           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                      2     Tenn. Protection & Advocacy                  No. 02-6221
        ELECTRONIC CITATION: 2004 FED App. 0172P (6th Cir.)                   v. Wells, Esquire, et al.
                    File Name: 04a0172p.06
                                                                                            _________________
UNITED STATES COURT OF APPEALS                                                                   COUNSEL
                  FOR THE SIXTH CIRCUIT                                 ARGUED: Gary Housepian, TENNESSEE PROTECTION
                    _________________                                   & ADVOCACY, INC., Nashville, Tennessee, for Appellant.
                                                                        Tyree B. Harris IV, WILLIS & KNIGHT, Nashville,
 TENNESSEE PROTECTION &           X                                     Tennessee, Brigid M. Carpenter, BAKER, DONELSON,
 ADVOCACY , INC.,                  -                                    BEARMAN, CALDWELL & BERKOWITZ, Nashville,
          Plaintiff-Appellant,     -                                    Tennessee, for Appellees. ON BRIEF: Gary Housepian,
                                   -   No. 02-6221                      TENNESSEE PROTECTION & ADVOCACY, INC.,
                                   -                                    Nashville, Tennessee, for Appellant. Tyree B. Harris IV,
            v.                      >                                   WILLIS & KNIGHT, Nashville, Tennessee, Brigid M.
                                   ,
                                   -                                    Carpenter, BAKER, DONELS ON, BEARMAN,
 JON A. WELLS, ESQUIRE;            -                                    CALDWELL & BERKOWITZ, Nashville, Tennessee,
 RONALD BRUCE ARRISON;             -                                    Ronald L. Smith, Michael Kirkman, OHIO LEGAL RIGHTS
                                   -                                    SERVICE, Columbus, Ohio, for Appellees.
 and KING’S DAUGH TERS &
 SONS NURSING HOME, INC.,          -                                      BOGGS, C. J., delivered the opinion of the court, in which
         Defendants-Appellees. -                                        ALDRICH, D. J., joined. DAUGHTREY, J. (pp. 18-20),
                                   -                                    delivered a separate dissenting opinion.
                                  N
       Appeal from the United States District Court                                         _________________
    for the Middle District of Tennessee at Cookeville.
  No. 01-00078—William J. Haynes, Jr., District Judge.                                          OPINION
                                                                                            _________________
                     Argued: March 9, 2004
                                                                           BOGGS, Chief Judge. Tennessee Protection & Advocacy,
               Decided and Filed: June 9, 2004                          Inc. (TP&A) is a federally-mandated independent non-profit
                                                                        agency that investigates allegations of abuse against the
  Before: BOGGS, Chief Judge; DAUGHTREY, Circuit                        disabled. It appeals the district court’s holding that one of its
          Judge; and ALDRICH, District Judge.*                          clients, Martin Earle Bentley, is not covered under the
                                                                        Developmental Disabilities Assistance and Bill of Rights Act
                                                                        (DD Act), and that therefore TP&A has no statutory authority
                                                                        to obtain Bentley’s records without the permission of his
                                                                        court-appointed conservator. We hold that the plain meaning
    *
                                                                        of the statutory definition of developmental disability covers
     The Honorab le Ann Aldrich, United States District Judge for the
Northern District of Ohio, sitting by designation.

                                 1
No. 02-6221              Tenn. Protection & Advocacy         3    4    Tenn. Protection & Advocacy                 No. 02-6221
                               v. Wells, Esquire, et al.               v. Wells, Esquire, et al.

individuals with Bentley’s kind of traumatic brain injury, and    with developmental disabilities.” 42 U.S.C. § 15043(a)(F)-
we reverse the decision of the district court.                    (G). In general, the P&A System serves individuals with a
                                                                  range of developmental disabilities by, among other things,
                              I                                   investigating allegations of abuse; the agency is authorized to
                                                                  take legal action on behalf of its clients if claims cannot
   Martin Earle Bentley, a long-haul truck driver, suffered a     otherwise be resolved. See 42 U.S.C. § 15043(a) (giving full
traumatic brain injury from an on-the-job crash in 1976, when     recitation of the agency’s powers).
