Ball v. Kasich

• Decision Date: 23 March 2017
• Docket Number: Case No. 2:16–cv–00282
• Citation: 244 F.Supp.3d 662
• Parties: Phyllis BALL, BY her General Guardian, Phyllis BURBA, et al., Plaintiffs, v. John KASICH, Governor of Ohio, in his official capacity, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

244 F.Supp.3d 662

Phyllis BALL, BY her General Guardian, Phyllis BURBA, et al., Plaintiffs,

v.John KASICH, Governor of Ohio, in his official capacity, et al., Defendants.

Case No. 2:16–cv–00282

United States District Court, S.D. Ohio, Eastern Division.

Signed March 23, 2017

Kerstin Sjoberg-Witt, Alison A. McKay, Kevin J. Truitt, Disability Rights Ohio, Columbus, OH, Anna M. Krieger, Cathy E. Costanzo, Kathryn Lesley Rucker, Center for Public Representation, Northampton, MA, John Gribbin Hutchinson, Jonathan Warren Muenz, Sidley Austin LLP, New York, NY, Kristen A. Knapp, Neil R. Ellis, Sidley Austin LLP, Washington, DC, Kristen E. Rau, Sidley Austin LLP, Chicago, IL, Samuel R. Bagenstos, Ann Arbor, MI, for Plaintiffs.

Ryan L. Richardson, Ohio Attorney General's Office Constitutional Offices Secton, Larry Holliday James, Robert Charles Buchbinder, Vincent James Lodico, Frank David Tice, V, Crabbe, Brown & James, LLP, Jeffrey Jarosch, Office of Ohio Attorney General Mike Dewine Health and Human Services, Allan K. Showalter, Executive Agencies Section, Columbus, OH, for Defendants.

OPINION AND ORDER

EDMUND A. SARGUS, JR., CHIEF UNITED STATES DISTRICT JUDGE

Plaintiffs Phyllis Ball, Antonio Butler, Caryl Mason, Richard Walters, Ross Hamilton, and the Ability Center of Greater Toledo (collectively "Plaintiffs")¹ bring Ibis class action on behalf of themselves and other similarly situated individuals with intellectual and developmental disabilities against Defendants John Kasich (in his official capacity as Governor of Ohio), Kevin Miller (in his official capacity as Director of Opportunities for Ohioans with Disabilities), John McCarthy (in his official capacity as Director of the Ohio Department of Medicaid), John Martin (in his official capacity as Director of the Ohio Department Developmental Disability), and the Ohio Association of County Boards Serving People with Developmental Disabilities (collectively, "Defendants"). Plaintiffs allege that Ohio's administration, management, and funding of its service system for people with intellectual and developmental disabilities such as themselves puts them at serious risk of segregation and institutionalization in violation of Title II of the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act as interpreted by the Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), and the Social Security Act, 42 U.S.C. § 1396n(c)(2)(B) & (C). This matter is before the Court for consideration of Defendant Kevin Miller's Motion to Dismiss (ECF No. 16), Defendant John Kasich's Motion to Dismiss (ECF No. 28), and Defendants John McCarthy's and John Martin's (joined by Defendant John Kasich) Motion to Dismiss (ECF No. 27). For the following reasons, Defendant Miller's Motion (ECF No. 16) is DENIED, Defendant Kasich's Motion (ECF No. 28) is DENIED in part with respect to the Rehabilitation Act claim and GRANTED in part with respect to the ADA and Social Security Act claims, and Defendant McCarthy and Martin's Motion (ECF No. 27) is DENIED.

I. BACKGROUND

Plaintiffs are adults with intellectual and developmental disabilities who are institutionalized, or at serious risk of institutionalization, in Intermediate Care Facilities ("ICFs") for individuals with intellectual disabilities with eight or more beds throughout Ohio. (Complaint ("Compl.") ¶ 1, ECF No. 1.) The Ability Center of Greater Toledo joins the named Plaintiffs on behalf of its constituents who also include people with intellectual and developmental disabilities. (Id. ¶ 3.) Plaintiffs assert that they would prefer to reside in an integrated, community-based setting and receive employment or day services, "but due to the Defendants' administration, management, and funding of Ohio's service system for people with intellectual and developmental disabilities, they are experiencing or at serious risk of experiencing pervasive and widespread isolation and segregation." (Id. ¶ 1.)

