CHAPTER
7: DISCRIMINATION BY REASON OF SUCH DISABILITY |
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Chapter 7: Discrimination by Reason of Such Disability
A.
In General
Title II prohibits discrimination "by reason of such
disability.”[465]
This prohibition covers a wide range of actions, including: intentional
and unintentional discrimination;[466]
less favorable treatment of one individual because of disability;[467]
and less favorable treatment of a group of people with all,[468] some,[469]
or one particular [470]
disability. It also
includes the failure to provide reasonable modifications,[471] and a failure to comply with all of the other
requirements in the Title II regulations.
Some courts have held that it also prohibits discrimination between
disabilities, that is, less favorable treatment of a group of
individuals with one disability as compared with those with other
disabilities,[472] and a majority of the Supreme Court agrees.[473] Some
courts have held that it prohibits discrimination on the basis of
severity of disability,[474] which often takes the form of giving less
favorable treatment to individuals with severe disabilities compared to
those that are less severe. It includes both explicit disparate treatment on the basis of
disability,[475]
and, as discussed in detail below, rules and requirements that do not
refer to disability at all, being "neutral on their face,” but
nonetheless have a disproportionately negative effect on people with
disabilities. One example
of a facially neutral rule with a discriminatory effect on people with
disabilities is a rule requiring people to show a drivers' license as
the only accepted means of identification.
This would have a disparate impact on people with particular
conditions such as visual impairments, some musculoskeletal conditions,
and other disabilities who are far less likely as a group to have
drivers' licenses.
(i) Disparate Treatment Under Title II
Disparate treatment occurs when a program refers to one or more
disabilities explicitly and treats people with these disabilities less
favorably in some way. A rule excluding all blind people from jury
service is one example.[476]
A state Medicaid managed care program that explicitly excludes
people with disabilities from participation is another.[477]
One might expect that overt unfavorable disparate treatment on
the basis of disability would be easy to challenge.
However, there are five common (often interrelated) obstacles to
disparate treatment claims.
First, defendants sometimes argue that the ADA and Section 504 do
not reach differential treatment between people with different disabilities and only prohibit
distinctions made between people
with disabilities and those without them.[478] Most
of these arguments stem from a broad interpretation of Traynor
v. Turnage,[479]
a case in which the Supreme Court stated in dicta that the "central
purpose” of Section 504 is "to assure that handicapped individuals
receive even-handed treatment in relation to non-handicapped
individuals.”[480] This
argument has suffered a serious blow as a result of Olmstead
v. L.C.,[481] a Title II case in which four Justices
explicitly rejected a similar argument, stating "we are satisfied that
Congress had a more comprehensive view of the concept of discrimination
advanced in the ADA,”[482] and a fifth Justice implicitly rejected it.[483]
The plurality noted that Title VII has been held by the Court to
prohibit discrimination "because of” sex, even when the person who
discriminated and the plaintiff are the same sex,[484]
and the Age Discrimination in Employment Act has been held to prohibit
discrimination "because of” age when the person hired instead of the
plaintiff was also in the protected class.[485]
Thus there is a strong argument that a majority of the Court has
already embraced the view that in ADA cases, it is the reason for the
treatment and not the identity of a comparison group that is relevant.
Second, the argument is sometimes made that agencies are allowed
to provide specialized services that people with particular disabilities
need and have no obligation to provide other types of specialized
services that people with every other disability need.[486]
Medical specialists, for example, are allowed to specialize in
treating particular types of disorders and are not discriminating
against people with other types of disorders that are outside their area
of expertise if they refer them elsewhere.[487] But when a program does not provide specialized
services that people need because of their particular disabilities, it
is not accurate to characterize the service as "specialized.”
It is the qualitative nature, and not the amount of services that
is relevant to the "specialized services” exception.
Third, defendants argue, relying on Traynor,
that "there is nothing in the Rehabilitation Act that requires any
benefit extended to one category of handicapped persons also be extended
to all other categories of handicapped persons.”[488] Sometimes the rationale for this argument is
that the agency had no obligation to provide the service at all or no
obligation to provide the service in any particular amount, and thus it
isn't discriminatory to provide the service in a manner that leaves
some or all people with disabilities with less than others.
One court reasoned that since a program would be allowed to give all
of the participants less, it could not possibly be discriminatory to
give people with some disabilities more than they give to others,
because Section 504 "cannot forbid partial limits that leave some
disabled individuals better off and the remainder no worse off.”
Holding otherwise, according to the court, would create an incentive for
programs to provide less to everyone.[489]
Sometimes courts also simply rely on Traynor
as support for this argument without further justification.[490]
Advocates can argue in response that under the ADA and Section
504, regardless of whether a program is an entitlement, once an agency
decides to provide a program or service, it must do so in a way that
does not discriminate against people with disabilities.[491]
Moreover, it is a poverty of imagination to accept the premise
that there are only two ways to allocate services - one that gives
everyone the same amount and another that gives only some people with
disabilities more than others.
Traynor, moreover, is
factually distinguishable from most ADA and Section 504 cases.