he was 20 years old. As a result, he was permanently
disabled and must live in a nursing home because he is unable       Following normal procedures, a case advocate with TP&A
to care for himself. In light of Bentley’s condition after the    faxed a letter to Wells on December 8, 2000 asking to see
accident, the Probate Court of Macon County, Tennessee            Bentley’s records and offering to help resolve any dispute
appointed attorney Jon Wells to be the conservator of             between the two. She then called Wells on December 11,
Bentley’s person and estate in 1980.                              when he informed her that he would only release Bentley’s
                                                                  records in response to a court order. TP&A also tried to
   In 2001, Bentley contacted TP&A because he had concerns        secure the records through the King’s Daughters and Sons
about both the handling of his financial affairs and restraints   Nursing Home, where Bentley is a resident, but met with the
on his personal autonomy. In a conference call with TP&A          same response. The Nursing Home administrator also
representatives, including a TP&A staff attorney, Bentley         forbade his staff to discuss the litigation with Bentley.
explained his grievances. In the staff attorney’s opinion,
Bentley demonstrated “adequate cognitive ability” to speak          Unable to obtain the necessary information to investigate
for himself, and expressed his wishes in an “unequivocal          Bentley’s allegations, TP&A filed suit in district court in
consistent manner.” Bentley summed up his situation as            September 2001 against Wells, the Nursing Home, and its
follows: “A man of my age and ability should not be locked        administrator, Ronald Arrison. TP&A moved for summary
up in a nursing home.” Bentley authorized TP&A to examine         judgment and a preliminary injunction; Wells cross-claimed
all the necessary records to advocate on his behalf.              for summary judgment. The Nursing Home did not respond
                                                                  to TP&A’s motion for summary judgment.
  TP&A is the Tennessee chapter of a network of
independent agencies, known as the Protection & Advocacy            In September 2002, the district court granted Wells
System, that Congress funded in the DD Act as part of the         summary judgment on the grounds that the DD Act did not
Protection and Advocacy for Persons with Developmental            cover traumatic brain injury, Bentley’s type of disability, and
Disabilities (PADD) Program. In order to receive funding          therefore TP&A had no right to review Bentley’s records.
under the Act, each state must “have in effect a system to        This appeal then followed.
protect and advocate the rights of individuals with
developmental disabilities.” 42 U.S.C. § 15043(a)(1). For                                       II
the state to qualify for funding, the agency must “not be
administered by the State Council on Developmental                  This court reviews a grant of summary judgment de novo.
Disabilities [and must] be independent of any agency that         Copeland v. Machulis, 57 F.3d 476, 478 (6th Cir. 1995) (per
provides treatment, services, or habilitation to individuals      curiam). Summary judgment is appropriate when the
No. 02-6221                     Tenn. Protection & Advocacy                 5    6      Tenn. Protection & Advocacy                 No. 02-6221
                                      v. Wells, Esquire, et al.                         v. Wells, Esquire, et al.

evidence submitted shows “that there is no genuine issue as                      and therefore Bentley was not qualified for protection under
to any material fact and the moving party is entitled to                         the Act. Id. at 5.
judgment as a matter of law.” Fed. R. Civ. P. 56(c). The
facts in this case are not disputed, and therefore one of the                       However, the statute in Holmquist did not define the term
parties is entitled to summary judgment as a matter of law.                      in dispute. Instead, the court had to solve an “interpretive
Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904,                        riddle” presented by a customs statute. Holmquist, 36 F.3d at
909 (6th Cir. 1999).                                                             158. In contrast, the DD Act contains an explicit and multi-
                                                                                 faceted definition of the term “developmental disability,” and
   To demonstrate that it has legal authority to gain access to                  that definition must govern the resolution of this case; we are
Bentley’s records, TP&A must show that he is covered by the                      not at liberty to put our gloss on the definition that Congress
DD Act. 42 U.S.C. § 15001 et seq.1 This case turns on                            provided by looking to the generally accepted meaning of the
whether the term “developmental disability,” as used in the                      defined term.        Babbitt v. Sweet Home Chapter of
Act, can apply to those who suffer from traumatic brain                          Communities for a Great Oregon, 515 U.S. 687, 698 n.10
injury, rather than being limited to those afflicted by some                     (1995) (pointing out that “Congress explicitly defined the
type of congenital or disease-related defect. The district court                 operative term ‘take’ in the [Endangered Species Act] . . .
