Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 1 of 31

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION

CHRISTY McCARTHY, by and through §

her next friend, Jamie Travis;

§

TODD GORDON, by and through his next §

friend, Trisha Gordon; ALLISON PRATT, §

by and through her next friend, Paula Pratt; §

GAIL TRUMAN, by and through her next §

friend, Ken Truman; JIM FLOYD Jr., by §

and through his next friend, Jim Floyd, Sr.; §

SAM LINDSAY, by and through his next §

friend, Betty Lindsay; OSHEA BROOKS; §

JOE RAY COMACHO;

§

MICHA CHASTAIN, by and through

§

his next friend, Lori Chastain;

§

SUE ANN ORTIZ; AL, by and through §

her next friend, LL; and

§

The ARC of Texas, on behalf of its

§

members, and for Those Similarly Situated, §

§

Plaintiffs,

§

§

v.

§

§

DON A. GILBERT, in his official capacity §

as Commissioner of the Texas Health

§

and Human Services Commission;

§

KAREN F. HALE, in her official capacity §

as Commissioner of the Texas Department §

of Mental Health and Mental Retardation; §

and JAMES R. HINE, in his official

§

capacity as Commissioner of the Texas §

Department of Human Services,

§

§

Defendants.

§

M'02CV0600

CIVIL ACTION NO.

~_

COMPLAINT

Plaintiffs, Christi McCarthy, by and through her next friend, Jamie Travis; Todd

Gordon, by and through his next friend, Trisha Gordon; Allison Pratt, by and through her
,

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 2 of 31
next friend, Paula Pratt; Gail Truman, by and through her next friend, Ken Truman; Jim Floyd Jr., by and through his next friend, Jim Floyd, Sr.; Sam Lindsay, by and through his next friend, Betty Lindsay; Oshea Brooks; Joe Ray Comacho; Micha Chastain, by and through his next friend, Lori Chastain; Sue Ann Ortiz; and The Arc of Texas, on behalf of its members, and for those similarly situated, file this Original Complaint and respectfully show as follows:
I. INTRODUCTION 1. Plaintiffs bring this action to challenge Defendants' failure to provide Plaintiffs and other Texans with mental retardation and developmental disabilities I with communitybased living options and services to which they are legally entitled and that meet their needs. Unless more of these options and services are provided, Plaintiffs and similarly situated Texans will either remain needlessly confined or be forced to leave their family and community and move into an institution. 2. By failing to implement the Home and Community-Based ("Medicaid") waiver program in a way that provides Plaintiffs with placement options and services within a reasonable period of time, Defendants not only violate federal law, but expose Plaintiffs to the risk of, or perpetuate the need for, unnecessary institutionalzation. 3. The Supreme Court has held that "unjustified institutional isolation ofpersons with disabilities is a form of discrimination," Olmstead v. L.c., ex rei Zimring, 119 S. Ct. 2176, 2187 (1999), and is prohibited by the Americans with Disabilities Act ("ADA"), 42
I Developmental disabilities other than mental retardation include "related conditions" such as spina bifida and cerebral palsy.
Complaint - Page 2

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 3 of 31
U.S.C. §§ 12101 et. seq. Defendants are obligated to "administer services, programs and activities [i.e., Texas Medicaid] in the most integrated setting appropriate to the needs" of persons with disabilities. 42 U.S.C. § 12132 and 29 U. S. C. § 794 as implemented by 28 C.F.R. § 35.130(d) and 28 C.F.R. § 41.51(d). With appropriate community-based long-term care and services, available under a lawful Medicaid waiver program, Plaintiffs could live in integrated settings in their own homes and communities.
4. Plaintiff class members are not receiving the services they need to remain in the most integrated setting. Instead, they are being institutionalized or confined at home without needed services.
5. Therefore, Plaintiffs seek to address Defendants' systematic and continuing failure to provide necessary services in a reasonably prompt manner and to provide these services in the most integrated setting appropriate. Defendants' actions deprive the individual Plaintiffs of greater independence, integration into the community, and a better quality of life.
II. JURISDICTION AND VENUE 6. This Court has jurisdiction over this action and over the Defendants pursuant to 28 U.S.c. §§ 1331, 1343 (a)(3), and 1343 (a)(4). The amount in controversy exceeds the minimum jurisdictional limits of this Court. Plaintiffs' claims are authorized by 42 U.S.C. § 1396 et seq., 42 U.S.c. §§ 1983 and 1988,42 U.S.c. § 301 et seq., and 42 U.S.C. §§ 12115 et seq. Declaratory and injunctive relief is authorized under 28 U.S.C. §§ 2201 and 2202, as well as rules 57 and 65 of the Federal Rules of Civil Procedure.
Complaint - Page 3

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 4 of 31
7. Venue is proper in this Court under 28 U.S.c. § 1391 because part of the claims arose within this District and Division, and Defendants operate in this District and Division.
III. PARTIES 8. Plaintiff Christi McCarthy is 22 years-old. She lives at home with her family in West Columbia, Texas. Ms. McCarthy has cerebral palsy, diplegia, and mild mental retardation. She uses a wheelchair. She is a Medicaid recipient and has a disability within the meaning of the ADA. Ms. McCarthy qualifies for HCS waiver services and would be able to remain in a less restrictive setting with the proper support and services. 9. Plaintiff Todd Gordon is 19 years-old and lives at home with his family in Alvin, Texas. He has fragile X syndrome. He is a Medicaid recipient and has a disability within the meaning of the ADA. Mr. Gordon qualifies for HCS waiver services and would be able to remain in a less restrictive setting with waiver supports and services. 10. Plaintiff Allison Pratt lives at home with her family near Beaumont, Texas. She is 22 years old and has mental retardation. Ms. Pratt is a Medicaid recipient and has a disability within the meaning of the ADA. Ms. Pratt's need for services can be met in her home, thereby avoiding the need for her to be institutionalized. 11. Plaintiff Gail Truman is 40 years old. She resides with her parents III Friendswood, Texas. Ms. Truman has mental retardation. She is a Medicaid recipient and has a disability within the meaning of the ADA. Ms. Truman qualifies for HCS waiver services and is able to remain living in a less restrictive setting with waiver supports and servIces.
Complaint - Page 4

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 5 of 31
12. Jim Floyd, Jr. is 43 years-old and lives in Dickenson, Texas, with his mother and father. Mr. Floyd has autism. Mr. Floyd's need for services can be met in his home, thereby avoiding the need for him to be institutionalized. Mr. Floyd qualifies for Medicaid services and has a disability within the meaning of the ADA.
13. Sam Lindsay, Jr. is 54 years-old and lives in Marshall, Texas, with his mother and father. Mr. Lindsay has mental retardation. Mr. Lindsay's need for services can be met in his home, which will avoid him being institutionalized. Mr. Lindsay qualifies for Medicaid services and has a disability within the meaning of the ADA.
14. Plaintiff Oshea Brooks is 21 years-old. He lives in an ICF/MR facility in Rockport, Texas. Mr. Brooks has cerebral palsy, diplegia, and mild mental retardation. He uses a wheelchair, and his treatment team considers him to be legally competent. He is a Medicaid recipient and has a disability within the meaning ofthe ADA. Mr. Brooks qualifies for HCS waiver services and would be able to live in a less restrictive setting with the proper support and services.
IS. Plaintiff Joe Ray Camacho is 32 years-old and lives in an ICF/MR facility in Rockport, Texas. At the age of 19, he had a motorcycle accident in which he suffered a closed head injury. As a result, he uses a wheelchair. Mr. Comacho has been living in his current ICF/MR placement since October 1995 and is considered legally competent by his treatment team. He is a Medicaid recipient and has a disability within the meaning of the ADA. Mr. Comacho qualifies for CLASS waiver services and would be able to live in a less restrictive setting with waiver supports and services.
Complaint - Page 5

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 6 of 31
16. Plaintiff Micha Chastain is almost three-years-old and lives in Fort Worth, Texas, with his father and mother, Lori, his next friend in this proceeding. Before Micha was born, he experienced a cranial hemorrhage. As a result, he was born with cerebral palsy, seizures, a vision impairment, and a hearing impairment. Micha uses a wheelchair. Micha is a Medicaid recipient and has a disability within the meaning of the ADA. Micha's need for services can be met in his home, thereby avoiding the need for him to be institutionalized.
17. Plaintiff Sue Ann Ortiz is 23 years-old. She lives in an ICF/MR facility in San Antonio, Texas. Ms. Ortiz has mild mental retardation. She also sees a psychologist. Ms. Ortiz has been living in her current ICF/MR placement for approximately five years and is considered legally competent. She is a Medicaid recipient and has a disability within the meaning of the ADA. Ms. Ortiz qualifies for HCS waiver services and is able to live in a less restrictive setting with waiver supports and services.
18. AL is 14 years-old and lives in Austin, Texas, with her father and mother, LL, her next friend in this proceeding. AL was born with cerebral palsy; as a result, she uses a wheelchair. AL's need for services can be met in her home, thereby avoiding the need for her to be institutionalized. AL qualifies for Medicaid services and has a disability within the meaning of the ADA.
19. The Arc ofTexas is the oldest and largest nonprofit, volunteer organization in the State ofTexas committed to expanding opportunities for people with mental retardation and other developmental disabilities to be included in their communities. The Arc works to support families, advance public policies, provide training programs, and build a statewide network of advocates. Since its establishment in 1950, the Arc of Texas has been
Complaint - Page 6

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 7 of 31
instrumental in the creation ofvirtually every program, service, right, and benefit that is now available to more than half a million Texans with mental retardation. Today, the Arc continues to advocate for the inclusion of people with mental retardation and other developmental disabilities in all aspects of society.
20. Defendant Don A. Gilbert is sued in his official capacity as Commissioner of the Texas Health and Human Services Commission ("THHSC"). The THHSC is the single state agency responsible for the Medicaid program in Texas and receives federal funds. In Mr. Gilbert's capacity as Commissioner, he is charged with contracting with medical providers and delegating particular responsibilities to the Texas Department ofMental Health and Mental Retardation and the Texas Department of Human Services. Don A. Gilbert is sued in his official capacity and may be served process at THHSC, 4900 North Lamar, 4th Floor, Austin, Texas 78711.
21. Defendant Karen F. Hale is sued in her official capacity as the Commissioner of the Texas Department of Mental Health and Mental Retardation ("TDMHMR"). TDMHMR is statutorily responsible for providing Medicaid waiver services to eligible persons capable of living in community-based alternatives. TDMHMR is responsible for administering two Medicaid waiver programs, including the Home and Community Services waiver. Karen F. Hale is sued in her official capacity and may be served process at TDMHMR, 909 West 45th Street, Austin, Texas 78711-2668.
22. Defendant James R. Hine is sued in his official capacity as the Commissioner of the Texas Department of Human Services ("TDHS"). TDHS' responsibilities include evaluating individuals who are mentally retarded and developmentally disabled for services.
Complaint - Page 7

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 8 of 31
James R. Hine is sued in his official capacity and may be served process at TDHS, 701 West 51st Street, Austin, Texas 78714-9030.
IV. STATEMENT OF FACTS Christy McCarthy
23. Christy McCarthy is 22 years-of-age and has been residing at her home in West Columbia, Texas. She has recently graduated from high school and her family would very much like for her to remain at home. However, Ms. McCarthy has been on the HCS waiting list for six years. At the present rate, she would not receive a waiver slot for 21 more years. This is tragic in that her life expectancy is only 10 years.
24. Pursuant to Defendant TDMHMR's procedures, Ms. McCarthy has requested HCS services. Defendant TDMHR never evaluated her for HCS eligibility but instead put her on a waiting list.
25. Ms. McCarthy's family believes that she needs to remain in a less restrictive setting. They are committed to Ms. McCarthy's independence.
26. As of the filing of this complaint, Ms. McCarthy is on the HCS waiting list. She has received no written notice from Defendant TDMHMR that the services she has requested are being denied or delayed.
27. Providing waiver services for Ms. McCarthy at home would cost considerably less than an ICF/MR placement.
Complaint - Page 8

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 9 of 31
Todd Gordon 28. Todd Gordon is 19 years-of-age and has fragile X syndrome. Mr. Gordon has
been on the waiting list for 5 years. He lives at home with his family but needs significant care. Without this care, he is in danger of being institutionalized.
29. Mr. Gordon was never told of his entitlement to an ICF/MR or evaluated for HCS eligibility. Instead, Defendant TDMHMR put him on a waiting list and never informed him that he may be eligible for HCS waiver services.
30. As of the filing of this complaint, Mr. Gordon is on the HCS waiting list. He has received no written notice from Defendant TDMHMR that the services he has requested are being denied or delayed.
31. Waiver services provided to Mr. Gordon could be provided at a cost that is significantly less than an ICF/MR placement. Allison Pratt
32. Allison Pratt, who is 22 years old, resides at home with her family. She has Down syndrome but works at a local restaurant. However, without waiver services she is at significant risk for institutionalization.
33. Pursuant to Defendants' procedure, Ms. Pratt has requested HCS waiver services. Defendants have not evaluated her for HCS eligibility but instead put her on a waiting list. Ms. Pratt's family was never informed that she may be entitled to ICF/MR services.
Complaint - Page 9

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 10 of 31
34. As ofthe filing ofthis complaint, Ms. Pratt is on the HCS waiting list. She has received no written notice from Defendants that the services she has requested are being denied or delayed. Gail Truman
35. Gail Truman is 40 years-of-age and resides with her parents, age 74 and 68. She has mental retardation. Her parents currently meet her needs, but without their support, Ms. Truman would be at significant risk of being institutionalized. She has been on the waiting list for approximately 6 years. Although her parents have lived their lives in an effort to insure that Ms. Truman was not institutionalized, their advancing age and the lack of waiver services means that this may not be avoided.
36. Pursuant to Defendants' procedures, Ms. Truman requested HCS waiver services. As ofthe filing ofthis complaint, Ms Truman is on the HCS waiting list. She has received no written notice from Defendant TDMHMR that the services she has requested are being denied or delayed.
37. Ms. Truman's waiver services could be provided at a cost that is significantly less than an ICFIMR placement. Jim Floyd
38. Jim Floyd lives with his mother and father. He is 43, and his parents are 68 and 64. Mr. Floyd has autism and is in need ofwaiver services to remain in the community. Because ofthe lack of waiver services, Jim Floyd's parents hope to outlive him, so as not to subject him to an institution.
Complaint - Page 10

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 11 of 31
39. Pursuant to Defendants' procedures, Jim Floyd requested HCS waiver services approximately six years ago. Defendants never evaluated him for HCS eligibility, but instead placed him a waiting list.
40. As ofthe filing ofthis complaint, Jim Floyd is on the HCS waiting list. He has received no written notice from Defendants that services he has requested are being denied or delayed. Sam Lindsay
41. Sam Lindsay lives with his mother and father. He is 54, and his parents are 79 and 77. Mr. Lindsay has mental retardation and is in need of waiver services to remain in the community. However, as he has aged, he has become a management problem for his parents.
42. Pursuant to Defendants' procedures, Mr. Lindsay requested HCS waiver services approximately five years ago. Defendants never evaluated him for HCS eligibility, but instead placed him a waiting list.
43. As ofthe filing ofthis complaint, Sam Lindsay is on the HCS waiting list. He has received no written notice from Defendants that services he has requested are being denied or delayed. Oshea Brooks
44. Oshea Brooks is 21 years-of-age and has been institutionalized at the ICF/MR facility in Rockport, Texas, since September 1994. He very much wants to leave his institutional placement for the privacy that a smaller residential setting offers and the individual freedom such a setting would provide. Currently he shares a small room at his
Complaint - Page 11

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 12 of 31
facility. He is unable to shop, go to the movies, or visit friends without getting permission and, in most cases, without a staff person accompanying him. Moreover, he is only permitted to visit friends or family for one extended period each year of no more than ten consecutive days.
45. Pursuant to Defendant TDMHMR's procedures, Mr. Brooks requested HCS services in June 1999. Defendant TDMHR never evaluated him for HCS eligibility but instead put him on a waiting list. When Mr. Brooks was admitted to his current ICF/MR placement in February 1994, he was never informed that he may also be eligible for HCS waiver services. As a result, he has lost five years seniority on the waiting list.
46. Mr. Brooks Qualified Mental Retardation Professional ("QMRP") believes that he needs to be in a less restrictive setting. Moreover, she believes that he qualifies for HCS waiver services and that a foster care placement would provide him more freedom and independence.
47. As of the filing of this complaint, Mr. Brooks is on the HCS waiting list. He has received no written notice from Defendant TDMHMR that the services he has requested are being denied or delayed.
48. It is the opinion of Mr. Brooks' QMRP that such a placement would cost considerably less than his current ICF/MR placement. Joe Ray Comacho
49. Joe Ray Comacho is 32 years-of-age and would like to leave his current facility placement and move back home with his mother. Mr. Comacho wants more freedom, independence and privacy--things that are not available while he remains institutionalized.
Complaint - Page 12

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 13 of 31
However, under current circumstances, this will not happen. He has only been on the HCS waiver program for approximately three years and, according to his QMRP, at Defendant TDMHMR's current pace he will likely be waiting another six or seven years for waiver servIces.
50. Pursuant to Defendants' procedures, and according to Mr. Comacho's QMRP, he requested HCS waiver services in September 1999. When Mr. Comacho was admitted to his current placement, Defendant TDMHMR never evaluated him for HCS eligibility. Instead, Defendant TDMHMR put him on a waiting list.
51. As ofthe filing ofthis complaint, Mr. Comacho is on the HCS waiting list. He has received no written notice from Defendant TDMHMR that the services he has requested are being denied or delayed.
52. Mr. Comacho' s MPR believes that he is appropriate for foster care services and that these services could be provided at a cost that is significantly less than his current ICF/MR placement. Micha Chastain
53. Micha Chastain, who is almost three-years-old, receives nursing services through the state's Comprehensive Care Program (CCP). CCP covers benefits for Medicaid eligible children. The nursing services he receives includes suctioning and monitoring his nebulizer and food pump.
54. Micha is at risk oflosing the CCP nursing services he currently receives. For two months this coming year, Micha's family income will exceed Supplemental Security
Complaint - Page 13

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 14 of 31
Income ("SSI") guidelines. During these months, Micha will not receive any nursing services, placing him at significant risk for institutionalization.
55. In January 2003, Micha' s family expects to lose nursing services until February 2003.
56. If Micha were receiving CLASS waiver services, he would not lose nursing servIces.
57. Pursuant to Defendants' procedure, Micha requested CLASS waiver services in July 2000. Defendant TDHS never evaluated him for CLASS eligibility but instead put him on a waiting list. Micha's family was never informed that he may be entitled to ICF/MR servIces.
58. As ofthe filing ofthis complaint, Micha is on the CLASS waiting list. He has received no written notice form Defendant TDHS that the services he has requested are being denied or delayed.
59. Micha has been on the waiting list for the Community Living Assistance and Support Services for approximately two years. It is his mother's understanding that it could be another six or seven years before he becomes eligible for CLASS waiver services. Sue Ann Ortiz
60. Sue Ann Ortiz is 23 years-of-age and would like to leave her current ICF/MR placement. She very much wants to move in to a shared living arrangement with a friend. She also wants more financial independence. Currently she works part-time at a fast food restaurant. If she were in the HCS waiver program, she would have much greater access to more of her money. Ms Ortiz also wants more freedom, independence, and privacy, all of
Complaint - Page 14

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 15 of 31
which are not available while she remains institutionalized. However, under the current circumstances, this will not happen.
61. Ms. Ortiz has been on the waiting list for HCS waIver servIces for approximately one year. Her QMRP believes that it will take another eight years, at the state's current pace, for her to get waiver services.
62. Pursuant to Defendants' procedures, and according to Ms. Ortiz's QMRP, Ms. Ortiz requested HCS waiver services. When Ms. Ortiz was admitted to her current ICF/MR placement, Defendant TDMHMR never informed her that she may also be eligible for HCS waiver services. As a result, she has lost four years seniority on the waiting list.
63. As ofthe filing ofthis complaint, Ms. Ortiz is on the HCS waiting list. She has received no written notice from Defendant TDMHMR that the services she has requested are being denied or delayed.
64. Ms. Ortiz's QMRP believes that she is appropriate for foster care services and that these services could be provided at a cost that is significantly less than her current ICF/MR placement.
AL
65. AL lives with her mother and father. She attends high school and wants very much to remain at home with her family while attending school. However, as she has aged, she has become a management problem for her parents.
66. Every day AL' s mother has to lift and transfer her from her wheelchair to her bed, the car, a chair, the bathroom, or the shower. AL weighs approximately 140 pounds and her mother LL has to do this by herself. As a result, her mother has experienced knee, neck,
Complaint - Page 15

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 16 of 31
and back problems. In addition, when LL is not feeling well, AL nonetheless needs assistance. This situation puts both AL's and her mother's health at risk. LL is particularly concerned that AL will be injured in the bathroom because she is so unsteady and could fall and seriously injure herself at any point.
67. On information and belief, AL is eligible for CLASS waiver services. 68. Pursuant to Defendant TDHS' procedures, AL requested CLASS waiver services approximately seven years ago in 1995. Defendant TDHS never evaluated her for CLASS eligibility, but instead placed her on a waiting list. AL's family was never informed that she may be entitled to ICFIMR services for persons with related conditions. 69. As of the filing of this complaint, AL is on the CLASS waiting list. She has received no written notice from Defendant TDHS that services she has requested are being denied or delayed. Moreover, it is AL's mother's understanding that it will be another seven years before AL becomes eligible for CLASS waiver services.
V. CLASS ACTION 70. Plaintiffs bring this action on their own behalf and on behalf of all persons similarly situated pursuant to Rule 23(b)(l) & (2) of the Federal Rules of Civil Procedure. The class Plaintiffs seek to represent consists of all persons eligible to receive Medicaid waiver services, who have requested but not received waiver services with reasonable promptness. Plaintiffs seek to represent these class members for purposes of injunctive and declaratory relief. 71. A class action is proper pursuant to the Federal Rules ofCivil Procedure 23(a). As evidenced above, this class is so numerous that joinder of all class members is
Complaint - Page 16

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 17 of 31
impracticable. The class consists of(a) approximately 24,000 persons who Defendants have identified as requesting services and living in the community and who need residential services in order to remain in the community and (b) approximately 11,000 residents who are institutionalized in an ICFIMR and who are eligible to be considered for the kind of residential services that will enable them become more fully integrated into the community.
72. There are questions oflaw and fact that are common to members ofthe class. These questions include but are not limited to: a) Have Defendants failed to exercise professional judgement by neglecting to plan for
the residential needs of Texans with mental retardation and developmental disabilities? b) Have Defendants failed to evaluate what is the most integrated residential setting appropriate for a class member who is served in an institutional settings such as an ICFIMR? c) Have Defendants failed to determine whether individuals with mental retardation and developmental disabilities who reside in an ICF/MR meet the essential eligibility requirements for habilitation in a community based setting? d) Have Defendants failed to determine whether individuals with mental retardation and developmental disabilities who reside in the community meet the essential eligibility requirements for habilitation in a community-based setting? e) Have Defendants failed to develop and implement a comprehensive, effective working plan for providing qualified persons with mental retardation and
Complaint - Page 17

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 18 of 31
developmental disabilities residing in an institution such as an ICF/MR in a less restrictive setting and a waiting list that moves at a reasonable pace? f) Have Defendants failed to develop and implement a comprehensive, effective working plan for providing qualified persons with mental retardation and developmental disabilities living in the community with a waiting list that moves at a reasonable pace and that prevents such persons from being unnecessarily institutionalized? g) Is Defendants's implementation of its Medicaid waiver program and its denial of equal access to waiver services rationally related to a legitimate state interest? h) Does the ADA prohibit unnecessarily segregated services for persons with mental retardation and developmental disabilities? i) Does the Due Process Clause protect the right to such residential services as will enable Plaintiffs to live in the community and avoid institutionalization? j) Are community residential services and placements necessary to prevent and remedy the harm experienced by the Plaintiffs? 73. The claims of the named Plaintiffs are typical of the claims of the class as a whole. All individual members ofthe class have been or will be subjected to the same harm as Plaintiffs as a result of the actions of the Defendants. 74. The Plaintiffs will fairly and adequately protect the interests ofthe entire class. Plaintiffs' counsel have litigated many other class actions in their careers. 75. A class action is proper pursuant to Federal Rule ofCivil Procedure 23(b)(1). Separate actions could create inconsistent and varying adjudications with respect to the
Complaint - Page 18
-----------------------------

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 19 of 31
individual members of the class, which would establish incompatible standards of conduct for Defendants and adjudications with respect to other members would, as a practical matter, be dispositive to the interests of the other members not parties to the litigation.
76. Moreover, Defendants have acted on grounds generally applicable to the class, thereby making appropriate final injunctive or corresponding declaratory reliefwith respect to the class as a whole. This satisfies Federal Rule of Civil Procedure 23(b)(2).
VI. STATUTORY FRAMEWORK 77. Title XIX of the Social Security Act, 42 U.S.c. § 1396 et seq., establishes Medicaid, a joint federal-state program to provide medical and related care to eligible persons. Costs are shared between the federal and the state governments. 78. States are not required to participate in Medicaid, but may do so by submitting an appropriate Medicaid plan to the Center for Medicare and Medicaid Services ("CMS"), formerly the Health Care Financing Administration ("HCFA"). Once a state elects to participate in Medicaid, it must do so in accordance with applicable federal statutes and regulations. 79. For participating states, providing certain Medicaid services is mandatory. Other services can be provided at the decision ofthe state. Once a state elects to provide an optional service, however, it must do so in accordance with Medicaid statutes and regulations governing the provision of that service. 80. Title XIX requires that the state plan provide medical assistance "with reasonable promptness to all eligible individuals," 42 U.S.C. § 1396 (a)(8), and continue furnishing the service until the recipient is found to be ineligible to continue to receive
Complaint - Page 19

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 20 of 31
assistance. 42 U.S.C. § 1396a (a)(lO). States must assure that care and services under the plan are provided in a manner consistent "with the best interests ofthe recipients." 42 U.S.C. § 1396a (a)(l9).
81. An optional service that states may elect to provide is an ICF/MR. 42 U.S.C. § 1396d (a)( 15). An ICF/MR is a residential institution that provides appropriate health and rehabilitative services to eligible persons with developmental disabilities. 42 U.S.c. § 1396d(d).
82. States that provide ICF/MR services may also implement a Medicaid waiver program. This alternative to ICF/MR services includes an array of home and communitybased services for eligible recipients who, in the absence of waiver services, would require institutionalization in an ICF/MR. This Medicaid program is called a "waiver" because CMS waives certain technical obligations otherwise incumbent on Medicaid-participating states electing to participate in this program.
83. Title XIX requires that when a state agrees to provide Medicaid waiver services that it provide assurances that, inter alia, individuals are evaluated for their need for the level-of-care provided by an ICFIMR, and if found eligible for such a level-of-care, are offered the option of Medicaid waiver services. 42 U.S.C. §§ 1396n(c)(2)(B), 1396n(c)(2)(C); 42 C.F.R. § 441.302(c)-(d). States must assure CMS that, absent the waiver, "recipients in the waiver would receive the appropriate type ofMedicaid-funded institutional care ... that they require." 42 C.F.R. § 441.302(g).
84. Under a Medicaid waiver program, a state's estimate of average per capita costs cannot exceed the average per capita costs for the same level-of-care provided in
Complaint - Page 20
------------------- --------

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 21 of 31
institutions in that state, 42 U.S.c. § I396n(c)(2)(D). However, if actual expenses exceed the estimate in a particular case, the federal government will not withhold payment. 42 U.S.c. § I396n(c)(9).
85. Medicaid Waiver services are generally far less expensive than institutional care.
86. Approval for Medicaid waivers that cover individuals with mental retardation and other developmental disabilities, requires the state assure eMS that "necessary safeguards . . . have been taken to protect the health and welfare of individuals provided services under the waiver." 42 U.S.c. § 1396n(c)(2)(A); 42 C.F.R. § 441.302(a).
87. Both the ICF/MR program and the Medicaid waiver program are public services subject to Title II ofthe ADA, 42 U.S.C. §§ 12161-12165.
88. Medicaid waiver recipients are entitled to medically necessary Medicaid services, i.e., those services necessary to ensure their "health and welfare," 42 U.S.C. § 1396n(c)(2)(A). The services are incorporated into the recipient's plan ofcare. 42 U.S.C. §§ I396n(c)( I) and (c)(4)(B). Services received by recipients can vary as their circumstances change for better or worse. In some cases, relatively minor assistance may be required; in other cases, more services may be necessary.
89. Plaintiffs and the class they represent are currently entitled to services at the level-of-care provided at an ICF/MR and/or through the Medicaid waiver program.
90. Title II of the ADA, 42 U.S.c. §§ 12131-12134, extends to state and local governments the nondiscrimination provisions of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. It requires that the services, programs, and activities of state and
Complaint - Page 21

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 22 of 31
local governments be administered in "the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d).
91. CMS has stated that based on the Olmstead decision and the requirements of Title II of the ADA that, "States are obligated to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability. . . ." CMS also concluded that under Medicaid it is the "State's responsibility, ... to periodically review the services of all residents in Medicaid-funded institutional settings."
92. CMS unambiguously interprets Olmstead to mean that a "[State's] requirement to provide services in the most integrated setting appropriate applies not only to persons already in institutional settings but to those being assessed for public institutionalization."
93. The individual Plaintiffs are qualified individuals with disabilities, as defined by the ADA, 42 U.S.c. § 12131(2). The waiver program is a public service program covered by Title II of the ADA. Defendants are governmental entities covered by Title II of the ADA.
94. The Due Process Clause ofthe United States Constitution prohibits Defendants from denying a beneficiary health services without adequate notice and opportunity for a fair hearing.
95. The Equal Protection Clause ofthe Fourteenth Amendment to the United States Constitution prohibits establishing, subsidizing, and otherwise sanctioning in dejure fashion enactments, programs, policies, and practices that exclude, separate, and segregate persons with mental retardation or developmental disabilities.
Complaint - Page 22

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 23 of 31
96. The federal Medicaid statute and regulations require Defendants to provide notice and hearing rights to any person whose claims for medical assistance under the plan are denied or are not acted upon with reasonable promptness. 42 U.S.C. § 1396a(a)(3) and 42 C.F.R. § 431.200 et seq.
VII. THE HOME AND COMMUNITY-BASED WAIVER PROGRAM 97. The Medicaid waiver program was adopted by Congress in order to allow individuals who would otherwise require care in a nursing home or ICF/MR to receive needed services in their own homes and in home-like settings. 42 U.S.c. § 1396n. See Senate Report No. 97-139 and House Conference Report No. 97-208,1981 U.S.CODECONG. & ADMIN. NEWS 396. The regulations state that "section 1915(e) [1396n] ofthe Act permits states to offer, under a waiver of statutory requirements, an array of home and community based services that an individual needs to avoid institutionalization." 42 C.F.R. § 441.300. 98. Federallaw provides that the average cost per person in the community through the Medicaid waiver program must not exceed the average cost for the same level ofservices in facilities or institutions. 42 U.S.C. § 1396n(c)(2)(D). 99. Home and community-based waiver funds may not be used to support services to individuals who reside in an ICF/MR. 42 C.F.R. § 441.301 (b)(l)(ii), 42 U.S.C. § 1396n. 100. Under a Medicaid waiver, a state can provide an array of services, including services that are not identified in Title XIX as approved optional services. 42 U.S.c. § 1396n(c)(4)(B); 42 C.F.R. § 440.180. For example, a state can provide habilitative services, vocational services, and respite services even though these services are not a specified optional service. Thus, Medicaid waiver programs give the state the right to
Complaint - Page 23

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 24 of 31
receive federal reimbursement when it agrees to provide services that it would not otherwise be reimbursed for under Title XIX.
101. Medicaid waiver programs allow states to "waive" certain Title XIX requirements. Specifically, a state's waiver program may choose to provide services to specific groups of persons or in a limited geographic region, this waiving comparability or statewideness requirements. 42 U.S.C. §§ 1396n(c)(3), (9)-(10).
102. In sum, the purpose of Title XIX's Medicaid waivers is to encourage states to provide services to assist individuals with disabilities to avoid being institutionalized. 42 C.F.R. § 441.300. And as long as Medicaid services vis-a-vis institutional services are "costneutral," the preference is to provide services in the community. See 42 U.S.C. § 1396n(c)(2)(D).
103. Texas has implemented two Medicaid waiver programs to meet the needs of persons with mental retardation and persons with related conditions. For persons with mental retardation, the Medicaid waiver is called the Home and Community-Based Services ("HCS") Program, and for persons with related conditions, the Medicaid waiver is called the Community Living Assistance and Support Services ("CLASS") Program. A. HCS Waiver
104. Texas has offered the HCS waiver since 1982. 105. Individuals are eligible for HCS waiver services if they (a) have mental retardation, (b) meet the standard of care for services in an ICF/MR, and (c) are eligible for Medical Assistance. 106. The HCS waiver currently serves approximately 4,608 recipients.
Complaint - Page 24

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 25 of 31
107. There are approximately 17,500 who have requested RCS waiver services. And of those who have requested services, over 6300 are children. These individuals have been put on a waiting list.
108. Defendant TDMRMR is the single state agency whose responsibility it is to administer the RCS waiver program.
109. The services provided under the RCS waiver include case management, respite care, habilitation, minor home modifications, skilled nursing, adaptive aids, counseling and therapies, dental treatment, and residential assistance, i.e., supported home living, foster/ companion care, and residential support.
110. The RCS waiver program waives Title XIX's comparability requirements and limits eligibility to persons with mental retardation but it does not waive Title XIX's statewideness requirement. Thus, RCS waiver services are available to persons with mental retardation statewide.
Ill. In the absence ofRCS waiver services these individuals are entitled to receive services in an ICF/MR. B. CLASS Waiver
112. The CLASS waiver program has been available in Texas since 1991 for persons with related conditions. A related condition is a developmental disability other than mental retardation which may include such conditions as cerebral palsy and spina bifida.
113. Individuals are eligible for CLASS waiver services when (a) they have a related condition, (b) meet the standard ofcare for services in an ICF/MR, and (c) are eligible for Medical assistance.
Complaint - Page 25
------------------------

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 26 of 31
114. Approved by CMS, the CLASS waiver program currently serves approximately 1500 persons.
115. There are approximately 7300 persons who have requested CLASS waiver services. And of those who have requested services and placed on a waiting list, over 6100 are children.
116. Defendant TDHS is the single state agency responsible for administering the CLASS waiver program.
117. Services under the CLASS WaIver program include case management, habilitation, respite, nursing services, psychological services, physical therapy, occupational therapy, speech pathology services, adaptive aids, and minor home modifications.
118. The CLASS waiver program waives Title XIX's comparability requirements to limit eligibility to persons with related conditions and waives Title XIX statewideness requirement. Thus, CLASS waiver services will not be provided statewide but only in a limited number of geographic catchment areas.
119. In the absence of CLASS waiver services these individuals are entitled to receive services in an ICF/MR.
120. Subsequent to the United States Supreme Court decision in Olmstead, the THHSC developed a plan to address the need for HCS waiver services; although CLASS waiver services were not included in THHSC's plan.
121. Under THHSC's plan individuals with mental retardation residing in state schools and ICF/MR facilities with fourteen (14) beds may qualify for HCS waiver services.
Complaint - Page 26

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 27 of 31
122. THHSC, however, has made no provISIOn to provide HCS servIces to individuals living in a six-to-thirteen (13) bed ICF/MR, or to provide services to eligible individuals on the HCS waiting list living in the community. As a result, the vast majority of individuals on the current waiting list for waiver services will never receive waiver services under the current system.
123. Furthermore, on information and belief, THHSC has failed to comply with its plan to provide HCS services to all eligible individuals requesting such services and who live in an ICF/MR of 14 beds or more. C. Implementation ofHCS and CLASS Waiver Services
124. Federal Medicaid obligations and promises notwithstanding, Defendants have failed to provide necessary HCS waiver services to eligible individuals with mental retardation or CLASS waiver services to eligible individuals with developmental disabilities.
125. Over 24,000 Texans with mental retardation or related conditions who have requested HCS and/or CLASS waiver services live in the community with caregivers who-due to age, infirmity, or other responsibilities--are unable to provide them with needed services. Due to repeated and chronic funding shortfalls, these individuals continue to wait for waiver services.
126. In the meantime, Plaintiffs living at home or in the community continue to be at risk for being institutionalized. The lack ofhabilitation, therapy, vocational services, and respite services means that many of these individuals are isolated at home and are without the ability to fully participate in community life and to maximize their potential. In addition, due to advancing age, infirmity, and other responsibilities, the caregivers ofmany individuals
Complaint - Page 27

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 28 of 31
with mental retardation and related conditions who are awaiting services are increasingly unable to provide the care that they need and may have little choice but to resort to institutionalization.
127. Similarly, for the 11,000 Texans with mental retardation and related conditions who are currently institutionalized in an ICF/MR and who are on the waiting list for HCS waiver services, Defendants repeated and chronic shortfalls in providing waiver services, along with their failure to provide many ofthese individuals with information about HCS and CLASS waiver services, has resulted in many ICF/MR residents waiting indefinitely for services in the most integrated setting.
128. Furthermore, the denial of HCS and CLASS waiver services both in the community and in institutions deny eligible individuals, like the Plaintiffs, necessary services within a reasonable period of time--a separate violation of federal Medicaid requirements.
129. Finally, denying HCS and CLASS waiver services to eligible Medicaid recipients, in tum, denies them the opportunity to have an individualized, person-centered placement in the community to the maximum extent practicable, as required by the ADA and its implementing regulations.
VIII. CAUSES OF ACTION Count I - Failure in Amount, Duration, and Scope 130. Plaintiffs incorporate by reference all the paragraphs set forth herein. 131. By their actions set forth above, Defendants' policies and practices violate federal requirements for an adequate amount, duration, and scope ofICF/MR-Ievel services, including 42 U.S.C. § 1396a(a)(10), 42 C.F.R. § 440.200 et seq.
Complaint - Page 28

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 29 of 31
Count II - Failure to Provide Choice of Services 132. Plaintiffs incorporate by reference all the paragraphs set forth herein. 133. By their actions set forth above, the Defendants have failed, and continue to fail, to provide eligible persons, including Plaintiffs, a choice between receiving the care they need in an institutional setting or receiving it through home and community-based services through the waiver program, in violation of 42 U.S.c. § 1983 and Title XIX of the Social Security Act, specifically 42 U.S.C. § 1396n(c)(2)(C).
Count III - Failure to Provide an Opportunity to Apply 134. Plaintiffs incorporate by reference all the paragraphs set forth herein. 135. Bytheir actions set forth above, Defendants refusal to accept applications from eligible Medicaid applicants, including Plaintiffs, denies these applicants the opportunity to apply for medical assistance in violation of 42 U.S.c. § 1396a(a)(8).
Count IV - Failure to Provide Prompt Services 136. Plaintiffs incorporate by reference all the paragraphs set forth herein. 137. By their actions set forth above, Defendants have failed and continue to fail to provide reasonably prompt waiver services to eligible persons, including Plaintiffs, in violation of 42 U.S.C. § 1983 and Title XIX of the Social Security Act, specifically 42 U.S.C. § 1396a(a)(8).
Count V - Violation of Equal Protection 138. Plaintiffs incorporate by reference all the paragraphs set forth herein.
Complaint - Page 29

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 30 of 31
139. By their actions set forth above, the Defendants have failed and continue to fail to provide Plaintiffs with equal protection regarding the provision of waiver services in violation of the Fourteenth Amendment of the United States Constitution.
Count VI - Violation of Due Process 140. Plaintiffs incorporate by reference all the paragraphs set forth herein. 141. By their actions set forth above, the Defendants have failed and continue to fail to provide Plaintiffs with equal protection regarding the provision of waiver services in violation of the Due Process Clause of the United States Constitution.
Count VII - Violation of the Americans with Disabilities Act 142. Plaintiffs incorporate by reference all the paragraphs set forth herein. 143. By their actions set forth above, the Defendants have failed and continue to fail to afford Plaintiffs with residential services in the most integrated setting appropriate to the needs ofthe individual with disabilities, in violation ofthe Americans with Disabilities Act, 42 U.S.C. § 12115 et seq., and the implementing regulations, 28 C.F.R. § 35.130(d).
Count VIII - Violation of § 504 of the Rehabilitation Act of 1973 144. Plaintiffs incorporate by reference all the paragraphs set forth herein. 145. By their actions set forth above, Defendants have failed and continue to fail to afford Plaintiffs with residential services in the most integrated setting appropriate to the needs of the individual with disabilities, in violation of the Rehabilitation Act, 29 U.S.C. § 794.
Complaint - Page 30

Case 1:02-cv-00600-RC Document 1 Filed 09/06/02 Page 31 of 31
PRAYER THEREFORE, Plaintiffs respectfully pray that this Court grant the following relief: A. Certify this action as a class action; B. Issue declaratory judgment concluding that Defendants' conduct was wrongful and unlawful under the causes of action alleged herein; C. Grant injunctive and other equitable relief, including, but not limited to, an injunction prohibiting Defendant from engaging in the conduct alleged herein; D. Award Plaintiffs reasonable attorneys' fees, expenses, and costs of suit. E. Award Plaintiff all other such appropriate relief, either at law or in equity, as the Court may deem appropriate, just, and proper. Dated: September 4,2002.
C/AJ11t~J'.~ZC-
GAf#rH A. CQBETI State Bar No. 04812300 ADVOCACY, INCORPORATED 7800 Shoal Creek Boulevard, Suite 171-E Austin, Texas 78757-1014 (512) 454-4816 (512) 454-3999 (Fax) ATTORNEY FOR PLAINTIFFS
Complaint - Page 31

 
 Case 1:02-cv-00600-RC Document 41 Filed 03/17/03 Page 1 of 11

EOD MAR 1 8 2003

FILED - CLERK
IN THE UNITED STATES DISTRICT CO~S. DISTRICT cOURT

FOR THE::;~~~~I~~;~~~FTEXA~IIl3 H~R '7 PM J: \5

CHRISTY MCCARTHY, et 00.,

§

) ! IX EA5TER ~-8 fA Ui10NT

Plaintiffs,

: . BY~

v. DON A. Gll...BERT, et aI.,
Defendants.

§

CIVIL ACTION No: 1:02-CV-600

§

§

JUDGE CLARK

§

§

MEMORANDUM AND ORDER Before the court are (1) "Defendants' Motion to Transfer Venue" [Doc. #13] based upon 28 U.S.C. § 1406(a), and (2) "Defendants' Supplemental Motion to Transfer Venue" [Doc. #22] based upon 28 U.S.C. § 1404(a). These motions are filed by Defendants Don Gilbert, in his official capacity as Commissioner of the Texas Health and Human Services Commission (HHSC), Karen Hale, in her official capacity as Commissioner of the Texas Department ofMental Health and Mental Retardation (TDMHMR), and James R. Hine, in his official capacity as Commissioner of the Texas Department of Human Services (TDHS). Upon review of the motions and responses on file, and for the reasons stated below, the court is of the opinion that the motions should be GRANTED.
1. FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs (eleven individuals and one association) filed their original complaint [Doc. #1] on September 6, 2002, in federal court in the Eastern District of Texas, Beaumont Division. Plaintiffs filed their first amended complaint adding four additional Plaintiffs on October 15,2002. [Doc. #7]. On November 22, 2002, Defendants filed a motion to transfer venue to the Western District of Texas, Austin Division. [Doc. #13]. All Defendants reside in the Western District; the

tl

Case 1:02-cv-00600-RC Document 41 Filed 03/17/03 Page 2 of 11
principal office of the Plaintiff association (ARC) and the residences of two individual Plaintiffs are located in the Western District. See Defs.' Reply to PIs.' Mem. in Opp'n to Defs.' Mot. to Transfer Venue at 3. [Doc. #21]. Plaintiffs filed a response to the venue transfer motion on December 9, 2002. [Doc. #19]. At the time of Plaintiffs' response, only two of the Plaintiffs resided in the Eastern District; none lived in Beaumont. See PIs. ' Mem. in Opp'n to Defs. ' Mot. to Transfer Venue at 2. [Doc # 19]. On December 23, 2002, Plaintiffs filed their second amended complaint adding six more Plaintiffs for a total of twenty-one individuals and one association. [Doc. #27]. The six additional Plaintiffs reside in the Eastern District ofTexas, Beaumont Division, and were added for the purpose of "avoiding" venue challenge. See PIs.' Sur Reply to Defs. ' Mot. to Transfer Venue at 3. [Doc #26]. On March 10,2003, the court granted the parties' motion to stay all proceedings until the motion to transfer venue was decided. See Order Granting Joint Mot. to Stay Initial Order Governing Proceedings [Doc. #40].
Plaintiffs claim that Defendants have failed to provide community-based living options under certain Medicaid waiver programs to persons with mental retardation and developmental disabilities within a reasonable period of time, by placing applicants on waiting lists for over a year. Plaintiffs'
Second Amended Compl. ff 1-2. The two Medicaid waiver programs at issue are the Home and
Community-based Services (RCS) administered by TDMHMR and the Community Living Assistance and Support Services (CLASS) program administered by TDHS. For those with mental retardation, the HCS program offers community-based options such as living at home, living in a small home-like setting, or living independently, and enables those individuals to avoid nursing
homes and other institutional settings. PIs.' Second Am. Compl. f 1. The CLASS program provides
the same options, except that it is designed for those with developmental disabilities other than
mental retardation. PIs. ' Second Am. Compl. f 1.
2

Case 1:02-cv-00600-RC Document 41 Filed 03/17/03 Page 3 of 11
To apply for the HCS program, an individual submits a written request to the local mental
retardation authority (MRA). The local MRA then does the following:!
(1) Registers the applicant on the local MRA's waiting list; (2) Notifies the applicant of a vacancy, after TDMHMR notifies local MRA of a vacancy in the
program; (3) Informs applicant of their right to choose a waiver program (MRLA) or ICFIMR
(Intermediate Care Facilities for the Mentally Retarded); (4) Provides applicant and family an explanation of services; (5) Documents the choice of services of the applicant; (6) If applicant chooses the HCS program, assigns a service coordinator to develop a person-
directed plan and conducts several activities associates with that; (7) Processes the applicant's request for enrollment (including obtaining a financial eligibility
determination, completing an MR/MC Assessment, administering the ICAP and recommending a Level of Need, developing the proposed IPC (Plan of Services) and informing applicant of all providers in the area; (8) Submits enrollment information to TDMHMR for its approval or denial; and (9) Once TDMR approves enrollment, local MRA provides the selected program provider with all relevant documentation.
Any individual whose request for HCS eligibility is denied or is not acted upon with
reasonable promptness is entitled to a fair hearing. 25 TAC § 409.505(d). A request for fair hearing
must be submitted to the TDMHMR Office of Medicaid Administration. [d.
The application process for the CLASS program is as follows:
(1) An individual must contact TDHS/CLASS through a toll-free line. See Aff. ofTommy Ford at 2.
(2) The interest list for the CLASS program is maintained at TDHS state office in Austin. [d. (3) Local TDHS offices must contact the state office for information or refer inquiries related
to the CLASS interest program to the state office. The CLASS program is not part ofTDHS regional or local operations. [d. (4) When a vacancy becomes available, TDHS in Austin contacts the applicant and asks the applicant to select a CLASS direct services agency and a CLASS case management provider agency to complete the eligibility determination process. [d. (5) When applicant returns the selection of provider agencies to TDHS in Austin, TDHS notifies those agencies and instructs them to initiate contact with the applicant. [d. (6) The provider agencies perform assessments related to eligibility and level-of-care, then submits those assessment to TDHS in Austin, where the final eligibility determination is made. [d.
!See 25 TAC §§ 409.523, 409.525; see also Defs.' Response to Pis.' Sur Reply to Defs.' Mot. to Transfer Venue at 4. [Doc. #30].
3

Case 1:02-cv-00600-RC Document 41 Filed 03/17/03 Page 4 of 11
Defendants seek to transfer for improper venue on the grounds that a "substantial part of the events giving rise to [Plaintiffs'] claims" did not occur in the Eastern District. 28 U.S.C. § 1391(b)(2).2 In addition, Defendants assert that the "substantial part of the events" occurred in the Western District. Id. On the other hand, Plaintiffs argue that a substantial part of the events giving rise to their claims occurred in the Eastern District. Id.
n. DISCUSSION
A. Is Venue Proper in the Eastern District ofTexas ? Venue is clearly proper in the Western District. Defendants reside there and the decisions
to place Plaintiffs on waiting lists, which are the events Plaintiffs complain of, were made in Austin. However, "[t]he analysis of whether or not venue is proper in a judicial district based upon
the occurrence of a 'substantial part of the events or omissions' does not require the Court to decide if the [Eastern] District of Texas is the best venue for a plaintiffs lawsuit." Bigham v. Envirocare ofUtah, Inc., 123 F. Supp. 2d 1046, 1048 (S.D. Tex. 2000). "Often, a lawsuit may allow for proper venue in more than one judicial district." Id. "[A] court must ask 'whether the district the plaintiff chose had a substantial connection to the claim, whether or not other forums had greater contacts." Id. at 1049 (citing Setco Enters. Corp. v. Robbins, 19 F.3d 1278, 1281 (8th Cir. 1994)).
Once defendants raise the issue of proper venue, plaintiffs bear the burden of proof to sustain venue. Id. at 1047. ''The court should accept uncontroverted facts contained in plaintiffs pleadings as true and resolve conflicts in the parties' affidavits in the plaintiffs favor." Id.
"In determining whether or not venue is proper, the Court looks to the defendant's conduct,
2 "A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) ajudicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought." 28 U.S.C. § 1391(b).
4

Case 1:02-cv-00600-RC Document 41 Filed 03/17/03 Page 5 of 11
and where that conduct took place." !d. (citing Woodke v. Dahm, 70 F.3d 983, 985-986 (8th Cir. 1995). "Actions taken by a plaintiff do not support venue." [d. "Moreover, the fact that a plaintiff residing in a given judicial district feels the effects of a defendant's conduct in that district does not mean that the events or omissions occurred in that district." [d. "Only the events that directly give rise to a claim are relevant." Jenkins Brick Co. v. Bremer, No. 01-16305 D.C., 2003 WL 367924, at *3 (11th Cir. Feb. 21, 2003). The only relevant events are those that have a "close nexus with the cause of action." [d. at *4. "And of the places where the [relevant] events have taken place, only those locations hosting a "substantial part" of the events are to be considered." [d. at *3.
In Bingham, 123 F. Supp. 2d at 1049, the district court held that venue was proper in the Southern District of Texas for Racketeer Influenced and Corrupt Organizations Act (RICO) and common law claims brought by plaintiffs, because plaintiffs were able to show that "substantial" events occurred there. Plaintiffs recited several instances where defendants personally, or through an agent, approached persons located in the Southern District, and spread misinformation about and harassed the plaintiffs and third parties. [d. at 1048. Even though an overwhelming majority of the alleged wrongful actions of the defendants occurred outside of the Southern District, the court found that the events noted above were substantial enough to support proper venue. [d. at 1049. The court rejected plaintiffs' proof of damaging effects on plaintiff and his reputation by defendants' conduct, because the "place where effects are felt is not in and of itself a proper venue." [d. at 1049, n.2.
In the case at bar, Plaintiffs contend that a substantial part of the events giving rise to their claims occurred here. Specifically, Plaintiffs assert that the following events occurred in the Eastern District: (1) Plaintiffs applied at their local Texas Medicaid office for a Medicaid waiver. Pis.' Mem. in
Opp'n to Defs.' Mot. to Transfer Venue at 3. [Doc. #19]. (2) The local Texas Medicaid official took their applications. !d.
5

Case 1:02-cv-00600-RC Document 41 Filed 03/17/03 Page 6 of 11
(3) The local Texas Medicaid official placed them on a waiting list. ld. (4) Two of the Plaintiffs, Allison Pratt and Sam Lindsay have experienced, and continue to
experience, unlawful denials of medically necessary services by Defendants. ld. at 8. (5) "While on these waiting lists, some for many years, Plaintiffs have been denied Medicaid
services for which they are eligible and have been denied services in the most integrated setting appropriate to their needs." ld. (6) Waiting years on the lists takes a "tremendous toll" and "increased the risks of regression and an institutional placement." Aff ofPaula Pratt at f 5. (7) Waiting lists that do not move have caused "tremendous hardships" and "devastating effects." See Aff ofMike Bright at ff 3, 6.
The court finds that the above acts occurring in the Eastern District, taken alone or together,
do not constitute a substantial part of the events giving rise to Plaintiffs' claim. Plaintiffs' claim is
that, by placing Plaintiffs residing in the Eastern District on waiting lists for HCS and CLASS
services for over a year, Defendants have failed to provide community-based living options to the
applicants. Pis.' Mem. in Opp'n to Defs.' Mot. to Transfer Venue at 2. [Doc. #19]. As the Bigham
court determined, the defendants' conduct and where that conduct took place are the factors to be
considered. Defendants' decisions, which allegedly caused applicants to be placed on waiting lists
for over a year, did not occur in the Eastern District. Plaintiffs themselves admit that those
"decisions are made in Austin." See Aff ofMike Bright at f 6.
Plaintiffs actions, namely, applying for Medicaid waivers at their local Medicaid office, do
not support venue; only the Defendants' actions do. The second and third events, the placement on
the waiting lists by local Medicaid officials, do not give rise to Plaintiffs' claim because they are not
themselves wrongful, and Plaintiffs do not argue that local authorities are wrongly applying the
State's policies. See Woodke v. Dahm, 70 F.3d at 986 (noting that manufacture of semi-trailers in
plaintiff's state of Iowa was insufficient to support venue in suit claiming defendant in another state
was passing off trailers under an identical trademark, where manufacturing is not itself wrongful).
Events four, five, six and seven all describe the effects of Defendants' alleged conduct of causing
Plaintiffs to be placed on waiting lists for over a year.
6

Case 1:02-cv-00600-RC Document 41 Filed 03/17/03 Page 7 of 11
The cases Plaintiffs cite are distinguishable on the facts. In McNiece v. Jindal, 1997 WL
767665 (B.D. La. 1997), a plaintiff was ejected from a nursing home in the district in which suit was filed. That was the event giving rise to the claim. In Andrade v. Chojnacki, 934 F. Supp. 817 (S.D. Tex. 1996), the attack on the Branch Davidian compound, the event that gave rise to the complaint, occurred in the Western District to which the suit was transferred. Any planning for the attack in Houston was not the basis for the complaint. In the present case, the only events giving rise to Plaintiffs' claim are the decisions made in Austin to place Plaintiffs on a waiting list.
Agreeing with the Bigham court's interpretationof28 U.S.c. 1391(b)(2), this court finds that the fact that Plaintiffs are experiencing alleged adverse effects in the Eastern District from Defendants' conduct does not mean that the events or omissions occurred here. Those events, which describe the effects of Plaintiffs not receiving specific services, do not directly give rise to the cause of action. Plaintiffs themselves assert that "[t]his case is not about whether any specific individual can obtain a specific service, but about whether the mandates of federal law are met." Aff. ofMike
Bright at 11 5.
For their part, Defendants assert facts showing that the decisions about how the mandates of federal law are met, with regard to the HCS and CLASS waiver programs, are made in the Western
District of Texas, specifically in Austin. As noted above, Plaintiffs agree with this proposition. In
short, it is undisputed that the events giving rise to Plaintiffs claims (the decisions to place Plaintiffs on waiting lists) occurred in Austin, in the Western District of Texas.
Accordingly, the court finds that venue is not proper in the Eastern District under 28 U.S.C. § 1391, and is proper in the Western District. In the interest ofjustice, the case should be transferred to the Western District pursuant to 28 U.S.C. § 1406(a). B. Convenience Factors
Assuming, arguendo, that venue is proper in the Eastern District, which it is not, the court 7

Case 1:02-cv-00600-RC Document 41 Filed 03/17/03 Page 8 of 11
finds that transfer to the Western District would be warranted under 28 U.S.C. § 1404(a). That Section provides that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. " Under this statute, the party seeking the transfer of venue bears the burden of demonstrating that the Court should, in its sound discretion, transfer the action. Bingham, 123 F. Supp. 2d at 1049 (citing Time, Inc. v. Manning, 366 F.2d 690,698 (5th Cir. 1966)). The factors a court may consider for a Section 1404(a) transfer include: (1) plaintiffs choice of forum; (2) the convenience of parties and witnesses; (3) the place of the alleged wrong; (4) the location of counsel; and (5) the cost of obtaining the attendance of witnesses. See 17 JAMES WM. MOORE ET AL., MOORE'SFEDERALPRACTICE§§ 111.13, et seq. (3ded. 1997); see also Robertson v. Kiamichi R.R. Co., 42 F. Supp. 2d 651,655 (E.D. Tex. 1999). 1. Plaintiffs Choice ofForum
Ordinarily, Plaintiffs' choice of forum in the Eastern District of Texas' Beaumont Division would be given significant weight. Robertson, 42 F. Supp. 2d at 655. However, where other factors weigh substantially in favor of transfer, the Plaintiffs' choice of forum may be of minimal consequence. Id. at 656. On one hand, Plaintiffs claim that because many of the named Plaintiffs reside in the Eastern District, this venue is more convenient. On the other hand, Plaintiffs claim that they seek to represent a class whose members are spread throughout the state of Texas. (Austin is more centrally located for a statewide class, for whom travel to Beaumont would not be convenient). See PIs.' Mem. in Opp 'n to Defs.' Mot. to Transfer Venue at 8. This duplicitous argument significantly reduces the weight given to Plaintiffs' forum choice. 2. Convenience ofParties and Witnesses
As to the convenience of parties and witnesses, the court looks to the locations ofthe parties. Robertson, 42 F. Supp. 2d at 657 (finding that "the logical starting point for analyzing convenience
8

Case 1:02-cv-00600-RC Document 41 Filed 03/17/03 Page 9 of 11
is to consider the parties' residences). It is undisputed that the Western District is where all Defendants, the principal office of Plaintiff association, ARC (which has over 3700 member families), and two individual Plaintiffs reside. Id. at 2. Plaintiffs claim - without stating any supporting facts - that a "majority of the named plaintiffs reside in this district." Pis.' Sur Reply to Defs.' Mot. to Transfer Venue at 3. After review of the pleadings, the court finds to the contrary. Of the named Plaintiffs, eight reside in the Eastern District, seven reside in the Southern District, three, including ARC, reside in the Western District, and one resides in the Northern District. See
Pis.' Second Am. Campi. 1f 17. For three of the named Plaintiffs, no addresses are given. Id. at 1f1f 17(1) - (n). Under the circumstances of the case at bar, even if a majority of the named
plaintiffs resided in this district, the court would find the Western District's Austin Division to be more convenient for the parties, because Austin is more centrally located than Beaumont, and the class which Plaintiffs seek to represent can be found allover Texas. See Mohamed v. Mazda Motor Corp., 90 F. Supp. 2d 757, 775 (B.D. Tex. 2000)(citing 15 CHARLES ALANWRIGlIT & ARTHURR. MrrLER, FEDERAL PRACTICE AND PROCEDURE § 3851, at 424-425 (2d ed. 1986)("noting that courts have uniformly 'refused to let applications for transfer become a 'battle of numbers. "')). 3. Place ofthe Alleged Wrong
As the court has determined, supra, the place of the alleged wrong is in the Western District's Austin Division. The alleged wrong asserted by Plaintiffs is that Defendants' policies and programs have caused Plaintiffs to remain on waiting lists for over a year. The decisions regarding Plaintiffs' eligibility for the programs at issue, as well as the waiting lists, are made in Austin. Defs.' Reply to Pis. ' Mem. in Opp'n to Defs. ' Mot. to Transfer Venue at 3. The policies and programs for IlliSC, TDMHMR, and TDHS, of which Plaintiffs complain, are developed by staff located at agency headquarters and administrative offices in Austin. Defs.' Mot. to Transfer Venue at 2. Thus, the
9

Case 1:02-cv-00600-RC Document 41 Filed 03/17/03 Page 10 of 11
place of the alleged wrong supports transferto the Western District's Austin Division. 4. Location of Counsel
"The location of counsel, while a factor in deciding whether to transfer, is given little weight as compared to other convenience factors." Robertson, 42 F. Supp. 2d. at 658. "Nevertheless, this Court may consider the location of counsel in deciding whether to transfer a case for convenience and justice under Section 1404(a)." Mohamed, 90 F. Supp. 2d at 777. The Plaintiffs list Geoffrey N. Courtney of Austin, Texas as Attorney-In-Charge and Garth A. Corbett of Advocacy, Inc. in Austin, Texas as co-counsel. Defendants list Nancy K. Juren, Assistant Attorney General of the Attorney General's Office in Austin, Texas, as their attorney. The fact that all attorneys for all parties are located in Austin is a point in favor of transfer to the Western Districts' Austin Division. 5. The Cost of Obtaining the Attendance of Witnesses
The Supreme Court has recognized that the purpose of Section 1404(a) is to "prevent the waste 'of time, energy and money' and to 'protect litigants, witnesses and the public against unnecessary inconvenience and expense.'" Van Dusen v. Barrack, 376 U.S. 612, 616 (1964). Congress has emphasized the importance of administering the federal court in an efficient manner, so as to avoid undue delay and expense. 28 U.S.C. §§ 471, et seq.; see also Judicial Improvements Act of 1990, Pub. L. 101-650, § 102, 104 Stat. 5089 (1990)(Congressional Statement of Findings). The very first rule of procedure requires that the rules be construed "to secure the just, speedy and inexpensive determination of every action." FED. R. CIY. P. 1.
As Defendants have pointed out, cost is a concern not only for the parties and their witnesses, but for the Texas state taxpayers, as well. See Defs. ' Mot. to Transfer Venue at 3. The policies and programs for HHSC, TDMHMR, and TDHS, of which Plaintiffs complain, are developed by staff located at agency headquarters and administrative offices in Austin. Defs.' Mot. to Transfer Venue
10

Case 1:02-cv-00600-RC Document 41 Filed 03/17/03 Page 11 of 11
at 2. The underlying records are at those Austin offices. Maintaining the instant case in the Eastern Districts' Beaumont Division would require a five hour drive from Austin for witnesses, records, and attorneys on both sides for every hearing. What might amount to a total of one hour's time for witnesses and attorneys to attend a hearing in federal court in Austin, would be at least a ten hour ordeal if venue were in Beaumont. In addition, the only requested relief for monetary damages is Plaintiffs' attorneys' fees; every trip to Beaumont by Plaintiffs' attorneys would only serve to add a minimum of ten hours to those fees - not to relief for Plaintiffs. Thus, this factor favors transfer to the Western District's Austin Division.
III. CONCLUSION The court finds that venue is not proper in the Eastern District under 28 U.S.C. § 1391, and is proper in the Western District. In the interest of justice, the case should be transferred to the Western District pursuant to 28 U.S.C. § 1406(a). Alternatively, the court finds that transfer to the Western District would also be warranted under 28 U.S.C. § 1404(a). It is therefore ORDERED that (1) Defendants' Motion to Transfer Venue [Doc. #13], and (2) Defendants' Supplemental Motion to Transfer Venue [Doc. #22] are GRANTED and that this case, McCarthy, et ai. v. Gilbert, et al., Cause No.1 :02-CV-600, is hereby transferred to the United States District Court for the Western District of Texas, Austin Division.
SIGNED March .:-11__ ,2003.
Ron Clark United States District Court Judge
11

 
 Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 1 of 28

FILED
IN THE UNITED STATES DISTRICT COURT !'!lC ~ !~i nlVISION
FOR mE ~~~::'~~~~TOF TEXAS. E:~~~:fJ~',Y,~H"2;.~x~,,

U.S.· . I\'S OFF ICE

CHRISTY MCCARTHY, et aI., Plaintiffs,

BY:
-------D-Ep~lIT~Y-

-vs-

Case No. A-03-CA-231-SS

DON A. GILBERT, et aI., Defendants.