Traynor was a Section 504 challenge to a Veterans Administration
(VA) regulation that gave an extension of time to apply for a VA benefit
to most people with disabilities, but excluded some individuals with
alcoholism from the extension.[492]
Thus, the plaintiffs tried to use the Rehabilitation Act to challenge
the design of a federal program permitted by another federal law.
The Court's analysis was based on the relationship between the
Rehabilitation Act and the other federal law, and the fact that Congress
amended the Rehabilitation Act to make it applicable to federal agencies
shortly after the VA regulation in question was promulgated, but said
nothing about the VA regulation at the time. As "repeals by
implication are disfavored”[493]
and the Rehabilitation Act would not be "rendered meaningless”
because the VA regulation and the Act were not in direct conflict, the
Court reasoned that it would not be appropriate to assume Congress
intended Section 504 to invalidate the VA regulation.[494]
In explaining why there was no direct conflict between the two
statutes, the Court noted that the VA policy was not discriminatory
because, by granting people with most disabilities extensions of time
that were not available to others, it was on the whole more favorable to
people with disabilities than to others.[495] As most Rehabilitation Act claims do not involve
challenges to federal regulations, and the ADA does not even apply to
federal agencies or their programs, the potential conflict between the
Rehabilitation Act and another federal law will not exist in most ADA
and Section 504 claims.
Fourth, defendants sometimes argue that Section 504 and the ADA
do not reach the design of services but only whether "equal access”
to the service was provided. This
argument has been made in a number of cases challenging insurance
policies that exclude or limit coverage for particular conditions while
providing coverage for others. A
number of courts have accepted this argument,[496] though others have not.[497]
Applied to TANF, this would mean TANF programs could provide 30 months
of cash assistance to most TANF recipients but only 15 months of cash
assistance to TANF recipients with disabilities, or TANF recipients with
particular disabilities such as HIV or psychiatric disabilities. Given
the nature of insurance and the fact that it is treated somewhat
differently than other employee benefits in the ADA,[498]
this type of argument probably is far less likely to be made or accepted
in public benefits cases.
Finally, defendants argue, and some courts agree, that even when
people with disabilities have been given less favorable treatment than
others, there has been no discrimination because the services provided
to people with disabilities and those provided to others are two
separate programs, and comparison is therefore not appropriate.[499] In Does
1-5 v. Chandler,[500]
the Ninth Circuit held that California's general assistance benefits
for dependent children was one program and general assistance benefits
to people with disabilities was another, and consequently that there was
no discrimination even though people with disabilities were entitled to
only one year of benefits while dependent children were entitled to
unlimited benefits (as long as they remained dependent children).
In Weaver v. New Mexico
Human Services Department,[501]
a case with identical facts, the Supreme Court of New Mexico held that
general assistance to dependent children and people with disabilities
were one program, and the disparity in benefits given to these two
populations discriminated against people with disabilities.[502]
(ii)
Disparate Impact Under Title II
Because there are an infinite number of ways that program rules
and requirements and program design can have a disparate impact on
people with disabilities, disparate impact discrimination is far more
common than disparate treatment. Understanding
the concept, its application to people with disabilities, and its
limits, is therefore essential.
Title II prohibits discrimination "by reason of such
disability.”[503]
This language is different from the language used in Section 504, which
includes the phrase "solely
by reason of … disability.”[504]
Congress employed the phrase "by reason of such disability,”
which is used in the Section 504 regulations of some federal agencies,
and rejected the "solely by reason of” language of Section 504, to
prevent courts from interpreting Title II too narrowly. Some courts have
interpreted the "solely by reason of” language in Section 504
narrowly to exclude some types of disparate impact discrimination from
the reach of Section 504.[505]
As Congress deliberately used different language in Title II,
advocates should argue that the restrictive Section 504 decisions on
this issue do not apply to ADA claims.[506] The ADA legislative history notes that a literal
interpretation of the "solely by reason of” language would lead to
"absurd results,”[507] such as excluding from the reach of Section 504
discrimination based on two impermissible bases (i.e., disability and
race).
Title II regulations unambiguously prohibit disparate impact
discrimination. The
prohibitions on using criteria or methods of administration "that have
the effect of subjecting qualified individuals with disabilities to
discrimination on the basis of disability” or 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”[508]
plainly bring disparate impact discrimination within the reach of Title
II. Many other provisions
of the Title II regulations, such as the prohibition on giving qualified
individuals with disabilities an opportunity to participate in programs
and services "that is not as effective in affording equal opportunity
to obtain the same result, to gain the same benefit, or to reach the
same level of achievement as that provided to others,”[509]
applies to both disparate treatment and disparate impact.
The legislative history of Title II refers to Alexander
v. Choate,[510]
a Section 504 case in which the Supreme Court "assume[d] without
deciding” that program design features having a disparate impact on
people with disabilities could violate Section 504 of the Rehabilitation
Act.[511] The
legislative history of the ADA states that Congress intended to
incorporate the Choate
analysis into the ADA.[512]
Advocates should therefore have a detailed understanding of Choate.
In Choate, plaintiffs
with disabilities challenged a reduction in coverage for inpatient care
under Tennessee's Medicaid program, which reduced coverage from 20 to
14 days per year. Plaintiffs
argued that the reduction had an adverse effect on people with
disabilities who on the whole need more hospital care.