concluded that the “clear language of the statute reflects that                  thereby obviating the need for us to probe its meaning”);
it is intended to cover individuals who have some physical or                    United States v. Smith, 155 F.3d 1051, 1057 (9th Cir. 1998)
mental disability or condition as a result of natural causes.”                   (observing that when “the meaning of a word is clearly
Tenn. Protection & Advocacy v. Wells, No. 2:01-0078, at 4                        explained in a statute, courts are not at liberty to look beyond
(M.D. Tenn. Sept. 30, 2002) (Mem. Op.) (emphasis added).                         the statutory definition”). Therefore, although it may not be
The court invoked the rule of statutory construction that all                    intuitive to think of a brain injury that results from a vehicle
words of the statute are intended to have meaning and no                         accident when the victim is 20 years old as a “developmental
interpretation should be adopted that “would render statutory                    disability,” we must do so because Bentley’s condition fits the
phrases meaningless, redundant, or superfluous.” Ibid. (citing                   definition that is provided in the statute.
United States v. Holmquist, 36 F.3d 154, 160 (1st Cir. 1994)).
To expand the definition further to include disabilities                            TP&A is not reading the term “developmental” out of the
resulting from injury, would, according to the district court’s                  statute, but is asking us to follow the definition that Congress
opinion, ignore the meaning of the word “developmental,”                         crafted. According to the statute:
                                                                                     The term “developmental disability” means a severe,
                                                                                     chronic disability of an individual that--
    1
      There appea rs to be no dispute that if Bentley is covered, then
TP&A has authority to access his records under the DD Act. 42 U.S.C.
                                                                                     (i) is attributable to a mental or physical impairment or
§ 15043 (a)(2)(I)(iii) (stating that the P& A system shall have a ccess to all       combination of mental and physical impairments;
records of any individual with a develop mental disab ility in a situation in
which 1) the individual has a legal conservator; 2) a complaint has been             (ii) is manifested before the individual attains age 22;
received; 3) there is probable cause to believe the person has been subject
to abuse or neglect; and 4) the representative has been contacted and                (iii) is likely to continue indefinitely;
offered assistance but has failed to act on behalf of the ind ividual).
No. 02-6221                    Tenn. Protection & Advocacy               7    8       Tenn. Protection & Advocacy                       No. 02-6221
                                     v. Wells, Esquire, et al.                        v. Wells, Esquire, et al.

  (iv) results in substantial functional limitations in 3 or                  Congress consistently expanded the definition to include
  more of the following areas of major life activity:                         more diagnoses; in 1978, it amended the statute again,
         (I) Self-care.                                                       “deleting all references to specific handicapping conditions
         (II) Receptive and expressive language.                              and establishing a definition based on functional limitations.”
         (III) Learning.                                                      Rehabilitation, Comprehensive Services, and Developmental
         (IV) Mobility.                                                       Disabilities Amendments of 1978, Pub. L. No. 95-602, Sec.
         (V) Self-direction.                                                  503, 42 U.S.C. § 6001, 92 Stat. 2955 (1978); S. Rep. No. 103-
         (VI) Capacity for independent living.                                120, at 5 (1994), reprinted in 1994 U.S.C.C.A.N. 164, 168.
         (VII) Economic self-sufficiency; and                                 Functional limitations, i.e., the result of the condition, govern
                                                                              the determination of whether a person falls under the Act’s
  (v) reflects the individual's need for a combination and                    protection, not medical history, i.e., the cause. No one doubts
  sequence of special, interdisciplinary, or generic services,                that Bentley meets the functional limitation requirements of
  individualized supports, or other forms of assistance that                  the DD Act.3 The statute treats the words “functional” and
  are of lifelong or extended duration and are individually                   “developmental” as essentially synonymous and we conclude
  planned and coordinated.                                                    that his disability meets the statutory definition.
42 U.S.C. § 15002 (8)(A).                                                     Chronic Condition
   For the reasons below, we reject Wells’s2 arguments that                      Bentley’s brain injury resulted in a severe, “chronic”
Bentley does not have a developmental disability because                      disability that is a result of physical impairment (subsection
1) he did not gradually acquire it; 2) his condition does not                 i). Chronic means “persisting over a long period of time.”
satisfy the medical definition of chronic; and 3) it did not                  Dorland’s Illustrated Medical Dictionary 363 (30th ed.
