with this court that Roll's deteriorating condition is
progressive and "it will not improve for community placement to ever be an appropriate
option for her." (Emphasis added.) She will continue to reside at the Hospital either way
that this court might rule, which is precisely what she sought in her petition.
The entire premise of the district court's ruling was its factual findings that
treatment available at a community-based program was appropriate to meet Roll's needs
and that the Hospital provided a level of care and restrictions beyond what was medically
necessary for Roll. The facts and evidence that supported these findings has now
completely changed—in fact, the opposite is true. Although a factual dispute may exist
between the parties as to when Roll's medical condition began to decline, there appears to
be no dispute that her condition substantially worsened after the district court made its
factual findings and denied the plaintiff's request for an injunction. The injunctive relief
being sought by the plaintiff is no longer necessary or required, and we decline to review
the case simply to determine whether the lower courts, at their discretion, could have
awarded attorney fees to the plaintiff based on her statutory claims.
Roll urges application of an exception to the mootness doctrine that allows a court
to decide cases "capable of repetition, yet evading review." See, e.g., Roat, 311 Kan. at
590. We are not persuaded that the circumstances of this case and the issues it presents
are of such a nature that they are likely to be repeated in future litigation. Furthermore,
although review was ultimately precluded under the peculiar facts of this case, we
consider it likely that similar issues, should they arise, will be susceptible to appellate
review. After all, this case was reviewed by the Court of Appeals, and it was only Roll's
changed circumstances that led us to dismiss the appeal after we granted review.
We therefore apply Supreme Court Rule 8.03(j)(6) (2022 Kan. S. Ct. R. at 54) and
dismiss the appeal as moot. In dismissing the appeal at this stage, we take no position on
the correctness of the opinions of the courts below and we caution against relying on the
decision of the Court of Appeals for precedential value. See Rule 8.03(h) and (k)(2).
Roll has requested a substantial award of costs and attorney fees from this court
based on her statutory claims. See 42 U.S.C. § 12205 (2018); 42 U.S.C. § 1988(b) (2018)
(both statutes provide that the court, in its discretion, may allow the "prevailing party"
reasonable attorney fees and costs). Is Roll the prevailing party in this case?
The United States Supreme Court set out the general standard governing the
prevailing-party determination in Texas State Teachers Association v. Garland
Independent School District, 489 U.S. 782, 109 S. Ct. 1486, 103 L. Ed. 2d 866 (1989):
"The touchstone of the prevailing party inquiry must be the material alteration of the
legal relationship of the parties in a manner which Congress sought to promote in the fee
statute." 489 U.S. at 792-93. The Court explained that a material alteration in the parties'
legal relationship occurs when "the plaintiff has succeeded on 'any significant issue in
litigation which achieve[d] some of the benefit the parties sought in bringing suit.'" 489
U.S. at 791-92. This standard requires that "'a plaintiff receive at least some relief on the
merits of his claim before he can be said to prevail.'" 489 U.S. at 792 (quoting Hewitt v.
Helms, 482 U.S. 755, 760, 107 S. Ct. 2672, 96 L. Ed. 2d 654 [1987]).
In Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dept. of Health & Human
Res., 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001), the petitioners operated
assisted living residences that were ordered closed after the state fire marshal found the
residents were incapable of "self-preservation." The petitioners sued for a declaratory
judgment that the "self-preservation" requirement violated provisions of the Fair Housing
Amendments Act (FHAA) and of the ADA. After the state legislature acted to eliminate
this requirement and the case was dismissed as moot, the petitioners moved to recover
attorney fees as the prevailing party under the "catalyst theory," which posits that a
plaintiff is a prevailing party if it achieves the desired result because the lawsuit brought
about a voluntary change in the defendant's conduct. 532 U.S. at 601. The lower courts
ruled against the petitioners, and the United States Supreme Court affirmed. The opening
paragraph of the Court's opinion succinctly stated:
"Numerous federal statutes allow courts to award attorney's fees and costs to the
'prevailing party.' The question presented here is whether this term includes a party that
has failed to secure a judgment on the merits or a court-ordered consent decree, but has
nonetheless achieved the desired result because the lawsuit brought about a voluntary
change in the defendant's conduct. We hold that it does not." 532 U.S. at 600.
The United States Supreme Court rejected the "catalyst theory" that had been
recognized by some lower federal courts to determine the prevailing party and held the
fee provisions of the FHAA and of the ADA require a party to secure either a judgment
on the merits or a court-ordered consent decree to qualify as the prevailing party. 532
U.S. at 602-05. In so ruling, the Court reasoned that a "defendant's voluntary change in
conduct, although perhaps accomplishing what the plaintiff sought to achieve by the
lawsuit, lacks the necessary judicial imprimatur on the change." 532 U.S. at 605.
Federal courts do not follow the Supreme Court's holding in Buckhannon when it
is superseded by statute. See, e.g., Poulsen v. Department of Defense, 994 F.3d 1046 (9th
Cir. 2021) (finding that 2007 amendment defining "prevailing party" under Freedom of
Information Act abrogated the rule of Buckhannon in claims for attorney fees under
that Act). But otherwise, federal courts still follow the holding in Buckhannon in
rejecting claims for attorney fees in cases dismissed as moot. See, e.g., Suarez-Torres v.
Panaderia y Resposteria Espana, Inc., 988 F.3d 542 (1st Cir. 2021) (district court
properly denied plaintiffs attorney fees under ADA because defendant voluntarily agreed
to make substantial changes in response to plaintiffs' complaint, and plaintiffs failed to
demonstrate requisite judicial imprimatur on that outcome to make them prevailing
parties); Doe v. Dixon, 716 F.3d 1041 (8th Cir. 2013) (dismissal on mootness ground did
not result from plaintiffs prevailing on the merits of any of their claims, and plaintiffs
were not entitled to prevailing party status simply because a voluntary change in conduct
was recognized in the order of dismissal); Walker v. Calumet City, 565 F.3d 1031 (7th
Cir. 2009) (award of attorney fees to property owner under 42 U.S.C. § 1988[b] as
prevailing party in action against city was reversed because dismissal of case for
mootness did not impose judicial imprimatur that would permit awarding attorney fees
under Buckhannon). The statutes under which Roll seeks to recover attorney fees—42
U.S.C. § 12205 and 42 U.S.C. § 1988(b)—have not been amended to define "prevailing
party" since the Supreme Court decided Buckhannon.