The Court rejected this challenge, but indicated that some rules
and requirements with a disparate impact can violate Section 504.[513]
The Court began its analysis by noting that when Congress enacted
Section 504, it believed that much of the discrimination against people
with disabilities was not the result "invidious animus, but rather of
thoughtlessness and indifference—of benign neglect.”[514]
Moreover, the Court observed, many of the problems Congress
sought to address in Section 504, such as eliminating architectural
barriers, could not be addressed if Congress intended to reach only
conduct motivated by discriminatory intent. [515]
But the Court rejected the idea that Section 504 reached all
conduct with a disparate impact on people with disabilities. It reasoned
that people with disabilities "typically are not similarly situated”
to others and that such an interpretation "would in essence require
each recipient of federal funds first to evaluate the effect on the
handicapped of every proposed action that might touch the interests of
the handicapped, and then to consider alternatives for achieving the
same objectives with less severe disadvantage to the handicapped,”
which "could lead to a wholly unwieldy administrative and adjudicative
burden,” and be "boundless.”[516] The
Court compared this second type of standard to a requirement that
federal grantees prepare "handicapped impact statements before any
action was taken that affected the handicapped,” which it said there
was no evidence Congress intended.
Therefore, it reasoned, Section 504 must be interpreted to give
effect to the statutory objectives of the Act and "the desire to keep
Section 504 in manageable bounds,” so that neither goal "overshadows
the other as to eclipse it.”[517]
The Court also spoke of the need to "str[ike] a balance between
the statutory rights of the handicapped to be integrated into society
and the legitimate interests of federal grantees in preserving the
integrity of their programs.”[518] The
Court struck that balance in Choate
by holding that under Section 504, an otherwise qualified handicapped
individual must be provided with "meaningful access to the
benefit that the grantee offers.”[519]
On the facts before it, the Court held that there was no
violation of Section 504 because people with disabilities were not
denied meaningful access to or excluded from the Medicaid program.
Even though 27.4 % of people with disabilities who received
Medicaid and used hospital care during a recent year needed more than 14
days of hospital care a year as compared with 7.8 % of Medicaid
recipients without disabilities using such care,[520] the Court held that the 14 day inpatient limit
did not deny meaningful access because: (1)
the coverage limit did not use criteria that have a "particular
exclusionary effect” on people with disabilities.[521] (2)
the coverage limit was "neutral on its face” and did not distinguish
between those whose coverage will be reduced and those whose coverage
will not be on the basis of any test, judgment or trait that people with
disabilities as a class are any less capable of meeting or less likely
of having.[522] (3)
there was no evidence on the record that people with disabilities
"will be unable to benefit meaningfully from the coverage they will
receive under the 14 day rule.”[523]
The Court noted that "[t]he record does not contain any
suggestion that the illnesses uniquely associated with the handicapped
or occurring with greater frequency among them cannot be effectively
treated, at least in part, with fewer than 14 days' coverage.”[524]
(4)
the coverage limit would leave both people with disabilities and others
with identical and effective services fully available for their use,
with both classes of users subject to the same limitation.[525]
The Court in Choate also noted that the Medicaid statute contained no
"guarantee that each recipient will receive that level of health care
precisely tailored to his or her particular needs,”[526]
and noted that the federal Medicaid statute gave states "substantial
discretion to choose the proper mix of amount, scope and duration
limitations on coverage, as long as care and services are provided in
‘the best interests of the recipients.'”[527]
Two other aspects of Choate are noteworthy. Although
hospital users with disabilities were far more likely to need more
hospital coverage than was provided to hospital users without
disabilities, only 5 % of Medicaid recipients with disabilities needed
more hospital coverage than was provided.[528] Presumably this was because the percentage of
Medicaid recipients with disabilities who received any hospital care was
small. The Supreme Court's mention of these statistics may indicate
that the Court was swayed in part by the fact that the overall
percentage of people whose hospital care needs would not be fully met
was small.
Few cases discuss the Choate "meaningful access” standard in detail.
As a result, there is little case law on the question of when a
barrier to access is sufficiently severe to constitute disparate impact
discrimination. A complete
exclusion of a class of people with disabilities from a program has been
held to be a denial of meaningful access,[529] though it is not necessary to prove a denial of
meaningful access.[530] A
four-month exclusion from a program[531]
and "substantially
limit[ing]” choices as compared with others[532]
have been held to constitute a denial of meaningful access.
Few cases discuss statistical evidence.
Choate is a mixed
blessing, because although it makes clear that disparate impact
discrimination is actionable under Section 504 (and by extension, the
ADA), it also gives ample discretion to states in designing their
programs as they see fit, particularly when federal law gives states
substantial flexibility in program design.
Choate is a benchmark for courts on disparate impact claims, so
advocates should always consider the extent to which a potential claim
differs factually from Choate.
The greater the similarity, the more difficult it will be.
(iii) What Must Be Disparate, and How Disparate Must the Impact
Be?
