Full opinion text
OPINION DEBEVOISE, Senior District Judge. The Court is presented with cross-motions for summary judgment filed by Plaintiff Disability Rights New Jersey Inc (“DRNJ”) and by Defendants the State of New Jersey and Jennifer Velez in her official capacity as Commissioner of the New Jersey Department of Human Services (“DHS”). DHS is an umbrella organization for several state divisions, including the Division of Mental Health and Addiction Services (DMHAS). DMHAS is the state mental health authority that oversees the State’s public system of adult mental health services, including the four state psychiatric hospitals at issue. DRNJ represents psychiatric patients who either are or will be treated at the state’s psychiatric hospitals. DRNJ argues that the state’s policy which governs the involuntary administration of psychotropic drugs in non-emergency circumstances, Administrative Bulletin 5:04B, is both constitutionally infirm and routinely violated in New Jersey hospitals. As a result, DRNJ contends that psychiatric patients are forced to consume psychotropic drugs against their will in violation of the Federal Constitution, the Americans with Disabilities Act, 42 U.S.C. 12131 et seq. (hereinafter “ADA”), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794(a) (hereinafter “RA”). For the reasons set forth below, the Court finds in favor of DRNJ’s motion for summary judgment with respect to the Fourteenth Amendment due process challenge on substantive and procedural grounds as to the CEPP status patients only. As to the remaining class, the Court finds in favor of Defendants with respect to the substantive and procedural challenge, and the related First Amendment, right to counsel, and access to the courts claims. Next, the Court finds that A.B. 5:04B is in violation of the ADA and the RA with respect to the CEPP status patients only, and not the remaining class. In short, the Court finds that A.B. 5:04B violates the substantive and procedural due process rights of CEPP patients, and is discriminatory in violation of the ADA and the RA with regard to these individuals. However, A.B. 5:04B is valid as to the remaining class. The motions for summary judgment are therefore granted in part and denied in part. I. BACKGROUND A. Procedural History DRNJ filed its original complaint on August 3, 2010. The complaint set forth seven counts against Jennifer Velez, in her official capacity as Commissioner of the State of New Jersey Department of Human Services and Poonam Alaigh, in her official capacity as Commissioner of the State of New Jersey Department of Health and Human Services for violations of: the Due Process Clause of the Fourteenth Amendment (count one); the right of access to the Courts (count two); violations of the right to counsel (count three); the Equal Protection Clause of the Fourteenth Amendment (count four); the First Amendment (count five); the ADA (count six); and the RA (count seven). On July 20, 2011, 2011 WL 2976849, this Court denied DHS’s motion to dismiss this action in part, finding that “[tjhere can be no doubt that all patients in New Jersey, including patients with severe mental illness or injury, have the right to participate meaningfully in the course of their treatment, to be free from unnecessary or unwanted medication, and to have their rights to personal autonomy and bodily integrity respected by agents of the state.” (July 20, 2011 Op. at 5.) The Court found that DRNJ had presented “a panoply of serious allegations concerning the practice of psychiatric medicine in New Jersey hospitals” including practices that plainly violate existing New Jersey law. (Id. at 9.) Consequently, the Court refused to dismiss DHS from this case. However, the claims against Defendant O’Dowd in her official capacity as Acting Commissioner of the DHSS were dismissed in their entirety because the operative statute, the Health Care Facilities Planning Act of 1971, N.J. SA. 26:2H-1 et seq., does not establish DHSS’s authority to promulgate specific procedures concerning the administration of psychotropic drugs, and the Court reasoned that it would have been inappropriate to order it to do so. Notably, the Court granted dismissal of count four, DRNJ’s equal protection claim. DRNJ argued that under A.B. 5:04, its constituents are afforded fewer legal protections than other patients with respect to their medical treatment. In particular, DRNJ noted that prisoners with mental illness and individuals with developmental disabilities in addition to mental illness are entitled to hearings before they may be forcibly medicated. DRNJ contended that this disparate treatment of like-individuals was without rational basis and irreconcilable with the equal protection clause of the Fourteenth Amendment. (See id. at 27.) The Court found that any differential treatment between psychiatric patients and prisoners withstood rational basis scrutiny. For example, the Court reasoned that the state might grant prisoners additional opportunities to challenge treatment in recognition of a limited ability of the prison psychiatric system to internally review and prevent mistakes, and that the state could reasonably believe that hospitals, populated by doctors rather than guards and expressly non-punitive by nature, would be less in need of this oversight. (Id. at 29-30.) Thus, the Court dismissed Plaintiffs equal protection claim. However, the Court denied the motion to dismiss the ADA and RA claims, finding that the analysis of discriminatory treatment under these Acts is different than the rational basis scrutiny pursuant to the Fourteenth Amendment. DHS filed its answer on August 4, 2011. On August 25, 2011, DRNJ filed a motion to strike thirty-three of DHS’s defenses, arguing them to be frivolous, irrelevant, and/or legally insufficient. The Court granted DRNJ’s motion to strike, finding the defenses to be “boilerplate”, “highly repetitive and containing almost no factual specificity.” (See Sept. 23, 2011 Op. at 4, 2011 WL 4436550.) For example, the Court found with respect to the defenses related to damages, that “[c]ontrary to the ex-post justifications by Defendant, it is clear what happened here. Defendant’s counsel appears to have carelessly copy-pasted boilerplate personal injury defenses into the answer despite their inapplicability.” (Id. at 7.) On February 15, 2012, DHS moved to vacate a Consent Order in an earlier case governing New Jersey’s procedure for non-consensual administration of antipsychotic drugs by involuntarily-committed mentally ill patients. See Rennie v. Klein, 720 F.2d 266 (3d Cir.1983) (“Rennie Consent Order”). In support of its motion, DHS admitted that the involuntary medication procedures in place were undermined by a subsequent Supreme Court ruling in Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) and its progeny. In consideration of the unopposed motion, on March 19, 2012, the Court entered an order vacating the Rennie Consent Order. The Three-step Rennie procedure was thereafter replaced on June 4, 2012 with the policy that is now at issue. On March 23, 