A review of the procedural history of this case shows that Roll did not prevail at
any point in the litigation except for receiving an ex-parte temporary restraining order.
But she lost on the merits of her claims in the district court, and she lost in the Court of
Appeals. Although we cannot say she would have lost in our court, we also cannot say
she prevailed in our court. Her own changed circumstances, not a judicial determination,
resulted in her obtaining the relief she sought for six years. She did not obtain an
alteration of the legal relationship of the parties, and she did not succeed on any
significant issue in litigation which achieved some of the benefit she sought in bringing
the suit. She failed to secure a judgment on the merits or a court-ordered consent decree,
although she received the desired result of her litigation. Simply put, Roll was not
awarded any relief by any court on the factual and legal issues that were addressed by the
court. We therefore conclude Roll is not entitled to attorney fees in a case that we dismiss
as moot.
Appeal dismissed.
STANDRIDGE, J., not participating.
THOMAS E. MALONE, J., assigned.1
* * *
ROSEN, J., dissenting: I take issue with the majority opinion for what I consider
two fundamental errors of reasoning. I will explain first that the lower courts reached
incorrect decisions in denying Roll the relief she sought. I will next argue that, under the
curious circumstances of this case, the appeal is not moot and Roll was the prevailing
The Lower Court Decisions Were Fundamentally Flawed
In my view, both the district court and the Court of Appeals got their decisions
wrong. If they had ruled correctly, Roll would have prevailed before this appeal reached
1REPORTER'S NOTE: Judge Malone, of the Kansas Court of Appeals, was appointed
to hear case No. 121,447 vice Justice Standridge under the authority vested in the
Supreme Court by K.S.A. 2021 Supp. 20-3002(c).
us and we would not be concerned about whether mootness barred the request for
attorney fees. I contend the strong likelihood of success on their appeal should enter into
the calculus of whether Roll should be awarded fees and costs.
I initially note that I agree with the lower courts' analysis and conclusions
regarding the Americans with Disabilities Act. Roll argued that the Act protected her
from being forced to relocate to a community treatment setting, relying on statutory
language that, standing in isolation, supports her position: "Nothing in this chapter shall
be construed to require an individual with a disability to accept an accommodation, aid,
service, opportunity, or benefit which such individual chooses not to accept." 42 U.S.C.
§ 12201(d) (2018). The lower courts rejected her argument.
In a nutshell, nothing in that statute calls for placement in a more restrictive
environment simply because that is what the disabled person desires. A state may offer to
provide adequate services in a least-restrictive environment, and a disabled person may
reject those services. The state is then free of its responsibility to provide residential
services to that person. In other words, if a disabled person is living at home or in a
private care facility, a state may not require that person to relocate to either a state
hospital or a community-based residential program. But a state is not required to admit—
or continue to locate—the person at whichever particular program the person prefers. See
Chambers, Integration as Discrimination Against People with Disabilities? Olmstead's
Test Shouldn't Work Both Ways, 46 Cal. W. L. Rev. 177, 195-96 (2009); D.T. v.
Armstrong, No. 1:17-CV-00248-EJL, 2017 WL 2590137, at *8 (D. Idaho 2017)
(unpublished opinion); Sciarrillo ex rel. St. Amand v. Christie, CIV.A. No. 13-03478
SRC, 2013 WL 6586569 (D.N.J. 2013) (unpublished opinion); Richard S. v. Dept. of
Developmental Servs. of California, No. SA CV 97-219-GLT ANX, 2000 WL 35944246
(C.D. Cal. 2000) (unpublished opinion); Richard C. ex rel. Kathy B. v. Houstoun, 196
F.R.D. 288, 289 (W.D. Pa. 1999); Illinois League of Advocs. for Developmentally,
Disabled v. Quinn, No. 13 C 1300, 2013 WL 3168758, at *5 (N.D. Ill. 2013)
(unpublished opinion). In short, I do not think Roll would have or should have prevailed
on the ADA issue.
But I vigorously disagree with the courts below on two other critical points.
The first of these is the application of Medicaid statutes and regulations.
Medicaid is an optional, federal-state program through which the federal
government provides financial assistance to states for the medical care of individuals in
financial hardship. Wilder v. Va. Hosp. Association, 496 U.S. 498, 502, 110 S. Ct. 2510,
110 L. Ed. 2d 455 (1990). Once a state elects to participate in the program, it must
comply with all federal Medicaid laws and regulations. 496 U.S. at 502.
Under the Medicaid waiver program created by 42 U.S.C. § 1396n(c) (2000),
states may waive the requirement that persons with "mental retardation" or a related
disability live in an institution in order to receive certain Medicaid services. Doe v. Kidd,
501 F.3d 348, 351 (4th Cir. 2007). The program allows states to experiment with methods
of care, or to provide care on a targeted basis, without adhering to the strict mandates of
the Medicaid system. Bryson v. Shumway, 308 F.3d 79, 82 (1st Cir. 2002).
The "free choice" provision under the Medicaid Act waiver program, located at 42
U.S.C. § 1396n(c)(2)(B) and (C) (2018), requires states to provide assurances that they
will offer to qualified individuals an evaluation for the need for inpatient hospital
services, nursing facility services, or services in an intermediate care facility for the
"mentally retarded." Furthermore, individuals who are "likely to require the level of care
provided in a hospital, nursing facility, or intermediate care facility" must be "informed
of the feasible alternatives, if available under the waiver, at the choice of such
individuals, to the provision of inpatient hospital services, nursing facility services, or
services in an intermediate care facility for the mentally retarded." (Emphasis added.)
Moreover, 42 U.S.C. § 1396a(a)(23) (2018) expressly states that any
individual eligible for assistance may obtain that assistance from "any institution"
qualified to perform the required services and the individual's choice of who
provides that assistance shall not be restricted. The Medicaid Act thus clearly
states a free-choice intention.