Many facially neutral policies negatively affect people with
disabilities for reasons related to their disabilities and affect people
without disabilities for other reasons. For example, a rule requiring people to fill out written
forms to obtain services, coupled with a failure to provide help with
these forms, will be a barrier to services to some people with learning
disabilities, mental retardation, visual impairments, and other
impairments, because these disabilities make reading, writing, and
seeing difficult. This same
rule will create a barrier to services to people without disabilities
who have difficulty reading and writing for other reasons, such as
inadequate education. This raises a number of critical questions. If the total
number of people without disabilities who experience the rule as a
barrier is the same or greater than the number affected for
disability-related reasons, is there an valid ADA claim?
Are comparison groups even necessary for ADA disparate impact
claims? How relevant are numerical disparities in disparate impact
claims? Can the nature of the impact on people with disabilities
constitute disparate impact without regard to the number or percentage
of people affected in a comparison group?
The answer is that the law is not consistent or clear. In Choate,
the Court obviously treated the percentages of people with and without
disabilities who were negatively affected by the coverage limit as
relevant. However, not all
of the four disparate impact criteria mentioned in Choate
require a disparity in the number or percentage of people with and
without disabilities. The third criterion focuses on whether the
absolute amount of the benefit provided is meaningful, and the fourth
focuses at least in part on the nature of the program restriction.
Thus Choate suggests
that some types of disparate impact do not require proof of a disparity
in the number or percentage of people with and without disabilities that
are adversely affected by a rule or requirement.
The common sense meaning of the phrase "meaningful access”
also suggests that it should be possible to show a denial of meaningful
access without any consideration of the experiences of others.
Title II regulations, however, do not use the phrase
"meaningful access,” but they prohibit programs from providing
benefits, services or opportunities that are "not equal” to those
provided to others, or which are not as effective in providing an equal
opportunity to gain the same benefit or level of achievement as that
provided to others.[533] A
comparison group is obviously necessary for claims under these sections
of the regulations. Very few courts have addressed the relationship between the
"meaningful access” requirement of Choate
and the requirements in the Title II regulations. A few have and have
come to opposite conclusions.[534]
In fact, some courts do not discuss comparison groups in
disparate impact cases at all. In Crowder v. Kitigawa,
for example, the Ninth Circuit held that Hawaii's 90 day animal
quarantine law was discriminatory because of its exclusionary effect on
people with disabilities who use service animals without mentioning the
number or percentage of people without disabilities who have animals who
were also excluded from the state, or the number or percentage people
with visual disabilities who do not use guide dogs and were not affected
by the law. The court made
only a vague reference to comparisons when it noted that the law imposed
a burden on people with disabilities that was "different and
greater” than for others.[535]
The nature of the harm caused by the discrimination also has an
effect on the approach taken by courts. When the impact of
discrimination is the complete exclusion of people with particular
disabilities from a program, courts may believe there is less need to
compare percentages of people with and without disabilities who are
adversely affected by a rule or policy.
In Crowder, for
example, the result of the quarantine law was the complete exclusion of
guide dog users from the state for three months.
Moreover, it was beyond dispute that the quarantine law caused
the exclusion, and that the exclusion was "by reason of” disability.
In other cases, courts may require a showing of a
disproportionately negative impact on people with disabilities as
compared with others as this is the only way to prove that the negative
effect of the policy on people with disabilities is "by reason of”
disability. In Choate,
everyone was given the same number of days per year of Medicaid coverage
for hospitalization, and the discrimination claim was based on the fact
that, on the whole, people with disabilities had a greater need for
hospitalization. Thus,
disparities in hospital use between people with and without disabilities
was the primary evidence that the rule had a disparate impact on people
with disabilities. Even
when a comparison group is required, advocates can argue that policies
and practices that have an adverse impact on people with disabilities
are not acceptable under the law just because they have an incidental
affect on people without disabilities.[536]
Advocates have a strong argument that in some types of ADA
claims, comparison groups should not be necessary.
In claims involving the failure to provide reasonable
modifications, for example, there should be no need for a comparison
group, because the nature of the discrimination is that one or more
individuals with disabilities were denied the right to something that is
needed in order to have a meaningful or equal opportunity to participate
in and benefit from the program or service.
Therefore, advocates can argue that the focus of the inquiry
should be on whether the modification sought is reasonable, not on a
comparison between the treatment of or benefits for people with
disabilities and others. Indeed, a plurality of the Supreme Court arguably embraced
this approach in Olmstead,
when it rejected the argument that the plaintiffs should be compared to
a group of individuals without disabilities,[537]
though it discussed comparison groups elsewhere in the opinion.[538]
In addition, the failure to provide reasonable modifications was
not the only ADA claim in Olmstead,[539]
and the opinion does not clearly state which ADA claim the Court was
addressing when it rejected the need for a comparison group.
At least one federal district court has embraced the view that
comparisons to people without disabilities are not necessary in claims
involving the failure to provide reasonable modifications.[540]
However, in another case brought in the same circuit, the Court of
Appeals held that it was not an abuse of discretion to deny a
preliminary injunction to plaintiffs because comparison data on access
to the program by people with disabilities was not presented to the
court.[541]
Obviously, considering the impact of a policy or practice on a
comparative group of people without disabilities, or omitting this
comparison, will make an enormous difference to the outcome of a case.
However, given existing case law, it is difficult to predict
which approach courts will take in a particular case. Advocates should
assume that when the impact of a policy is the complete exclusion of
some people with disabilities from a program for reasons that are
obviously related to their disability, courts will probably be less
likely to require proof of numerical disparities.
