IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civ. Act. No. 92-M-2409 HELEN KING as Representative- plaintiff, et al. Plaintiffs, v. KAREN BEYE, Acting Director of the Colorado Department of Social Services, et al. Defendants. FEDERAL DEFENDANTS' PRETRIAL BRIEF SETTING FORTH THE APPLICABLE LEGAL STANDARDS UNDER THE ADA AND THE REHABILITATION ACT On February 20, 1996, a bench trial will begin on plaintiffs' claims that Colorado's policy of excluding persons who have both physical and developmental disabilities from its Home and Community-Based Services "waiver" program for the elderly blind and physically disabled ("HCBS-EBD program" or "EBD program") unlawfully discriminates against persons with developmental disabilities 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 of 1973, 29 U.S.C.  794(a). The Court has requested that the parties submit pretrial briefs setting forth the legal standards to be applied at trial. Accordingly, federal defendants Donna Shalala, Secretary of the United States Department of Health and Human Services, and the United States Department of Health and Human Services, submit this brief on the standard of review under the ADA and the Rehabilitation Act. Federal defendants note, however, that they do not plan to otherwise participate at the upcoming trial. Colorado's policy of excluding persons who have both physical and developmental disabilities from the HCBS-EBD program is not pursuant to any federal regulation, and that policy was not otherwise created, required or suggested by the defendants. Moreover, as set forth in federal defendants' motion to dismiss, there is no jurisdiction over federal defendants' with respect to plaintiffs' ADA and Rehabilitation Act claims.1 Although the court has held that proceedings against the federal defendants should be held in abeyance pending determination of the issues between plaintiffs and the state.2 BACKGROUND The Medicaid program authorized by Title XIX of the social Security Act, 42 U.S.C.  1396-1396v, provides federal financial Assistance to participating states, such as Colorado, to help pay For medical assistance to needy persons. See 42 U.S.C.  1396b(a). A state plan may cover institutional services such as _____________________ 1 See Federal Defendants' Motion to dismiss the second Amended Complaint (filed 8/19/93). 2 See Memorandum Opinion & Order at 3 (filed Mar. 17, 1995); Federal Defendants' Response to Plaintiffs' Motion for Summary Judgment at 9 (filed 4/18/94) (citing and attaching Transcript of December 21, 1993 hearing at 31, 47, 49-50 & order Of December 22, 1993). those provided by a nursing facility or intermediate care facility for persons with mental retardation, 42 U.S.C.  1396d(a)(4)(A) & (a)(15); however, under section 1396n(c), the Secretary may by "waiver" permit a state, upon request, to provide "home and community-based services" -- including homemaker and home health aide services, personal care services, and/or habilitation services (see 42 U.S.C.  1396n(c)(4)(B); 42 C.F.R.  440.180) -- to eligible individuals outside of an institutional setting.3 A waiver under this section avoids unnecessary institutionalization (42 C.F.R.  441.300), while reducing or holding steady state and federal costs. See 42 U.S.C.  1396n(c)(2)(D). Waiver programs under section 1396n(c) afford states considerable flexibility in addressing the health care needs of particular groups. Waivers may, for example, include a waiver of certain other Medicaid requirements, 42 U.S.C.  1396n(c)(3); may limit the number of participants, 42 U.S.C  1396n(c)(9) & (10); and may be targeted toward individuals who have a particular illness or condition, 42 U.S.C.  1396n(c)(7). Waiver programs, however, must protect the health and welfare of participants. 42 U.S.C.  1396n(c)(7). __________________________ 3 To be eligible, an individual must be one who, but for the provision of the HCB services, would require the level of care provided in a hospital, nursing facility, or an intermediate care facility for the mentally retarded. 42 U.S.C. S 1396n(c)(1). - 3 - The implementing regulations require that waivers under 42 U.S.C.  1396n(c) be limited to one of the following groups, or a subgroup thereof: (1) aged or disabled, or both; (2) mentally retarded or developmentally disabled, or both; (3) mentally ill. 42 C.F.R.  441.301(b)(6). Importantly, the regulations do not require or suggest that a waiver targeted toward one of these groups exclude persons who fall within both the targeted group and any other group. At issue in this lawsuit are two Colorado Home and Community-Based Services waiver programs, one targeted toward the elderly, blind and physically disabled (HCBS-EBD), and one toward persons with developmental disabilities (HCBS-DD). Under the HCBS-DD program, persons with developmental disabilities, if otherwise eligible, may receive social, habilitative, remedial, residential and health services necessary to prevent them from being subjected to institutional placement. C.R.S.  26-4- 623(4).4 These services are extensive.5 _______________________ 4 Persons with a "developmental disability" are defined as those with a substantial disability, manifested before age 22, "attributable to mental retardation or related conditions which include cerebral palsy, epilepsy, autism, or other neurological conditions when such conditions result in impairment of general intellectual functioning or adaptive behavior similar to that of a person with mental retardation." C.R.S.  27-10.5-102(11)(a); see also Stipulation as to Facts by Plaintiffs and State Defendants ("Stipulation"), P 11. 