The implementing regulation for the free-choice provision provides:
"(d) Alternatives—Assurance that when a beneficiary is determined to be likely to
require the level of care provided in a hospital, NF, or ICF/IID [nursing facility, or
intermediate care facility/individuals with intellectual disabilities], the beneficiary or his
or her legal representative will be—
(1) Informed of any feasible alternatives available under the waiver; and
(2) Given the choice of either institutional or home and community-based
services." (Emphasis added.) 42 C.F.R. § 441.302(d) (2021).
In short, the free choice provision "gives recipients the right to choose among a
range of qualified providers, without government interference." O'Bannon v. Town Court
Nursing Ctr., 447 U.S. 773, 785, 100 S. Ct. 2467, 65 L. Ed. 2d 506 (1980).
Roll argues that 42 C.F.R. § 441.302(d) gives her the right to choose where she
will reside, so long as her chosen facility provides the level of care that she is likely to
require. She contends that, because the Hospital has demonstrated the ability to provide
that level of care and because she has active treatment needs that the Hospital can satisfy,
the Medicaid provisions of the Social Security Act and the implementing regulation give
her the right to choose to remain at that facility. I agree. The record and the law, in my
view, unquestionably demonstrate she has that right.
Witnesses and the trial court devoted considerable time and attention to two
factors: (1) the reasons why the Hospital was seeking to move Roll into other care
facilities, and (2) the ability of those alternative facilities to provide Roll with the care she
requires. The general sense of that evidence and the related findings was that budgetary
constraints compelled the Hospital to reduce its patient load and export those patients
who are able to receive adequate care in other settings; the changing environment at the
Hospital increased safety concerns for all its patients; and there are many care facilities
around the state that, at least in theory, will provide Roll with good care.
To a large extent, this evidence and the trial court's related findings are a red
herring. The question under this issue is not whether the Hospital's proposed relocation of
Roll was reasonable, which it may have been. The question is whether Roll had a legally
protected right to remain in her current setting, where it is uncontroverted that she was
receiving excellent care and where she has felt comfortable and secure.
The Court of Appeals provided a perfunctory, two-paragraph analysis of the merits
of Roll's claim, in essence holding that, if it is decided that a disabled person is likely to
require only the level of care offered in a community-based service, then the statute does
not require a state to offer the choice between institutional or community-based services.
See Roll v. Howard, 59 Kan. App. 2d 161, 187, 480 P.3d 192 (2020). By this reasoning, a
state may elect to offer the lowest common denominator of adequate care. The Court of
Appeals cited to no authority for this limitation.
With this holding, the Court of Appeals implicitly added a proviso to the statutory
language: If an individual is determined to be likely to require the level of care provided
in an intermediate care facility (such as a community-based treatment center), then the
only feasible choice that a state must give is an intermediate care facility or opting out to
home care. The state is not required to offer the choice of a more intensive care facility.
But this is not what the statute or the regulation says. Repeating the statutory
language quoted above, a state must provide that "individuals who are determined to be
likely to require the level of care provided in a hospital, nursing facility, or intermediate
care facility for the mentally retarded are informed of the feasible alternatives, if
available under the waiver, at the choice of such individuals, to the provision of inpatient
hospital services, nursing facility services, or services in an intermediate care facility for
the mentally retarded[.]" (Emphasis added.) 42 U.S.C. § 1396n(2)(c).
The Court of Appeals interpretation would make more sense if the Medicaid Act
were an anti-discrimination statute, as the Americans with Disabilities Act is. Then it
would be reasonable to assume that the less discriminatory—or more integrated—option
would always be the statutorily preferred option. But the waiver is designed to give
disabled individuals the option of accepting some treatment program other than
institutionalization. See Doe, 501 F.3d at 359. It may be that most individuals would
choose in-home or community-based services when those are available, but the Medicaid
Act does not require that they choose those services.
The United States Supreme Court has explicitly held that the Medicaid Act
"gives recipients the right to choose among a range of qualified providers, without
government interference. By implication, it also confers an absolute right to be free from
government interference with the choice to remain in a home that continues to be
qualified. But it clearly does not confer a right on a recipient to enter an unqualified home
and demand a hearing to certify it, nor does it confer a right on a recipient to continue to
receive benefits for care in a home that has been decertified." (Emphasis added.)
O'Bannon, 447 U.S. at 785.
I cannot see how the courts in the present case can get around this unambiguous
language. The Hospital continues to be qualified. Roll has a right to choose among a
range of qualified providers without government interference. She enjoys an "absolute
right" to remain in a home that continues to be qualified. She had the right to remain at
the Hospital, even if she would not be admitted to the Hospital under today's admission
The right under the freedom of choice provision "is not so vague and amorphous
that it cannot be judicially enforced; the statute and its corresponding regulations clearly
illustrate that the freedom of choice provision establishes a two-fold right to both
information about feasible alternatives and a choice of such alternatives, if available."
Guggenberger v. Minnesota, 198 F. Supp. 3d 973, 1015 (D. Minn. 2016).
The statutory and regulatory language and the holdings of O'Bannon and lower
courts line up precisely with Roll's position. Plaintiffs have lost when they have sought to
force states to keep facilities open so that they may remain in those facilities or when they
have sought to force states to establish new facilities so that they may have a greater
range of choices. That is not the situation here. Roll wants to exercise her choice to stay
where she is, in a treatment facility that is open and that clearly suffices to meet her
Our Court of Appeals added a component to the Medicaid statute not contained in
the statutory language. The court held that the choice provision only arises "when a court
has determined someone is 'likely to require the level of care provided in' one of the
facilities listed in the statute." (Emphasis added.) Roll, 59 Kan. App. 2d at 187. The
statute makes no mention of courts stepping in to make the medical determination of
which level of care a patient requires. Taking the Court of Appeals language on its face,
every time a facility offers a patient a choice, it will have to obtain judicial approval of
the choices available.
