Hahn ex rel Barta v. Linn County, Iowa

• Decision Date: 11 March 2002
• Docket Number: No. C99-19-MWB.,C99-19-MWB.
• Citation: 191 F.Supp.2d 1051
• Parties: Douglas Edward HAHN, by and through his co-guardians, Judith BARTA and Barbara Axline, Plaintiffs, v. LINN COUNTY, IOWA, Lu Barron, Lumir Dostal, Jr. and James Houser, in their official capacities as members of the Linn County Board of Supervisors, and Discovery Living, Inc., Defendants.
• Court: U.S. District Court — Northern District of Iowa

191 F.Supp.2d 1051

Douglas Edward HAHN, by and through his co-guardians, Judith BARTA and Barbara Axline, Plaintiffs, v. LINN COUNTY, IOWA, Lu Barron, Lumir Dostal, Jr. and James Houser, in their official capacities as members of the Linn County Board of Supervisors, and Discovery Living, Inc., Defendants.

No. C99-19-MWB.

United States District Court, N.D. Iowa, Cedar Rapids Division.

March 11, 2002.

Sondra B. Kaska, Iowa City, IA, for Plaintiffs.

Jeffrey L. Clark, Asst. Linn County Atty., Cedar Rapids, IA, for Linn County.

Kelly R. Baier, Bradley & Riley, Cedar Rapids, IA, for Discovery Living.

MEMORANDUM OPINION ON NON-JURY TRIAL ON THE MERITS

BENNETT, Chief Judge.

                TABLE OF CONTENTS
                I. INTRODUCTION................................................................1053
                     A. The Parties............................................................1054
                     B. Procedural Background..................................................1054
                II. FINDINGS OF FACT...........................................................1056
                III. DISCUSSION................................................................1059
                     A. Effectiveness Of FC As A Means Of Communication........................1059
                        1. Defendants' objections to the admissibility of plaintiffs' expert
                             witnesses' testimony..............................................1059
                        2. Whether FC is a valid means of communication for Mr. Hahn in
                             particular........................................................1062
                     B. Attorneys' Fees........................................................1064
                

                IV. CONCLUSION.................................................................1065
                

In this disability discrimination case of first impression, the plaintiffs assert that Douglas Hahn, who suffers from autism, experiences thoughts and ideas that are more complex than is evident from his verbal speech. Mr. Hahn resides in a group home operated by defendant Discovery Living and works in a sheltered workshop operated by defendant Linn County. The plaintiffs believe that Mr. Hahn's autism prevents the effective expression of his thoughts and emotions and does not allow him to fully participate in the services provided by the defendants. The plaintiffs do, however, feel that full participation is possible and believe that Mr. Hahn is capable of expressing his unspoken thoughts by means of a controversial technique, known as facilitated communication.¹

This lawsuit arose out of the defendants' refusal to fund this technique—a decision that was based on their belief in the unproven nature of facilitated communication as a valid method of expression as well as a concern over later-discredited allegations of abuse supposedly expressed via facilitated communication. The plaintiffs argue that the defendants' refusal to provide facilitated communication violates both federal and state law because it deprives Douglas Hahn of meaningful access to the services provided by the defendants. Facilitated communication proponents believe that the technique is legitimate and assert that it unleashes unexpected literacy, pointing to individuals who were once diagnosed as mentally retarded but now, through the use of facilitated communication, attend college. Proponents extol facilitated communication as the key to unlocking the wordless prison in which many autistic individuals are trapped, while critics and skeptics condemn the technique as nothing more than quackery.

The parties in this matter have encouraged the court to reach the broad, global issue of the validity of facilitated communication. And while the bench trial in this matter witnessed an enviable battle of the experts, the experts' testimony ultimately had no effect on the outcome of this case. This case does not require the court to serve as a referee and to determine whether facilitated communication is a legitimate means of communication, because this case turns on one individual's ability to communicate through the use of facilitated communication, and not on the virtues of facilitated communication movement in general.

