U.S. Soc'y for Augmentative v. Lyon, Case No. 15-cv-13065

• Decision Date: 04 November 2016
• Docket Number: Case No. 15-cv-13065
• Parties: UNITED STATES SOCIETY FOR AUGMENTATIVE AND ALTERNATIVE COMMUNICATION, INC., Plaintiff, v. NICK LYON, Director, Michigan Department of Health and Human Services, in his official capacity, CHRIS PRIEST, Medicaid Director, Medical Services Administration, Michigan Department of Health and Human Services, in his official capacity, and MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

UNITED STATES SOCIETY FOR AUGMENTATIVEAND ALTERNATIVE COMMUNICATION, INC., Plaintiff, v. NICK LYON, Director, Michigan Department of Health and Human Services,in his official capacity, CHRIS PRIEST, Medicaid Director, Medical Services Administration,Michigan Department of Health and Human Services, in his official capacity,and MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants.

Case No. 15-cv-13065

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION

November 4, 2016

Honorable Thomas L. Ludington

ORDER DENYING MOTION FOR RECONSIDERATION

Plaintiffs MV, a minor, and the United States Society for Augmentative and Alternative Communication, Inc. (USSAAC) brought suit under 42 U.S.C. § 1983 against Nick Lyon, the director of the Michigan Department of Health and Human Services, Chris Priest, the Medicaid Director at the Medical Services Administration, and the Michigan Department of Health and Human Services on August 28, 2015. ECF No. 1. Plaintiffs allege that Michigan Medicaid's criteria for coverage of Speech Generating Devices (SGDs) violates the Medicaid Act, 42 U.S.C. § 1396a et seq., § 504 of the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131. On May 11, 2016, Defendants filed a motion to dismiss. ECF No. 20. The Court granted that motion in part and denied it in part, dismissing Plaintiff MV for lack of standing and dismissing Plaintiff USSAAC's claims under § 504 of the Rehabilitation Act and Title II of the ADA. ECF No. 30. On September 14, 2016, Plaintiff filed a motion for reconsideration of the Court's decision to dismiss Plaintiff's claims under the Rehabilitation Act and the ADA. ECF No. 33. The Court directed Defendants to respond. ECF No. 34. For the reasons stated below, Plaintiff's motion for reconsideration will be denied.

I.

The relevant allegations have been summarized in this Court's August 31, 2016, order granting in part and denying in part Defendant's motion to dismiss. ECF No. 30. That summary will be incorporated as if fully recounted herein.

II.

Pursuant to Eastern District of Michigan Local Rule 7.1(h), a party can file a motion for reconsideration of a previous order, but must do so within fourteen days. A motion for reconsideration will be granted if the moving party shows: "(1) a palpable defect, (2) the defect misled the court and the parties, and (3) that correcting the defect will result in a different disposition of the case." Michigan Dept. of Treasury v. Michalec, 181 F. Supp. 2d 731, 733-34 (E.D. Mich. 2002) (quoting E.D. Mich. LR 7.1(g)(3)). A "palpable defect" is "obvious, clear, unmistakable, manifest, or plain." Id. at 734 (citing Marketing Displays, Inc. v. Traffix Devices, Inc., 971 F. Supp. 2d 262, 278 (E.D. Mich. 1997). "[T]he Court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the Court, either expressly or by reasonable implication." E.D. Mich. L.R. 7.1(h)(3). See also Bowens v. Terris, No. 2:15-CV-10203, 2015 WL 3441531, at *1 (E.D. Mich. May 28, 2015).

III.

In its motion for reconsideration, Plaintiff argues that the Court improperly dismissed Counts Four and Five of Plaintiff's Amended Complaint. Plaintiff asserts that there were three palpable defects in the Court's order. First, Plaintiff argues that neither Section 504 nor Title IIrequires comparison of access to benefits between people with and without disabilities. Second, Plaintiff argues that plaintiffs seeking injunctive relief under Section 504 and/or Title II do not need to demonstrate intentional discrimination. Third, Plaintiff argues that Plaintiff's claims under Section 504 and Title II are challenging Michigan Medicaid's adoption of discriminatory SGD coverage criteria, not Defendants' past denials of SGD coverage.

A.