But more to the point, the statute makes no mention of offering only the services
that meet a patient's minimum needs. Instead, the statute, as well as the Supreme Court in
O'Bannon, states that the choice in treatment level lies with the patient, so long as the
treatment option meets the patient's needs. The statute does not exclude options that
exceed the minimum care requirements. Otherwise, the freedom of choice provision
becomes basically meaningless: a patient will only have the "option" to "choose" the
kind of facility that provides the most basic services for the patient's needs.
So far, this analysis has not addressed a critical point that the defendants urged
was dispositive in their favor. They contended Roll was not entitled to apply the freedom
of choice provision to promote her cause because the statutory and regulatory language
applies the choice option only to individuals who are "likely to require the level of care
provided in a hospital, nursing facility, or intermediate care facility," and not to those
who will need less advanced care. 42 U.S.C. § 1396n(c)(2)(B) and (C). The Court of
Appeals apparently agreed, judicially adding a component not contained in the Medicaid
The defendants' argument and the Court of Appeals conclusion stand in sharp
contrast to the Supreme Court's ruling in O'Bannon: "[The Medicaid statutory scheme]
confers an absolute right to be free from government interference with the choice to
remain in a home that continues to be qualified." (Emphasis added.) 447 U.S. at 785. If
an individual has active treatment needs, such as Roll had and continues to have, then the
individual enjoys the right to remain in a facility that is qualified to provide for those
needs. The Hospital is such a facility.
To be sure, the district court held as a matter of law that Roll has no active
treatment needs, meaning, at the very least, she would not qualify for Medicaid services.
This ruling will be discussed in detail below, but I suggest that an elderly patient who
requires medication to control schizophrenic psychosis, who has an IQ of 51, who needs
prompting before she uses the bathroom and requires assistance cleaning up afterwards,
who has spinal deformities, who is barely able to speak in complete sentences, who
requires assistance in making dietary choices, and who has been the subject of detailed
annual active treatment plans for decades has active treatment needs. This is sufficiently
the case such that the staff of one community facility that the guardians visited, who was
familiar with Roll from the Hospital, informed the guardians that she probably required
more treatment than the facility would be able to provide. Put another way, she obviously
had active treatment needs because, if she did not have such needs, then it wouldn't have
mattered whether she was in a dedicated care facility, and she might not even have
qualified under Medicaid regulations for placement in a community-based residential
The Medicaid Act does not state, as the defendants claim, that individuals who are
determined to be likely to require the level of care provided only in a hospital must be
informed of feasible alternatives. Such a limitation is not in the statute; it has been added
by the defendants and the lower courts. That limitation eviscerates the free choice
language of the Medicaid Act and the regulations, which allow an individual to choose
among hospitals, intermediate care facilities, and home services, so long as any of those
options provide the individual with the care he or she needs. Assuming, based on the
uncontroverted evidence presented to the district court, that Roll had special needs, the
freedom-of-choice provision applied to her.
Neither the statute nor the regulation limits the choice provision to a situation in
which an individual requires the highest levels of care available. Instead, under the
Medicaid Act, its implementing regulations, and Supreme Court precedent, the treatment
facility, wherever the individual is choosing to remain, must be able to provide the level
of care that the beneficiary is likely to require. This assures that the beneficiary will
actually receive the needed care; it is not an escape valve for facilities to eject people
with disabilities.
The regulations speak of "any feasible alternatives," not just the alternatives that
are most convenient for hospitals seeking to download their less-intensive needs patients.
This would explain why qualifying beneficiaries must be "[g]iven the choice of either
institutional or home and community-based services." (Emphasis added.) 42 C.F.R.
§ 441.302(d)(2).
It should be remembered that the Hospital was not trying to relocate Roll because
it is an inappropriate setting for her in treatment terms; it was seeking to relocate her
because of budgetary and space concerns. If the court is to believe the defendants and
their witnesses, the Hospital has been very careful to comply with Medicaid
requirements, meaning that Roll has had active-treatment needs and the Hospital has been
meeting those needs for decades. But the defendants did a 180-degree turn when they
tried to compel her to leave the Hospital, maintaining that she was not likely to require
the kind of care the Hospital provided.
For all the apparent complexity this analysis entails, it boils down to a simple
conclusion: the Medicaid statute and regulations required that Roll have the choice to
remain at the Hospital, a legal reality that both the district court and the Court of Appeals
refused to acknowledge.
I now turn to the factual conclusions that the district court reached and that the
Court of Appeals affirmed. Rarely will this court dispute a district court's factual
findings, but, in this case, those findings were completely at odds with the uncontroverted
evidence before it.
The district court concluded Roll was not in "active treatment" at the Hospital. The
Court of Appeals determined that the district court conclusion was supported by
competent evidence and it would not reweigh the evidence on appeal. Roll, 59 Kan. App.
2d at 173-74.
The question of whether Roll was receiving active treatment has more profound
implications than either of the courts below gave it. If it is legally correct that Roll was
not in active treatment, then she had no protection under the Medicaid Act and she was
not entitled to exercise the choice provision discussed above. More importantly, however,
it is likely she was not entitled to placement in any Medicaid-supported care facility. If
she was not in active treatment, then the detailed treatment plans that were developed and
submitted for her over many years at the Hospital were basically nullities and nothing
more than a scheme to defraud the federal and state governments.
I take the position that both the trial court and the Court of Appeals erred in
determining that Roll was not in active treatment. The uncontroverted evidence before
the trial court was that she was in active treatment, both in a common-usage sense and in
a legal sense. "Active treatment" is a term of art under the Medicaid Act, and both courts
below failed to analyze the active treatment condition in the context of Medicaid
Because the term "active treatment" is a legal term of art, whether the factual
findings support the legal conclusion that Roll required such treatment is a mixed
question of fact and law. This court generally reviews the factual findings under the
substantial competent evidence standard but exercises unlimited review of the
conclusions of law based on those facts. See Gannon v. State, 305 Kan. 850, 881, 390
P.3d 461 (2017).