manifest, or reveal, itself over a period of time. Under a                    2003). The DD Act does not define the term, but the Family
straightforward reading of the statute, Bentley is covered.                   Leave and Medical Act defines a “chronic serious health
                                                                              condition” as one which “[c]ontinues over an extended period
Nature of the Disability                                                      of time (including recurring episodes of a single underlying
                                                                              condition); and [is characterized by a] . . . period of incapacity
   The definition of developmental disability in the DD Act is                which is permanent or long-term due to a condition for which
framed in terms of a person’s functional limitations and does                 treatment may not be effective. . . . Examples include
not refer to any specific diseases or causes. Earlier versions                Alzheimer's, a severe stroke, or the terminal stages of a
of the DD Act defined the term by a list of specific                          disease.” Perry v. Jaguar of Troy, 353 F.3d 510, 515 (6th
conditions, such as mental retardation or cerebral palsy.                     Cir. 2003) (quoting 29 C.F.R. § 825.114(a)(2)). A “severe


    2                                                                             3
      This opinion refers to the appellees collective ly as “Wells.” Bruce         Bentley’s brain injury is perm anent (42 U .S.C. § 150 02(8)(A )(iii)
Arrison, the nursing home administrator, indicated that he was following      and has resulted in more than three “substantial functional limitations”
W ells’s instructions and does not obje ct per se to releasing B entley’s     (subsection iv). Finally, B entley requ ires “lifelong” specialized and
information. T herefore, W ells is de facto the sole appellee in this case.   general care (subse ction v).
No. 02-6221                    Tenn. Protection & Advocacy                9    10    Tenn. Protection & Advocacy                  No. 02-6221
                                     v. Wells, Esquire, et al.                       v. Wells, Esquire, et al.

stroke” is also a condition that comes on suddenly, with                       various legal contexts, consistently with the meaning of
devastating consequences, meaning that a chronic condition                     obvious: e.g., “manifest injustice,” defined as “[a]n error in
is not limited to those characterized by a slow and steady                     the trial court that is direct, obvious, and observable,” Black’s
deterioration. The focus is on the prognosis for recovery, not                 Law Dictionary 974 (7th ed. 1999); “manifest necessity” is
on the cause or onset of the medical disorder.4                                defined as a “sudden and overwhelming emergency” that
                                                                               precludes completion of a trial. Id. at 975.
   Furthermore, a chronic condition can result from an outside
agent: the Black Lung Benefits Act defines                                        Wells argues that “manifest” means “revealed” and
“pneumoconiosis,” the condition needed for an award of                         therefore refers exclusively to the exposure of something that
benefits, as “a chronic dust disease of the lung and its                       already existed but was hidden. Bentley’s brain injury was
sequelae, including respiratory and pulmonary impairments,                     not a condition that lay dormant, but rather was the instant
arising out of coal mine employment.” 30 U.S.C. § 902(b)                       result of his collision in the truck, leading Wells to conclude
(emphasis added). On one occasion, this circuit even                           that Bentley’s injury did not “manifest” itself, as the statute
described a series of suicide attempts as a “chronic” health                   requires. Although “reveal” is one plausible meaning, it is
problem. Williams v. Mehra, 135 F.3d 1105, 1109 (6th Cir.                      not the only one. This circuit has consistently used the term
1998) rev’d en banc, 186 F.3d 685 (6th Cir. 1999).                             “manifest” to mean “be apparent:” Am. Ship Bldg. Co. v. Dir.,
Therefore, neither Congress nor this circuit has limited its                   Office of Workers' Compensation Programs, United States
understanding of a chronic medical problem to a long-term                      Dep’t of Labor, 865 F.2d 727, 732 (6th Cir. 1989) (stating a
condition resulting from natural causes. It is undisputed that                 preexisting condition must have manifested itself either to the
Bentley’s brain injury has resulted in permanent incapacity,                   employer through observation or to a doctor from a medical
which would qualify it under the general understanding of the                  examination for the company to qualify for special fund
term “chronic,” as used in § 15002(8)(A).                                      disability payments due to subsequent injury); Abbott v.
                                                                               Sullivan, 905 F.2d 918, 926 (6th Cir. 1990) (stating that an
Manifestation of the Disability                                                impairment must be taken into consideration under the
                                                                               Medical-Vocational guidelines for determining disability,
  Bentley’s disability “manifested” itself, that is became                     even if it does not manifest itself as a limitation on strength)
obvious, before age 22 (subsection ii). The dictionary defines                 (emphases added). Therefore, nothing in either the dictionary
“manifest” as “[c]learly apparent to the sight or                              definition of “manifest,” the legal usage of the term, or the
understanding; obvious” and “manifested” as “[t]o show or                      way that this circuit has used the word, suggests that it must
demonstrate plainly.” American Heritage Dictionary 1064                        refer to a condition that always existed and became obvious.