2012, the Court granted and denied in part a motion to file a First Amended Complaint. The only substantive difference from the original Complaint was the addition of the State of New Jersey as a party to the action on to two counts — count six, for violations of the ADA, and count seven for violations of the RA. The Court allowed for the addition of the State of New Jersey as a party on the ADA claim, but denied the motion on the RA claim due to futility. Curiously, the Amended Complaint filed thereafter on March 27, 2012 repeats the same claims against Defendant Alaigh in her official capacity as Commissioner of DHSS, despite the prior substitution and dismissal of all claims brought against the appropriate officer of DHSS. Additionally, the Amended Complaint includes count four, for violation of the Equal Protection Clause of the Fourteenth Amendment, which was also dismissed pursuant to court order on July 20, 2011. The State of New Jersey was properly included as a party to count six, for violations of the ADA. Thus, the outstanding claims and corresponding Defendants are as follows: violations of substantive and procedural due process pursuant to the Due Process Clause of the Fourteenth Amendment (count one); violations of the right of access to the Courts due to failure to require a judicial hearing and appointment of counsel (count two); violations of the right to counsel pursuant to the Due Process Clause of the Fourteenth Amendment (count three); violations of the First Amendment due to infringement of the right to freely communication and produce ideas (count five); violations of the Americans with Disabilities Act (count six); and violations of the Rehabilitation Act (count seven). All claims are lodged against Commissioner Velez. Additionally, count six includes the State of New Jersey. These remaining claims are the subject of the cross-motions for summary judgment currently before the Court. B. Factual History a. A.B. 5:04B New Jersey State Hospitals are authorized to accept persons subject to involuntary patient commitment under N.J.S.A. 30:4-27.1 et seq. To be involuntarily committed, the patient must pose a dangerousness to self, others, or property, proven by clear and convincing evidence. After an order of temporary commitment, a civil commitment hearing is held within 20 days of admission. The civil commitment hearing is presided over by a judge and typically includes participation by a state attorney, an attorney appointed to represent the individual in question, the individual, and a psychiatrist. A typical uncontested initial commitment hearing takes between ten to twenty minutes, and takes place on-site on a weekly or biweekly basis. The presiding judge reviews the statutory requirements for dangerousness, the presence of mental illness that causes the dangerousness, whether the need for involuntary commitment is present, and whether or not a less restrict alternative is available. Following the initial commitment hearing and the entry of a final order of commitment, the patient is entitled to periodic review of the commitment. In 2011, a total of 8,636 civil commitment hearings took place. A.B. 5:04B outlines the procedures to be followed in situations in which “(1) an involuntarily committed consumer has been diagnosed with a mental illness, and, as a result of mental illness, poses a likelihood of serious harm to self, others, or property if psychotropic medication is not administered; and (2) the consumer will not or cannot provide informed consent to the administration of psychotropic medication recommended by the prescriber.” Patients subject to A.B. 5:04B are those placed by DHS at a state psychiatric hospital or the Ann Klein Forensic Center who are already civilly committed by a court pursuant to N.J. Ct. R. 4:74-7 (civil commitment due to mental illness which leads individual to be a danger to self, others, or property) or N.J. Ct. R. 4:74-7(h)(2) (Conditional Extension Pending Placement (“CEPP”) status patients). CEPP patients are those who were initially involuntarily committed, but have since been determined to no longer constitute a danger to themselves or others, and are therefore found by the New Jersey Superi- or Court to be entitled to discharge. CEPP status patients are not immediately discharged due to the unavailability of an appropriate placement. Thus, following an initial civil commitment based on a judicial finding of dangerousness to self, others, or property, A.B. 5:04B sets forth an additional administrative vehicle by which patients may be forcibly administered psychotropic medication upon a subsequent determination of “likelihood of serious harm or dangerous.” A.B. 5:04B does not apply to patients who voluntarily commit and reside in DHS psychiatric hospitals. Such individuals implicitly enter the facility without a judicial civil commitment hearing, and have the right to refuse psychotropic medication outside of an emergency. If the voluntarily-committed exhibit dangerousness, however, they are then processed to determine if medications can be administered despite their lack of consent pursuant to A.B. 5:04B. Nor does A.B. 5:04B apply in emergent situations governed by A.B. 5:04A. If less restrictive alternatives are not feasible in an emergency situation, A.B. 5:04A allows for a 72-hour period of forced medication for each emergency, with reassessments every 24-hours to determine if the situation remains emergent. As of December 31, 2011, the population at the state hospitals operated by DMHAS was 1,569, excluding the 200-bed Ann Klein Forensic Center. Of these 1,569 patients, 526 were on CEPP status, 803 were involuntarily committed, 13 were judicially designated as incompetent to stand trial, 15 were criminally committed for an Incompetency to Stand Trial evaluation, 183 were judicially adjudged not guilty by reason of insanity, and 29 were voluntarily committed. i. Procedure The substance and process of A.B. 5:04B being at issue, it is necessary to delve into the procedure in some detail. First, a prescriber who is professional licensed to prescribe or renew a prescription for psychotropic medication completes the first section of the Involuntary Medication Administration Report (“IMAR”) and documents: the patient’s name and hospital number; diagnosis; specific medications and co-medications to address side effects; any testing required because of the administration of the specific psychotropic medication being recommended; the rationale for the recommendation, including an explanation of the patient’s likelihood of serious harm to self or others or property due to non-compliance; the formulations and dosage ranges of the proposed medication(s); less restrictive alternatives attempted to rule out; the efforts made to explain the need for the medication to the patient; and the objections, if any, expressed by the patient to the medication^). The prescriber then submits the IMAR to the Hospital Medical Director who reviews it for completeness. When the IMAR is complete, the Medical Director appoints a three-person panel to conduct a