Federal regulations require that recipients of Medicaid benefits, such as Roll,
participate in an "active treatment program," and the regulations define active treatment:
"(1) Each client must receive a continuous active treatment program, which
includes aggressive, consistent implementation of a program of specialized and generic
training, treatment, health services and related services described in this subpart, that is
directed toward—
(i) The acquisition of the behaviors necessary for the client to function
with as much self determination and independence as possible; and
(ii) The prevention or deceleration of regression or loss of current
optimal functional status.
"(2) Active treatment does not include services to maintain generally independent
clients who are able to function with little supervision or in the absence of a continuous
active treatment program." 42 C.F.R. § 483.440(a) (2021).
Without mentioning that regulatory definition, the district court explicitly
found that Roll was not receiving active treatment, but the court's journal entry is
internally inconsistent. In one section, it states:
"31. [These] treatment professionals come from several disciplines, including
psychologists, social workers, medical doctors, nursing staff, direct support staff,
vocational client training supervisors and activity specialists. These treatment
professionals actively provided care and support to Ms. Roll throughout her stay at
Parsons State Hospital.
"32. The services offered by these professionals included psychological
services, medical services, teaching, facilitating and assisting in daily life skills, leisure
skills, vocational training skills and communication skills." (Emphases added.)
In another section, however—the section that is the subject of Roll's appeal—the
district court held:
"Ms. Roll does not display behavioral issues which would indicate she has active
treatment needs. Given that Ms. Roll has no active treatment needs, members of Ms.
Roll's treatment team at Parsons State Hospital have simply been providing supervision
to Ms. Roll, which can be accomplished in a community based setting.
"Examples of behaviors which would demonstrate active treatment needs
includes an inability to employ self-help skills, an inability to work, an inability to
communicate, an inability to control one's temper, an inability to respond to supervision,
problems with elopement and an inability to address safety, health or hygiene needs."
(Emphasis added.)
Then, later, the district court explained that certain community-based facilities will
be able "to meet her treatment needs." It is unclear why the district court thought that
Roll would be able to find placement that could comport with her treatment needs when it
also held that she had no treatment needs.
Administering medication, adjusting prescriptions, providing physical therapy,
teaching life skills, preventing or slowing regressive behavior and ideation—these are all
"treatments." For example, Eric Schoenecker, a psychologist and defense witness,
testified that psychotropic medication, such as the Loxitane that Roll was taking, can
have "a dramatic effect on the behavior aspects of an individual's daily living," and for
this reason it was important to monitor both medication and behavioral and nonmedicinal
therapies. He also testified that Roll has scoliosis and is developing cataracts. These are
examples of health and behavior issues requiring active treatment.
The online Merriam-Webster dictionary defines "treatment" as "the action or way
of treating a patient or a condition medically or surgically: management and care to
prevent, cure, ameliorate, or slow progression of a medical condition." The same
dictionary defines "active" as "characterized by action rather than by contemplation or
speculation . . . having practical operation or results." By these definitions, Roll was
receiving active treatment and had active treatment needs.
But, more importantly, a parade of defense witnesses testified that Roll was
receiving active treatment; she had active treatment needs; and, in response to those
needs, they developed active treatment plans that they provide to staff, guardians and
family members, and the government agencies that administer Medicaid programs.
Furthermore, their testimony was uncontroverted; it was, after all, the defendants'
position that they were in compliance with statutory and regulatory requirements, and it
was Roll's position that she required active treatment. Either the district court simply
ignored the explicit, emphatic testimony of those witnesses, or it deemed the defendants'
witnesses to be completely untrustworthy. If the court considered the defendants'
witnesses to be unreliable, it gave no explanation for such a conclusion. It even adopted
their other testimony wholesale into its factual findings. It was not the plaintiff who was
second-guessing the healthcare professionals; it was the district court.
The following witnesses testified that Roll was in active treatment:
Dr. Jerry Rea, formerly the Hospital director, testified that Roll met the federal
requirements for implementing an active treatment program and that she was in "active
treatment." Eric Schoenecker, a staff psychologist, testified that Roll was currently
"under active treatment" and she "meets the standards for being at Parsons." Robyn
Thomas, a clinical psychologist on the Hospital staff, testified that she worked with Roll
on achieving "active treatment training objectives." Karen VanLeeuwen, the director of
Hospital social services, testified that Roll was in active treatment at the time of the
hearing and the active treatment was in most of the areas available for treatment and in
"all the self-care areas." These were all witnesses called by the defendants. The transcript
contains no testimony or other evidence that Roll did not have active treatment needs or
was not receiving active treatment.
Without explanation, the district court limited its understanding of "active
treatment needs" to "behavioral issues." There is no statutory or common-usage basis for
such a limitation. Furthermore, the uncontroverted evidence established that, in the
absence of psychotropic medication and behavioral treatment, Roll's schizophrenia led to
paranoid, delusional, and violent behavior. When she was temporarily taken off a
psychotropic medication, her behavior became much more aggressive, including putting
her fist through a window and aggression toward other residents, and she began to
hallucinate. The fact that active treatment had that condition under control does not mean
that she had no behavioral issues and no active treatment needs.
Defense witness VanLeeuwen testified that Roll's active-treatment needs included
determining and teaching needed adaptive behaviors, improving independent leisure
skills, improving independent functioning skills, and improving personal safety skills.
These are not "behavioral issues" in the sense that Roll was exhibiting violent or
uncooperative behavior, but they were issues in improving, maintaining, or slowing the
regression of Roll's quality of life and ability to function among other human beings.
Even if one pretends that such services are not "active treatment," it is close to impossible
to understand how monitoring, adjusting, and administering medicine for the control of
schizophrenic illness does not fall within the purview of "active treatment." The district
court even listed medication stabilization as an "active treatment need."
The district court relied on the testimony of defense witnesses to conclude that
Roll was highly successful in meeting her "treatment objectives." Based on this success,
the court seems to have inferred that she was not in active treatment. Apparently, a
patient who is responding well to active treatment is not in need of active treatment and is
not currently in active treatment.
