Day v. Dist. of Columbia

Citation894 F.Supp.2d 1
Decision Date14 February 2012
Docket NumberCivil Action No. 10–2250 (ESH).
PartiesEdward DAY, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.
CourtU.S. District Court — District of Columbia

OPINION TEXT STARTS HERE

Barbara S. Wahl, Brian D. Schneider, Arent, Fox LLP, Kelly R. Bagby, AARP Foundation Litigation, Marjorie Lynn Rifkin, Jennifer Rachel Lav, Victoria L. Thomas, University Legal Services, Inc., Bruce B. Vignery, American Association of Retired Persons, Washington, DC, for Plaintiffs.

Bradford Collins Patrick, Melissa Lael Baker, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

Plaintiffs, five individuals who have sued on their behalf and on behalf of a proposed class of similarly-situated individuals, commenced this action for declaratory and injunctive relief against the District of Columbia, its Mayor, and several city officials (collectively defendants),1 alleging that individuals with disabilities who are covered by Medicaid are being unnecessarily institutionalized in nursing facilities and isolated from their communities in violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 794 et seq. Before the Court is defendants' motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for summary judgment pursuant to Rule 56.2 For the reasons stated herein, defendants' motion is granted in part and denied in part.

BACKGROUND

I. INTEGRATION MANDATE

A. Statutory and Regulatory Background

Title II of the ADA provides that “no qualified individual with a disability 3 shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity,4 or be subjected to discriminationby any such entity.” 42 U.S.C. § 12132. One “for[m] of discrimination,” according to Congressional findings,” includes “segregation” of persons with disabilities.” Id. § 12101(a)(2) (“historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem”); see also id. § 12101(a)(5) (“individuals with disabilities continually encounter various forms of discrimination, including ... segregation”). The ADA's implementing regulations 5 include an express “integration” provision, requiring that [a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities,” 28 C.F.R. § 35.130(d), which is defined as “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. pt. 35, App. B.

Section 504 of the Rehabilitation Act similarly provides that “[n]o otherwise qualified individual with a disability “shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).6 Although the Rehabilitation Act contains no express recognition that isolation or segregation of persons with disabilities is a form of discrimination, its implementing regulations require that programs, services, and activities be administered in “the most integrated setting appropriate” to the needs of individuals with disabilities. 28 C.F.R. § 41.51(d).

In addition to directing that programs, services and activities be administered in the “most integrated setting appropriate,” the implementing regulations for both the ADA and the Rehabilitation Act prohibit either “directly or through contractual or other arrangements,” the

utiliz[ation of] criteria or methods of administration: (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability; [or] (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities.

28 C.F.R. § 35.130(b)(3)(i)-(ii)(ADA); see also45 C.F.R. § 84.4(b)(4)(i)-(ii) (Rehabilitation Act); 28 C.F.R. § 41.51(b)(3)(i)-(iii) (same).

Under the ADA, a public entity must

make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

28 C.F.R. § 35.130(b)(7) (1998). Similarly, under the Rehabilitation Act, the recipient of federal funds must

make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodationwould impose an undue hardship on the operation of its program.

28 C.F.R. § 41.53.7

B. Olmstead v. L.C. ex rel. Zimring

In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), the Supreme Court considered whether the “proscription of discrimination” in Title II of the ADA “may require placement of persons with mental disabilities in community settings rather than in institutions.” 8Id. at 587, 119 S.Ct. 2176. The Court's answer was “a qualified yes.” Id. at 587, 119 S.Ct. 2176. The Court first held that [u]njustified isolation ... is properly regarded as discrimination based on disability.” Id. at 597, 119 S.Ct. 2176.9 However, the Court also recognized that “nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings,” there is no “federal requirement that community-based treatment be imposed on patients who do not desire it,” 10 and States “need to maintain a range of facilities for the care and treatment of persons with diverse mental disabilities, and [have an] obligation to administer services with an even hand.” Id. at 601–02, 119 S.Ct. 2176. In light of these considerations, the Court held 11 that community placement for individuals with mental disabilities

is in order when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.

Id. at 607, 119 S.Ct. 2176.12 Although the plaintiffs in Olmstead had exclusively mental disabilities (mental retardation and mental illness), its holding also applies to individuals with physical disabilities. See42 U.S.C. § 12102(1)(A) (qualifying disability under the ADA includes “a physical or mental impairment that substantially limits one or more of the major life activities of such individual” (emphasis added)); see, e.g., M.R. v. Dreyfus, 663 F.3d 1100 (9th Cir.2011) ( Olmstead case where plaintiffs had both mental and physical disabilities); Grooms v. Maram, 563 F.Supp.2d 840, 852 (N.D.Ill.840) ( Olmstead case where plaintiff had physical rather than mental disability).

In Olmstead, there was no dispute that the two plaintiffs were individuals ‘qualified’ for noninstitutional care” who did not “oppose[ ] such treatment.” Id. at 602–03, 119 S.Ct. 2176. As for whether community placement for those plaintiffs was a “reasonable accommodation,” the Court majority expressed no opinion, simply remanding “for further proceedings.” Id. at 607, 119 S.Ct. 2176. A plurality, however, went on to address in greater detail what might be the scope of [t]he State's responsibility, once it provides community-based treatment to qualified persons with disabilities,” noting that it was “not boundless.” Id. at 603, 119 S.Ct. 2176. The plurality started its analysis with the “reasonable-modifications regulation,” pointing out that it “speaks of ‘reasonable modifications' to avoid discrimination, and allows States to resist modifications that entail a ‘fundamenta[l] alter[ation] of the States' services and programs.” Id. at 603, 119 S.Ct. 2176 (quoting 28 C.F.R. § 35.130(b)(7)). The plurality went on to observe that [t]o maintain a range of facilities and to administer services with an even hand, the State must have more leeway than the courts below understood the fundamental-alteration defense to allow.” Id. at 605, 119 S.Ct. 2176. For example, the plurality stated:

The Court of Appeals' construction of the reasonable-modifications regulation is unacceptable for it would leave the State virtually defenseless once it is shown that the plaintiff is qualified for the service or program she seeks. If the expense entailed in placing one or two people in a community-based treatment program is properly measured for reasonableness against the State's entire mental health budget, it is unlikely that a State, relying on the fundamental-alteration defense, could ever prevail.

Id. at 603, 119 S.Ct. 2176.13 Thus, the plurality opined:

Sensibly construed, the fundamental-alteration component of the reasonable-modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.

Id. at 604, 119 S.Ct. 2176. Finally, the plurality set forth one way that it believed a State could meet its burden of establishing a fundamental alteration defense:

If, for example, the State were to demonstrate that it had a...

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