5 See Exhibit B to Representative-Plaintiffs' Memorandum in Support of Motion for Summary Judgment ("Plts. S.J. Mem."), which includes 2 C.C.R. 503-1,  16.20 et seq., containing descriptions of the services offered under the HCBS-DD waiver. - 4 - Colorado's waiver program for the elderly, blind and physically disabled provides different services, namely adult day care, alternative care services, electronic monitoring, home modification, homemaker services, transportation, personal care, and respite care. C.R.S.  26-4-607(l). These services are less comprehensive than those offered through the waiver for people with developmental disabilities. See Deposition of Brian Lensink, Exhibit F to Plts. S.J. Mem., at 115. Colorado excludes people with developmental disabilities from participation in the HCBS-EBD program, even if they also have physically disabilities, unless the person's need for long term care services is primarily due to physical impairments not caused by a developmental disability.6 The plaintiff subclass of ___________________ 6 Colorado's regulations define persons eligible for the EBD program as: Physically Disabled or Blind Adult - includes all individuals who meet the level of care screening guidelines . . . . Individuals who are developmentally disabled or mentally ill, as defined in 8.401.18, shall not be included in the Physically Disabled or Blind target group, unless the person's need for long term care services is primarily due to physical impairments not caused by any diagnosis included in the definition of developmental disability or mental illness at 8.401.18. 10 C.C.R. 2505-10 S 8.400.16(D). This definition, effective May 1, 1993, is less restrictive toward developmentally disabled persons than that in effect at the time named plaintiffs were denied services under HCBS-EBD. The prior regulation defined the target population for that program as including: all individuals who meet the level of care screening guidelines for SNF [skilled nursing facility] or ICF - 5 - Colorado residents who have both physical and developmental disabilities and who have applied for and been denied HCBS-EBD benefits because of their developmental disabilities alleges that this exclusion violates the ADA, the Rehabilitation Act and the Equal Protection Clause of the U.S. Constitution. In 1994, plaintiffs moved for summary judgment on these claims (as well as on all other claims in the Second Amended Complaint), but the court denied that motion in full. Memorandum Opinion and Order (Mar. 17, 1995).7 With respect to Colorado's policy of denying HCBS-EBD services to persons with both physical and developmental disabilities, the Court held that the key question is whether the exclusion of the developmentally disabled is an "essential eligibility requirement" for the receipt of HCBS-EBD services in Colorado. Stated differently, is the exclusion of dually disabled persons from the HCBS-EBD program necessary for the provision of HCBS-EBD program services? Opinion & Order at 10. Further, the Court held that this was a [intermediate care facility] care, and are not developmentally disabled or mentally ill. 10 C.C.R. 2505-10, 8.400.16(E). ________________ 7 The other claims raised in the complaint fall into the following two categories: (1) that people with developmental disabilities, including those who do not have physical disabilities, have a substantive right to immediate receipt of home and community-based services in the HCBS-DD program (without having to wait on a waiting list), and/or are entitled to access to HCBS benefits that is at least commensurate with that afforded persons with physical disabilities under the HCBS-EBD program; and (2) that Colorado's HCBS-DD program fails to comply with the Medicaid Act and the regulations associated with it. See Opinion & Order at 3. - 6 - question of fact, and that the state defendants would be required to justify the exclusion at trial. Id.8 DISCUSSION As the federal defendants stated in response to plaintiffs' summary judgment motion, a difficult question is presented by Colorado's exclusion of people with both developmental and physical disabilities from the home and community-based services waiver program for the elderly, blind and physically disabled. The State's targeting criteria for the program unquestionably exclude most persons with developmental disabilities from participation even if, absent their developmental disability, ______________________ 8 With respect to the plaintiffs' other two sets of claims, the Court held: (1) that neither the ADA nor the Equal Protection Clause requires Colorado to provide benefits to persons with developmental disabilities in the HCBS-DD program that are commensurate with those provided to groups with other disabilities, and therefore that the delay in