This Manual also assumes that when the challenge is to the amount
of a benefit or service, courts are probably more likely to require
proof of numerical disparities. In
some instances the Manual assumes that advocates would seek to make a
particular legal argument on behalf of a class, and a court would
consider the effect of the program feature on a comparison group. If the
same claim was made for only one person and there is an obvious
connection between the individual's disability and the adverse impact,
courts may be less likely to consider the effect on comparison groups
and so the claim may be easier to pursue.
(iv) Disparate Impact Discrimination in Public Benefits Programs
A number of cases have challenged disparate impact discrimination
in public benefit programs, with mixed success.
As with so many Title II ADA cases, the decisions in most of
these cases turn not on whether the disparate impact was sufficient to
constitute discrimination, but on the application of other ADA concepts.
In addition, courts have reached opposite results on identical
facts, making the outcome of litigation difficult to predict.
Two cases specifically address "neutral” eligibility rules
under the AFDC program. Under
the former AFDC program, states had the option to provide AFDC benefits
to children who were 18 years old if they were full-time students in
secondary school (or an equivalent) and were reasonably expected to
graduate before the age of 19.[542]
Plaintiffs in two different states that
opted to provide this coverage challenged this requirement on
behalf of children with learning disabilities who, as a result of their
disabilities, were 18 and not expected to graduate by the age of 19.
In one case,[543] the Vermont Supreme Court held that the
graduation requirement was not fundamental to the AFDC program and
extending benefits was a reasonable modification. In another,[544]
a federal district court held that this requirement was an essential
program requirement that neither the state nor the federal government
could waive.[545]
(v) Other Trends in ADA Disparate Impact Cases
Advocates have generally had greater success in disparate impact
cases challenging program administration or design features that exclude
people with disabilities from programs altogether or that adversely
affect initial access to services,[546] and more difficulty when people with
disabilities and others receive some services and the harm is the result
of the amount or duration of services provided.[547]
Obviously, it is easier to prove denial of meaningful access when
some people are getting nothing. Program
cuts and service reductions that affect both people with disabilities
and others, like those in Choate,
are also generally more difficult to challenge. Since everyone is being
hurt to some extent, it is necessary to prove that people with
disabilities are being hurt more than others to such an extent that it
rises to the level of discrimination.[548]
It will often be easier to prove denial of meaningful access in
an individual case than to prove it for a class of people.
Aggregate data showing the percentage of people with and without
disabilities who are adversely affected by a policy or practice may not
convey the degree of harmful impact on those individuals who did
experience a barrier to services,[549] and it may be difficult to prove a causal link
between program design features and disparate impact on a group of
people with disabilities.[550]
B. Discrimination By Reason of Disability in TANF Programs
TANF program rules and practices at every step of the program,
from the application process to access to support programs, and to time
limits for benefits, may have a disparate impact on people with
disabilities. Given the
observations above, it is likely that cases on behalf of individual
clients in the TANF program on the whole have a greater chance of
success than class actions, and cases challenging the application
process, diversion practices, and other factors affecting access to TANF
benefits have a greater chance of success than challenges to benefit
time limits.[551]
There are a few issues that are relevant for a number of
different ADA challenges to the TANF program.
One is discussed below.
(i) The Significance of the High Percentage of People with
Disabilities in the TANF Population
Title II requires public entities to make reasonable
modifications "when the modifications are necessary to avoid
discrimination on the basis of disability.”[552] This phrasing makes clear that public entities
must not only provide reasonable modifications to address existing
discrimination, but also take pre-emptive action to prevent
discrimination from occurring. One question raised by this provision is how certain
plaintiffs must be that discrimination will occur in the absence of
modifications. When
advocating for an individual client, there may be particular facts
indicating that the client will suffer some harm if an accommodation is
not provided. When
advocating for a group, these types of facts may be more speculative.