Medication Review Hearing. The purpose of the hearing is for the panel to hear relevant evidence, including but not limited to the treating prescriber’s recommendation and the patient’s objections, and to determine whether the patient may be medicated without consent in accordance with the policy. Additionally, when the IMAR is complete, the Medical Director notifies the hospital’s Client Services Advocate (“CSA”) to participate in the hearing and to support the patient in presenting his or her objections to taking the proposed medication. The CSA is to consult with the patient within one business day of being assigned to the patient, if such consultation has not already occurred. The CSA is a licensed prescriber or Master’s-prepared psychiatric nurse who directly reports to the CEO or Deputy CEO of each hospital and has a reporting relationship to the DMHAS Medical Director through the Coordinating Chief of CSAs, and whose primary responsibility is to evaluate individuals receiving treatment with psychotropic medication. The CSA accomplishes this by individual patient assessment, consultation with the treatment team, and participation in the Medical Review Hearings process. The CSA provides ongoing assessment and oversight to ensure that medication is only continued if it is the least restrictive alternative and appropriately approved. The CSA also develops and provides orientation and training programs on these procedures for staff and patients. The CSA may delegate nonclinical monitoring and patient communication and education activities to appropriate staff including Client Services Representatives. The Medical Director schedules the Medical Review Hearing to take place no later than five days after receiving the completed IMAR and provides the patient and the CSA with a Notice of Hearing and the IMAR at least two business days prior to the hearing. A copy of the Notice of Hearing and IMAR is also provided to the treating prescriber and the three panel members. The Notice of Hearing provides the date, time and location of the hearing and advises the patient of the right to consult with the CSA, to have the CSA assist the patient at the hearing, to testify, to present witnesses and documentary evidence and to question witnesses. The patient also has the right at his/her own expense to have another mental health professional or counsel present at the hearing. If the patient cannot consent the CSA must be at the hearing to assist the patient in all circumstances. The composition of the panel includes a non-treating psychiatrist who acts as chairperson of the committee. The non-treating psychiatrist may have other duties at the hospital or Division, but is not to be currently involved in the treatment of the patient who is challenging the administration of medication. In addition, the panel consists of an administrator (Unit Director or above), and another clinician, again none of whom is currently involved in the patient’s treatment or diagnosis. Any Unit Director assigned is not to be from the patient’s unit. The Medical Director is to utilize a list created in accordance with the policy to select all panel members, and the administrators and clinicians assigned to sit are selected on a rotating basis. In addition to receiving the IMAR and Notice of Hearing, the panel members are provided with copies of any documentation the patient submits prior to the hearing. The patient’s clinical records are also made available to the panel members and to the CSA prior to the hearing. The chairperson is to review the patient’s clinical record prior to the hearing. The Medication Review Hearing takes place on the patient’s unit. The treating prescriber is present, as is the patient, his/her guardian or mental health care representative if applicable, and any other mental health professional or representative retained by the patient, and any other witness, if available, called by the patient. The patient has the right to attend and present testimony and documentary evidence, and to question witnesses and question documents during the hearing. Testimony is to be taken concerning the diagnosis, the specific medication(s) and co-medications to address side effects as well as any testing required because of the administration of the specific psychotropic medication being recommended for the patient, the rationale for the recommendation (including an explanation of the patient’s likelihood of serious harm to self or others or property due to non-compliance), the formulations and dosage ranges of the proposed medication(s), less restrictive alternatives attempted or ruled out and the objections, if any, expressed by the patient to the medication(s). The CSA shall be present at the hearing in order to support the patient and may assist the patient in presenting evidence if requested. After all witnesses have been heard, the members of the panel convene out of the presence of the patient and other hearing participants to discuss the matter. If the panelists determine by a majority vote, with the non-treating psychiatrist in the majority, that the patient has a mental illness, and as a result of that mental illness poses a likelihood of serious harm to self, others or property without psychotropic medication, the patient may be medicated without his or her consent. However, if the chairperson/non-treating psychiatrist is not in the majority, or votes against the involuntary medication, the proposed medication is not authorized. The panel records its decision and completes the required information on the Hearing Outcome Form, which is provided to the CSA, the patient, and the prescriber by the end of the business day on which the hearing is held. If medication has been authorized, the CSA provides the patient verbal and written notice of his or her appeal rights. A copy of the Hearing Outcome Form is sent to the Medical Director and a copy is placed in the patient’s chart. If the involuntary administration of psychotropic medication is not authorized by the panel, the patient’s treatment team will convene to adjust the treatment plan to reflect the absence of the proposed psychotropic medication. If a different medication is part of the new treatment plan, and the patient subsequently refuses the medication, the Involuntary Medication Administration process must be repeated before the revised medication can be administered on a nonemergency basis. The patient may submit an appeal to the Hospital Medical Director within twenty-four hours after notice of the panel’s initial decision. The CSA must offer to assist the patient in filing an administrative appeal. Notably, while an administrative appeal is pending, only emergency medication may be administered to the patient without his or her consent. The patient may continue to refuse medication, and medication is not to be administered in accordance with the panel decision until the time in which to appeal has passed. The Hospital Medical Director, or if absent a designee, reviews the patient’s appeal of the panel decision, in addition to the Involuntary Medication