ORDER
d
BE IT REMEMBERED on the Vaay of May 2003 the Court reviewed the file in the above-styled cause, specifically Defendants' Motion to Dismiss Plaintiff Arc of Texas, Plaintiffs' response, and Defendants' reply; and Defendants' Motion to Dismiss, Plaintiffs' response and Defendants' reply. The above-styled cause was transferred to this Court on April 11, 2003 with eleven pending motions, many ofwhich had been pending for several months. Having considered the motions to dismiss, responses and replies, the case file as a whole and the applicable law, the Court enters the following opinion and orders.
Factual and Procedural Background The plaintiffs in this case are twenty-one Texas residents who suffer from mental retardation or developmental disorders such as cerebral palsy and autism and the Arc of Texas, a nonprofit organization in Texas that provides programs and support for individuals with mental retardation and other developmental disabilities and their families. See Second Am. CompI. at ~ 17(a)-(v). The individual plaintiffs sue through their next friends. Due to their disabilities, the individual plaintiffs assert they qualify for Medicaid services under the Home and Community-based Waiver Services

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 2 of 28
("HCS") program and the Community Living Assistance and Support Services ("CLASS") waiver program. ld. at ~~ 1, 17. The plaintiffs allege they have all been on the waiting list for HCS or CLASS waiver services, or both, for at least a year and seek to represent a class of plaintiffs who have been on the waiting lists for HCS or CLASS waiver services for more than one year. !d. at ~~ 4, 17, 95-198. They contend the defendants never evaluated their eligibility for the waiver programs or denied their applications for waiver services but instead put them on a waiting list. ld. at ~~ 95198.
The defendants are Albert Hawkins,l the Commissioner of the Texas Health and Human Services Commission e'THHSC"), the state agency that administers the Medicaidprogram in Texas, in his official capacity; Karen Hale, the Commissioner of the Texas Department of Mental Health and Mental Retardation ("TDMHMR"), which is responsible for administering the HCS waiver program, in her official capacity; and James R. Hine, the Commissioner of the Texas Department of Human Services ("TDHS"), which administers the CLASS waiver program, in his official capacity. ld. at ~~ 18-20; see also TEX. GOV'T CODE § 531.021; TEX. HEALTH & SAFETY CODE § 531.001 et seq. The defendants move to dismiss the Arc ofTexas as a plaintifffor lack of standing pursuant to Rule 12(b)(I) of the Federal Rules of Civil Procedure. They also move to dismiss all of the plaintiffs' claims pursuant to Rules 12(b)(I) and 12(b)(6) of the Federal Rules of Civil Procedure. The plaintiffs filed amotion for class certification, but the Court delayed the time for the defendants to respond until the Court's ruling on the motions to dismiss.
1 Since this case was filed, Albert Hawkins has become the Commissioner of THSSC and Don Gilbert, who was the original defendant, has retired. See Notice of Substitution of Albert Hawkins for Don Gilbert [#8]. Accordingly, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court substitutes Albert Hawkins for Don Gilbert as a defendant in this case.

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 3 of 28
Analysis I. Standard for Motions to Dismiss
The defendants move to dismiss under Rules 12(b)(1) and 12(b)(6) ofthe Federal Rules of Civil Procedure.2 In deciding whether to dismiss for failure to state a claim pursuant to Rule 12(b)(6) ofthe Federal Rules ofCivil Procedure, ''the Court must take the factual allegations as true, resolving any ambiguities or doubts regarding the sufficiency ofthe claim in favor ofthe plaintiff." Fernandez-Montes v. AlliedPilots Ass 'n, 987 F.2d 278,284 (5th Cir. 1993). The Court should then dismiss only if"it appears beyond doubt that the plaintiffcan prove no set of facts in support ofhis claim which would entitle him to relief." Conley v. Gibson, 78 S. Ct. 99, 102 (1957). In analyzing a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(I), the Court evaluates the plaintiffs claims under this same standard. See Benton v. United States, 960 F.2d 19, 21 (5th Cir.1992). II. Texas Medicaid Waiver Program
Medicaid is a program jointly funded by federal and state governments through which the federal government provides financial assistance to states so they can furnish medical services to low-income and disabled persons. E.g., Wilder v. Virginia Hasp. Ass 'n, 496 U.S. 498, 502, 110 S.Ct. 2510 (1990); 42 U.S.C. § 1396 et seq. ("Medicaid Act"). A state's participation in Medicaid is voluntary, but ifa state chooses to participate in the program, it must comply with certain statutory
2 The motions to dismiss were filed before the plaintiffs filed their Second Amended Complaint on December 23,2002. Rather than requiring the defendants to refile their motions, the Court will apply the defendants' arguments in their motions to dismiss to the claims in the Second Amended Complaint.
-3-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 4 of 28
and regulatory requirements. Wilder, 496 U.S. at 502. For instance, a state must submit a Medicaid plan to the Secretary of Health and Human Services for approval, describing the nature and scope ofthe state's Medicaid program. Wilder, 496 U.S. at 502. Among otherrequirements, the state plan must provide for medical assistance to be furnished to eligible applicants with reasonable promptness; grant an opportunity for a fair hearing to applicants whose claims for medical assistance are denied or not acted upon with reasonable promptness; and include reasonable standards for determining eligibility. 42 U.S.C. § 1396a(a)(3), (8), (17).
Under an amendment to the Medicaid Act, a state can apply to the Secretary ofHealth and Human Services for a waiver ofcertain statutory requirements so the state can develop home- and community-based programs as alternatives to placing Medicaid recipients in inpatient facilities under the state Medicaid plan. 42 U.S.C. § 1396n(c)(also known as "section 1915(c) waivers"); 42 C.F.R. § 440.180. To be approved, a waiver program must not result in higher overall expenditures than what would have been incurred through the plan. 42 U.S.C. § 1396n(c)(2).
Texas set up the HCS and CLASS waiver programs under this provision and received approval from the federal Center for Medicare and Medicaid Services. These programs provide services to avoid the need for institutionalization in an intermediate care facility for the mentally retarded ("ICFIMR") or nursing facility. The HCS program serves mentally retarded individuals who live in their own homes, with families, in foster care settings or in small group homes.3 It includes services such as case management, respite care, minor home modifications, residential
3 The Mental Retardation Local Authority ("MRLA") waiver program, which is the subject of another lawsuit before this Court, provides the same services as the HCS waiver but has a different case management entity. See Mot. to Dismiss at 10. In June 1998, the MRLA waiver replaced the HCS waiver in some portions of the state and will replace the HCS waiver statewide by September 2003. Id.
-4-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 5 of 28
assistance, and counseling and therapy. See Second Am. Compi. at ~ 74. The program serves approximately 4,900 recipients. See Mot. to Dismiss, Ex. 3, Att. 1. The CLASS waiver program provides services such as case management, physical and occupational therapy and minor home modifications to individuals with developmental disabilities other than mental retardation. See Second Am. Compi. at ~~ 77,82. The CLASS program serves approximately 1,963 beneficiaries. See Mot. to Dismiss, Ex. 4, Att. 1. In applying for a waiver, a state "must indicate the number of unduplicated beneficiaries to which it intends to provide waiver services in each year ofits program. This number will constitute a limit on the size of the waiver program unless the State requests and the Secretary approves a greater number ofwaiver participants in a waiver amendment." 42 C.F.R. §441.303(f)(6). It is undisputed thatthe state has already metthe limits ofCLASS and ReS waiver participants set forth in its waiver applications.
The plaintiffs contend there are 17,500 people who have requested RCS waiver services and been placed on awaiting list, and there are 7,300 people who have requested CLASS waiver services and been placed on a waiting list. See Second Am. CompI. at ~~ 72, 80. They assert these individuals are currently institutionalized in an ICF/MR or run the risk ofbeing institutionalized if the state does not provide them sufficient waiver services to avoid institutionalization. Id. at ~~ 9192. The plaintiffs challenge the defendants' failure to provide RCS and CLASS waiver services to the individuals on the waiting lists as aviolation ofthe Medicaid Act, the United States Constitution, the Americans with Disabilities Act, and the Rehabilitation Act of 1973. They seek declaratory and injunctive relief as well as attorneys' fees and costs of suit.
-5-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 6 of 28
III. The Arc of Texas' Standing to Sue The defendants move to dismiss the Arc of Texas as a plaintiff under Rule 12(b)(l) of the
Federal Rules ofCivil Procedure. For the Court to have jurisdiction over a matter under Article ill, the plaintiff must prove it has standing to sue. Specifically, the plaintiff must show it suffers an injury-in-fact that is fairly traceable to the defendants' challenged conduct and is likely to be redressed by the relief the plaintiff seeks from the Court. Lujan v. Defenders ofWildlife, 504 U.S. 555,560, 112 S.Ct. 2130 (1992). An organization may sue on its own behalfbased on an injury to the organization itself or in a representational capacity, on behalf ofits members' injuries. To sue on its own behalf, the organization must show it has suffered a concrete and demonstrable injury to its activities that is "far more than simply a setback to the organization's abstract social interests." Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). The organization's expenditure of resources in an attempt to counteract adefendant's allegedly unlawful practices is asufficient injury, although devoting resources to litigation challenging the practices is not. Ass 'n ofCmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, 360 (5th Cir. 1999). An organization has standing to sue in a representational capacity on behalf ofits members when: (1) its members have standing to sue in their own right; (2) the interests the organization seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington State Apple Adver. Comm 'n, 432 U.S. 333, 343,97 S.Ct. 2434 (1977).
The Arc of Texas claims standing to sue on its own behalf and on behalf of its members. Because the defendants challenge Arc's standing at the motion to dismiss stage, "general factual allegations ofinjury resulting from the defendant's conduct may suffice." Fowler, 178 F.3d at 357
-6-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 7 of 28
(quotations omitted). However, because the Arc of Texas attached affidavits to its response, the Court will consider them as well as the allegations in the pleadings. In the complaint, the Arc of Texas states it ''works to support families, advance public policies, provide training programs, and build a statewide network of advocates" for people with mental retardation and "continues to advocate for the inclusion ofpeople with mental retardation and other developmental disabilities in all aspects ofsociety." Second Am. CompI. at ~ 17(P). It contends it has suffered an injury from the defendants' denial of waiver services to its members because it has been forced to devote more resources to providing services such as consultation, training, information, referrals and assistance. Its executive director, Mike Bright, testifies the Arc ofTexas has worked for six years with the Texas legislature and state agencies to address the waiver service waiting lists. See Plaintiffs' Response, Ex. 1 (''Bright Aff."), at § 4. In Cleburne Living Ctr.. Inc. v. City a/Cleburne, Tex., 726 F.2d 191, 203 (5th Cir. 1984), the Fifth Circuit held the association did not have standing to sue because it merely alleged the City Council's decision impaired its abstract interest in the advancement of interests ofmentally retarded individuals. The Court stated the association would have had standing if it had shown (1) it provides counseling and referral services to mentally retarded individuals seeking group homes and (2) it had expended significant resources to combat the City Council's discrimination. Cleburne, 726 F.2d at 203. The Arc ofTexas has alleged both ofthese factors. The defendants contend the Arc has not shown dollar amounts or specific resources expended on this effort; however, such evidence is unnecessary at the motion to dismiss stage. The Court finds the Arc ofTexas has made a sufficient preliminary showing ofconcrete injury to demonstrate standing.
The Arc of Texas also asserts standing in a representative capacity. It alleges hundreds of its members are on CLASS and HCS waiting lists, including several plaintiffs in this lawsuit. See
-7-

-- Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 8 of 28
Bright Aff. at § 3. These members have standing to sue in their own right, as they have applied for waiver services and been placed on waiting lists. E.g., Plaintiffs' Response, Ex. 2 ("Pratt Aff."). The interests the Arc seeks to protect are relevant to the organization's purpose ofadvocating for the inclusion of individuals with mental retardation and developmental disabilities in the community. See Bright Aff. at § 2. Finally, the Arc ofTexas' claims for declaratory and injunctive reliefdo not require the individual members to participate in the lawsuit. This lawsuit challenges the state agencies' apparent policy orpractice ofplacing waiver applicants on waiting lists before determining their eligibility. The primarily legal questions involved do not require the Court to delve into the individuals' specific medical history or needs. Accordingly, the Court finds the Arc ofTexas meets the Hunt test at this preliminary stage and has standing to sue on behalf of its members. IV. Section 1983 Causes of Action
The plaintiffs' causes ofaction alleging violations ofvarious provisions ofthe Medicaid Act (Counts I through IV and VI) and violations ofthe Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (Counts VI and VII) must all be brought under 42 U.S.C. § 1983. Under section 1983, aplaintiffmay sue aperson who, acting under color ofstate law, deprived her "ofany rights, privileges, or immunities secured by the Constitution and laws" ofthe United States. 42 U.S.C. § 1983.
Section 1983 allows plaintiffs to assert rights under certain federal statutes; however, "a plaintiffmust assert a violation of a federal right, not merely a violation of federal law." Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 1359 (1997) (emphasis in original); Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502 (1980). Plaintiffs bear the burden of showing the statute creates an enforceable right. Gonzaga Univ. v. Doe, 536 U.S. 273, 284, 122 S.Ct. 2268, 2276
-8-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 9 of 28
(2002). In detennining whether a plaintiff has asserted a statutory right, courts consider three factors: (1) whether Congress intended that the statutory provision benefit the plaintiff; (2) whether the right asserted is so "vague and amorphous" that enforcement ofthe right would strain judicial competence; and (3) whether the statute unambiguously imposes abinding obligation on states using mandatory, not precatory, tenns. Blessing, 520 U.S. at 340-41, 117 S.Ct. at 1359. If the plaintiff demonstrates a statute creates a right, the rebuttable presumption that the right is enforceable under section 1983 is overcome ifCongress specifically foreclosed aremedy under section 1983 expressly or implicitly, by creating a comprehensive enforcement scheme in the statute. Blessing, 520 U.S. at 341, 117 S.Ct. at 1360. The Supreme Court recently reiterated "it is rights, not the broader or vaguer 'benefits' or 'interests' that may be enforced under the authority of [section 1983]" and "reject[ed] the notion that [its] cases pennit anything short of an unambiguously conferred right to support a cause of action brought under § 1983." Gonzaga, 536 U.S. at 283, 122 S.Ct. at 2275.
Only rarely has the Supreme Court held a statute enacted under Congress's spending power creates a right enforceable under section 1983. In Maine v. Thiboutot, 448 U.S. 1,100 S.Ct. 2502 (1980), the first case to recognize section 1983 suits may be brought to enforce rights created by federal statutes, the Court held plaintiffs could recover payments withheld by a state agency in violation of the Social Security Act. In Wright v. Roanoke Redevelopment & Housing Auth., 479 U.S. 418,107 S.Ct. 766 (1987), the Court held the rent-ceiling provision ofthe Public Housing Act ''was a mandatory limitation focusing on the individual family and its income" and therefore conveyed benefits "sufficiently specific and definite to qualify as enforceable rights." 479 U.S. at 430,432, 107 S.Ct. at 773-74.
-9-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 10 of 28
Finally, and most heavily emphasized by the plaintiffs, the Court in Wilder v. Virginia Hosp. Ass 'n, 496 U.S. 498, 110 S.Ct. 2510 (1990), held a reimbursement provision ofthe Medicaid Act creates an enforceable right for individual health care providers. The provision, the Boren Amendment to the Medicaid Act, requires states to reimburse health care providers using rates the state "finds, and makes assurances satisfactory to the Secretary" are "reasonable and adequate" to meet the costs of"efficiently and economically operated facilities." Wilder, 496 U.S. at 507, 110 S.Ct. at 2516 (quoting the legislative history ofPub. 1. No. 92-603). The Court held this provision was undoubtedly intended to benefit health care providers and is not too vague and amorphous because it requires the state ''tojudge the reasonableness ofits rates against the objective benchmark ofan'efficiently and economicallyoperated facilit[y]' providing care in compliance with federal and state standards while at the same time insuring 'reasonable access' to eligible participants." Wilder, 496 U.S. at 519, 110 S.Ct. at 2523. The Court was not concerned that states have some discretion in choosing among reasonable methods of calculating rates, because courts can inquire into the reasonableness ofthe rates and ''there certainly are some rates outside that range that no State could ever find to be reasonable and adequate under the Act." Wilder, 496 U.S. at 520, 110 S.Ct. at 2523 (emphasis in original).
The Wilder decision does not mean all Medicaid Act provisions are enforceable under section 1983, however; the Fifth Circuit recently held a state's failure to "substantially comply" with participation goals or other systemwide performance standards, to adequately train and staff case managers, to report certain data, and to train health care providers in conjunction with its early and periodic screening, diagnostic, and treatment services program under Medicaid may not be challenged under section 1983. Frazar v. Gilbert, 300 F.3d 530, 545, 548 (5th Cir. 2002), cert.
-10-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 11 of 28
granted in part sub nom Frew ex reI. Frew v. Hawkins, 123 S.Ct. 1481 (2003). Moreover, the Supreme Court acknowledged it has backed away from the Wilder decision in recent years: "Our more recent decisions, however, have rejected attempts to infer enforceable rights from Spending Clause statutes." Gonzaga, 122 S.Ct. at 2274. Therefore, it is necessary for the Court to evaluate each statutoryprovision the plaintiffs assert and decide whether Congress created aright enforceable under section 1983.
A. Comparability Requirement under 42 U.S.C. § 1396a(a)(lO)(B) The plaintiffs raise a cause ofaction under the comparability provision ofthe Medicaid Act, which requires a state Medicaid plan to provide "that the medical assistance made available to any individual . . . shall not be less in amount, duration, or scope than the medical assistance made available to any other such individua1." 42 U.S.C. § 1396a(a)(10)(B). Additionally, the plaintiffs allege the defendants violated the regulation implementing this subsection ofthe act, which states: "Each service must be sufficient in amount, duration, and scope to reasonably achieve its purpose." 42 C.F.R. § 440.230(b).4 In their response to the motion to dismiss, the plaintiffs point to another regulatory provision not included in their complaint, which states: "The plan must provide that the services available to anycategoricallyneedyrecipient under the plan are not less in amount, duration, and scope than those services available to a medically needy recipient." 42 C.F.R. § 440.250. The plaintiffs claim this statutory provision and the corresponding regulations create an "equality principle" requiring state Medicaid programs to provide the same or similar medical
4The Court will assume for purposes of this Order that regulations can create enforceable rights under section 1983. The Fifth Circuit has not explicitly decided this question, although it noted even if regulations could create rights, the rights could not be enforceable unless the underlying statute itselfcreated enforceable rights. E.g., Gracia v. Brownsville Housing, 105 F.3d 1053, 1057 (5th Cir. 1997).
-11-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 12 of 28
treatment to all individuals within a particular category. E.g., Blanchard v. Forrestt 71 F.3d 1163 (5th Cir. 1996) (holding state violated 42 U.S.C. § 1396a(a)(1O)(B) by providing greaterretroactive payments to some Medicaid applicants than others); Sobky v. Smoleyt 855 F.Supp. 1123t 1140 (E.D. Ca. 1994). They contend the defendants violate this requirement by not providing CLASS and HCS waiver services to all categorically needy individuals who have applied for them.
The first question in determining whether the plaintiffs may enforce a statutory provision under section 1983 is whether Congress intended the provision to benefit the plaintiffs. The waiver provision ofthe Medicaid Act expressly allows states participating in the waiver program to waive the comparability requirement of 42 U.S.C. § 1396a(a)(10)(B). See 42 U.S.C. § 1396n(c)(3). Therefore, Congress did not intend the comparability provision to benefit individuals seeking services under a waiver plant and the plaintiffs have no right to sue to enforce the provision under section 1983.
B. Freedom of Choice Provision of 42 U.S.C. § 1396n(c)(2)(C) The plaintiffs assert a violation of the freedom of choice provision of the Medicaid Actt which states: A waiver shall not be granted under this subsection unless the State provides assurances satisfactory to the Secretary that . . . such individuals who are determined to be likely to require the level ofcare provided in a hospitaltnursing facilityt or intermediate care facility for the mentally retarded are informed of the feasible alternativest if available under the waiver, at the choice of such individuals, to the provision of inpatient hospital services, nursing facility servicestor services in an intermediate care facility for the mentally retarded. 42 U.S.C. § 1396n(c)(2)(C). The plaintiffs claim the defendants violated this provision by failing to inform them offeasible alternatives to ICF/MR facilities, including the CLASS and HCS waiver services, and failing to implement the plaintiffs' choices for Medicaid services by requiring the
-12-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 13 of 28
plaintiffs to remain on waiting lists for extended periods oftime. See Second Am. Compl. at ~ 205. The first inquiry is whether Congress intended this provision to benefit the plaintiffs. The
plaintiffs point to cases holding this provision was designed to benefit Medicaid recipients. E.g., Wood v. Tompkins, 33 F.3d 600, 608 (6th Cir. 1994) (finding the provision serves "to protect the health and welfare ofhome care Medicaid recipients"); Cramer v. Chiles, 33 F.Supp.2d 1342, 1351 (S.D. Fla. 1999) (holding the provision was designed to benefit plaintiffs who are Medicaid recipients in intermediate care facilities). However, to hold Congress intended this provision to benefit the plaintiffwould mean Congress intended every provision of § 1396n(c), which sets forth the requirements for granting waivers to states, to benefit every potential recipient of Medicaid waiver services simply because "the Medicaid program is generally intended to benefit qualifying recipients." Frazar, 300 FJd at 539. The real issue is whether a particular subsection of section 1396n(c) "is 'phrased in terms' benefitting recipients in that it directly focuses on" their rights or if it "does not focus directly on" recipients but merely gives them "an indirect benefit." Evergreen Presbyterian Ministries v. Hood, 235 FJd 908, 927, 929 (5th Cir. 2000). This subsection is not written in terms of"individual entitlement" and is "not concerned with 'whether the needs of any particular person have been satisfied." Gonzaga, 122 S.Ct. at 2277-78 (quoting Blessing, 520 U.S. at 343) (emphasis in original). Instead, it prescribes what states must include in their waiver applications to receive approval by the Secretary ofHealth and Human Services.
This subsection requires state waiver plans to inform individuals likely to require institutionalization of the "feasible" alternatives to being institutionalized "if available under the waiver." 42 U.S.C. § 1396n(c)(2)(C). While it appears Congress intended recipients to receive the benefit of being able to choose between the feasible alternatives, the subsection does not give
-13-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 14 of 28
recipients this choice when the alternatives are not feasible or are not available under the waiver. A subsequent subsection acknowledges waiver plans may have limits on the number of recipients and the corresponding regulations require state waiver applications to indicate the number of unduplicated beneficiaries of the waiver services, which "will constitute a limit on the size ofthe waiver program unless the State requests and the Secretary approves a greater number of waiver participants in a waiver amendment." 42 C.F.R. § 441.303(f)(6). When this mandatory cap has already been reached, waiver services are no longer "feasible" and "available" to applicants, and plaintiffs applying for services after the slots have been filled do not have an entitlement to choose to receive them. E.g., Makin v. Hawaii, 114 F.Supp.2d 1017, 1027-28 (D. Haw. 1999) ("[W]hile the Medicaid Act requires a state to offer feasible alternatives available under the waiver to all eligible individuals, the [waiver] program is not'available' under the statute when the slots available under the 'population limit' have been filled."). Therefore, the Court finds Congress did not intend to create an individual right enforceable under section 1983 for individuals who apply for Medicaid waiver services after the ceiling ofrecipients identified in the waiver application and approved by the federal government has been met or surpassed. The plaintiffs do not dispute that the ceilings have been met for both waiver programs. Therefore, they do not have a right to sue under section 1983 to enforce this provision.
C. Reasonable Promptness Requirement of 42 U.S.C. § 1396a(a)(8) The plaintiffs also sue under the statutory provision requiring a state Medicaid plan to "provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals." 42 U.S.C. § 1396a(a)(8). Additionally, the plaintiffs assert the
-14-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 15 of 28
defendants violated the regulation requiring the agency to "[f]urnish Medicaid promptlyto recipients without any delay caused by the agency's administrative procedures." See 42 C.F.R. § 435.930(a). The plaintiffs contend the defendants violated the reasonable promptness requirement by refusing to accept applications for waiver services and failing to provide applicants access to RCS and CLASS waiver services in a timely manner. See Second Am. Compi. at" 208, 212.
As the plaintiffs point out, other courts have held the "reasonable promptness" provision creates an individual right enforceable under section 1983. E.g., Doe v. Chiles, 136 FJd 709 (11 th Cir. 1998); Lewis v. New Mexico Dep't ofHealth, 94 F.Supp.2d 1217 (D.N.M. 2000). However, these cases involved plaintiffs who had been found eligible for a particular Medicaid service and were waiting to receive the service: for instance, in Chiles, the plaintiffs had been found eligible for and were on the waiting lists to enter intermediate care facilities. Chiles, 136 FJd at 711. In this case, the plaintiffs have not been determined eligible to receive the waiver services; in fact, they complain that the defendants put them on a waiting list upon receiving their applications instead of evaluating their eligibility. E.g., Second Am. Compi. at' 96. While the plaintiffs may technically qualify for HCS and CLASS waiver services, the cap on the number ofwaiver recipients functions as "a constraint on eligibility," and "[i]ndividuals who apply after the cap has been reached are not eligible." Boulet, 107 F.Supp.2d 61, 77 (D. Mass. 2000). The plaintiffs do not claim they were prevented from filing applications; instead, they allege their applications were not evaluated. Because the plaintiffs have not been determined "eligible," they have not satisfied the first prong of Blessing, as they are not among the class of individuals Congress intended to benefit. While this Court finds it problematic that the state can avoid the reasonable promptness requirement simply by putting applicants on a waiting list before considering their eligibility instead of afterward, the
-15-

- Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 16 of 28
statute, regulations and state waiver plan as approved by the federal agency establish the ceiling as an additional eligibility requirement and render applicants automatically ineligible. Therefore, the plaintiffs have no entitlement to reasonable promptness and cannot enforce this subsection under section 1983.
D. Fair Hearing Requirement under 42 U.S.C. § 1396a(a)(3) The plaintiffs contend the defendants violated the due process requirements under the Medicaid Act by failing to give them notices and opportunities to be heard when their applications were not acted on with reasonable promptness. See Second Am. Compi. at ~ 223. The due process provision requires a state Medicaid plan to "provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness." 42 U.S.C. § 1396a(a)(3). The regulations adopted pursuant to this provision require state agencies to provide notice of a right to a hearing when an individual applies for Medicaid; when the agency takes any action affecting his or her claim; when a nursing facility notifies a resident of a transfer or discharge; and when the individual receives an adverse determination with regard to preadmission screening and annual review. 42 C.F.R. §§ 431.210; 431.206. The regulations require agencies to grant an opportunity for a hearing to any applicant whose claim for services is denied or any recipient who "believes an agency has taken an action erroneously." 42 C.F.R. § 431.220. An "action" is defined as "a termination, suspension, or reduction of Medicaid eligibility or covered services." 42 C.F.R. § 431.201. Under the first prong of Blessing, the plaintiffs have shown they are individuals Congress intended this subsection to benefit. While the plaintiffs do not allege the state took an "action" against them as defined in the regulations, because it did not terminate, suspend or reduce their
-16-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 17 of 28
benefits, they do allege the state did not act on their applications for waiver services with reasonable promptness and did not provide notice that their requested services were being denied or delayed. E.g., Second Am. Compi. at ~~ 96, 98. Therefore, they are among the individuals to whom the statute grants an entitlement to notice. The Court needs more information about the procedure the state used before determining whether the state "acted" upon the plaintiffs' applications by placing them on waiting lists within the meaning of the Medicaid Act, even though it is clear the state did not take an "action" as it is defined in the statute. The Court also needs more factual development ofthe record to decide whether the state provided adequate notice under the statute. The due process provision is not too vague and amorphous for the Court to enforce; on the contrary, the regulations set forth specific notice and hearing requirements, and courts are accustomed to analyzing due process questions in both civil and criminal contexts. Finally, the statute and regulations speak in mandatory terms, using the word "must" and detailing precisely when and what notice and opportunity for a hearing is required. Several other courts have found this subsection creates aright enforceable under section 1983. E.g., Bryson v. Shumway, 308 F.3d 79, 90 (1st Cir. 2002) (holding subsection gives waiver applicants rights to notice when placed on awaiting list); Meachem v. Wing, 77 F.Supp.2d 431,441 (S.D.N.Y. 1999). The Court holds the due process provision creates an enforceable right for these plaintiffs, although it makes no judgment regarding the merits of the claim.
E. Due Process Requirement under Fourteenth Amendment The plaintiffs also argue the defendants violated the Due Process Clause ofthe Fourteenth Amendment to the United States Constitution. To demonstrate a procedural due process violation of constitutional proportions, a plaintiffmust show (1) she was deprived of a property interest (2)
-17-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 18 of 28
without notice and an opportunity to be heard. Board ofRegents ofState Colleges v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705 (1972). To have a property interest in a benefit, a plaintiff must have "a legitimate claim of entitlement to it." Roth, 408 U.S. at 577, 92 S.Ct. at 2709. Property interests are not found in the Constitution but in independent sources such as statutes, regulations, or contracts. Roth, 408 U.S. at 577-78, 92 S.Ct. at 2709. A plaintiff must show the relevant law unambiguously creates the asserted interest. Hopkins v. Stice, 916 F.2d 1029, 1031 (5th Cir. 1990).
As discussed above, the only entitlement the plaintiffs have under the Medicaid Act is to certain notice upon the state's receipt of their waiver applications and when their claims were not acted upon with reasonable promptness. In other words, they have shown they have aright to certain due process protections. It would be circular and absurd to allow the plaintiffs to raise a constitutional due process claim based on the agency's denial oftheir procedural due process right to notice and a hearing before denying their statutory right to notice and a hearing. The due process provision of the Medicaid Act meets and surpasses constitutional due process requirements. The Constitution does not provide a right to notice and a hearing when an applicant simply applies for a benefit and his application is not acted upon with reasonable promptness. That right is merely statutory, not constitutional. Accordingly, the Court finds the plaintiffs have not demonstrated a liberty or property interest sufficient to assert a constitutional due process violation.
F. Equal Protection Requirement under Fourteenth Amendment Finally, the plaintiffs contend the defendants violate their constitutional right to equal protection by"establishing, subsidizing, and otherwise sanctioning enactments, programs, policies, and practices that have excluded, separated, and segregated persons with mental retardation or
developmental disabilities." Second Am. Compl. at ~ 225. The defendants argue the plaintiffs fail
-18-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 19 of 28
to state an equal protection violation because they do not identify a similarly situated group that has received more favorable treatment. E.g., Plyler v. Doe, 457 U.S. 202,216, 102 S.Ct. 2382 (1982) ("The Equal Protection Cla~se directs that 'all similarly circumstances shall be treated alike.' But so too, '[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.'" (citations omitted».5 The complaint does not identify what group the defendants have treated more favorably than the plaintiffs. In their response, the plaintiffs state they have been treated differently than disabled individuals who have received waiver services. However, the people who have received waiver services are not similarly situated to the plaintiffs, because those people presumably applied for services before the plaintiffs did and therefore were not wait-listed. The plaintiffs do not allege the defendants discriminated against applicants who applied for waiver services at the same time by giving waiver services to some but placing others on a waiting list. Accordingly, the Court holds the plaintiffs have not stated a discrimination claim under the Equal Protection Clause.
v. Americans with Disabilities Act
Title II ofthe Americans with Disabilities Act ("ADA") states: "no qualified person with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits ofthe services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The plaintiffs contend the defendants violated Title II by failing to provide them "community mental retardation or developmental disability habilitation and support services in the most integrated setting appropriate" and failing to provide HCS and CLASS
5 Unlike the Equal Protection Clause, the ADA does not require individuals making a discrimination claim under the statute to demonstrate uneven treatment of similarly situated individuals. E.g., Olmstead v. Zimring, 527 U.S. 581, 598, 119 S.Ct. 2176 (1999).
-19-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 20 of 28
waiver services to individuals in ICFIMRs that would allow them to avoid institutionalization. Second Am. CompI. at ~ 219-20. The defendants move to dismiss the plaintiffs' claim under Title II for failure of subject matter jurisdiction and for failure to state a claim upon which relief can be granted, raising arguments under the Eleventh Amendment, Commerce Clause and the Tenth Amendment.
A. The Ex Parte Young Exception The defendants contend the plaintiffs' ADA claim is barred by the Eleventh Amendment because they cannot invoke the Exparte Young exception to Eleventh Amendment immunity. States and state agencies acting as the anns of the state are immune from suit in federal court under the Eleventh Amendment. However, a plaintiff may sue a state official in his official capacity for prospective injunctive relief if the plaintiffhas standing to sue and demonstrates the official has a sufficient connection to the enforcement ofthe challenged statute. See Ex parte Young, 209 U.S. 123, 155-57 (1908) ("individuals who, as officers ofthe state, are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected [by] an unconstitutional act, violating the Federal Constitution, may be enjoined by aFederal court ofequity from such action."). The defendants contend the plaintiffs cannot invoke the Ex parte Young exception even though they sued state officials responsible for enforcing the statute, because Title II of the ADA only authorizes suits against state entities, which are immune under the Eleventh Amendment. The end result of this argument is the plaintiffs could not sue under Title II at all in this case, and plaintiffs could never sue to enforce Title IT against state entities. The defendants rely on a Seventh
-20-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 21 of 28
Circuit case holding a plaintiff could not sue a state official in his official capacity under Title IT because "the proper defendant usually is an organization rather than a natural person," so ''there is no personal liability under Title II." Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000); see also Lewis v. New Mexico Dep it a/Health, 94 F.Supp.2d 1217, 1230 (D.N.M. 2000).
However, a more recent Seventh Circuit decision notes Walker has been "uniformly rejected by the other courts to have considered the issue" and holds it "did not survive Board o/Trustees v. Garrett, 531 U.S. 356, 374 n.9, 121 S.Ct. 955, 148 L.Ed.2d. 866 (2001), where the Supreme Court said that such a suit is indeed authorized by Ex parte Young." Bruggeman v. Blagojevich, 324 F.3d 906,912-13 (7th Cir. 2003). In Garrett, the Supreme Court held states and state agencies are immune from Title I suits under the Eleventh Amendment because Congress exceeded its authority to abrogate states' sovereign immunity under section 5 ofthe Fourteenth Amendment. However, the Court indicated in a footnote its holding does not exclude suits against state officials under the Ex parte Young exception: "Our holding here that Congress did not validly abrogate the States' sovereign immunity from suit byprivate individuals for money damages under Title I does not mean that persons with disabilities have no federal recourse against discrimination. Title I still prescribes standards applicable to the States. Those standards can be enforced ... by individuals in actions for injunctive relief under Ex parte Young." Garrett, 531 U.S. at 374 n.9, 121 S.Ct. 955. While Title I of the ADA covers employment discrimination on the basis of disability and "has somewhat different remedial provisions" from Title II, both expressly apply only to entities. Garrett, 531 U.S. at 360 n.l, 121 S.Ct. at 955; 42 U.S.C. § 12112. Therefore, this Court finds the Supreme Court's acknowledgment that the Ex parte Young exception is still open to ADA plaintiffs is applicable to suits under Title II ofthe ADA as well as Title 1. Moreover, to hold otherwise would be to create
-21-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 22 of 28
a catch-22 situation for ADA plaintiffs, and the Court will not follow such absurdity unless mandated to do so by relevant precedent.
B. Eleventh Amendment Immunity Defense The defendants argue the state is immune from suit under Title II of the ADA because the statute exceeds Congress's Commerce Clause power and regulates the states in violation ofthe Tenth Amendment. Because the Court finds the plaintiffs validly invoked the Ex parte Young exception, it need not address the defendants' sovereign immunity arguments. Extending Garrett to Title II of the ADA, the Fifth Circuit held Congress went beyond its power under Section 5 ofthe Fourteenth Amendment in abrogating states' sovereign immunity under Title II because the statute imposes an
affirmative accommodation obligation on the part ofpublic entities. Reickenbacker v. Foster, 274 FJd 974,983 (5th Cir. 2001). However, the Court made sure to point out the plaintiffs made no effort to properly proceed under Ex parte Young, because they amended their complaint to remove the state officials who were defendants. Reickenbacker, 274 FJd at 976 n.9. The Court noted, "It is axiomatic that Ex parte Young does not provide an exception to sovereign immunity when a State (or its agency) is the defendant." Id. Likewise, it is axiomatic that the Eleventh Amendment is not implicated when state officials are properly sued under the Ex parte Young exception and the state or its agency is not a defendant. Therefore, the individual defendants cannot raise sovereign immunity arguments, because the state is not being sued as a sovereign.
C. Ability to Enforce Regulations The defendants contend the plaintiffs cannot sue under the Title II regulations, particularly the integration mandate of28 C.F.R. §35.130(d), because Congress did not provide for enforcement ofthe regulations. The regulation states: "A public entity shall administer services, programs, and
-22-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 23 of 28
activities in the most integrated setting appropriate, to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). The plaintiffs allege the defendants violated this integration mandate by failing to provide CLASS and RCS waiver services that would prevent them from requiring institutionalization and allow them to be more integrated into the community. See Second Am. Comp1. at" 219-20.
The defendants point to the statutory enforcement provision of Title II, which provides for enforcement by "any person alleging discrimination on the basis ofdisability in violation ofsection 12132 ofthis title." 42 U.S.C. § 12133. The statute does not expressly provide for enforcement of the regulations, unlike the corresponding enforcement provision for Title I of the ADA. See 42 U.S.C. § 12117(a) (providing for enforcement by "any person alleging discrimination on the basis of disability in violation of any provision ofthis chapter, or regulations promulgated under section 12116 ofthis title, concerning employment."). The defendants argue Congress's failure to provide
for enforcement of Title n regulations, unlike Title I regulations, demonstrates Congress did not
intend for courts to enforce Title II regulations. In this case, however, the plaintiffs do not seek to enforce the regulation under section 1983
using the Ex parte Young exception; instead, they assert a cause ofaction under Title II ofthe ADA and rely on the regulation to provide the Attorney General's interpretation of what the statute requires. The Supreme Court engaged in a similar analysis in Olmstead v. 1. C. ex rei Zimring, 527 U.S. 581, 119 S.Ct. 2176 (1999), where the Court examined a Title II claim in light of the requirements in the implementing regulations, including the regulation at issue in this case. Based on an analysis of the statute and its regulations, the Court held states are required to provide community-based treatment for persons with mental disabilities under certain circumstances.
-23-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 24 of 28
Olmstead, 527 U.S. at 607, 119 S.Ct. 2176. The Olmstead decision demonstrates plaintiffs can fmd support for their Title II claims in the regulations interpreting the statute. The question ofwhether plaintiffs can state an independent cause of action under the Title II regulations is not before this Court. VI. Rehabilitation Act of 1973
The defendants contend section 504 of the Rehabilitation Act of 1973 is not enforceable against states under the Eleventh Amendment because the state did not validly waive its sovereign immunityby accepting federal funds. However, as discussed above, the Eleventh Amendment is not implicated in this case because the plaintiffs sued individual defendants for prospective reliefunder the Exparte Young exception to sovereign immunity. E.g., Pace v. Bogalusa City Sch. Bd., 325 F3d 609, 613 n.4 (5th Cir. 2003) (discussing Eleventh Amendment immunity and noting the plaintiffs had not avoided sovereign immunity by suing state officials in their official capacity). Therefore, the defendants' Eleventh Amendment argument is inapplicable in this case. VII. Failure to State a Claim under ADA and Rehabilitation Act
The defendants argue the plaintiffs do not state a violation of the ADA and Rehabilitation and move to dismiss these claims under Rule 12(b)(6) ofthe Federal Rules ofCivil Procedure. First, they contend onlythree ofthe plaintiffs are institutionalized, and these plaintiffs are not unjustifiably institutionalized. Further, the defendants claim even ifthe plaintiffs do state a discrimination claim, their "fundamental alteration" defense bars the claims.
Title II of the ADA prevents discrimination against or exclusion of disabled persons from participation and benefits of the services, programs and activities of public entities. 42 U.S.c. § 12132. In the opening provisions ofthe ADA, Congress made findings that "discrimination against
-24-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 25 of 28
individuals with disabilities persists in such critical areas as ... institutionalization" and "individuals with disabilities continually encountervarious fonns ofdiscrimination, including outright intentional exclusion, ... failure to make modifications to existing facilities and practices ... [and] segregation ...." 42 U. S.C. § 12101(a)(3), (5). The Attorney General promulgated regulations pursuantto Title II, including the integration mandate, which states: "A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). The regulations define ''the most integrated setting appropriate to the needs ofqualified individuals with disabilities" as "a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible." 28 C.F.R. Pt. 35, App. A.
The Supreme Court held in Olmstead unjustified isolation "is properly regarded as discrimination based on disability." Olmstead, 527 U.S. at 597, 119 S.Ct. 2176. In that case, two mentally retarded women sued because the state failed to remove them from institutions and place them in community-based programs after detennining such placement was appropriate. The Court found Title II requires the state to provide community-based treatment for mentally disabled individuals when the state's treatment professionals have detennined such placement is appropriate and the individuals do not oppose the treatment. Olmstead, 527 U.S. at 607, 119 S.Ct. 2176. However, this requirement is subject to the regulation stating: "Apublic entity shall make reasonable modifications 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 ofthe service, program, or activity." 28 C.F.R.
-25-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 26 of 28
§ 35.l30(b)(7). The Supreme Court stated the fundamental alteration defense allows states considerable leeway to maintain a range of facilities and administer services with an even hand:
If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met. In such circumstances, a court would have no warrant effectively to order displacement of persons at the top ofthe community-based treatment waiting list by individuals lower down who commenced civil actions. Olmstead, 527 U.S. at 605-06, 119 S.Ct. 2176 (citations omitted). In other words, a state's obligation under the integration mandate is not absolute, and states must also take "into account the resources available to the State and the needs ofothers with mental disabilities." Olmstead, 527 U.S. at 607, 119 S.Ct. 2176. The Rehabilitation Act prohibits discrimination against and exclusion ofdisabled individuals by programs or activities receiving federal funds. As the Fifth Circuit has recognized, "Title IT of the ADA and § 504 ofthe Rehabilitation Act offer virtually identical protections." Pace, 325 FJd at 617 n.11. One ofthe regulations issued pursuant to the Rehabilitation Act requires recipients of funds to "administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons." 28 C.F.R. § 41.51(d). The defendants argue the plaintiffs fail to state a claim under the ADA and Rehabilitation Act because they are not all currently institutionalized, unlike the plaintiffs in Olmstead, and only three plaintiffs currently live in ICFIMR group homes. However, the regulations speak ofintegration in general and do not require disabled individuals to be isolated to the extreme - i.e., in institutionsfor the integration requirements to apply. Additionally, the Olmstead holding refers generally to ''unjustified isolation," which is not limited to institutionalization. Olmstead, 527 U. S. at 598, 119
-26-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 27 of 28
S.Ct. 2176. One district court rejected a similar argument that Olmstead does not apply to plaintiffs living at home who were on a waiting list for HCS waiver services, finding "the only alternative for Plaintiffs presently is institutionalization if they seek treatment under the statute," because "the Hawaii statute could potentially force Plaintiffs into institutions in violation of the ADA's nondiscrimination policy since the State's Medicaid statute fails to offer all qualified disabled people services in the 'most integrated setting possible.'" Makin, 114 F.Supp.2d at 1033-34; see also Martin v. Taft, 222 F.Supp.2d 940, 981 (S.D. Ohio 2002). In this case, the Court finds the record unclear as to how many plaintiffs are actually institutionalized and how many ofthem are qualified to receive waiver services. Nonetheless, the integration mandate applies even to plaintiffs who are not currently institutionalized. Accordingly, the plaintiffs have stated a claim under the ADA and Rehabilitation Act.
The defendants contend even ifthe plaintiffs state a claim, their actions are protected by the fundamental alteration defense because ofthe mandatoryceiling on waiver services they can provide. While this defense seems to be quite strong, this question goes to the merits ofthe plaintiffs' claims, not their ability to state a claim under the statutes. Moreover, evaluation ofthe defense requires a more developed factual record. Therefore, the Court reserves ruling on this defense.
In accordance with the foregoing: IT IS ORDERED that Defendants' Motion to Dismiss PlaintiffArc of Texas is DENIED; IT IS ORDERED that Defendants' Motion to Dismiss is GRANTED IN PART as to plaintiffs' claims under 42 U.S.C. § 1983 regarding violations of the Medicaid Act aside from the due process provision, Due Process Clause, and Equal Protection Clause, and DENIED IN PART
-27-

Case 1:03-cv-00231-SS Document 11 Filed 05/23/03 Page 28 of 28 as to plaintiffs' claims under 42 U.S.C. § 1983 regarding violations ofthe due process provision of the Medicaid Act and plaintiffs ADA and Rehabilitation Act claims;
IT IS FURTHER ORDERED that Plaintiffs' Motion for Leave to File Sur-Reply [#10] is DISMISSED AS MOOT;
IT IS FINALLY ORDERED that the Defendants SHALL FILE a response to Plaintiffs' Motion for Class Certification by May 30,2003.
SIGNED this the 2' ~ay ofMay 2003.
~~- SAMSiARKS
UNITED STATES ISTRICT JUDGE
-28-

 
 Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 1 of 47
RECEIVED

iWR U 1 2005 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS

CLERK, u.~. iJ13lRiL,T c,oU,R ~ WESTER~TRICl OF I EXA.~

AUSTIN DIVISION

CHR~~&;rJHrc~ana through

§

her next friend, Jamie Travis;

§

TODD GORDON, by and through his next §

friend, Trisha Gordon: ALLISON PRATT, §

by and through her next friend, Paula Pratt; §

GAIL TRUMAN. by and through her next §

friend, Ken Truman: JIM FLOYD, Jr.. by

§

and through his next friend. Jim Floyd, Sr.; §

OR\G\NAL

SAM LINDSAY. by and through his next §

friend. Betty Lindsay; OSHEA BROOKS; §

JOE RAY CAMACHO; MICAH CHASTAIN, §

by and through his parent and next friend, §

Lori Chastain; SUE ANN ORTIZ;

§

A.L., by and through her next friend. L.L.; §

PATRICK SOSTACK and SCOTT SOSTACK.§

by and through their parents and next friends. §

Gary and Lisa Sostack; SHYAN FOROUGH, §

by and through his parents and next friends, §

Reza and Arzu Forough; DAVID ZWEIFEL, §

by and through his parents and next friends, §

Linda and Leroy Zweifel; THE ARC

§

OF TEXAS. on behalf of its members;

§

and For Those Similarly Situated; ASHTON §

BOWLEN. by and through her mother and §

next friend, Patricia Bowlen; TYLER

§

BLANCHARD. by and through his mother §

and next friend. Faith Blanchard; GARRETT §

GILLARD. by and through his mother and §

next friend, Keeya Gillard; KAMERON

§

LANE, by and through his mother and next §

friend, Angie Lane; MADISON POLK, by §

and through her father and next friend, John §

Polk; and PAIGE SMITH, by and through her §

mother and next friend, Gretta Smith,

§

Plaintiffs,

§

SS

v.

§

C(Jse No. A-03-CA-231-SS

SS

DON A. GILBERT. in his official capacity SS

as Commissioner of the Texas Health

SS

and Human Services Commission;

SS

KAREN F. HALE, in her oflicial capacity SS

as Commissioner of the Texas Department SS

of Mental Health and Mental Retardation;

SS

and JAMES R. HINE, in his official

SS

capacity as Commissioner of the Texas

Ss

Department of Human Services.

SS

Defendants.

SS

HONORABLE SAM SPARKS

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 2 of 47

PLAINTIFFS' THIRD AMENDED COMPLAINT
Plaintiffs Christy Travis, by and through her next friend, Jamie Travis; Todd Gordon, by and through his next friend. Trisha Gordon; Gail Truman, by and through her next friend. Ken I"ruman; Jim Floyd. Jr., by and through his next friend, Jim Floyd, Sr.: Sam Lindsay. by and through his next friend, Betty Lindsay; Joe Ray Camacho; Patrick Sostack and Scott Sostack, by and through their parents and next friends. Gary and Lisa Sostack; Shyan Forough. by and through his parents and next friends, Reza and Arzu Forough: the ARC of Texas. on behalf of its members, and for those similarly situated: Ashton Bowlen, by and through her mother and next friend. Patricia Bowlen; Tyler Blanchard. by and through his mother and next friend, Faith Blanchard; Garrett Gillard, by and through his mother and next friend, Keeya Gillard: Kameron Lane, by and through his mother and next friend, Angie Lane: Madison Polk, by and through her father and next friend, John Polk; Billy Burch by and through is father. William Burch. Sr.; and Nathaniel Burkett by his guardian and brother Clint Daniels tile this Third Amended Complaint and respectfully show as follows:
I. INTRODUCTION 1. Plaintiffs bring this action to challenge Defendants' failure to provide at a reasonable pace community-based living options through programs like the Home and Community-based Waiver Services ("HCS") program. and the Community Living Assistance and Support Services ("CLASS") waiver program to persons with mental retardation and developmental disabilities. I 2. For persons with mental retardation, the HCS program offers services and supports that enable these individuals to remain at home, live independently, or live in a small home-like setting. The HCS waiver program helps persons with mental retardation avoid institutional settings

I Developmental dIsabilities other than mental retardation include "related conditions" such as spllla bltlda and cerebral palsy.

Plaint{ff.v' Third Amended ('amp/aint

Page 2

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 3 of 47

including nursing facilities, state schools, publicly and privately operated intermediate care facilities

for the mentally retarded ("ICF/MR") and other residential treatment facilities. Similarly, for

persons with developmental disabilities other than mental retardation, the CLASS waiver program

helps persons with developmental disabilities remain at home or live independently in the

community. Like the HCS waiver program, the CLASS waiver program prevents or alleviates the

need for ongoing institutionalization in a nursing facility or ICF/MR.

3. Defendants are not implementing the HCS and CLASS waiver programs or other

programs intended to enable disabled individuals to live in the community and avoid unnecessary

institutionalization so that persons eligible for and in need of HCS and CLASS waiver services

receive these services within a reasonable period of time. Despite waiting years for HCS and

CLASS waiver services, approximately 40,000 individuals continue to wait indefinitely for waiver

services. Many are currently confined in institutional settings, while thousands more who are at risk

of being institutionalized wait at home for HCS or CLASS waiver services.

4. Moreover, with appropriate services, Plaintiffs could safely live in integrated settings

in their own homes and communities. That is, with the programs and supports that are available

through CLASS and HCS waiver programs, eligible individuals living at home are I~lr less likely to

deteriorate and regress and ultimately be institutionalized.

5. Accordingly, Plaintiffs seek to represent a class of all individuals, other than those

who are in a state school, nursing facility, or ICF/MR with 14 beds or more. who have been on the

waiting lists for HCS or CLASS waiver services for more than one year.

6. Unnecessary segregation of people with disabilities is unlawful. In enacting the

Americans with Disabilities Act ("ADA"), 42 U.S.c. § 12101 et seq .. Congress recognized 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." 42 U.S.c. § 12101(a)(2).

Plaintzff.\' ' Third Amended Complamt

Page 3

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 4 of 47
7. More recently, the United States Supreme Court affirmed that "unjustified
institutional isolation of persons with disabilities is a form of discrimination.,. ()lmstead F. r ('., ex
rel. Zimrinr;, 527 U.S. 581, 600 (1999). 8. To remedy such unlawful discrimination. regulations implementing the ADA such
as those contained in Section 504 ofthe Rehabilitation Act, 29 U.S.c. ~ 794 et seq. ("Section 504"), require that "a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs ofqualified individuals with disabilities." 28 C.F .R. ~ 35 .130(d) and 28 C.F.R. ~ 41.51(d).2
9. In response to the Supreme Court's decision interpreting the ADi\'s integration mandate. the United States Department of Health and Human Services, through its Health (are Financing Administration CHCFA"),3 sent a letter to state Medicaid directors on July 25. 2000. advising the Medicaid directors that "although the Olmstead decision interpreted the ADA, unjustified segregation by a federally funded program would also constitute disability discrimination under Section 504 [of the Rehabilitation Actl" HCFA Dear State Medicaid Director (July 25. 2000).
10. Based on this and other HCFA letters. Defendants were informed that Medicaid policies that contribute to the unnecessary segregation of people with disabilities are illegal. As early as 1998, HCFA advised state Medicaid directors that the ADA requires that "Medicaid policies, practices and procedures promote, rather than hinder, integration." HCF A. Dear Slate Medicaid Director (July 29, 1998).