(4th ed. 2000). Black’s Law Dictionary uses the term in                        We see no reason why “manifest” cannot just as easily be
                                                                               used to describe something newly created that is now visible.
                                                                               It simply is another way of saying that a condition is readily
    4
     W e construe the term “chronic” in the D D A ct in pari materia with      observable.
the FMLA, as both acts seek to protect those who have pressing medical
needs and their families. Cf. Sho tz v. City o f Plan tation, Fla., 344 F.3d
1161, 1168 (11 th Cir. 2003) (drawing upon T itle VII, the Americans with
Disabilities Act, and the Fair Labor Standards Act to construe the term
“person” in the FM LA in confo rmity with o ther civil rights statutes).
No. 02-6221                    Tenn. Protection & Advocacy               11     12    Tenn. Protection & Advocacy                  No. 02-6221
                                     v. Wells, Esquire, et al.                        v. Wells, Esquire, et al.

End point of the Developmental Period                                           expected to last for a continuous period of not less than
                                                                                twelve months.” 42 U.S.C. § 1382(c)(3)(A). However, to
   Nor is age 22 a random cut-off point; it is an eligibility                   receive SSI disability payments for mental retardation
requirement that resulted from policy, rather than medical,5                    evidenced simply by a low IQ score, a claimant must
judgments. In 1978, Congress revised the DD Act and raised                      demonstrate “a significantly subaverage general intellectual
the eligibility age for assistance from 18 to 22 years. H.R.                    functioning with deficits in adaptive functioning initially
Rep. No. 95-1188, at 8 (1978), reprinted in 1978                                manifested during the developmental period; i.e., the evidence
U.S.C.C.A.N. 7355, 7362. The initial objective was to                           demonstrates or supports onset of the impairment before age
include everyone with a severe disability within the purview                    22.” 20 CFR Pt. 404, Subpt. P, App. 1 § 12.05 (emphasis
of the statute. Advocates for disabled children objected,                       added). This circuit has denied benefits to claimants who
however, fearing that universal coverage would spread the                       could not demonstrate mental deficiency before age 22.
available resources too thinly. Rehabilitation Amendments of                    Foster v. Halter, 279 F.3d 348, 354-55 (6th Cir. 2001)
1978: Hearings Before the Subcomm. on Human Resources                           (denying claim because Foster’s first IQ test was done when
of the United States Senate, 95th Cong. 83, 113 (1978)                          she was 42 years old and therefore she could not demonstrate
(testimony advocating that the Senate adopt the definition of                   that her subaverage intellectual functioning manifested itself
development disability drafted by a task force that                             before age 22); Brown v. Sec’y of Health and Human Servs.,
recommended an eligibility cut off at age 22). Therefore, the                   948 F.2d 268, 271 (6th Cir. 1991) (remanding to determine if
eligibility age of 22 represents the limitation that Congress                   the claimant's mental impairment was “‘manifested during
determined would provide the optimal balance between a                          [claimant's] developmental period’ or rather [was] a partial
general commitment to helping the disabled and funding                          consequence of claimant's history of heavy alcohol use after
realities. Restricting eligibility further through the cramped                  the age of twenty-two”). We accept the eligibility provision
reading of the statute that Wells proposes would ignore both                    in the DD Act at face value in order to be consistent with our
the plain meaning of the legislation and its intent.                            interpretation of the same age requirement in the context of
                                                                                other public welfare legislation.