The Court of Appeals deferred to the district court's evaluation of the evidence,
holding there was simply a difference of opinion between Roll's guardians and the
Hospital's medical professionals. That court concluded the district court's findings were
supported by substantial competent evidence in the record. Roll, 59 Kan. App. 2d at 173-
There are at least two problems with this appellate analysis. Although both the
district court and the Court of Appeals treat this as a purely factual question, subject to a
court's common-sense understanding of what constitutes "active treatment," it is more in
the nature of a legal conclusion. As set out above, 42 C.F.R. § 483.440(a) defines "active
treatment" and makes it a requirement for receipt of general Medicaid assistance. The
regulation refers to "a program of specialized and generic training, treatment, health
services and related services." Neither the district court nor the Court of Appeals applied
the evidence before them to the regulatory definition.
The second problem with the Court of Appeals analysis is its determination that
the question was simply "a difference of opinion between what Roll's guardians believe
to be active treatment and the descriptions of the Parsons medical staff." 59 Kan. App. 2d
at 173-74. But the Parsons medical staff unanimously agreed with Roll's guardians that
Roll has active treatment needs and was receiving active treatment at the Hospital—there
was no difference of opinion about whether Roll is receiving active treatment. The
difference of opinion lay in whether Roll would continue to receive active treatment
meeting her particular requirements if she were transferred to a community-based
Why does this matter? Finding otherwise could potentially put Hospital staff at
risk for charges of Medicaid fraud for submitting plans for treatment needs when no such
needs existed. And further, Roll might lose her eligibility for future Medicaid benefits,
possibly even having to repay past benefits.
The matter is relevant for deciding whether Roll had a right to make a free choice
of providers of active treatment services under the Medicaid Act, as discussed above. If
she was not in active treatment and did not have active treatment needs, then neither the
Hospital nor intermediate care facilities would be providing services that she needed
because she did not actually need active treatment services. This would undermine her
argument that Medicaid law entitled her to a choice of whether to stay in her current
placement or transfer to some other facility.
This may have been the point of the district court's finding: if Roll was not
receiving active treatment, then she did not have a legal right to remain at the Hospital,
and the courts should not be involved in evaluating whether this or that community-based
center was able to meet her needs. The shortcut for getting the courts out of that decisionmaking process was to hold she had no active treatment needs. The defendants
considered the shortcut to their advantage because it lightened the burden on them to
transition Roll into some other facility, which could be any other facility at all if she had
no active treatment needs.
But this shortcut is at odds with the uncontroverted evidence in the record and the
requirements of the Medicaid program. The evidence was clear and overwhelming that
Roll was in active treatment and had active treatment needs that were being met at the
Hospital. She was therefore entitled to exercise her statutory choice and continue to
reside at the Hospital.
In summary, both the district court and the Court of Appeals made clearly
reversible errors in both their legal and factual conclusions.
The Appeal Is Not Moot and Roll Is Entitled to Attorney Fees and Costs
If Roll had been doing nothing through her appeal but prolonging litigation to
needlessly eke out a few more years of residence at the Hospital, I would be inclined to
join the majority and dismiss the appeal as moot. But, as I have argued above, her case
has been meritorious from the time it was before the district court. It is the defendants
who unnecessarily consumed the time of the appellate courts by failing to notify these
courts that Roll's conditions were changing dramatically and her needs were increasing,
even further undermining the district court's factual findings and forcing the defendants
to change their position with respect to her residency at the Hospital.
Taking their pleadings on their face—and the defendants have not challenged the
amount claimed—Roll has incurred attorney fees amounting to over $160,000 in
prosecuting this litigation. If she had not prosecuted this litigation, the defendants would
have transferred her, in violation of her rights under the Medicaid Act, back in 2016. The
majority opinion gives similarly situated plaintiffs a harsh choice: fight for their rights,
but, if the defendants jump out of the litigation at the last possible minute, they are left
hammered with the costs of litigation; or surrender their rights because they cannot afford
to risk a last-minute acquiescence by the defendants. I am firmly convinced this is not the
choice that Congress intended plaintiffs in civil-rights based actions to face when it
enacted 42 U.S.C. § 1988(b).
Fee shifting plays a significant role in civil rights litigation. It is intended to
encourage compliance with civil rights statutes. See, e.g., Hylton, Fee Shifting and
Incentives to Comply with the Law, 46 Vand. L. Rev. 1069, 1070 (1993). The decision of
the majority today has the opposite consequence: it discourages parties from successfully
litigating to protect their rights by incurring the costs of the litigation when they obtain
the sought after relief.
I conclude the mootness doctrine does not deprive Roll of an award of fees to
which she is statutorily entitled.
First, she stated a demand for attorney fees as a separate count in her original
petition. That demand constitutes a distinct, justiciable interest. A case is moot when "'the
only judgment that could be entered would be ineffectual for any purpose, and it would
not impact any of the parties' rights.'" (Emphases added.) State v. Roat, 311 Kan. 581,
584, 466 P.3d 439 (2020). Here, the award of attorney fees is a substantial right, and it is
a right to which Roll is entitled as the party who, as a consequence of this litigation,
obtained the relief she sought.
If an event occurs while a case is pending on appeal that makes it impossible for
the court to grant any effectual relief whatsoever to the prevailing party, the appeal must
be dismissed. But the possibility of the award of costs means an appeal is not moot in its
entirety. See, e.g., Landrith v. Hazlett, 170 Fed. Appx. 29, 31 (10th Cir. 2006)
(unpublished opinion) (citing Church of Scientology v. United States, 506 U.S. 9, 12-
13, 113 S. Ct. 447, 121 L. Ed. 2d 313 [1992]).
Second, Roll sought injunctive relief in the district court. Injunctive relief means
not only that a defendant is barred from taking some action today; injunctive relief is also
prospective in effect. In general, "an injunction is not an appropriate action to obtain
relief for past or completed acts but operates only in futuro to prevent later acts." Andeel
v. Woods, 174 Kan. 556, 557, 258 P.2d 285 (1953). In addition to a temporary restraining
order, Roll sought a permanent injunction. I do not see how a permanent injunction can
become moot simply because a defendant backs away from an intended course of action.