2Secause of the sim ilarities between the integration provisions of the ADA and Section 504, these two laws are to be construed and appl ied in a consistent manner. ,)'ee Frederick L. v Department of PII/), Wellare. 364 FJd 487, 491 (3d Cir. 2004).

.1HCFA·s name has been changed to the Center for Medicare and Medicaid Services ("'eMS"). For purposes of this complaint references will reference HCF A and not CMS.

Plaintiffs' Third Amended Complaint

Page 4

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 5 of 47

11. Yet despite clear directives from HCFA, Defendants continue to maintain policies

and practices that unlawfully limit and restrict the availability of services like Medicaid-funded

CLASS and HCS waivers and result in the unnecessary segregation of persons with mental

retardation or developmental disabilities.

12. This case is being brought to remedy these ongoing violations of federal law and to

obtain prospective relief necessary to ensure that the Plaintiffs and class members receive the

support services like the CLASS and HCS waiver programs provide to others.

13. In sum" Plaintiffs and class members seek to address Defendants" systematic and

continuing failure to provide individual Plaintiffs with services at a reasonable pace in the most

integrated setting that is appropriate so that they can achieve greater independence. be more

integrated into the community" and have a better quality of life.

14. Accordingly" Plaintifls and class members seek a declaration that the manner in

which Defendants operate both the CLASS and HCS waiver programs violates the Medicaid Act

the Americans with Disabilities Act Section 504 of the Rehabilitation Act" and the Fourteenth

Amendment to the United States Constitution. Moreover, based on these claims and the nature of

the requested relief, Eleventh Amendment immunity is not available to the Defendants. See Marlin

v. Tc{/i. ct aL 2002 WL 31101079 (S.D. Ohio 2002) page 13, A. Elcvcnth Amcndmcnl Immunity.

McCarthy v. Hawkins" 391 F.3d 676 (2004).

II. JURISDICTION AND VENUE

15. This is a civil action for declaratory and injunctive relief authorized by 42 U.S.C.
9 1983 to redress the ongoing deprivation under color of state law of rights guaranteed by federal

law. This Court has jurisdiction over this action and over Defendants pursuant to 28 U.S.c.

*§ 1331, 1343(a)(3) and (a)(4). This action is also brought pursuant to Title II of the ADA,

42 U.S.c. § 12133, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. The agencies

represented by Defendants are public entities within the meaning of Title II of the ADA and are

Plaintiff" . Third Amended Complaint

Page 5

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 6 of 47
recipients of federal financial assistance within the meaning of Section 504 of the Rehabilitation Act. The amount in controversy exceeds the minimum jurisdictional limits ofthis Court. Plaintiff,,' claims are also authorized by 42 U.S.C. § 1396 el seq.; 42 U.S.C. §§ 1983 and 1988: 42 USc. § 301 el seq.; and 42 U.S.c. §§ 12115 el seq.
16. Declaratory and injunctive relief is authorized under 28 U.S.C. §§ 2201 and 2202, as well as Rules 57 and 65 of the Federal Rules of Civil Procedure.
17. Venue is properinthisCourtunder28 U.S.C. § 1391 because part ofthe claims arose within this district and division, and Defendants operate and administer the HCS and CLASS waiver programs in this district and division.
III. PARTIES A. Plaintiffs.
18. All of the individual Plaintiffs are Medicaid recipients and have disabilitics within the meaning of the ADA, 42 U.S.c. § 12131(2), and Section 504. They each qualify lor either the HCS or CLASS waiver services, and some Plaintiffs qualify for both. The individual Plaintiffs would be able live in less restrictive settings with waiver supports and services provided at a reasonable pace. The Plaintiffs are individually listed below:
a. Christy Travis, formerly Christy McCarthy, is 24 years old and lives at home with her family in West Columbia, Texas. She suffered brain damage when she was given the pertussis vaccine. She has a seizure disorder, is non-ambulatory, and has mcntal retardation. Christy's mother. Jamie Travis, is her next friend in this proceeding. Christy has been on the HCS waiting list for approximately eight years.
b. Todd Gordon is 21 years old and lives at home with his family in Alvin, Texas. He has fragile X syndrome. Todd's sister. Trisha Gordon, is his next lj-iend in this proceeding. Todd has been on the HCS waiting list for approximately seven years.

Plaint!f/.5 . Third Amended Complaint

Page 6

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 7 of 47

c. Gail Truman is 42 years old and lives with her parents in Friends'A'ood, Texas.

She has mental retardation. Gail's father, Ken Truman, is her next friend in this proceeding.

Gail has been on the HCS waiting list for approximately eight years.

d. Jim Floyd, Jr. is 45 years old and lives with his mother and father in

Dickinson. Texas. He has autism. Jim's father, Jim Floyd, Sr.. is his next friend in this

proceeding. Jim has been on the HCS waiting list for approximately eight years.

e. Sam Lindsay. Jr. is 56 years old and lives with his mother and I~lther in

Marshall, Texas. He has mental retardation. Sam's mother. Betty Lindsay, is his next hiend

in this proceeding. Sam has been on the HCS waiting list for approximately seven years.

f. Joe Ray Camacho is 35 years old and lives in a nursing facility in Aransas

Pass. Texas. At the age of 19. he had a motorcycle accident in which he suffered a closed

head injury, and as a result, he uses a wheelchair. He was living in an ICF/MR placement

until approximately 2003. Joe Ray has been on the HCS waiting list for approximately five

years, and upon information and belief, he will be on the HCS waiting list for at least another

three years.

g. Patrick Sostack is 14 years old and lives with his parents. Gary and Lisa

Sostack. who are his next friends in this proceeding. Patrick has autism. He has been on

the HCS and CLASS waiting lists for seven years.

h. Scott Sostack is 14 years old and is Patrick Sostack's twin brother. Scott

lives with his parents, Gary and Lisa Sostack, who are his next friends in this proceeding.

Scott has autism. He has been on the HCS and CLASS waiting lists for seven years.

1.

Shyan Forough is eight years old and lives with his mother Arzu Forough, hls

parent and next friend in this proceeding. Shyan has autism. He has been on the HCS and

CLASS waiting lists for five years. and upon information and belief. he will be on the HCS

and CLASS waiting lists for another two years. PlaintUf~' ' Third Amended Complaint

Page 7

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 8 of 47

.J.

Plaintiff ARC of Texas is the oldest and largest nonprofit, volunteer

organization in the State of Texas committed to expanding opportunities for people 'v'lith

mental retardation and other developmental disabilities to be included in their communities.

Plaintiff ARC of Texas is an association that has standing to represent its members. See

Warth v. Seldon, 422 U.S. 490, 511 (1975). The ARC of Texas works to support families,

advance public policies, provide training programs, and build a statewide network of

advocates. Since its establishment in 1950, the ARC of Texas has been instrumental in the

creation of virtually every program. service, right, and benefit that is now available to more

than half a million Texans with mental retardation. Today, the ARC of Texas continues to

advocate for the inclusion of people with mental retardation and other developmental

disabilities in all aspects of society.

k. Ashton Bowlen is twelve years old and lives in Vidor, Texas, with her mother

Patricia Bowlen. her parent and next friend in this proceeding. Ashton has autism and is

nonverbal. She has been on the HCS and CLASS waiting lists for seven years.

1. Tyler Blanchard is nine years old and lives in Mauriceville. Texas, with his

mother Faith Blanchard, his parent and next friend in this proceeding. Tyler has autism. lIe

has been on the HCS and CLASS waiting lists for more than three years.

m. Garrett Gillard is ten years old and lives in Lumberton, Texas. with his mother

Keeya Gillard, his parent and next friend in this proceeding. Garrett has autism. IIe has

been on the HCS and CLASS waiting lists for seven years.

n. Kameron Lane is eight years old and lives in Groves. Texas. with his mother

Angie Lane, his parent and next friend in this proceeding. Kameron has both a brain

disorder and a seizure disorder. He has been on the CLASS waiting list for more than three

years.

Plaintiffl' . Third Amended Complaint

Page 8

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 9 of 47
b. Madison Polk is eleven years old and during the pendency of this case has been placed at Bayes Achievement Center in Huntsville, Texas, over two hours away from her parents .lohn and Robin Polk who live in Vidor, Texas. Without necessary community services Madison has been institutionalized. Madison has been on the HCS and CLASS waiting lists for over nine years.
r. Billy Burch is 44 years old and has lived in an ICF/MR in San Antonio. Texas, for approximately fifteen years. Billy is quadriplegic, blind, and has mental retardation. Billy's parents and siblings reside in Edinburg, Texas. Billy's parents vvcre not advised of the availability of waiver services when Billy was accepted into his current ICF/MR facility. Consequently, Billy applied for HCS waiver services as soon as his family learned about the program, approximately five years ago. Billy's family has heen advised that Billy may remain on the HCS waiting list for another ten years.
s. Nathaniel Burkett is 27 years old and resides in an ICF/MR in Beaumont. Texas. Nathaniel has mental retardation. Nathaniel has been on the HCS waiting list for approximately three years, and he has been advised that he may remain on the waiting list for another ten years.
B. Defendants. 19. Defendant Albert Hawkins4 is sued in his official capacity as Commissioner of the Texas Health and Human Services Commission ("THHSe) The THHSC is the single state agency responsible for the Medicaid program in Texas and receives federal funds. In Mr. Ilawkins's capacity as Commissioner, he is charged with contracting with medical providers and delegating

4Don Gilbert was executive dIrector of the Texas Health and Human Services Commission at the tIme thIS suit was originally filed Albert Hawkins subsequently replaced Don Gilbert, and the Comi recognIzed the substitution of Albert Hawkll1s for Don Gilbert, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. in its :vIay 23. 2003 Order on Defendants' Motion to Dismiss.

Plaintiff" . Third Amended Complamt

Page I)

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 10 of 47
particular responsibilities to the Texas Department of Aging and Disability Services. Albert Hawkins has already been served with process.
20. Defendant James R. Hine is sued in his official capacity as the Commissioner of the Texas Department ofAging and Disability Services ("TDADS"). TDADS' s responsibilities include evaluating for services individuals who are mentally retarded and developmentally disabled. TDADS is responsible for administering Medicaid waiver programs. including the CLASS and HCS waiver programs. Prior to the establishment of TDADS in September, 2004. the CLASS v\'aiver program was administered by the Texas Department of Human Services ("TDHS"). Defendant James R. Hine was the Commissioner ofTDHS. Prior to the establishment ofTDADS, the HCS waiver program was administered by the Texas Department of Mental Health and Mental Retardation ("TDMHMR").5 The Commissioner ofTDMHMR. Karen F. Hale. was named in her official capacity as a defendant in the Original Complaint filed in this action. Both Karen F. Hale and James R. Hine have already been served process.
IV. CLASS ACTION ALLEGATIONS 21. Plaintiffs bring this action on their own behalf and on behalf of all persons similarly situated pursuant to Rule 23(b)( 1) & (2) of the Federal Rules of Civil Procedure. Plaintitls seek to represent a class of all individuals who have been on the waiting lists for HCS or CLASS v"aiver services for more than one year. Plaintiffs seek to represent these class members for purposes of injunctive and declaratory relief. 22. A class action is proper pursuant to Rule 23(a) of the Federal Rules of Civil Procedure.. As evidenced above, this class is so numerous that joinder of all class members is impracticable. The class consists ofapproximately 40,000 persons who Defendants have identified

5Secause administration of the HCS and CLASS waiver programs has been recently transferred ti'om TDMHMR and TDHS, respectively, to TDADS, for purposes ofthis Third Amended Petition. references to "Defcndanb" and to "TDADS" include TDMHMR and/or TDHS. and references to TDMHMR and/or TDHS lI1clude TDADS.

PlaiJ1!iff~' . Third Amended Complain!

Page 10

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 11 of 47

as requesting services and living in the community and who need residential services in order to
remain in the community, and approximately 12,000 residents who are institutionalized and who are
eligible for the kind ofresidential services that will enable them to become more fully integrated
into the community.
23. There are questions oflaw and fact that are common to members orthe class. These
questions include but are not limited to:
a. Whether Defendants failed to exercise professional judgment by neglecting to plan for the residential needs of Texans with mental retardation and developmental disabilities:
b. Whether Defendants failed to determine the most integrated residential setting appropriate for class members who are served in an institutional setting such as an ICF/MR:
c. Whether Defendants failed to determine if individuals with mental retardation and developmental disabilities residing in ICF/MRs meet the essential eligibility requirements for habilitation in a community-based setting;
d. Whether Defendants failed to determine if individuals with mental retardation and developmental disabilities residing in the community meet the essential eligibility requirements for habilitation in a community-based setting;
e. Whether Defendants failed to develop and implement a comprehensive. effective working plan for providing qualified persons with mental retardation and developmental disabilities residing in institutions such as ICF/MRs with medicaid waiver services in a less restrictive setting, and with waiting lists for such services that move at a reasonable pace:
f. Whether Defendants failed to develop and implement a comprehensive. effective working plan for providing qualified persons with mental retardation and developmental disabilities living in the community with access to waiting lists that move at a reasonable pace, and that prevent such persons from being unnecessarily institutionalized:
g. Whether Defendants' implementation ofits Medicaid waiver program. and its denial of equal access to waiver services, are rationally related to a legitimate state interest:
h. Whether the ADA prohibits unnecessarily segregated services to persons with mental retardation and developmental disabilities:
i. Whether the Due Process Clause requires Defendants to provide Plaintifls with residential services so that they will be able to live in the community and avoid institutionalization;
j. Whether community-based residential services and placements are necessary to prevent and remedy the harm experienced by the Plaintiffs;

Plain/ifh' Third Amended Complol11{

Page 11

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 12 of 47
24. The claims of the named Plaintiffs are typical of the claims of the class as a whole. All individual members of the class have been or will be subjected to the same harm as Plaintiffs as a result of the actions of the Defendants.
25. The Plaintiffs will fairly and adequately protect the interests of the entire class. PlaintifIs' counsel have been class counsel in numerous other cases.
26. A class action is proper pursuant to Rule 23(b)(1) of the Federal Rules of Civi I Procedure. Separate actions could create inconsistent and varying adjudications with respect to the individual members of the class, which would establish incompatible standards of conduct for Defendants. Adjudications with respect to other members would. as a practical matter, be dispositive of the interests of the other members not parties to the litigation.
27. Moreover. Defendants have acted on grounds generally applicable to the class. thereby making appropriate final injunctive or corresponding declaratory relief with respect to the class as a whole. This satisfies Rule 23(b)(l) of the Federal Rules of Civil Procedure.

V. STATUTORY FRAMEWORK A. The Medicaid Program.
27. Title XIX of the Social Security Act 42 U.S.c. § 1396 et seq.. establishes Medicaid. a joint federal-state program, to provide medical and related care to eligible persons. Costs are shared between the federal and the state governments.
28. States are not required to participate in Medicaid, but may do so by submitting an appropriate Medicaid plan to HCFA. Once a state elects to participate in Medicaid, it must do so in accordance with applicable federal statutes and regulations. Texas is a participating state.
29. For participating states, providing certain Medicaid services is mandatory. Other services can be provided at the decision of the state. Once a state elects to provide an optional

Plaintiffs' Third Amended Complaint

Page 12

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 13 of 47

service, however, it must do so in accordance with Medicaid statutes and regulations governing the

provision of that service.

30. Title XIX requires that the state plan provide medical assistance "with reasonable

promptness to all eligible individuals," 42 U.S.C. § 1396a(a)(8), and continue furnishing the service

until the recipient is found to be ineligible to continue to receive assistance. 42 U.S.C. § 1396a

(a)( 10). States must assure that care and services under the plan are provided in a manner consistent

"with the best interests of the recipients." 42 U.S.c. § 1396a(a)(19),
31. An optional service that states may electto provide is an ICF/MR. 42 U.s. c. § 13 96d

(a)(15). An ICF/MR is a residential institution that provides health and rehabilitative services to

eligible persons with developmental disabilities. 42 U.S.C. § 1396d(d). Texas provides this

optional service.

States that provide ICF/MR services may also implement a Medicaid waiver

program. This alternative to ICF/MR services includes an array of home and community-based

services for eligible recipients who, in the absence of waiver services, would require

institutionalization in an ICF/MR. This Medicaid program is called a "waiver" because HCF;\

waives certain technical obligations otherwise incumbent on Medicaid-participating states electing

to participate in this program. Texas offers Medicaid waiver programs; the HCS and CLASS \vaivcr

programs are described above.

33. Title XIX requires that when a state agrees to provide Medicaid waiver services, it

provide assurances that, inter alia, individuals are evaluated for their need for the level-of-care

provided by an ICF/MR, and if found eligible for such a level-of-care, they are offered the option

of Medicaid waiver services. 42 U.S.c. §§ 1396n(c)(2)(B). 1396n(c)(2)(C); 42 C.F.R. § 441,J02(c)-

(d). States must assure HCFA that, absent the waiver. -'recipients of the waiver would receive the

appropriate type of Medicaid-funded institutional care ... that they require." 42 C'.F.R.

§ 441.302(g).
Plaintfff~' ' Third Amended Complaint

Page 13

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 14 of 47

34. Under a Medicaid waiver program, a state's estimate of average per capita costs

cannot exceed the average per capita costs for the same level-of-care provided in institutions in that

state, 42 U.S.C. § 1396n (c)(2)(D). However, if actual expenses exceed the estimate in a particular

case, the federal government will not withhold payment. 42 U.S.C. § 1396n(c)(9).

35. Medicaid Waiver services are generally far less expensive than institutional care. In

fact, the THHSC states that "home and community-based care can be a cost-effective alternative to

care in a nursing facility or rCF/MR." Texas Health and Human Services Commission, Texas Medicaid in Per,\pective, 4th Ed at 4-18 (April 2002). Further, as stated by the THHSC:

The average monthly cost for a Medicaid client in an rCF/MR was $4,874 compared to $3,927 for a client receiving home and community-based services from the TDMHMR as an alternative to ICF/MR care. Institutional services comprise 73 percent of the long-term care budget even though only 16 percent oflong-term eare clients are in institutions.

Jd. at 4-18.

36. State officials failed to properly project the number of people ""ho. because they arc

eligible, would apply for waiver services. As a result of underestimating the need for ""aiver

services. Defendants have not taken advantage of available federal matching funds. Furthermore.

state officials have failed to successfully apply for a waiver amendment. Such an amendment would

enable Defendants to accommodate more individuals with waiver services. Regulations specifically

allow states to request and for HCFA to approve additional waiver requests. 5,'('(' 42 C.r. R, ~

441.303(1)(6); see 42 C.F.R. § 441.305(a).

37. Approval for Medicaid waivers that cover individuals with mental retardation and

other developmental disabilities requires the state to assure HCFA that "'necessary

safeguards ... have been taken to protect the health and welfare of individuals provided services

under the waiver.·' 42 U.S.c. § 1396n(c)(2)(A); 42 C.F.R. § 441.302(a).

38. Both the ICF/MR program and the Medicaid waiver program are public services

subject to Title II of the ADA. 42 U.S.c. §§ 12161-12165.
Plamtiff\' ' Third Amended Complaint

Page 1.+

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 15 of 47

39. Medicaid waiver recipients are entitled to medically necessary Medicaid services,

i.e., those services necessary to ensure their "health and welfare:' 42 U.S.c. ~ 1396n (c )(2 )(A). The

services are incorporated into the recipient's plan of care. 42 U.S.c. ~~ 1396n(c)(1) and (c)(4)(I3l.

Services received by recipients can vary as their circumstances change for better or worse. In SOllle

cases. relatively minor assistance may be required~ in other cases. more intensive services lllay be

necessary.

40. Plaintiffs and the class they represent are currently entitled to services at the level-of-

care provided at an ICF/MR and/or through the Medicaid waiver program.

41. The federal Medicaid statute and regulations require Defendants to provide notice

and hearing rights to any person whose claims for medical assistance under the plan are denied or

are not acted upon with reasonable promptness. 42 U.S.C. § 1396a (a)(3) and 42 C.F.R. ~ 431.200

et seq.

B. The Integration Mandate of the ADA.

42. In enacting the ADA 42 U.S.C. § 12101 et seq., Congress stated 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." 42 U.S.c. § 12101 (a)(2).

43. Congress found that "discrimination against individuals with disabilities persists in

... institutionalization ... and access to public services." 42 U.S.c. § 12101 (a)(3). Congress found

that "individuals with disabilities continually encounter various forms of discrimination. including

outright intentional exclusion ... , segregation, and relegation to lesser services. programs.

activities, benefits, jobs. or other opportunities." 42 U.S.c. § 12l01(a)(5).

44. Congress further concluded that "[i]ndividuals with disabilities are a discrete and
insular minority who have been faced with restrictions and limitations, subjected to a history or

purposeful unequal treatment, and relegated to a position of political powerlessness in our society,

Plaintfffs ' Thml Amended Complomt

Page 15

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 16 of 47
based on characteristics that are beyond the control of such individuals and resulting from stereotypical assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society." 42 U.S.c. § 12101(a)(7).
45. A major purpose of the ADA is to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disahilities, and to provide clear, strong, consistent and enforceable standards addressing discrimination against individuals with disabilities. 42 U.S.c. § 12101(b)(1)-(2).
46. Discrimination under the ADA includes the segregation of persons with disabilities from society as a result of unnecessary institutionalization. As the Senate I,abor and Human Relations Committee observed: "one of the debilitating forms of discrimination is segregation imposed by others .... Discrimination also includes exclusion. or denial of benefits. services. or other opportunities that are as effective and meaningful as those provided to others." S. Rep. No. 116, 1OJ ,t Cong., pt Sess. 6 (1989). Thus, Congress recognized that "discrimination against persons with disabilities entails more than just disparate treatment, and that simply requiring evenhanded treatment would not remedy all discrimination."
47. The regulations implementing the ADA require that: "a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). The affirmative duty embodied in 28 C.I· .R. § 35.130(d) stems from the recognition that failing to integrate individuals with disabilities into society (e.g., unnecessary institutionalization) constitutes unlawful discrimination under the ADA.
48. Furthermore, the ADA imposes a duty on Defendants to allocate resources so that there is suHicient funding for those who are needlessly institutionalized or about to experience unjustified institutionalization. Pursuant to this duty. Defendants are required to seek legislative approval of budgetary requests to meet this obligation. 28 C.F.R. § 35.l30(b)(3)(l)-(ii).

Plaintiffs' Third Amended Complaint

Page 16

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 17 of 47
49. The regulations implementing the ADA further require that qualified individuals with disabilities (a) have the same opportunity to participate in a benefit or program to the same extent as any other equally qualified program participant, and (b) have the same opportunity to achieve the benefits or results other qualified individuals have the opportunity to obtain. See 28 C. F. R. ~ 35. 130(b)(1)(I)(iii-iv).
50. Each Plaintiff and each class member is "a qualified individual with a disability" within the meaning of 42 U.S.C. § 12131(2).
51. The ICF/MR program, the HCS waiver program, and the CLASS waiver program are "public services" subject to Title II of the ADA, 42 U.S.c. §§ 12161-12165. Title [I of the ADA, 42 U.S.c. §§ 12131-12134, extends to state and local governments the nondiscrimination provisions of Section 504 of the Rehabilitation Act of 1973,29 U.S.C. § 794. It requires that the services, programs, and activities of state and local governments be administered in "the most integrated setting appropriate to the needs of qualified individuals with disabilities." 2g C.F.R. § 35.130(d).
52. Defendant THHSC has failed to coordinate the activities, programs, and resources of its agencies. including Defendant TOADS, including its predecessor agencies TDMHMR and TDHS, to ensure that its programs and services are administered in the most integrated setting. consistent with the needs of class members.
53. Since the enactment of the ADA. the United States Supreme Court has held that "unjustified institutional isolation ofpersons with disabilities is a fonn ofdiscrimination." (Jlmsfead, 527 U.S. at 600, and is prohibited by the ADA, 42 U.S.c. § 12101 e/. seq. Defendants arc obligated to "administer services, programs, and activities in the most integrated setting appropriate to the needs of persons with disabilities," 42 U.S.c. § 12132 and 29 U.S.c. ~ 794, as implemented hy 28 C.F.R. § 35.130(d) and 28 C.F.R. § 41.51 (d). With appropriate community-based long-term can:

Plaintiffs' Third Amended Complaint

Page 17

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 18 of 47
and services, available under a lawful Medicaid waiver program, Plaintiffs could live in integrated settings in their own home and communities.
54. In light of the Olmstead decision, HCFA issued a policy letter that says. "States arc obligated to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability ... ,'. IICFA also concluded that under "Yiedicaid it is the "State's responsibility, ... to periodically review the services of all residents in Medicaid-funded institutional settings." HFCA, Dear State lvledicaid Director (January 14, 2000). (All HCFA letters to State Medicaid Directors are available at: www.healthlaw.org/medicaid.SHTML#policy. )
55. HCFA also cited to Olmstead for the proposition that a "[State's] requirement to provide services in the most integrated setting appropriate applies not only to persons already in institutional settings but to those being assessed for public institutionalization." 1£1
56. In fact, as early as July 1998, HCFA informed Defendants that Medicaid policies that contribute to unnecessary segregation of people with disabilities are illegal. HerA advised state Medicaid directors that the ADA requires that "Medicaid policies, practices and procedures. promote rather than hinder, integration," HCFA, Dear State Medicaid Director (July 29, 199X). (!d.)
57. Subsequent to HCFA policy letters regarding ADA implementation, President George W. Bush signed an Executive Order on June 19,2001, directing States to ensure that persons with disabilities are not institutionalized needlessly, and that individual service needs be met at home or in other community-based settings. Executive Order--Col71munity-Based Alternatives For Individuals With Disabilities, June 19, 2001.
58. President Bush's Order states that not providing community-based alternatives often leads to the needless isolation and segregation of persons with disabilities, in violation or Title II or the ADA, 42 U.S.c. §§ 12101 et seq. ld.

Plamtiffs' ' Third Amended Complaint

Page 18

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 19 of 47

59. The President's Executive Order goes on to say that the United States Supreme

Court's decision in Olmstead requires that States comply with Title II of the ADA and that States

assure the federal government that services, programs and activities will be administered to eligible

persons with disabilities in the most integrated setting appropriate to their needs. !d His

Executive Order also states that "the federal government must assist States and localities to

implement swiftly the Olmstead decision. so as to help ensure that all Americans have the

opportunity to live close to their families and friends, to live more independently. to engage in

productive employment, and to participate in community life." Id.
e. The Integration Mandate of the Rehabilitation Act.

60. Section 504 of the Rehabilitation Act, 29 U.S.C. ~ 794(a) states that "0Jo 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."

61. Binding regulations promulgated by the United States Attorney General require that

recipients of federal financial assistance "administer programs and activities in the most integrated

setting appropriate to the needs of the qualified individuals with disabilities." 28 C.F.R. ~ 41.51 (d).

62. Furthermore, section 504 imposes a duty on Defendants to allocate resources so that

there is sufficient funding for those who are needlessly institutionalized or about to experience

unjustified institutionalization. Pursuant to this duty, Defendants are required to seek legislative

approval of budgetary requests necessary to meet this obligation. 28 C.F.R. ~ 35.130(b)(3)(1 )-(ii).

63. The regulations implementing Section 504 also require that qualified individuals with

disabilities (a) have the same opportunity to participate in a benefit or program to the same extent

as any other equally qualified program participant, and (b) have the same opportunity to achieve the

benefits or results other qualified individuals have the opportunity to obtain. See 28 C. F.R. ~

35.130(b)( 1)(1)(iii-iv).
Plaintiff~ . Third Amended Complaint

Page 19

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 20 of 47

64. Individuals with disabilities should not be unduly segregated or subjected to different

or separate treatment. And whenever possible, persons with disabilities should be Qiven the

opportunity to fully access programs or activities that enable them to participate and function in their

most integrated setting. Jackson v. Fort Stanton Hosp. and Training Sch.. 757 F. Supp.1243, 1296-

99 (D.N.M. 1988).

65. Defendants receive federal financial assistance for providing HCS and CLASS

waiver services. Defendants are subject to the Rehabilitation Act.

VI. THE WAIVER PROGRAMS

66. The Medicaid waiver program, which includes both the HCS program (for persons

with mental retardation) and the CLASS program (for persons with developmental disabilities such

as cerebral palsy), was adopted by Congress in order to allow individuals who would otherwise

require care in a nursing home or ICF/MR to receive needed services in their own homes and in

home-like settings. 42 U.S.c. § 1396n. See Senate Report No. 97-139 and House Conference

Report No. 97-208,1981 U.S. COOECONG. &AOMIN.NEws396. The regulations state that "section

1915(e) [1396n] ofthe Act permits states to offer, under a waiver of statutory requirements, an array

of home and community based services that an individual needs to avoid institutionalization."

42 C.F.R. § 441.300.

67. Federal law provides that the average cost per person in the community through the

Medicaid waiver program must not exceed the average cost for the same level of services in

facilities or institutions. 42 U.S.C. § 1396n (c)(2)(D).

68. Home and community-based waiver funds may not be used to support services to

individuals who reside in an ICF/MR. 42 C.F.R. § 441.301(b)(l)(ii): 42 U.S.c. § 1396n.

69. Under a Medicaid waiver, a state can provide an array of services. including services

that are not identified in Title XIX as approved optional services. 42 U.S.c. § 1396n (c)(4)(B);

42 C.F .R. § 440.180. For example, a state can provide habilitative services, vocational services, and

Plaintiffs' Third Amended Complaint

Page 20

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 21 of 47
respite services even though these services are not a specified optional service. Thus. Medicaid waiver programs give the state the right to receive federal reimbursement when it agrees to provide services that it would not otherwise be reimbursed for under Title XIX.
70. Medicaid waiver programs allow states to "waive" certain Title XIX requirements. Specifically, a state's waiver program may choose to provide services to specific groups of persons or in a limited geographic region, thus waiving comparability or state-wideness requirements. 42 U.S.c. ~~ 1396n(c)(3), (9)-(10).
71. In sum, the purpose ofTitle XIX's Medicaid waivers is to encourage states to provide services to assist individuals with disabilities to avoid being institutionalized. 42 C.F.R. ~ 441.300. As long as Medicaid services vis-a-vis institutional services are "cost-neutral." the preference is to provide services in the community. See 42 U.S.C. ~ l396n(c)(2)(D). A. HCS Waiver.
72. Texas has offered the HCS waiver since 1982. 73. Individuals are eligible for HCS waiver services if they (a) have mental retardation, (b) meet the standard of care for services in an ICF/MR. and (c) are eligible for medical assistance. 74. The HCS waiver program currently serves approximately 8,000 recipients. 75. There are approximately 26,698 additional persons who have requested HCS waiver services. Ofthose who have requested services and been placed on a waiting list, more than 8.000 are children. 76. Defendant TDADS is the single state agency whose responsibility it is to administer the HCS waiver program. Prior to the establishment ofTDADS in September 2004. TDMH:vlR was the single state agency with responsibility for administering the HCS waiver program. 77. The services provided under the HCS waiver include case management. respite care. habilitation. minor home modifications, skilled nursing. adaptive aids, counseling and therapies.

Plainfiff~ , Third Amended Complaint

Page 21

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 22 of 47

dental treatment, and residential assistance, i. e., supported home Iivi ng, foster/companion carc. and

residential support.

78. In adopting the HCS waiver program. Texas has waived Title XIX's comparability

requirements and limited eligibility to persons with mental retardation, but Texas has not waived

Title XIX's state-wideness requirement. Thus, HCS waiver services are available to persons with

mental retardation statewide.

79. In the absence of HCS waiver services these individuals are entitled to receive

services in an ICF/MR.

B. CLASS Waiver.

80. The CLASS waiver program has been available in Texas sinee 1991 for persons with

related conditions. A related condition is a developmental disability other than mental retardation

which may include such conditions as cerebral palsy and spina bifida.

81. Individuals are eligible for CLASS waiver services when (a) they have a related

condition, (b) meet the standard of care for services in an ICF/MR, and (e) are eligi ble for medical

assistance.

82. The CLASS waiver program currently serves approximately 1.800 persons.

83. There are approximately 13,453 additional persons who have requested CLASS

waiver services and are on a waiting list for the program. Of those who have requested services and

been placed on a waiting list, more than 7,000 are children.

84. Defendant TOADS is the single state agency responsible for administering the

CLASS waiver program. Prior to the establishment ofTDADS in September 2004. TDHS was the

single state agency with responsibility for administering the HCS waiver program

85. Services under the CLASS waiver program include case management, habilitation.

respite, nursing services, psychological services. physical therapy, occupational therapy. speech

pathology services, adaptive aids, and minor home modifications.
Plaintiffs' Thzrd Amended Complaint

Page 22

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 23 of 47
86. In adopting the CLASS WaIver program, Texas has waived both Title XIX's comparability requirements to limit eligibility to persons with related conditions and the Title XIX state-wideness requirement. Thus, CLASS waiver services may be provided statewide but only in a limited number of geographic catchment areas.
87. In the absence of CLASS waiver services. applicants for the CLASS program are entitled to receive services in an ICF/MR. C. Implementation of HCS and CLASS Waiver Services.
88. Subsequent to the United States Supreme Court decision in Olmstead. the THHSC developed a plan purportedly to comply with the ADA's integration mandate. called the Promoting Independence Plan ("PIP"). THHSC attempted to develop policies. practices. and procedures to ensure that persons with disabilities are not unduly segregated. Unfortunately. THESC's plan is not reasonable. Individuals with mental retardation and related conditions are being segregated based on where they live.
89. On information and belief~ THHSC's PIP provides that state school residents and ICF-MR residents living in facilities with at least 14 beds receive waiver services within six months of requesting services. Similarly, qualified individuals living in nursing facilities receive CLASS waiver services within six months of requesting services.
90. In contrast, THHSC's PIP makes no provision for the following: HCS eligible residents living in ICF/MR facilities with less than 14 beds. HCS eligible individuals living in the
community. or CLASS eligible individuals living in the community. Because the rir does not
address the needs of the vast majority of individuals who are eligible for HCS and CLASS waiver services. more than 40,000 Texans with mental retardation or related conditions. many of whom have waited years for waiver services, will have to continue to wait even more years before either HCS or CLASS waiver services become available.

Plail1tiff.~· . Third Amended Complaint

Page 23

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 24 of 47
91. In addition, upon information and belief, nearly all of the waiver service slots that have become available over the last two years have gone not to the individuals who have been on the waiting list the longest but to individuals who had been receiving other services from the State of Texas, paid for exclusively with state dollars. In effect Defendants have used waiver slots, as they became available. to "refinance" the provision of services and obtain Medicaid financing in substitution for state financing of services. Waiver services have gone not to those who arc on the waiting lists the longest but to those whose situation allows Defendants to use the wai vel' program to transfer the financial burden of providing such services from the state to the Medicaid program.
VII. STATEMENT OF FACTS Christy Travis
92. Christy Travis is 24 years old and has been residing at her home in West Columbia. Texas. Ms. Travis has a seizure disorder, is non-ambulatory, and has mental retardation. She recently graduated from high school, and her family would very much like for her to remain at home.
93. Ms. Travis requested HCS services pursuant to the TDMHMR regulations in effect at the time she submitted her application. Neither TDMHMR nor TOADS has evaluated her for HCS eligibility. Instead, Ms. Travis was placed on a waiting list. and she has remained on that waiting list for approximately eight years. Upon information and belief~ Defendants are unable to give Ms. McCarthy an estimate of when she will be evaluated for waiver services. Moreover, based upon the pace at which Defendants are currently processing the applications of those on the wait list for waiver services, it will be years before her application is evaluated. Ms. Travis is expected to live only another ten years.
94. Ms. Travis has received no written notice from Defendant TOADS or its predecessor agency TDMHMR that the services she has requested are being denied or delayed.

Plaintifl~" Third Amended Complaint

Page 24

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 25 of 47

95. Upon information and belief. the waiver services Ms. Travis has requested could be

provided at a lower cost than an ICF/MR placement.

Todd Gordon

96. Todd Gordon is 21 years old and has fragile X syndrome. Mr. Gordon has heen on

the HCS waiting list for approximately seven years. He lives at home with his family but needs

significant care. Without this care, he is in danger of being institutionalized.

97. Neither Defendant TOADS nor its predecessor agency TDMHMR informed Mr.

Gordon that he may be eligible for HCS waiver services. When Mr. Gordon learned of the program,

he requested HCS services pursuant to the TDMHMR regulations in effect at the time he submitted

his application. Neither TDMHMR nor TOADS has evaluated him for HCS eligibility. Instead, Mr.

Gordon was placed on a waiting list, and he has remained on that waiting list for approximately

eight years. Upon information and belief. Defendants are unable to give M1'. Gordon an estimate

of when he will be evaluated for waiver services. Moreover, based upon the pace at which

Defendants are currently processing the applications of those on the wait list for wai vel' services,

it will be years before his application is evaluated.

98. As of the filing of this complaint, M1'. Gordon remains on the HCS waiting list. He

has received no written notice from Defendant TDADS or its predecessor agency TDMHMR that

the services he has requested are being denied or delayed.

99. Upon information and belief, the waiver services M1'. Gordon has requested could

be provided at a lower cost than an ICF/MR placement.

Gail Truman

100. Gail Truman is 40 years old and resides with her parents, who are 76 and 70 years

old. She has mental retardation. Her parents are currently able to provide the services she requires

to remain at home. Upon information and belief, when her parents are no longer able to care tlH her.

it is unlikely that Ms. Truman will be able to avoid being institutionalized.

Plaintiff.s· ' Third Amended Complaint

Page 25

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 26 of 47
101. Ms. Truman requested HCS services pursuant to the TDMHMR regulations in effect at the time she submitted her application. Neither TDMHMR nor TDADS has evaluated her for HCS eligibility. Instead, Ms. Truman was placed on a waiting list, and she has remained on that waiting list for approximately eight years. Upon information and belief. Defendants are unable to give Ms. Truman an estimate of when she will be evaluated for waiver services. Moreover, based upon the pace at which Defendants are currently processing thc applications ofthose on the "vait list for waiver services, it will be years before her application is evaluated.
102. As ofthe filing ofthis complaint, Ms. Truman remains on the HCS waiting list. She has received no written notice from Defendant TDADS or its predecessor agency TDMHMR that the services she has requested are being denied or delayed.
103. Upon information and belief, the waiver services Ms. Truman has requested could be provided at a lower cost than an ICF/MR placement. Jim Floyd, Jr.
104. Jim Floyd, Jr. lives with his mother and father. He is 45 years old, and his parents are 70 and 76. Mr. Floyd has autism and is in need of waiver services to remain in the community. Because of the lack of waiver services, Mr. Floyd's parents hope to outlive him. so as not to subject him to an institution.
105. Mr. Floyd has requested HCS services pursuant to the TDMHMR regulations in effect at the time he submitted his application. Neither TDMHMR nor TDADS has evaluated him for HCS eligibility. Instead, Mr. Floyd was placed on a waiting list, and he has remained on that waiting list for approximately eight years. Upon information and belief, Defendants are unable to give Mr. Floyd an estimate of when he will be evaluated for waiver services. Moreover. based upon the pace at which Defendants are currently processing the applications of those on the wait list for waiver services. it will be years before his application is evaluated.

Plaintiff\' ' Third Amended Complaint

Page 26

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 27 of 47

106. As ofthe filing ofthis complaint, Mr. Floyd remains on the HCS waiting Iist. He has

received no written notice from Defendant TDADS or its predecessor agency TDMHMR that the

services he has requested are being denied or delayed.

Sam Lindsay

107. Sam Lindsay lives with his mother and father. He is 55 years old, and his parents are

81 and 79. Mr. Lindsay has mental retardation, and as he has aged, it has become increasingly

difficult for his parents to address his needs without additional assistance. Upon information and

belief, ifMr. Lindsay does not receive waiver services. it is likely he will have to be institutionalized

in the future.

108. Mr. Lindsay has requested HCS services pursuant to the TDMHMR regulations in

effect at the time he submitted his application. Neither TDMHMR nor TDADS has evaluated him

for HCS eligibility. Instead, Mr. Lindsay was placed on a waiting list and he has remained on that

waiting list for approximately eight years. Upon information and belief, Defendants are unable to

give Mr. Lindsay an estimate of when he will be evaluated for waiver services. Moreover, based

upon the pace at which Defendants are currently processing the applications of those on the wait list

for waiver services, it will be years before his application is evaluated.

109. As of the tiling of this complaint, Mr. Lindsay remains on the HCS waiting list. He

has received no written notice from Defendant TDADS or its predecessor agency TDMI-IMR that

the services he has requested are being denied or delayed.

Joe Ray Camacho

1JO. Joe Ray Camacho is 35 years old and resides in a nursing care facility in Aransas

Pass, Texas. Mr. Camacho lived in an ICF/MR facility in Rockport Texas, from approximately

October 1995 to July 2004. Mr. Camacho left the ICF/MR facility in an attempt to live more

independently within the community. He vvas unable to obtain the services he required, however.

and was forced to enter the nursing home in which he now lives. Upon information and belief. Mr.

Plaintiff.~· ' Third Amended Complaint

Page 27

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 28 of 47

Camacho would not have had to accept placement in a nursing home if he had received the HCS

waiver services that he has requested.

Ill. At the recommendation ofhis ICF/MR treatment team, in January 20U 1Mr. Camacho

requested HCS services pursuant to the TDMHMR regulations in effect at the time he submitted his

application. Neither TDMHMR nor TOADS has evaluated him for HCS eligibility. Instead. Mr.

Camacho was placed on a waiting list, and he has remained on that waiting list for approximately

five years.

112. Mr. Camacho was eligible to apply for RCS waiver services when he was admitted

to the Rockport ICF/MR facility in October 1995. but Defendants never informed him of either the

placement option or the option to be put on the HCS waiting list. As a result. Mr. Camacho lost six

years of seniority on the HCS waiting list. Upon information and belief: Defendants are unable to

give Mr. Camacho an estimate of when he will be evaluated for waiver services. Moreover. based

upon the pace at which Defendants are currently processing the applications of those on the wait list

for waiver services, it will be years before his application is evaluated.

113. As ofthe filing ofthis complaint, Mr. Camacho remains on the HCS waiting list. He

has received no written notice from Defendant TOADS or its predecessor agency TDMHMR that

the services he has requested are being denied or delayed.

114. Mr. Camacho's has been advised that he is an appropriate candidate for foster care

services. which could be provided under the HCS waiver for which Mr. Camacho has appl ied. Upon

information and belief: the waiver services Mr. Camacho has requested could be provided at a lower

cost than an ICF/MR placement.

Patrick Sostack 115. Patrick Sostack is 14 years old and lives with his parents, Gary and Lisa Sostack.

Patrick has autism. and he attends middle school where his classes are modified to address his

educational needs.
Plaintiffs' Third Amended Complaint

Page 28

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 29 of 47
] 16. Since Patrick's initial diagnosis almost 12 years ago, his parents have spent tens of thousands of dollars trying to address a variety of issues related to his autism. especially behavioral issues at home. Patrick's family has used all of its available financial resources to help Patrick become a more independent. socially appropriate, and educationally competent young man.
117. Patrick continues to need a variety of services especially related to behavior management. Without the CLASS waiver services he has requested. Patrick is unlikely to receive these needed services. Without such services, he will be less likely to be functionally independent and to be socially appropriate: qualities he will need to work and live with minimal assistance.
] 18. Moreover, every day Patrick waits for CLASS services, the amount of time he will need to achieve his goal ofbeing more self-reliant increases. Similarly. not getting CLASS services increases the possibility that at some point, he may need institutional services. The family also needs the assistance of a case manager to address the array of service needs Patrick currently has. as well the array of service needs that he will have as he grows older. Patrick's family also needs respite services.
119. Through his parents, Patrick has requested CLASS services pursuant to the TDHS regulations in effect at the time he submitted his application. Neither TDHS nor TOADS has evaluated him for CLASS eligibility. Instead. Patrick was placed on a waiting list. and he has remained on that waiting list for approximately seven years. Upon information and belief. Defendants are unable to give Patrick an estimate of when he will be evaluated for waiver services. Moreover. based upon the pace at which Defendants are currently processing the applications of those on the wait list for waiver services, it will be years before his application is evaluated.
120. As ofthe filing ofthis complaint. Patrick remains on the CLASS waiting list. I Ie has received no written notice from Defendant TDADS or its predecessor agency TDHS that the services he has requested are being denied or delayed.

Plaintifj~ , Third Amended Complaint

Page 29

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 30 of 47

Scott Sostack

121. Scott Sostack is Patrick's l4-year-old twin brother. Scott has also been diagnosed

with autism, and he also lives with his parents, Lisa and Gary Sostack. Scott attends middle schooL

where his classes are modified to address his educational needs in light of his autism diagnosis.

122. Since Scott's initial diagnosis almost 12 years ago. his parents have spent tens of

thousands of dollars trying to address a variety of issues related to his autism. especially behavioral

issues at home. Scott' s family has used all of its available financial resources to hel p Scott become

a more independent, socially appropriate, and educationally competent young man.

123. Scott continues to need a variety of services especially related to bcha\'ior

management. Without the CLASS waiver services he has requested, Scott is unlikely to receive

these needed services. Without such services, he will be less likely to be functionally independent

and to be socially appropriate: qualities he will need to work and live with minimal assistance.

124. Moreover. every day Scott waits for CLASS services. the amount of time he will

need to achieve his goal of being more self-reliant increases. Similarly, not getting CLASS services

increases the possibility that at some point, he may need institutional services. The family also

needs the assistance of a case manager to address the array of service needs Scott currently has. as

well the array of service needs that he will have as he grows older. Scott's t~unily also needs respite

serVIces.

125. Through his parents. Scott has requested CLASS services pursuant to the TDHS

regulations in efIect at the time he submitted his application. Neither TDHS nor TOADS has

evaluated him for CLASS eligibility. Instead. Scott was placed on a waiting list. and he has

remained on that waiting list for approximately seven years. Upon information and bdieL

Defendants are unable to give Scott an estimate of when he will be evaluated for waiver services.

Moreover, based upon the pace at which Defendants are currently processing the applications of

those on the wait list for waiver services. it will be years before his application is evaluated.

Plaintiff\' ' Third Amended ('omplamt

Page 30

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 31 of 47

126. As of the filing of this complaint. Scott remains on the CLASS waiting list. lie has

received no written notice from Defendant TOADS or its predecessor agency TDHS that the

services he has requested are being denied or delayed.

Shyan Forough

127. Shyan Forough is eight years old and lives with his parents. Reza and Arzu Forough.

Shyan has autism, and is currently in school, were his educational program is modified to address

his educational needs in light of his autism diagnosis. Shyan has a variety of behavioral issucs that

require ongoing behavior management. and which afIect other developmental areas related to social

and functional independence.

128. Since Shyan's initial diagnosis, his parents have spent thousands of dollars trying to

address a variety of issues related to his autism, especially behavioral issues at home. Shyan' s

family has essentially used all of its available financial resources to help Shyan become a more

independent, socially appropriate, and educationally competent young man.

129. Without CLASS waiver services, Shyan will not receive the services he needs to be

functionally independent and socially appropriate: qualities he will need to live and eventually work

more independently.

130. Every day Shyan goes without CLASS waiver services, the amount of time he will

need to achieve self-reliance increases. Similarly. every day he has to wait for CLASS waiver

services, the possibility that he may need institutional services increases. In addition. the family

needs the assistance of a case manager to address the array of service needs Shyan currently has. as

well as future service needs that come with growing-up. His family also needs respite care services.

139. Through his parents, Shyan has requested CLASS services pursuant to the 'l'DI-IS

regulations in etIect at the time he submitted his application. Neither TDHS nor TOADS has

evaluated him for CLASS eligibility. Instead. Shyan was placed on a waiting list. and he has

remained on that waiting list for approximately five years. Upon information and belief, Dcfendants

Plaintiff." ' Third Amended Complaint

Page 3\

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 32 of 47

are unable to give Shyan an estimate of when he will be evaluated for waiver services. Moreover.

based upon the pace at which Defendants are currently processing the applications of those on the

wait list for waiver services, it will be years before his application is evaluated.

131. As of the tiling of this complaint, Shyan remains on the CLASS waiting list. IIe has

received no written notice from Defendant TOADS or its predecessor agency TDHS that the

services he has requested are being denied or delayed.

Ashton Bowlen

132. Ashton Bowlen is twelve years old and lives with her mother, Patricia Bowlen, in

Vidor, Texas. Ashton has been diagnosed with autism. She is also nonverbal, making

communication all the more difficult. With regard to developmental services, Ashton receives in-

home training from her school district. Currently. Ashton only receives respite care.

133. Through her mother, Ashton requested HCS and CLASS services pursuant to the

TDHS and TDMHMR regulations in effect at the time she submitted her applications. Neither

TOADS nor its predecessor agencies TDHS and TDMHMR has evaluated her for HCS or CLASS

eligibility. Instead, Ashton was placed on a waiting list, and she has remained on that waiting list

for approximately seven years. Upon information and belief, Defendants are unable to give Ms.

Ashton an estimate of when she will be evaluated for waiver services. Moreover. based upon the

pace at which Defendants are currently processing the applications of those on the wait list for

waiver services, it will be years before her application is evaluated.

134. Without the HCS and CLASS waivers. Ashton will not receive necessary educational

and developmental services. without which she will be less likely to be functionally independent and

to be socially appropriate: qualities she will need to work and live with minimal assistance.

135. Moreover. every day Ashton waits for HCS and CLASS services. the time needed

for her to become self-reliant increases. Similarly, not receiving HCS and CI _ASS services increases

the possibility that at some point, she may need institutional services.
Plaintiff" . Third Amended Cumplaint

Page 32

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 33 of 47

136. Furthermore, Ashton desperately needs to stay at home in order to receive proper care

and attention in a familiar and familial setting. As a result of already having waited since Ashton

was five years old for HCS and CLASS services, Patricia Bowlen worries to the extent of suffering

from panic attacks.

137. As ofthe filing of this complaint, Ashton remains on the HCS and CLASS waiting

lists. She has received no written notice from Defendant TOADS or its predecessor agencies TDHS

and TDMHMR that the services she has requested are being denied or delayed.

Tyler Blanchard

138. Tyler Blanchard is nine years old and lives with his mother, Faith Blanchard. in

Mauriceville, Texas. Tyler has been diagnosed with autism. He receives educational services

through his school district. He also receives in-home respite care.

139. Through his mother, Tylerrequested HCS and CLASS services pursuantto the TOHS

and TDMHMR regulations in effect at the time he submitted his applications. Neither TDAOS nor

its predecessor agencies TDHS and TDMHMR has evaluated him for HCS or CLASS eligibility.

Instead, Tyler was placed on a waiting list, and he has remained on that waiting list for

approximately three years. Upon information and belief. Defendants are unable to give Tyler an

estimate of when he will be evaluated for waiver services. Moreover, based upon the pace at which

Defendants are currently processing the applications of those on the wait list for waiver services,

it will be years before his application is evaluated.

140. Without the HCS and CLASS waivers, he will not receive necessary developmental

services, without which he will be less likely to be functionally independent and to be socially

appropriate; qualities he will need to work and live with minimal assistance.

141. As of the filing of this complaint. Tyler remains on the HCS and CLASS waiting

lists. He has received no written notice from Defendant TDADS or its predecessor agencies TOllS

and TDMHMR that the services he has requested are being denied or delayed.

Plaintiffs' Third Amended Complaint

Page 33

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 34 of 47

Garrett Gillard

142. Garrett Gillard is ten years old and lives with his mother. Keeya Gillard, in

Lumberton, Texas. Garrett has been diagnosed with autism. He requires services to enable him to

stay at home.

143. Through his mother, Garrett requested HCS and CLASS services pursuant to the

TDHS and TDMHMR regulations in effect at the time he submitted his applications. Neither

TDADS nor its predecessor agencies TDHS and TDMHMR has evaluated him for HCS or CLASS

eligibility. Instead, Garrett was placed on a waiting list, and he has remained on that waiting list for

approximately seven years. Upon information and belief Defendants are unable to give Garrett an

estimate of when he \-vill be evaluated for waiver services. Moreover, based upon the pace at which

Defendants are currently processing the applications of those on the wait list for waiver services.

it will be years before his application is evaluated.

144. Without the HCS and CLASS waivers, he will not receive necessary developmental

services, without which he will be less likely to be functionally independent and to be socially

appropriate; qualities he will need to work and live with minimal assistance.

145. As of the filing of this complaint, Garrett remains on the HCS and CLASS \vaiting

lists. He has received no written notice from Defendant TDADS or its predecessor agencies TOHS

and TDMHMR that the services he has requested are being denied or delayed. 146.

Kameron Lane

147. Kameron Lane is eight years old and lives with his mother. Angie Lane, in Groves.

Texas. Kameron was diagnosed with two disorders. He has a brain disorder and a seizure disorder.

Furthermore, he is developmentally delayed.

148. Through his mother, Kameron requested CLASS services pursuant to the TOHS

regulations in effect at the time he submitted his application. Neither TDAOS nor its predecessor

agencies TDHS and TOMHMR has evaluated him for CLASS eligibility. Instead, Kameron was

Plaintiffs' Third Amended Complaint

Page 34

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 35 of 47

placed on a waiting list, and he has remained on that waiting list for approximately three years.

Upon information and belief, Defendants are unable to give Kameron an estimate of when he will

be evaluated for waiver services. Moreover, based upon the pace at which Defendants are currently

processing the applications of those on the wait list for waiver services. it will be years before his

application is evaluated.

149. Without the CLASS waiver, he will not receive necessary developmental services.

without which he will be less likely to be functionally independent and to be socially appropriate:

qualities he will need to work and live with minimal assistance.

150. As of the filing of this complaint, Kameron remains on the CLASS waiting lists. He

has received no written notice from Defendant TOADS or its predecessor agency TDHS that the

services he has requested are being denied or delayed.

Madison Polk

151. Madison Polk is eleven years old and until recently lived with mother and l~ltheL

John and Robin Polk in Vidor. Texas. Madison has been diagnosed both with autism and a seizure

disorder.

152. Madison requested CLASS services pursuant to the TDHS regulations in etTect at

the time she submitted her application. Neither TDHS nor TDADS has evaluated her for CLASS

eligibility. Instead. Madison was placed on a waiting list and she has remained on that waiting list

for approximately nine years. Upon information and belief, Defendants are unable to give Madison

an estimate of when she will be evaluated for waiver services. Moreover, based upon the pace at

which Defendants are currently processing the applications of those on the wait list for waiver

services, it will be years before her application is evaluated.

153. During the pendency ofthis case, Madison's condition has worsened. Lett \vithout

alternatives for community services, Madison was placed at Bayes Achievement Center in

Hunstville, over two hours away from her family. Plam/iff'; , Third Amended Complaint

Page 35

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 36 of 47
154. As of the filing of this complaint Madison remains on the CLASS waiting list. She has received no written notice from Defendant TDADS or its predecessor agency TDI IS that the services she has requested are being denied or delayed. Billy Burch
155. Billy Burch is 44 years old and lives in an ICF/MR in San Antonio, Texas. Mr. Burch has lived in this facility for approximately fifteen years. Mr. Burch is quadriplegic. legally blind, and has moderate mental retardation. Mr. Burch works 30 hours per week making greeting cards.
156. Mr. Burch's parents and siblings live in Edinburg, Texas, and they have unsuccessfully sought placement for Mr. Burch in ICF/MR facilities in Edinburg. Mr. Burch's family spends approximately $6,500 per year to bring Mr. Burch to Edinburg for Thanksgi\ ing. Christmas, Easter, and 30 days each summer. The Burch's also travel to San Antonio to visit Mr. Burch approximately once per month.
157. Mr. Burch's parents have located an HCS provider who could meet Mr. Burch's needs in a community placement in Edinburg if Mr. Burch's application for HCS waiver services is granted.
158. Although Mr. Burch has been in his current ICF/MR placement for over fitteen years, he was not advised by TDADS or its predecessor agency that he could apply for the I-Ie'S w'aiver program until approximately 2000. Mr. Burch requested CLASS services in 2000 pursuant to the TDHS regulations in effect at the time he submitted his application. Neither TDHS nor TOADS has evaluated him for CLASS eligibility. Instead, Mr. Burch was placed on a waiting list and he has remained on that waiting list for approximately five years. Upon information and belief. Defendants are unable to give Mr. Burch an estimate of when he will be evaluated for waiver services. Moreover, based upon the pace at which Defendants are currently processing the

Plaintirf~" Third Amended Complaint

Page 36

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 37 of 47
applications of those on the wait list for waiver services, it will be years before his appl ication is evaluated.
159. As ofthe filing ofthis complaint. Mr. Burch remains on the CLASS waiting list. He has received no written notice from Defendant TDADS or its predecessor agency TDI IS that the services he has requested are being denied or delayed. Nathaniel Burkett
160. Nathaniel Burkett is 27 years old and lives in an ICF/MR in Beaumont, Texas. He has moderate mental retardation. Mr. Burkett lived at home with his parents until 1999. While he was living at home, Mr. Burkett worked at a fast food restaurant. Mr. Burkett moved into an ICF/MR when his father was 78 and was no longer able to provide the care and supervision Nathaniel requires.
161. Mr. Burkett currently attends the Gulf Coast Opportunity Center, where he studies job readiness and independent living skills such as meal preparation, behavioral skills. self medication, and hygiene.
162. Mr. Burkett requested CLASS services pursuant to the TDHS regulations in effect at the time he submitted his application. NeitherTDHS nor TDADS has evaluated him for (,I.ASS eligibility. Instead. Mr. Burkett was placed on a waiting list. and he has remained on that \vaiting list for approximately three years. Upon information and belief, Defendants are unable to give Mr. Burkett an estimate of when he will be evaluated for waiver services. Moreover. based upon the pace at which Defendants are currently processing the applications of those on the wait list for waiver services, it will be years before his application is evaluated.
163. As of the filing of this complaint, Mr. Burkett remains on the CLASS waiting list. He has received no written notice from Defendant TDADS or its predecessor agency TDI IS that the services he has requested are being denied or delayed.