Placement in a large ICF, according to Plaintiffs, subjects individuals with intellectual or developmental disabilities to segregation and isolation from their non-disabled peers. (Id. ¶ 4.) In Ohio, ninety percent of individuals residing in an ICF live in large ICFs with eight or more beds. (Id. ¶ 136.) Arguing that such segregation is illegal under Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), in which the Supreme Court held that individuals with developmental disabilities receiving state-funded care have the right to receive such care in the community if appropriate, Plaintiffs argue that they are entitled to be served in the most integrated, least restricted setting appropriate for their individual needs. (Id. ¶ 99.) They additionally challenge the segregation in employment and day services and argue that due to the limited access to such integrated services (as opposed to segregated facility-based programs), they are deprived of meaningful community interactions and the dignity of self-sufficiency.

Plaintiffs allege that in Ohio, approximately 2,500 out of 5,800 individuals currently housed in the state's network of public and private ICFs are on waiting lists for home and community-based services, with a median wait time of thirteen years. (Id. ¶ 6.) Another 40,000 individuals not placed in ICFs are also on waiting lists in Ohio awaiting such services. (Id. ¶ 7.) The source of this pent up demand for services, Plaintiffs allege, is Defendants' failure to make the requisite administrative and budgetary changes necessary to provide increased access to home and community-based services. (Id. ¶ 10.) The State primarily makes such services available through Medicaid funding and large-scale "waiver" programs in which the Department of Medicaid agrees to waive or relax certain Medicaid requirements to allow for individuals with developmental or intellectual disabilities to live by themselves or in other community-based settings. Ohio currently operates four waiver programs: the Individual Options, Transitions Developmental Disabilities (currently being phased out), Level One, and Self Empowered Life Funding ("SELF") waivers. (Id. ¶¶ 178–82). Funds for the Level One and SELF waivers are more strictly limited and therefore can only serve people with minimal needs, whereas the Individual Options waiver has no individual funding limit.

Plaintiffs allege that rather than investing in more waivers and funding for such services, allegedly continue to maintain and invest in large institutional care, away from the national trend. (Id. ¶ 8–9.) Plaintiffs allege that local county boards of developmental disabilities are discouraged from providing waiver services over services through ICFs because of the way in which the State allocates its funding. They argue that because the state matches federal Medicaid funds for ICF services, but requires local boards to supplemental federal funding for waiver programs, ICF placement is less of a financial burden for county boards. (Id. ¶¶ 185–86.) Thus, Defendants have the ability to remedy the issue by expanding funding to the existing home and community-based waiver programs. Defendants disagree and contend that the number of individuals served through waivers has substantially increased from 5,527 in 1999 to 35,191 in 2015, and the number of individuals served in ICFs has decreased from 59% in 1999 to 15% in 2015. (Defendants Martin and McCarthy's Motion to Dismiss ("Defs.' Mot.") at 4, ECF No. 27.)

Plaintiffs assert that Defendants' actions (or inaction) violate the Americans with Disabilities Act ("ADA"), Section 504 of the Rehabilitation Act, and the Social Security Act. They seek to bring a class action on behalf of approximately 27,800 similarly situated adults with intellectual and developmental disabilities throughout Ohio who are Medicaid eligible and also at risk of institutionalization or placement in a large ICF due to limited access to home and community based services. (Id. ¶ 2.) In their Complaint, Plaintiffs request that the Court certify this case as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2), issue a declaratory judgment that Defendants are in violation of federal law in their administration of services to intellectually and developmentally disabled individuals, and grant injunctive relief against defendants to remedy the alleged violations.

Now before the Court for decision are Defendants' three motions to dismiss. Defendant Kevin Miller seeks dismissal of Plaintiffs' claims, arguing that Disability Rights Ohio is precluded under federal law from bringing this class action on behalf of Plaintiffs because it receives federal funds as Ohio's designated Client Assistant Program. (ECF No. 16.) Defendant Governor John Kasich seeks dismissal as a party, asserting Eleventh Amendment immunity and failure to state a claim. (ECF No. 28.) Finally, Defendants John McCarthy and John Martin challenge Plaintiffs' claims on various grounds. (ECF No. 27.) The Court will consider each motion in turn.

II. STANDARD

Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to "state a claim for relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (clarifying the plausibility standard articulated in Twombly ). "A claim has facial plausibility when the plaintiff pleas factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The factual allegations of a pleading "must be enough to raise a right to...