   In adjudicating disability claims, we must respect the
eligibility requirements established by Congress. For                              Congress has determined that it is appropriate to consider
instance, the Supplemental Security Income (SSI) program                        a person’s “developmental period” to extend to age 22 to
considers someone disabled “if he is unable to engage in any                    assess eligibility for government assistance. However natural
substantial gainful activity by reason of any medically                         it would be to consider a 20-year old truck driver as a fully
determinable physical or mental impairment which can be                         grown adult, it is well-settled law that when a statutory
expected to result in death or which has lasted or can be                       definition contradicts the everyday meaning of a word, the
                                                                                statutory language generally controls:             judges should
                                                                                “construe legislation as it is written, not as it might be read by
    5
                                                                                a layman.” Meese v. Keene, 481 U.S. 465, 485 (1987). Only
      See, e.g., American A cademy o f Child a nd A dolescent P sychiatry,      when following the literal language of the statute would lead
Practice Parameters for the Assessment and Treatment of Children,               to “an interpretation which is inconsistent with the legislative
Ado lescents, and Adults with Mental R etard ation and Como rbid Mental
Disord ers, 1999 (explaining that “deve lopm ental disability is actually not   intent or to an absurd result” can a court modify the meaning
a medical term but a ‘legislative/legal co ncep t’”).                           of the statutory language. Appleton v. First Nat’l Bank of
No. 02-6221               Tenn. Protection & Advocacy        13    14    Tenn. Protection & Advocacy                  No. 02-6221
                                v. Wells, Esquire, et al.                v. Wells, Esquire, et al.

Ohio, 62 F.3d 791, 801 (6th Cir. 1995). Congress may not             participate in and contribute to their communities
have had truck drivers with brain injuries in mind when it           through full integration . . .; [but that] (5) individuals
drafted the legislation, but Bentley easily falls into the           with developmental disabilities are at greater risk than
category of people whom Congress intended to protect.                the general population of abuse, neglect, financial and
Cleland v. Bronson Health Care Group, 917 F.2d 266, 270              sexual exploitation, and the violation of their legal and
(6th Cir. 1990) (clarifying that if the plain language of a          human rights.
statute leads to a broader result than Congress might have
anticipated, it is still not automatically tantamount to an        42 U.S.C. § 15001(a)(1), (5). The statute contrasts the
absurd result). We have no basis on which to second guess          disabled with the general population, but does not distinguish
the language that Congress used because applying the statute       among the different categories of disability, because its
to Bentley neither contradicts the legislative intent nor          purpose is to erase all distinctions made because of handicap.
produces an absurd result.                                         Narrowing the definition of “developmental disability” to
                                                                   prevent TP&A from assisting Bentley in achieving greater
   The district court erred in inferring a requirement that the    personal autonomy contravenes the basic intent of the statute.
disability result from natural causes because reference to         The declaration that it is a “goal of the nation” that people
injury is lacking in the statute. It is axiomatic that the         with disabilities “live free of abuse, neglect, financial and
statutory definition of the term excludes unstated meanings of     sexual exploitation, and violations of their legal and human
that term. Colautti v. Franklin, 439 U.S. 379, 392 n.10            rights,”    42 U.S.C. § 15001(a)(16)(F), confirms the
(1979). The Supreme Court reiterated this rule last term,          conclusion that the cause of the disability is immaterial for the
rejecting the plaintiff’s attempt to read a requirement for        purposes of determining eligibility under the DD Act.
heightened burden of proof for a “mixed motive” jury
instruction into the 1991 Civil Rights Act. Desert Palace,                                       III
Inc. v. Costa, 539 U.S. 90 (2003). In a unanimous opinion,
the Court dismissed the plaintiff’s interpretation because           The district court bolstered its reading of the statute to
“[o]n its face, the statute does not mention, much less require,   exclude Bentley from its protection by pointing to the
that a plaintiff make a heightened showing through direct          enactment in 2000 of the “State Grants for Protection and
evidence.” Id. at 99.                                              Advocacy Services,” which authorizes the Secretary of Health
                                                                   and Human Services to make grants to agencies such as
   In this case, the statute does not distinguish between          TP&A to provide services to individuals with traumatic brain
disabilities caused by injury and those that result from organic   injuries. 42 U.S.C. § 300d-53. The statute’s general
defects, but emphasizes improving the condition of all             provision states:
citizens with disabilities by delivering various kinds of
assistance:                                                          The Secretary, acting through the Administrator of the
                                                                     Health Resources and Services Administration (referred
  (1) disability is a natural part of human experience that          to in this section as the “Administrator”), shall make
  does not diminish the right of individuals with                    grants to protection and advocacy systems for the
  developmental disabilities to live independently, to exert         purpose of enabling such systems to provide services to
  control and choice over their own lives, and to fully              individuals with traumatic brain injury.