Plaintiffs' Third Amended Complaint

Page 37

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 38 of 47
VIII. CAUSES OF ACTION Count I
Medicaid: Failure in Amount, Duration, and Scope 164. States participating 10 the Medicaid program must set "reasonable
* standards ... consistent with objectives of the [Medicaid Act]." 42 U.S.C. 1396a(a)( 17). The
regulations interpreting these statutory requirements mandate that every service and benefit included in the state Medicaid plan be "sufficient in amount duration, and scope to reasonably achieve this purpose." 42 U.S.c. ~ 1396a (a)(10) and 42 C.F.R. ~ 440.230(d).
165. By their actions set forth above, Defendants' policies and practices violate federal requirements for an adequate amount. duration. and scope of ICF/MR-level services. including 42 U.S.C. ~ 1396a (a)( 10)~ 42 C.F.R. ~ 440.200 et seq.
166. Plaintiffs acknowledge that this claim was dismissed by the Court in its May 23. 2003 Order granting in part and denying in part Defendants' Motion to Dismiss. This claim is realleged for purposes of appeal and to affirmatively refute any claim of abandonment.
Count II Medicaid: Failure to Provide Choice of Services 167. Under federal Medicaid law and the assurances made by the Defendants in HCS and CLASS waiver programs, individuals with mental retardation and other developmental disabilities have the freedom to choose whether to receive Medicaid services in an ICF/MR or in a waiver program. 168. Under the CLASS and HCS waIver programs there are a variety of feasible alternatives to ICF/MR care including residential support and habilitation, day services. family support. respite services and transportation. 169. Defendants' administration ofthe Medicaid program denies Plaintiffs and Plaintiff class members their freedom of choice by (a) failing to inform them of their feasible alternatives to

Plainl{ffs' Third Amended Complaint

Page 38

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 39 of 47

Medicaid-funded ICF/MR facilities, including HCS and CLASS waiver programs. and (b) biling

to implement their choices for Medicaid services in violation 01'42 U.S.c. ~ 1396n (c)(2)((,).

170. PlaintifTs acknowledge that this claim was dismissed by the Court in its May 23.2003

Order granting in part and denying in part Defendants' Motion to Dismiss. This claim is realleged

for purposes of appeal and to affirmatively refute any claim of abandonment.

Count III Medicaid: Failure to Accept Applications For CLASS
and HCS Waiver Services

171. Plaintiffs incorporate by reference all the paragraphs set forth herein.

172. Federal law requires that Medicaid services shall be furnished with reasonable

promptness to all eligible individuals, and without delay caused by the state agency's administrative

procedures.

173. The Defendants refuse to accept applications from eligible Medicaid applicants.

including Plaintiffs and class members, thus denying them access to medical assistance through HCS

and CLASS waiver programs in a timely manner. This violates 42 U.S.c. ~ 1396a(a)(X) and

42 C.F.R. § 435.930(a).

174. PlaintifJs acknowledge that this claim was dismissed by the Court in its May 23, 2003

Order granting in part and denying in part Defendants' Motion to Dismiss. This claim is realleged

for purposes of appeal and to affirmatively refute any claim of abandonment.

Count IV 42 U.S.C. § 1983: Failure to Provide Medicaid CLASS and HCS Waiver Services
With Reasonable Promptness Once Application Is Made

175. Defendants voluntarily participate in the federal Medicaid program under 42 U.S.C.

§~ 1396 et seq. As a condition to participation, Defendants must ensure that medically necessary

services for eligible individuals with mental retardation or developmental disabilities are provided

in a reasonably prompt manner. Defendants' Medicaid program includes the CLASS and HCS

waiver programs.
Plaintiffs' Third Amended Complaint

Page 39

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 40 of 47

176. Federal law requires any State which elects to participate in the Medicaid program

under 42 U.S.c. §§ 1396 et. seq., provide all services, including CLASS and HCS waiver services.

to eligible individuals with reasonable promptness in violation of 42 U.S.c. ~ 1396a (a)(8).

177. The Plaintiffs have not received these services despite applying for them years ago.

The Plaintiffs remain on a waiting for these services.

178. The Defendants have administered and continue to administer the State' s ;vledicaid

system in a manner that limits the availability of CLASS and HCS waiver services to persons with

mental retardation or developmental disabilities. and that precludes providing these services to

Plaintiffs and other class members in a reasonably prompt manner.

179. This failure to provide Medicaid waiver services under CLASS and HCS waiver

programs is the result of arbitrary and unreasonable policies, practices, and decisions.

180. The Defendants' failure to provide CLASS and HCS waiver services to eligible

individuals in a reasonably prompt manner violates Plaintiffs' rights under the Medicaid Act and

its implementing regulations, the ADA, Olmstead, Section 504 of the Rehabilitation Act. and the

Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States

Constitution. The violation of these rights creates a cause of action under 42 LJ .S.c. ~ 1983.

181. Plaintiffs acknowledge that this claim was dismissed by the Court in its May 23.2003

Order granting in part and denying in part Defendants' Motion to Dismiss. This claim is rcallcged

for purposes of appeal and to affirmatively refute any claim of abandonment.

Count V Americans with Disabilities Act and Section 504 of the Rehabilitation Act:
Failure to Comply With The Integration Mandate

182. The ADA, 42 U.S.C. § 12101 et seq.. mandates that public entities like the Defendant

state agencies, provide services to persons with disabilities in the most integrated setting appropriate

to meet the individual's needs, rather than segregated settings. It also requires that public entities

ensure that available services are offered on a nondiscriminatory basis. Section 504 of the

Plal11fiff" . Third Amended Complaint

Page 40

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 41 of 47
Rehabilitation Act of 1973 contains a similar requirement for recipients of federal financial assistance. 29 U.S.C. § 794.
183. Title II of the ADA provides that "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 ofa public entity, or be subjected to discrimination by such entity. ,. 42 l J.S.C. § 12132. The regulations implementing Title II ofthe ADA and Section 504 require a public entity to administer its services, programs, and activities in the "most integrated setting appropriate" to the needs of qualified individuals with disabilities. 28 C.F .R. ~ 35 .130(d).
184. The Defendants' failure to provide individual Plaintiffs and members ofthe Plaintiff class with community mental retardation or developmental disability habilitation and support services in the most integrated setting appropriate violates 42 U.S.c. § 12132 and 28 C.F.R. § 35.130(d).
185. The Defendants' failure to administer programs like the HCS and CLASS waivers so that there are sufficient resources allocated to ensure that those who are unnecessarily institutionalized or at risk ofunjustified institutionalization, including Plaintiffs and members of the Plaintiff Class, are provided with community-based services in the 1110st integrated settll1g appropriate violates 42 U.S.c. § 12132 and 28 C.F.R. § 35.130(b)(3)(I)-(ii).
186. The Defendants' failure to provide qualified individuals with disabilities the same opportunity to participate in a benefit or program to the same extent as any other equally qualilil:d program participant and the same opportunity to achieve the benefits or results other qualified individuals have the opportunity to obtain violates 42 U.s.c. § 12132 and 2X C.F.R. § 35.130(b)(1)(I)-(iii-iv).
187. In addition to the above, the Defendants' failure to provide service like the HCS waiverto individuals living in 14 bed and smallerICF/MRs is notthe most integrated setting to meet

Plaint!fjs' Third Amended Complaint

Page 41

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 42 of 47
their service needs in violation of 42 U.S.C. § 12132: 29 U.S.C. § 504; 28 C.F.R. § 35.130(d): and 28 C.F.R. § 41.51.
188. By their actions set forth above, the Defendants continue to deny Plaintiffs services like the HCS and CLASS waivers in the most integrated setting appropriate to their needs in violation of the ADA, 42 U.S.C. § 12101 etseq.: 29 V.S.c. § 504 and the implementing regulations including 28 C.F.R. § 35.130(b)(l) (I-iii, vii). 35.130(b)(3)(I-ii), 35.130(d); and 28 C.F.R. §§ 41.51(b)(l)(i-iiL iv), 41.51(b)(3)(i-ii).
Count VI Violation of Due Process 189. The Defendants' failure to provide the Plaintiffs and members of the class with written notices and an opportunity to be heard when ICF/MR level of services are denied or not acted upon with reasonable promptness, violates federal law, including 42 V.S.c. § 1396a (a)(3): 42 C.F .R. § 431.200 et. seq.; and the Due Process Clause of the Fourteenth Amendment. 190. Plaintiffs acknowledge that to the extent this claim is based upon the Due Process Clause ofthe Fourteenth Amendment, as opposed to the due process provisions of the Medicaid Act and associated regulations, this claim was dismissed by the Court in its May 23, 2003 Order granting in part and denying in part Defendants' Motion to Dismiss. This claim as it relates to the Due Process Clause is realleged for purposes of appeal and to affirmatively refute any claim or abandonment.
Count VII Violation of Equal Protection of the United States Constitution 191. The Defendants violate the Plaintiffs' and class members' rights secured by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution by establishing,

Plaintiff~ . Third Amended Complaint

Page '-1-2

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 43 of 47
subsidizing, and otherwise sanctioning enactments, programs, policies. and practices that have excluded, separated, and segregated persons with mental retardation or developmental disabilities.
192. Specifically, Defendants have administered the HCS and CLASS waiver programs so that similarly situated applicants for HCS and CLASS waivers arc not treated equally in that applicants are not evaluated in the order that they applied to the waiver programs. As a result. some applicants may be evaluated and receive waiver services under the HCS or CLASS program before others who applied for the program before them.
193. For example, since the inception of this action, the HCS waiver applications of original named Plaintiffs Allison Pratt and Oshea Brooks have been approved. while other similarly situated named Plaintiffs. such as Christy Travis. Todd Gordon, and Sam Lindsay. who have been on the HCS and/or CLASS waiver waiting lists longer than Pratt or Brooks, remained on the waiting lists.
194. Allison Pratt. who has mental retardation. was on the HCS waiting list for approximately four years. Ms. Pratt lived at home with her parents. Oshea Brooks, who has cerebral palsy. diplegia, and mild mental retardation, was on the HCS waiting list for approximately four years. Mr. Brooks lived in an ICF/MR.
195. Christy Travis, who has mental retardation, physical disabilities, and a seizure disorder, has been on the HCS waiting list for eight years. Sam Lindsay. who has mental retardation. has been on the HCS waiting list for seven years. Todd Gordon, who has fi'agile X syndrome. has been on the HCS waiting list for seven years. Ms. Travis. Mr. Lindsay, and Mr. Gordon each live at home.
196. In addition, upon information and belief. Defendants have assigned HCS and/or CLASS waiver slots to individuals who were already receiving services funded by the state ahead of similarly situated individuals who remain on long waiting lists for waiver services.

Plaintiffs" Third Amended Complaint

Page 43

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 44 of 47
197. By their actions set forth above, the Defendants have failed and continue to fail to provide Plaintiffs with equal protection regarding the provision of waiver services in violation of the Equal Protection Clause of the United States Constitution.

Count VIII Civil Rights Act 198. Defendants were. at all times relevant to this Complaint. acting under color of state law. 199. Defendants. by their actions and inactions as alleged in this Complaint. have caused Plaintiffs and class to be subjected to the deprivation of their rights secured by the Constitution and laws of the United States. specifically the Social Security Act, and the Due Process and Equal Protection clauses of the Fourteenth Amendment to the U.S. Constitution. 200. These violations by these defendants constitute a violation of the Civil Rights Act. 42 U.S.C. Section 1983. 201. Plaintiffs acknowledge that this claim realleges certain claims dismissed by the Court in its May 23, 2003 Order granting in part and denying in part Defendants' Motion to Dismiss. To the extent that this claim realleges claims other than those under 42 U.S.C. § 1983 regarding violations ofthe due process provisions of the Medicaid Act, the ADA and Rehabilitation Act. and the Equal Protection Clause, this claim is realleged for purposes ofappeal and to atTirmatively refute any claim of abandonment.
Count IX Declaratory Judgment

Plaintiffs' Third Amended Complaint

Page 44

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 45 of 47

202. Plaintiffs and class members bring this claim for declaratory relief pursuant to

28 U.S.c. § 2201.

203. An actual controversy exists between Plaintiffs and Defendants with respect to the

nature and extent of Plaintiffs' rights under the Medicaid Act and its regulations, the ADA and its

regulations, Section 504 ofthe Rehabilitation Act and its regulations, and the Due Process and Eq ual

Protection Clauses under the Fourteenth Amendment to the United States Constitution.

204. Plaintiffs request that this Court declare the rights and obligations of the respective

parties under applicable federal Medicaid law and regulations, the ADA and regulations, Section

504 ofthe Rehabilitation Act and regulations, and the United States Constitution.

205. Plaintiffs acknowledge that this claim seeks relief based upon certain claims

dismissed by the Court in its May 23, 2003 Order granting in part and denying in part Defendants'

Motion to Dismiss. To the extent that this claim seeks relief based upon claims other than those

brought pursuant to 42 U.S.C. § 1983 and the due process provisions of the Medicaid Act: the ADA

and Rehabilitation Act; and the Equal Protection Clause, this claim is realleged [or purposes of

appeal and to affirmatively refute any claim of abandonment.

PRAYER

WHEREFORE, Plaintiffs respectfully pray that this Comi grant the following relief:

A. Certify this action as a class action;

B. Declare that the Defendants have violated the Plaintiffs' and class members' rights under the Medicaid Act and implementing regulations by failing and refusing to provide eligible individuals with services like the CLASS or HCS waivers;

C. Declare that the Defendants have violated the PlaintitTs' and class members' rights under the ADA and implementing regulations and Section 504 of the Rehabilitation Act and its implementing regulations by failing to provide eligible individuals with services like the CLASS or HCS waivers and thus failing to provide them with services in the most integrated setting appropriate to their needs;

D. Declare that Defendants' Promoting Independence Plan violates Olmstead because persons living in rCF/MRs with less than 14 beds and eligible persons living in the community are not provided access to waiver services at a reasonable pace.

Plainlltf.~ , Third Amended Complaint

Page 45

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 46 of 47

E. Declare that Defendants providing services like the HCS and CLASS waivers to all eligible individuals would not require a fundamental alteration ofthe state's mental health and mental retardation system.
F. Declare that Defendants providing services like HCS and CLASS waivers would not constitute an undue financial burden on Defendants.
G. Declare that the Defendants have violated Plaintiffs' and class members' rights to procedural and substantive due process under the Fourteenth Amendment to the United States Constitution;
H. Enter a permanent injunction requiring the Defendants to provide Plaintiffs and class members with medically necessary services like CLASS or HCS waivers at a reasonably prompt pace;
I. Enter a permanent injunction requiring the Defendants to provide Plaintiffs and class members with services in the most integrated setting appropriate to their needs.
J. Award Plaintiffs reasonable attorneys' fees, expenses, and costs of suit.
K. Award Plaintiffs and class members all other such appropriate relief, either at laVv or in equity, as the Court may deem appropriate, just and proper.

Dated: April 1, 2005

Respectfully submitted,

Plaintiffs' Third Amended Complaint

GARTH A. CORBETT State BarNo. 04812300 ADVOCACY, INCORPORATED 7800 Shoal Creek Boulevard, Suite 171-E Austin, Texas 78757-1014 (512) 454-4816 (Phone) (512) 454-3999 (Fax)
ATTORNEYS FOR PLAINTIFFS
Page 46

Case 1:03-cv-00231-SS Document 31 Filed 04/21/05 Page 47 of 47
CERTIFICATE OF SERVICE
I certify that on this 1st day of ApriL 2005, a true and correct copy of this document was delivered via U.S. certified mail, return receipt requested, to the attorney for defendants, Nancy K. luren, Assistant Attorney General, General Litigation Division, P. O. Box 12548, Capitol Station, Austin, Texas 78711-2548.

Plaintiff\' ' Third Amended Complaint

Page 47

 
 Case 1:03-cv-00231-SS Document 104 Filed 10/06/06 Page 1 of 3 OCT 0 3 2006

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXA S
AUSTIN DIVISIO N

CHRISTY TRAVIS, et al.,
Plaintiffs
v.
ALBERT HAWKINS, et al.
Defendants

§

§

§

Civil Action No . A:03-CA-231-SS

§

§

HONORABLE SAM SPARK S

§

§

JOINT STIPULATION OF DISMISSAL, WITH PREJUDICE
TO THE HONORABLE JUDGE SAM SPARKS : Pursuant to Rule 41(a)(1)(ii) of the Federal Rules of Civil Procedure, the parties to thi s
action—Plaintiffs, The Arc of Texas, on behalf of its members and for those similarly situated ; Tyler Blanchard, by and through his mother and next friend, Faith Blanchard ; Ashton Bowlen, b y and through her mother and next friend, Patricia Bowlen ; Billy Burch, by and through his father , William Burch, Sr . ; Nathaniel Burkett, by his guardian and brother, Clint Daniels ; Joe Ray Camacho ; Jim Floyd, Jr ., by and through his next friend, Jim Floyd, Sr . ; Shayan Forough, by and through hi s parents and next friends, Reza and Arzu Forough ; Garrett Gillard, by and through his mother and next friend, Keeya Gillard; Todd Gordon, by and through his next friend, Trisha Gordon ; Kameron Lane, by and through his mother and next friend, Angie Lane ; Sam Lindsay, by and through his nex t friend, Betty Lindsay ; Madison Polk, by and through her father and next friend, John Polk ; Patrick Sostack, by and through his parents and next friends, Gary and Lisa Sostack ; Scott Sostack, by an d through his parents and next friends, Gary and Lisa Sostack ; Christy Travis, by and through her nex t friend, Jamie Travis ; and Gail Truman, by and through her next friend, Ken Truman, and

Case 1:03-cv-00231-SS Document 104 Filed 10/06/06 Page 2 of 3

Defendants, Albert Hawkins, Executive Commissioner of the Texas Health and Human Service s Commission, and Adelaide Horn, Commissioner of the Texas Department of Aging and Disabilit y Services, hereby notify the Court that they have settled this case and stipulate to its dismissal, with prejudice . Respectfully Submitted,

F
ttorney at Law State Bar No . 0079051 4 3700 Enfield Road Austin, Texas 78703 236-087 5 236-0878 Fax

GREG ABBOTT Attorney General of Texas
KENT E. SULLIVAN First Assistant Attorney General
EDWARD D . BURBACH Deputy Attorney General for Litigatio n
ROBERT B . O'KEEFE Chief, General Litigation Divisio n

RT A. CORBETT Advocacy, Incorporated State Bar No . 0481230 0 7800 Shoal Creek Boulevard, Suite 171- E Austin, Texas 78757-101 4 454-4816, ext . 344 454-3999 FAX
Attorneys for Plaintiffs

NANCY K . 4REN Attorney-in- arge Texas Bar No . 1105930 0 STEPHEN H . CAPELL E Texas Bar No . 03774500 EDWIN HORNE Texas Bar No . 1000800 0 RICHARD E . SALISBURY Texas Bar No.2403303 4 ROBERT HENNEKE Texas Bar No . 2404605 8 Assistant Attorneys Genera l General Litigation Division P.O. Box 12548, Capitol Statio n Austin, Texas 78711-254 8 (512) 463-2120 (512) 320-0667 FAX Attorneys for Defendants

2

Case 1:03-cv-00231-SS Document 104 Filed 10/06/06 Page 3 of 3
CERTIFICATE OF SERVICE
I hereby certify that pursuant to the Court's Electronic Filing Procedures, a true and correct copy of the foregoing Joint Stipulation of Dismissal, with Prejudice has been sent via Notice of Electronic Filing ("NEF") generated by the court's electronic filing system on October 6, 2006 to:
Geoffrey Neil Courtney G.N.Courtney@Alumni.ND.edu
Garth A. Corbett gcorbett@advocacyinc.org
Attorneys for Plaintiffs
\s\ Nancy K. Juren NANCY K. JUREN

 
 Case: 1:02-cv-00600-RC As of: 03/11/2011 02:17 PM CST 1 of 7
BENCH, CLOSED
U.S. District Court [LIVE] Eastern District of TEXAS (Beaumont) CIVIL DOCKET FOR CASE #: 1:02−cv−00600−RC

McCarthy, et al v. Gilbert, et al Assigned to: Judge Ron Clark Demand: $0 Cause: 42:12181 Americans with Disabilities Act of 1990
Plaintiff

Date Filed: 09/06/2002 Date Terminated: 04/08/2003 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Christy McCarthy By &through her next friend Jamie Travis

represented by Geoffrey Neil Courtney Attorney at Law 3700 Enfield Rd Austin, TX 78703 512/236−0875 Fax: 15122360878 Email: g.n.courtney@alumni.nd.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Garth A Corbett Advocacy Inc − Austin 7800 Shoal Creek Blvd Suite 171−E Austin, TX 78757−1024 512/454−4816 Fax: 15124543999 Email: gcorbett@advocacyinc.org

Plaintiff
Todd Gordon By &through his next friend Trisha Gordon

represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Garth A Corbett (See above for address)

Plaintiff
Allison Pratt By &through her next friend Paula Pratt

represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Garth A Corbett (See above for address)

Plaintiff
Gail Truman By &through her next friend Ken Truman

represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Garth A Corbett (See above for address)

Plaintiff
Jim Floyd, Jr By &through his next friend Jim Floyd Sr

represented by Geoffrey Neil Courtney (See above for address)

Case: 1:02-cv-00600-RC As of: 03/11/2011 02:17 PM CST 2 of 7

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Garth A Corbett (See above for address)

Plaintiff
Sam Lindsay By &through his next friend Betty Lindsay

represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Garth A Corbett (See above for address)

Plaintiff Oshea Brooks

represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Garth A Corbett (See above for address)

Plaintiff Joe Ray Comacho

represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Garth A Corbett (See above for address)

Plaintiff
Micha Chastain By &through his next friend Lori Chastain

represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Garth A Corbett (See above for address)

Plaintiff
AL By &through her next friend LL

represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Garth A Corbett (See above for address)

Plaintiff
The ARC of Texas On behalf of its members &for thos similarly situated

represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Garth A Corbett (See above for address)

Plaintiff

Case: 1:02-cv-00600-RC As of: 03/11/2011 02:17 PM CST 3 of 7

Sue Ann Ortiz

represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Garth A Corbett (See above for address)

V. Defendant Don A Gilbert In His official capacity as Commissioner of The Texas Health &Human Services Commission TERMINATED: 01/15/2003
Defendant Karen F Hale In her official capacity as Commissioner of The Texas Department of Mental Health &Mental Retardation
Defendant James R Hine In his official capacity as Commissioner of The Texas Department of Human Services
Defendant Don Green Interim Commissioner of The Texas Health and Human Services Commission
Plaintiff Patrick Sostack by and through their parents and next friends Gary and Lisa Sostack
Plaintiff Scott Sostack by and through their parents and next friends Gary and Lisa Sostack

represented by Nancy K Juren Attorney General's Office PO Box 12548 Capitol Station Austin, TX 78711−2548 512/463−2120 Fax: 15123200667 Email: nancy.juren@oag.state.tx.us TERMINATED: 01/15/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nancy K Juren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nancy K Juren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nancy K Juren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Garth A Corbett (See above for address) ATTORNEY TO BE NOTICED
represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Garth A Corbett (See above for address) ATTORNEY TO BE NOTICED

Case: 1:02-cv-00600-RC As of: 03/11/2011 02:17 PM CST 4 of 7

Plaintiff Shyan Forough by and through his parents and next friend Reza and Arzu Forough
Plaintiff David Zweifel by and through his parents and next friends Linda and Leroy Zweifel
Plaintiff Ashton Bowlen by an through her mother and next friend, Patricia Bowlen
Plaintiff Tyler Blanchard by and through his mother and next friend, Faith Blanchard
Plaintiff Garrett Gillard by and through his mother and next friend, Keeya Gillard
Plaintiff Kameron Lane by and through his mother and next friend, Angie Lanea
Plaintiff

represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Garth A Corbett (See above for address) ATTORNEY TO BE NOTICED
represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Garth A Corbett (See above for address) ATTORNEY TO BE NOTICED
represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Garth A Corbett (See above for address) ATTORNEY TO BE NOTICED
represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Garth A Corbett (See above for address) ATTORNEY TO BE NOTICED
represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Garth A Corbett (See above for address) ATTORNEY TO BE NOTICED
represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Garth A Corbett (See above for address) ATTORNEY TO BE NOTICED

Case: 1:02-cv-00600-RC As of: 03/11/2011 02:17 PM CST 5 of 7

Madison Polk by and through her father and next friend, John Polk

represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Garth A Corbett (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Paige Smith by and through her mother and next friend, Gretta Smith

represented by Geoffrey Neil Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Garth A Corbett (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Albert Hawkins In his official capacity as Commissioner of The Texas Health and Human Services Commission

represented by Nancy K Juren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/06/2002 09/06/2002 09/09/2002 09/09/2002 10/04/2002 10/07/2002 10/07/2002 10/07/2002 10/07/2002
10/15/2002 10/30/2002 10/30/2002

# Docket Text
1 Original Complaint filed. Cause: 42:12181 American Disability Act (bst) (Entered: 09/09/2002)
Filing Fee Paid; FILING FEE $ 150 RECEIPT # 105899 (bst) (Entered: 09/09/2002)
Summons(es) issued for Don A Gilbert, Karen F Hale, James R Hine &mailed to pla's atty for service (bst) (Entered: 09/09/2002)
Magistrate consent forms mailed to pla's atty Geoffrey N Courtney (bst) (Entered: 09/09/2002)
2 Motion by Don A Gilbert, Karen F Hale, James R Hine for extension of time to file responsive pleading (bjc) (Entered: 10/07/2002)
3 Return of service executed as to Don A Gilbert 9/23/02 on sum/cmp. Answer due on 10/14/02 for Don A Gilbert (bjc) (Entered: 10/07/2002)
4 Return of service executed as to Karen F Hale 9/23/02 on sum/cmp. Answer due on 10/14/02 for Karen F Hale (bjc) (Entered: 10/07/2002)
5 Return of service executed as to James R Hine 9/23/02 on sum/cmp. Answer due on 10/14/02 for James R Hine (bjc) (Entered: 10/07/2002)
6 ORDER granting [2−1] motion for extension of time to file responsive pleading; reset answer due on 11/1/02 for James R Hine, Karen F Hale, Don A Gilbert (signed by Judge Thad Heartfield) cc: attys 10/7/02 (bjc) (Entered: 10/07/2002)
7 1st Amended complaint by all plas', amending [1−1] complaint added plas' Patrick Sostack, Scott Sostack, Shyan Forough, David Zweifel (bjc) (Entered: 10/17/2002)
8 Motion by Don A Gilbert, Karen F Hale, James R Hine to extend time to file responsive pleading to pltf's first amended complaint. (rll) (Entered: 10/30/2002)
9 ORDER granting [8−1] motion to extend time, reset answer due on 11/22/02 for James R Hine, for Karen F Hale, for Don A Gilbert ( signed by Judge Thad

Case: 1:02-cv-00600-RC As of: 03/11/2011 02:17 PM CST 6 of 7

11/12/2002 11/22/2002 11/22/2002 11/22/2002 11/22/2002 11/26/2002
11/26/2002 12/09/2002 12/09/2002 12/09/2002 12/09/2002 12/13/2002 12/13/2002 12/13/2002 12/13/2002 12/16/2002 12/16/2002
12/16/2002 12/23/2002
12/23/2002
01/06/2003

Heartfield ) cc: parties of record 10/31/02 (fbc) (Entered: 10/30/2002)
10 MOTION by all plas' to certify class action and brief in support (bjc) Modified on 11/14/2002 (Entered: 11/14/2002)
11 Motion by Don A Gilbert, Karen F Hale, James R Hine for extension of time to file resp to plas' mo for class certification (bjc) (Entered: 11/25/2002)
12 MOTION by Don A Gilbert, Karen F Hale, James R Hine to exceed page limitation − motion to dismiss (bjc) (Entered: 11/25/2002)
13 MOTION by Don A Gilbert, Karen F Hale, James R Hine to transfer venue (bjc) (Entered: 11/25/2002)
14 MOTION by Don A Gilbert, Karen F Hale, James R Hine to dismiss pla ARC of TX (bjc) (Entered: 11/25/2002)
15 ORDER granting [12−1] motion to exceed page limitation − motion to dismiss (signed by Judge Thad Heartfield 11/25/02 ) cc: attys 11/27/02 (bjc) (Entered: 11/27/2002)
16 MOTION by Don A Gilbert, Karen F Hale, James R Hine to dismiss case (bjc) (Entered: 11/27/2002)
17 Memorandum in opposition by all plas' to dfts' [14−1] motion to dismiss pla ARC of TX (bjc) Modified on 12/10/2002 (Entered: 12/10/2002)
18 Memorandum in opposition by all plas' to dfts' [11−1] motion for extension of time to file resp to plas' mo for class certification (bjc) (Entered: 12/10/2002)
19 Memorandum in opposition by all plas' to dfts' [13−1] motion to transfer venue (bjc) (Entered: 12/10/2002)
20 Motion by all plas' for extension of time to file resp to dfts' mo to dismiss (bjc) Modified on 12/10/2002 (Entered: 12/10/2002)
21 Reply by Don A Gilbert, Karen F Hale, James R Hine to memorandum in opposition to [13−1] motion to transfer venue (mrp) (Entered: 12/13/2002)
22 Supplemental [13−1] motion to transfer case − supplemental by Don A Gilbert, Karen F Hale, James R Hine (mrp) (Entered: 12/13/2002)
23 Reply by Don A Gilbert, Karen F Hale, James R Hine to response to [10−1] motion to certify class action (mrp) (Entered: 12/13/2002)
24 Reply by Don A Gilbert, Karen F Hale, James R Hine to response to [14−1] motion to dismiss pla ARC of TX (mrp) (Entered: 12/13/2002)
25 Response by Don A Gilbert, Karen F Hale, James R Hine to [16−1] motion to dismiss case (mrp) (Entered: 12/17/2002)
ORDER transferring this case to the docket of Judge Ron Clark ( signed by Judge Thad Heartfield ) **ORIGINAL ORDER EOD IN 1:99cv83** (jec) (Entered: 12/19/2002)
Case reassigned to Judge Ron Clark (jec) (Entered: 12/19/2002)
26 Sur−reply by Christy McCarthy, Todd Gordon, Allison Pratt, Gail Truman, Jim Floyd Jr, Sam Lindsay, Oshea Brooks, Joe Ray Comacho, Micha Chastain, AL, The ARC of Texas, Sue Ann Ortiz, Patrick Sostack, Scott Sostack, Shyan Forough, David Zweifel to dfts' [13−1] motion to transfer venue (bjc) (Entered: 12/24/2002)
27 2nd Amended complaint by all plas', amending [1−1] complaint added plas' Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Kameron Lane, Madison Polk, Paige Smith (bjc) (Entered: 12/24/2002)
28 MOTION by Don Green, Karen F Hale, James R Hine for leave to file response to pltfs' venue sur−reply to defts' motion to transfer venue (tkd) (Entered: 01/07/2003)

Case: 1:02-cv-00600-RC As of: 03/11/2011 02:17 PM CST 7 of 7

01/15/2003 01/15/2003 01/15/2003 01/21/2003 01/21/2003 01/27/2003 01/30/2003 02/04/2003 02/04/2003 02/06/2003 02/13/2003 03/06/2003 03/10/2003
03/17/2003 03/18/2003 03/24/2003 04/01/2003 04/08/2003 04/16/2003

29 Notice of substitution of party; terminated deft Don A Gilbert. The correct party becomes deft Albert Hawkins (tkd) (Entered: 01/16/2003)
30 Response by Albert Hawkins, Karen F Hale, James R Hine to pltfs' sur−reply to [13−1] motion to transfer venue (tkd) (Entered: 01/16/2003)
31 MOTION by Albert Hawkins, Karen F Hale, James R Hine to strike [27−1] second amended complaint , or in the alternative, to amend [16−1] motion to dismiss (tkd) (Entered: 01/16/2003)
32 Response by all plaintiffs to [31−1] motion to strike [27−1] second amended complaint, and [31−2] motion to amend [16−1] motion to dismiss (tkd) (Entered: 01/22/2003)
32 MOTION by all plaintiffs for leave to file second amended complaint (tkd) (Entered: 01/22/2003)
33 Reply by James R Hine, Albert Hawkins, Karen F Hale to response to [31−2] motion to amend [16−1] motion to dismiss, [31−1] motion to strike [27−1] second amended complaint (fbc) (Entered: 01/27/2003)
34 Response by Albert Hawkins, Karen F Hale, James R Hine to plas' [32−1] motion for leave to file second amended complaint (bjc) (Entered: 01/30/2003)
35 MOTION by all plaintiffs to exceed page limit on their response to motion to dismiss (tkd) (Entered: 02/05/2003)
36 Reply by all plaintiffs to response to [32−1] motion for leave to file second amended complaint (tkd) (Entered: 02/05/2003)
37 MOTION by Albert Hawkins, Karen F Hale, James R Hine to extend time to file reply to pltfs' response to motion to dismiss (tkd) (Entered: 02/06/2003)
38 Initial ORDER governing proceedings; management conference set for 11:00 5/9/03 ; Rule 26(f) conference deadline 4/8/03 ( signed by Judge Ron Clark ) cc attys 2/13/03 (bsw) (Entered: 02/13/2003)
39 Joint MOTION by all parties to stay initial order governing proceedings (tkd) (Entered: 03/07/2003)
40 ORDER granting [39−1] motion to stay. The parties are relieved of their obligations under the initial order governing proceedings until a decision is made on motion to transfer venue, or until 5/9/03, whichever is later (signed by Judge Ron Clark) cc attys 3/11/03 (tkd) (Entered: 03/11/2003)
41 Memorandum and Order granting [13−1], [22−1] motions to transfer. Ordered that this case is transferred to the Western District of Texas, Austin Division (signed by Judge Ron Clark) cc attys 3/18/03 (tkd) (Entered: 03/18/2003)
42 Notice of Cancellation: Management Conference Hrg canceled for 5/9/03 at 11:00 am before Judge Clark cc: RC, attys of record 3/19/03 (bca) (Entered: 03/18/2003)
43 MOTION by all plaintiffs for reconsideration of [41−1] memorandum and order granting motion to transfer (tkd) (Entered: 03/25/2003)
44 ORDER denying [43−1] motion for reconsideration of [41−1] memorandum and order granting motion to transfer (signed by Judge Ron Clark) cc attys 4/2/03 (tkd) (Entered: 04/02/2003)
Interdistrict transfer to the Western District of Texas, Austin Division (tkd) (Entered: 04/08/2003)
Acknowledgement of receipt of original record by W/D of TX Austin Div on 4/11/03 and assigned case number A03ca231 SS (fbc) (Entered: 04/17/2003)

 
 03-50608

Page 1

TO ORDER COPIES OF ANY DOCUMENTS LISTED BELOW, CALL WESTLAW COURTEXPRESS 1-877-DOC-RETR (1-877-362-7387) (Additional Charges Apply).
For Opinion See: 391 F.3d 676 , 381 F.3d 407

Briefs and Other Related Documents
This docket is current through 10/09/2009. For an updated version of this docket, click UPDATE

Court: Case Title: Appeal From: Panel Assignment: Date of Hearing: Date Completed: Date Filed:

US COURT OF APPEALS FOR THE FIFTH CIRCUIT MCCARTHY, ET AL v. HAWKINS, ET AL WESTERN DISTRICT OF TEXAS, AUSTIN CDK TMR EMG 04/05/2004 08/11/2004 06/05/2003 CASE INFORMATION

Case Number: Case Type: Case Subtype:

03-50608 APPEALS CIVIL RIGHTS PRIVATE

Nature of Suit: Key Nature of Suit:
District: Lower Court Docket Number: Trial Judge(s): Date Filed: Date NOA Filed: Date COA Received:

3440 OTHER CIVIL RIGHTS APPEALS (030) LOWER COURT INFORMATION
0542-1 A-03-CV-231-SS SAM SPARKS, U.S. DISTRICT JUDGE 04/11/2003 05/29/2003 06/04/2003

OTHER CASES

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 2

Current Case(s): Relationship: CONSOLIDATED CONSOLIDATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED RELATED

Lead Docket: 02-20772 02-30318 01-31026 01-31026 01-31026 01-31026 01-31026 01-31026 02-10190 02-10190 02-10190 02-11168 02-11168 02-11168 02-11168 02-11168 02-11168 02-20816 02-20816 02-20816 02-20988 02-30318 02-30369 02-30369 02-30369 02-50452 03-50538 03-50538 03-50538 03-50538 03-50608 03-50608 04-50504 04-50504

Member Docket: -----------------------------------

Start Date: 11/25/2002 05/30/2002 09/04/2003 02/22/2005 09/04/2003 09/04/2003 02/22/2005 02/22/2005 08/15/2002 12/03/2003 12/03/2003 11/21/2002 11/21/2002 11/21/2002 11/21/2002 11/21/2002 11/21/2002 11/18/2002 11/18/2002 03/08/2005 10/28/2002 08/15/2002 08/15/2002 02/22/2005 02/22/2005 01/23/2003 10/11/2005 10/11/2005 10/11/2005 10/11/2005 06/18/2003 06/18/2003 11/10/2004 11/10/2004

End Date: -----------------------------------

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 3

RELATED RELATED RELATED RELATED

04-50504 04-50504 04-50504 04-50504

Name:
Type: Attorney: Attorney Address:
Attorney Phone: Attorney Fax: Attorney: Attorney Phone: Attorney Fax: Firm Name: Firm Address:

Attorney: Attorney Phone: Attorney Fax: Firm Name: Firm Address:

Attorney: Firm Name: Firm Address:
Name:
Type: Attorney: Attorney Phone:

--

11/10/2004

--

--

11/10/2004

--

--

11/10/2004

--

--

11/10/2004

--

NAMES

CHRISTY MCCARTHY, BY AND THROUGH HER NEXT FRIEND JAMIE TRAVIS PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 3700 ENFIELD ROAD AUSTIN, TX 78703 512-236-0875 512-236-0878 GARTH ANTHONY CORBETT 512-454-4816 512-454-3999 ADVOCACY INC SUITE 171-E 7800 SHOAL CREEK BOULEVARD AUSTIN, TX 78757-1024 JAMES H. KEAHEY 512-454-4816 512-454-3999 ADVOCACY INC SUITE 171 E 7800 SHOAL CREEK BOULEVARD AUSTIN, TX 78757-1024 NOELLE M. REED SKADDEN, ARPS, SLATE, MEAGHER & FLOM, L.L.P. 1000 LOUISIANA STREET HOUSTON, TX 77002

TODD GORDON, BY AND THROUGH HIS NEXT FRIEND TRISHA GORDON PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608
Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:
Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:
Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:
Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:

Page 4
GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED
ALLISON PRATT, BY AND THROUGH HER NEXT FRIEND PAULA PRATT PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875 GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED
GAIL TRUMAN, BY AND THROUGH HER NEXT FRIEND KEN TRUMAN PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875 GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED
JIM FLOYD, JR., BY AND THROUGH HIS NEXT FRIEND JIM FLOYD, SR PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875 GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 5

Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:
Name: Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:
Name: Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:
Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone:

SAM LINDSAY, BY AND THROUGH HIS NEXT FRIEND BETTY LINDSAY PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875 GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED
OSHEA BROOKS PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875 GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED
JOE RAY COMACHO PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875 GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED
MICHA CHASTAIN, BY AND THROUGH HIS NEXT FRIEND LORI CHASTAIN PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875 GARTH ANTHONY CORBETT 512-454-4816

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 6

Attorney: Attorney Phone: Attorney:
Name: Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:
Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:
Name: Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:
Name:
Type: Attorney:

JAMES H. KEAHEY 512-454-4816 NOELLE M. REED
AL, BY AND THROUGH HIS NEXT FRIEND LL PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875 GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED
ARC OF TEXAS, ON BEHALF OF ITS MEMBERS AND FOR THOSE SIMILARLY SITUATED PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875 GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED
SUE ANN ORTIZ PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875 GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED
PATRICK SOSTACK, BY AND THROUGH THEIR PARENTS AND NEXT FRIENDS GARY AND LISA SOSTACK PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 7

Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:
Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:
Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:
Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:

512-236-0875 GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED
SCOTT SOSTACK, BY AND THROUGH THEIR PARENTS AND NEXT FRIENDS GARY AND LISA SOSTACK PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875 GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED
SHYAN FOROUGH, BY AND THROUGH HIS PARENTS AND NEXT FRIENDS REZA AND ARZU FOROUGH PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875 GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED
DAVID ZWEIFEL, BY AND THROUGH HIS PARENTS AND NEXT FRIENDS LINDA AND LEROY ZWEIFEL PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875 GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 8

Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:
Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:
Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:
Name:
Type: Attorney: Attorney Phone:

ASHTON BOWLEN, BY AND THROUGH HER MOTHER AND NEXT FRIEND PATRICIA BOWLEN PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875 GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED
TYLER BLANCHARD, BY AND THROUGH HIS MOTHER AND NEXT FRIEND FAITH BLANCHARD PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875 GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED
GARRETT GILLARD, BY AND THROUGH HIS MOTHER AND NEXT FRIEND KEEYA GILLARD PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875 GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED
KAMERON LANE, BY AND THROUGH HIS MOTHER AND NEXT FRIEND ANGIE LANE PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 9

Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:
Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:
Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney: Attorney Phone: Attorney:
Name: Type: Attorney: Firm Name: Firm Address:
Attorney: Attorney Phone: Attorney Fax:

GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED
MADISON POLK, BY AND THROUGH HER FATHER AND NEXT FRIEND JOHN POLK PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875 GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED
PAIGE SMITH, BY AND THROUGH HER MOTHER AND NEXT FRIEND GRETTA SMITH PLAINTIFF - APPELLEE GEOFFREY N. COURTNEY 512-236-0875 GARTH ANTHONY CORBETT 512-454-4816 JAMES H. KEAHEY 512-454-4816 NOELLE M. REED
UNITED STATES OF AMERICA INTERVENOR KEVIN K. RUSSELL US DEPARTMENT OF JUSTICE CIVIL RIGHTS DIV - APPELLATE SECTION PO BOX 14403 WASHINGTON, DC 20044-4403 SARAH ELAINE HARRINGTON 202-305-7999 202-514-8490

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 10

Firm Name: Firm Address:
Name:
Type: Attorney: Firm Name: Firm Address:
Name:
Type: Attorney: Name:
Type: Attorney: Name: Type: Attorney: Attorney Phone: Attorney Fax: Firm Name: Firm Address:
Attorney: Attorney Phone: Attorney Fax:

US DEPARTMENT OF JUSTICE CIVIL RIGHTS DIV - APPELLATE SECTION SUITE 3750 PO BOX 14403 WASHINGTON, DC 20044-4403
KAREN HALE, IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE TEXAS DEPARTMENT OF MENTAL HEALTH & MENTAL RETARDATION DEFENDANT - APPELLANT AMY WARR OFFICE OF THE SOLICITOR GENERAL FOR THE STATE OF TEXAS 300 W. 15TH STREET WILLIAM P. CLEMENTS BUILDING AUSTIN, TX 78701
JAMES R HINE, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE TEXAS DEPARTMENT OF HUMAN SERVICES DEFENDANT - APPELLANT AMY WARR
ALBERT HAWKINS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE TEXAS HEALTH AND HUMAN SERVICES COMMISSION DEFENDANT - APPELLANT AMY WARR
ADAPT COMMUNITY AMICUS CURIAE KAREN M. LOCKWOOD 202-783-7481 202-383-6610 HOWREY LLP 1299 PENNSYLVANIA AVENUE NW WASHINGTON, DC 20004 RACHEL A. ADAMS 202-383-6691 202-383-6610

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608
Firm Name: Firm Address:
Name: Type: Attorney: Attorney Phone: Attorney: Attorney Phone:
Name: Type: Attorney: Attorney Phone: Attorney: Attorney Phone:
Name: Type: Attorney: Attorney Phone: Attorney: Attorney Phone:
Name: Type: Attorney: Attorney Phone: Attorney: Attorney Phone:
Name: Type: Attorney: Attorney Phone: Attorney: Attorney Phone:

Page 11
HOWREY LLP 1299 PENNSYLVANIA AVENUE NW WASHINGTON, DC 20004
AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES AMICUS CURIAE KAREN M. LOCKWOOD 202-783-7481 RACHEL A. ADAMS 202-383-6691
ARC OF THE UNITED STATES AMICUS CURIAE KAREN M. LOCKWOOD 202-783-7481 RACHEL A. ADAMS 202-383-6691
BRAIN INJURY ASSOCIATION OF AMERICA AMICUS CURIAE KAREN M. LOCKWOOD 202-783-7481 RACHEL A. ADAMS 202-383-6691
DISABILITY RIGHTS EDUCATION AND DEFENSE FUND INC AMICUS CURIAE KAREN M. LOCKWOOD 202-783-7481 RACHEL A. ADAMS 202-383-6691
EPILEPSY FOUNDATION AMICUS CURIAE KAREN M. LOCKWOOD 202-783-7481 RACHEL A. ADAMS 202-383-6691

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 12

Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone:
Name: Type: Attorney: Attorney Phone: Attorney: Attorney Phone:
Name: Type: Attorney: Attorney Phone: Attorney: Attorney Phone:
Name:
Type: Attorney: Attorney Phone: Attorney: Attorney Phone:
ENTRY #: --
--

NATIONAL ASSOCIATION OF RIGHTS PROTECTION AND ADVOCACY AMICUS CURIAE KAREN M. LOCKWOOD 202-783-7481 RACHEL A. ADAMS 202-383-6691
NATIONAL SPINAL CORD INJURY ASSOCIATION AMICUS CURIAE KAREN M. LOCKWOOD 202-783-7481 RACHEL A. ADAMS 202-383-6691
NATION'S VOICE ON MENTAL ILLNESS AMICUS CURIAE KAREN M. LOCKWOOD 202-783-7481 RACHEL A. ADAMS 202-383-6691
TRAINING AND ADVOCACY SUPPORT CENTER OF THE NATIONAL ASSOCIATION OF PROTECTION AND ADVOCACY SYSTEMS AMICUS CURIAE KAREN M. LOCKWOOD 202-783-7481 RACHEL A. ADAMS 202-383-6691

DOCKET PROCEEDINGS

DATE: 02/25/2005

DESCRIPTION:
APPROVED BILL OF COSTS ISSUED TO USDC. COPIES TO ALL COUNSEL. [03-50608] (SBS)

12/02/2004

RECORD ON APPEAL RETURNED TO USDC. VOLUMES: 6 ELECTRONIC ROA RECYCLED:[Y/N] N. [03-50608]

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 13

--

12/01/2004

RECORD ON APPEAL RETURNED TO 5CCA. VOLUMES:

6 [03-50608] CASE MANAGEMENT DDL SATISFIED.

--

11/19/2004

MANDATE ISSUED FORTHWITH. [03-50608] (SBS)

--

11/19/2004

COURT ORDER FILED DENYING APPELLANTS' PETI-

TION FOR REHEARING EN BANC (IN DETAIL)

[4941035-1] WITH POLL (Y/N)?: Y. (JES, JOINED BY EGJ,

EHJ, RHB, EMG, EBC, & CWP, DISSENTING) COPIES TO

ALL COUNSEL. [03-50608] MANDATE PULL DATE:

11/19/04. (THE MANDATE IS TO ISSUE FORTHWITH)

--

10/01/2004

APPEARANCE FORM FILED BY SARAH ELAINE HAR-

RINGTON FOR INTERVENOR USA. [03-50608]

--

10/01/2004

RESPONSE/OPPOSITION FILED BY INTERVENOR USA

TO PETITION FOR REHEARING EN BANC [4941035-1] BY

APPELLANT KAREN HALE, JAMES R HINE, ALBERT

HAWKINS RESPONSE/OPPOSITION DDL SATISFIED.

DATE OF COS: 9/30/04 SUFFICIENT [Y/N]: Y [4959918-1]

[03-50608]

--

10/01/2004

RESPONSE/OPPOSITION FILED BY APPELLEE CHRISTY

MCCARTHY, APPELLEE TODD GORDON, APPELLEE AL-

LISON PRATT, APPELLEE GAIL TRUMAN, APPELLEE

JIM FLOYD, APPELLEE SAM LINDSAY, APPELLEE

OSHEA BROOKS, APPELLEE JOE RAY COMACHO, AP-

PELLEE MICHA CHASTAIN, APPELLEE AL, APPELLEE

ARC OF TEXAS, APPELLEE SUE ANN ORTIZ, APPELLEE

PATRICK SOSTACK, APPELLEE SCOTT SOSTACK, AP-

PELLEE SHYAN FOROUGH, APPELLEE DAVID ZWEIFEL,

APPELLEE ASHTON BOWLEN, APPELLEE TYLER BLAN-

CHARD, APPELLEE GARRETT GILLARD, APPELLEE

KAMERON LANE, APPELLEE MADISON POLK, AP-

PELLEE PAIGE SMITH TO PETITION FOR REHEARING

EN BANC [4941035-1] BY APPELLANT KAREN HALE,

JAMES R HINE, ALBERT HAWKINS DATE OF COS:

9/30/04 SUFFICIENT [Y/N]: Y [4959977-1] [03-50608]

--

10/01/2004

RESPONSE/OPPOSITION FILED BY AMICUS CURIAE AD-

APT COMMUNITY, AMICUS CURIAE AMER ASSN OF

PEOPLE, AMICUS CURIAE ARC OF THE US, AMICUS

CURIAE BRAIN INJURY ASSN, AMICUS CURIAE DISAB

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 14

RIGHTS EDUC, AMICUS CURIAE EPILEPSY FOUNDATION, AMICUS CURIAE NATL ASSN OF RIGHTS, AMICUS CURIAE NATL SPINAL CORD, AMICUS CURIAE NATION'S VOICE MNTL, AMICUS CURIAE TRAINING ADVOCACY TO PETITION FOR REHEARING EN BANC [4941035-1] BY APPELLANT KAREN HALE, JAMES R HINE, ALBERT HAWKINS DATE OF COS: 9/30/04 SUFFICIENT [Y/N]: Y [4959960-1] [03-50608]

--

09/21/2004

RESPONSE/OPPOSITION FROM APPELLEES, AMICUS,

AND INTERVENOR REQUESTED BY THE COURT TO PE-

TITION FOR REHEARING EN BANC [4941035-1] BY AP-

PELLANT KAREN HALE, JAMES R HINE, ALBERT

HAWKINS RESPONSE/OPPOSITION DUE ON 10/1/04.

[03-50608]

--

09/10/2004

PETITION FILED BY APPELLANT KAREN HALE, APPEL-

LANT JAMES R HINE, APPELLANT ALBERT HAWKINS

FOR REHEARING EN BANC. # OF COPIES FILED: 20

[4941035-1] DATE OF COS: 9/8/04 SUFFICIENT [Y/N]: Y

[03-50608]

--

08/30/2004

UNOPPOSED MOTION FILED BY APPELLEE CHRISTY

MCCARTHY, APPELLEE TODD GORDON, APPELLEE AL-

LISON PRATT, APPELLEE GAIL TRUMAN, APPELLEE

JIM FLOYD, APPELLEE SAM LINDSAY, APPELLEE

OSHEA BROOKS, APPELLEE JOE RAY COMACHO, AP-

PELLEE MICHA CHASTAIN, APPELLEE AL, APPELLEE

ARC OF TEXAS, APPELLEE SUE ANN ORTIZ, APPELLEE

PATRICK SOSTACK, APPELLEE SCOTT SOSTACK, AP-

PELLEE SHYAN FOROUGH, APPELLEE DAVID ZWEIFEL,

APPELLEE ASHTON BOWLEN, APPELLEE TYLER BLAN-

CHARD, APPELLEE GARRETT GILLARD, APPELLEE

KAMERON LANE, APPELLEE MADISON POLK, AP-

PELLEE PAIGE SMITH TO FILE BILL OF COST OUT OF

TIME [4930198-1] DATE OF COS: 8/25/04 SUFFICIENT

[Y/N]: Y [03-50608]

--

08/30/2004

BILL OF COSTS FILED BY APPELLEE CHRISTY MC-

CARTHY, APPELLEE TODD GORDON, APPELLEE ALLIS-

ON PRATT, APPELLEE GAIL TRUMAN, APPELLEE JIM

FLOYD, APPELLEE SAM LINDSAY, APPELLEE OSHEA

BROOKS, APPELLEE JOE RAY COMACHO, APPELLEE

MICHA CHASTAIN, APPELLEE AL, APPELLEE ARC OF

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 15

TEXAS, APPELLEE SUE ANN ORTIZ, APPELLEE PATRICK SOSTACK, APPELLEE SCOTT SOSTACK, APPELLEE SHYAN FOROUGH, APPELLEE DAVID ZWEIFEL, APPELLEE ASHTON BOWLEN, APPELLEE TYLER BLANCHARD, APPELLEE GARRETT GILLARD, APPELLEE KAMERON LANE, APPELLEE MADISON POLK, APPELLEE PAIGE SMITH. [4932647-1] [03-50608]

--

08/30/2004

CLERK ORDER FILED GRANTING APPELLEES' UNOP-

POSED MOTION TO FILE BILL OF COSTS OUT OF TIME

[4930198-1] COPIES TO ALL COUNSEL. [03-50608]

--

08/11/2004

JUDGMENT ENTERED AND FILED. [03-50608]

--

08/11/2004

OPINION FILED. ISSD IN T FORM? Y MANDATE PULL

DATE IS 10/4/04. [03-50608]

--

06/16/2004

BRIEF MADE SUFFICIENT BY APPELLEE CHRISTY MC-

CARTHY, APPELLEE TODD GORDON, APPELLEE ALLIS-

ON PRATT, APPELLEE GAIL TRUMAN, APPELLEE JIM

FLOYD, APPELLEE SAM LINDSAY, APPELLEE OSHEA

BROOKS, APPELLEE JOE RAY COMACHO, APPELLEE

MICHA CHASTAIN, APPELLEE AL, APPELLEE ARC OF

TEXAS, APPELLEE SUE ANN ORTIZ, APPELLEE

PATRICK SOSTACK, APPELLEE SCOTT SOSTACK, AP-

PELLEE SHYAN FOROUGH, APPELLEE DAVID ZWEIFEL,

APPELLEE ASHTON BOWLEN, APPELLEE TYLER BLAN-

CHARD, APPELLEE GARRETT GILLARD, APPELLEE

KAMERON LANE, APPELLEE MADISON POLK, AP-

PELLEE PAIGE SMITH REPLACEMENT DISK PROVIDED

[Y/N]: Y [03-50608] SUFFICIENT BRIEF DDL SATISFIED.