This is where studies on the prevalence of disabilities among
welfare applicants and recipients may be particularly helpful to
advocates. Although the
percentages of welfare recipients found to have particular physical or
mental conditions varies from study to study, there is no dispute that
if one takes into account all of the different disabilities prevalent in
the TANF population, it is likely that more than half of the families
applying for or receiving TANF benefits have at least one individual who
has a physical, mental, or developmental condition that may qualify as a
disability under the ADA.[553]
Given this fact, there is near certainty that many TANF program policies
and practices will have a discriminatory effect on people with
disabilities if the policies are not modified in a variety of ways for
people with disabilities. This
should strengthen arguments that preventive modifications through
systemic changes are required even in the absence of individual
plaintiffs with particular disabilities or needs. Back to the top [467]. See, e.g., Blesdoe v. Palm Beach County Soil and Water Conservation Dist., 133 F.3d 816 (11th Cir.), cert. denied, 525 U.S. 826 (1998) (individual with knee injury can sue a public employer under Title II). [468]. See, e.g., Burns-Vidlak v. Chandler, 939 F. Supp. 765 (D. Haw. 1996) (state Medicaid managed care program that excluded people with blindness and other disabilities discriminated against people with disabilities), appeal dismissed, 165 F.3d 1257 (9th Cir. 1999); Concerned Parents to Preserve Dreher Park Ctr. v. City of West Palm Beach, 884 F. Supp. 487 (S.D. Fla. 1994) (elimination of recreational programs for people with mental and physical disabilities but not other recreational programs was discriminatory). [469]. See, e.g., Lightbourn v. Garza, 928 F. Supp. 711 (W.D. Tex. 1996), rev'd on other grounds, 118 F.3d 421 (5th Cir.), vacated, 127 F.3d 33 (5th Cir. 1997) (challenging discrimination and failure to accommodate people with blindness and mobility impairments in voting process). [470]. See, e.g., Clarkson v. Coughlin, 898 F. Supp. 1019 (S.D N.Y. 1995) (failure to accommodate hearing impaired inmates violated Title II); Tugg v. Towey, 864 F. Supp. 1201 (S.D. Fla. 1994) (failure to provide mental health counselors proficient in sign language for people with hearing impairments violated Title II). [472]. See, e.g., King v. Weil, No. 92-M-2409 (D. Colo. June 26, 1996) (policy of excluding people with physical and developmental disabilities from Medicaid home and community-based waiver program violates Title II); Bosteder v. Soliz, No. 93-2-01817-4 (Sup. Ct. Wash. Feb. 3, 1994) (policy of refusing to provide Medicaid personal care to individuals with psychiatric disabilities violates Title II); but see, Flight v. Gloeckler, 68 F.3d 61 (2d Cir. 1995) (Section 504 case). [473]. See Olmstead v. L.C., 527 U.S. 581, 602 (1999). Four Justices explicitly endorsed this position and a fifth implicitly did by supporting affirmation of the Court of Appeals opinion. [474]. See, e.g., Plummer v. Branstad, 731 F.2d 574 (8th Cir. 1992); Clark v. Cohen, 613 F. Supp. 684, 692 (E.D. Pa. 1985), aff'd on other grounds, 794 F.2d 79 (3d Cir.), cert. denied, 479 U.S. 962 (1986); Messier v. Southbury Training Sch., 1999 U.S. Dist. LEXIS 1479, at *10 (D. Conn. Jan. 5, 1999); Homeward Bound, Inc. v. Hissom Mem'l Ctr., 1987 U.S. Dist. LEXIS 16866 (N.D. Okla. July 24, 1987); Martin v. Voinovich , 840 F. Supp. 1175 (S.D. Ohio 1993). [475]. See, e.g., Howard v. Dep't of Soc. Welfare, 655 A.2d 1102 (Vt. 1994); Bingham v. Oregon Sch. Activities Ass'n, 37 F. Supp.2d 1189 (D. Or. 1999). Disparate treatment is not the same thing as intentional discrimination. Some courts, however, appear to confuse these concepts. See, e.g., Harding v. Winn Dixie Stores, Inc, 907 F. Supp. 386 (M.D. Fla. 1995). [477]. See, e.g., Burns-Vidlak v. Chandler, 939 F. Supp. 765, 773 (D. Haw. 1996); see also King v. Weil, No. 92-M-2409 (D. Colo. June 26, 1996) (exclusion of people with both physical and developmental disabilities from Medicaid Home and Community-Based Waiver program violates Title II). [478]. See, e.g., Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997) (en banc), cert. denied, 522 U.S. 1084 (1998); Rogers v. Dep't of Health and Envt'l Control, 174 F.3d 431 (4th Cir. 1999); Ulrich v. Senior and Disabled Servs. Div'n, 989 P.2d 48 (Or. Ct. App. 1999). [486]. See, e.g., Easley v. Snider, 36 F.3d 297, 301 (3d Cir. 1994); Doe v. Colautti, 592 F.2d 704, 708-09 (3rd Cir. 1979). [487]. See 28 C.F.R. § 36.302(b)(2) (1999) (Title III regulations); 45 C.F.R. § 84.4 (Section 504 regulations for HHS); 45 C.F.R. pt. 84 app. A subpart F § 84.23 (1999) (interpretive guidance to HHS Section 504 regulations). [488]. Traynor, 485 U.S. at 549. For cases adopting this rationale, see Modderno v. King, 82 F.3d 1059 (D. C. Cir. 1996); Ulrich v. Senior and Disabled Dep't Servs. Div'n, 989 P.2d 48, 51 (Or. Ct. App. 1999). [490]. See, e.g., Easley, 36 F.3d at 305; Cramer v, Chiles, 885 F. Supp. 1545, 1552-53 (M.D. Fla. 1995), aff'd on other grounds, 117 F.3d 1258 (11th Cir. 1997). [496]. See, e.g., Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 562 (7th Cir. 1999), cert. denied, 120 S. Ct. 845 (2000); Ford v. Schering Plough Corp., 145 F.3d 601, 612-614 (3d Cir. 1998), cert. denied, 525 U.S. 1093 (1999); EEOC v. CNA Ins. Co., 96 F.3d 1039, 1044 (7th Cir. 1996), cert. denied, 119 S. Ct. 850 (1999); Brewster v. Cooley Assocs., No. 97-CV-00058, 1997 U.S. Dist. LEXIS 21434, at *1 (D.N.M. Nov. 6, 1997). [497]. See, e.g., Doukas v. Metro. Life Ins. Co., 950 F. Supp. 422, 425-26 (D.N.H. Nov. 6, 1996); Cloutier v. Prudential Ins. Co. of Am., 964 F. Supp. 299, 305-06 (N.D. Calif. 