If I follow the majority's reasoning, whenever a plaintiff seeks injunctive relief,
defendants can moot the action and avoid paying attorney fees by declaring that they
have changed their minds. But prospective relief in a situation such as this does not
become moot simply because a party avers it has changed its mind. In United States v.
Washington, 596 U.S. ___, 142 S. Ct. 1976, ___L. Ed. 2d ___ (2022), after the Supreme
Court granted certiorari, the defendant averred that a putatively discriminatory statute had
been amended to remove the offending terms and that the amendment would be effective
retroactively. The Supreme Court declined to dismiss the case as moot, holding that
promises of retroactive effectiveness would not undo the legal merits of challenges to the
statute before it was amended. 142 S. Ct. at 1983.
In the present case, we have no factual findings and no court determinations that
Roll's condition has declined so as to create different active treatment needs. We also
have no binding agreement that the defendants will not once again reverse their course of
action. Apparently, the court majority deems it sufficient for a defendant to simply
declare there won't be any future harm in order to avoid a court order and the consequent
payment of fees. And it is also sufficient for a defendant to declare that it has decided to
give the plaintiff the relief she has fought for in order to avoid the plaintiff becoming the
prevailing party.
No fact-finding has taken place and no judicial determination has been made
confirming the allegations by the defendants that they were motivated by recent changes
to Roll's condition and that they will never again seek her transfer. We also have the
guardians' allegations, supported by documented communications between them and the
Hospital staff, showing that Roll's condition had deteriorated far below the level of care
possible in less-intensive care facilities long before review was even sought in this court.
The majority simply accepts the defendants' bald allegations regarding the circumstances
and consequences of the change.
This court has acknowledged an attorney fee claim can serve as the basis for
appellate review in cases where a party has both requested attorney fees and prospective
relief in the form of declaratory judgment or injunction. See, e.g., Baker v. Hayden, 313
Kan. 667, 675-76, 490 P.3d 1164 (2021); Willis v. Kansas Highway Patrol, 273 Kan.
123, 41 P.3d 824 (2002). This court may still review the lower court rulings and award
Roll a permanent injunction. This is more than a minimal or trivial interest; it is relief that
she requested and that extends to govern future action, not to redress some past harm. See
City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S. Ct. 1070, 71 L. Ed.
2d 152 (1982) (well settled that a defendant's voluntary cessation of a challenged practice
does not deprive a federal court of its power to determine legality of the practice;
prospective nature of injunctive relief empowers courts to prevent future abuse).
I further contend that Roll prevailed in this litigation. To be sure, the defendants
jumped ship before this court issued an opinion, but that does not change the reality that
Roll remained in the Hospital because she litigated this action. Remaining in the Hospital
was the essence of her action, and she succeeded in obtaining and preserving a restraining
order up through the time that the defendants backed away from their decision.
A "prevailing party" is the party that "has been awarded some relief by the court."
Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dept. of Health & Hum. Res., 532
U.S. 598, 603, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001). Obtaining preliminary relief
can suffice to award a party prevailing party status:
"A preliminary injunction is a form of court-ordered relief. Thus, '[a] preliminary
injunction issued by a judge carries all the "judicial imprimatur" necessary to satisfy
Buckhannon.' Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002); see
also People Against Police Violence v. City of Pittsburgh, 520 F.3d 226, 233 n. 5 (3d Cir.
2008) ('We need not determine in this case the outer limits of the requisite "judicial
imprimatur." Whatever those may be, preliminary injunctions are certainly within them.'
(citation omitted))." Kansas Jud. Watch v. Stout, 653 F.3d 1230, 1237 (10th Cir. 2011).
As the Tenth Circuit has held: "[I]f a preliminary injunction satisfies the relief-onthe-merits requirement, the plaintiff qualifies as a 'prevailing party' even if events outside
the control of the plaintiff moot the case." Kansas Jud. Watch, 653 F.3d at 1238. A
defendant's acquiescence in the relief sought by a plaintiff does not necessarily protect
the defendant from paying fees. "[A] party may be considered to have prevailed even
when the legal action stops short of final appellate, or even initial, judgment due to a
settlement or intervening mootness." Grano v. Barry, 783 F.2d 1104, 1108 (D.C. Cir.
Roll preserved the status quo, which had the effect of staving off action by the
defendants until they decided they no longer deemed Roll's transfer medically or legally
defensible. This demonstrates there was a change in the legal relationship of the parties
that endured until the defendants requested dismissal.
The United States Supreme Court has recognized that "voluntary cessation of
allegedly illegal conduct does not deprive the tribunal of power to hear and determine the
case, i.e., does not make the case moot. . . . The courts have rightly refused to grant
defendants such a powerful weapon against public law enforcement." United States v. W.
T. Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, 97 L. Ed. 1303 (1953). In an earlier
decision, the Court stated: "Voluntary discontinuance of an alleged illegal activity does
not operate to remove a case from the ambit of judicial power." Walling v. Helmerich &
Payne, 323 U.S. 37, 43, 65 S. Ct. 11, 89 L. Ed. 29 (1944); see also United States v.
Trans-Missouri Freight Association, 166 U.S. 290, 309, 17 S. Ct. 540, 41 L. Ed. 1007
(1897) (dissolution of illegally constituted assembly after judgment is entered does not
deprive court of appellate jurisdiction).
Again, the court majority disagrees with our Supreme Court and holds today that
ongoing unlawful conduct may be condoned if the wrongdoer bails out of the litigation
right before final judgment is handed down. But this is a wrong way of looking at
prevailing-party status.
In ordinary litigation, we don't concern ourselves with who is technically the
"prevailing party." It's enough to observe that plaintiffs have achieved what they set out
to achieve, whether by court order or by agreement of the defendants. But this case
challenges us to determine who prevailed, and, in my view, Roll definitely prevailed.
When the defendants announced they were giving her the relief she sought after years of
litigation, she prevailed. Simply tossing in one's cards and walking away from the table
doesn't mean that no one won; the party that stayed the course and ultimately received
what it set out to get is the party that won.