--

06/16/2004

SUPPLEMENTAL LETTER BRIEF FILED BY APPELLANT

KAREN HALE, APPELLANT JAMES R HINE, APPELLANT

ALBERT HAWKINS. COPIES OF BRIEF: 7 # OF PAGES: 5

DATE OF COS: 06/15/04 HAND DELIVERED [Y/N]: DISK

PROVIDED [Y/N]: Y SUFFICIENT [Y/N]: Y. [4860986-1]

[03-50608] A/PET SUPPLEMENTAL BRIEF DDL SATIS-

FIED. (SBS)

--

06/16/2004

SUPPLEMENTAL AUTHORITIES (FRAP 28(J)) FILED BY

APPELLANT KAREN HALE, APPELLANT JAMES R HINE,

APPELLANT ALBERT HAWKINS. [4861532-1] [03-50608]

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 16

--

06/16/2004

SUPPLEMENTAL INTERVENOR BRIEF FILED BY INTER-

VENOR USA. COPIES OF BRIEF: 7 # OF PAGES: 10 DATE

OF COS: 06/15/04 DELIVERED [Y/N]: N DISK PROVIDED

[Y/N]: Y SUFFICIENT [Y/N]: Y. [4861015-1] [03-50608]

(SBS)

--

06/15/2004

SUPPLEMENTAL LETTER BRIEF FILED BY APPELLEE

CHRISTY MCCARTHY, APPELLEE TODD GORDON, AP-

PELLEE ALLISON PRATT, APPELLEE GAIL TRUMAN,

APPELLEE JIM FLOYD, APPELLEE SAM LINDSAY, AP-

PELLEE OSHEA BROOKS, APPELLEE JOE RAY

COMACHO, APPELLEE MICHA CHASTAIN, APPELLEE

AL, APPELLEE ARC OF TEXAS, APPELLEE SUE ANN

ORTIZ, APPELLEE PATRICK SOSTACK, APPELLEE

SCOTT APPELLEE SHYAN FOROUGH, APPELLEE DAVID

ZWEIFEL, APPELLEE ASHTON BOWLEN, APPELLEE

TYLER BLANCHARD, APPELLEE GARRETT GILLARD,

APPELLEE KAMERON LANE, APPELLEE MADISON

POLK, APPELLEE PAIGE SMITH COPIES OF BRIEF: 7 #

OF PAGES: 7 OF COS: 06/14/04 HAND DELIVERED [Y/N]:

N DISK PROVIDED [Y/N]: N SUFFICIENT [Y/N]: N MISS-

ING DISK. [4859841-1] [03-50608] E/RES SUPPLEMENTAL

BRIEF DDL SATISFIED. SUFFICIENT BRIEF DUE ON

6/25/04 FOR PAIGE SMITH, FOR POLK, FOR KAMERON

LANE, FOR GARRETT GILLARD, FOR TYLER BLAN-

CHARD, FOR ASHTON BOWLEN, FOR DAVID ZWEIFEL,

FOR SHYAN FOROUGH, FOR SCOTT SOSTACK, FOR

PATRICK SOSTACK, FOR SUE ANN ORTIZ, FOR ARC OF

TEXAS, FOR AL, FOR MICHA CHASTAIN, FOR JOE RAY

COMACHO, FOR OSHEA BROOKS, FOR SAM LINDSAY,

FOR JIM FLOYD, FOR GAIL TRUMAN, FOR ALLISON

PRATT, FOR TODD GORDON, FOR CHRISTY MC-

CARTHY. (SBS)

--

06/08/2004

COURT ORDER FILED GRANTING INTERVENOR USA'S

UNOPPOSED MOTION TO EXTEND TIME TO FILE ALL

SUPPLEMENTAL BRIEFS UNTIL JUNE 15, 2004

[4854290-1] [4854290-2] [4854290-3] A/PET SUPPLEMENT-

AL BRIEF DDL UPDATED TO 6/15/04 FOR ALBERT

HAWKINS, FOR JAMES HINE, FOR KAREN HALE. E'S

SUPPLEMENTAL BRIEF DDL UPDATED TO 6/15/04 FOR

PAIGE SMITH, FOR MADISON POLK, FOR KAMERON

LANE, FOR GARRETT GILLARD, TYLER BLANCHARD,

FOR ASHTON BOWLEN, FOR DAVID ZWEIFEL, FOR

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 17

SHYAN FOROUGH, FOR SCOTT SOSTACK, FOR PATRICK SOSTACK, FOR SUE ANN ORTIZ, FOR ARC OF TEXAS, FOR AL, FOR MICHA FOR JOE RAY COMACHO, FOR OSHEA BROOKS, FOR SAM LINDSAY, FOR JIM FLOYD, FOR GAIL TRUMAN, FOR ALLISON PRATT, FOR TODD GORDON, FOR CHRISTY MCCARTHY. INTERVENOR'S SUPPLEMENTAL BRIEF DUE 6/15/04 FOR USA. (CDK) COPIES TO ALL COUNSEL. [03-50608]

--

06/08/2004

CONSENT MOTION FILED BY INTERVENOR USA TO EX-

TEND TIME TO FILE ALL SUPPLEMENTAL BRIEF UNTIL

6/15/04 [4854290-1] [4854290-2] [4854290-3] DATE OF COS:

6/7/04 SUFFICIENT [Y/N]: Y [03-50608]

--

05/27/2004

COURT ORDER FILED GRANTING INTERVENOR USA'S

UNOPPOSED MOTION TO EXTEND TIME TO FILE ALL

SUPPLEMENTAL BRIEFS UNTIL 6/8/04 [4842015-1]

[4842015-2] [4842015-3] A/PET SUPPLEMENTAL BRIEF

DDL UPDATED TO 6/8/04 FOR ALBERT HAWKINS, FOR

JAMES R HINE, FOR KAREN HALE. E/RES SUPPLEMENT-

AL BRIEF DDL UPDATED TO 6/8/04 FOR PAIGE SMITH,

FOR MADISON POLK, FOR KAMERON LANE, FOR GAR-

RETT GILLARD, TYLER BLANCHARD, FOR ASHTON

BOWLEN, FOR DAVID ZWEIFEL, FOR SHYAN FOR-

OUGH, FOR SCOTT SOSTACK, FOR PATRICK SOSTACK,

FOR SUE ANN ORTIZ, FOR ARC OF TEXAS, FOR AL, FOR

MICHA FOR JOE RAY COMACHO, FOR OSHEA BROOKS,

FOR LINDSAY, FOR JIM FLOYD, FOR GAIL TRUMAN,

FOR ALLISON PRATT, FOR TODD GORDON, FOR

CHRISTY MCCARTHY. SUPPLEMENTAL INTERVENOR'S

BRIEF DUE 6/8/04 FOR USA (CDK) COPIES TO ALL

COUNSEL. [03-50608]

--

05/25/2004

RESPONSE/OPPOSITION FILED BY APPELLEE CHRISTY

MCCARTHY, APPELLEE TODD GORDON, APPELLEE AL-

LISON PRATT, APPELLEE GAIL TRUMAN, APPELLEE

JIM FLOYD, APPELLEE SAM LINDSAY, APPELLEE

OSHEA BROOKS, APPELLEE JOE RAY COMACHO, AP-

PELLEE MICHA CHASTAIN, APPELLEE AL, APPELLEE

ARC OF TEXAS, APPELLEE SUE ANN ORTIZ, APPELLEE

PATRICK SOSTACK, APPELLEE SCOTT SOSTACK, AP-

PELLEE SHYAN FOROUGH, APPELLEE DAVID ZWEIFEL,

APPELLEE ASHTON BOWLEN, APPELLEE TYLER BLAN-

CHARD, APPELLEE GARRETT GILLARD, APPELLEE

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 18

KAMERON LANE, APPELLEE MADISON POLK, APPELLEE PAIGE SMITH TO 28(J) LETTER FILED [4844653-1] BY APPELLANT KAREN HALE, JAMES R HINE, ALBERT HAWKINS DATE OF COS: 5/24/04 SUFFICIENT [Y/N]: Y [4844669-1] [03-50608]

--

05/24/2004

CONSENT MOTION FILED BY INTERVENOR USA TO EX-

TEND TIME TO FILE ALL SUPPLEMENTAL BRIEFS UN-

TIL 6/8/04 [4842015-1] [4842015-2] [4842015-3] DATE OF

COS: 5/21/04 SUFFICIENT [Y/N]: Y [03-50608]

--

05/18/2004

SUPPLEMENTAL BRIEF(S) REQUESTED OF APPELLEE

CHRISTY MCCARTHY, APPELLEE TODD GORDON, AP-

PELLEE ALLISON PRATT, APPELLEE GAIL TRUMAN,

APPELLEE JIM FLOYD, APPELLEE SAM LINDSAY, AP-

PELLEE OSHEA BROOKS, APPELLEE JOE RAY

COMACHO, APPELLEE MICHA CHASTAIN, APPELLEE

AL, APPELLEE ARC OF TEXAS, APPELLEE SUE ANN

ORTIZ, APPELLEE PATRICK SOSTACK, APPELLEE

SCOTT SOSTACK, APPELLEE SHYAN FOROUGH, AP-

PELLEE DAVID ZWEIFEL, APPELLEE ASHTON

BOWLEN, APPELLEE TYLER BLANCHARD, APPELLEE

GARRETT GILLARD, APPELLEE KAMERON LANE, AP-

PELLEE MADISON POLK, APPELLEE PAIGE SMITH, AP-

PELLANT KAREN HALE, APPELLANT JAMES R HINE,

APPELLANT ALBERT HAWKINS, INTERVENOR USA

FOR REGARDING TN V. LANE. A SUP BR DUE: 6/1/04 E

SUP BR DUE: 6/1/04 [03-50608] A/PET SUPPLEMENTAL

BRIEF DUE ON 6/1/04 FOR ALBERT HAWKINS, FOR

JAMES R HINE, FOR KAREN HALE. E/RES SUPPLEMENT-

AL BRIEF DUE ON 6/1/04 FOR PAIGE SMITH, FOR

MADISON POLK, FOR KAMERON LANE, FOR GARRETT

GILLARD, FOR TYLER BLANCHARD, FOR ASHTON

BOWLEN, FOR DAVID ZWEIFEL, FOR SHYAN FOR-

OUGH, FOR SCOTT SOSTACK, FOR PATRICK SOSTACK,

FOR SUE ANN ORTIZ, FOR ARC OF TEXAS, FOR AL, FOR

MICHA CHASTAIN, FOR JOE RAY COMACHO, FOR

OSHEA BROOKS, FOR SAM LINDSAY, FOR JIM FLOYD,

FOR GAIL TRUMAN, FOR ALLISON PRATT, FOR TODD

GORDON, FOR CHRISTY MCCARTHY.

--

05/17/2004

SUPPLEMENTAL AUTHORITIES (FRAP 28(J)) FILED BY

APPELLANT KAREN HALE, APPELLANT JAMES R HINE,

APPELLANT ALBERT HAWKINS. [4844653-1] [03-50608]

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 19

--

04/05/2004

ORAL ARGUMENT HEARD. CASE ARGUED BY AMY

WARR FOR APPELLANT ALBERT HAWKINS, APPEL-

LANT JAMES R HINE, APPELLANT KAREN HALE, GEOF-

FREY N COURTNEY FOR APPELLEE PAIGE SMITH, AP-

PELLEE MADISON POLK, APPELLEE KAMERON LANE,

APPELLEE GARRETT GILLARD, APPELLEE TYLER

BLANCHARD, APPELLEE ASHTON BOWLEN, APPELLEE

DAVID ZWEIFEL, APPELLEE SHYAN FOROUGH, AP-

PELLEE SCOTT SOSTACK, APPELLEE PATRICK

SOSTACK, APPELLEE SUE ANN ORTIZ, APPELLEE ARC

OF TEXAS, APPELLEE AL, APPELLEE MICHA CHAS-

TAIN, APPELLEE JOE RAY COMACHO, APPELLEE

OSHEA BROOKS, APPELLEE SAM LINDSAY, APPELLEE

JIM FLOYD, APPELLEE GAIL TRUMAN, APPELLEE AL-

LISON PRATT, APPELLEE TODD GORDON, APPELLEE

CHRISTY MCCARTHY KEVIN K RUSSELL FOR INTER-

VENOR USA [03-50608] (VLB)

--

03/30/2004

SUPPLEMENTAL AUTHORITIES (FRAP 28(J)) FILED BY

INTERVENOR USA. [4790927-1] [03-50608] (VLB)

--

02/17/2004

CASE CALENDARED FOR ORAL ARGUMENT. [03-50608]

(VLB)

--

01/15/2004

CASE TENTATIVELY CALENDARED FOR ORAL ARGU-

MENT WEEK OF: 04/05/04. [03-50608] (GAM)

--

11/21/2003

APPEARANCE FORM FILED BY KAREN M LOCKWOOD

FOR AMICUS CURIAE TRAINING ADVOCACY, AMICUS

CURIAE NATION'S VOICE MNTL, AMICUS CURIAE

NATL SPINAL CORD, AMICUS CURIAE NATL ASSN OF

RIGHTS, AMICUS CURIAE EPILEPSY FOUNDATION,

AMICUS CURIAE DISABILITY RIGHTS, AMICUS CURIAE

BRAIN INJURY ASSN, AMICUS CURIAE ARC OF THE US,

AMICUS CURIAE AMER ASSN OF PEOPLE, AMICUS

CURIAE ADAPT COMMUNITY. [03-50608] SUFFICIENT

BRIEF DDL SATISFIED.

--

11/21/2003

APPEARANCE FORM FILED BY RACHEL A ADAMS FOR

AMICUS CURIAE TRAINING ADVOCACY, AMICUS

CURIAE NATION'S VOICE MNTL, AMICUS CURIAE

NATL SPINAL CORD, AMICUS CURIAE NATL ASSN OF

RIGHTS, AMICUS CURIAE EPILEPSY FOUNDATION,

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 20

AMICUS CURIAE DISABILITY RIGHTS, AMICUS CURIAE BRAIN INJURY ASSN, AMICUS CURIAE ARC OF THE US, AMICUS CURIAE AMER ASSN OF PEOPLE, AMICUS CURIAE ADAPT COMMUNITY. [03-50608]

--

11/11/2003

REPLY BRIEF FILED BY APPELLANT KAREN HALE, AP-

PELLANT JAMES R HINE, APPELLANT ALBERT

HAWKINS. COPIES OF BRIEF: 7 # OF PAGES: 30 WORD

COUNT: 6985 DATE OF COS: 11/10/03 DISK PROVIDED

[Y/N]: Y SUFFICIENT [Y/N]: Y. [4666942-1] [03-50608]

REPLY BRIEF DDL SATISFIED. (RFP)

--

11/10/2003

CLERK ORDER FILED GRANTING, THE ADAPT COM-

MUNITY, AMERICAN ASSOCIATION OF PEOPLE WITH

DISABILITIES, THE ARC OF THE UNITED STATES,

BRAIN INJURY ASSOCIATION OF AMERICA, DISABIL-

ITY RIGHTS EDUCATION AND DEFENSE FUND INC, THE

EPILEPSY FOUNDATION, THE NATIONAL ASSOCI-

ATION OF RIGHTS PROTECTION AND ADVOCACY, THE

NATIONAL SPINAL CORD INJURY ASSOCIATION, THE

NATION'S VOICE ON MENTAL ILLNESS, AND THE

TRAINING AND ADVOCACY SUPPORT CENTER OF THE

NATIONAL ASSOCIATION OF PROTECTION AND AD-

VOCACY SYSTEMS', MOTION TO FILE AMICUS BRIEF

[4653472-1] COPIES TO ALL COUNSEL. [03-50608] (DDK)

--

11/10/2003

AMICUS CURIAE BRIEF FILED BY AMICUS CURIAE AD-

APT COMMUNITY, AMICUS CURIAE AMER ASSN OF

PEOPLE, AMICUS CURIAE ARC OF THE US, AMICUS

CURIAE BRAIN INJURY ASSN, AMICUS CURIAE DISAB-

ILITY RIGHTS, AMICUS CURIAE EPILEPSY FOUNDA-

TION, AMICUS CURIAE NATL ASSN OF RIGHTS,

AMICUS CURIAE NATL SPINAL CORD, AMICUS CURIAE

NATION'S VOICE MNTL, AMICUS CURIAE TRAINING

ADVOCACY. CONSENT INCLUDED IN BRIEF? [Y/NA] NA

COPIES OF BRIEF: 9 # OF PAGES: 23 DATE OF COS:

10/24/03 DISK PROVIDED [Y/N]: Y SUFFICIENT [Y/N]: N

MISSING APPEARANCE FORM AND CERT OF INTER-

ESTED PARTIES. [4666799-1] [03-50608] SUFFICIENT

BRIEF DUE ON 11/24/03 FOR TRAINING ADVOCACY,

FOR NATION'S VOICE MNTL, FOR NATL SPINAL CORD,

FOR NATL ASSN OF RIGHTS, FOR EPILEPSY FOUNDA-

TION, FOR DISABILITY RIGHTS, FOR BRAIN INJURY

ASSN, FOR ARC OF THE US, FOR AMER ASSN OF

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 21

PEOPLE, FOR ADAPT COMMUNITY. (RFP)

--

11/05/2003

ADDENDUM TO BRIEF FILED BY INTERVENOR USA NO.

OF PAGES: 120 [03-50608] (RFP)

--

11/05/2003

APPEARANCE FORM FILED BY KEVIN K RUSSELL FOR

INTERVENOR USA. [03-50608] (DDK)

--

11/05/2003

COURT ORDER FILED GRANTING USA'S UNOPPOSED

MOTION TO INTERVENE ON BEHALF OF THE AP-

PELLEES' [4649783-1], GRANTING USA'S UNOPPOSED

MOTION TO FILE SEPARATE ADDENDUM [4649783-2]

(PEH) COPIES TO ALL COUNSEL. [03-50608] (DDK)

--

11/05/2003

INTERVENOR BRIEF FILED BY INTERVENOR USA. COP-

IES OF BRIEF: 7 # OF PAGES: 52 WORD COUNT: 13020

DATE OF COS: 10/24/03 HAND DELIVERED [Y/N]: N DISK

PROVIDED [Y/N]: Y SUFFICIENT [Y/N]: Y. [4659830-1]

[03-50608] REPLY BRIEF DUE ON 11/19/03 FOR ALBERT

HAWKINS, FOR JAMES R HINE, FOR KAREN HALE.

(RFP)

--

10/30/2003

MOTION FILED BY THE ADAPT COMMUNITY, AMERIC-

AN ASSOCIAITION OF PEOPLE WITH DISABILITIES,

THE ARC OF THE UNITED STATES, BRAIN INJURY AS-

SOCIATION OF AMERICA, DISABILITY RIGHTS EDUCA-

TION AND DEFENSE FUND INC, THE EPILEPSY FOUND-

ATION, THE NATIONAL ASSOCIATION OF RIGHTS PRO-

TECTION AND ADVOCACY, THE NATIONAL SPINAL

CORD INJURY ASSOCIATION, THE NATION'S VOICE ON

MENTAL ILLNESS, AND THE TRAINING AND AD-

VOCACY SUPPORT CENTER OF THE NATIONAL ASSO-

CIATION OF PROTECTION AND ADVOCACY SYSTEMS,

TO FILE AMICUS BRIEF [4653472-1] RESPONSE/OPPOS-

ITION DUE ON 11/10/03. DATE OF COS: 10/27/03 SUFFI-

CIENT [Y/N]: Y [03-50608] (DDK)

--

10/27/2003

UNOPPOSED MOTION FILED BY UNITED STATES TO IN-

TERVENE ON BEHALF OF: APPELLEES [4649783-1], TO

FILE SEPARATE ADDENDUM [4649783-2] DATE OF COS:

10/24/03 SUFFICIENT [Y/N]: Y [03-50608]

--

10/23/2003

RECORD ON APPEAL RETURNED TO 5CCA. VOLUMES:

6 [03-50608] MISCELLANEOUS DDL SATISFIED.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 22

--

10/20/2003

RECORD ON APPEAL REQUESTED FROM GEOFFREY N

COURTNEY FOR APPELLEE PAIGE SMITH, APPELLEE

MADISON POLK, APPELLEE KAMERON LANE, AP-

PELLEE GARRETT GILLARD, APPELLEE TYLER BLAN-

CHARD, APPELLEE ASHTON BOWLEN, APPELLEE DAV-

ID ZWEIFEL, APPELLEE SHYAN FOROUGH, APPELLEE

SCOTT SOSTACK, APPELLEE PATRICK SOSTACK, AP-

PELLEE SUE ANN ORTIZ, APPELLEE ARC OF TEXAS,

APPELLEE AL, APPELLEE MICHA CHASTAIN, AP-

PELLEE JOE RAY COMACHO, APPELLEE OSHEA

BROOKS, APPELLEE SAM LINDSAY, APPELLEE JIM

FLOYD, APPELLEE GAIL TRUMAN, APPELLEE ALLISON

PRATT, APPELLEE TODD GORDON, APPELLEE CHRISTY

MCCARTHY. [03-50608] MISCELLANEOUS DUE ON

11/3/03 FOR PAIGE SMITH, FOR MADISON POLK, FOR

KAMERON LANE, FOR GARRETT GILLARD, FOR TYLER

BLANCHARD, FOR ASHTON BOWLEN, FOR DAVID

ZWEIFEL, FOR SHYAN FOROUGH, FOR SCOTT

SOSTACK, FOR PATRICK SOSTACK, FOR SUE ANN ORT-

IZ, FOR ARC OF TEXAS, FOR AL, FOR MICHA CHAS-

TAIN, FOR JOE RAY COMACHO, FOR OSHEA BROOKS,

FOR SAM LINDSAY, FOR JIM FLOYD, FOR GAIL TRU-

MAN, FOR ALLISON PRATT, FOR TODD GORDON, FOR

CHRISTY MCCARTHY. (RFP)

--

10/20/2003

APPELLEE'S BRIEF FILED BY APPELLEE CHRISTY MC-

CARTHY, APPELLEE TODD GORDON, APPELLEE ALLIS-

ON PRATT, APPELLEE GAIL TRUMAN, APPELLEE JIM

FLOYD, APPELLEE SAM LINDSAY, APPELLEE OSHEA

BROOKS, APPELLEE JOE RAY COMACHO, APPELLEE

MICHA CHASTAIN, APPELLEE AL, APPELLEE ARC OF

TEXAS, APPELLEE SUE ANN ORTIZ, APPELLEE

PATRICK SOSTACK, APPELLEE SCOTT SOSTACK, AP-

PELLEE SHYAN FOROUGH, APPELLEE DAVID ZWEIFEL,

APPELLEE ASHTON BOWLEN, APPELLEE TYLER BLAN-

CHARD, APPELLEE GARRETT GILLARD, APPELLEE

KAMERON LANE, APPELLEE MADISON POLK, AP-

PELLEE PAIGE SMITH. COPIES OF BRIEF: 7 # OF PAGES:

40 WORD COUNT: 11621 DATE OF COS: 10/17/03 HAND

DELIVERED [Y/N]: N DISK PROVIDED [Y/N]: Y SUFFI-

CIENT [Y/N]: Y . [4643152-1] [03-50608] E/RES'S BRIEF

DDL SATISFIED. REPLY BRIEF DUE ON 11/3/03 FOR AL-

BERT HAWKINS, FOR JAMES R HINE, FOR KAREN

HALE. (RFP)

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 23

--

09/10/2003

CONFIRMATION LETTER FILED BY APPELLEE CHRISTY

MCCARTHY, APPELLEE TODD GORDON, APPELLEE AL-

LISON PRATT, APPELLEE GAIL TRUMAN, APPELLEE

JIM FLOYD, APPELLEE SAM LINDSAY, APPELLEE

OSHEA BROOKS, APPELLEE JOE RAY COMACHO, AP-

PELLEE MICHA CHASTAIN, APPELLEE AL, APPELLEE

ARC OF TEXAS, APPELLEE SUE ANN ORTIZ, APPELLEE

PATRICK SOSTACK, APPELLEE SCOTT SOSTACK, AP-

PELLEE SHYAN FOROUGH, APPELLEE DAVID ZWEIFEL,

APPELLEE ASHTON BOWLEN, APPELLEE TYLER BLAN-

CHARD, APPELLEE GARRETT GILLARD, APPELLEE

KAMERON LANE, APPELLEE MADISON POLK, AP-

PELLEE PAIGE SMITH CONFIRMING AN EXTENSION OF

TIME TO AND INCLUDING 10/17/03 FOR FILING AP-

PELLEES' BRIEF. [03-50608] E/RES'S BRIEF DDL UP-

DATED TO 10/17/03 FOR PAIGE SMITH, FOR MADISON

POLK, FOR KAMERON LANE, FOR GARRETT GILLARD,

FOR TYLER BLANCHARD, FOR ASHTON BOWLEN, FOR

DAVID ZWEIFEL, FOR SHYAN FOROUGH, FOR SCOTT

SOSTACK, FOR PATRICK SOSTACK, FOR SUE ANN ORT-

IZ, FOR ARC OF TEXAS, FOR AL, FOR MICHA CHAS-

TAIN, FOR JOE RAY COMACHO, FOR OSHEA BROOKS,

FOR SAM LINDSAY, FOR JIM FLOYD, FOR GAIL TRU-

MAN, FOR ALLISON PRATT, FOR TODD GORDON, FOR

CHRISTY MCCARTHY. (DDK)

--

09/04/2003

EXTENSION GRANTED BY PHONE UNTIL: 10/17/03 TO

FILE APPELLEES' BRIEF FOR APPELLEE CHRISTY MC-

CARTHY, APPELLEE TODD GORDON, APPELLEE ALLIS-

ON PRATT, APPELLEE GAIL TRUMAN, APPELLEE JIM

FLOYD, APPELLEE SAM LINDSAY, APPELLEE OSHEA

BROOKS, APPELLEE JOE RAY COMACHO, APPELLEE

MICHA CHASTAIN, APPELLEE AL, APPELLEE ARC OF

TEXAS, APPELLEE SUE ANN ORTIZ, APPELLEE

PATRICK SOSTACK, APPELLEE SCOTT SOSTACK, AP-

PELLEE SHYAN FOROUGH, APPELLEE DAVID ZWEIFEL,

APPELLEE ASHTON BOWLEN, APPELLEE TYLER BLAN-

CHARD, APPELLEE GARRETT GILLARD, APPELLEE

KAMERON LANE, APPELLEE MADISON POLK, AP-

PELLEE PAIGE SMITH. [03-50608]

--

08/18/2003

RECORD EXCERPTS MADE SUFFICIENT BY APPELLANT

KAREN HALE, APPELLANT JAMES R HINE, APPELLANT

ALBERT HAWKINS [03-50608] SUFFICIENT RECORD EX-

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 24

CERPTS DDL SATISFIED. (DDK)

--

08/18/2003

CLERK ORDER FILED GRANTING APPELLANT'S UNOP-

POSED MOTION TO FILE RECORD EXCERPTS IN EX-

CESS PAGES [4283125-1] THE CLERK IS GRANTING

YOUR UNOPPOSED MOTION FOR THE COURT SUBJECT

TO POSSIBLE RECONSIDERATION BY THE MERIT PAN-

EL AT A LATER DATE. (SEND MOTION, LETTER, AND

EXCERPTS TO SCREENING JUDGE AND PANEL) COPIES

TO ALL COUNSEL. [03-50608] (DDK)

--

08/18/2003

THE ATTORNEY NANCY KATHLEEN JUREN FOR AL-

BERT HAWKINS, ATTORNEY NANCY KATHLEEN

JUREN FOR JAMES R HINE, ATTORNEY NANCY KATH-

LEEN JUREN FOR KAREN HALE NOT PARTICIPATING

IN CASE. [03-50608] (RFP)

--

08/18/2003

RECORD EXCERPTS FILED BY APPELLANT KAREN

HALE, APPELLANT JAMES R HINE, APPELLANT AL-

BERT HAWKINS # OF COPIES: 4 SUFFICIENT [Y/N]: N

FILED IN EXCESS PAGES-MOTION BEING PROCESSED.

[03-50608] SUFFICIENT RECORD EXCERPTS DUE ON

8/29/03 FOR ALBERT HAWKINS, FOR JAMES R HINE,

FOR KAREN HALE. (RFP)

--

08/18/2003

RECORD ON APPEAL FORWARDED BY AMY WARR FOR

APPELLANT ALBERT HAWKINS, APPELLANT JAMES R

HINE, APPELLANT KAREN HALE TO GEOFFREY N

COURTNEY FOR APPELLEE PAIGE SMITH, APPELLEE

MADISON POLK, APPELLEE KAMERON LANE, AP-

PELLEE GARRETT GILLARD, APPELLEE TYLER BLAN-

CHARD, APPELLEE ASHTON BOWLEN, APPELLEE DAV-

ID ZWEIFEL, APPELLEE SHYAN FOROUGH, APPELLEE

SCOTT SOSTACK, APPELLEE PATRICK SOSTACK, AP-

PELLEE SUE ANN ORTIZ, APPELLEE ARC OF TEXAS,

APPELLEE AL, APPELLEE MICHA CHASTAIN, AP-

PELLEE JOE RAY COMACHO, APPELLEE OSHEA

BROOKS, APPELLEE SAM LINDSAY, APPELLEE JIM

FLOYD, APPELLEE GAIL TRUMAN, APPELLEE ALLISON

PRATT, APPELLEE TODD GORDON, APPELLEE CHRISTY

MCCARTHY. VOLUMES: 6 [03-50608]

--

08/18/2003

UNOPPOSED MOTION FILED BY APPELLANT KAREN

HALE, APPELLANT JAMES R HINE, APPELLANT AL-

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608 --
-----

Page 25

08/18/2003
07/21/2003 07/17/2003 07/03/2003 07/03/2003

BERT HAWKINS TO FILE RECORD EXCERPTS IN EXCESS PAGES. [4283125-1] DATE OF COS: 8/14/03 SUFFICIENT [Y/N]: Y [03-50608]
APPELLANT'S BRIEF FILED BY APPELLANT KAREN HALE, APPELLANT JAMES R HINE, APPELLANT ALBERT HAWKINS. COPIES OF BRIEF: 7 # OF PAGES: 31 WORD COUNT: 6743 DATE OF COS: 8/15/03 HAND DELIVERED [Y/N]: N DISK PROVIDED [Y/N]: Y SUFFICIENT [Y/N]: Y. [4284063-1] [03-50608] A/PET'S BRIEF DDL SATISFIED. E/RES'S BRIEF DUE ON 9/17/03 FOR PAIGE SMITH, FOR MADISON POLK, FOR KAMERON LANE, FOR GARRETT GILLARD, FOR TYLER BLANCHARD, FOR ASHTON BOWLEN, FOR DAVID ZWEIFEL, FOR SHYAN FOROUGH, FOR SCOTT SOSTACK, FOR PATRICK SOSTACK, FOR SUE ANN ORTIZ, FOR ARC OF TEXAS, FOR AL, FOR MICHA CHASTAIN, FOR JOE RAY COMACHO, FOR OSHEA BROOKS, FOR SAM LINDSAY, FOR JIM FLOYD, FOR GAIL TRUMAN, FOR ALLISON PRATT, FOR TODD GORDON, FOR CHRISTY MCCARTHY. (RFP)
CONFIRMATION LETTER FILED BY APPELLANT KAREN HALE, APPELLANT JAMES R HINE, APPELLANT ALBERT HAWKINS CONFIRMING AN EXTENSION OF TIME TO AND INCLUDING 8/15/03 FOR FILING APPELLANT'S BRIEF. [03-50608] A/PET'S BRIEF DDL UPDATED TO 8/15/03 FOR ALBERT HAWKINS, FOR JAMES R HINE, FOR KAREN HALE.
EXTENSION GRANTED BY PHONE UNTIL: 8/15/03 TO FILE APPELLANTS' BRIEF FOR APPELLANT KAREN HALE, APPELLANT JAMES R HINE, APPELLANT ALBERT HAWKINS. [03-50608] (MFY)
RECORD ON APPEAL RELEASED TO ATTORNEY AMY WARR FOR APPELLANT ALBERT HAWKINS, APPELLANT JAMES R HINE, APPELLANT KAREN HALE VOLUMES: 6. [03-50608] (CPD)
BRIEFING NOTICE ISSUED. [03-50608] A/PET'S BRIEF DUE ON 8/12/03 FOR ALBERT HAWKINS, FOR JAMES R HINE, FOR KAREN HALE. (CPD)

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 26

--

06/30/2003

RECORD ON APPEAL FILED. VOL(S) OF PLEADINGS: 6.

[03-50608] ROA DDL SATISFIED. (CPD)

--

06/26/2003

CLERK ORDER FILED GRANTING MOTION EXTEND

TIME TO FILE RECORD ON APPEAL [4233737-1] ROA

DDL UPDATED TO 7/7/03. COPIES TO ALL COUNSEL.

[03-50608]

--

06/26/2003

REQUEST FILED BY USDC TO EXTEND TIME TO

TRANSMIT RECORD ON APPEAL UNTIL 6/26/03

[4233737-1] [03-50608]

--

06/18/2003

APPEARANCE FORM FILED BY AMY WARR FOR APPEL-

LANT ALBERT HAWKINS, APPELLANT JAMES R HINE,

APPELLANT KAREN HALE. [03-50608] (DMS)

--

06/18/2003

APPEARANCE FORM FILED BY GEOFFREY N COURT-

NEY FOR APPELLEE PAIGE SMITH, APPELLEE MADIS-

ON POLK, APPELLEE KAMERON LANE, APPELLEE GAR-

RETT GILLARD, APPELLEE TYLER BLANCHARD, AP-

PELLEE ASHTON BOWLEN, APPELLEE DAVID

ZWEIFEL, APPELLEE SHYAN FOROUGH, APPELLEE

SCOTT SOSTACK, APPELLEE PATRICK SOSTACK, AP-

PELLEE SUE ANN ORTIZ, APPELLEE ARC OF TEXAS,

APPELLEE AL, APPELLEE MICHA CHASTAIN, AP-

PELLEE JOE RAY COMACHO, APPELLEE OSHEA

BROOKS, APPELLEE SAM LINDSAY, APPELLEE JIM

FLOYD, APPELLEE GAIL TRUMAN, APPELLEE ALLISON

PRATT, APPELLEE TODD GORDON, APPELLEE CHRISTY

MCCARTHY. [03-50608] (DMS)

--

06/16/2003

APPEARANCE FORM FILED BY JAMES H KEAHEY FOR

APPELLEE PAIGE SMITH, APPELLEE MADISON POLK,

APPELLEE KAMERON LANE, APPELLEE GARRETT GIL-

LARD, APPELLEE TYLER BLANCHARD, APPELLEE

ASHTON BOWLEN, APPELLEE DAVID ZWEIFEL, AP-

PELLEE SHYAN FOROUGH, APPELLEE SCOTT

SOSTACK, APPELLEE PATRICK SOSTACK, APPELLEE

SUE ANN ORTIZ, APPELLEE ARC OF TEXAS, APPELLEE

AL, APPELLEE MICHA CHASTAIN, APPELLEE JOE RAY

COMACHO, APPELLEE OSHEA BROOKS, APPELLEE

SAM LINDSAY, APPELLEE JIM FLOYD, APPELLEE GAIL

TRUMAN, APPELLEE ALLISON PRATT, APPELLEE

TODD GORDON, APPELLEE CHRISTY MCCARTHY.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 27

[03-50608] (DMS)

--

06/16/2003

APPEARANCE FORM FILED BY GARTH ANTHONY

CORBETT FOR APPELLEE PAIGE SMITH, APPELLEE

MADISON POLK, APPELLEE KAMERON LANE, AP-

PELLEE GARRETT GILLARD, APPELLEE TYLER BLAN-

CHARD, APPELLEE ASHTON BOWLEN, APPELLEE DAV-

ID ZWEIFEL, APPELLEE SHYAN FOROUGH, APPELLEE

SCOTT SOSTACK, APPELLEE PATRICK SOSTACK, AP-

PELLEE SUE ANN ORTIZ, APPELLEE ARC OF TEXAS,

APPELLEE AL, APPELLEE MICHA CHASTAIN, AP-

PELLEE JOE RAY COMACHO, APPELLEE OSHEA

BROOKS, APPELLEE SAM LINDSAY, APPELLEE JIM

FLOYD, APPELLEE GAIL TRUMAN, APPELLEE ALLISON

PRATT, APPELLEE TODD GORDON, APPELLEE CHRISTY

MCCARTHY. [03-50608]

--

06/05/2003

CIVIL RIGHTS CASE DOCKETED. NOA FILED BY APPEL-

LANT KAREN HALE, APPELLANT JAMES R HINE, AP-

PELLANT ALBERT HAWKINS. [03-50608]

Briefs and Other Related Documents (Back to top)
•2007 WL 6917946 (Appellate Brief) Appellants' Reply Brief (Mar. 8, 2007) Original Image of this Document (PDF)
• 2006 WL 6365427 (Appellate Brief) Brief for Appellants (Dec. 15, 2006) Original Image of this Document (PDF)
• 2004 WL 3389911 (Appellate Petition, Motion or Filing) Defendants-Appellants' Petition for Rehearing En Banc (Sep. 10, 2004) Original Image of this Document (PDF)
• 2004 WL 3209425 (Appellate Brief) Supplemental Brief for the United States as Intervenor (Jun. 16, 2004) Original Image of this Document (PDF)
•2004 WL 3209424 (Appellate Brief) Letter Brief (Jun. 15, 2004) Original Image of this Document (PDF)
•2003 WL 24016589 (Appellate Brief) Reply Brief of Defendants-Appellants (Nov. 11, 2003) Original Image of this Document (PDF)
• 2003 WL 24016590 (Appellate Brief) Brief of Amici Curiae Supporting Appellees (Nov. 10, 2003) Original Image of this Document (PDF)
•2003 WL 24016592 (Appellate Brief) Brief for the United States as Intervenor (Nov. 05, 2003) Original Image of this Document (PDF)

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

03-50608

Page 28

•2003 WL 24016588 (Appellate Brief) Brief of Plaintiffs-Appellees (Oct. 20, 2003) Original Image of this Document (PDF)
•2003 WL 24016591 (Appellate Brief) Brief of Defendants-Appellants (Aug. 18, 2003) Original Image of this Document (PDF)
TO ORDER COPIES OF ANY DOCUMENTS LISTED ABOVE, CALL WESTLAW COURTEXPRESS 1-877-DOC-RETR (1-877-362-7387) (Additional Charges Apply).
END OF DOCUMENT

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 
 Case: 1:03-cv-231 As of: 03/25/2011 11:58 AM CDT 1 of 18
U.S. District Court [LIVE] Western District of Texas (Austin) CIVIL DOCKET FOR CASE #: 1:03−cv−00231−SS

CLOSED

Travis, et al v. Hawkins, et al Assigned to: Judge Sam Sparks Demand: $0 Case in other court: Beaumont, Texas, 1:02cv00600
5th Cir., :03− −50608 Cause: 42:12101 Americans with Disabilities Act of 1990
Plaintiff

Date Filed: 04/11/2003 Date Terminated: 10/12/2006 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Christy Travis By &through her next friend Jamie Travis also known as Christy McCarthy

represented by Garth A. Corbett Advocacy Incorporated 7800 Shoal Creek Blvd., #171−E Austin, TX 78757 (512) 454−4816 Fax: 512/454−3999 Email: gcorbett@advocacyinc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey N. Courtney Clemens &Spencer 112 E. Pecan − Ste. 1300 San Antonio, TX 78205 210/227−7121 Fax: 210/227−0732 Email: G.N.Courtney@Alumni.ND.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

James H. Keahey Advocacy Incorporated 7800 Shoal Creek Blvd. Suite 142−South Austin, TX 78757−1014 (512) 454−4816 Fax: 512/454−3999 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noelle M. Reed Skadden, Arps, Slate, Meagher &Flom, L.L.P. 1000 Louisiana Street − Suite 6800 Houston, TX 77002−5026 (713) 655−5122 Fax: 713−483−9122 Email: noelle.reed@skadden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Todd Gordon By &through his next friend Trisha Gordon

represented by Garth A. Corbett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey N. Courtney (See above for address)

Case: 1:03-cv-231 As of: 03/25/2011 11:58 AM CDT 2 of 18

LEAD ATTORNEY ATTORNEY TO BE NOTICED

James H. Keahey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noelle M. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Allison Pratt By &through her next friend Paula Pratt TERMINATED: 07/14/2005

represented by Garth A. Corbett (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

Geoffrey N. Courtney (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

James H. Keahey (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

Plaintiff
Gail Truman By &through her next friend Ken Truman

represented by Garth A. Corbett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey N. Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James H. Keahey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noelle M. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Jim Floyd, Jr. By &through his next friend Jim Floyd, Sr.

represented by Garth A. Corbett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey N. Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James H. Keahey (See above for address)

Case: 1:03-cv-231 As of: 03/25/2011 11:58 AM CDT 3 of 18

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noelle M. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Sam Lindsay By &through his next friend Betty Lindsay

represented by Garth A. Corbett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey N. Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James H. Keahey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noelle M. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Oshea Brooks TERMINATED: 07/14/2005

represented by Garth A. Corbett (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

Geoffrey N. Courtney (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

James H. Keahey (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

Plaintiff Joe Ray Comacho

represented by Garth A. Corbett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey N. Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James H. Keahey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noelle M. Reed (See above for address)

Case: 1:03-cv-231 As of: 03/25/2011 11:58 AM CDT 4 of 18

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Micha Chastain By &through his next friend Lori Chastain TERMINATED: 07/14/2005

represented by Garth A. Corbett (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

Geoffrey N. Courtney (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

James H. Keahey (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

Plaintiff
AL By &through her next friend LL TERMINATED: 07/14/2005

represented by Garth A. Corbett (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

Geoffrey N. Courtney (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

James H. Keahey (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

Plaintiff
The Arc of Texas On behalf of its members &for those similarly situated

represented by Garth A. Corbett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey N. Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James H. Keahey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noelle M. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Sue Ann Ortiz TERMINATED: 07/14/2005

represented by Garth A. Corbett (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

Case: 1:03-cv-231 As of: 03/25/2011 11:58 AM CDT 5 of 18

Geoffrey N. Courtney (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

James H. Keahey (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

Plaintiff
Patrick Sostack By &through their parents and next friends Gary and Lisa Sostack

represented by Garth A. Corbett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey N. Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James H. Keahey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noelle M. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Scott Sostack By &through their parents and next friends Gary and Lisa Sostack

represented by Garth A. Corbett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey N. Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James H. Keahey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noelle M. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Shyan Forough By &through his parents and next friends Reza and Arzu Forough

represented by Garth A. Corbett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey N. Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:03-cv-231 As of: 03/25/2011 11:58 AM CDT 6 of 18

James H. Keahey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noelle M. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
David Zweifel By &through his parents and next friends Linda and Leroy Zweifel TERMINATED: 07/14/2005

represented by Garth A. Corbett (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

Geoffrey N. Courtney (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

James H. Keahey (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

Plaintiff
Ashton Bowlen By &through her mother and next friend, Patricia Bowlen

represented by Garth A. Corbett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey N. Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James H. Keahey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noelle M. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Tyler Blanchard By &through his mother and next friend, Faith Blanchard

represented by Garth A. Corbett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey N. Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James H. Keahey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:03-cv-231 As of: 03/25/2011 11:58 AM CDT 7 of 18

Noelle M. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Garrett Gillard By &through his mother and next friend, Keeya Gillard

represented by Garth A. Corbett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey N. Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James H. Keahey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noelle M. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Kameron Lane By &through his mother and next friend, Angie Lanea

represented by Garth A. Corbett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey N. Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James H. Keahey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Noelle M. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Madison Polk By &through her father and next friend, John Polk

represented by Garth A. Corbett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey N. Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James H. Keahey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:03-cv-231 As of: 03/25/2011 11:58 AM CDT 8 of 18

Noelle M. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Paige Smith By &through her mother and next friend, Gretta Smith TERMINATED: 07/14/2005

represented by Garth A. Corbett (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

Geoffrey N. Courtney (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

James H. Keahey (See above for address) TERMINATED: 07/14/2005 LEAD ATTORNEY

V. Defendant Karen F. Hale In her official capacity as Commissioner of the Texas Department of Mental Health &Mental Retardation TERMINATED: 07/14/2005
Defendant James R. Hine In his official capacity as Commissioner of the Texas Department of Aging and Disability Services TERMINATED: 02/13/2006

represented by Lara Michelle Johnson Assistant Attorney General General Litigation Division P.O. Box 12548 Capitol Station Austin, TX 78711−2548 (512)475−4099 Fax: 512/320−0667 Email: lara.johnson@oag.state.tx.us TERMINATED: 07/14/2005 LEAD ATTORNEY
Nancy K. Juren Office of Attorney General General Litigation Division P.O. Box 12548 Capitol Station Austin, TX 78711 (512) 463−2120 Fax: 512/320−0667 Email: nancy.juren@oag.state.tx.us TERMINATED: 07/14/2005 LEAD ATTORNEY
represented by Lara Michelle Johnson (See above for address) TERMINATED: 02/13/2006 LEAD ATTORNEY
Nancy K. Juren (See above for address) TERMINATED: 02/13/2006 LEAD ATTORNEY
Richard E. Salisbury Office of the Texas Attorney General Antitrust and Civil Medicaid Fraud

Case: 1:03-cv-231 As of: 03/25/2011 11:58 AM CDT 9 of 18

P.O. Box 12548 Austin, TX 78711 512−936−1576 Fax: 512−499−0712 Email: RES5@oag.state.tx.us TERMINATED: 02/13/2006 LEAD ATTORNEY

Robert E Henneke Kerr County Attorney 700 Main Street, Ste. BA−103 Kerrville, TX 78028 830−792−2220 Fax: 830−792−2228 Email: rhenneke@co.kerr.tx.us TERMINATED: 02/13/2006 LEAD ATTORNEY

Stephen Henry Capelle Assistant County Attorney PO Box 1748 Austin, TX 78767 (512) 854−9513 Fax: (512) 854−4808 Email: steve.capelle@co.travis.tx.us TERMINATED: 02/13/2006 LEAD ATTORNEY

Defendant
Albert Hawkins In his official capacity as Commissioner of the Texas Health and Human Services Commission

represented by Lara Michelle Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy K. Juren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard E. Salisbury (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert E Henneke (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen Henry Capelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Don Green Interim Commissioner of the Texas Health and Human Services Commission TERMINATED: 05/01/2003

represented by Lara Michelle Johnson (See above for address) TERMINATED: 05/01/2003 LEAD ATTORNEY

Nancy K. Juren (See above for address) TERMINATED: 05/01/2003 LEAD ATTORNEY

Case: 1:03-cv-231 As of: 03/25/2011 11:58 AM CDT 10 of 18

Defendant Adelaide Horn In her official capacity as Commissioner of the Texas Department of Aging and Disability Services
Plaintiff Billy Burch By and through his father, William Burch, Sr.
Plaintiff Nathaniel Burkett By his guardian brother, Clint Daniels

represented by Edwin N. Horne Assistant Attorney General State of Texas P.O. Box 12548 Capitol Station Austin, TX 78711 (512) 463−2120 Fax: 512/320−0667 Email: ed.horne@oag.state.tx.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy K. Juren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard E. Salisbury (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert E Henneke (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Henry Capelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Garth A. Corbett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Geoffrey N. Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Noelle M. Reed (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Garth A. Corbett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Geoffrey N. Courtney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Noelle M. Reed (See above for address)

Case: 1:03-cv-231 As of: 03/25/2011 11:58 AM CDT 11 of 18
LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Don A. Gilbert Commissioner of the Texas Health and Human Services Commission TERMINATED: 07/14/2005

Date Filed 04/11/2003 04/11/2003 04/16/2003 04/16/2003 04/17/2003 04/18/2003 04/21/2003 04/21/2003
05/01/2003 05/01/2003 05/01/2003 05/02/2003 05/12/2003
05/23/2003

# Docket Text
Case assigned to Honorable Sam Sparks (fe) (Entered: 04/14/2003)
1 Original file, certified copy of transfer order and docket sheet received from E/D of TX Beaumont Division (td) (Entered: 04/16/2003)
Court file forwarded to Judge Sparks (td) (Entered: 04/16/2003)
Letter mailed to parties re: new case number and judge assignment. (td) (Entered: 04/16/2003)
2 Plaintiffs' Motion for leave to file Plaintiffs' Supplement to their Response to D's Motion to Dismiss (fe) (Entered: 04/18/2003)
4 Ordered that Defendants' Motion to Extend Time to File Response to Plaintifs' Motion for Class Certification is GRANTED ... signed by Honorable Sam Sparks (td) (Entered: 04/21/2003)
3 Order granting motion for leave to file Plaintiffs' Supplement to their Response to D's Motion to Dismiss [2−1] signed by Honorable Sam Sparks (mc2) (Entered: 04/21/2003)
5 Notice of filing Supplement to Response to Defendants' Motion to Dismiss by Christy McCarthy, Todd Gordon, Allison Pratt, Gail Truman, Jim Floyd Jr., Sam Lindsay, Oshea Brooks, Joe Ray Comacho, Micha Chastain, AL, The Arc of Texas, Sue Ann Ortiz, Patrick Sostack, Scott Sostack, Shyan Forough, David Zweifel, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Kameron Lane, Madison Polk, Paige Smith (td) (Entered: 04/21/2003)
6 Unopposed Motion by Karen F. Hale, James R. Hine, Albert Hawkins for leave to file − to exceed page limit on defendants' reply to plaintiffs' response to defendants' motion to dismiss (mc2) (Entered: 05/02/2003)
7 Reply by Karen F. Hale, James R. Hine, Albert Hawkins to response to defendant's motion to dismiss. (mc2) (Entered: 05/02/2003)
8 Advisory to the court filed by Karen F. Hale, James R. Hine, Albert Hawkins − notice of substitution of Albert Hawkins for Don Gilbert as Commissioner of the Texas Health and Human Services Commission. (mc2) (Entered: 05/02/2003)
9 Order granting motion for leave to file − to exceed page limit on defendants' reply to plaintiffs' response to defendants' motion to dismiss [6−1] signed by Honorable Sam Sparks (mc2) (Entered: 05/02/2003)
10 Motion by Christy McCarthy, Todd Gordon, Allison Pratt, Gail Truman, Jim Floyd Jr., Sam Lindsay, Oshea Brooks, Joe Ray Comacho, Micha Chastain, AL, The Arc of Texas, Sue Ann Ortiz, Patrick Sostack, Scott Sostack, Shyan Forough, David Zweifel, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Kameron Lane, Madison Polk, Paige Smith for leave to file sur−reply to defendants' reply to plintiffs' response to defendants' motion to dismiss (mc2) (Entered: 05/12/2003)
11 ORDERED that Defendants Motion to Dsimiss Pltf Arc of Texas is DENIED; ORDERED that Defendants' Motion to Dismiss is GRANTED IN PART AND DENIED IN PART ... Order dismissing as moot motion for leave to file sur−reply

Case: 1:03-cv-231 As of: 03/25/2011 11:58 AM CDT 12 of 18

05/29/2003 05/29/2003 05/29/2003 05/30/2003 05/30/2003 06/03/2003 06/13/2003 06/26/2003 07/14/2003 11/15/2004 11/22/2004 11/23/2004 12/03/2004 12/03/2004 12/06/2004 02/15/2005
03/04/2005
03/07/2005

to defendants' reply to plintiffs' response to defendants' motion to dismiss [10−1]; FINALLY ORDERED that Defendants SHALL FILE a response to Pltfs' Motion for Class Certification by May 30, 2003, signed by Honorable Sam Sparks. (td) (Entered: 05/23/2003)
12 Motion by Albert Hawkins, Karen F. Hale, James R. Hine to stay pending collateral−order appeal , or alternatively to extend time to file answer and resposne to class certification motion (fe) (Entered: 05/30/2003)
13 Notice of interlocutory appeal by Albert Hawkins, Karen F. Hale, James R. Hine order [11−1] (fe) (Entered: 05/30/2003)
USCA appeal fees paid for appeal [13−1] : Appeal Fee: $ 105.00 Receipt # 343034 (fe) (Entered: 05/30/2003)
Notice of appeal and certified copy of docket to USCA: appeal [13−1] (fe) (Entered: 05/30/2003)
Served copy of notice of interlocutory appeal, dkt #13, on Nancy Juren, Lara Grant, James Keahey, Garth Corbett, Geoffrey Courtney, and Court. (fe) (Entered: 05/30/2003)
14 Order granting motion to stay [12−1] all district court proceedings pending further order of this court signed by Honorable Sam Sparks (fe) (Entered: 06/03/2003)
Return of appeal information sheet received. appeal [13−1] USCA NUMBER: 03−50608 (fe) (Entered: 06/16/2003)
Certified and transmitted record on appeal to U.S. Court of Appeals: appeal [13−1] #03−50608 (fe) (Entered: 06/26/2003)
Letter of transmittal from USCA: appeal [13−1] #03−50608 acknowledging receipt of the record on 6/30/03. (fe) (Entered: 07/16/2003)
15 Order set status conference 9:00 12/3/04 signed by Honorable Sam Sparks (fe) (Entered: 11/15/2004)
Mooted motion to extend time to file answer and resposne to class certification motion [12−2] per chambers this date. (mc2) (Entered: 11/22/2004)
16 Certified copy of judgment of USCA affirming appeal [13−1] Judgment issued as mandate (fe) (Entered: 11/23/2004)
17 Minutes of proceedings for status conference/all pending matters conducted on 12/3/04 by Judge Sparks. Court Reporter: Lily Reznik. (mc2) (Entered: 12/06/2004)
Status conference/all pending matters held; Court stays case until 2/15/05; parties to file status report on 2/15. (mc2) (Entered: 12/06/2004)
18 Order staying case until 2/15/04; and by that date all parties to file status report..., signed by Honorable Sam Sparks (mc2) (Entered: 12/06/2004)
19 Written status report by Christy McCarthy, Todd Gordon, Allison Pratt, Gail Truman, Jim Floyd Jr., Sam Lindsay, Oshea Brooks, Joe Ray Comacho, Micha Chastain, AL, The Arc of Texas, Sue Ann Ortiz, Patrick Sostack, Scott Sostack, Shyan Forough, David Zweifel, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Kameron Lane, Madison Polk, Paige Smith, Karen F. Hale, James R. Hine, Albert Hawkins (no further appeal, proposed scheduling order by 3/4/05). (mc2) (Entered: 02/16/2005)
20 Agreed Motion by Christy McCarthy, Todd Gordon, Allison Pratt, Gail Truman, Jim Floyd Jr., Sam Lindsay, Oshea Brooks, Joe Ray Comacho, Micha Chastain, AL, The Arc of Texas, Sue Ann Ortiz, Patrick Sostack, Scott Sostack, Shyan Forough to extend time for filing proposed scheduling order (mc2) (Entered: 03/07/2005)
21 Taxation of Costs against Albert Hawkins in the amount of $141.75 (taxation made by the U.S. Court of Appeals) (mh) (Entered: 03/08/2005)

Case: 1:03-cv-231 As of: 03/25/2011 11:58 AM CDT 13 of 18

03/09/2005
03/11/2005 03/11/2005
03/11/2005 04/01/2005
04/01/2005 04/14/2005 04/15/2005 04/18/2005 04/21/2005
04/21/2005 04/21/2005 04/21/2005
05/02/2005 05/16/2005
05/18/2005

22 Joint memorandum in support of proposed scheduling order − Recommendations for scheduling order by Christy McCarthy, Todd Gordon, Allison Pratt, Gail Truman, Jim Floyd Jr., Sam Lindsay, Oshea Brooks, Joe Ray Comacho, Micha Chastain, AL, The Arc of Texas, Sue Ann Ortiz, Patrick Sostack, Scott Sostack, Shyan Forough, David Zweifel, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Kameron Lane, Madison Polk, Paige Smith, Karen F. Hale, James R. Hine, Albert Hawkins (mc2) (Entered: 03/10/2005)
23 Order granting motion to extend time for filing proposed scheduling order [20−1] until 3/9/05, signed by Honorable Sam Sparks (mc2) (Entered: 03/14/2005)
24 Order setting scheduling order deadlines: Joining of parties, amended pleadings on 5/1/05 ; Deadline for filing of all motions by 2/15/05 ; Discovery deadline on 1/1/06 ; Docket Call set for 11:00 3/31/06 ; Alternate Dispute Resolution Report due by 5/15/05 , setting miscellaneous hearing − hearing on class certification − for 9:00 9/30/05 signed by Honorable Sam Sparks (mc2) (Entered: 03/14/2005)
Motion hearing set at 9:00 9/30/05 on [36−1] (mc2) (Entered: 09/26/2005)
25 Motion by Christy McCarthy, Todd Gordon, Allison Pratt, Gail Truman, Jim Floyd Jr., Sam Lindsay, Oshea Brooks, Joe Ray Comacho, Micha Chastain, AL, The Arc of Texas, Sue Ann Ortiz, Patrick Sostack, Scott Sostack, Shyan Forough, David Zweifel, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Kameron Lane, Madison Polk, Paige Smith for leave to amend complaint (mh) (Entered: 04/05/2005)
RECEIVED, Plaintiffs' Third Amended Complaint (mh) (Entered: 04/05/2005)
26 Order setting miscellaneous hearing on all pending matters for 9:00 4/20/05 signed by Honorable Sam Sparks (mc2) (Entered: 04/14/2005)
27 Order resetting miscellaneous hearing on all pending matters for 9:00 4/21/05 signed by Honorable Sam Sparks (mc2) (Entered: 04/15/2005)
28 Notice of attorney appearance for James R. Hine, Albert Hawkins by Stephen Henry Capelle (td) (Entered: 04/19/2005)
Miscellaneous hearing on all pending matters held. Parties announce ready; statements and arguments of ocunsel heard; motion taken under advisement #25; written order forthcoming. Parties may submit agreed order that reaffirms these causes of actions that have already been dismissed/ruled on. (mh) (Entered: 04/22/2005)
29 Minutes of proceedings for all pending matter conducted on 4/21/05 by Judge Sparks. Court Reporter: L. Reznik (mh) (Entered: 04/22/2005)
30 Order granting motion for leave to amend complaint [25−1] signed by Honorable Sam Sparks (mh) (Entered: 04/22/2005)
31 Third Amended complaint by Christy McCarthy, Todd Gordon, Gail Truman, Jim Floyd Jr., Sam Lindsay, Joe Ray Comacho, The Arc of Texas, Patrick Sostack, Scott Sostack, Shyan Forough, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Kameron Lane, Madison Polk against Don A. Gilbert, amending (Pages: 47) (mh) (Entered: 04/22/2005)
32 Answer by James R. Hine, Albert Hawkins to third amended complaint (mc2) (Entered: 05/03/2005)
33 Alternate Dispute Resolution Report filed by Christy McCarthy, Todd Gordon, Allison Pratt, Gail Truman, Jim Floyd Jr., Sam Lindsay, Oshea Brooks, Joe Ray Comacho, Micha Chastain, AL, The Arc of Texas, Sue Ann Ortiz, Patrick Sostack, Scott Sostack, Shyan Forough, David Zweifel, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Kameron Lane, Madison Polk, Paige Smith, Billy Burch, Nathaniel Burkett, Party(s) agree to Alternate Dispute Resolution (mc2) (Entered: 05/17/2005)
34 Alternate Dispute Resolution Report filed by Karen F. Hale, James R. Hine, Albert Hawkins, Don A. Gilbert, Party(s) agree to Alternate Dispute Resolution (mc2) (Entered: 05/19/2005)

Case: 1:03-cv-231 As of: 03/25/2011 11:58 AM CDT 14 of 18

06/02/2005
06/02/2005
07/13/2005 07/14/2005 07/21/2005 07/21/2005 07/21/2005
07/21/2005 09/02/2005 09/08/2005
09/15/2005 09/15/2005 09/16/2005 09/16/2005 09/28/2005 10/24/2005