1997); Schroeder v. Connecticut Gen. Life Ins. Co., 1994 U.S. Dist. LEXIS 21298 (D. Colo. Apr. 22, 1999). [498]. The ADA permits differential treatment in insurance on the basis of disability when there is an actuarial basis for this differential treatment. See 42 U.S.C.A. § 12201(c) (West 2000). [499]. See, e.g., Doe v. Colautti, 592 F.2d 704, 708-709 (1979) (holding that Medicaid coverage for physical illness and mental illness were two separate programs, and it was not discriminatory to provide unlimited coverage for private inpatient medical treatment but only 60 days of coverage for private inpatient mental health treatment as long as people with mental disabilities had equal access to private hospitals for treatment of physical illness); Rodriguez v. DeBuono, 197 F.3d 611, 618 (1999), cert. denied, 2000 US LEXIS 5735 (U.S. Oct. 2, 2000) (in a challenge to a Medicaid personal care program that provides safety monitoring for physical disabilities but not mental disabilities, the court defines the service sought by plaintiffs as "independent safety monitoring,” i.e., safety monitoring without other personal care services, and held that there was no discrimination because this service wasn't provided to anyone). [505]. See, e.g., Sandison v. Michigan High Sch. Athletic Ass'n. Inc., 64 F.3d 1026, 1033 (6th Cir. 1995) (holding that rule prohibiting students from participating in inter-school competitive sports after they reached age 19 did not discriminate "solely on the basis of . . disability” against learning disabled students who attended school to a later age as a result of their disabilities because the limitation was on the basis of age, not disability, and learning disabled students could participate until age 19); Flight v. Gloeckler, 68 F.3d 61 (2d. Cir. 1995) (holding that vocational rehabilitation agency rule providing a higher reimbursement for van modifications to people with disabilities who drove vans than to people with disabilities who were passengers in vans did not discriminate "solely by reason of . . . . disability” because the rule did not classify on the basis of diagnosis but on the basis of the functional effects of disability); Rhodes v. Ohio High Sch. Athletic Ass'n, 939 F. Supp. 584, 589 (N.D. Ohio 1996) (holding that rule prohibiting students from participating in inter-school competitive sports for more than 8 consecutive semesters did not discriminate "solely on the basis of disability” against learning disabled students who attended school until a later age due to their disabilities because the rule was neutral regarding disability and did not completely exclude students with learning disabilities from participation); Sadler v. Univ. Interscholastic League, No. A-91-CA 836, 1991 WL 633967 (W.D. Tex. Nov. 25, 1991) (similar reasoning applied to rule prohibiting participation after the students turned 19). [506]. Nevertheless, some courts have applied a similar narrow reading to Title II. See, e.g., Doe v. Pfrommer, 148 F.3d 73 (2d Cir. 1998); Sandison, 64 F.3d at 1035. [507]. S. Rep. No. 101-116, at 44-45 (1989); see also H.R. Rep. No.101-485(II), at 85 (1990) reprinted in 1990 U.S.C.C.A.N. 267, 368. [512]. See H.R. Rep. No. 101-485 (II), at 61, 84 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 367; see also S. Rep. No. 101-116, at 30, 44-45 (1989). [529]. See, e.g., Burns-Vidlak v. Chandler, 939 F. Supp. 765 (D. Haw. 1996) (Medicaid managed care program that excluded people with blindness and other disabilities denied meaningful access), appeal dismissed, 165 F.3d 1257 (9th Cir. 1999); Coleman v. Zatechka, 824 F. Supp. 1360 (D. Neb. 1993) (rule excluding individuals with personal attendants from participating in college roommate program violated Title II and Section 504); Galloway v. Supreme Ct. of the Dist. of Columbia, 816 F. Supp. 12, 19 (D.D.C. 1993) (rule excluding blind individuals from jury service violated Title II and Section 504). Although courts sometimes use the term "meaningful access” in cases challenging the complete exclusion of people with all or particular disabilities from programs and services, complete exclusion cases almost always involve disparate treatment, not disparate impact. [530]. See, e.g., Randolph v. Rodgers, 170 F.3d 850 (8th Cir. 1999) (failure to provide sign language interpreter to hearing impaired prisoner denied equal access to prison disciplinary proceedings). But cf. Slager v. Duncan, 1997 U.S. Dist. LEXIS 12963 (D. Md. 1997), aff'd, 162 F.2d 1155 (4th Cir. 1998) (holding that speed bumps, which caused pain to individual with a spinal cord injury, but did not prevent him from using the streets entirely, did not deny him meaningful access to the streets). [531]. See Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir.1996) (state animal quarantine law discriminated against people who are blind and use guide dogs, by denying them meaningful access to state programs). [532]. See Oconomowoc Residential Programs v. City of Greenfield, 23 F. Supp.2d 941, 954 (E.D. Wisc. 1998) (zoning law