The defendants and the court majority want this determination to focus on Roll's
changed condition. Her changed condition may be what prompted the defendants to
change their direction (albeit long after her condition changed), or the threat of paying
attorney fees may be what prompted their change of direction, but it really doesn't matter.
Roll won. She is getting what she fought for, and the defendants cannot avoid her
winning by announcing they're not playing the game anymore.
The majority correctly notes that the United States Supreme Court rejected
the so-called "catalyst theory" for determining whether a party has prevailed. See
Buckhannon, 532 U.S. at 610. The present case, however, does not present a
catalyst situation, and, given the procedural history of this case, the majority's
discussion is not relevant to the attorney fees analysis.
In order to constitute a "catalyst," a threat of suit or initiation of a legal
action is the motivating force that leads a defendant to voluntarily grant the relief
that a plaintiff seeks. The granted relief is a voluntary action by the defendant, not
the result of a changed legal relationship between the parties. See Buckhannon,
532 U.S. at 603-04.
In the present case, the defendants would have discharged Roll into some
form of local care in 2016 if the courts had not stayed the change of her treatment
facility. If we are to take the defendants' motion for dismissal at face value, as the
majority does, the defendants would have continued their fight to discharge her
until this court rendered a decision. While it is true that the restraining order and
subsequent stays merely preserved the status quo, the defendants elected to request
dismissal before this court had the opportunity to weigh in on the merits. The
defendants did not "voluntarily" abandon this case; they were no longer able to
carry out the discharge because it became impossible to place Roll somewhere
else. The plaintiff's lawsuit was not the catalyst for the defendants to abandon their
plan to transfer Roll. The restraining order and Roll's eventual decline prevented
the defendants from taking the action they sought to carry out for some six years.
See, e.g., Select Milk Producers, Inc. v. Veneman, 304 F. Supp. 2d 45, 52 (D.D.C.
2004) (plaintiffs were prevailing parties for two reasons despite only obtaining a
preliminary injunction before litigation became moot: first, injunction created
material alteration in parties' legal relationship; and second, change in relationship
resulting from injunction was the exact relief plaintiffs sought), aff'd in relevant
part sub nom. Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 942 (D.C.
Cir. 2005); Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002)
(preliminary injunction carried judicial imprimatur necessary to satisfy
Buckhannon where plaintiff obtained injunction preventing county from using
report at his termination hearing; when case subsequently became moot, attorney
fees were appropriate although claim for permanent injunctive relief was not
decided on the merits, it was important to decision that "preliminary injunction
was not dissolved for lack of entitlement" but rather "was rendered moot" after the
employment termination hearing was over, "after the preliminary injunction had
done its job"); Young v. City of Chicago, 202 F.3d 1000, 1000-01 (7th Cir. 2000)
(upholding award of attorney fees to plaintiff who obtained preliminary injunction
against city's establishment of security perimeter excluding protesters from areas
around site of 1996 Democratic National Convention, but whose claims became
moot after convention ended and no final judgment on the merits was ever
Perhaps one might be more sympathetic to the defendants if they had filed their
notice of changed circumstances before the Court of Appeals entered its judgment. The
record shows the Hospital was aware of Roll's cognitive decline and significant
behavioral problems for several months before the Court of Appeals' ruling, and Roll's
CT scan and further indicators of behavioral and mental decline were well known to the
staff before this court granted Roll's petition for review. Even after her condition declined
dramatically, the defendants sought a district court order to terminate the stay and allow
them to place her in a community-based facility.
In other words, the "changed circumstances" changed well before Roll's guardians
incurred the expense and stress of arguing this case before this court. But instead of
conceding that Roll would receive her requested relief, the defendants put both Roll's
guardians and this court through a time-consuming and costly appellate review. If this
case were truly moot, as the defendants and the majority contend, then it was the
defendants who elected to beat a moot horse for at least another eight months.
I would hold that the case is not moot and would decide it on its merits. Even if
the defendants promise they will not seek future removal of Roll from the Hospital, I
would deem Roll the prevailing party for having protected and preserved her residency at
the Hospital during the entire time the defendants sought to remove her.
The district court ignored the uncontroverted evidence—which the defendants'
own witnesses provided—that she had active treatment needs and was receiving active
treatment for those needs at the Hospital. It relied on unsupported and counterfactual
conclusions that it drew from that evidence to reach an incorrect legal conclusion about
Roll's rights under the Medicaid Act. The Court of Appeals engaged in an erroneous
review of those factual determinations and the legal conclusion, inviting reversal by this
Roll was able to obtain a judicial stay on her transfer, a stay that remained in effect
until the defendants proclaimed they no longer intended to transfer her. It was only
shortly after oral argument before this court that the defendants, perhaps feeling the heat
of a looming large attorney-fee award, announced they would no longer seek to remove
Roll from the Hospital. Through her persistent litigation, Roll finally prevailed in this
case, entitling her to attorney fees. This appeal was not moot, which this court
demonstrated by continuing to exercise jurisdiction until now.
I would retain jurisdiction and correct the wrong lower-court results which now
flap loosely in the caselaw breeze, and I would award fees and costs to Roll as the
prevailing party.
BILES, J., joins the foregoing dissenting opinion.

Outcome: The district court ignored the uncontroverted evidence—which the defendants'
own witnesses provided—that she had active treatment needs and was receiving active
treatment for those needs at the Hospital. It relied on unsupported and counterfactual
conclusions that it drew from that evidence to reach an incorrect legal conclusion about
Roll's rights under the Medicaid Act. The Court of Appeals engaged in an erroneous
review of those factual determinations and the legal conclusion, inviting reversal by this
Roll was able to obtain a judicial stay on her transfer, a stay that remained in effect
until the defendants proclaimed they no longer intended to transfer her. It was only
shortly after oral argument before this court that the defendants, perhaps feeling the heat
of a looming large attorney-fee award, announced they would no longer seek to remove
Roll from the Hospital. Through her persistent litigation, Roll finally prevailed in this
case, entitling her to attorney fees. This appeal was not moot, which this court
demonstrated by continuing to exercise jurisdiction until now.

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