35 Motion by Christy McCarthy, Todd Gordon, Allison Pratt, Gail Truman, Jim Floyd Jr., Sam Lindsay, Oshea Brooks, Joe Ray Comacho, Micha Chastain, AL, The Arc of Texas, Sue Ann Ortiz, Patrick Sostack, Scott Sostack, Shyan Forough, David Zweifel, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Kameron Lane, Madison Polk, Paige Smith, Karen F. Hale, James R. Hine, Albert Hawkins, Don Green, Don A. Gilbert, Billy Burch, Nathaniel Burkett to amend caption (mc2) (Entered: 06/02/2005)
36 Motion by Christy McCarthy, Todd Gordon, Allison Pratt, Gail Truman, Jim Floyd Jr., Sam Lindsay, Oshea Brooks, Joe Ray Comacho, Micha Chastain, AL, The Arc of Texas, Sue Ann Ortiz, Patrick Sostack, Scott Sostack, Shyan Forough, David Zweifel, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Kameron Lane, Madison Polk, Paige Smith, Billy Burch, Nathaniel Burkett to certify class action (mc2) Modified on 06/02/2005 (Entered: 06/02/2005)
37 Order setting miscellaneous hearing on all pending matters for 2:00 7/21/05 signed by Honorable Sam Sparks (mc2) (Entered: 07/14/2005)
38 Order granting motion to amend caption [35−1] signed by Honorable Sam Sparks (mc2) (Entered: 07/14/2005)
39 Minutes of proceedings for hearing on all pending matters conducted on 7/21/05 by Judge Sparks. Court Reporter: Lily Reznik. (mc2) (Entered: 07/22/2005)
Miscellaneous hearing on all pending matters held (mc2) (Entered: 07/22/2005)
40 Motion by Christy Travis, Todd Gordon, Gail Truman, Jim Floyd Jr., Sam Lindsay, Joe Ray Comacho, The Arc of Texas, Patrick Sostack, Scott Sostack, Shyan Forough, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Kameron Lane, Madison Polk, James R. Hine, Albert Hawkins, Billy Burch, Nathaniel Burkett to amend order [24−3] (mc2) (Entered: 07/22/2005)
41 Order granting motion to amend order [24−3] [40−1], mediation deadline for 9/9/05, deadline for defendants to respond to plaintiffs' motion for class certification to 9/16/05, signed by Honorable Sam Sparks (mc2) (Entered: 07/22/2005)
42 Unopposed Motion by James R. Hine, Albert Hawkins to extend time to designate witnesses (mc2) (Entered: 09/06/2005)
43 Joint motion by Christy Travis, Todd Gordon, Gail Truman, Jim Floyd Jr., Sam Lindsay, Joe Ray Comacho, The Arc of Texas, Patrick Sostack, Scott Sostack, Shyan Forough, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Kameron Lane, Madison Polk, James R. Hine, Albert Hawkins, Billy Burch, Nathaniel Burkett to amend order [24−3] due to hurricane emergency relief efforts (mc2) (Entered: 09/09/2005)
44 Proposed testifying Witness List by James R. Hine, Albert Hawkins (mc2) (Entered: 09/16/2005)
45 Designation of Exhibits list by James R. Hine, Albert Hawkins (mc2) (Entered: 09/16/2005)
46 Order granting motion to extend time to designate witnesses [42−1] until 10/3/05, signed by Honorable Sam Sparks (mc2) (Entered: 09/19/2005)
47 Order granting joint motion to amend order [24−3] due to hurricane emergency relief efforts [43−1] extending scheduling order deadlines: Deadline for filing of all motions by 4/17/06 ; Discovery deadline on 3/2/06 ; Docket Call set for 11:00 5/19/06 signed by Honorable Sam Sparks (mc2) (Entered: 09/19/2005)
48 Order cancelling deadline − 9/30/05 hearing on motion for class action certification, signed by Honorable Sam Sparks (mc2) (Entered: 09/28/2005)
49 Joint motion by Christy Travis, Todd Gordon, Gail Truman, Jim Floyd Jr., Sam Lindsay, Joe Ray Comacho, The Arc of Texas, Patrick Sostack, Scott Sostack, Shyan Forough, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Kameron Lane, Madison Polk, James R. Hine, Albert Hawkins, Billy Burch, Nathaniel Burkett to extend time − for enlargement of time to mediate (mc2) (Entered: 10/26/2005)

Case: 1:03-cv-231 As of: 03/25/2011 11:58 AM CDT 15 of 18

10/27/2005 11/09/2005
11/15/2005 12/02/2005
12/05/2005 12/05/2005 12/07/2005 01/10/2006 01/10/2006 01/10/2006 01/17/2006 02/09/2006 02/09/2006
02/10/2006 02/10/2006
02/10/2006 02/10/2006 02/13/2006

50 Order granting joint motion to extend time − for enlargement of time to mediate [49−1] until 11/29/05, signed by Honorable Sam Sparks (mc2) (Entered: 10/27/2005)
51 Motion by Christy Travis, Todd Gordon, Gail Truman, Jim Floyd Jr., Sam Lindsay, Joe Ray Comacho, The Arc of Texas, Patrick Sostack, Scott Sostack, Shyan Forough, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Kameron Lane, Madison Polk, Billy Burch, Nathaniel Burkett to withdraw motion for class certification (mc2) (Entered: 11/09/2005)
52 Order granting motion to withdraw motion for class certification [51−1], dismissing motion to certify class action [36−1] signed by Honorable Sam Sparks (mc2) (Entered: 11/15/2005)
53 Motion by Christy Travis, Todd Gordon, Gail Truman, Jim Floyd Jr., Sam Lindsay, Joe Ray Comacho, The Arc of Texas, Patrick Sostack, Scott Sostack, Shyan Forough, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Kameron Lane, Madison Polk, James R. Hine, Albert Hawkins, Billy Burch, Nathaniel Burkett to amend order [24−3] (mc2) (Entered: 12/05/2005)
54 First amended Exhibit list by James R. Hine, Albert Hawkins (mc2) (Entered: 12/06/2005)
55 First amended designation of testifying witness List by James R. Hine, Albert Hawkins (mc2) (Entered: 12/06/2005)
56 Order granting motion to amend order [24−3] [53−1] signed by Honorable Sam Sparks (td) (Entered: 12/08/2005)
57 Designation of expert witness filed by James R. Hine, Albert Hawkins (mc2) Modified on 01/12/2006 (Entered: 01/12/2006)
58 Second amended Proposed testifying Witness List by James R. Hine, Albert Hawkins (mc2) Modified on 01/12/2006 (Entered: 01/12/2006)
59 Second amended Exhibits by James R. Hine, Albert Hawkins (mc2) (Entered: 01/12/2006)
60 Order setting status conference for 11:00 2/10/06 signed by Honorable Sam Sparks (mc2) (Entered: 01/19/2006)
61 Advisory to the court filed by James R. Hine, Albert Hawkins− notice of substitution of Adelaide Horn for James R. Hine as Commissioner of the Texas Dept. of Aging and Disability Services. (mc2) (Entered: 02/10/2006)
62 Advisory to the court filed by Christy Travis, Todd Gordon, Gail Truman, Jim Floyd Jr., Sam Lindsay, Joe Ray Comacho, The Arc of Texas, Patrick Sostack, Scott Sostack, Shyan Forough, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Kameron Lane, Madison Polk, James R. Hine, Albert Hawkins, Billy Burch, Nathaniel Burkett − notice of agreed style of case. (mc2) (Entered: 02/10/2006)
63 Motion by James R. Hine, Albert Hawkins to clarify pending claims (mc2) (Entered: 02/10/2006)
64 Notice of attorney appearance for Christy Travis, Todd Gordon, Gail Truman, Jim Floyd Jr., Sam Lindsay, Joe Ray Comacho, The Arc of Texas, Patrick Sostack, Scott Sostack, Shyan Forough, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Kameron Lane, Madison Polk, Billy Burch, Nathaniel Burkett by Noelle M. Reed (mc2) (Entered: 02/10/2006)
65 Minutes of proceedings for status conference conducted on 2/10/06 by Judge Sparks. Court Reporter: Lily Reznik. (mc2) (Entered: 02/13/2006)
Status conference held; written order to follow. (mc2) (Entered: 02/13/2006)
66 Order that docket call remains set for 5/19/06 w/non−jury trial in 6/06 and each side allowed 10 hours in trial..., further ordered that Adelaide Horn in her official capacity as the current Commissioner of TX Dept. of Aging and Disability Services, is substituted for defendant James R. Hine in his official capacity..., signed by Honorable Sam Sparks (mc2) (Entered: 02/14/2006)

Case: 1:03-cv-231 As of: 03/25/2011 11:58 AM CDT 16 of 18

02/15/2006
02/15/2006 04/11/2006 04/14/2006 04/19/2006 04/20/2006 04/20/2006 04/20/2006
04/20/2006 04/20/2006
04/20/2006 04/20/2006 04/21/2006 04/21/2006 04/26/2006 04/28/2006
05/01/2006 05/01/2006

67 Letter brief filed by Christy Travis, Todd Gordon, Gail Truman, Jim Floyd Jr., Sam Lindsay, Joe Ray Comacho, The Arc of Texas, Patrick Sostack, Scott Sostack, Shyan Forough, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Kameron Lane, Madison Polk, Billy Burch, Nathaniel Burkett (mc2) (Entered: 02/16/2006)
68 Letter brief filed by Albert Hawkins, Adelaide Horn (mc2) (Entered: 02/16/2006)
69 Order Motion hearing motion to clarify pending claims [63−1] for 10:00 4/28/06 signed by Honorable Sam Sparks (td) (Entered: 04/12/2006)
70 Agreed Motion by Albert Hawkins, Adelaide Horn to extend time to file motion for summary judgment (mc2) (Entered: 04/17/2006)
71 Order granting motion to extend time to file motion for summary judgment [70−1] until 4/20/06, signed by Honorable Sam Sparks (mc2) (Entered: 04/19/2006)
72 Motion by Albert Hawkins, Adelaide Horn for summary judgment (mc2) (Entered: 04/21/2006)
73 Unopposed Motion by Albert Hawkins, Adelaide Horn for leave to file − to exceed page limit on defendants' motion for summary judgment (mc2) (Entered: 04/21/2006)
74 Motion by Christy Travis, Todd Gordon, Gail Truman, Jim Floyd Jr., Sam Lindsay, Joe Ray Comacho, The Arc of Texas, Patrick Sostack, Scott Sostack, Shyan Forough, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Kameron Lane, Madison Polk, Billy Burch, Karen F. Hale for partial summary judgment (mc2) (Entered: 04/21/2006)
75 Motion by Christy Travis, et al for leave to file − to exceed page limit on their motion for partial summary judgment (mc2) (Entered: 04/21/2006)
76 Motion by Christy Travis, et al to strike testimony of defendants' expert witnesses and expert report , exclude testimony of defendants' expert witnesses and expert report , and for sanctions in form of attorneys fees and costs (mc2) (Entered: 04/21/2006)
77 Motion by Christy Travis for hearing − for oral argument on plaintiffs' pending partial summary judgment motion (mc2) (Entered: 04/21/2006)
78 Motion by Christy Travis, et al to compel defendants' responses to plaintiffs' requests for production, interrogatories and admissions (mc2) (Entered: 04/21/2006)
79 Order granting motion for leave to file − to exceed page limit on their motion for partial summary judgment [75−1] signed by Honorable Sam Sparks (mc2) (Entered: 04/21/2006)
80 Order granting motion for leave to file − to exceed page limit on defendants' motion for summary judgment [73−1] signed by Honorable Sam Sparks (mc2) (Entered: 04/21/2006)
81 Unopposed Motion by Albert Hawkins, Adelaide Horn to extend time to respond to plaintiff's motion to strike and motion to compel (mc2) (Entered: 04/26/2006)
82 Minute Entry for proceedings held before Judge Sam Sparks : Motion Hearing held on 4/28/2006 re 63 Motion for Miscellaneous Relief − to clarify − filed by Albert Hawkins,, Adelaide Horn,, 81 Motion for Extension of Time to File filed by Albert Hawkins,, Adelaide Horn, (Minute entry documents are not available electronically.). (Court Reporter Lily Reznik.) (mc2, ) (Entered: 04/30/2006)
84 Response to 77 Plaintiffs' Motion for Oral Argument on Plaintiffs'Pending Partial Summary Judgment Motion; filed by Albert Hawkins, Adelaide Horn. (es) (Entered: 05/03/2006)
85 ORDER granting 81 Motion for Extension of Time to Respond to Plaintiff's Motion to Strike and Motion to Compel; Response is due May 8, 2006. Signed by Judge Sam Sparks. (es) (Entered: 05/03/2006)

Case: 1:03-cv-231 As of: 03/25/2011 11:58 AM CDT 17 of 18

05/03/2006 05/08/2006 05/08/2006 05/10/2006 05/10/2006 05/12/2006 05/12/2006
05/15/2006 05/18/2006 05/19/2006 05/19/2006
05/19/2006 05/19/2006
05/22/2006
05/22/2006

83 TRANSCRIPT of Proceedings held on 4/28/06. Proceedings Transcribed:hearing on all pending matters. Court Reporter: Lily Reznik. NOTE: Transcript document is not available online. (mc2, ) (Entered: 05/03/2006)
86 RESPONSE to Motion re 78 Motion to Compel , filed by Albert Hawkins, Adelaide Horn (with attached exhibits unavailable electronically). (mc2, ) (Entered: 05/09/2006)
87 RESPONSE to Motion re 76 Motion to Strike experts , filed by Albert Hawkins, Adelaide Horn. (mc2, ) (Entered: 05/09/2006)
88 MOTION for Sanctions, MOTION to Strike testimony of expert witness by Albert Hawkins, Adelaide Horn (with attached exhibits unavailable electronically (mc2, ) Modified on 5/10/2006 (mc2, ). (Entered: 05/10/2006)
Notice of Correction: re 88 MOTION for Sanctions MOTION to Strike − added language re attached exhibits unavailable electronically. (mc2, ) (Entered: 05/10/2006)
89 Letter/Correspondence from Albert Hawkins, Adelaide Horn, by attorney Nancy Juren re vacation schedule. (mc2, ) (Entered: 05/12/2006)
90 REPLY to Response to Motion re 77 Motion for Hearing − for oral argument on their pending motion for partial summary judgment motion , filed by The Arc of Texas, Patrick Sostack, Scott Sostack, Shyan Forough, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Christy Travis, Kameron Lane, Madison Polk, Billy Burch, Todd Gordon, Nathaniel Burkett, Gail Truman, Jim Floyd, Jr, Sam Lindsay, Joe Ray Comacho. (mc2, ) (Entered: 05/15/2006)
91 ORDER Miscellaneous Hearing set on all pending matters for 5/18/2006 09:00 AM before Honorable Sam Sparks.. Signed by Judge Sam Sparks. (mc2, ) (Entered: 05/15/2006)
92 Minute Entry for proceedings held before Judge Sam Sparks : Miscellaneous Hearing held on 5/18/2006 (Minute entry documents are not available electronically.). Written order to follow. (Court Reporter Lily Reznik.) (mc2, ) (Entered: 05/18/2006)
93 Minute Entry for proceedings held before Judge Sam Sparks : Docket Call held on 5/19/2006 (Minute entry documents are not available electronically.). (Court Reporter Lily Reznik.) (mc2, ) (Entered: 05/22/2006)
94 Pretrial Disclosures by The Arc of Texas, Patrick Sostack, Scott Sostack, Shyan Forough, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Christy Travis, Kameron Lane, Madison Polk, Billy Burch, Todd Gordon, Nathaniel Burkett, Gail Truman, Jim Floyd, Jr, Sam Lindsay, Joe Ray Comacho. (mc2, ) (Entered: 05/22/2006)
95 Pretrial Disclosures by Albert Hawkins, Adelaide Horn (with attached exhibits unavailable electronically at this time). (mc2, ) (Entered: 05/22/2006)
96 RESPONSE to Motion re 72 Motion for Summary Judgment , filed by The Arc of Texas, Patrick Sostack, Scott Sostack, Shyan Forough, Ashton Bowlen, Tyler Blanchard, Garrett Gillard, Christy Travis, Kameron Lane, Madison Polk, Billy Burch, Todd Gordon, Nathaniel Burkett, Gail Truman, Jim Floyd, Jr, Sam Lindsay, Joe Ray Comacho (with attached exhibits unavailable electronically at this time). (mc2, ) (Entered: 05/22/2006)
97 ORDER dismissing 63 Motion, denying 72 Motion for Summary Judgment, denying 74 Motion for Partial Summary Judgment, denying 76 Motion to Strike, denying 76 Motion, denying 76 Motion for Sanctions, granting 77 Motion for Hearing (hearing held 5/18/06), denying 78 Motion to Compel, denying 88 Motion for Sanctions, denying 88 Motion to Strike Signed by Judge Sam Sparks. (mc2, ) (Entered: 05/23/2006)
98 RESPONSE to Motion re 74 Motion for Partial Summary Judgment , filed by Albert Hawkins, Adelaide Horn. (mc2, ) (Entered: 05/23/2006)

Case: 1:03-cv-231 As of: 03/25/2011 11:58 AM CDT 18 of 18

06/08/2006 06/12/2006 06/20/2006 06/28/2006 06/30/2006 10/06/2006 10/12/2006

99 Minute Entry for proceedings held before Judge Sam Sparks : Status Conference held in chambers on 6/8/2006 (Minute entry documents are not available electronically.). (Court Reporter Lily Reznik.) (mc2, ) (Entered: 06/09/2006)
100 ORDER that trial previously scheduled for 6/12/06 is postponed until further order of court, and that the parties shall file a status letter by 6/22/06. Signed by Judge Sam Sparks. (mc2, ) (Entered: 06/13/2006)
101 TRANSCRIPT of Proceedings held on 6/8/06. Proceedings Transcribed:status conference. Court Reporter: Lily Reznik. NOTE: Transcript document is not available online. (mc2, ) (Entered: 06/20/2006)
102 ORDER that the parties file another status report by 7/18/06 . Signed by Judge Sam Sparks. (mc2, ) (Entered: 06/28/2006)
103 ORDER that both parties submit next status report by 8/8/06 rather than 7/18/06. Signed by Judge Sam Sparks. (mc2, ) (Entered: 06/30/2006)
104 STIPULATION of Dismissal JOINT, with Prejudice by Albert Hawkins, Adelaide Horn. (Attachments: # 1 Proposed Order)(Juren, Nancy) (Entered: 10/06/2006)
105 ORDER OF DISMISSAL. Signed by Judge Sam Sparks. (td, ) (Entered: 10/13/2006)

 
 381 F.3d 407 (2004)
Christy McCARTHY, By and through her next friend Jamie TRAVIS; Todd Gordon, By and through his next friend Trisha Gordon; Allison Pratt, By
and through her next friend Paula Pratt; Gail Truman, By and through her next friend Ken Truman; Jim Floyd, Jr., By and through his next friend Jim Floyd, Sr.; Sam Lindsay, By and through his next friend Betty Lindsay; Oshea Brooks; Joe Ray Comacho; Micha Chastain, By and through his next friend Lori Chastain; A.L., By and through his next
friend L.L.; Arc of Texas, On behalf of its members and for those similarly situated; Sue Ann Ortiz; Patrick Sostack, By and through their parents and next friends Gary and Lisa Sostack; Scott Sostack, By and
through their parents and next friends Gary and Lisa Sostack; Shyan Forough, By and through his parents and next friends Reza and Arzu Forough; David Zweifel, By and through his parents and next friends Linda and Leroy Zweifel; Ashton Bowlen, By and through her mother and next friend Patricia Bowlen; Tyler Blanchard, By and through his mother and next friend Faith Blanchard; Garrett Gillard, By and through
his mother and next friend Keeya Gillard; Kameron Lane, By and through his mother and next friend Angie Lane; Madison Polk, By and
through her father and next friend John Polk; Paige Smith, By and through her mother and next friend Gretta Smith, Plaintiffs-Appellees,
v. Albert HAWKINS, Etc.; et al., Defendants, Albert Hawkins, In his official capacity as Commissioner of the Texas Health and Human Services Commission; Karen F. Hale, In her official capacity as Commissioner of the Texas Department of Mental Health & Mental Retardation; James R. Hine, In his official capacity as Commissioner of the Texas Department of Human Services, Defendants-
Appellants. 408*408
No. 03-50608.
United States Court of Appeals, Fifth Circuit.
August 11, 2004.
409*409 Geoffrey N. Courtney (argued), Austin, TX, James H. Keahey, Garth Anthony Corbett, Advocacy Inc., Austin, TX, for Plaintiffs-Appellees.
Kevin K. Russell (argued), U.S. Dept. of Justice, Washington, DC, for U.S., Intervenor.
Amy Warr (argued), Austin, TX, for Defendants-Appellants.

Karen M. Lockwood, Rachel A. Adams, Howrey, Simon, Arnold & White, Washington, DC, for Amici Curiae.
Before KING, Chief Judge, and REAVLEY and EMILIO M. GARZA, Circuit Judges.
KING, Chief Judge:
Plaintiffs sued several Texas state officials, asserting violations of the Medicaid 410*410 statute, the Americans with Disabilities Act, and the Rehabilitation Act. Relying in part on state-sovereign immunity, Defendants moved the district court to dismiss Plaintiffs' claims. The district court denied Defendants' motion in part, concluding that the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), provided jurisdiction over this official-capacity suit seeking prospective relief against state officers. Disappointed, Defendants filed this interlocutory appeal, seeking to vindicate their Eleventh Amendment immunity from suit. We agree with the district court that state officers, sued in their official capacities for prospective relief, are proper defendants under Title II of the Americans with Disabilities Act and are not immune under the Eleventh Amendment. Further, we hold that Defendants' other contentions on appeal relate to the merits of this controversy, not the Eleventh Amendment; therefore, these arguments are beyond the scope of this interlocutory appeal. We affirm.
I. Background
Plaintiffs are twenty-one mentally disabled Texas residents (most of whom sue through their next friends) and the Arc of Texas (a nonprofit organization that advocates for the rights of individuals with mental disabilities). In September 2002, they brought this action, on behalf of themselves and all others similarly situated,[1] against Defendants. Defendants are three Texas state officers sued in their official capacities as Commissioners of the Texas Health and Human Services Commission, the Texas Department of Human Services, and the Texas Department of Mental Health and Mental Retardation.[2] Plaintiffs allege that Defendants are not adequately providing community-based living options to individuals, like themselves, with mental retardation and other developmental disabilities.
The programs to which Plaintiffs seek access are offered by Texas as part of its Medicaid plan. Title XIX of the Social Security Act established Medicaid, a cooperative federal-state program that provides federal funding to states that furnish medical services to needy individuals. See 42 U.S.C. §§ 1396-1396v (2000); Frew v. Hawkins, 540 U.S. 431, 124 S.Ct. 899, 901, 157 L.Ed.2d 855 (2004). While state participation is voluntary, if a state elects to join the program, it must administer a state plan that meets federal requirements. See 42 U.S.C. § 1396a(a) (describing the required contents of a state plan); Frew, 124 S.Ct. at 901. States can, however, obtain certain waivers, which allow them to deliver experimental services under a relaxed set of regulatory strictures. One such waiver permits states to offer home and community-based services for disabled individuals who would otherwise require institutional care. See 42 U.S.C. § 1396n(c)(1). Under a § 1396n(c) waiver, certain obligations that otherwise attach to states' provision of Medicaid services are waived, and participating states may obtain federal reimbursement for services that would not normally be reimbursable under the Medicaid program. See id. § 1396n(c)(3) (detailing the requirements that may be waived under a § 1396n(c) waiver); id. § 1396n(c)(4)(B) (explaining the services that may be provided under a § 1396n(c) waiver).
Plaintiffs' claims center on two § 1396n(c) waiver programs offered by 411*411 Texas for mentally disabled individuals. First, the Home and Community-Based Waiver Services program (the "HCS" program) provides services that enable individuals with mental retardation to remain at home, live independently, or live in small home-like settings. The HCS program thereby helps those individuals avoid institutional living environments. Second, the Community Living Assistance and Support Services waiver program (the "CLASS" program) provides similar assistance to individuals with other developmental disabilities.

II. Proceedings in the District Court
Plaintiffs' second amended complaint alleges that Defendants have denied them access to the HCS and CLASS programs. According to Plaintiffs, this denial of access violates several provisions of federal law— namely, (1) four subsections of the federal Medicaid statute, including its due process provision (i.e., § 1396a(a)(3)[3]), and its implementing regulations; (2) Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131-12165 (2000), and its implementing regulations; (3) § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.A. § 794(a) (West 1999 & Supp.2004), and its implementing regulations; and (4) the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Plaintiffs assert causes of action under 42 U.S.C. § 1983, Title II, and § 504, and they seek declaratory and injunctive relief.
Defendants moved to dismiss under Rule 12(b)(6) and Rule 12(b)(1), contending that several of Plaintiffs' claims failed to state a claim upon which relief could be granted and asserting Eleventh Amendment immunity from the entire suit. In May 2003, the district court granted Defendants' motion in part and denied it in part. The district court dismissed, for failure to state a claim, Plaintiffs' Due Process and Equal Protection claims. Similarly, the court dismissed, for failure to state a claim, all but one of Plaintiffs' § 1983 claims regarding alleged infringements of the Medicaid statute, concluding that only the due process provision in § 1396a(a)(3) was enforceable under § 1983.[4] Concerning Plaintiffs' Title II and § 504 causes of action, the court ruled that Plaintiffs' complaint did state actionable claims under each statute. Further, since Plaintiffs sued state officers for prospective relief, the court relied on the doctrine of Ex parte Young in holding that the Eleventh Amendment did not bar Plaintiffs' Title II and § 504 claims.
In sum, the district court allowed three of Plaintiffs' causes of action to proceed: (1) their § 1983 claim based on violations of the due process provision of the Medicaid statute (§ 1396a(a)(3)); (2) their Title II claim; and (3) their § 504 claim. Defendants appeal from that portion of the district court's May 2003 order that denied their motion to dismiss on the basis of Eleventh Amendment immunity. Under the collateral order doctrine, this court has 412*412 jurisdiction over an interlocutory appeal from a denial of a motion to dismiss asserting Eleventh Amendment immunity. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-45, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). In November 2003, this court granted the United States's unopposed motion to intervene on behalf of Plaintiffs.[5]
III. Standard of Review
This court reviews denials of Eleventh Amendment immunity de novo. Cozzo v. Tangipahoa Parish Council—President Gov't, 279 F.3d 273, 280 (5th Cir. 2002).
IV. Texas's Entitlement to Eleventh Amendment Immunity From Suit
The Eleventh Amendment has been interpreted by the Supreme Court to bar suits by individuals against nonconsenting states. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). In addition, the principle of state-sovereign immunity generally precludes actions against state officers in their official capacities, see Edelman v. Jordan, 415 U.S. 651, 663-69, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), subject to an established exception: the Ex parte Young doctrine. Under Ex parte Young, "a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law." Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Here, the district court relied on the Ex parte Young exception in ruling that the Eleventh Amendment does not bar Plaintiffs' claims.

A. The Parties' Contentions
Texas maintains that a plaintiff may not proceed under Ex parte Young unless she asserts a violation of a federal right that arises from a valid federal law that is enforceable against the defendant state. In Texas's view, Plaintiffs' § 1983, Title II, and § 504 claims do not satisfy these prerequisites to an Ex parte Young action because none alleges a violation of a valid federal right that is enforceable against Defendants. Texas presents four arguments on appeal. First, Texas contends that the district court incorrectly determined that Plaintiffs can enforce the due process provision of the federal Medicaid law, § 1396a(a)(3), under § 1983. Second, Texas asserts that an action cannot be brought under Ex parte Young to enforce Title II of the ADA, since a state officer is not a proper defendant under Title II. Third, the State argues that Congress lacked the power under either § 5 of the Fourteenth Amendment or the Commerce Clause to enact the substantive requirements in Title II and that Title II violates the Tenth Amendment. Fourth, Texas maintains that § 504 of the Rehabilitation Act is unconstitutional as applied to Defendants because it violates the relatedness requirement imposed on Spending Clause legislation in South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987). Accordingly, Texas contends that state-sovereign immunity bars Plaintiffs' suit because Plaintiffs have not alleged a violation of any valid federal law.
Plaintiffs and the government respond that Texas is attempting impermissibly to broaden the scope of this interlocutory appeal. By articulating these "prerequisites" to an Ex parte Young suit, they assert, the State invites this court to reach the merits of Plaintiffs' claims and Defendants' defenses to liability. Instead, Plaintiffs argue, 413*413 this court must limit its review to whether the district court correctly concluded that Texas's Eleventh Amendment immunity from suit does not bar it from hearing Plaintiffs' § 1983, Title II, and § 504 claims. Accordingly, Plaintiffs and the government maintain that this court should refuse to consider all but one of Texas's arguments, i.e., its contention that an Ex parte Young suit cannot be brought to enforce Title II.
Since Plaintiffs and the government concede that Texas's second contention is an appropriate subject of consideration in this interlocutory appeal, we address this argument first.
B. Whether state officers are proper defendants under Title II
Title II provides in relevant part that "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." 42 U.S.C. § 12132 (2000). The State asserts that the district court erred in denying it Eleventh Amendment immunity from Plaintiffs' cause of action under Title II because a claim cannot be brought under Ex parte Young to enforce that statute. Texas maintains that a state officer is not a proper defendant under Title II; only public entities can be sued under the statute. Thus, since Ex parte Young only allows suits against state officers, Texas reasons that Plaintiffs' Title II claims must be dismissed. In response, Plaintiffs and the government argue that Title II can be enforced through suits for prospective relief against state officers, even though the substantive requirements of the statute apply only to public entities, because a suit against a state officer in her official capacity is really a suit against the state agency itself.
Texas's contention presents an issue of first impression in this circuit. The State relies primarily on the Seventh Circuit's opinion in Walker v. Snyder, 213 F.3d 344 (7th Cir.2000).[6] In Walker, the court held that a plaintiff could not bring an Ex parte Young suit to enforce Title II because the only proper defendant "is the public body as an entity." Id. at 347. But Walker, decided in 2000, has been undermined by the Supreme Court's subsequent statement in Garrett that Title I of the ADA could be enforced in an Ex parte Young action. Garrett, 531 U.S. at 374 n. 9, 121 S.Ct. 955. Indeed, the Seventh Circuit has disavowed Walker's holding on this issue, concluding that it "did not survive" Garrett. Bruggeman v. Blagojevich, 324

F.3d 906, 912-13 (7th Cir.2003). Even though Walker has been abrogated, Texas still contends this court should follow that decision, since the remark from Garrett that the Bruggeman court relied on was dictum.
Although the Court's comment in Garrett was not essential to the judgment, the courts of appeals have been unanimous in rejecting arguments that state officers cannot be sued for prospective relief in 414*414 their official capacities for violations of Title II.[7] In addition to this substantial authority from other circuits, Supreme Court precedent makes clear that "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); accord Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) ("Official-capacity suits ... generally represent only another way of pleading an action against an entity of which an officer is an agent. As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity." (citations and internal quotation marks omitted)). Only for the purposes of the Eleventh Amendment are "official-capacity actions for prospective relief ... not treated as actions against the State." Graham, 473 U.S. at 167 n. 14, 105 S.Ct. 3099 (citing Ex parte Young).
We thus join the Second, Sixth, Seventh, Eighth, and Ninth Circuits in holding that Plaintiffs' Ex parte Young suit to enforce Title II can proceed; Defendants have been sued in their official capacities and are therefore representing their respective state agencies (which are proper Title II defendants) for all purposes except the Eleventh Amendment.[8]
415*415 C. Texas's other arguments on appeal
When stripped of their Eleventh Amendment gloss, Texas's three remaining arguments essentially target the merits of Plaintiffs' claims, rather than Plaintiffs' reliance on the doctrine of Ex parte Young to establish jurisdiction. As we will see, these defenses to liability are beyond the scope of this interlocutory appeal from a denial of Eleventh Amendment immunity from suit. See P.R. Aqueduct & Sewer Auth., 506 U.S. at 144, 113 S.Ct. 684 (explaining that the Eleventh Amendment "confers an immunity from suit").
1. The constitutionality of Title II and § 504
We first turn to Texas's contentions that Congress lacked the power to enact the substantive provisions of Title II and § 504. The State provides no authority for its assertion that a federal court must determine the constitutionality of a federal law in the course of determining the applicability of the Ex parte Young exception. Instead, the State misleadingly quotes the Supreme Court's opinion in Gonzaga University v. Doe for the proposition that, "[a]s a prerequisite to bringing a Young suit, ... `a plaintiff must assert the violation of a federal right, not merely a violation of federal law.'" Texas Br. at 13 (quoting Doe, 536 U.S. 273, 282, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002)). But this passage in Doe involved the prerequisites for stating a claim under § 1983, not the requirements for avoiding an Eleventh Amendment defense to suit through the vehicle of an Ex parte Young action.[9] Texas relies heavily on this misinterpretation of Doe in contending that Plaintiffs cannot proceed under Ex parte Young unless this court first determines that their claims rely on federal laws that are both constitutional and enforceable against the State. But Texas simply provides no support for its contention that a court must determine the validity of a plaintiff's cause of action in the course of deciding whether an Ex parte Young suit can proceed in the face of a state's Eleventh Amendment defense.
Texas's broad understanding of the scope of this interlocutory appeal is not only unprecedented, more importantly, it flies in the face of the Supreme Court's reasoning in Verizon Maryland, Inc. v. Public Service Commission, 535 U.S. 635, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002). There, Verizon brought suit in federal district court, seeking relief from an order of the Maryland Public Service Commission. Id. at 640, 122 S.Ct. 1753. Verizon alleged that the Commission's order violated federal law. Id. In ruling that

the district court lacked jurisdiction to hear Verizon's action, the Fourth Circuit held, inter alia, that the Eleventh Amendment did not permit Verizon to sue individual commissioners in their official capacities. Id. In the words of the Supreme Court, the "Fourth Circuit suggested that Verizon's claim could not be brought under Ex parte Young, because the Commission's order was probably not inconsistent with federal 416*416 law after all." Id. at 646, 122 S.Ct. 1753. The Court swiftly rejected this reasoning, noting that "the inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the claim." Id. (emphasis added). On the contrary, the Court explained that "[i]n determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a `straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.'" Id. at 645, 122 S.Ct. 1753 (quoting Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (O'Connor, J., concurring in part and concurring in the judgment)) (alteration in original); see also Coeur d'Alene, 521 U.S. at 281, 117 S.Ct. 2028 ("An allegation of an ongoing violation of federal law where the requested relief is prospective is ordinarily sufficient to invoke the Young fiction." (emphasis added)). Thus, the Court made clear that analyzing the applicability of the Ex parte Young exception should generally be a simple matter, which excludes questions regarding the validity of the plaintiff's cause of action.
Texas attempts to distinguish Verizon, asserting that its arguments contesting the constitutionality of Title II and § 504 are appropriate for consideration in this interlocutory appeal, even though an argument that it has not violated those statutes would not be. We are not persuaded. Like other defenses to liability, the State's arguments do not challenge the district court's power under Ex parte Young to adjudicate Plaintiffs' claims. Rather, the State seeks to have Plaintiffs' Title II and § 504 claims dismissed on the merits on the ground that the statutes' substantive provisions are unconstitutional; such a disposition would not be a determination that the Ex parte Young exception is inapplicable or that the Eleventh Amendment bars a federal court from hearing Plaintiffs' action. In other words, resolution of the constitutional questions urged by Defendants is irrelevant to the question whether Texas's Eleventh Amendment immunity from suit has been infringed. Moreover, our refusal to consider the constitutional issues in this interlocutory appeal comports with the rationale for allowing an interlocutory appeal from denials of Eleventh Amendment immunity. Unlike a State's entitlement to Eleventh Amendment immunity from suit, the constitutionality of Title II and § 504 can be reviewed effectively on appeal from a final judgment. Cf. P.R. Aqueduct & Sewer Auth., 506 U.S. at 144-45, 113 S.Ct. 684 (explaining that the question of state-sovereign immunity is (1) conclusively determined by the denial of a motion to dismiss, (2) completely separate from the merits of the action, and (3) "effectively unreviewable on appeal from a final judgment"). We consequently follow the teaching of Verizon and hold that the constitutionality of the substantive provisions of Title II and § 504 is beyond the scope of this appeal.
2. The enforceability of § 1396a(a)(3) under § 1983
Finally, we consider Texas's assertion that the Eleventh Amendment bars Plaintiffs' surviving § 1983 claim because the due process provision of the Medicaid statute, § 1396a(a)(3), does not create a federal right enforceable under § 1983. Although couched in terms of sovereign immunity, the State's argument on this score is entirely devoted to attacking the district court's ruling that Plaintiffs can state an actionable claim under § 1983 to enforce § 1396a(a)(3). Even more so than Defendants' constitutional contentions, this argument centers on the merits of Plaintiffs' 417*417 § 1983 claim, not their use of Ex parte Young to seek injunctive relief despite the Eleventh Amendment. Moreover, other than their misinterpretation of Doe (which we exposed above), Defendants provide no support for the notion that, to determine the applicability of the Ex parte Young exception, we must review the district court's conclusion that a § 1983 action can be brought to enforce § 1396a(a)(3). On the contrary, at least one court of appeals has refused to broaden this type of interlocutory appeal to encompass the question whether alleged transgressions of the Medicaid statute can be vindicated under § 1983. See Rosie D. ex rel. John D. v. Swift, 310 F.3d 230, 233-34, 238 (1st Cir.2002) (opining that the issue of enforceability under § 1983 was not ripe for review). Similarly, we will confine ourselves to the question whether Plaintiffs have properly demonstrated jurisdiction under Ex parte Young.

D. The applicability of the Ex parte Young exception to Eleventh Amendment immunity
Left to address the simple question whether the district court correctly found that Plaintiffs properly have proceeded under Ex parte Young, we agree with the district court. Plaintiffs allege that Defendants' failure to admit them to the HCS and CLASS programs violates § 1396a(a)(3), Title II, and § 504. Further, they seek injunctive and declaratory relief.[10] Thus, the "complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." Verizon, 535 U.S. at 645, 122 S.Ct. 1753 (internal quotation marks omitted). Plaintiffs have therefore satisfied the Supreme Court's "straightforward inquiry," and we hold that the Eleventh Amendment does not apply to this suit. See P.R. Aqueduct & Sewer Auth., 506 U.S. at 146, 113 S.Ct. 684 ("Young and its progeny render the [Eleventh] Amendment wholly inapplicable to a certain class of suits.").
V. Conclusion
Accordingly, we AFFIRM the order of the district court denying that portion of Defendants' motion to dismiss that relies on the defense of Eleventh Amendment immunity.
EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting in part:
The majority opinion incorrectly concludes that the constitutionality of the federal law underlying an Ex parte Young suit is not properly considered as part of an Eleventh Amendment immunity analysis. To sustain a Young suit a plaintiff must allege an ongoing violation of valid, constitutional federal law. As I believe that Title II of the ADA was enacted beyond Congress's legislative authority, I would hold that the plaintiffs in this case ("the Plaintiffs") have failed to establish a valid Young suit against the defendant commissioners ("Texas") under Title II of the Americans with Disabilities Act ("ADA") and that Texas is entitled to Eleventh Amendment immunity as to that claim. However, because I believe § 504 of the Rehabilitation Act is valid Spending Clause legislation, I would hold that the Plaintiffs have properly alleged a Young suit under that statute. Further, I agree with the majority opinion that Texas's claim that the Medicaid Act does not provide for an individual cause of action is beyond the scope of this appeal and should 418*418 not be considered. Accordingly, I respectfully concur in part, and dissent in part.
I
This is an interlocutory appeal of an order denying Texas's claim of Eleventh Amendment immunity. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy Inc., 506 U.S. 139, 147, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (authorizing an interlocutory appeal of an order denying Eleventh Amendment immunity). As there is no final order in this case, we are limited to considering the question of whether Texas is entitled to Eleventh Amendment immunity from the Plaintiffs' suit. All other issues are beyond the scope of this appeal.
As part of this appeal, Texas challenges the constitutionality of both Title II of the ADA and § 504 of the Rehabilitation Act. Texas does not independently challenge the constitutionality of these statutes, which would be beyond the jurisdiction of this appeal. Instead, it challenges their constitutionality as part of its assertion of Eleventh Amendment immunity and its argument that the Plaintiffs have not properly alleged a suit under Ex parte Young. Texas argues that because the permissibility of a Young suit is premised on the assumption that the defendant state official is engaging in an ongoing violation of federal law, the question of the validity of that federal law is a proper subject of an Eleventh Amendment immunity analysis. I agree.

Under the Eleventh Amendment, "an unconsenting State is immune from suits brought in federal court by [its] own citizens as well as by citizens of another state." Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The Eleventh Amendment provides states with immunity from "the indignity" of being subjected to the "coercive process of judicial tribunals at the instance of private parties." Metcalf, 506 U.S. at 146, 113 S.Ct. 684 (citing Ex parte Ayers, 123 U.S. 443, 505, 8 S.Ct. 164, 31 L.Ed. 216 (1887)). The Supreme Court has held that the rule that "a State may not be sued without its consent is [such] a fundamental rule of jurisprudence ... that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given...." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (quoting Ex parte State of New York, 256 U.S. 490, 497, 41 S.Ct. 588, 65 L.Ed. 1057 (1921)) (emphasis omitted). Eleventh Amendment immunity extends to suits against state officials in their official capacities. See id. at 101, 104 S.Ct. 900 (A suit against a state official "is in fact against the sovereign if the decree would operate against the latter."). Therefore, "a suit against [a] state official[ ] that is in fact a suit against a State is barred regardless of whether it seeks damages or injunctive relief." Id. at 102, 104 S.Ct. 900.
One exception to this general rule is that "a suit challenging the constitutionality of a state official's action is not one against the State." Id.; see Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Under Ex parte Young, "an unconstitutional enactment is `void' and therefore does not impart to the officer any immunity from responsibility to the supreme authority of the United States." Pennhurst, 465 U.S. at 102, 104 S.Ct. 900 (internal quotations omitted). The Supreme Court has recognized that there is some "irony" in the fact that "an official's unconstitutional conduct constitutes state action under the Fourteenth Amendment" but does not under the Eleventh Amendment. Id. at 105, 104 S.Ct. 900. It, however, has 419*419 concluded that the Young doctrine is "necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to `the supreme authority of the United States.'" Id.
The Supreme Court, however, has sought to balance the need to hold state officials responsible to the "supreme authority of the United States" with states' "fundamental" right to immunity from private suit. To achieve this balance it has thus limited the scope of the Young exception. For example, a Young suit can only be brought to require a state official to "conform his future conduct of office to the requirements of" federal law, but may not be applied retroactively. Edelman, 415 U.S. at 664, 94 S.Ct. 1347; see Verizon Maryland Inc. v. Pub. Serv. Comm'n of Maryland, 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) (A Young suit requires the plaintiff allege "an ongoing violation of federal law and seek[] relief properly characterized as prospective.").
In crafting this limitation, the Supreme Court has noted that the "distinction between prospective and retroactive relief fulfills the underlying purpose of Ex parte Young while at the same time preserving to an important degree the constitutional immunity of the States." Pennhurst, 465 U.S. at 106, 104 S.Ct. 900. Further, it has noted the importance of consciously balancing these two important interests when applying the Young doctrine. See, e.g., id.; Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 270, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (noting that application of Young requires an "understanding of its role in our federal system"); see also Verizon, 535 U.S. at 649, 122 S.Ct. 1753 (Kennedy, J., concurring) ("Ex parte Young jurisprudence requires careful consideration of the sovereign interests of the State as well as the obligations of state officials to respect the supremacy of federal law.").
In Pennhurst State School & Hospital v. Halderman, the Supreme Court held that a plaintiff cannot vindicate state rights as part of a Young suit. Pennhurst, 465 U.S. at 106. After reviewing the policy justifications for the Young doctrine and noting the importance of balancing the competing interests outlined above, the Court concluded: "This need to reconcile competing interests is wholly absent, however, when a plaintiff alleges that a state official has violated state law. In such a case the entire basis for the doctrine of Young ... disappears." Id. (emphasis omitted). It further concluded, "[a] federal court's grant of relief against state officials on the basis of state law ... does not vindicate the supreme authority of federal law." Id. (emphasis added); see Saahir v. Estelle, 47 F.3d 758, 761 (5th Cir.1995) (noting that

"the only legitimate basis for federal court intervention, consistent with the Eleventh Amendment is the vindication of federal rights").
The Supreme Court has thus made it clear that if there are no federal rights for the plaintiff to vindicate then the justification for the Young exception is not present in the case and the state's right to Eleventh Amendment immunity should be honored. See Pennhurst, 465 U.S. at 106, 104 S.Ct. 900. The justification for a Young suit is also absent when the plaintiff alleges the ongoing violation of unconstitutional or otherwise invalid federal law. In such a case, there are no federal rights to vindicate and there can be no prospective relief under Young. Therefore, before we can determine whether a plaintiff seeks to vindicate "the supreme authority of the law" and before we can possibly balance the "sovereign interests of the State ... [with the] obligation[] of state officials to respect the supremacy of federal law," we 420*420 must first determine whether the plaintiff seeks to vindicate valid federal rights, and by implication whether the federal law underlying the Young suit is constitutional.
The majority opinion concludes that if we were to address the constitutionality of the statutes underlying the Plaintiffs' Young suit we would be impermissibly addressing the merits of their claims. The Supreme Court has specifically held that "the inquiry into whether a suit lies under Ex parte Young does not include an analysis of the merits of the claim." Verizon, 535 U.S. at 646, 122 S.Ct. 1753, see Coeur d'Alene, 521 U.S. at 281, 117 S.Ct. 2028 ("An allegation of an ongoing violation of federal law ... is ordinarily sufficient....").
Verizon, however, does not address the relevance of the constitutionality of the federal law underlying the Young suit. In Verizon, the Maryland Public Service Commission ("the Commission") argued that it was not subject to discipline under the provisions of the federal statute (The Telecommunications Act of 1996) underlying Verizon's Young suit. See Verizon, 535 U.S. at 646, 122 S.Ct. 1753. It did not argue that the law underlying the Young suit was unconstitutional or was otherwise not valid federal law. The Supreme Court held that the Commission had improperly argued the merits of the underlying claim—whether the Commission had violated the dictates of the Telecommunications Act—as part of its assertion of Eleventh Amendment immunity. Id. However, the proposed constitutional inquiry in this case is not a review of the merits of the Plaintiffs' substantive claims—whether Texas violated either Title II of the ADA or § 504 of the Rehabilitation Act. Rather, it is part of the inquiry into whether the Plaintiffs seeks to vindicate valid federal rights.
Further, the majority opinion fails to heed the Supreme Court's warning not to be held captive to the "mechanics of ... pleadings" and forget that our application of "the Young exception must reflect a proper understanding of [the doctrine's] role in our federal system and respect for state courts instead of a reflexive reliance on an obvious fiction." Coeur d'Alene, 521 U.S. at 270, 117 S.Ct. 2028. As the Court noted, to do so "would be to adhere to an empty formalism and to undermine the principle ... that the Eleventh Amendment immunity represents a real limitation on a federal court's federal question jurisdiction." Id. In blindly applying Verizon to this case, the majority opinion ignores the policy justifications behind the Young exception and needlessly subjects Texas to a suit in federal court without first determining whether the Plaintiffs seek to vindicate valid federal rights.
Additionally, there is no reason to delay resolving these issues. The Supreme Court has emphasized the importance of quickly resolving Eleventh Amendment claims because "the value to the States of their Eleventh Amendment immunity ... is for the most part lost as litigation proceeds past motion practice." See Metcalf, 506 U.S. at 145, 113 S.Ct. 684. This suggests that resolving the constitutionality of the federal law underlying the Young suit should be completed sooner rather than later. This is particularly true here because there is no policy reason for delaying the resolution of these issues. The constitutionality of these statutes is a purely legal question that can be resolved without the aid of either discovery or trial. Compare Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (authorizing interlocutory review of denials of qualified immunity because "[a]ll [the court] need determine is a question of law") and Johnson v. Jones, 515 U.S. 304, 317, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) 421*421 ("[I]mmunity appeals interfere less with the final judgment rule if they are limited to cases

presenting neat abstract issues of law."), with Metcalf, 506 U.S. at 147, 113 S.Ct. 684 (holding that "factual complexities" provide no excuse for refusing to resolve a claim of Eleventh Amendment immunity).
Further, appellate courts routinely resolve constitutional issues in interlocutory appeals as part of determining whether Congress has validly abrogated states' Eleventh Amendment immunity pursuant to their authority under § 5 of the Fourteenth Amendment. See e.g., Reickenbacker v. Foster, 274 F.3d 974, 979 (5th Cir.2001) (finding that Congress went beyond its § 5 powers by abrogating states' Eleventh Amendment immunity under Title II of the ADA). It is similarly appropriate to resolve these constitutional issues during this appeal.
The Government suggest that if we were to decide that the constitutionality of these statutes is properly part of an Eleventh Amendment immunity analysis we should remand to the district court so that it may consider and address these issues. The Supreme Court, however, has held that an "Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar [] that it need not be raised in the trial court." See Edelman, 415 U.S. at 678, 94 S.Ct. 1347 (ruling on an Eleventh Amendment immunity claim raised for the first time in the appellate court). Further, as these are purely legal questions which would be reviewed de novo in a future appeal there is no reason to remand for a ruling by the district court.
Accordingly, I would hold that a challenge to the constitutionality of a statute underlying a Young suit is a proper subject of an Eleventh Amendment immunity analysis and that consideration of such a challenge is within the scope of an interlocutory appeal from the denial of a claim of Eleventh Amendment immunity. Texas challenges the constitutionality of both Title II of the ADA and § 504 of the Rehabilitation Act. As I believe these constitutional challenge are within the scope of this appeal, I will address the merits of Texas's contentions.
II
Texas challenges the constitutionality of Title II of the ADA. It argues that Title II was enacted beyond the scope of Congress's authority under both § 5 of the Fourteenth Amendment and the Commerce Clause. See 42 U.S.C. § 12101(b)(4) (invoking both Congress's § 5 authority and Commerce Clause power in enacting the ADA). Texas also argues that Title II improperly impedes on state authority in violation of the Tenth Amendment.
A
Texas first argues that we should extend our ruling in Reickenbacker v. Foster, 274 F.3d at 976 (holding that Title II of the ADA was enacted beyond Congress authority under § 5 for purposes of abrogating states Eleventh Amendment immunity), to this case and hold that Congress acted beyond its § 5 authority in enacting Title II. Plaintiffs and the Government argue that Reickenbacker is not controlling because in that case we did not engage in a full § 5 analysis. See id. at 982 n. 60 (refusing to consider Congressional findings of discrimination by local entities in § 5 abrogation analysis because local entities cannot assert sovereign immunity). Further they argue that our decision in Reickenbacker has been, at least partially, superseded by the Supreme Court's recent decision in Tennessee v. Lane, ___ U.S. ___, 124 S.Ct. 1978, 1992, 158 L.Ed.2d 820 (2004) (finding that "extensive record of 422*422 disability discrimination" by states justified "prophylactic legislation"), and argue that, in light of Lane, Title II's accommodation requirement is a "congruent and proportional" response to irrational discrimination against the disabled by state and local public entities.
By its own terms, Reickenbacker cannot simply be extended to this case. In Reickenbacker, we held that Title II of the ADA was enacted beyond the scope of Congress's § 5 powers for purposes of abrogating states' Eleventh Amendment immunity. See Reickenbacker, 274 F.3d at 982-83 (finding that because Congress never established that states engaged in unconstitutional discrimination against the disabled

Title II's "affirmative accommodation obligation on the part of public entities" was enacted beyond Congress's § 5 authority); cf. Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 367-68, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) ("States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions towards such individuals are rational.").
We, however, noted that "Title II of the ADA could still be a valid exercise of Congress's § 5 power, but simply not provide the ... power to abrogate" states' Eleventh Amendment immunity. See Reickenbacker, 274 F.3d at 982 n. 60. This limiting language was premised on our refusal to review Congressional findings as to discrimination by local entities as part of that § 5 analysis because local entities cannot claim Eleventh Amendment immunity. See id.; see also Garrett, 531 U.S. at 369, 121 S.Ct. 955 ("[Local] entities are subject to private claims for damages under the ADA without Congress ever having to rely on § 5.... It would make no sense to consider constitutional violations on their part, as well as by the States themselves, when only the States are the beneficiaries of the Eleventh Amendment."); but see Lane, 124 S.Ct. at 1991 n. 16 (suggesting that "constitutional violations on the part of nonstate governmental actors" is "relevant" to this inquiry). In contrast, "the analysis of whether Congress has the power to enact legislation requires [an] inquiry into constitutional violations by [local] entities in addition to entities entitled to Eleventh Amendment immunity." Reickenbacker, 274 F.3d at 982 n. 60 (emphasis added) (quoting Thompson v. Colorado, 258 F.3d 1241, 1253 n. 7 (10th Cir.2001), republished at 278 F.3d 1020). This inquiry was absent from Reickenbacker and must be included here to determine whether Title II is proper § 5 legislation.
Section 5 grants Congress the power "to enforce" the substantive guarantees of the Fourteenth Amendment through "appropriate legislation." Garrett, 531 U.S. at 365, 121 S.Ct. 955. In exercising this power, Congress is not limited to remedying violations of the substantive rights guaranteed by the Fourteenth Amendment. See Katzenbach v. Morgan, 384 U.S. 641, 648-49, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966). "Congress' power `to enforce' the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text." Garrett, 531 U.S. at 365, 121 S.Ct. 955 (quoting Kimel v. Florida Bd. of Regents, 528 U.S. 62, 81, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000)). "In other words, Congress may enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct." Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 727-28, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003).
423*423 There are limits on Congress's power to pass prophylactic legislation. Congress may not pass prophylactic legislation that is in effect a "substantive redefinition of the Fourteenth Amendment right at issue." Id. at 728, 123 S.Ct. 1972; see City of Boerne v. Flores, 521 U.S. 507, 519, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) ("Congress does not enforce a constitutional right by changing what the right is."). "Accordingly, § 5 legislation reaching beyond the scope of § 1's actual guarantees must exhibit `congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.'" Garrett, 531 U.S. at 365, 121 S.Ct. 955 (quoting City of Boerne, 521 U.S. at 520, 117 S.Ct. 2157).
The first step in this analysis is to identify the scope of the constitutional right to be protected. Id. The Supreme Court has concluded that "classifications based on disability violate [the Fourteenth Amendment] if they lack a rational relationship to a legitimate governmental purpose." Lane, 124 S.Ct. at 1988; see Garrett, 531 U.S. at 367, 121 S.Ct. 955 ("States are not required ... to make special accommodations for the disabled, so long as their actions toward such individuals are rational."). Congress thus may seek through its § 5 power to enforce a prohibition on "irrational disability discrimination." Lane, 124 S.Ct. at 1988.[1]
The next step is to determine "whether Congress identified a history and pattern of unconstitutional ... discrimination by the States against the disabled." Garrett, 531 U.S. at 368, 121 S.Ct. 955. The Supreme Court, in Tennessee v. Lane, appears to have resolved this question. Relying almost exclusively on federal case law, the Court concluded that "Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state services and programs...." Lane, 124 S.Ct. at 1989. It

found in the case law examples of irrational discrimination by states against the disabled in the contexts of: voting; marriage; jury eligibility; state mental institutions; zoning decisions; public education; the penal system; and access to the judicial system. Id. at 1989.[2] The Supreme Court has thus concluded that the "inadequate provision of public services and access to public facilities [for the disabled are] appropriate subject[s] for prophylactic legislation." Id. at 1992.
The final step in this analysis is to determine whether Title II is a congruent and proportional response to irrational discrimination by states against the disabled as 424*424 identified in Lane. See Lane, 124 S.Ct. at 1992 ("The only question that remains is whether Title II is an appropriate response to this history and pattern of unequal treatment."); see City of Boerne, 521 U.S. at 530, 117 S.Ct. 2157. In outlining this test, the Supreme Court has counseled: "The appropriateness of remedial measures must be considered in light of the evil presented. Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one." Id. at 530, 117 S.Ct. 2157. To survive scrutiny, Title II must be tailored to remedy or prevent the "identi[fied] conduct transgressing the Fourteenth Amendment's substantive provisions." Coll. Sav. Bank v. Florida Prepaid Post-secondary Edu. Expense Bd., 527 U.S. 666, 639, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999); see City of Boerne, 521 U.S. at 520, 117 S.Ct. 2157 ("There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.") (emphasis added).
The Supreme Court concedes in Lane, that taken as a whole, Title II may not be permissible § 5 legislation. See Lane, 124 S.Ct. at 1992 ("[T]he fact that Title II applies not only to public education and voting-booth access but also to seating at state-owned hockey rinks indicates that Title II is not appropriately tailored to serve its objectives."); but see id. at 1992-93 (refusing to consider the constitutionality of Title II as a whole). This conclusion is consistent with the Supreme Court's case law. In finding that the Religious Freedom Restoration Act of 1993 was not permissible § 5 legislation the Supreme Court noted that the act's "[s]weeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description regardless of subject matter." City of Boerne, 521 U.S. at 532, 117 S.Ct. 2157. Title II's coverage is just as sweeping. It regulates, by it own terms, "any State or local government; any department, agency, special purpose district, or other instrumentality of a State or local government." See 42 U.S.C. § 12131(1). It regulates every state, every local government, and every state or local agency in the United States regardless of whether that entity (or one like it) has ever engaged in irrational disability discrimination. Taken as a whole, there can be little doubt that "the accommodation obligation imposed by Title II ... far exceeds that imposed by the Constitution" and is not a congruent and proportional response to the findings of irrational discrimination by states as outlined in Lane. See Reickenbacker, 274 F.3d at 983.
Ordinarily this would have been the end of the inquiry. Until Lane, the constitutionality of a statutory provision was considered as a whole. See e.g., Garrett, 531 U.S. at 365-74, 121 S.Ct. 955 (applying § 5 analysis to Title I as a whole); City of Boerne, 521 U.S. at 529-36, 117 S.Ct. 2157 (applying § 5 analysis to RFRA as a whole). However, in Lane, the Supreme Court took a different approach. While admitting that taken as a whole Title II may "not [be] appropriately tailored to serve its objectives," it concluded that as-applied in some circumstances Title II is appropriate § 5 legislation. See Lane, 124 S.Ct. at 1992-93. Specifically, it held that "Title II unquestionably is valid § 5 legislation as it applies to the class of cases implicating the accessibility of judicial services." Id. at 1993. It then refused to address the application of Title II in any other circumstance. See id. The Supreme Court has thus structured a new test involving an "as-applied analysis" whereby courts do not evaluate the constitutionality of the statute as written, but instead posit "a hypothetical statute ... that applies only to" the relevant circumstance. 425*425 See id. at 1993 n. 18 (holding that courts "need not examine the full breath of the statute at once"); see also id. at 2005 (Rehnquist J., dissenting) (acknowledging the change in approach).
As this is a brand new approach to considering the constitutionality of a statute there is a dearth of precedent on which to rely in considering how to apply this test. However, Lane itself provides a roadmap for how to appropriately determine whether Title II, as-applied to the circumstances of this case, is appropriate § 5 legislation. In Lane, the Court first referred back to its findings regarding "unequal treatment of disabled persons in the administration of judicial services." Id. at 1993. It then concluded that

Title II's requirement that states take "reasonable measures to remove architectural and other barriers to accessibility" is appropriate legislation because as-applied it is a congruent and proportional response to the Court's findings of irrational discrimination by states in the administration of judicial services. See id. at 1993. The Court thus identified the specific constitutional problem to be remedied (as evidenced by its findings) and then evaluated Title II as it regulates that specific problem. See id. at 1994.
The Supreme Court identified eight general areas where there is a demonstrated history of irrational discrimination by states against the disabled: voting; marriage; jury eligibility; state mental institutions; zoning decisions; public education; the penal system; and access to the judicial system. See id. at 1989. The only one of these areas possibly applicable to this case is state mental institutions. The Court found that there is a "documented history" of unconstitutional discrimination by state agencies in the settings of "unjustified commitment" and "the abuse and neglect of disabled persons committed to state mental institutions." It documented this history by citing two of its cases: Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), and Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982).
In Jackson v. Indiana, the petitioner, Theon Jackson, had been committed to a state mental institution for an indefinite period of time on account of his incompetency to stand trial for petty burglary. Jackson, 406 U.S. at 717-20, 92 S.Ct. 1845. The trial judge ordered Jackson confined to a state mental institution until it was determined that he was competent to stand trial. Id. at 719, 92 S.Ct. 1845. Based on the evaluation of Jackson by two physicians, he would likely never be competent to stand trial and would thus be confined to a mental institution for the rest of his life. Id. The Supreme Court held that Indiana violated Jackson's rights to equal protection and due process by condemning him to permanent institutionalization without the benefit of a civil commitment hearing applying the proper state standards governing forced institutionalization. Id. at 730-31, 92 S.Ct. 1845. In making its ruling, the Court did not question the ability of states to order institutionalization or the normal process by which states determine whether an individual should be committed. See id. at 736, 92 S.Ct. 1845 ("States have traditionally exercised broad power to commit persons found to be mentally ill."). Instead, it concluded that the method by which Jackson had been committed violated his constitutional rights.
In Youngberg v. Romeo, Nicolas Romeo, who was confined to a state mental institution pursuant to proper procedures, sued the state mental institution to recover damages for injuries caused by his own violent behavior and attacks from other residents of the facility. Romeo, 457 U.S. 426*426 at 311, 102 S.Ct. 2452. The Court considered the question of whether Romeo, as an "involuntarily committed retarded person," had a "constitutionally protected liberty interest in safety, freedom of movement and training within the institution." Id. at 314-15, 102 S.Ct. 2452. It concluded that institutionalized persons like Romeo do have these constitutional rights and that states are obliged to protect them. Id. at 324, 102 S.Ct. 2452 However, recognizing the difficulty of operating a state mental institution and balancing the protection of these rights with the orderly operation of such a facility, the Court concluded that the decisions of the professional personnel who operate these institutions "are entitled to a presumption of correctness." Id. While the Court delineated the rights possessed by institutionalized persons when they are in forced state custody, it did not reprimand the state mental institution for its decisions concerning the care of Romeo or other similarly situated persons.
These two cases relate solely to the process by which a disabled person is committed to a state mental institution and the treatment of that person in such a facility once institutionalized. To the extent that Title II regulates the process by which disabled persons are institutionalized and their treatment in state mental institutions once they have been committed it may be a congruent and proportion response to the irrational discrimination highlighted in Jackson and Romeo.[3] Such an analysis must be left to another day because the defendant commissioners in this case neither run a state mental institution nor do they make decisions regarding forced institutionalization. They run Texas's Home and Community-based Waiver Services program which provides home and community based services for disabled individuals. The Plaintiffs seek to participate in this program, they do not seek to overturn a decision forcing their institutionalization nor do they seek to challenge the care they receive in a state mental institution.