providing services to persons eligible for the HCBS-DD program did not appear to constitute unlawful discrimination; and (2) that plaintiffs' myriad claims that Colorado's administration of the HCBS-DD program violates the Medicaid statute and regulations could not be addressed by the Court until the ongoing administrative review by the federal defendants was complete. Memorandum Opinion & Order at 10-12. Federal defendants' administrative review of the DD program was completed in August of 1995, when federal defendants renewed that waiver program with numerous changes. However, at the Court's suggestion, the parties have agreed not to proceed at this time with plaintiffs' claims that the DD program violates the Medicaid statute and regulations because Congress currently is considering drastic changes to the Medicaid program which might alter or eliminate some or all of these claims. - 7 - they would qualify for the program.9 While this general exclusion may not be unconstitutional, it may be illegal under the ADA and Rehabilitation Act unless Colorado can establish at trial that the exclusion is necessary in order to provide the HCBS-EBD program services.10 Both Title II of the ADA and section 504 of the Rehabilitation Act require that "qualified" individuals with disabilities not be denied public benefits "by reason of" their disability.11 The Court has already determined, and there is ______________________ 9 According to the stipulation entered by the state defendants and the plaintiffs: Individuals whose need for long-term care arises from a developmental disability . . . are not considered eligible for HCBS-EBD. This may include individuals with serious physical limitations arising from that condition. Stipulation, P 11. 10 The Court need not address plaintiffs' constitutional claims against Colorado's policy of excluding the developmentally disabled from the EBD program because the applicable "rational basis" standard of review for those constitutional claims is less strict than the standard of review under the ADA and the Rehabilitation Act. If Colorado's exclusion of individuals with developmental disabilities violates those statutes, then the constitutional question is moot. If the exclusion survives under the ADA's and the Rehabilitation Act's heightened standards of review, then it is certainly constitutional. See generally Federal Defendants' Response to Plaintiffs' Motion for Summary Judgment ("Fed. Defs. S.J. Response") at 11-17 (filed 4/18/94). 11 Section 504 provides: No otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, - 8 - little grounds to dispute that, persons with developmental disabilities who also have physical disabilities are excluded from the HCBS-EBD program "by reason of" their developmental disabilities. Opinion & Order at 9. Those with developmental disabilities are excluded from benefits under the HCBS-EBD waiver program even if they have physical disabilities such that the program would be of benefit to them. See Stipulation, P 11. The essential question then is whether persons with developmental disabilities who also have physical disabilities are "qualified" for participation in the HCBS-EBD waiver. Under both the ADA and Rehabilitation Act, a person with disabilities is "otherwise qualified" for a program if, with or without reasonable accommodations, he or she meets the "essential eligibility requirements" for the receipt of services. 42 U.S.C. S 12131(2); 28 C.F.R.  35.104; 45 C.F.R.  84.3(k)(4); see also Southeastern Community College v. Davis, 442 U.S. 397, 406 _______________________ or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. Title II of the ADA, 42 U.S.C.  12132, provides: Subject to the provisions of this title, 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. - 9 - (1979).12 The ADA regulations applicable to state governments provide: A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered. 28 C.F.R.  35.130(b)(8) (emphasis added). Public entities are also required to: make reasonable accommodations 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 services, program, or activity. 28 C.F.R.  35.130(b)(7). In Easley v. Snider, 36 F.3d 297 (3d Cir. 1994), the Third Circuit applied these provisions to uphold under the ADA a state- ____________________ 12 We note that neither the ADA nor the Rehabilitation Act requires that every benefit program provide special benefits to every class of persons with disabilities. Indeed, both the ADA and the Rehabilitation Act specifically authorize government programs targeted to particular subgroups of disabled persons. See 28 C.F.R.  35.130(c) (ADA); 45 C.F.R.  84.4(c) (Rehabilitation Act); Traynor v. Turnage, 485 U.S. 535, 549 (1988) ("There is no requirement in the Rehabilitation Act that requires that any benefit extended to one category of handicapped persons also be extended to all other categories of handicapped persons."); Knutzen v. Eben Ezer Lutheran Housing Center, 815 F.2d 1343, 1353-54 (10th Cir. 1987) (federally funded housing program may tailor its services to match a particular group of eligibles and limit its services to that group). Thus, for example, both the ADA and the Rehabilitation Act permit Colorado to exclude those persons with developmental disabilities who do not have physical disabilities from the EBD program. Such persons are not qualified for that program. - 10 - funded program for persons with physical disabilities that excluded persons who are not "mentally alert." Pennsylvania's Attendant Care Program (ACP) provided attendant care services to individuals with physical disabilities to "enable an eligible individual to live in his home and community rather than in an institution and to carry out functions of daily living, self-care and mobility." 