N.D. Ga: Threat of Institutionalization Sufficient for ADA Claims

In a lawsuit challenging the reduction of Medicaid funded in-home private duty skilled nursing services, a district court held that Plaintiffs alleging that they could be forced into nursing facilities could add claims under Title II of the Americans with Disabilities Act, regardless of the fact that they are not presently institutionalized. Hunter ex rel. Lynah v. Cook, No. 1:08-CV-2930-TWT, 2011 WL 4500009 (N.D. Ga. Sept. 27, 2011). Judge Thomas W. Thrash, Jr., a Clinton nominee, wrote the opinion.

Marketric Hunter, a Medicaid beneficiary, sued the Commissioner of the Georgia Department of Community Health (“GDCH”) under 42 U.S.C. § 1983, alleging that the reduction of coverage for in-home nursing services violated the Medicaid Act. GDCH moved for Judgment on the Pleadings, while the Plaintiffs sought leave to add four additional plaintiffs as well as claims under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132.

The court first rejected the Defendant’s mootness argument, since Hunter still requires significant in-home nursing services. The court also rejected Defendant’s argument that the claim should be dismissed because GMCF made a determination that the services Hunter requested were not medically necessary. The court noted that Hunter’s complaint alleged that the additional nursing in-home hours were medically necessary.  This disputed question of fact could not be resolved in Judgment on the Pleadings, for which the allegations in the complaint are presumed to be true.

The court permitted Hunter to add four plaintiffs, all of whom had been subjected to the agency’s alleged policy of “systematically reducing private duty nursing hours,” providing a common issue of law or fact.  Regarding the ADA claims, the Defendant argued that because Hunter is not currently institutionalized, it would be futile for him to assert claims under Title II. In rejecting this argument, the court cited several cases hold to the contrary. In Olmstead v. L.C., 527 U.S. 581, 607 (1999), the Supreme Court held that, under certain circumstances, “States are required to provide community-based treatment for persons with mental disabilities . . . .” The court further noted that a Tenth Circuit case interpreting Olmstead explicitly addressed and rejected the Defendant’s argument. See Fisher v. Okla. Health Care Auth., 355 F.3d 1175, 1182 (10th Cir. 2003) (“Olmstead does not imply that disabled persons who, by reason of a change in state policy, stand imperiled with segregation, may not bring a challenge to that state policy under the ADA’s integration regulation without first submitting to institutionalization.”). Finally, the court cited to a recent district court case which held that the Plaintiff stated a claim under Title II of the ADA by alleging that the state’s failure to provide in-home Medicaid services threatened to force her into a nursing care facility. See Haddad v. Dudek, No. 3:10–CV–414–J–34TEM, 2011 WL 1892322 (M.D. Fla. March 16, 2011).

Returning to Hunter’s complaint, the court noted that Hunter alleged, as did the plaintiffs in Fisher and Haddad, that he will be forced into an institutional nursing facility if he is denied the in-home nursing services that his physician authorized. In allowing his claim to go forward, the court quoted Fisher’s statement that Title II of the ADA “would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation.” Fisher, 335 F.3d at 1181.

–Scott Herrig, University of California, Berkeley-School of Law 2012

This entry was posted in Case Analyses. Bookmark the permalink.

Comments are closed.