No. 02-6221                    Tenn. Protection & Advocacy              15     16   Tenn. Protection & Advocacy                  No. 02-6221
                                     v. Wells, Esquire, et al.                      v. Wells, Esquire, et al.

42 U.S.C. § 300d-53. The rest of the section describes                         guidelines, all of which lack the force of law, do not warrant
funding mechanisms. Therefore, the statute is most easily                      Chevron-style deference”). Furthermore, we are forbidden to
read as a funding earmark to support those with traumatic                      defer to agency guidelines that contradict the plain meaning
brain injury. Its language does not shed any light on whether                  of the statute. Sutton v. United Air Lines, 527 U.S. 471, 482
TP&A should have access to Bentley’s records under the                         (1999) (holding that the EEOC guidelines reflected an
current statutory regime because it does not address authority                 impermissible interpretation of the Americans with
to serve those with brain injuries under the DD Act. The                       Disabilities Act and therefore did not warrant judicial
language is too sketchy to support the district court’s                        deference).
conclusion that it is “highly probative of Congress’ intention
as [to] the scope of Section 15002(8) [the statutory definition                  The statement in the annual report may reflect the reality
of developmental disability].” Mem. Op. at 4.                                  that agencies such as TP&A have generally not, as a matter of
                                                                               fact, included people with traumatic brain injuries in their
  The Protection and Advocacy System is the network of                         programs. It cannot, however, provide a basis to preclude
congressionally mandated advocacy agencies, of which                           such individuals from receiving services under the DD Act
TP&A is a member. The 2001 annual report described the                         because, on its face, the statute’s definition of “development
§ 300d-53 legislation as a program “for [a] new population in                  disability” encompasses individuals, such as Bentley, who
special need of our services — persons with traumatic brain                    have suffered traumatic brain injury.
injury.”6 Mem. Op. at 5. A court should consider any agency
publication because it reflects expertise in the subject matter.                  The case law is not helpful in resolving this question of
United States v. Mead Corp., 533 U.S. 218, 234-35 (2001).                      statutory construction. TP&A is correct that federal courts
Nevertheless, this court is not bound by the annual report’s                   have generally interpreted 42 U.S.C. § 15043 to allow the
assertion that those with traumatic brain injuries constitute a                P&A system access to client records. Wisconsin Coalition for
“new population” of clients. Christensen v. Harris County,                     Advocacy v. Czaplewski, 131 F. Supp. 2d 1039 (E.D. Wis.
529 U.S. 576, 587 (2000) (holding that interpretations “in                     2001) (holding right of access to patient records under the DD
policy statements, agency manuals, and enforcement                             Act preempts more restrictive state regulations); Iowa
                                                                               Protection & Advocacy Services v. Rasmussen, 206 F.R.D.
                                                                               630 (S.D. Iowa 2001) (same). Wells has not provided any
                                                                               case law that prevents us from following the general trend of
    6
      The parties dispute the lega l significance, if any, of this document:   allowing organizations in the P&A system liberal access to
TP&A argues that it is the wo rk of a private organization that has the        patient records.
same weight as “commentary by a co lumnist in a trade journal.”
Appellant Br. at 34. W ells argues in his brief that it is a “federally-         Wells properly challenges the cases that TP&A cites in its
mandated” report and therefore authoritative. Appellee Br. at 8. The
report itself was prepared by the Advocacy Training and Technical              brief for the proposition that traumatic brain injury is covered
Assistance Center, which receives funding from three government                under the DD Act because the cited precedent addresses the
agencies. Because the governm ent paid for the publication, and it does        legal rights of those with traumatic brain injuries under
not bear a disclaimer divorcing the sponsoring agencies from the opinions      different statutes, e.g., the Federal Tort Claims Act. See
expressed in the report, we consider the extent to which we should be          Colleen v. United States, 843 F.2d 329 (9th Cir. 1987).
guided by the report’s characterization of those with traum atic bra in
injuries as a “new” populatio n under the D D A ct.
                                                                               Furthermore, the court in each cited case assumed that the
No. 02-6221               Tenn. Protection & Advocacy        17    18    Tenn. Protection & Advocacy                   No. 02-6221
                                v. Wells, Esquire, et al.                v. Wells, Esquire, et al.