I. INTRODUCTION

The plaintiffs in this case are Douglas Edward Hahn ("Mr.Hahn") and his co-guardians/sisters, Judith Barta ("Ms.Barta") and Barbara Axline ("Ms.Axline"). Ms. Barta and Ms. Axline brought this suit on behalf of their brother, Mr. Hahn, against Linn County, Iowa, Lumir Dostal, Jr., James Houser, Lu Barron, in their official capacities as members of the Linn County Board of Supervisors (hereinafter collectively referred to as "Linn County") and Discovery Living, Inc. ("Discovery Living"). The causes of action alleged in the plaintiffs' complaint arise under Section 504 of the Rehabilitation Act of 1973 ("RA"), Title II (public services provided by governmental entities), and Title III (public accommodations furnished by private entities) of the Americans with Disabilities Act of 1990 ("ADA"), and Chapter 216 of the Iowa Civil Rights Act ("ICRA").

A. The Parties

Mr. Hahn is currently fifty-six and suffers from autism and has been diagnosed with mild cognitive disabilities. Ms. Barta and Ms. Axline are his legal guardians, and the court was impressed by their extraordinary concern for Mr. Hahn's well-being. Linn County is a local governmental unit that operates, through the Linn County Department of Human Resources Management, Options of Linn County ("Options"). Options is a sheltered workshop for persons with disabilities. Lumir Dostal, Jr., James Houser, and Lu Barron are members of the Linn County Board of Supervisors and are sued in their official capacities. One of the Board of Supervisors's duties is to oversee the county's programs, including Options, and to ensure that they are in compliance with state and federal law. Discovery Living is a private, not-for-profit corporation that contracts with Linn County to provide residential support services to persons with disabilities. Namely, Discovery Living owns and manages supported living homes for persons with disabilities.

B. Procedural Background

This case was first filed in this court on January 29, 1999. Prior to the commencement of litigation, however, the parties engaged in a three step dispute resolution process, beginning in 1997, which culminated in an appeal by Mr. Hahn to the Linn County Board of Supervisors. The Board unanimously voted to deny Mr. Hahn's request that county personnel participate with him as FC facilitators or that FC be provided as a county-funded service, and, as a result of this decision, the plaintiffs filed suit. The plaintiffs contend that FC is Mr. Hahn's preferred and most effective mode of communication, and by not providing him with FC, the defendants are depriving Mr. Hahn of the ability to engage in meaningful communication with the persons with whom he lives and works, in violation of the RA, the ADA, and the ICRA.

Specifically, in their complaint, plaintiffs alleged twenty-two counts of discrimination. The essence of Mr. Hahn's claims are as follows. First, Mr. Hahn alleges that Linn County violated Title II of the ADA, which provides:

Subject to the provisions of this subchapter [42 U.S.C. §§ 12131-12165], no qualified individual with a disability 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, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132.² The plaintiffs contend that Linn County violated Title II by (1) failing to provide Mr. Hahn with effective communication—in other words, by failing to provide FC services; (2) by refusing to modify its policy and practice of "forbidding" the use of FC; and (3) by discriminating against Mr. Hahn based on the type and severity of his disabilities when Linn County determined it needed to establish policies for the use of FC before its implementation. Plaintiffs further contend that modification of Linn County's FC policy would not cause an undo financial burden nor would it be fiscally irresponsible.

Title III, which applies to the plaintiffs claims against Discovery Living, provides, in pertinent part, the following: "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a).³

Plaintiffs allege that Discovery Living violated Title III of the ADA by: (1) requiring that Mr. Hahn pass a literacy test before using FC; (2) refusing to modify its policy of not providing FC; and (3) failing to provide Mr. Hahn with "effective communication" within the meaning of the ADA.

On August 11, 2000, Linn County filed a motion for summary judgment. In its motion Linn County alleged the following: (1) that the RA and the ADA cannot be invoked when the benefit denied (here, FC) is not part of the program or activity offered; (2) that Mr. Hahn cannot maintain a "meaningful access" argument without some showing that FC is required; (3) that the RA and the ADA cannot be invoked when there is no showing that the alleged discrimination occurred "solely on the basis of plaintiff's disability"; (4) that Linn County's administration of its Mental Health and Developmental Disability ("MHDD") services complies with the implementing regulation of the ADA; and (5) that Linn County's refusal to fund FC services does not violate Chapter 216 of the ICRA.

On August 14, 2000, Discovery Living filed its motion for summary judgment, arguing the following: (1) that Discovery Living's refusal to provide professionally disapproved services to Mr. Hahn does not constitute an adverse action based upon Mr. Hahn's disability; (2) that Discovery Living's refusal to provide FC does not constitute a denial of equal access to services; (3) that Discovery...