Title II's regulation of Texas's decisions regarding participation in this program has nothing to do with either forced institutionalization or the treatment of disabled individuals who reside in state mental institutions. Therefore, even under the broadest understanding of these terms, Title II, to the extent that it regulates Texas's decisions regarding participation in the Medicaid programs at issue in this case, cannot be considered to be a "congruent and proportional" response to the findings of irrational disability discrimination by states and local entities as outlined in Lane.
B
Texas next argues that because Title II does not regulate "economic activity" it is not a valid regulation of commerce under the Commerce Clause. See United States v. Morrison, 529 U.S. 598, 613, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) ("[C]ases have upheld Commerce Clause regulation of intrastate activity only where the activity is economic in nature."); United States v. Lopez, 514 U.S. 549, 559-60, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Plaintiffs and the Government counter that because state entities, including the defendant agencies, covered by Title II engage in economic activity they can be regulated by the federal government, and that the economic activity of disabled individuals who are unable to access public services sufficiently impact interstate commerce to justify Congress's regulation. Further the 427*427 Government argues that even if Title II does not sufficiently regulate economic activity to be justified under the Commerce Clause, the ADA as a whole does and Title II is such an integral part of the ADA's permissible regulation that Title II is itself constitutional. See Hodel v. Indiana, 452 U.S. 314, 329 n. 17, 101 S.Ct. 2376, 69 L.Ed.2d 40 (1981); see also Lopez, 514 U.S. at 561, 115 S.Ct. 1624; Groome Resources Ltd. v. Parish of Jefferson, 234 F.3d 192, 210 (5th Cir.2001).
"In reviewing an act of Congress passed under its Commerce Clause authority, we apply the rational basis test...." Groome, 234 F.3d at 203. Therefore, "we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds." Morrison, 529 U.S. at 607, 120 S.Ct. 1740.
In United States v. Lopez and United States v. Morrison the Supreme Court outlined the framework for evaluating whether a federal law constitutes permissible Commerce Clause legislation.[4] There are three broad categories of activity that Congress may regulate under its commerce power: 1) channels of interstate commerce; 2) the instrumentalities of interstate commerce, or persons or things in interstate commerce; 3) those activities having a substantial relation to interstate commerce, i.e. those activities that substantially affect interstate commerce. Id. at 609, 120 S.Ct. 1740.
Title II provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity." 42 U.S.C. § 12132. Like the statutes in both Lopez and Morrison Title II cannot be justified under either of the first two types of permissible Commerce Clause legislation because it solely regulates intrastate activity. Plaintiffs and the Government instead rely on the argument that Title II regulates activity that "substantially affects interstate commerce."
The Supreme Court has outlined four factors to be taken into account when deciding whether Congress is regulating an activity that substantially affects interstate commerce: 1) whether the activity regulated is "economic [in] nature"; 2) whether the statute has an "express jurisdictional element" limiting its reach to activities with a connection to interstate commerce; 3) whether the statute's "legislative history contains express congressional findings regarding the effects upon interstate commerce"; and 4) whether the link between the regulated activity and interstate commerce are too attenuated to be considered a regulation of interstate commerce. Morrison, 529 U.S. at 610-12, 120 S.Ct. 1740 (restating the requirements outlined in Lopez); see Groome, 234 F.3d at 203-04 (recognizing the Lopez-Morrison framework).
The first factor is whether the regulated activity is economic in nature. "This query derives from the general Lopez requirement that the regulated intrastate activities, `arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate

commerce.'" Groome, 234 F.3d at 205 (quoting Lopez, 514 U.S. at 561, 115 S.Ct. 1624) (emphasis added). In Morrison, the Supreme Court specifically emphasized 428*428 the importance of this factor in this framework. See Morrison, 529 U.S. at 610, 120 S.Ct. 1740 ("[A] fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case.").
We have interpreted Lopez to define two types of economic activity: 1) activity that is in any sort of economic enterprise; and, 2) activity that exists as an essential part of a larger regulation of economic activity, in which the regulatory scheme would be undercut unless the intrastate activity were regulated. See Groome, 234 F.3d at 205 (citing Lopez, 514 U.S. at 561, 115 S.Ct. 1624). Economic activity as defined by Lopez and understood by Groome requires a "commercial transaction," see Lopez, 514 U.S. at 561, 115 S.Ct. 1624, or "commercial intercourse," see Groome, 234 F.3d at 206; see also United States v. Ho, 311 F.3d 589, 598-99 (5th Cir.2002) (emphasizing that Congress may only regulate "commercial activity"). "It bears reminding that at issue is the power to regulate interstate commerce. In that sense commerce is `the exchange of goods and services' or `trade and other business activities.'" GDF Realty Investments Ltd. v. Norton, 326 F.3d 622, 629 (5th Cir.2003) (quoting BLACK'S LAW DICTIONARY 263 (7th Ed.1999)).
Texas argues that Title II does not regulate economic or commercial activity, rather, by its own terms, it regulates "participation in ... services, programs, or activities of a public entity." See 42 U.S.C. § 12132. While admitting that states often engage in commercial activity both as an entity in the market and as a regulator, Texas argues that its decisions concerning who is eligible to participate in its programs and receive its entitlements do not constitute commercial activity as contemplated by Lopez and Morrison. These decisions do not involve "commercial transactions," see Lopez, 514 U.S. at 561, 115 S.Ct. 1624, nor do they regulate "commercial intercourse," see Groome, 234 F.3d at 205-06 (finding that zoning decisions regulate "the commercial transaction[s] of purchasing a home and the commercial rental of housing").
Plaintiffs and the Government first claim that Title II is a regulation of an economic enterprise. They argue that public entities like the defendants engage in the commercial activity of hiring and paying staff, purchasing or renting facilities, and borrowing money. Although all of this is true, none of it is relevant. Texas does not challenge the provisions of the ADA that regulate its commercial activity, namely Title I, which regulates its hiring practices. See United States v. Mississippi Dep't of Public Safety, 321 F.3d 495, 500-01 (5th Cir.2003) (finding that employment is commerce, and that Title I is permissible commerce clause legislation as applied to states). It only challenges Title II, which regulates its decisions as to who receives the benefits of its social services. Title II does not regulate any of the activities highlighted by the Plaintiffs.
Further, if this argument was accepted there would be no limit on Congress's ability to regulate state entities. All state entities, including state legislatures and courts, hire and pay staff and engage in other commercial and economic activity such as purchasing goods and services. One would not conclude that Congress can therefore regulate all the activities of state legislatures and courts. Although, under the commerce clause, Congress may regulate state entities as they engage in commercial transactions, Congress does not have carte blanche authority to regulate state entities in all their activities— commercial or not—simply because these entities sometimes engage in commercial transactions. See discussion infra.
429*429 Plaintiffs next counter that Title II regulates economic activity because discrimination against disabled persons substantially affects those persons' commercial and economic activities and the national economy. Plaintiffs argue that when disabled individuals are denied access to public services it affects their ability to engage in economic activity which affects interstate commerce. This argument misreads Lopez. The relevant question is not whether the regulated activity affects commerce, it is whether the regulated activity is commerce. See Lopez, 514 U.S. at 560-61, 115 S.Ct. 1624; GDF Realty, 326 F.3d at 630 (noting that the key question is "whether the nature of the regulated activity is economic"). The "substantially affecting" language is only relevant once it is determined that economic activity is being regulated and the court must determine whether that intrastate economic activity substantially affects

interstate commerce. See Lopez, 514 U.S. at 560, 115 S.Ct. 1624 ("Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.") (emphasis added); see also Morrison, 529 U.S. at 613, 120 S.Ct. 1740 ("[O]ur cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.") (emphasis added). The substantially affecting test is inapplicable when determining whether the federal law regulates economic activity.
Moreover, in Morrison, the Supreme Court explicitly rejected this kind of reasoning.[5] First noting that "Congress found that gender-motivated violence affects interstate commerce," it rejected the use of "reasoning that ... [employs] the but-for causal chain from the initial occurrence of violent crime ... to every attenuated effect upon interstate commerce." Morrison, 529 U.S. at 615, 120 S.Ct. 1740. It noted that employment of this "reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption." Id. Further it could "be applied equally as well to family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtably significant." Id. at 615-16, 120 S.Ct. 1740. This is exactly what Congress seeks to do with Title II, namely regulate the traditional activities of states by linking their non-economic activities to some tangential effect they have on the national economy. This is not permitted under the Commerce Clause.
Finally, Plaintiffs point to this Court's decision in Groome Resources v. Parish of Jefferson as evidence that Congress can regulate discrimination by state entities against the disabled. In Groome, we considered a commerce clause challenge to the application of § 3604(f)(3)(B) of the Fair Housing Amendments Act ("FHAA") to zoning decisions. This provision prohibits the refusal to make reasonable accommodations in rules or policies that prevent disabled persons from full and equal use of dwellings. See 42 U.S.C. § 3604(f)(3)(B). Plaintiffs, a local zoning board, challenged the constitutionality of the provision as applied to their zoning decisions. We held that FHAA's regulation of zoning decisions is a regulation of commerce because zoning 430*430 decisions regulate the economic activity of purchasing a home or renting property. See Groome, 234 F.3d at 205-06. That is not the case here. The FHAA, as applied in Groome, applied to state commercial regulation. The zoning decisions in Groome were fundamentally commercial in nature because they regulated obviously commercial activity, namely "the commercial transaction of purchasing a home and the commercial renting of housing." See id. at 205. Thus, Groome stands solely for the proposition that Congress may regulate states' regulation of commercial activity under the Commerce Clause. But see New York v. United States, 505 U.S. 144, 166, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) ("The allocation of power contained in the Commerce Clause ... does not authorize Congress to regulate state governments' regulation of interstate commerce."). It does not stand for the proposition that it can regulate states' non-economic decisions as those decisions are not by their nature commercial regulation.
The Government claims that Title II fits under the second category of economic regulation, non-economic regulation that is integral part of a permissible regulation of commerce. It argues that Title II is an integral part of the ADA's permissible regulation of economic activity. See Hodel, 452 U.S. at 329 n. 17, 101 S.Ct. 2376 ("[A] complex regulatory program... can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal. It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test."); see also Lopez, 514 U.S. at 561, 115 S.Ct. 1624; GDF Realty, 326 F.3d at 633.
The Government argues that the ADA is a comprehensive economic regulation of the activities of the disabled in the national economy. It further argues that in providing Title II services states often compete with private entities in areas such as housing, education, transportation, communication and health services such that exempting the states from the ADA's prohibitions against disability discrimination would unduly burden private sector entities in relation to state agencies. This, it argues, would undermine the willingness of private entities to voluntarily engage in behavior benefiting disabled persons. Finally, it argues that allowing disability discrimination in the providing of public services perpetuates stereotypical attitudes about the disabled that will spill over into the private sector and undermine the effectiveness of both Title I and III. These arguments fail.

Title I's regulation of employment discrimination is permissible Commerce Clause legislation, see Mississippi Dep't of Public Safety, 321 F.3d at 500-01 (finding that employment is commerce, and that Title I is permissible commerce clause legislation as applied to states). Title III does not apply to states, see Bloom v. Bexar County, Texas, 130 F.3d 722, 726-27 (5th Cir.1997), and Congress specifically limited the application of Title III's regulation of privately owned places of public accommodation to those involved in commerce, see 42 U.S.C. § 12181; cf. Spector v. Norwegian Cruise Line Ltd., 356 F.3d 641, 644 (5th Cir.2004). The ADA, considered as a whole, is reasonably considered permissible Commerce Clause legislation. However, Title II is not an integral or necessary part of the ADA's economic regulation. See Lopez, 514 U.S. at 561, 115 S.Ct. 1624; GDF Realty, 326 F.3d at 631 (noting that Congressional regulation is permissible only if "failure to regulate the... activity could `undercut' the entire scheme").
431*431 Title II regulates the provision of public services and more specifically states' decisions regarding who receives the benefits of their public services. State governments do not compete with private entities in the provision of these services. For example, states do not compete with the private sector in the distribution of the free health care provided by the defendants. Although low-cost health care providers and charities provide similar services to similar people, in no sense are states competing with these entities in the health care market.[6] States are simply providing a government created entitlement. Therefore states' decisions in this realm cannot possibly competitively disadvantage private sector entities as they are not competing with states in any commercial market. Regardless, private sector entities are bound by the requirements of the ADA whether they are competitively disadvantaged or not. Even if states are not regulated by the ADA, all private entities are subject to its restrictions. In fact, private entities are subject to broader restrictions than states because Title III applies exclusively to them. See Bloom, 130 F.3d at 726-27 (finding that Title III only applies to private entities). Further, when states do directly compete with private entities in a market states are engaging in commercial activity that can be regulated under the Commerce Clause. See, e.g., Mississippi Dep't of Public Safety, 321 F.3d at 500-01 (finding that Congress can regulate states as they act in the "national labor market"); cf. Reno v. Condon, 528 U.S. 141, 151, 120 S.Ct. 666, 145 L.Ed.2d 587 (2000) (finding that Congress can regulate states as "the owners of databases.").
Additionally, although the Government is correct that allowing discrimination against disabled individuals in the providing of public services helps entrench negative stereotypes against the disabled that may spill over into the private sector, Congress has passed laws forbidding such discrimination by private entities, including Title I and III of the ADA.[7] Further, although changing those negative stereo-types is a noble goal it is not in of itself economic or commercial regulation. Title II is not an integral part of the ADA's economic regulation of disability discrimination as Congress can achieve its permissible goals solely through the use of commercial regulation.
This is in contrast to the federal regulations in Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). Wickard considered the application of restrictions on production of wheat to a farmer growing wheat for personal use. The Supreme Court noted in Lopez that although Wickard was not engaging in economic activity, the purpose of Congress's legislation was economic in nature, namely to regulate the price of wheat. See Lopez, 514 U.S. at 560, 115 S.Ct. 1624. Restricting Wickard's non-economic production and personal consumption of wheat was necessary to achieve Congress's economic goal of propping up the price of wheat. See Wickard, 317 U.S. at 128, 63 S.Ct. 82 (finding that widespread "home-consumed wheat would have a substantial influence on price and market conditions"). That is not the case 432*432 here, Congress's permissible economic purposes, namely regulating discrimination in interstate commerce, can be achieved solely through prohibitions on discrimination by entities (including states) engaged in commercial activity.
"[B]y its terms [Title II] has nothing to do with `commerce' or any sort of economic enterprise," nor is it "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." See Lopez, 514 U.S. at 561, 115 S.Ct. 1624.

The second factor is whether the regulated activity has an express jurisdictional element limiting its reach to activities with a connection to interstate commerce. The parties agree that there is no such jurisdictional element in Title II. Plaintiffs and the Government argue that this is not particularly telling because Title II so clearly regulates interstate commerce. As discussed above, this is not correct. Congress made no explicit restriction on Title II's applicability to services and benefits that are economic in nature and substantially affect interstate commerce.[8]
The third factor is whether the legislative history contains express congressional findings regarding the regulated activities effects upon interstate commerce. Both Plaintiffs and the Government cite to ample congressional findings indicating that the purpose of the ADA is to regulate interstate commerce. They also cite to findings that disability discrimination leads to "unnecessary expenses resulting from dependency and non-productivity." See 42 U.S.C. § 12101(a)(9). However, as Texas points out, they cite to no Congressional findings that connect disability discrimination in the providing of social services to interstate commerce. In fact, the findings they cite relate to employment discrimination. See, e.g., S. Rep. No. 101-116, at 17 (reprinted in 1990 U.S.C.C.A.N. 267, 325-26) ("Certainly, the elimination of employment discrimination and the main streaming of persons with disabilities will result in more persons with disabilities working....") (emphasis added).
Considering most of the ADA, as a general proposition, regulates commerce, congressional findings that the ADA's general purpose is to regulate commerce are not terribly helpful, and findings related to employment discrimination are wholly irrelevant. Although it would be too much to say that Congress made no relevant findings that can be interpreted as connecting Title II to interstate commerce, it is safe to say that Plaintiffs and the Government have highlighted no "legislative history contain[ing] express congressional findings regarding [Title II's] effects upon interstate commerce." See Morrison, 529 U.S. at 612, 120 S.Ct. 1740 (emphasis added). The Supreme Court emphasized the need for express findings because the purpose of reviewing these findings is to "enable us to evaluate the legislative judgment that the activity in question substantially affects interstate commerce, even though no such substantial effect is visible to the naked eye." Morrison, 529 U.S. at 612, 120 S.Ct. 1740. Plaintiffs and the Government highlight no findings that negate the obvious, that Title II does not regulate economic activity.
The fourth and final factor is whether the link between the regulated activity and interstate commerce is too attenuated to be considered a regulation of interstate commerce. This factor relates to whether the regulated economic activity substantially 433*433 affects interstate commerce and is only applicable if Congress is regulating economic activity. The Supreme Court did not apply this factor when striking down the statutes in Lopez and Morrison and it is also inapplicable in this case.
Title II of the ADA is not permissible Commerce Clause legislation to the extent that it regulates states' decisions regarding who will participate in or receive the benefits of state entitlement programs.
C
I do not believe that Congress acted within its powers under the Commerce Clause in enacting Title II of the ADA. I further do not believe that it acted within its authority under § 5 of the Fourteenth Amendment as applied in this case. Consequently, I do not believe that Title II is valid federal law to the extent that it regulates Texas's decisions regarding participation in the programs at issue in this case, and I do not believe that Plaintiffs have alleged a continuing violation of valid federal law.[9] Thus, I would reverse the district court's ruling as to Title II and hold that Texas has Eleventh Amendment immunity from Plaintiffs' Title II claim.
III
Texas asserts that § 504 of the Rehabilitation Act is invalid Spending Clause legislation.[10] It argues that because conditions on federal funding must be "related" to the funding received by states Congress

cannot broadly place conditions on all federal funding accepted by states; it must instead directly tie its conditions to the specific funding received by the state. Texas thus argues that because it "receive[s] no § 504 funding"[11] its receipt of federal Medicaid funding cannot constitutionally be conditioned by § 504. I disagree.
Under the Spending Clause, "Congress may attach conditions on the receipt of federal funds ... [and may] condition[] receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives." South Dakota v. Dole, 483 U.S. 203, 206, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987). Congress may condition the receipt of federal monies if the conditions: 1) are in "the general welfare"; 2) were "unambiguously" communicated such that "the States [are] ... cognizant of the consequences of" receiving the federal funding; 3) are related "to the federal interest in particular national projects or programs"; and, 4) are not otherwise barred by the Constitution. Id. at 207-08, 107 S.Ct. 2793.
Section 504 of the Rehabilitation Act provides that: "No otherwise qualified individual 434*434 with a disability in the United States ... 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...." 29 U.S.C. § 794(a). It specifically applies to state entities that receive federal funding. See 29 U.S.C. § 794(b)(1).
Texas concedes receiving federal financial assistance under the Medicaid Act to operate the state programs at issue in this case. It also implicitly concedes that it was aware of § 504 and its restrictions at all times it was receiving federal monies. Therefore, Texas does not argue that it was unaware that its receipt of federal money was governed by § 504, rather it argues that because the restrictions were not specifically tied to its Medicaid funding they were not part of its "contract" with the federal government. See Barnes v. Gorman, 536 U.S. 181, 186, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002) (comparing Congress's conditions on the receipt of federal money to a "contract" between the states and the federal government).
Texas incorrectly concludes that Congress may not generally condition the receipt of federal monies. Title VI of the Civil Rights Act of 1964, using language almost identical to that found in § 504, requires that no person on the basis of "race, color, or national origin [shall] be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d; see Barnes, 536 U.S. at 186, 122 S.Ct. 2097 (noting the Title VI and § 504 are "coextensive"). The Supreme Court has already held that Title VI is valid Spending Clause legislation. See Guardians Ass'n v. Civil Service Comm'n of City of New York, 463 U.S. 582, 598-99, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983) ("I note first that Title VI is spending-power legislation."). The Court reasoned that the conditions in Title VI were like any other conditions Congress could have made on the receipt of federal money. See id. at 599, 103 S.Ct. 3221 ("Title VI imposes no obligations but simply extends an option that potential recipients are free to accept or reject.") (internal quotations omitted). It did not appear to see a distinction between conditions specific to a particular allocation of federal money and those generally applicable to all federal monies available to states. See id. In fact, it concluded that Congress's purposes in enacting Title VI were related to the spending it provided. See id. ("Title VI rests on the principle that taxpayers' money, which is collected without discrimination, shall be spent without discrimination.").
It is no different with § 504. In § 504, Congress connects its funding of state-run programs with its prohibition on discrimination regarding participation in those programs. Congress does not seek to generally regulate the activities of the recipient state entities, or to regulate their activities unrelated to the use of federal funds. Instead, Congress seeks to control how the federal monies it provides are spent. Specifically, it seeks to ensure that the federal monies are not used to fund state programs that discriminate against the disabled. Congress's purpose and its conditions on the receipt of federal money are directly related. The fact that Congress sought to efficiently apply these conditions to all federal funding in one legislative act rather than in multiple ones has no effect on the constitutionality of its restrictions.

Section 504 of the Rehabilitation Act is valid Spending Clause legislation. Consequently, the Plaintiffs seek to vindicate 435*435 valid federal rights and have alleged an ongoing violation of valid federal law under Ex parte Young. I would therefore affirm the district court's ruling denying Texas's claim of Eleventh Amendment immunity.
IV
Texas argues that Plaintiffs cannot bring a Young suit under the Medicaid Act because the act does not provide an individual right of action. See Gonzaga v. Doe, 536 U.S. 273, 282, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) ("[A] plaintiff must assert the violation of a federal right, not merely a violation of federal law."); Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). And further contends that because the statute provides no cause of action the Plaintiffs have not properly alleged a Young suit.
Texas does not challenge the constitutionality of the Medicaid Act or its status as valid federal law. Instead Texas questions whether Congress has provided a means of seeking redress for violations of the act through private causes of action in federal courts. The question of whether Congress created such a cause of action goes beyond the "inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." See Verizon, 535 U.S. at 645, 122 S.Ct. 1753. Texas does not challenge Congress's authority to create such a cause of action, but only questions whether Congress exercised that authority with respect to the Medicaid Act. Texas's contention therefore does not address the balance between the supremacy of federal law and states' right to immunity from suit. Rather, it assumes the validity of the federal law underlying the Plaintiff's Young suit and questions whether federal courts, as a function of federal statutory law, can provide relief. This is a merits question that is beyond the scope of this appeal. See id. at 646, 122 S.Ct. 1753.
V
To sustain a Young suit a plaintiff must seek to "vindicate the supreme authority of federal law." Therefore, the constitutionality of the federal law underlying a plaintiff's Young suit is properly considered as part of an interlocutory review of a district court's refusal to grant a state Eleventh Amendment immunity. Title II, as a whole, is impermissible Commerce Clause legislation. It is also impermissible § 5 legislation asapplied to this case. Therefore, I do not believe that the Plaintiffs Young suit under Title II can be sustained and Texas is entitled to Eleventh Amendment immunity. I, however, believe that the Rehabilitation Act is valid spending clause legislation and that the Plaintiffs Young suit under this statute is proper. Finally, I believe that Texas's contention that the Medicaid Act does not provide an individual cause of action is beyond the scope of this appeal. I thus concur in part, and dissent in part.
[1] Plaintiffs filed a motion for class certification, which is still pending in the district court.
[2] We also refer to Defendants collectively as "Texas" or "the State."
[3] According to this subsection, a state's Medicaid plan must "provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness." 42 U.S.C. § 1396a(a)(3).
[4] While the district court did not expressly discuss Defendants' Eleventh Amendment-immunity defense to Plaintiffs' surviving § 1983 claim (for violation of § 1396a(a)(3)), since this claim was not dismissed, the court must have rejected that defense, probably believing that this claim was also permissible under Ex parte Young. On appeal, Defendants do not complain about this omission from the district court's opinion.
[5] We refer to the United States as "the government" in this opinion.
[6] Texas also cites Lewis v. N.M. Dep't of Health, 94 F.Supp.2d 1217 (D.N.M.2000). There, the court held that an Ex parte Young action could not be maintained under Title II because state officials are not proper defendants under the statute. Id. at 1230. Without engaging in

much analysis, the court relied on one circuit court opinion involving state officers sued in their individual capacities, see Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n. 8 (8th Cir.1999) (en banc), and several district court decisions. Lewis, 94 F.Supp.2d at 1230. While the Lewis court's judgment was upheld on appeal, the Tenth Circuit did not pass on this holding, since the plaintiffs had dropped their ADA claim. Lewis v. N.M. Dep't of Health, 261 F.3d 970, 975 (10th Cir.2001).
[7] See Henrietta D. v. Bloomberg, 331 F.3d 261, 288 (2d Cir.2003) (refusing to "embrace the state defendant's statutory claim that an individual sued in his or her official capacity under the doctrine of Ex parte Young is not a `public entity' subject to liability" under Title II and explaining that, "[t]he real party in interest in an official-capacity suit is the government entity. As a result, it is irrelevant whether the ADA would impose individual liability on the officer sued; since the suit is in effect against the `public entity,' it falls within the express authorization of the ADA." (citation omitted)); Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187-88 (9th Cir.2003) (following "the Sixth, Seventh, and Eighth Circuits in holding that Title II's statutory language does not prohibit [the plaintiff's] injunctive action against state officials in their official capacities"); Bruggeman, 324 F.3d at 912-13; Carten v. Kent State Univ., 282 F.3d 391, 396-97 (6th Cir.2002) (holding that "an official who violates Title II of the ADA does not represent `the state' for purposes of the Eleventh Amendment, yet he or she nevertheless may be held responsible in an official capacity for violating Title II"); Randolph v. Rodgers, 253 F.3d 342, 348 (8th Cir.2001) (citing Garrett's dictum and refusing to accept the contention that "because the statutory language of the ADA provides only for `public entity' liability, an Ex parte Young claim against the state officials in their official capacities, premised upon an ADA violation, must fail").
[8] Texas, relying on Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), also suggests that Title II's use of the phrase "public entity" evidences Congressional intent to preclude Ex parte Young actions to enforce the Act. But Seminole Tribe provides no comfort to the State. There, the Court merely explained that, "where Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte Young." Id. at 74, 116 S.Ct. 1114 (emphasis added). Here, Plaintiffs do not seek under Ex parte Young any remedies that have been limited by the terms of Title II. In addition, at least two other circuits have specifically rejected arguments, based on Seminole Tribe, that Congress intended to preempt Ex parte Young actions to enforce Title II. See Henrietta D., 331 F.3d at 289 ("In our view, Seminole Tribe does not bar Ex parte Young relief under Title II against a state official in her official capacity. Neither § 504 nor Title II displays any intent by Congress to bar a suit against state officials in their official capacities for injunctive relief, nor does either create a remedial scheme so elaborate that it could be thought to preclude relief under Ex parte Young."); Miranda B., 328 F.3d at 1188-89.
[9] The full sentence from the opinion reads, "We emphasized: `[T]o seek redress through § 1983, ... a plaintiff must assert the violation of a federal right, not merely a violation of federal law.'" Doe, 536 U.S. at 282, 122 S.Ct. 2268 (quoting Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997)) (alterations in original) (first emphasis added). Of course, Plaintiffs' Title II and § 504 claims do not arise under § 1983; both Title II and § 504 are enforceable directly through private causes of action. See Barnes v. Gorman, 536 U.S. 181, 185, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002).
[10] Defendants do not contend that the relief sought by Plaintiffs could have an impermissibly retroactive effect.
[1] In contrast, a higher standard of review may apply when other types of classifications or rights are at issue. See e.g., Hibbs, 538 U.S. at 728, 123 S.Ct. 1972 ("[S]tatutory classifications that distinguish between males and females are subject to heightened scrutiny."); Lane, 124 S.Ct. at 1992 ("[R]ight to the access to the courts ... call[s] for a standard of judicial review at least as searching ... [as] the standard that applies in sex-based classifications.").
[2] The Supreme Court has in the past required that Congress itself identify a history and pattern of discrimination by states. See Coll. Sav. Bank v. Florida Prepaid Post-secondary Edu. Expense Bd., 527 U.S. 666, 669, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) ("[F]or Congress to invoke § 5, it must identify conduct transgressing the Fourteenth Amendment's substantive provisions.") (emphasis added); see also, Garrett, 531 U.S. at 370-72, 121 S.Ct. 955 (rejecting the use of documents that are not "legislative findings" to establish "adverse, disparate treatment by state officials."). In Lane, the Supreme Court appears to have abandoned this requirement. See Lane, 124 S.Ct. at 1999 (Rehnquist, J. dissenting) (noting that "the majority identifies nothing in the legislative record that shows Congress was responding to widespread violations of the ... rights of disabled persons.").
[3] Title II, which regulates decisions regarding participation in state run services and programs, appears to regulate neither decisions regarding forced institutionalization or the care for disabled person in state mental institutions.
[4] In Lopez, the Supreme Court struck down the Gun-Free Zones Act of 1990 which criminalized the knowing possession of a firearm within a school zone. Lopez, 514 U.S. at 551, 115 S.Ct. 1624. In Morrison, it struck down the Violence Against Women Act which provided civil remedies for victims of gender-motivated violence. Morrison, 529 U.S. at 601, 120 S.Ct. 1740.
[5] We also explicitly rejected this reasoning in United States v. Ho. See Ho, 311 F.3d at 599 ("[A]ny imaginable activity of mankind can affect the alertness, energy, and mood of human beings, which in turn can affect their productivity in the workplace, which when aggregated together could reduce national economic productivity. Such reasoning would eliminate any judicially enforceable limit on the Commerce Clause, thereby turning that clause into what it most certainly is not, a general police power.").
[6] Nor would, for example, local police be in competition with a private security service, or a local fire department with a squad of volunteer firemen.
[7] States, like Texas, have also passed such laws. See e.g. Tex. Lab.Code. § 21.051 (forbidding employment discrimination based on disability); Tex. Prop.Code § 301.025 (forbidding discrimination based on disability in sale or rental of property); Tex. Health & Safety Code §§ 592.015, 592.016 (forbidding discrimination against mentally retarded individuals in both employment and housing).

[8] In contrast, Congress did limit the applicability of Title III's regulation of public accommodations to those involved in commerce. See 42 U.S.C. § 12181.
[9] Because I find that Title II was enacted beyond Congress's legislative authority I do not consider Texas's contention that it violates the Tenth Amendment.
[10] Whether Texas may have already waived its sovereign immunity to suit under § 504, or whether Congress may have already abrogated it under its § 5 authority are both questions presently being considered by this Court en banc. See Pace v. Bogalusa City Sch. Bd., 325 F.3d 609 (5th Cir.2003), reh'g granted en banc, 339 F.3d 348 (5th Cir.2003); Johnson v. Louisiana Dep't of Educ., 330 F.3d 362 (5th Cir.2003), reh'g granted en banc, 343 F.3d 732 (5th Cir.2003); Miller v. Texas Tech, 330 F.3d 691 (5th Cir.2003), reh'g granted en banc, 342 F.3d 563 (5th Cir.2003). I do not express an opinion on these questions. Assuming that Texas has either waived its immunity or Congress has abrogated it, this challenge to the constitutionality of § 504 is beyond the scope of our jurisdiction in this appeal. See discussion supra. However, as these questions are as of yet unresolved by this Court and as I believe Texas's constitutional challenge fails, I will address the merits of its argument.
[11] More accurately, Texas receives no funding under the Rehabilitation Act.

 
 2003 WL 24016589 (C.A.5)

Page 1

For Opinion See 391 F.3d 676 , 381 F.3d 407
United States Court of Appeals, Fifth Circuit.
Christy MCCARTHY, by and Through her Next Friend Jamie Travis; Todd Gordon, by and Through his Next Friend Trisha Gordon; Allison Pratt, by and Through her Next Friend Paula Pratt; Gail Truman, by and Through
her Next Friend Ken Truman; Jim Floyd, Jr., by and Through his Next Fried Jim Floyd, Sr.; Sam Lindsay, by and Through his Next Friend Betty Lindsay; Oshea Brooks; Joe Ray Comacho; Micha Chastain, by and Through his Next Friend Lori Chastain; Al, by and Through his Next Friend Ll; Arc of Texas, on Behalf of its Members and for those Similarly Situated; Sue Ann Ortiz; Patrick Sostack, by and Through their Parents and Next Friends
Gary and Lisa Sostack; Scott Sostack, by and Through their Parents and Next Friends Gary and Lisa Sostack; Shyan Forough, by and Through his Parents and Next Friends Reza and Arzu Forough; David, Zweifel, by and Through his Parents and Next Friends Linda and Leroy Zweifel; Ashton Bowlen, by and Through her Motion
and Next Friend Patricia Bowlen; Tyler Blanchard, by and Through his Mother and Next Friend Faith Blanchard; Garrett Gillard, by and Through his Mother and Next Friend Keeya Gillard; Kameron Lane, by and Through his Mother and Next Friend Angie Lane; Madison Polk, by and Through her Father and Next Friend John Polk; Paige Smith, by and Through her Mother and Next Friend Gretta Smith, Plaintiffs-Appellees,
v. Karen F. HALE, ET AL., Defendants, Karen F. Hale, in her Official Capacity as Commissioner of the Texas Department of Mental Health & Mental Retardation; James R. Hine, in his Official Capacity as Commissioner of the Texas Department of Human Services; Albert Hawkins, in his Official Capacity as Commissioner of the Texas Health and Human Services Com-
mission, Defendants-Appellants. No. 03-50608.
November 11, 2003.
On Appeal from the United States District Court Western District of Texas, Austin Division
Reply Brief of Defendants-Appellants
Greg Abbott, Attorney General of Texas, Barry R. McBee, First Assistant Attorney General, Edward D. Burbach , Deputy Attorney General, for LitigationR. Ted Cruz, Solicitor General, Amy Warr, Assistant Solicitor General, P.O. Box 12548 (Mc 059), Austin, Texas 78711-2548, [Tel.) (512) 936-1826, [Fax) (512) 474-2697, Counsel for Defendants-Appellants
*i TABLE OF CONTENTS
Table of Contents ... i
Table of Authorities ... iii
Argument ... 2
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016589 (C.A.5)

Page 2

I. The Court Can and Should Decide the Substantive Issues Presented in This Appeal ... 2 A. Verizon's Ex Parte Young Holding Does Not Prevent the Court From Determining the Validity of the Statutes Sought to Be Enforced ... 2 B. The Court Should Decide the State's Constitutional Challenges in This Appeal ... 7 II. Because Title II of the ADA Was Not Validly Enacted, It Cannot Form the Basis of an Ex Parte Young Suit ... 10 A. Garrett's Footnote 9 Does Not Mean That Ex Parte Young May Be Used To Enforce an Invalid Federal Law ... 10 B. Title II Is Invalid § 5 Legislation for All Purposes. 13 ... 14 C. Title II Is an Invalid Use of Congress's Commerce Power in This Instance ... 20 1. The State's decisions regarding what type of care to fund are not economic in nature ... 20 2. Whether Medicaid services are provided in an institution or in a community setting does not substantially affect interstate commerce ... 24 3. Title II's “integration mandate” violates the Tenth Amendment ... 26 *ii III. Ex Parte Young Cannot Be Used to Enforce § 504 of the Rehabilitation Act Against Hale Because That Statute Is Invalid Under the Spending Clause As Applied to Her ... 27 IV. McCarthy Cannot Assert a “Federal Right” to Enforce the “Due Process” Provision of the Medicaid Act ... 28 Conclusion ... 30 Certificate of Service ... 32 Certificate of Compliance ... 33
*iii TABLE OF AUTHORITIES
Cases Alden v. Maine, 527 U.S. 706 (2000) ... 3, 27 Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001) ... passim Calderon v. Ashmus, 523 U.S. 740 (1998) ... 5, 10 City of Boerne v. Flores, 521 U.S. 507 (1997) ... 12, 14, 17 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) ... 18
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016589 (C.A.5)

Page 3

Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) ... passim Edelman v. Jordan, 415 U.S. 651 (1974) ... 5, 10 Frazar v. Gilbert, 300 F.3d 530 (5th Cir. 2002), cert. granted in part by Frew v. Hawkins, 123 S.Ct. 1481 (2003) ... 29 Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) ... 29 Groome Resources Ltd. v. Parish of Jefferson, 234 F.3d 192 (5th Cir. 2000) ... 22-26 Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) ... 26 Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1981) ... 25 Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997) ... 4 Katzenbach v. McClung, 379 U.S. 294 (1964) ... 26 Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000) ... 3, 12, 18 *iv M'Culloch v. Maryland, 17 U.S. 316, 4 L.Ed. 579 (1819) ... 14 New York v. United States, 505 U.S. 144 (1992) ... 26 Olmstead v. Zimring, 527 U.S. 581 (1999) (plurality op.) ... 19 Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993) ... 7-8 Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001) ... passim Reno v. Condon, 528 U.S. 141 (2000) ... 27 Seminole Tribe v. Florida, 517 U.S. 44 (1996) ... 3 South Dakota v. Dole, 483 U.S. 203 (1987) ... 27 State v. Rendon, 832 So.2d 141 (Fla. 3d dist. Ct. App. 2002) ... 27 United States v. Lipscomb, 299 F.3d 303 (5th Cir. 2002) ... 5 United States v. Lopez, 514 U.S. 549 (1995) ... 22-25 United States v. Mississippi Department of Public Safety, 321 F.3d 495 (5th Cir. 2003) ... 24 United States v. Morrison, 529 U.S. 598 (2000) ... 23, 25 Verizon Maryland, Inc. v. Pub. Serv. Comm'n, 535 U.S. 635 (2002) ... 2-6, 13 Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000) ... 8

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016589 (C.A.5)

Page 4

Rules, Statutes and Constitutional Provisions
28 U.S.C. § 1291 ... 7
42 U.S.C. § 12101 (a) ... 25
*v 42 U.S.C. § 12101(b)(4) ... 14
42 U.S.C. § 12101 (3) ... 25
42 U.S.C. § 1983 ... 29
42 U.S.C. §§ 12131-12134 ... 4
42 U.S.C. §§ 12141-165 ... 4
FED. R. CIV. P. 12(b)(1) ... 6
*2 ARGUMENT
I. the court can and should decide the substantive issues presented in this appeal.
A. Version's Ex Pane Young Holding Does Not Prevent the Court From Determining the Validity of the Statutes Sought to Be Enforced.
McCarthy and the United States misplace reliance on Verizon Maryland, Inc. v. Pub. Serv. Commn, 535 U.S. 635 (2002), for the proposition that the Eleventh Amendment is not implicated in this appeal and, thus, the Court should remand the case to the district court without deciding the substantive issues. See McCarthy Br. at 6-7, 15; U.S. Br. at 16-19. Verizon, however, is distinguishable and should not control this appeal.
The Supreme Court held in Verizon that a properly pleaded Ex pane Young action against state utility commissioners was not barred by the Eleventh Amendment when the substance of the commissioners' EleventhAmendment defense was that they had not violated federal law. See 535 U.S. at 646. The Supreme Court had no occasion to consider the issues raised in this appeal: whether the Exparte Young doctrine, which is an exception to States' Eleventh Amendment immunity, allows a State to be sued under an invalid federal statute or under a statute that provides no federal right of action. Allowing suit to go forward under these circumstances would *3 be an affront to state sovereignty not even contemplated - much less condoned - by Verizon.
In Verizon, a telecommunications carrier sued members of the Maryland Public Service Commission in their official capacities, alleging that the Commissioners' order requiring the carrier to pay reciprocal compensation for calls to Internet service providers violated the Telecommunications Act of 1996. See 535 U.S. at 640. The Supreme Court held that the Eleventh Amendment did not bar a Young suit against the state utility commissioners to determine the parties' rights under a Telecommunications Act provision that no party questioned was a valid federal law. Id. at 646. Instead, the Young issue in Verizon was whether state commissioners correctly applied federal law. See id. at 650-51 & n.3 (Souter, J., concurring) (clarifying that Verizon's suit sought federal judicial review of the correctness of an adjudication by a “state commission qua federal regulator”).[FN1]
FN1. indeed, the Verizon suit threatened no impermissible intrusion on state sovereignty because it was a suit against utility commissioners, much like Ex pane Young itself. 535 U.S. at 645 (recognizing pre-
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016589 (C.A.5)

Page 5

vious approvals of injunctions against “state regulatory commissioners”); see also id. at 648 (Kennedy, J., concurring); id. at 649-51 & n.3 (Souter, J., concurring). As Justice Souter emphasized in his concurrence, Verizon's suit for federal judicial review of an adjudication by a “state commission qua federal regulator” - as opposed to a suit against a State qua State - falls under a different category than cases like Board of Trustees of the University of Alabama v, Garrett, 531 U.S. 356 (2001); Kimel v. Florida Board of Regents, 528 U.S. 62 (2000); Alden v. Maine, 527 U.S. 706 (2000), College Savings Bank v, Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). Id., 535 U.S. 649-51 & n.3 (Souter, J., concurring).
*4 The Supreme Court rejected the argument that, because the carrier failed to demonstrate a violation of federal law, the Eleventh Amendment barred the carrier's Young suit: In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a “straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.”
Id. at 645 (quoting Idaho v. Coeurd'Alene Tribe of Idaho, 521 U.S. 261,296 (1997)). Because the carrier's pleadings satisfied that standard, the Court held that the suit could proceed. See id.
Contrary to McCarthy's and the United States' arguments, the fact that McCarthy's complaint seeks prospective relief and alleges an ongoing violation of federal statutes is not sufficient, by itself, to avoid the Eleventh Amendment bar. The Supreme Court's requirement that the complaint “allege[] an ongoing violation of federal law,” id., presumes that such law must be valid and enforceable. Because Appellants (collectively, “Hale” or the “State”) have demonstrated that the federal laws McCarthy seeks to enforce - Title II[FN2] of the ADA, § 504 of the Rehabilitation Act, and § 1396a(a)(3) of the Medicaid Act - are beyond Congress's power and/or *5 unenforceable, McCarthy's suit is not a proper Ex parte Young action and cannot override Male's Eleventh Amendment immunity. Even though the constitutionality of a statute is not usually a jurisdictional issue, see U.S. Br. at 18 (citing United States v. Lipscomb, 299 F.3d 303, 350 (5th Cir. 2002)), it becomes one when the statute is sought to be enforced through Ex parte Young, because that doctrine is an exception to State's Eleventh Amendment immunity, which is a quasi-jurisdictional bar. See Edelman v. Jordan, 415 U.S. 651,678 (1974); accord Calderon v. Ashmus, 523 U.S. 740, 745 n.2 (1998).
FN2. Although the parties have, throughout these proceedings, referred to Title II without qualification, it is evident that suit was brought under Title II(A), which contains the general provisions applicable to all state programs, and not under Title II(B), which concerns only transportation. Compare42 U.S.C. §§ 12131-12134 (TitleD(A))with 42 U.S.C. §§ 12141-165 (Title n(B)).
Verizon sought to prevent the construction of statutory or constitutional provisions from becoming an Eleventh Amendment issue: “the district court has jurisdiction if the right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another.” Id. at 642 (internal quotations omitted). “[T]he inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the claim.” Id. at 646 (emphasis added). There is no indication that the Court intended its rule to apply when the validity, as opposed to the construction, of a statute was implicated.
And in this case, unlike Verizon, Hale is not asking the Court to analyze the merits of McCarthy's statutory claims. Instead, she is asking the Court to determine *6 whether the federal statutes McCarthy is attempting to
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016589 (C.A.5)

Page 6

enforce are valid, enforceable exercises of Congress's authority. If they are not, then McCarthy's suit is not a proper Exparte Young action and should not be allowed to proceed in the face of the.Eleventh Amendment.
In his Verizon concurrence, Justice Kennedy agreed with the result but cautioned that the Court's so-called “‘straightforward inquiry”’ is “deceptively simple” and should not be applied mechanically in every case. Id. at 648-49. Instead, “our Ex pane Young jurisprudence requires careful consideration of the sovereign interests of the State as well as the obligations of state officials to respect the supremacy of federal law.” Id. at 649 (confirming that this cautious approach “whether stated in express terms or not, is the path followed in Coeur d ‘Alene as well as in the many cases preceding it”).
Indeed, McCarthy's and the United States' expansive reading of Verizon is incompatible with state sovereignty because it would prevent States from obtaining an immediate determination, via a motion to dismiss under Rule 12(b)(1), of the validity of the statute to be enforced. See FED. R. Civ. P. 12(b)(1). Even though States could bring a motion to dismiss under Rule 12(b)(6), such a motion would not challenge the court's subject-matter jurisdiction and, therefore, the State could not pursue an interlocutory, collateral-order appeal of the district court's denial of the *7 motion. See 28 U.S.C. § 1291; see also Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 143-46 (1993) (discussing the interlocutory appealability of denials of Eleventh Amendment immunity and the importance of these appeals for vindicating the States' immunity from suit).
It is small comfort to note that the State should ultimately prevail against a party who attempts to enforce an invalid statute, since the State must nevertheless submit to the expense and indignity of trial on a claim that has no chance of success. Such a rule neither respects state sovereignty nor protects the supremacy of federal law - the central objective of the Ex parte Young doctrine - because it is beyond question that only valid federal law can be supreme. Instead, interpreting Verizon to allow Eleventh-Amendment challenges to the validity and enforceability of a federal statute would accord the proper deference to state sovereignty while detracting nothing from the supremacy of federal law.
B. The Court Should Decide the State's Constitutional Challenges in This Appeal.
The Eleventh Amendment is a jurisdictional constraint that affords the State immunity from suit. The United States erroneously urges this Court to disregard the substantial Eleventh Amendment and sovereign-immunity barriers to McCarthy's suit and to instead remand for consideration of the merits of McCarthy's claims under the Medicaid Act, Title II of the ADA, and § 504 of the Rehabilitation Act. See U.S. Br. *8 at 19-21. But the Eleventh Amendment's jurisdictional threshold must be crossed before the State can be compelled to adjudicate the merits of McCarthy's claim.
The Eleventh Amendment's “withdrawal of jurisdiction” over suits against unconsenting States “effectively confers an immunity from suit.” Puerto Rico Aqueduct, 506 U.S. at 144. Indeed, “[t]he very object and purpose of the I1th Amendment [is] to prevent the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties.” Id. at 146. This sovereign interest is so great that denials of Eleventh Amendment immunity are interlocutorily appealable to ensure that States will “not be unduly burdened by litigation” and that “States' dignitary interests can be fully vindicated.” Id.
The United States's suggested approach to this case contradicts fundamental Eleventh Amendment and sovereignty principles. Although the Supreme Court has deemed it appropriate, in narrow circumstances, to determine whether Congress intended a statute to apply to the States before assessing whether the statute validly abrogates the States' Eleventh Amendment immunity, see, e.g., Vermont Agency of Natural Res. v. United States ex rel
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016589 (C.A.5)

Page 7

Stevens, 529 U.S. 765, 779-80 (2000),[FN3] the United States asks this Court to extend that principle beyond reason when it urges resolution of the merits of McCarthy's claim prior to consideration of the State's *9 constitutional immunity from suit.
FN3. The issue in Vermont Agency was whether a private individual may sue a State in federal court for an alleged violation of the False Claims Act. 529 U.S. at 768.
Contrary to the United States' characterization, whether Title II is valid § 5 legislation, for any purposes, is neither a novel nor a complex issue. In this circuit, there is no question that Title II was intended to apply to the States but fails, under § 5, to validly abrogate the States' immunity. See Reickenbacker v. Foster, 274 F.3d 974, 983 (5th Cir. 2001). Indeed, when Reickenbacker is congruence-and-proportionality rationale is applied to Title II's vague, anecdotal findings regarding the unconstitutional conduct of state and local governments combined, it is apparent that Title 11 fails § 5 scrutiny entirely, for any purpose. See infra Part II.B. Under these circumstances, subjecting the State to the burdens and indignities of litigation on the merits of McCarthy's claims cannot be squared with the Eleventh Amendment and with the States' residuary and inviolable sovereignty.
Although the validity of Title II as Commerce Clause legislation and its constitutionality under the Tenth Amendment, in contrast, are indeed novel issues, Texas does not share the United States' reluctance that this Court should be the first to decide them. Nor should any perceived inadequacies in the Appellees' briefing or in the district court's opinion deter the Court from deciding these important, and purely legal, Eleventh Amendment questions. Indeed, these issues need not have been decided by the district court at all and could have been raised for the first time *10 on appeal. See Edelman, 415 U.S. at 678 (“[T]he Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.”); accord Calderon, 523 U.S. at 745 n.2.
Accordingly, regardless of whether the Court decides to hold this case until the Supreme Court decides Tennessee v. Lane,[FN4] the Court should reject the United States's invitation to remand this case for consideration on the merits and should, instead, dismiss the suit on immunity grounds.
FN4. The State agrees with the United States' suggestion that the Court delay a decision in this appeal until a decision is issued in Lane. If, in Lane, the Supreme Court holds that Title II validly abrogates state immunity, then the State would likely have no Eleventh Amendment immunity against the Title II claim. Even if the Court holds that Title II does not validly abrogate state immunity, which is the holding of Reickenbacker, the Supreme Court could conceivably provide additional guidance that might impact this appeal.
II. BECAUSE TITLE II OF THE ADA WAS NOT VALIDLY ENACTED, IT CANNOT FORM THE BASIS OF AN EXPARTE YOUNG SUIT.
Title II exceeds Congress's lawmaking power under § 5 of the Fourteenth Amendment and the Commerce Clause. Moreover, the Tenth Amendment prohibits federal laws - like Title II - that directly regulate States in their sovereign capacities. Exparte Young should not apply to subject States to suit for prospective relief under an invalid statute.
A. Garrett's Footnote 9 Does Not Mean That Ex Pane Young May Be Used To Enforce an Invalid Federal Law.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016589 (C.A.5)

Page 8

Determining whether an Exparte Young suit is permissible to enforce Title II *11 and § 504 is not as easy as McCarthy, the United States, and the district court would like. The district court mistakenly relied upon dicta contained in a footnote of the Supreme Court's opinion in Garrett suggesting that, although Title I of the ADA did not validly abrogate States' immunity from suits for money damages, Young suits nevertheless may be used to enforce “standards” prescribed under Title I of the ADA.[FN5] See 531 U.S. at 968 n.9; 6R. 1117-18. In Garrett, of course, Ex pane Young was not at issue; instead, the only question was whether States could be sued for money damages under Title I. Moreover, in Garrett no party argued that Title I (as the State argues here regarding Title II) was invalid under § 5 and the Commerce Clause.
FN5. In footnote 9, the Garrett Court seemed to assume that Title I was valid Commerce Clause legislation. See 531 U.S. at 369 ([Local governmental] entities are subject to private claims for damages under [Title I] without Congress' ever having to rely on § 5 of the Fourteenth Amendment
These distinctions are important because of the crucial difference between holding that a statute did not validly abrogate the States' immunity from suit for money damages and holding that a statute is invalid/or any purpose and, therefore, cannot be enforced against any defendant no matter what relief is sought. This difference is illustrated by the Supreme Court's recent § 5 decisions. Garrett, Kimel, and Florida Prepaid all concerned federal statutes that subjected the States to suits for money damages, and all determined that those statutes failed to pass muster under *12 § 5. See Garrett, 531 U.S. at 374; Kimel, 528 U.S. 62 at 91, Fla. Prepaid, 527 U.S. 666 at 668, 691.
Yet, Section 5 limits more than merely Congress's ability to authorize suits for money damages against the States when they invoke their Eleventh-Amendment immunity. Federal statutes must pass § 5 scrutiny even when they apply to local governments - and, thus, no Eleventh-Amendment issue is presented - and even when they impose no monetary liability. For example, in City ofBoerne v. Flores, in which the Supreme Court invalidated the Religious Freedom Restoration Act of 1993 (RFRA), a city - not a Stale - was the defendant, and the plaintiff sought not money damages, but an injunction against the enforcement of the city's historic-preservation ordinance. See 521 U.S. 507, 512 (1997). Because Congress relied on § 5 in enacting the portions of RFRA challenged in Boerne, id. at 516, and, presumably, because RFRA was not within any other of Congress's enumerated powers, the Supreme Court applied § 5's congruence-and-proportionality test and held that RFRA was “beyond congressional authority,” with no qualifications. Id. at 536. Yet, the parties' and the district court's reliance on footnote 9 of Garrett indicates a belief that even invalid statutes such as RFRA - could be enforced through Ex parte Young. The dicta in footnote 9 simply do not support such an incredible conclusion.
*13 The Supreme Court has never evaluated a private litigant's attempt to use Young to enforce a law that exceeds Congress's § 5 power to authorize suits for money damages against States, or that exceeds Congress's power under any grant of authority. And it is difficult to imagine that, if squarely confronted with the intrusive consequences of a suit to enforce a statute like Title II, the Supreme Court would permit this end run around state sovereignty. Thus, this Court should not permit an Exparte Young suit to enforce a statute, such as Title II, that this Court has already held fails to validly abrogate the States' Eleventh Amendment immunity from suits for damages, see Reickenbacker; 274 F.3d at 983, despite footnote 9. But, even if this Court elevates footnote 9's dicta to a holding, the Court should not extend such dicta to situations in which a statute is invalidybr all purposes, such as RFRA or Title II.
As Justice Kennedy recently cautioned, federal courts must not assume that private litigants have free rein to sue States for prospective enforcement of all federal laws. See Verizon, 535 U.S. at 648-49 (Kennedy, J., concur-
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016589 (C.A.5)

Page 9

ring). “Were it otherwise, the Eleventh Amendment, and not Ex parte Young, would become the legal fiction.” Id. at 649. This Court should ensure that the Eleventh Amendment is not relegated to a legal fiction. When a statute - like Title II - is beyond Congress's authority to enact, there is no constitutional basis to subject a State to suit under that statute. Because permitting Young suits based on statutes Congress lacked authority to enact *14 would offend fundamental notions of federalism, the Court should hold that there is no Eleventh Amendment exception permitting prospective enforcement of federal laws - like Title II - that were not validly enacted for any purpose.
B. Title II Is Invalid § 5 Legislation for All Purposes.
The federal government possesses limited, enumerated powers See City of Boerne, 521 U.S. at 516 (citing M'Culloch v. Maryland, 17 U.S. 316, 4 L.Ed. 579 (1819)). Congress relied upon its powers under § 5 of the Fourteenth Amendment and the Commerce Clause in enacting the ADA. See 42 U.S.C. § 12101(b)(4). “[F]or Congress to invoke § 5, it must identify conduct transgressing the Fourteenth Amendment's substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct.” Fla. Prepaid, 527 U.S. at 639.
This Court already determined in Reickenbacker that Title II failed both (1) to identify a pattern of Fourteenth Amendment violations by States, and, assuming such violations were identified, (2) to provide a congruent and proportional remedy. See 274 F.3d at 982-83. As the United States correctly notes, Reickenbacker apparently left open the possibility that Title 11 could be valid for other purposes, i.e., as against local governmental entities that do not possess Eleventh Amendment immunity. Id, at 982 n.60. Reickenbacker suggests that, in order to determine the validity of Title II as a whole, it is necessary to examine whether Congress identified any evidence of *15 constitutional violations by local governmental entities. See id.
When this inquiry is undertaken, it is apparent that Title II again - this time as a whole - fails to pass § 5 scrutiny. Tellingly, the United States cites no specific congressional findings or evidence of constitutional violations against the disabled by local governments. Instead, the United States relies solely on the conclusory and misleading statement, “As this Court observed in Reickenbacker, and as the Supreme Court noted in Garrett, the combined record is much more substantial than the predicate reviewed by this Court in Reickenbacker” U.S. Br. at 23-24. That statement mischaracterizes both Garrett and Reickenbacker. While those cases acknowledge that numerous examples of alleged discrimination by local governments are cited in the ADA's legislative history, they nowhere describe the entire record as “substantial” or otherwise discuss the quality of the evidence. See Garrett, 531 U.S. at 368-69; Reickenbacker, 274 F.3d at 982.
It is no accident that the United States fails to cite, in its brief, a single scrap of evidence of irrational discrimination on the part of local governments. In fact, the evidence regarding local governments suffers from the same defect as the evidence regarding States: that evidence is no more than “unexamined, anecdotal accounts of ‘adverse disparate treatment”’ by local officials. Reickenbacker, 274 F.3d at 982 (quotations omitted); Garrett, 531 U.S. at 370 (same). For instance, the example *16 quoted in Reickenbacker, “discrimination against the mentally ill in city zoning process,” is too vague and lacking in context to constitute evidence of irrational - and therefore unconstitutional - discrimination against the disabled. 274 F.3d at 982; cf. Garrett, 531 U.S. at 370. Similar inadequate examples abound in the ADA's legislative history.[FN6]
FN6. See Garrett, 531 U.S. at 392-93 (Breyer, J., dissenting) (“inaccessible public schools,” “inaccessible public transportation,” “failure to enforce building codes requiring access for persons with
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016589 (C.A.5)