36 F.3d at 300, quoting 62 Pa. Stat. Ann.  3053. The program defined eligible persons as persons aged 18 through 59, who are physically disabled but "mentally alert." Id. at 299. First, the court found "that personal control was essential to the program and that mental alertness is a necessary requirement for the receipt of the program's essential benefit." Id. at 303. Although the record demonstrated that the non- mentally alert plaintiffs could benefit from the program, the court found that the fundamental goal of the program was to provide greater personal control and independence for persons with physical disabilities and that this goal would not be achieved by offering the services to those who are not mentally alert. Id. at 304.13 The court then went on to consider whether the state could ____________________ 13 The district court had reached the opposite conclusion. That court found that the primary goals of the program -- providing more independence to participants and avoiding institutionalization -- would be advanced by extending the program to the non-mentally alert. Easley v. Snider, 841 F. Supp. 668, 675 (E.D. Pa. 1993). - 11 - make reasonable modifications to the program that would permit it to meet its goals while serving those who are not mentally alert. The plaintiffs claimed that the state could reasonably modify the program by providing surrogates for the non-mentally alert. The court disagreed, finding that this modification would "change the entire focus of the program," creating "a program that the State never envisioned when it enacted the Care Act." Id. at 305. The court thus reversed the district court's finding of liability. By contrast, in Wagner v. Fair Acres Geriatric Center, 49 F.3d 1002, 1009 (3d Cir. 1995), the Third Circuit applied the same two-part test to uphold a jury's finding that a woman suffering from Alzheimer's disease was qualified for services in a state-run nursing home and that the facility's failure to modify the program to accommodate her was not reasonable, in violation of the Rehabilitation Act. The court found that the nursing home had failed to demonstrate that it could not make reasonable modifications to its program that would allow it to serve the plaintiff. 49 F.2d at 1016. If this Court applies here the two-part analysis followed by the Third Circuit, the State will have to demonstrate (1) that limiting the HCBS-EBD program to persons without developmental disabilities is essential to meet the goals of the program and to provide the services it offers, and (2) that the State cannot modify the program to accommodate the plaintiff subclass without fundamentally altering the nature of the program and the services - 12 - it offers. The State may be able to meet this burden if, for example, Colorado can show that the health and safety of persons with developmental disabilities could not be adequately protected under the HCBS-EBD program, even with reasonable modifications, or that the program's services, even with reasonable modifications, would not prevent the institutionalization of the plaintiff subclass. On the other hand, if Colorado cannot demonstrate both that the exclusion is necessary to meet the program's goals and that altering the program to accommodate the plaintiff subclass would require a fundamental modification of the nature of the program, then the Court should find the exclusion unlawful. Respectfully submitted, FRANK W. HUNGER Assistant Attorney General HENRY L. SOLANO United States Attorney CHALK S. MITCHELL Assistant United States Attorney (Signature) JESSICA A. LERNER Trial Attorney SHEILA M. LIEBER Deputy Branch Director Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 901 E Street, N.W., Room 1086 Washington, D.C. 20044 Telephone: (202) 514-4263 Attorneys for Federal Defendants - 13 - Of Counsel: Barbara Fisher Office of the General Counsel Dept. of Health and Human Services 500 East High Rise 6325 Security Blvd. Baltimore, MD 21207 DATED: February 5, 1996 - 14 - CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served this 5th day of February, 1996, by U.S. Mail on: Rene Rosechild Mary Catherine Rabbitt Peter Komlos-Hrobsky Legal Aid Society of Metropolitan Denver 1905 Sherman St., Suite 400 Denver, Colorado 80203 David Bye Colorado Rural Legal Services 424 Pine St., Suite 105 Fort Collins, Colorado 80524 Kristen A. Kutz Legal Center Serving Persons with Disabilities 455 Sherman Street, Suite 130 Denver, Colorado 80203 Wade Livingston First Assistant Attorney General Stacy L. Worthington Assistant Attorney General Human Resources Section 1525 Sherman St., 5th Floor Denver, Colorado 80203 (Signature) Jessica A. Lerner