restricting placement of community residences for people with disabilities violated the ADA by severely limiting choices). [534]. In Henrietta D. v. Giuliani, 81 F. Supp.2d 425, 431-32 (E.D.N.Y. 2000), the court denied defendant's motion for summary judgment, holding that meaningful access and equal access are two separate requirements, either one of which could give rise to Title II claim. In Wright v. Guiliani, No. 99-CV-10091 WHP, 2000 U.S. Dist. LEXIS 8322, at *7 (E.D.N.Y. June 14, 2000), another case in the same court but before a different judge, the court suggested in denying a motion for a preliminary injunction that plaintiffs must prove that defendants failed to provide both meaningful and equal access. On appeal, the Second Circuit held that this was not an abuse of discretion, but neither rejected nor embraced the district court's interpretation. See No. 00-7853, 2000 U.S. App. LEXIS 26796 (2d Cir. Sept. 25, 2000). [536]. Cf. McWright v. Alexander, 982 F.2d 222, 229 (7th Cir. 1992) (in a Rehabilitation Act case challenging an employer's child care policy that disadvantaged adoptive parents, court held that even though some people adopt for reasons other than disability, the "fit” between the rule's criteria and disability were close enough to raise the possibility of discriminatory treatment). [538]. See id. at 601 (plurality noting the fact that many people with psychiatric disabilities are forced to live in institutions in order to receive the care they need, whereas people with other conditions of comparable severity are not). [540]. See, e.g., Henrietta D. v. Guiliani, No. 95-CV-0641 SJ, 2000 U.S. Dist. LEXIS 13382, at *92-96 (E.D.N.Y. Sept. 18, 2000) (granting permanent injunctive relief to homeless individuals with HIV and AIDS who did not receive adequate assistance from a division of a city agency designed to ensure that these individuals had meaningful access to public benefits). [545]. This is no longer required by federal law. PRWORA currently defines "child” as an individual under the age of 18 or under the age of 19 and still a full-time student in a secondary school or in the equivalent level of vocational or technical training. See 42 U.S.C.A. § 619(2) (West 2000). Nevertheless, more than half of the states have retained the requirement, either in statutes, regulations or policy manuals. States may not be aware of the change in federal law and may not have considered the discriminatory impact of this policy on 18-year-olds who are not expected to complete school by age 19 because of their disabilities. Advocates should encourage states that retain this policy to change it in light of the change in federal law. Advocates in at least one state have sued to challenge the state's post-AFDC retention of this policy. See Fry v. Saenz, Sup. Ct. of Cal., Sacramento County, Sept. 29, 2000 (petition for writ of mandate and injunctive and declaratory relief). [546]. See, e.g., Crowder v. Kitigawa, 81 F.3d 1480 (9th Cir. 1996) (reversing denial of summary judgment for defendants on challenge to Hawaii animal quarantine law on the basis that it denied blind users of guide dogs meaningful access to the State); Chandler, 939 F. Supp. at 773 (categorical exclusion of disabled plaintiffs from state's Medicaid managed care program violates ADA); Coleman v. Zatechka, 824 F. Supp. 1360 (D. Neb. 1993) (college policy on dorm space that was used to keep wheelchair user out of college roommate program violated the ADA); but see Hunsaker, 149 F.3d at 1044 (use of a substance abuse screening form before providing general assistance benefits did not violate the ADA because there was no specific evidence that it denied meaningful access to the benefits). [547]. See, e.g., Alexander v. Choate, 469 U. S. 287 (1987); Doe v. Colautti, 592 F.2d 704 (3d Cir.1979); Aughe, 885 F. Supp. 1428 (holding that denial of AFDC benefits to plaintiff with a learning disability after age 18 did not violate Section 504 or ADA). [548]. See, e.g., Lincoln CERCPAC v. Health and Hosp. Corp., 920 F. Supp. 488, 497 (S.D.N.Y. 1996) (holding that plaintiffs with disabilities could not show ADA violation because they were not being denied any services provided to people without disabilities), aff'd, 147 F.3d 165 (2d Cir. 1998). [549]. See, e.g., Raines v. Florida, 983 F. Supp. 1362 (N.D. Fla. 1997) (slight disparities in monthly averages in prison gain-time earned by subclasses of prisoners with disabilities do not prove discrimination though there may be disparate treatment claims in individual cases). [550]. See, e.g., Henrietta D. v. Giuliani, No. 95-CV-0641 SJ, 1996 U.S. Dist. LEXIS 22373 (E.D.N.Y. Oct. 25, 1996) (holding there was no likelihood of success on disparate impact claim brought by people with HIV and AIDS challenging barriers to accessing public benefits). In a later decision, however, the court denied summary judgment to defendant. See 81 F. Supp.2d 425 (E.D.N.Y. 2000), and eventually ruled for plaintiffs on the merits. See No. 95-CV-0641 SJ, 2000 U.S. Dist. LEXIS 13382 (E.D.N.Y. Sept. 18, 2000); see also Lincoln CERCPAC, 920 F. Supp. at 497 (court was not persuaded that there was any disparate impact in challenged program); Hunsaker v. County of Contra Costa, No. C-95-1082 MMC, 1997 WL 835164 (N.D. Cal. July 31, 1997), rev'd on other grounds, 149 F.3d 1041 (9th Cir. 1998).
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