Administration Report and the Hearing Outcome Form. If s/he concludes that the Panel followed the Involuntary Medication Procedures in A.B. 5:04B, that its conclusions of fact were supported by the evidence presented, and that the medications authorized are within the current standard of care, s/he will affirm the decision in writing. However, if the policy was not adhered to procedurally, the panel’s decision to medicate will be vacated by the Medical Director. The Medical Director issues a decision within twenty-four hours of receipt of the appeal, and arranges for the delivery of the decision to the patient, the CSA’s office, and the prescriber. Any further appeal is made to the Appellate Division of the Superior Court pursuant to N.J. R. Ct. 2:2-3(a)(2). The Administrative Bulletin does not speak to forced medication pending appeal to the appellate division. However, the Statement of Undisputed Facts submitted jointly by the parties confirms that if the Medical Director denies the patient’s appeal, the patient can be forcibly medicated immediately — i.e., there is no stay pending the patient’s petition to a court. (SOUF ¶ 72.) If the patient is medicated without his or her consent through the Non-Emergent Involuntary Medication Procedure, the CSA meets with the patient as soon as possible, and reviews the patient’s chart at that time and once every month thereafter. The CSA documents the review on a Medication Review Form, signs the original and notifies the preseriber by email or writing of the results of the review. The prescriber then acknowledges receipt of the notification, by email or in -writing, and reports the results of any discrepancies noted during the review to the CSA. Unless a shorter time is approved by the panel or the biweekly review or consent ends the authorization, an Involuntary Medication Administration Report expires 90 days from the date the medication is first administered under the process for patients who do not or cannot consent to medication. If the patient continues not to provide consent for medication at the time of expiration, a new Involuntary Medication Report is completed, and the Medication Review Hearing procedures are followed. At the time any second or subsequent Involuntary Medication Administration is initiated, the preseriber is to consider alternative medications and interventions, indicate his or her opinion as to why the medication has not improved the patient’s clinical condition and encouraged his/her voluntary adherence, and is to document the reason for the patient’s continued rejection of alternatives. The CSA maintains files on every patient receiving an Involuntary Medication Administration review. In addition to containing copies of the Involuntary Medication Administration Report and the Hearing Outcome Report, the file also contains copies of the Medication Review forms, although originals are maintained in the patient’s medical record. Last, the Medical Director maintains a log of all patients receiving involuntary medication. ii. Implementation Between June and December 2012, approximately 255 Medical Review Panel hearings took place. In all but six of these hearings, the Medication Review Panel voted in favor of administration of medication. In 56 cases, patients appealed the Medication Review Panel’s decision, and the Medical Director affirmed the Panel’s decision in 55 of these 56 cases. In the 199 cases where the patient did not appeal the Panel’s decision, it was not because the patient had a change of mind and consented, s/he simply did not continue to challenge the drug administration. The one time that the Medical Director ruled in favor of an appellant’s contest, it was because the patient was not given notice that the time of the hearing had changed. In support of its argument that Defendants routinely fail to comply with the policy outlined in A.B. 5:04B, DRNJ points to specific patients’ experiences with the process, although DRNJ does not directly challenge the individual dispositions. Indeed, the individual dispositions raise questions of fact which are not appropriate for summary judgment review. For completeness, the Court briefly addresses these contentions, although the focus of the opinion herein concerns the facial challenge of the policy. DRNJ maintains that the required reports are deficient in description. For example, DRNJ explains that prescribing psychiatrists cited observations of behavior such as “aggression” and “assaultive behavior” as rationale for recommending forced medication but did not include descriptions of specific incidents or when they occurred. According to DRNJ, in some cases the sole rationale for involuntary medication was that the patient’s behavior had improved since the forced administration of medication. Further, DRNJ maintains that in some instances prescribing psychiatrists initiated the forced medication process without citing any information related to likelihood of harm, instead referring to symptoms of the patient’s illness or the patient’s general refusal to participate in the treatment process. DRNJ also takes issue with the appeals process in place. According to DRNJ, in several instances, patients whose medication was authorized by the Panel were forcibly medicated before the 24-hour time limit on an appeal had expired, in express violation of A.B. 5:04B. Second, although CSAs are obligated to assist patients in preparing appeal papers, some appeals included only one or two sentences in support of the patient’s position. Additionally, DRNJ submits that the appeals decisions are also deficient in description and that the Medical Director simply provided a short explanation for their affirmation of the panel’s decision, sometimes without acknowledgement of the patient’s specific objections. Patients wrote on appeal papers: “The doctor didn’t hear me out!!!”; “I don’t want any meds just need time to clear my head by going to groups, etc.”; “I don’t want to be on meds because it hurts my body”; and “When I was medicated I had a bad day.” In responding to the appeal, however, the Medical Director checked the box to indicate affirmation, but left blank the portion of the review form describing the Director’s rationale. C. Side Effects of Psychotropic Medication Psychotropic drugs are medications that have a direct effect on the central nervous system and which can modify emotion, cognition, and behavior. Examples of psychotropic drugs include antipsychotics, antidepressants, mood stabilizers, anxiolytics, sedative-hypnotics, and stimulants. Known side effects which may be associated with the use of psychotropic drugs, are muscle cramps, uncontrollable tremors, shakiness, restlessness, disturbances in walking, constipation, dizziness, and dryness of mouth. See also Harper, 494 U.S. at 229, 110 S.Ct. 1028 ([Ajntipsychotic drugs “can have serious, even fatal, side effects.”). Another side effect is a condition called tardive dyskinesia, “irreversible in some cases, that is characterized by involuntary, uncontrollable movements of various muscles, especially around the face.”) Id,.; (See