E.D.Pa.: Medicaid/§ 1983 and ADA/504 integration

A Pennsylvania federal district court held that a Medicaid provision requiring that disabled persons be informed of feasible alternatives to institutional care is enforceable under 42 U.S.C. § 1983. The court also held that the integration regulations of the Americans withDisabilities Act (“ADA”) and the Rehabilitation Act (“RA”) do not create a private right of action, but did not discuss the integration mandates under the statutes themselves.

Zatuchni v. Richman, 2008 WL 3408554 (E.D. Pa. Aug. 12, 2008) (No. 07-cv-4600).

 

Zatuchni is a young woman with cerebral palsy and mental retardation. Her parents alleged that the state forced her into an inappropriate facility without informing the family of other options, and as a result she received inadequate care and her condition deteriorated. 42 U.S.C. § 1396n(c)(2)(C) requires that individuals with mental retardation be “informed of the feasible alternatives” to care in a hospital, nursing home or intermediate care facility. In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court held that the ADA requires states to provide care for disabled persons in “the most integrated setting appropriate.”

 

The court stated that § 1396n(c)(2)(C) met the criteria for § 1983 claims under Blessing v. Freestone, 520 U.S. 329 (1997), because:

(1)  is apparent that Congress intended this provision to ultimately benefit individuals likely to require the level of care provided in a hospital, nursing facility, or ICF/MR, such as Plaintiff; (2) the rights to be informed of feasible alternatives for their care and to choose the type of available services they will receive, are clearly delineated by the provision, and are not “vague or amorphous”; and (3) the provision is couched in mandatory terms, stating “[a] waiver shall not be granted under this subsection unless ....”

The provision also contained the clear “rights-creating language” required under Gonzaga Univ. v. Doe, 536 U.S. 273 (2002). The court noted that this provision specifically used the term “individuals,” as did a Medicaid provision found enforceable in Sabree v. Richman, 367 F.3d 180 (3d Cir. 2004). Employing a distinction used by the Gonzaga Court, the court said that the provision at issue “does not focus on the person or entity regulated rather than the individuals protected, it simply speaks to both entities,” just like the provision in Sabree. The court noted that the same result was reached in Ball v. Rodgers, 492 F.3d 1094 (9th Cir. 2007). Indeed, this is consistent with the general trend since Gonzaga: the provisions under which plaintiffs have been most successful have been those that use the term “individual,” or a comparable term like “person” or “family.”

 

The state sought partial dismissal of the ADA and RA claims to the extent that they sought to enforce the integration regulations, arguing that regulations alone cannot create a private right of action. 28 C.F.R. §§ 35.130(d) & 41.51(d) both require that states “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” Relying on Three Rivers Ctr. for Indep. Living v. Hous. Auth. of Pittsburgh, 382 F.3d 412 (3d Cir. 2004) (HUD regulations not enforceable), the court stated that the regulations did not create a private right of action because they contained no rights-creating language. The court’s analysis of the regulations was conclusory, and did not address the fact that they use the term “individuals.”

 

Curiously, in discussing these regulations the court did not mention Olmstead, which interpreted the ADA itself as incorporating the integration mandate of § 35.130(d). On the face of things, it would appear that the court’s conclusion as to the regulations makes no practical difference, since Zatuchni can invoke the same mandate under the ADA and RA themselves (which are interpreted identically).

 

The court also dismissed claims against individual county commissioners, finding that there were insufficient allegations of personal involvement, and that neither the Rehabilitation Act nor Title II of the ADA provide for individual liability.