Plaintiff first argues that the Court improperly relied on Trayner v. Turnage, 485 U.S. 535 (1988), in finding that Plaintiff's claims under § 504 and Title II were insufficient because they did not allege that Defendants were discriminating against disabled individuals in favor of nondisabled individuals. In the August 31, 2016, order, the Court stated that "[t]he 'central purpose' of § 504 is to ensure that 'handicapped individuals receive 'evenhanded treatment' in relation to nonhandicapped individuals.'" Op. & Order at 19, ECF No. 30 (quoting Traynor, 485 U.S. at 548). Plaintiff quotes Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 598 (1999), for the proposition that a claim under Title II can exist even if there is no showing that a similarly situated individual was given preferential treatment. The primary thrust of the Olmstead decision is that the "unjustified institutional isolation of persons with disabilities is a form of discrimination," Id. at 600. And the Olmstead Court did, in fact, discuss the fact that dissimilar treatment of disabled individuals does occur when they are unjustly institutionalized. See id. at 601 ("Dissimilar treatment correspondingly exists in this key respect: In order to receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice."). However, Plaintiff's point is well taken. The reasoning in Traynor which focuses ondiscrimination against disabled individuals in favor of nondisabled individuals has been undermined by Olmstead and subsequent courts of appeal decisions. See Amundson ex rel. Amundson v. Wisconsin Dep't of Health Servs., 721 F.3d 871, 874 (7th Cir. 2013) (collecting cases). But see Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1019 (6th Cir. 1997) (a pre-Olmstead decision which follows Traynor in holding that the ADA and Rehabilitation act only prohibit discrimination between the disabled and non-disabled). Although the Sixth Circuit has not explicitly overruled Parker or rejected Traynor, the Supreme Court's decision in Olmstead has rejected that reasoning.¹ Thus, Traynor will not be relied upon as a basis for the Court's dismissal of Plaintiff's claims under § 504 and Title II.

B.

However, the Court's opinion and order relied only in part on Traynor in dismissing Plaintiff's claims under § 504 and Title II. Plaintiff further argues that the Court committed a palpable error in its alternative ground by stating that Plaintiff was required to allege "intentional discrimination." Plaintiff argues that proof of intentional discrimination is not required for injunctive relief. In support of that argument, Plaintiff cites Ability Ctr. of Greater Toledo v. City of Sandusky, where the Sixth Circuit held that "Title II does more than prohibit public entities from intentionally discriminating against disabled individuals. It also requires that public entities make reasonable accommodations for disabled individuals so as not to deprive them of meaningful access to the benefits of the services such entities provide." 385 F.3d 901, 907 (6th Cir. 2004).

Although Plaintiff characterizes Ability Center as standing for the proposition that intentional discrimination need not be demonstrated by plaintiffs seeking injunctive relief under§ 504 and Title II, Sixth Circuit precedent draws a different distinction. Rather, the Sixth Circuit has distinguished intentional discrimination claims from disparate-impact and reasonable-accommodation claims. See Everson v. Leis, 412 F. App'x 771, 784 n.6 (6th Cir. 2011) (Moore, J., dissenting). Although it is unclear "whether a reasonable-accommodation claim under Title II is a viable claim separate from a disparate-treatment or disparate-impact type claim,"² several cases draw that distinction. Id., 412 F. App'x at 784 n.6 (citing Tucker v. Tennessee, 539 F.3d 526, 532 (6th Cir. 2008); Dillery v. City of Sandusky, 398 F.3d 562, 568 (6th Cir. 2005)). Likewise, several other circuits have held that claims for reasonable accommodation under Title II are separate from intentional discrimination claims. See id. (citing Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 751 (7th Cir. 2006); Henrietta D. v. Bloomberg, 331 F.3d 261, 275 (2d Cir. 2003)). Under reasonable accommodation claims, the plaintiff must still show that "the reason for his [or her] deprivation is his disability." Wis. Cmty. Servs., 465 F.3d at 751. Even if Plaintiff is advancing a reasonable accommodation or disparate-impact claim, however, Plaintiff's allegations are insufficient to state a claim.

First, Plaintiff's Complaint does not include allegations or requests related to a reasonable-accommodation claim. See Compl. ECF No. 17, at ¶¶ 70-88 (alleging that Michigan Medicaid "discriminates against qualified individuals with disabilities solely on the basis of" the nature and severity of their disabilities because beneficiaries with acquired speech impairments can receive SGDs). "In ADA cases, the plaintiff bears the burden of establishing the elements of the prima facie case, including—if needed—'the existence of a reasonable accommodation' thatwould enable him to participate in the program, service, or activity at issue." Ability Ctr. of Greater Toledo v. Lumpkin, 808 F. Supp. 2d 1003, 1024 (N.D. Ohio 2011). At best, the Complaint alleges that Defendant's coverage criteria has a disparate-impact on disabled individuals under the age of twenty-one who need SGDS for habilitative purposes, as opposed to disabled individuals who need SGDs for rehabilitative or prosthetic purposes. Plaintiff does not allege that Defendants have refused to make a reasonable accommodation. Thus, Plaintiff has not met its burden of alleging the existence of a reasonable accommodation.

Further, even if Plaintiff's Complaint is broadly construed as requesting an accommodation, Plaintiff has not adequately alleged a reasonable accommodation claim. Defendants have...