also SOUF ¶ 13, PI. Ex. 19 (AIMS + EPS Examination Procedure) at JV016013). Tardive dyskinesia may become permanent if not diagnosed and treated. (SOUF ¶ 13.) The state’s pharmacology guidelines acknowledge that patients in long-term treatment with various antipsychotic drugs have “high prevalence rates for parkinsonism, akathisia, and tar-dive dyskinesia.” (SOUF ¶ 14, PI. Ex. 14 (N.J. Division on Mental Health Services Pharmacological Practice Guidelines for the Treatment of Schizophrenia) at JV015993.) In addition to these side effects, some patients may experience allergic reactions to psychotropic drugs. The goal of such medication is to change the way its user thinks. See, e.g., Sell v. U.S., 539 U.S. 166, 174, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003). The mind-altering effects of psychotropic drugs have been repeatedly recognized by the Supreme Court and other courts. Riggins v. Nevada, 504 U.S. 127, 134, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992) (“The purpose of the drugs is to alter the chemical balance in a patient’s brain, leading to changes, intended to be beneficial, in his or her cognitive processes.”); Mills v. Rogers, 457 U.S. 291, 293 n. 1, 102 S.Ct. 2442, 73 L.Ed.2d 16 (1982) (“It is not disputed that [antipsychotic] drugs are ‘mind-altering.’ Their effectiveness resides in their capacity to achieve such effects.”). As indicated above, A.B. 5:04B provides for the monitoring of patients for evidence of side effects. For example, this monitoring established that of all patients receiving medication at Ann Klein, there were 14 Adverse Drug Reaction (ADR) reports in 2008, 10 ADRs in 2009, 4 ADRs in 2010, and 3 ADRs in 2011. A.B. 5:04B also requires the introduction of co-medications to control side effects, regular periodic testing for side effects, and semi-monthly reports of a treating psychiatrist’s evaluation and monitoring of potential medication issues. II. DISCUSSION A. Standard of Review Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id. Summary judgment will not be denied based on mere allegations or denials in the pleadings; instead, some evidence must be produced to support a material fact. Fed.R.Civ.P. 56(c)(1)(A); United States v. Premises Known as 717 S. Woodward Street, Allentown, Pa., 2 F.3d 529, 533 (3d Cir.1993). The nonmoving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). [Rule 56] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, the Court will view any .evidence in favor of the nonmoving party and extend any reasonable favorable inferences to be drawn from that evidence to that party. Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). See also Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (The district court must “view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion.”). “This standard does not change when the issue is presented in the context of cross-motions for summary judgment.” Appelmans v. City of Phila., 826 F.2d 214, 216 (3d Cir.1987). Cross-motions for summary judgment: are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist. Transportes Ferreos de Venezuela II CA v. NKK Corp., 239 F.3d 555, 560 (3d Cir. 2001) (citing Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir.1968)). If review of cross-motions for summary judgment reveals no genuine issue of material fact, then judgment may be entered in favor of the party deserving of judgment in light of the law and undisputed facts. See Iberia Foods Corp. v. Romeo Jr., 150 F.3d 298, 302 (3d Cir.1998) (citing Ciarlante v. Brown & Williamson Tobacco Corp., 143 F.3d 139, 145-46 (3d Cir.1998)). Moreover, the nonmoving party must show by competent evidence that factual disputes regarding material issues of fact exist. “[Ojnly evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). B. Analysis 1. Whether A.B. 5:04B violates the Due Process Clause of the Fourteenth Amendment. In consideration of the present substantive and procedural due process challenges, the Court is informed by the reasoning set forth by the United States Supreme Court in Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990), the seminal involuntary medication case, and its progeny. In Harper, the Supreme Court considered the question whether and under what circumstances a state could forcibly administer antipsychotic drugs to a prisoner. The “central question” addressed was “whether a judicial hearing is required before the State may treat a mentally ill prisoner with antipsychotic drugs against his will.” Id. at 213, 110 S.Ct. 1028. The prisoner therein challenged the forced administration of antipsychotic drugs after a committee determined that he was a danger to others as a result of his mental illness, pursuant to a policy established by the state of Washington. Harper brought a challenge asserting violation of the Due Process, Equal Protection, and Free Speech Clauses of the Federal and State Constitutions. The Washington Supreme Court found that “the State could administer antipsychotic medication to a competent, nonconsenting inmate only if, in a judicial hearing at which the inmate had the full panoply of adversarial procedural protections, the State proved by ‘clear, cogent, and convincing’ evidence that the administration of antipsychotic medication was both necessary and effective for furthering a compelling state interest.” Id. at 218, 110 S.Ct. 1028. However, the Supreme Court reversed the decision based on consideration of the substantive and procedural components of the Due Process Clause of the Fourteenth Amendment. “[T]he substantive issue is what factual circumstances must exist before the State may administer antipsychotic drugs to the prisoner against his will; the procedural issue is whether the State’s nonjudicial mechanisms used to determine the facts in a particular case are sufficient.” Id. at 221, 110 S.Ct. 1028. On substantive due process, Harper instructs that there is “no doubt that, in addition to the liberty interest created by the State’s Policy, respondent possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment.” Id. at 222, 110 S.Ct. 1028 (internal reference omitted). Consistently, “[t]he extent of a prisoner’s right under the Clause to avoid the unwanted administration of antipsychotic drugs must be defined in the context of the inmate’s confinement.” Id. Harper reasoned: The Policy under review requires the State to establish, by a medical finding, that a mental disorder exists which is likely to cause harm if not treated. Moreover, the fact that the medication must first be prescribed by a psychiatrist, and then approved by a reviewing psychiatrist, ensures that the treatment in question will be ordered only if it is in the prisoner’s medical interests, given the legitimate needs of his institutional confinement. These standards, which recognize both the prisoner’s medical interests and the State’s interests, meet the demands of the Due Process Clause. Id. at 222-228, 110 S.Ct. 1028. Harper went on to explain that “[t]he legitimacy, and the necessity, of considering the State’s interests in prison safety and security are well established by our cases.” Id. at 223, 110 S.Ct. 1028. The proper standard for determining the validity of the prison regulation claimed to infringe on an inmate’s constitutional rights is “whether the regulation is ‘reasonably related to legitimate penological interests.’ ” Id. at 224, 110 S.Ct. 1028 (relying on the test set forth in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). The Court applied three of the Turner reasonableness factors: “First, there must be a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.” Second, a court must consider “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Third, “the absence of ready alternatives is evidence of the reasonableness of a prison regulation,” but this does not mean that prison officials “have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint.” Applying these factors to the regulation before us, we conclude that the Policy comports with constitutional requirements. There can be little doubt as to both the legitimacy and the importance of the governmental interest presented here. There are few cases in which the State’s interest in combating the danger posed by a person to both himself and others is greater than in a prison environment, which, “by definition,” is made up of persons with “a demonstrated proclivity for antisocial criminal, and often violent, conduct.” We confront here the State’s obligations, not just its interests. The State has undertaken the obligation to provide prisoners with medical treatment consistent not only with their own medical interests, but also -with the needs of the institution. Prison administrators have not only an interest in ensuring the safety of prison staffs and administrative personnel, but the duty to take reasonable measures for the prisoners’ own safety. These concerns have added weight when a penal institution ... is restricted to inmates with mental illnesses. Where an inmate’s mental disability is the root cause of the threat he poses to the inmate population, the State’s interest in decreasing the danger to others necessarily encompasses an interest in providing him with medical treatment for his illness. [The challenged policy] is a rational means of furthering the State’s legitimate objectives. Its exclusive application is to inmates who are mentally hi and who, as a result of their illness, are gravely disabled or represent a significant danger to themselves or others. The drugs may be administered for no purpose other than treatment, and only under the direction of a licensed psychiatrist. There is considerable debate over the potential side effects of antipsychotic medications, but there is little dispute in the psychiatric profession that proper use of the drugs is one of the most effective means of treating and controlling a mental illness likely to cause violent behavior. Id. at 224-26, 110 S.Ct. 1028 (citations and footnote omitted) (emphasis added). Thus, Harper found that given the requirements of the prison environment, the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest. Policy 600.30 comports with these requirements; we therefore reject respondent’s contention that its substantive standards are deficient under the Constitution. Id. at 227, 110 S.Ct. 1028. Next, Harper held that the state’s administrative hearing procedures comported with the procedural protections of the Due Process Clause, and that the Washington Supreme Court erred in requiring a judicial hearing as a prerequisite for the involuntary treatment of prison inmates. Id. at 228, 110 S.Ct. 1028. The Supreme Court relied on the Mathews v. Eldridge balancing test, which takes into consideration “the private interests at stake in a governmental decision, the governmental interests involved, and the value of procedural requirements in determining what process is due under the Fourteenth Amendment.” Id. at 229, 110 S.Ct. 1028 (relying on Mathews v. Eldridge, 424 U.S. 319, 336, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). Harper took note of the prisoner’s substantial interest in avoiding forcible medication and the significant side effects of antipsychotic medication. “Notwithstanding the risks that are involved,” the Court concluded that “an inmate’s interests are adequately protected, and perhaps better served, by allowing the decision to medicate to be made by medical professionals rather than a judge. The Due Process Clause ‘has never been thought to require that the neutral and detached trier of fact be law trained or a judicial or administrative officer.’ Though it cannot be doubted that the decision to medicate has societal and legal implications, the Constitution does not prohibit the State from permitting medical personnel to make the decision under fair procedural mechanisms.” Id. at 231, 110 S.Ct. 1028 (internal reference omitted). ‘Although we acknowledge the fallibility of medical and psychiatric diagnoses, see O’Connor v. Donaldson, 422 U.S. 563, 584, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) (concurring opinion), we do not accept the notion that the shortcomings of specialists can always be avoided by shifting the decision from a trained specialist using the traditional tools of medical science to an untrained judge or administrative hearing officer after a judicial-type hearing. Even after a hearing, the nonspecialist decisionmaker must make a medical-psychiatric decision. Common human experience and scholarly opinions suggest that the supposed protections of an adversary proceeding to determine the appropriateness of medical decisions for the commitment and treatment of mental and emotional illness may well be more illusory than real.’ Parham, 442 U.S. at 607-609, 99 S.Ct. 2493. Id. at 232, 110 S.Ct. 1028. In reaching its conclusion that the procedures comported with due process, the Supreme Court primarily looked to the facts that the recommendation was made by a licensed psychiatrist; that the decisionmakers were not involved in the prisoner’s daily care; and that administration of antipsychotic drugs was at all times consistent with the degree of care, skill, and learning expected of a reasonably prudent psychiatrist in the state acting in the same or similar circumstances. See id. at 233, 110 S.Ct. 1028. In addition, the Court noted the inmate’s right to notice of the adversary hearing, right to be present at an adversary hearing, right to present and cross-examine witnesses, and right to judicial review of the hearing committee’s decision. See id. at 235, 110 S.Ct. 1028. Notably, Harper specifically disagreed with the contention that due process mandates assignment of counsel: “It is less than crystal clear why lawyers must be available to identify possible errors in medical judgments.” Given the nature of the decision to be made, we conclude that the provision of an independent law adviser who understands the psychiatric issues involved is sufficient protection. Id. at 236, 110 S.Ct. 1028 (citation omitted). In conclusion, Harper held that there was no violation of substantive or procedural due process rights where there is “an accommodation between an inmate’s liberty interest in avoiding the forced administration of antipsychotic drugs and the State’s interest in providing appropriate medical treatment to reduce the danger that an inmate suffering from a serious mental disorder represents to himself and others. The Due Process Clause does require certain essential procedural protections,” all of which were provided for by the policy therein. Id. at 236, 110 S.Ct. 1028. The Ninth Circuit Court of Appeals recently applied the Harper standard with respect to a pretrial detainee. U.S. v. Loughner, 672 F.3d 731, 752 (9th Cir.2012) (“[W]hen the government seeks to medicate a detainee — whether pretrial or post-conviction — on the grounds that he is a danger to himself or others, the government must satisfy the standard set forth in Harper.”) 