disability is covered under the relevant statute. See, e.g.,                               _____________
Blackmon ex rel. Blackmon v. Springfield R-XII School
District, 198 F.3d 648 (8th Cir. 1999) (noting without                                       DISSENT
elaboration that student with a bilateral brain injury was                                 _____________
covered under the Individuals with Disabilities Education
Act). However, Wells did not cite any case in which a court           MARTHA CRAIG DAUGHTREY, Circuit Judge,
held that traumatic brain injury is not covered under the DD       dissenting. In construing statutes, we are frequently
Act. Since Bentley can fulfill the five requirements in the        admonished to avoid interpretations that will produce absurd
statute and construing the statute to include his kind of injury   results. In stretching the meaning, intuitive or as statutorily
furthers the legislative intent of the Act, the district court     defined, of the term “developmental disability” to cover the
erred in finding that it did not apply to him.                     effect of a traumatic brain injury suffered spontaneously by a
                                                                   fully-functioning 20-year-old, however, the majority in this
                              IV                                   case has failed to heed the admonition. To demonstrate the
                                                                   absurdity of this interpretation of the statute at issue here, one
  We therefore REVERSE the district court’s grant of               need only ask: Why would Congress provide protection under
summary judgment and REMAND so that the district court             the Developmental Disabilities Assistance and Bill of Rights
may consider the release of Mr. Bentley’s records to TP&A          Act, 42 U.S.C. § 15043, to an adult who suffers such an
under the standards of the DD Act.                                 injury one day short of his or her twenty-second birthday, but
                                                                   not to the same person injured in exactly the same manner 24
                                                                   hours later? The answer is, of course, as the district judge
                                                                   held, that the Act was never meant to apply to individuals in
                                                                   Martin Bentley’s situation – the holder of a GED, who served
                                                                   two years in the United States Army and then became a long-
                                                                   distance truck driver, and who, according to the majority,
                                                                   retains the “‘adequate cognitive ability’ to speak for himself
                                                                   . . . and express[ ] his wishes in an ‘unequivocal consistent
                                                                   manner’.”
                                                                      It is not surprising that Congress initially attempted to
                                                                   describe the term “developmental disability” in terms of a
                                                                   diagnosis but then abandoned the effort. The term is a
                                                                   contemporary euphemism for “mental retardation,” which
                                                                   itself came into use in an effort to erase the stigma attached to
                                                                   much cruder descriptive terms used in the early part of the last
                                                                   century and before, terms such as “moron” (used to describe
                                                                   those with intelligence quotients ranging from 50-69),
                                                                   “imbecile” (having an IQ of 25-50), “idiot” (having an IQ
                                                                   under 25), and the like.
No. 02-6221              Tenn. Protection & Advocacy        19    20   Tenn. Protection & Advocacy                No. 02-6221
                               v. Wells, Esquire, et al.               v. Wells, Esquire, et al.

  But there are many causes of mental retardation, and the        best of intentions, I would affirm the district court for the
disability can (but does not necessarily) accompany other         reasons set out in its memorandum opinion and deny relief.
conditions, such as cerebral palsy and autism – hence the
effort to describe developmental disability in terms of
function, rather than diagnosis. As the district court
recognized, however, the key concept here is not “disability,”
from which Mr. Bentley undoubtedly suffers. The key,
rather, is the descriptive term “developmental,” referring
obviously to an impairment that “manifests” itself over time
and impedes an individual’s progress from childhood to post-
adolescence and into adulthood, equipped with what are
recognized as adequate skills to live independently and
productively. Mr. Bentley was living independently, and
presumably productively, at the time he became the victim of
an unexpected and debilitating accident, one which
unfortunately befalls other adults all too frequently but which
does not implicate a potential for the denial of civil rights
such as the statute in question here was designed to protect
against.
   Perhaps the problem here is merely poor legislative
drafting, an impediment we sometimes face in trying
rationally to construe statutes conceived by special interest
groups, drafted by committees working under pressure to
reach political consensus, and thereafter amended and made
increasingly complex. If so, the majority has compounded
the problem by reading a badly drafted statute too literally
and has thereby reached what I believe is a result that
Congress did not intend and would never have envisioned,
had it been prescient enough to foresee the application of this
civil rights statute to a situation such as the one before us.
This seems obvious from the fact that this case presents itself
as one of first impression, suggesting that the legislation has
never been understood to apply to victims of sudden
traumatic injury, regardless of age.
  Despite my sympathy for Mr. Bentley’s disabled condition
and my conviction that the plaintiff here is acting with the
