UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF ALABAMANORTHERN DIVISION

JONATHAN PAUL BOYD, )

)

Plaintiff, ) Civil Action Number:

)

vs. )2:10-cv-00688-MEF-TFM

)

CAROL A. HERRMANN-STECKEL,)

in her official capacity as Commissioner,)

Alabama Medicaid Agency,)

)

Defendant. )

STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

The United States respectfully submits this Statement of Interest, pursuant to 28 U.S.C. 517,[footnoteRef:1] because this litigation implicates the proper interpretation and application of the integration mandate of title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101, et. seq. See Olmstead v. L.C., 527 U.S. 581 (1999). The Attorney General has authority to enforce title II of the ADA, and pursuant to Congressional mandate, to issue regulations setting forth the forms of discrimination prohibited by Title II. 42 U.S.C 12134. Accordingly, the United States has a strong interest in the resolution of this matter and urges the Court to grant the plaintiffs motion for preliminary injunction. [1: 28 U.S.C. 517 states that [t]he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States. .]

INTRODUCTION

Plaintiff Jonathan Paul Boyd, a young man with quadriplegia who receives services in the State of Alabamas Medicaid program, is enrolled with a scholarship as a graduate student at the University of Montevallo, where he is pursuing a Masters degree in community counseling. Because of the defendants discriminatory administration of Alabamas Medicaid program, however, Mr. Boyd has been relegated to a nursing home unnecessarily and indefinitely significantly interfering with his ability to participate in his graduate program, school activities and community life generally. The defendant refuses to make reasonable modifications to the States Medicaid program to enable Mr. Boyd to live in the community, despite the substantial evidence that Mr. Boyd wants to live in the community, is capable of doing so, and that providing him services in the community instead of a nursing home would actually save the State money. As a result, Mr. Boyd remains needlessly institutionalized in violation of Title II of the ADA, 42 U.S.C. 12131, et. seq. (ADA), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794(a) and the Supreme Court decision Olmstead v. L.C., 527 U.S. 581 (1999). Moreover, Mr. Boyd is suffering irreparable harm each day he remains segregated in a nursing home, where he loses valuable time and educational and other opportunities that no court order in the future can adequately remedy. For these reasons and the reasons set forth below, the Court should grant the plaintiffs motion for preliminary injunction.

STATUTORY AND REGULATORY BACKGROUND

Congress enacted the ADA to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. 42 U.S.C. 12101(b)(1). It found that historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem. 42U.S.C. 12101(a)(2). For those reasons, Congress prohibited discrimination against individuals with disabilities by public entities:

[N]o 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.

42 U.S.C. 12132.[footnoteRef:2] [2: Section 504 of the Rehabilitation Act of 1973 similarly prohibits disability-based discrimination. 29 U.S.C. 794(a) (No otherwise qualified individual with a disability shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance). ]

One form of discrimination prohibited by the ADA is a violation of the integration mandate. The integration mandate arises out of Congresss explicit findings in the ADA, the regulations of the Attorney General implementing title II,[footnoteRef:3] and the Supreme Courts decision in Olmstead, 527 U.S. at 586. In Olmstead, the Supreme Court held that public entities are required to provide community-based services to persons with disabilities when (a) such services are appropriate; (b) the affected persons do not oppose community-based treatment; and (c) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of others who are receiving disability services from the entity. Id. at 607. [3: The regulations provide that a public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of qualified persons with disabilities. 28 C.F.R. 35.130(d), 41.51(d). The preamble discussion of the ADA integration regulation explains that the most integrated setting is one that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible. 28 C.F.R. 35.130(d), App. A, p. 571 (2009). ]

FACTUAL BACKGROUND

In 1995, while a sophomore at Troy State University, Jonathan Paul Boyd was injured in an accident that resulted in paralysis below the collar bone. (Am. Compl. at 2.) For the following eleven years, he lived at home with his family in Montevallo, Alabama, where his mother served as his primary caregiver, and he received some services under the State of Alabama Independent Living (SAIL) Medicaid waiver program. (Id. at 17-19). He eventually returned to college in Montevallo and graduated in 2007 with a Bachelor of Arts degree.

When his mother could no longer serve as his primary caregiver, Mr. Boyd entered a nursing home in December 2006, and the waiver services he received prior to that time were terminated. (Id. at 20.) He remains in the nursing home today, and the services he receives there are provided through the States Medicaid program.

Early this year, Mr. Boyd was accepted to a graduate program at the University of Montevallo, where he seeks to earn a Masters degree so that he can pursue a career in community counseling. (Am. Decl. of Jonathan Paul Boyd 11-12.) Unlike most students at the University of Montevallo, however, Mr. Boyd cannot participate fully in activities, events and opportunities offered by the school because he is confined to a nursing home, thirteen miles away. (Id.) In the nursing home, Mr. Boyd is subject to curfews, restrictions and regimented activities. (Id. 20-22.) He has no privacy, and is surrounded by constant noise. All of the other nursing home residents are individuals with disabilities and most are much older than Mr. Boyd. (Id.) As a result, he is deprived of the simple pleasure of being around people his own age and choosing what to do with his day. He is also deprived of the opportunity to take full advantage of all the University has to offer, such as athletic events, lectures, author readings, theatrical and musical performances and other school functions. (Id. 15.)

The State of Alabama has opted to take advantage of Medicaids waiver programs in order to provide home and community-based services to persons with disabilities who would otherwise be cared for in hospitals and other institutions. [footnoteRef:4] The waiver authority permits the Secretary of Health and Human Services to waive certain Medicaid requirements in order for states to offer these services. See 42 U.S.C. 1396m(b)-(h); 42 C.F.R. 430.25(d). Pursuant to this authority, Alabama administers six waiver programs, including the Elderly and Disabled Waiver and the State of Alabama Independent Living (SAIL) waiver. The purpose of the Elderly and Disabled waiver is to provide home and community-based services to elderly and disabled individuals in the community who would otherwise require nursing facility care. See Application for a 1915(c) Home and Community-Based Services Waiver, at 4 (attached as Exhibit 6 to Pl.s Mem. of Law in Support of Mot. for Prelim. Inj., dated Aug. 17, 2010, ECF No. 4-6) (hereinafter (E/D Waiver Application) The SAIL waiver provides services to individuals with physical disabilities not associated with the process of aging and with onset prior to age 60 ., [including] quadriplegia. Section 1915(c) Waiver Request, November 2008 (hereinafter SAIL Waiver Application), attached hereto as Exhibit A. [4: States can submit requests for approval to the Centers for Medicare and Medicaid Services (CMS) to alter the terms of a waiver application at any time. See 42 C.F.R. 441.355. ]

By providing services to individuals in the Elderly and Disabled waiver instead of a nursing facility, the State saved annually, on average, more than $10,000 per person during the last three years. See E/D Waiver Application at Appendix J-1:1.[footnoteRef:5] Similarly, in a cost neutrality demonstration set forth in the SAIL Waiver Application, the State represented that it saved on average more than $15,000 per person to serve individuals through the SAIL waiver instead of a nursing facility. See SAIL Waiver Application at 92. Even though it would be less costly to provide services to Mr. Boyd in the community, where he is able to and very much wants to live, defendant has