'Coextensively, Loughner followed the Harper analysis on procedural rights, including a nearly identical challenge of his right to counsel and a judicial hearing regarding his forced administration of psychotropic medication. Last, Loughner examined the pretrial detainee’s as-applied challenge to his “Harper Hearing,” and found that the committee’s conclusion was not arbitrary. Of note, Loughner examined the role of the staff representative therein: Here, Getchell’s failure to present any affirmative evidence or question any of the evidence in support of involuntary medication may indicate that his representation was unqualified or procedurally defective. See [U.S. v.] Morgan, 193 F.3d [252], at 265-66 [(4th Cir.1999)] (noting that the staff representative’s lack of “meaningful participation” during the administrative hearing supported the inference that the staff representative lacked “sufficient education and experience” as required by the regulations); United States v. Humphreys, 148 F.Supp.2d 949, 953 (D.S.D.2001) (finding that the staff representative did not meet the requirements of due process because she presented no evidence; testified against the defendant, stating that she believed he had a mental illness; and may have filed a disciplinary report against the defendant when he first arrived at FMC-Rochester). Or, it may simply indicate that Getchell had nothing to say because the evidence was overwhelming that Loughner required medication and that his prescriptions were standard protocol. We cannot determine the answers to these questions from this record. If we were deciding this matter based on the Harper III hearing alone, we might well send the case back for further proceedings or a new Harper hearing. Id. at 764. Similarly, the Second Circuit Court of Appeals recently extended the “Harper dangerousness test” to dangerous pre-trial criminal detainees. See U.S. v. Hardy, 724 F.3d 280 (2d Cir.2013). The appeals court found that “[t]he [district] court properly set out the standard established by Harper, that there must be a showing that the inmate has a serious mental illness, that he poses a danger to himself or others, and that the proposed treatment is in the inmate’s medical interest.” Id. at 296. Having set forth the foundational cases which have considered the issue, the Court now turns the arguments submitted by the parties. i. Substantive Due Process DRNJ argues that the failure to assign counsel “does not square with well-established case law stating that where a person is subject to a ‘massive curtailment of liberty,’ Vitek v. Jones, 445 U.S. 480, 491-92, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), it is imperative that they be provided counsel as ‘the first line of defense against constitutional violations.’ Bounds v. Smith, 430 U.S. 817, 822-823, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977).” (Pl.’s MSJ Br. at 26-27.) DRNJ maintains that “the refusal to provide counsel ignores the special needs of patients in psychiatric hospitals.” (Id.) DRNJ submits that the situation is “easily remedied if patients are provided with counsel to assist them in involuntary medication proceedings” since “counsel knowledgeable about mental health law are already practicing in Defendants’ hospitals and participate in weekly or biweekly [psychiatric civil commitment] hearings.” (Id.) Second, DRNJ argues that psychiatric patients are being denied their substantive due process right to access to the courts to challenge their conditions of confinement. Specifically, DRNJ challenges the failure to provide: a judicial hearing prior to nonconsensual administration of psychotropic drugs, counsel, and law libraries or other legal resources. Defendants counter that Harper applies with equal force to individuals committed to state psychiatric hospitals. First, Defendants argue that the safety and treatment concerns at correctional facilities are equally present at psychiatric hospitals, where the majority of patients have been civilly committed by a court because they have a documented history of mental illness, are a danger to themselves or others, and have demonstrated the need for psychiatric treatment. Thus, the threat of violent and aggressive behaviors is present in the State hospitals. “This proclivity for antisocial and often violent conduct is more frightening for its unpredictability and suddenness. Deposition testimony of Judge Killian, Dr. Fox, and other Plaintiffs witnesses confirms that the use of psychotropic medication is often an essential component in the treatment of psychiatric patients to effectively manage dangerousness.” (Def. MSJ Br. at 9.) Second, Defendants point the Court to a persuasive decision arising from the Tenth Circuit Court of Appeals, Jurasek v. Utah State Hospital, 158 F.3d 506 (10th Cir. 1998). The relevant premise of Jurasek is that the mentally institutionalized are not entitled to greater protections than prisoners when it comes to forced administration of psychotropic drugs, because involuntary medication is not a form of punishment, but rather a form of treatment. Id. at 511. Jurasek reasons: If [treatment with psychotropic drugs] was considered punitive, involuntarily-committed mental patients would undoubtedly be entitled to greater due process rights before being forcibly treated. See Youngberg v. Romeo, 457 U.S. 307, 321-22, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (“Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.”). The lack of punishment in the context of forced medication, however, removes any need to provide involuntarily-committed patients with greater due process protection than prisoners. Id. “The touchstone of due process is protection of the individual against arbitrary action of government,’ whether the fault lies in a denial of fundamental procedural fairness, or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective.” County of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Substantive due process protects individuals from government action that is “arbitrary, conscience-shocking, or oppressive in a constitutional sense.” Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir.1994) (internal references omitted). It does not protect “against government action that is incorrect or ill-advised” but against those circumstances in which “government action might be so arbitrary that it violates substantive due process regardless of the fairness of the procedures used.” Id. (internal references omitted). With respect to the substantive due process issues, the Court follows Harper and its progeny. It is well established that an individual has a liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Fourteenth Amendment. Psychotropic drugs alter the chemical balance in a patient’s brain and can produce serious, even fatal, side effects. See Harper, 494 U.S. at 229, 110 S.Ct. 1028. However, where the individual is confined in a state institution, individual liberties must be balanced against the interests of the institution in preventing the individual from harming himself or others residing or working in the institution. Here, patients have already been civilly committed based on a finding of dangerousness to self, others, or property, before a judge in a court of law in a process which includes assignment of counsel. A subsequent administrative hearing is provided before a committee without the assignment of counsel, for the purposes of administration of psychotropic drugs upon a finding of likelihood of serious harm to self, others, or property. This subsequent hearing does not violate due process rights where a competent advocate is assigned to assist the patient in the process. The decision to involuntarily administer psychotropic drugs is a medical decision reached by independent medical professionals based on a finding of dangerousness. At its heart, this is a medical decision reached by competent medical professionals, and cannot be said to be arbitrary, conscience-shocking, or oppressive in a constitutional sense. However, this holding does not extend to New Jersey psychiatric patients on Conditional Extension Pending Placement (“CEPP”) status. These CEPP status patients were initially involuntarily committed to inpatient DHS hospitals, but have since been determined by the New Jersey Superior Court to no longer constitute a danger to themselves or others and therefore are entitled to discharge. The sole reason for CEPP patients’ continued commitment is temporary unavailability of an appropriate placement. Accordingly, no legitimate government objective exists as to the forced medicating of CEPP status patients, and the continued medication of these individuals falls within the paradigm of state action which is arbitrary, conscience-shocking and oppressive in a constitutional sense. The Court therefore grants DRNJ’s request for injunctive relief, in part, as to CEPP status patients. ii. Procedural Due Process The next issue is whether the process set forth in A.B. 5:04B violates patients’ procedural due process rights. The procedural question concerns the minimum process required by the Constitution. See Mills v. Rogers, 457 U.S. 291, 299, 102 S.Ct. 2442, 78 L.Ed.2d 16 (1982). Procedural due process involves ascertaining “whether the State’s nonjudicial mechanisms used to determine the facts in a particular case are sufficient.” Harper, 494 U.S. at 220, 110 S.Ct. 1028. “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). However, “due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Due process is flexible and calls for such procedural protections as the particular situation demands.” Id. at 334, 96 S.Ct. 893 (internal reference omitted). The balancing test set forth in Mathews v. Eldridge, provides that the court must consider (1) the private interest at stake; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 335, 96 S.Ct. 893. The private interest at stake is clear, and is delineated at length above. In short, it is well-established that patients have a constitutionally-protected substantial liberty interest in remaining free from unwanted medication. With respect to the second Mathews v. Eldridge prong, DRNJ argues that a risk of an erroneous deprivation of such interest exists through the procedures used, and that additional or substitute procedural safeguards would add probable value in avoiding such infringement. First, DRNJ argues that the Medication Review Panels apply a vague “likelihood” of harm standard, which includes no time limit, allowing doctors to cite purported instances of violence dating back weeks, month, or even years, as well as activity that predates a patient’s admission, in support of involuntary medication. Further, DRNJ takes issue that the Medical Review Panels are not required to determine the “likelihood” of harm by any standard of proof. DRNJ argues that as a result, treating psychiatrists have frequently reported only the most eonclusory statements, such as that patients are “assaultive” or “intrusive.” DRNJ contends that Medication Review Panels agree with these eonclusory allegations with great frequency. DRNJ also points to A.B. 5:04B’s failure to specify rules of evidence, or require that the Medication Review Hearings be recorded or transcribed, “making it nearly impossible for a patient, or Medical Director on appeal, to credibly review the evidence considered by the Medication Review Panel. And with the cards already stacked against them, patients are further deprived of adequate representation in these hearings, and as a result are not able to voice their objections and lay out the reasons that they have refused medication or provide information refuting the testimony of the prescribing psychiatrist. (See SOUF ¶ 94.)” (Pl.’s MSJ Br. at 36.) DRNJ contends that the likelihood of erroneous deprivation is even greater for patients on CEPP status because they have already been adjudicated to no longer constitute a danger to themselves or others. ' Further, DRNJ challenges A.B. 5:04B on the basis that it does not require any independent decision makers to participate in Medication Review Hearings. (Pl.’s MSJ Br. at 37, citing generally Pl. Ex. 56, JV251491-517.) DRNJ submits that the make-up of the panel of entirely hospital employees ignores the principle that due process ‘demands impartiality on the part of those who function in judicial or quasi-judicial capacities.’ Allan v. Ashcroft, 122 Fed.Appx. 543, 551 (3d Cir.2004) (internal quotation omitted); see also Schweiker v. McClure, 456 U.S. 188, 195, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982) (same); United Retail & Wholesale Employees Teamsters Union Local No. 115 Pension Plan v. Yahn & McDonnell, Inc., 787 F.2d 128, 138 (3d Cir.1986) (denial of an impartial hearing is a denial of due process ‘regardless of the magnitude of the individual and state interest at stake, the risk of error and the likely value of additional safeguards.’). Because A.B. 5:04B does not require that independent decision-makers participate in Medication Review Hearings (PL Ex. 56 at JV251496), there is a strong likelihood of bias by the Panel. As Defendants’ witnesses have already admitted, employees are inherently not independent of their employer. (SOUF ¶ 27, PL Ex. Luehkiw Tr. 63:17-22 (stating that he is not independent from the hospital where he works because ‘that’s who signs [his] check.”); SOUF