Page 10

disabilities,” “school placed child with cerebral palsy in special education classes,” “child erroneously placed in special education classes,” “state and local agencies disregarded laws requiring accessibility,” “city failed to train employees how to communicate with people with hearing impairments,” “inaccessible city hall,” “school district retaliated against teacher for asking to be assigned to an accessible classroom.” “lack of curb cuts: inaccessible nuhlic transnortatinn”
Having examined the entire legislative record, as instructed by Reickenbacker, and having found no evidence of a pattern of unconstitutional discrimination against the disabled by local governmental actors to combine with the inadequate record regarding state violations detailed in Reickenbacker, the Court should now reach the same conclusion it reached in Reickenbacker. Title II fails the congruence-and-proportionality test. See 274 F.3d at 983. However, because the Court has considered the entire legislative record, and not just alleged constitutional violations by the States, it should go one step farther and hold that Title II is invalid § 5 legislation for all purposes because it is not a congruent and proportional remedy for any pattern of unconstitutional conduct by state or local governments, its sole targets.
Title II suffers from the same defects as RFRA, which, as discussed above, was *17 invalidated for all purposes in Boerne, The Court found two major flaws in RFRA. First, the legislative record revealed no particular history of religious discrimination through generally applicable laws. See Boerne, 521 U.S. at 530. And, more importantly, RFRA was aimed, not at preventing or remedying unconstitutional behavior, but rather at effecting “a substantive change in constitutional protections.” Id. at 530-32. Like RFRA, Title It's legislative record is completely lacking in a pattern of irrational discrimination by governmental entities. And, like RFRA, Title II “is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” Id. Like RFRA, therefore,Title 11 is invalid § 5 legislation for all purposes.
Moreover, the Court should reject the United States' alternative argument, unsupported by any authority, that Title II can somehow be valid § 5 legislation “as applied to unjustified institutionalization.” U.S. Br. at 25. As the United States correctly notes, the statute should be examined in all of its potential applications. Id. Even if the Court were to conduct an “as applied” inquiry, the United States cites to only two pieces of “evidence” in the ADA's legislative history, neither of which pertain to unjustified institutionalization. See id. at 28. Most of the United States' other “evidence” - which suffers from the same defects of vagueness and lack of context as the evidence detailed supra - is not even contained in the legislative *18 history of the ADA, but in the legislative history of other statutes. Id. at 29-32. Thus, this “evidence” cannot be considered as having supported Congress's enactment of Title II. See Fla. Prepaid, 527 U.S. at 639 (“[F]or Congress to invoke § 5, it must identify conduct transgressing the Fourteenth Amendment's substantive provisions.”)
Much of United States' other evidence of disability discrimination has been plucked from Justice Marshall's concurrence in City ofCIeburne v. Cleburne Living Center, 473 U.S. 432 (1985). See, e.g., U.S. Br. at 26-27. It scarcely bears observing that Justice Marshall's concurrence is not the law, and surely it is not evidence on which Congress could have relied to justify Title IPs remedial measures. But there is a deeper irony at work. Justice Marshall concurred in the result of Cleburne, but he strenuously argued that the historical mistreatment of the disabled marked them for suspect-class treatment and some form of heightened scrutiny. Cleburne, 473 U.S. at 455-78 (Marshall, J., concurring in the judgment in part and dissenting in part). But Justice Marshall's view of the disabled as a suspect class did not prevail in Cleburne, as has been emphasized recently by Garrett and Kirnel. See Garrett, 121 S.Ct. at 963; Kimel, 528 U.S. at 83. The United States' attempt to justify Title II's remedial scope by repeated references to Justice Marshall's Cleburne concurrence is, therefore, utterly beside the
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016589 (C.A.5)

Page 11

point.[FN7]
FN7. In its outdated historical essay, the United States goes so far as to invoke the bugbears of “eugenics,” “Social Darwinism,” and “compulsory sterilization laws,” see U.S. Br. at 26-28, forgetting that Garrett concluded that “there is no indication that any State had persisted in requiring such harsh measures as of 1990 when the ADA was adopted.” 531 U.S. at 369 n.6.
*19 Finally, even if there were evidence of a pattern of irrational unjustified institutionalization by state and local governments, Title II's “integration mandate” would not be a congruent and proportional response to this problem. First, the United States attempts to narrow the scope of Title II review by characterizing Title II's mandate as emanating from a mere “regulation.” See U.S. Br. at 32-33. But, the Supreme Court made clear in Olmsteadthat Title II itself, and not just its regulations, prohibits unnecessary institutionalization. See Olmstead v. Zimring, 527 U.S. 581, 597 (1999) (plurality op.). It is clear that Title II's “integration mandate” reaches far beyond prohibiting irrational institutionalization of the disabled. In fact, it prohibits unnecessary institutionalization unless it would constitute a “fundamental alteration” of the government's program. See id. at 607. As Reickenbacker already held, this is a transparent attempt to do precisely what Boerne and Garrett, prohibit: redefine the requirements of the Fourteenth Amendment. See Reickenbacker, 274 F.3d at 983. In fact, far from advancing the congruence-and-proportionality of Title II, as the United States incorrectly argues, the fundamental-alteration defense “creat[es] another disjunction between the remedy and injury that contributes to the failure of Title II in the proportionality and congruence analysis.” Reickenbacker, 274 F.3d at 983.
*20 C. Title II Is an Invalid Use of Congress's Commerce Power in This Instance.
Instead of arguing that the State's decision whether to fund care for the mentally-retarded and the developmentally-disabled in institutions or in community-based settings is within reach of Congress's commerce power, the other parties to this appeal attempt to categorize the State activity as broader in scope so as to more easily satisfy the Commerce Clause standard. The Court should reject this sleight-of-hand and require those parties to demonstrate that the particular activity at issue in this case is within the commerce power. Because they cannot meet this standard, the Court should hold that the commerce power does not reach the State's funding decisions regarding care of the mentally retarded and developmentally disabled.[FN8]
FN8. McCarthy incorrectly asserts that the Supreme Court “implicitly” decided the Commerce Clause question in Garrett - despite the fact that the Commerce Clause was not at issue in Garrett. McCarthy Br. at 26-27; see also supra note 5.
1. The State's decisions regarding what type of care to fund are not economic in nature.
In defending Congress's power to reach the State's conduct through the commerce power, the other parties to this appeal argue only that the State's activity substantially affects interstate commerce. See McCarthy Br. at 27; U.S. Br. at 34; ADAPT Br. at 9. As to the first factor in the “substantially affects” test - whether the statute regulates “economic activity“ - the United Stales argues that, because *21 “nonprofit nursing homes and hospitals can engage in activity that substantially affects interstate commerce,” the State activity in this case is economic in nature. U.S. Br. at 36. The State does not dispute that institutions could hypothetically engage in conduct that substantially affects interstate commerce. But the question in this case is different: do the State's decisions about what type of care to fund in fact - not hypothetically - have a substantial effect on interstate commerce? The United States' argument sheds no light on that question or on the question relevant to the first factor: whether the State's decision to primarily fund institutional rather than community-based care for the mentally retarded and
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016589 (C.A.5)

Page 12

developmentally disabled is economic in nature.
Moreover, the United States' unsupported assertion that the State's funding decisions could be noneconomic “intrastate activity [that] is part of an economic regulatory scheme” should be rejected. First, the state programs and services targeted by Title II are not an “economic regulatory scheme.” Second, the “economic regulatory scheme” advanced by the United States consists of eliminating disability discrimination from employment andpwMc accommodations, areas that are not even regulated by Title II and are not related to the provision of public services.
ADAPT et al., as amici curiae, also fail to address whether the State's funding decisions constitute “economic activity.” Instead, they attempt to broaden the state *22 conduct at issue to the administration of the Medicaid program as a whole, at the nationallevel. ADAPT Br. at 12-17. While it is undoubtedly true that the Medicaid program is large in scope, administers billions of dollars, and could conceivably have a substantial effect on interstate commerce, the State is not challenging the Medicaid program as a whole. Instead, the State challenges the “integration mandate” of Title 11 of the ADA as it applies to the State's funding of the care of the mentally retarded and the developmentally disabled in institutions. ADAPT's arguments do not address this issue.
Title II simply cannot meet the first prong because the activity at issue in this case - the manner in which Texas funds Medicaid services to persons with mental retardation and developmental disabilities - is simply not “economic” in nature. The other parties misplace reliance on Groome Resources Ltd, v. Parish of Jefferson, 234 F.3d 192 (5th Cir. 2000), which upheld a provision of the Fair Housing Amendments Act (FHAA) prohibiting discrimination against the disabled. In Groome, a local zoning board failed to act on a commercial housing provider's application for a zoning variance, causing the provider to lose a contract of sale on a house. See Groome, 234 F.3d at 195-97. The zoning board argued that the FHAA was invalid Commerce Clause legislation. See id. This Court held that the suit could proceed because the FHAA satisfied both prongs of the test set out in *23 United States v. Lopez, 514 U.S. 549(1995). Id. al216.
The other parties fail to recognize, however, that the FHAA provision in Groome - unlike Title II of the ADA squarely fell within the LopezlMorrison rubric because: it regulated an “economic activity,” 234 F.3d at 205-06 (observing that “it is a transparently commercial action to buy, sell, or rent a house,” and the FHAA prohibits “an act of discrimination that directly interferes with a commercial transaction”); the legislative record included express references to the Act's effect on interstate commerce, id. at 213 n.3; and there was no need “to pile ‘inference upon inference”’ or use “several logical links to connect the regulated activity with commerce as in Lopez and Morrison.” Id. at 215.
In holding that the FHAA fulfilled the first prong - that the regulated activity be “commercial” in nature - the court relied on the fact that the provider was a for-profit company engaged in the business of operating group homes. See id. at 195, 206. By contrast, neither McCarthy nor the State are engaged in a for-profit commercial activity. Thus, the “actors” lack commercial character. See id. at 204 (discussing Lopez and Morrison). McCarthy's attempt to rely on the commercial character of Medicaid providers is unavailing, because the State - and not the providers - are regulated by Title II. Thus, whether the State is a commercial actor when it determines how to fund care for the mentally retarded and developmentally *24 disabled is The only relevant inquiry. Cf. id. Groome demonstrates what commercial character is necessary to survive Commerce Clause scrutiny and highlights that, in this case, such character is entirely lacking. Thus, the first prong of Lopez is not satisfied.
2. Whether Medicaid services are provided in an institution or in a community setting does not substan-
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016589 (C.A.5)

Page 13

tially affect interstate commerce.
Title II similarly fails the second prong of Lopez. In Groome, the court relied on the commercial and interstate nature of renting and purchasing real property to show a substantial effect on interstate commerce. Id, at 206-08. By contrast, the other parties to this appeal fail to demonstrate that whether Medicaid services for the mentally retarded and the developmentally disabled are funded in an institution or in individual communities has any effect whatsoever on interstate commerce - much less the “substantial” effect required under the Commerce Clause. The other parties misplace reliance on this Court's recent decision in United States v. Mississippi Department of Public Safety, 321 F.3d 495 (5th Cir. 2003), and on congressional findings to demonstrate this essential element. See U.S. Br. at 43-45; McCarthy Br. at 31-33, ADAPT Br. at 19-22. But Mississippi concerned a Commerce Clause challenge to Title I - not Title II. And Title I, which deals with employment and regulates States only incidentally, as employers, has a much stronger link to interstate *25 commerce than Title II, which regulates state programs and services alone. Mississippi, therefore, sheds no light on the constitutionality of Title II.
Similarly, the “findings'1 cited by the other parties are no evidence at all because they pertain only to Title I or Title III - not to Title II. See U.S. Br. at 43-45; 42 U.S.C. § 12101 (a) (“Findings”). It is telling that nowhere within the “vast” record compiled by Congress do the other parties identify a single legislative source reflecting any determination that discrimination in public services substantially affects interstate commerce. Nor has the State located such a finding in its independent review of Title II's legislative history.[FN9] Just as the “vast record” for the ADA failed to justify an exercise of Congress's § 5 power regarding Title I (Garrett, 531 U.S. at 968 n.9), or Title II (Reickenbacker, 274 F.3d at 981-83), nor does it *26 support an exercise of Congress's Commerce Clause power regarding Title II's regulation of public services, programs, and activities.
FN9. The only statutory finding directed at Title II's subject matter - public services, programs, and activities - relates to discrimination (a § 5 remedial goal), not interstate commerce. See 42 U.S.C. § 12101(3) (finding discrimination in “access to public services”). Presumably, the other parties suggest that - in theory - Congress's other, general discrimination findings might apply to public services. But Congress did not specifically apply those findings to public services and, therefore, they cannot justify Congress's enactment of Title II. Moreover, as will be discussed infra, none of these findings establish a substantial effect on interstate commerce because the leap from generalized findings of discrimination to interstate commerce relies on impermissibly attenuated reasoning.
Moreover, even if Congress had found that inadequate access to public services substantially affects interstate commerce - which Congress did not do - that hypothetical finding would not end the inquiry. “[T]he existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation.” Morrison, 529 U.S. at 614-15 (rejecting numerous legislative findings regarding the serious impact of gender-motivated violence on victims and their families because their link to commerce was too attenuated). Indeed, the Supreme Court reiterated, in both Morrison and Lopez, that “[sjimply because Congress may conclude that a particular activity substantially affects commerce does not necessarily make it so.” Id. (quoting Lopez, 514 U.S. at 557 n.2) (quoting Model v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264, 311 (1981) (Rehnquist, J., concurring))).
Furthermore, McCarthy's claim that failure to provide community-based services will burden her working, shopping, and interstate travel, and the United States' claim that a prohibition on discrimination in public services is critical to Congress's legitimate regulation of employment and public accommodations, are perfect examples of
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016589 (C.A.5)

Page 14

the piling of “inference upon inference” in order to find a substantial effect on commerce that was rejected in Lopez and Morrison. FN[FN10] Cf. id. at 215. For this independent reason, McCarthy's claims under Title II should not be allowed to proceed.
FN10. Plaintiffs' reliance on Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), and Katzenbach v. McCIung, 379 U.S. 294 (1964), is misplaced, as those cases dealt with commercial establishments-a hotel and a restaurant-and thus no piling of inferences was necessary.
3. Title IPs “integration mandate” violates the Tenth Amendment.
Finally, even if Title II were to constitute a legitimate exercise of the commerce power, it would be invalid because it violates the Tenth Amendment. See State's Br. at 26-28. Title IPs “integration mandate” impermissibly “require[s] the States to govern according to Congress's instructions.” New Yorkv, United States, 505 U.S. 144, 162 (1992). The Unites States glosses over the fact that Title II is directed only at governmental entities, and not at private parties, explaining that the ADA as a *27 whole is “generally applicable” to public and private entities alike because Title HI - not Title 11 - imposes requirements on public accommodations. U.S. Br. at 49-50.
But the State's funding decisions regarding care for the mentally retarded and developmentally disabled are not public accommodations (such as hotels and restaurants), and the Court should reject the United States' attempt to characterize Title II as “generally applicable” to public and private parties alike and thereby bring Title 11 within the permissible ambit of the statute upheld in Reno v. Condon, 528 U.S. 141 (2000). Title II - unlike Title 1 is not a law of general application that incidentally affects the States. Instead, it prescribes requirements for public programs, services, and activities - thereby directly regulating the States in their sovereign capacities. This commandeering of state governmental processes and burdening of state fiscs cannot be squared with the federalism principles upon which this nation's constitutional framework rests. See, e.g., Alden, 521 U.S. 745-54; cf. State v. Rendon, 832 So.2d 141, 146 n. 5 (Fla. 3d Dist. Ct. App. 2002).
III. EX PARTE YOUNG CANNOT BE USED TO ENFORCE § 504 OF THE REHABILITATION ACT AGAINST HALE BECAUSE THAT STATUTE IS INVALID UNDER THE SPENDING CLAUSE AS
APPLIED TO HER.
McCarthy's response to the State's § 504 argument consists largely of an irrelevant discussion of whether the State waived its Eleventh Amendment immunity *28 by accepting federal funds. McCarthy Br. at 37-39. The issue here is not whether the State waived its immunity, but whether Congress had the authority, pursuant to its spending power, to impose a condition unrelated to its grant of federal funds. If not, the statute could not form the basis of an Ex parte Young action and overcome the State's Eleventh Amendment immunity. See State's Br. at 28-31.
The portion of McCarthy's brief that does pertain to the issue in the case, however, pays only lip service to the Supreme Court's decision in South Dakota v. Dole, 483 U.S. 203 (1987), and admits no limitation whatsoever on Congress's spending power. McCarthy's argument reduces Dole's relatedness requirement to an empty shell. Supreme Court precedent deserves more credence.[FN11]
FN11. The United States references its briefing on Dole's relatedness requirement in its other § 504 appeals in this Court; the State notes that it too filed extensive briefing on this issue in those cases.
IV. MCCARTHY CANNOT ASSERT A “FEDERAL RIGHT” TO ENFORCE THE “DUE PROCESS”
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016589 (C.A.5)

Page 15

PROVISION OF THE MEDIC AID ACT.
In her brief, McCarthy completely fails to address the State's central argument: that the district court's holding that McCarthy lacked a federal right to enforce the Medicaid Act's “reasonable promptness” provision precludes her from possessing a federal right to enforce the Act's due-process provision, which is a procedural device designed to protect against erroneous denials of the reasonable-promptness provision. See State's Br. at 15-18. Instead, McCarthy cites cases that have nothing to do with *29 an initial entitlement to Medicaid waiver services, but instead deal with the withdrawal of waiver services from people already receiving them or with the initial entitlement to non-waiver services. SeeMcCarthyBr. at 14-15. These circumstances do not bear on the issue in this case. See State's Br. at 18.
Further, McCarthy essentially attempts to impermissibly change the allegations in her complaint on appeal. In her complaint, McCarthy failed to allege that slots were available in the waiver programs at issue. See 2R.222-73. That failure, which the district court apparently viewed as an admission that the programs were indeed full, was integral to its decision to dismiss some of her claims. See 6R.1110-11. McCarthy attempts to avoid the effect of her pleading error by alleging that she does not know whether any slots are in fact available. But that is a matter of proof, not of pleading. McCarthy was required to plead facts sufficient to assert a federal right enforceable through 42 U.S.C. § 1983. Gonzaga Univ. v. Doe, 536 U.S. 273 (2002). She cannot now, on appeal, disavow the content of her pleadings.
“The Eleventh Amendment limits [a federal court's subject-matter jurisdiction under Exparte Young] to the enforcement of federal rights.” Frazar v. Gilbert, 300 F.3d 530,543 (5th Cir. 2002), cert, granted in part, Frewv. Hawkins, 123 S.Ct. 1481 (2003). Accordingly, the Court should dismiss McCarthy's remaining Medicaid Act claim in this appeal.
*30 conclusion
McCarthy's claims under the Medicaid Act, Title II of the ADA, and § 504 of the Rehabilitation Act should be dismissed.
Christy MCCARTHY, by and Through her Next Friend Jamie Travis; Todd Gordon, by and Through his Next Friend Trisha Gordon; Allison Pratt, by and Through her Next Friend Paula Pratt; Gail Truman, by and Through her Next Friend Ken Truman; Jim Floyd, Jr., by and Through his Next Fried Jim Floyd, Sr.; Sam Lindsay, by and Through his Next Friend Betty Lindsay; Oshea Brooks; Joe Ray Comacho; Micha Chastain, by and Through his Next Friend Lori Chastain; Al, by and Through his Next 2003 WL 24016589 (C.A.5 ) (Appellate Brief )
END OF DOCUMENT

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 
 Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...

2003 WL 24016588 (C.A.5) (Appellate Brief) United States Court of Appeals, Fifth Circuit.
Christy MCCARTHY, by and Through her Next Friend Jamie Trav1s; Todd Gordon, by and Through his Next Friend Trjsha Gordon; Allison Pratt, by and Through her Next Friend Paula Pratt; Gail Truman, by and
Through her Next Friend Ken Truman; Jim Flo Yd, Jr., by and Through his Next Friend Jim Floyd, Sr.; Sam Lindsay, by and Through his Next Friend Betty Lindsay; Oshea Brooks; Joe Ray Comacho; Micha Chastaln, by and Through his Next Friend Lori Chastain; Al, by and Through his Next Friend Ll; Arc of Texas, on Behalf of its Members and for those Similarly Situated; Sue Ann Ortiz; Patrick Sostack, by and Through their Parents and Next Friends Gary and Lisa Sostack; Scott Sostack, by and Through their Parents and Next Friends Gary and
Lisa Sostack; Shyan Forough, by and Through his Parents and Next Friends Reza and Arzu Forough; David Zweifel, by and Through his Parents and Next Friends Linda and Leroy Zweifel; Ashton Bowlen, by and
Through her Motion and Next Friend Patricia Bowlen; Tyler Blanchard, by and Through his Mother and Next Friend Faith Blanchard; Garrett Gn.Lard. by and Through his Mother and Next Friend Keeya Gillard; Kameron Lane, by and Through his Mother and Next Friend Angie Lanea;madison Polk, by and Through her Father and
Next Friend John Polk; Paige Smith, by and Titoough her Mother and Next Friend Gretta Smith, PlaintiffsAppellees, v.
Karen F. HALE, in her Official Capacity as Commissioner of the Texas Department of Mental Health & Mental Retardation; James R. Hine, in his Official Capacity as Commissioner of the Texas Department of Human
Services; Albert Hawkins, in his Official Capacity as Commissioner of the Texas Health and Human Services Commission, Defendants-Appellants.
No. 03-50608. October 20, 2003.
On Appeal from the United States District Court for the Western District of Texas Austin Division

Brief of Plaintiffs-Appellees

Geoffrey N. Courtnes., Texas State Bar No. 00790514, Arc of Texas, 3700 Enfield Road, Austin, Texas 78703, (512) 2360875 (Phone), (512) 236-0878 (Fax)

Garth A. Corbett, Texas State Bar No. 04812300, James H. Keahey, Texas State Bar No. 11138000, Advocacy, Incorporated, 7800 Shoal Creek Boulevard, Suite 171-E, Austin, Texas 78757-1014, (512) 454-4816 (Phone), (512) 454-3999 (Fax), Attorneys for Appellees

*iiiSTATEMENT REGARDING ORAL ARGUMENT

Appellees respectfully request oral argument. This interlocutory appeal involves a direct and unmitigated attack on the protections provided to the rights of individuals with disabilities clearly established by federal law and prior decisions of this court. Adoption of Defendants-Appellants contentions would decimate the safeguards that have existed in federal law for individuals with disabilities for decades. Oral argument is warranted.

*ivTABLE OF CONTENTS

CERTIFICATE OF FNTERESTED PERSONS ................................................................................................................

i

STATEMENT REGARDING ORAL ARGUMENT .......................................................................................................

iii

TABLE OF CONTENTS ............................................................................................................................................................

iv

1

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...

TABLE OF AUTHORITIES .....................................................................................................................................................

vi

JURISDICTIONAL STATEMENT ........................................................................................................................................

2

SUMMARY OF THE ARGUMENT .....................................................................................................................................

3

STANDARD OF REVIEW ........................................................................................................................................................

5

ARGUMENT ...................................................................................................................................................................................

6

I. Eleventh Amendment Immunity Is Irrelevant to the Fact That Medicaid Act Provisions Are

6

Enforceable Under the Ex Pane Young Doctrine and Pursuant to 42 U.S.C. § 1983 ............................................

A. Ex Parte Young Can Be Used to Enforce Medicaid Act Claims ............................................................................

7

B. Medicaid Act Provisions Are Enforceable Under 42 U.S.C. § 1983 .....................................................................

10

C. Medicaid Act Due Process Provision at § 1396a(a)(3) is Enforceable ................................................................

12

II. Hale May Be Sued Under Title II of the ADA ..............................................................................................................

15

A. ADA Inclusion of Public Entities is No Bar to Its Enforcement ............................................................................

15

B. ADA Claims Against State Officials for Declaratory and Injunctive Relief Are Permitted Through

18

Ex Parte Young ................................................................................................................................................................................

C. Injunctive Relief Is Still Available Under Ex Pane Young Even If Title II Exceeds Congress

20

Authority to Allow a Suit Directly Against the State .......................................................................................................

*v D. Title II Of the ADA Was Enacted Pursuant Congress’ Authority Under the Fourteenth

21

Amendment and the Commerce Clause .................................................................................................................................

1. Title II Is Constitutional Under the Fourteenth Amendment ....................................................................................

22

2. Title II is Constitutional Under the Commerce Clause ...............................................................................................

26

a. ADA’s Integration Mandate Regulates Economic Activity ......................................................................................

28

b. Absence of a Jurisdictional Element Does Not Undermine The Validity of th Integration Mandate .......

31

c. ADA’s Congressional Findings Support The Interstate Impact of Disability Based Discrimination ........

31

d. Congress Had a Rational Basis to Conclude that the ADA and its Integration Mandate Have a

33

Substantial Affect on Interstate Commerce ..........................................................................................................................

E. The ADA as Commerce Clause Legislation Does Not Violate the 10lh Amendment ...................................

34

III. Hale May Be Sued Under § 504 of the Rehabilitation Act of 1973 ....................................................................

36

A. By Accepting Federal Funds Pursuant to § 2000d-7, States Validly Waive Eleventh Amendment

37

Immunity ............................................................................................................................................................................................

B. By Accepting Federal Funds States are Subject to Private Suits Brought Under § 504 of the

38

2

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...

Rehabilitation Act ...........................................................................................................................................................................

CONCLUSION ...............................................................................................................................................................................

40

CERTIFICATE OF SERVICE ..................................................................................................................................................

41

CERTIFICATE OF COMPLIANCE ......................................................................................................................................

42

*viTABLE OF AUTHORITIES Cases Alden v. Maine, 527 U.S. 706(1999) .................................................... Antrican v. Odm, 290 F.Supp. 3d 1 78 (4th Cir. 2002) ................ Atascadero State Hospital v. Scan/on, 473 U.S. 234 (1985)....... August v. Mitchell, 205 F.Supp. 2d 558 (E.D. LA 2002).............. Baker v. Putnal 75 F.3d 190 (5th Cir. 1996)..................................... Blanchard v. Forrest, 71 F.3d 1 163 (5th Cir. 1996) ..................... Blessing v. Freestone, 520 U.S. 329 (1997) ...................................... Board of Education v. Mergens, 496 U.S. 226 (1999) .................. Boulet v. Cellucci, 107 Fed.Supp.2d. 76 (D.Mass. 2000) ........... Bruggeman v. Blagojevich, 324 F.3d 906 (7th Cir. 2003) ........... Bryson v. Shumway, 308 F.3d 79 (lst Cir. 2002) ............................. California v. United States, 104 F.3d 1086 (9th Cir. 1997)......... Carten v. Kent State Univ., 282 F.3d 391 (6th Cir. 2002)............ Cherry v. Tompkins, 1995\ VL 502403 (S.D. Ohio) ..................... Clark v. California, 123 F.3d 1267 (9th Cir. 1997) ........................ College Sav. Bank v. Florida Prepaid Postec. Educ. Expense Bd., 527 U.S. 666 (1999) ......................................................................... Cozzo v. Tangipahoa Parish Council-President Gov t, 279 F.3d 273 (5lh Cir. 2002)............................................................................ Cramer v. Childes, 33 F.Supp. 2d 1342 (S.D.Fla. 1999).............. Daniels v. Wadley, 926 F.Supp. 1305 (M.D.Tenn. 1996) ............ Davis v. Passman, 442 U.S. 228 (1979)..............................................
3

7, 8 10
38, 39 39 5
12, 13 6, 10, 11, 14
38 10, 14 17, 18, 19
11 37, 38 17, 19, 40 12, 13
40 37
5
14 14
2

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...
*viiDouglas v, California Dep’t of Youth Auth., 271 F.3d 812 (9th Cir. 2001) ...................................................................................... Edelman v. Jordan, 415 U.S. 651 (1974) ........................................... Eder v. Beal, 609 F.2d 695 (3rd Cir. 1979) ....................................... EEOC v. Wyoming, 460 U.S. 226 (1983) ........................................... Espinoza v. Tex. Dep’t of Pub. Safety, 2002 U.S. Dist. LEXIS 18465, 2002 WL 31191347 (N.D. Tex.) ............................. Exparte Young, 209 U.S. 123 .................................................................. Florida v. Treasure Salvors, Inc., 458 U.S. 670 (1982) ............... Fraiar v. Gilbert, 300 F.3d 530 (5vh Cir. 2002) ............................. Garcia v. S. U. N. Y. Health Sciences Center, 280 F.3d 98 (2nd Cir. 2001).............................................................................................. Goldberg v. Kelly, 397 U.S. 245 (1970) ............................................. Golden State Transit Corp. v. City of Los Angles, 493 U.S. 103 (1989)....................................................................................................... Gonzaga v. Doe, 536 U.S. 273 (2002) ................................................. Green v. County Sch. Bd., 391 U.S. 430 (1968) .............................. Green v. Mansoiir, 474 U.S. 64 (1985)............................................... Groome Resources Lid., L.L.C. v. Parish of Jefferson, 234F.3d 192 (5th Cir. 2000) ................................................................... Hafer v. Melo, 502 U.S. 21 (1991)........................................................ Heart of Atlanta Motel, Inc. v. United States, 397 U.S. 241 (1964) .............................................................................................................. Hicks v. Armstrong, 116 F.Supp.2d 287 (D. Conn. 1999) .......... Idaho v. Coeurd Alene Tribe of Idaho, 521 U.S. 261 (1997)...... J.B. ex rel Hart Valdez, 186 F.3d 1280 (10th Cir. 1999).............. Jim C. v. U.S., 235 F.3d 1079 (8lh Cir. 2000) .................................. Johnson v. Louisiana, 2002 WL 83645 (E.D. LA., Jan. 18, 2002) ................................................................................................................. *viiiJoseph A. ex rel. Corrine Wolfe v. Ingram, 273 F.3d 1253 (10th Cir. 2002) ................................................................................
4

40
8 14 26 17, 39
passim 3
8, 9, 10 22
12, 13 10, 11
11 24
8 28, 30, 3 1, 32, 33, 34
16 30, 33
35, 36 3, 16, 19
3 38, 40 17, 39
10

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...
Kentucky v. Graham, 473 U.S. 159 (1985)........................................ Kimble v. Solomon, 599 F.2d 599 (4th Cir. 1979) .......................... Kimel v. Florida Ed. of Regents, 528 U.S. 62 (2000) .................... King v. Fallon, 801 F.Supp. 925 (D.R.I. 1992)................................ Koslow v. Pennsylvania. 302 F.3d 161 (3rd Cir. 2002) ................ Lanev. Pena, 518 U.S. 187(1996).......................................................... Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949)....................................................................................................... Lewis v. New Mexico Dep’t of Health, 94 F.Supp.2d 1217 (D.N.M. 2000)............................................................................................... Lewis v. New Mexico Dep’t of Health, 261 F.3d 970 (10th Cir. 2001) ........................................................................................................ Litman v. George Mason University, 186 F.3d 544 (4th Cir. 1999) ................................................................................................................. Maine v. Thiboutot, 448 U.S. 1 (1980)................................................ Martin v. Taft, 222 F. Supp. 2d. 940 (S.D. Ohio 2002)................. Meachem v. Wing, 77 F.Supp.2d 431 (S.D.N.Y. 1999) ................ Miranda B. Kitzhaber, 328 F.3d 1181 (9th Cir. 2003) .................. Missouri Child Care Ass’n v. Cross, 294 F.3d 1034 (8th Cir. 2002) ................................................................................................................. New York v. United States. 505 U.S. 144 (1992) ............................. Nihiser v. Ohio EPA, 269 F.3d 626 (6th Cir. 2001)........................ North Carolina ex rel. Morrow v. Califano, 445 F.Supp. 532 (E.D. N.C. 1997). 38 Olmstead v. Zimring, 527 U.S. 581 (1999) ............................................................................................................... Parry v. Crawford, 990 F.Supp. 1350 (D.NV. 1998) ................... Pederson v. Louisiana State University, 213 F.3d 858 (5th Cir. 2000) ........................................................................................................ *ixPlyer v. Doe, 457 U.S. 202 (1982) ................................................. Popovich v. Cuyahoga County Courts of Common Pleas, 276 F.3d. 808 (6th Cir. 2001)...........................................................................
5

8, 16 14
26, 27 14 40 39 4
14, 15, 16
7, 15, 17, 18, 36
40
10 17, 19, 20
13 19 10
34. 35 40
25, 29
14 39
25 23, 25

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...
Printz v. United States, 521 U.S. 898 (1997) ................................... Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139(1993) ........................................................................... Randolph v. Rodgers, 253 F.3d 342 (8th Cir. 2001)....................... Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001) ................ Reno v. Condon, 528 U.S. 141 (2000) ................................................. Roe v. Ogden, 253 F.3d 1225 (10th Cir. 2001)................................. Rosie D. ex. rel. John D. v. Swift, 3 10 F.3d 230 (1st Cir. 2002) ................................................................................................................ Salazar v. District of Columbia, 954 F.Supp. 278 (D.D.C. 1996) ................................................................................................................. Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999)........................ Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) .......... Sobky v. Smoley, 855 F.Supp. 1123 (E.D. Cal. 1994) .................... South Dakota v. Dole, 483 U.S. 203 (1987) ...................................... Stanley v. Litscher, 213 F.3d 340 (7th Cir. 2000) ........................... StewardMach. Co. v. Davis, 301 U.S. 548 (1937) .......................... Swim v. Chambers Counn Comm’n, 514 U.S. 35 (1995) ............. Tennessee v. Lane, 3 15 F.3d 680 (6th Cir. 2003)........................... Thompson v. State of Colorado, 258 F.3d 1241 (10th Cir. 2001) ................................................................................................................. United States v. Gregg, 226 F.3d 253 (3rd Cir. 2000)................... United Stales v. Lope-, 514 U.S. 549 (1995)..................................... United States v. Monison, 529 U.S. 598 (2000) ............................... *xUnited States v. Mississippi Dep’t of Public Safety, 321 F.3d 495 (5th Cir. 2003)............................................................................ United States v. Rodia, 194 F.3d 465 (3rd Cir. 1999).................... United States v. Virginia, 518 U.S. 515 (1996)................................ University of Alabama v. Garrett, 531 U.S. 356 (2001)............... Verizon Marvland. Inc. v. Public Service Commission of
6

34, 35 2
19 17, 20, 21, 22, 39
34, 35 19
9, 10, 13
14
40 9, 18, 25
11 37 40 37
2 23 21, 36
27, 30, 31, 32, 33 27, 28, 30
23, 27, 28, 30, 33 21
28 25, 26 18, 19, 20, 22, 23, 26, 27 2, 3, 4, 15, 19

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...
Maryland, 535 U.S. 635 (2002).............................................................. Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000) ............................. West Virginia v. United States Dep’t of Health and Hum. Sews., 289 F.3d 281(4th Cir. 2002)....................................................... Westside Mothers v. Haverman, 289 F.3d. 852 (6th Cir. 2002) ................................................................................................................. Wilder v. Virginia Hospital Ass’n, 496 U.S. 498 (1990) .............. Wood v. Tompkins, 33 F.3d 600 (6th Cir. 1994).............................. Woodv. Wallace, 835 F.Supp. 177 (S-D. Ohio, 1993) .................. Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418 (1987) .............................................................. Statutes and Rules 29 U.S.C § 794.............................................................................................. 29 U.S.C. § 504............................................................................................. 42 U.S.C. § 1983 .......................................................................................... 42 U.S.C. § 12101 (b)(4)........................................................................... 42 U.S.C. § 12101(a)(2)-(3)..................................................................... 42 U.S.C. § 12101(a)(9) ............................................................................ 42 U.S.C. § 12131(2).................................................................................. *xi42 U.S.C. § 12132 ................................................................................. 42 U.S.C. § 1396a(a)(10)(B) ................................................................... 42 U.S.C. § 1396a(a)(3) ............................................................................ 42 U.S.C. § 1396a(a)(8) ............................................................................ 42 U.S.C. § 1396n(c)(2)(C) ..................................................................... 42 U.S.C. § 2000d-7 ................................................................................... Fed. R. Civ. P.12(b)(6)............................................................................... Regulations and Agency Guidance 28 C.F.R. § 35.130 (b)(7).......................................................................... 28 C.F.R. § 35.130(d).................................................................................
7

15, 16 38
9
6, 10, 11, 12, 13 11 12
10, 13
37 36, 37, 38, 39, 40
6, 10, 11, 12 26, 31 31 31 24, 25 28 6, 12
6, 7, 12, 13, 14 6, 7 6
36, 37, 38, 39, 40 6
25 28

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...

28 C.F.R. § 35.150(a)(3) ...........................................................................

25

28 C.F.R. § 35.164.......................................................................................

25

42 C.F.R. § 431.211 ....................................................................................

13

Legislative Materials

H.R. REP. No. 101-485, pt. at 45 (1990), reprinted in 1990

32

U.S.C.C.A.N .................................................................................................

S. rep. No. 101 -116, at 17 (19 H.R. REP. No. 101 -485, pt. 2, at 43-44

(1990), reprinted in 1990 U.S.C.C.A.N. 267, 325-26. Accord

32

89 .......................................................................................................................

*2JURISDICTIO1NAL STATEMENT
Within the ambit of this proceeding, Karen F. Hale, Defendant-Appellant, (“Hale”) is attempting to argue issues which are not intertwined with Eleventh Amendment immunity, “in determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S. 635, 642-43 (2002). Male’s argument ignores the fundamental difference, long recognized by the Supreme Court, between questions of jurisdiction and questions of the validity of a cause of action. See e.g., Davis v. Passman, 442 U.S. 228, 239 n. 18 (1979).
A denial of Eleventh Amendment immunity may be challenged by an interlocutory appeal because the Eleventh Amendment creates an immunity from suit. Puerto Rico Aqueduct & Sewer A nth. v. Metcalf& Eddy, Inc., 506 U.S. 139. 143-145 (1993). However, the scope of such interlocutory appeal is limited to claims that the defendant is immune from suit, mere defenses to liability are off limits. Swim v. Chambers Counny Comm’n, 514 U.S. 35, 41-43 (1995). In the instant case, only Hale’s argument that Title II of the Americans with Disabilities Act (“ADA”) is incompatible with Ex part e Young is related to Eleventh Amendment immunity. See Brief of Defendant-Appellants, 20-22. None of the other arguments raised by Hale are intertwined with considerations of Eleventh Amendment immunity. These arguments are mere defenses to liability, and should not be made part of an interlocutory appeal. Verizon. at 646.
*3SUMMARY OF THE ARGUMENT
Although citizens may not generally sue states in federal court under the Eleventh Amendment, the Young doctrine has carved out an alternative, permitting citizens to seek prospective equitable relief for violations of federal law committed by state officials in their official capacities. Ex parte Young, 209 U.S. 123, 159-60, 52 L. Ed. 714,28 S.Ct.441 (1908). These are not suits against the state. McCarthy may proceed against Hale, in that following four requirements are met: (1) the plaintiffs are suing state officials, rather than the state itself; (2) the plaintiffs have alleged a non-frivolous violation of federal law; (3) the plaintiffs seek prospective equitable relief, rather than retroactive monetary relief from the state treasury; and (4) the suit does not implicate “special sovereignty interests.” Idaho v, Coeurd’Alene Tribe, 521 U.S. 261 (1997); Florida v. Treasure Salvors. Inc., 458 U.S. 670 (1982).
From Plaintiffs’ Second Amended Complaint there is no dispute that McCarthy has sued state officials for prospective equitable relief. 2R228-231. It is also clear that a “state’s interest in administering a welfare program at least partially funded by the federal government is not such a core sovereign interest as to preclude the application of Ex pane Young.” J.B. ex rel.
8

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...
Hart v. Valdez, 186 F.3d 1280, 1287 (1 Olh Cir. 1999).
Hale focuses on the merits of McCarthy’s claims. Such a focus is misplaced. Verizon, at 646. At the immunity stage, federal courts apply the limited jurisdictional standard used to assess whether a claim sufficiently confers subject matter jurisdiction, asking only whether the claim is “wholly insubstantial and frivolous,” *4 rather than reaching the legal merits of the claim. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-90, (1949).
The contention that Congress preempted Exparle Young suits for violations of Title II of the Americans with Disabilities Act by prohibiting discrimination by public entities is the only argument raised by Hale which examines subject matter jurisdiction, and is therefore the only argument which is intertwined with Eleventh Amendment immunity. Brief of Defendanls-Appellants, 20-22. However, Hate’s contention has not been accepted by any court of appeals, has been rejected by the Fifth, Sixth, Seventh, Eighth, Ninth & Tenth Circuit Courts of Appeals, and has been rejected by the courts which originally asserted the argument. Infra, 15-18. Hale’s argument is also been rejected by the Supreme Court. Verizon, at 64344 (Allowing E.v pane\ oung suit against commissioners although statute is directed at the commission).
In that there is no question that McCarthy’s claims confer subject matter jurisdiction, this cause should be remanded to the district court for further proceedings.
*5STANDARD OF REVIEW
This Court must conduct a de novo review of the district court’s order denying Eleventh Amendment immunity. Cono v. Tangipahoa Parish Council-President Gov’/, 279 F.3d. 273, 280 (5lh Cir. 2002). In that the claims of Eleventh Amendment immunity were raised in the context of a motion to dismiss, the Court must accept all well pled facts in the complaint as true and view them in the light most favorable to the Plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5’h Cir. 1996).
*6ARGUMENT
I. Eleventh Amendment Immunity Is Irrelevant to the Fact That Medicaid Act Provisions Are Enforceable Under the Ex Parte Young Doctrine and Pursuant to 42 U.S.C. § 1983
Hale is incorrect in claiming that the Eleventh Amendment bars Exparte Young claims brought under Title XIX of the Medicaid Act. The Young doctrine can be used to enforce the Medicaid Act provisions, including 42 U.S.C. §§ 1396a(a)(3), (a)(8) and (a)(10)(B) and 1396n(c)(2)(C), as it can be used to enforce any other federal law. And, because these provisions establish federal rights consistent with Blessing v. Freestone, 520 U.S. 329, 340 (1997), and Wilder v. Virginia Hosp. Ass’n., 496 U.S. 498 (1990) such rights can be enforced pursuant to § 1983.
Demonstrating that these Medicaid Act provisions can be enforced pursuant to Exparte Young or that they establish a federal right upon a particular class of persons consistent with Blessing and Wilder are not Eleventh Amendment immunity determinations. In the instant appeal. Hale is not challenging any decision in regards to Eleventh Amendment immunity, but seeks to appeal the district court’s decision that McCarthy’s claims under 42 U.S.C. § 1396a(a)(3) should not be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
In making its argument. Hale relies upon an alleged fact-that there are no slots open in the waiver programs. Brief of Defendants-Appellants, p. 17. In so far as there has been no discovery allowed in this case, and Hale has not even filed an answer, McCarthy has no information what, if any, slots are open in the waiver programs. *7 However, the answer to these factual questions is important to determining the extent to which a statute confers rights upon a particular class of persons and the merits of a claim.
The existence of this factual assumption illustrates why an interlocutory appeal is not permitted to consider a defense to liability, but limited to questions of immunity. Incases where a claim of Eleventh Amendment immunity has precluded all discovery and any development of the facts, broadening the issues for which an interlocutory appeal is permitted, serves to
9

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...
deny the due process rights of plaintiffs.1 When faced with a similar issue regarding 42 U.S.C. § 1396a(a)(8), the Tenth Circuit found that “the inquiry [regarding the creation of a federal right] is more appropriately reserved for resolution on the merits of the case.” Lewis v. New Mexico Dep ‘t of Health, 261 F.3d 970, 976-977 (10th Cir. 2001). This court should not entertain an interlocutor)’ appeal to consider whether 42. U.S.C. § 1396a(a)(3) confers a federal right.2
A. Ex Parte Young Can Be Used to Enforce Medicaid Act Claims
In order to reconcile the principles that states have Eleventh Amendment immunity from private suits, but are still bound by federal law, the Supreme Court adopted the rule ofExparte Young. See Alden v. Maine, 527 U.S. 706, 753 (1999). *8 As such, when a state official acts in violation of the Constitution or federal law, made the “supreme court of the land” by the Constitution’s supremacy clause, the official is deemed to be acting ultra vires and is no longer entitled to the state’s immunity from suit. Ex pane Young, 209 U.S. 123 (1908). Accordingly, the doctrine permits prospective relief against a state official in his or her official capacity. See Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985); Edelman v. Jordan, 415 U.S. 651, 664, 667-668 (1974). By limiting relief to prospective injunctions against state officials, Ex parte Young precludes courts from entering judgments directly against the state while preventing state officials from continuing in actions which violate federal law.
The Young doctrine is described as a legal fiction, but its adoption by the Supreme Court, almost a century ago, serves the critical function of permitting federal courts to bring state policies and practices into compliance with federal law. “[T]he availability of prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy clause. [That is,] [Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law.” Green v. Mansout\ 474 U.S. 64, 68 (1985); see also Alden, 527 U.S. at 757 (“Established rules provide ample means to correct ongoing violations of law and to vindicate the interests which animate the Supremacy clause”).
Recently, this Court has specifically found that Medicaid Act provisions are enforceable under Ex parte Young. Frazar v. Gilbert, 300 F.3d 530, 550-51 (5lh Cir. 2002).3 In specifically rejecting Bale’s claim (See Brief of Defendant-Appellants, 13.) *9 that the Ex pane Young doctrine cannot be used to enjoin the state’s noncompliance with Medicaid Act provisions, the Fifth Circuit recognized the fundamental legal principle that “laws passed by Congress under its spending powers are the supreme law of the land.” The Court went on to say that Texas is not immune under the Eleventh Amendment for prospective injunctive relief when it violates Medicaid Act provisions. According to the Court,
.... Ex Parte Young cannot be swept aside because the state is the real party in interest. The raison d’etre for Ex parte Young and its continuing significance in our constitutional scheme is that it provides an exception to the Eleventh Amendment allowing injunctive relief against state officials where the state itself is for all practical purposes the real part) in interest in order to accommodate the Supremacy clause. In all such suits the state is sued in their official capacities, although the state is the real party in interest.
Id. at551&n.!09.
More recently, the First Circuit Court of Appeals also held that “the Eleventh Amendment does not prevent Medicaid beneficiaries seeking prospective injunctive relief against state officials in a federal court.” Rosie D. v. Swift, 310 F.3d 230, 237 (Pl Cir. 2002). In so holding, the Court observed that its refusal to construe the Eleventh Amendment to prohibit suits for prospective injunctive relief involving the Medicaid Act was preserving three decades of case law. Id. Moreover, the First Circuit observed that its holding in Rosie D., aligned it with “a broad coalition of other courts [including the Fifth Circuit’s decision in Frazar] which, subsequent to Seminole Tribe of Florida v. Florida. 517 U.S. 44 (1996), have rejected similar arguments aimed at barring suits for prospective injunctive relief commenced by *10 Medicaid beneficiaries against state actors.” Id., citing Frazar, 300 F.3d at 550-51 & n.9;Missouri’ Child Care Ass’n v. Cross* 294 F.3d 1034, 1038 (8’h Cir. 2002); Antrican v. Odom, 290 F.3d 178, 190 (4lh Cir. 2002); Westside Mothers\ \ Haverman, 289 F.3d 852, 862 (6” Cir. 2002); and Joseph A. ex re!. Corrinc Wolfe v. Ingram 275 F.3d 1253, 1264 (10th Cir. 2002). See also, Boulelv. Cellucci, 107 F.Supp.2d 61, 74 (D.Mass. 2000) (citing Ex pane Young, the court concluded that a suit challenging the constitutionality of a state official’s action, pursuant to the Medicaid Act, is not a suit against the state barred by Eleventh Amendment immunity.)
10

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...
B. Medicaid Act Provisions Are Enforceable Under 42 U.S.C. § 1983
Contrary to Hale’s claims (See Brief of Defendant-Appellants* 13-19.) and irrelevant to considerations of Eleventh Amendment immunity, it is well settled that § 1983 is an available remedy for claimed violations of federal statutes as well as violations of the Constitution. Maine v. Thiboutot, 448 U.S. I (1980); Wilder, 496 U.S. 498. The threshold test of whether a federal statute creates an enforceable right within the meaning of § 1983 is determined by whether there is a violation of an actual federal right, as opposed to merely a federal law. See Blessing, 520 U.S. 329 (citing Golden State Transit Corp. v. Los Angeles, 493 U.S. 103 (1989)). “[A] plainti ff alleging a violation of a federal statute will be permitted to sue under § 1983 unless (1) the statute [does] not create enforceable rights, privileges, or immunities within the meaning of § 1983 or (2) Congress has foreclosed such enforcement of the statute in the enactment itself.” Wilder, 496 U.S. at 508 (quoting Wrightv. Roanoke Redev. and Hous.Auth., 479 U.S. 418,423(1987).
*11 Courts look at three factors when determining whether a particular statutory provision gives rise to a federal right: (1) the plainti ff must be the intended beneficiary of the statute; (2) the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence; and (3) the statute must impose a binding obligation on the states (i.e., the provision giving rise to the asserted right must be couched in mandatory rather than precatory terms). See Blessing, 520 at 340; Wilder, 496 U.S. at 509; and Golden State, 493 U.S. at 1061.
In applying this threshold test in Wilder, the Supreme Court stressed the heavy burden the defendants have in showing that Congress has foreclosed § 1983 as a remedy, noting that kl[o]n only two occasions have we found a remedial scheme established by Congress sufficient to displace the remedy provided in § 1983.” Id. at 521 (citations omitted).4 In applying this test in Gonzaga v. Doe, 536 U.S. 273 (2002), the Supreme Court emphasized the first prong: that the plaintiff must be the intended beneficiary of the statute that the plaintiff must have “unambiguously conferred right to support a cause of action brought under § 1983.” Gonzaga, at 283.
Numerous provisions of the Medicaid Act have been found to be enforceable under § 1983. See Biyson v. Shumway, 308 F.3d 79, 89 (1st Cir. 2002) (reasonable promptness; post Gonzaga); Wood v. Tompkins, 33 F.3d 600 (6th Cir. 1994) (due process methods of administration as well as amount, duration, and scope); Sobky v. *12Smolev, 855 F. Supp. 1 123 (E.D.Cal. 1994) (state wideness, equal access, as well as amount, duration, and scope)Chenyv. Tompkins, 1995 VVL 502403 (S.D. OH 1995) (eligibility for Medicaid waiver services, notice, and reasonable standards); Wood v. Wallace, 835 F.Supp. 177, 182-84 (S.D.Ohio 1993) (Medicaid waiver right to community care instead of institutionalization); Blanchardv. Forrest71 F.3d 1 163, 1167-68 (5th Cir. 1996) (assuming 1396a(a)(10)(B) enforceable under § 1983 without expressly ruling). Further, as the Supreme Court explicitly declared in Wilder, “The Medicaid Act contains no provision for precluding private judicial or administrative enforcement.” Wilder, 496 U.S. at 521-522.
C. Medicaid Act Due Process Provision at § 1396a(a)(3) is Enforceable
Although it deals with the merits of McCarthy’s claims and not immunity, the Constitutional standards that guide due process for Medicaid beneficiaries were settled over 30 years ago by the United Slates Supreme Court in Goldberg v. Kelly, 397 U.S. 245 (1970). As described by Goldberg, the Due Process Clause of the Constitution requires the state and its agents to provide, among other things, prior written notice “tailored to the capacities and circumstances” of the beneficiary, explaining a decision to deny or terminate benefits and a fair hearing “at a meaningful time and in a meaningful manner” before an impartial decision maker. Id. at 267-71.
Based on Goldberg, the Medicaid Act, 42 U.S.C. § 1396a(a)(3), requires the state Medicaid Agency to grant an opportunity for a fair hearing “to any individual whose claim for medical assistance under the plan is denied or is not acted upon with “reasonable promptness.” Additionally, the regulations implementing the statute require written notice when services are denied, reduced, terminated, or suspended. *13 See 42U. S.C. § 1396a(a)(3); 42 C.F.R. § 431.21 1. SeeCheny, 1995 WL 502403 *17 (§ 1396a(a)(3) and its implementing regulations are coextensive with constitutional due process requirements). Courts have consistently upheld these principles. For example, in Meachem v. Wing, 77 F.Supp.2d 431, 440 (S.D.N.Y. 1999), the district court found that in light of Goldberg.§ 1396a(a)(3)’s fair hearing provision creates an enforceable legal right, stating:
11

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...
The standards required for Medicaid fair hearings are clearly set forth in the applicable statutes and regulations and would not be difficult to enforce. In fact, the implementing regulations specifically invoke the due process standard used by the Supreme Court in Goldberg v. Kelly, 397 U.S. 253 (1970)...as one requirement for Medicaid fair hearings. See 42 C.F.R § 431.205. A court is surely able to assess compliance with this standard since the standard itself was designed for courts to apply.
Id. See Blanchard, 71 F.3d 1163 (the Court found ample authority to hold that Congress unambiguously conferred a private right of action under $ 1396a(a)(3)); Wright, 479 U.S. at 423;Wilder, 496 U.S. at 522, (the Supreme Court held that Medicaid does not include a sufficiently comprehensive remedial scheme to preclude enforcement of the Medicaid Act under § 1983); KosieD., 310 F.3d 230.
Here, purportedly because of the cap on waivers. Hale routinely denies Medicaid waivers without providing an opportunity for a fair hearing. Hale cites to nothing in the Medicaid Act, the Constitution’s due process clause, or case law to support this policy and practice. Without proper notice and the right to challenge Kale’s denial of services, an individual would never be able to: (1) challenge the claim that there are no available waivers, when in fact there may be available waivers, (2) challenge the decisions regarding who gets waivers and who is placed on the waiting list, (3) challenge the failure to provide waiver services in a reasonably prompt *14 manner: a requirement under § 1396a(a)(3) that applies whether or not there are available waivers, or (4) challenge the failure to offer a choice between ICF/MR services and waiver programs. See Lewis. 94 F.Supp.2d 1217;Boulet, 107 F.Supp.2d 61.
Thus, given the clarity of the law and the practical reasons for ensuring due process, the contention that § 1396a(a)(3) is not enforceable or does not meet the requirements of Blessing, is without merit. See Cramer, 33 F.Supp.2d at 1352 (individualized due process notices required when a state statutory change denied beneficiaries a choice between an ICF/MR facility or a home and community-based waiver program). See also Eder v. Beal, 609 F.2d 695 (3rd Cir. 1979) (enjoining state from terminating its program for individuals in need of eyeglasses to correct ordinary refractive problems until it complied with Medicaid due process requirements.); Kimble v. Solomon* 599 F.2d 599 (4lh Cir. 1979), cert, denied, 444 U.S. 950 (1979)(when individual claims are denied, rejected, suspended, or changed, proper notice is required); Party v. Crawjbrd, 990 F.Supp. 1250(D.Nev. 1998) (beneficiaries required to be notified of fair hearing rights when applications for placement at an ICF/MR facility rejected); Salazar v. District of Columbia, 954 F.Supp. 278, 327-28 (D.D.C. 1996) (Medicaid agency must provide individual notice when benefits are suspended or denied); King v. Fallon, 801 F. Supp. 925 (D.R.I. 1992) (Medicaid agency must provide notice regarding level-of-care assessments governing eligibility for home and community-based waiver services); Daniels v. Wadley, 926 F.Supp. 1305 (M.D. Term. 1996), vacated in part, 145 F.3d 1330 (6th Cir. 1998) (Medicaid *15 managed care program must assure that enrollees receive due process when services are denied or delayed).
II. Hale May Be Sued Under Title 11 of the ADA
Eleventh Amendment immunity is not considered in a majority of Hale’s arguments concerning Title II of the Americans with Disabilities Act. In short, most of Hate’s argument attempts to have this Court consider the constitutionality of the Title II of the ADA in an interlocutory appeal. Questions of constitutionality are questions on the merits of a claim and far beyond considerations of Eleventh Amendment immunity. See Veri-on, at 642-43 (2002). The Court should decline to exercise pendant jurisdiction over them.
A. ADA Inclusion of Public Entities is No Bar to Its Enforcement
Relying on Walker v. Snyder 213 F.3d 344, 346 (7lh Cir. 2000) and Lewis, 94 F.Supp. 2d at 1230 (D.N.M. 2000)5, Hale contends that “the Seventh Circuit correctly recognized an irreconcilable conflict between the Young fiction and Title IPs requirement that suits be brought against a public entity.” Brief of Defendants-Appellants, at 20-22. The argument is that since Title II is directed against the state *16 rather than a state official, the Ex pane Young doctrine does not apply. Id. at 24.
12

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...
This argument misstates Exparte Young’s fundamental premise and purpose and has been rejected by the courts.
While the Constitution and countless federal laws limit what state governments may do, the Eleventh Amendment and sovereign immunity generally bar suits against state governments. Therefore, to ensure federal law is enforced, suits against state officials are allowed. See, Coenr d Alene Tribe Idaho, 521 U.S. at 288. The fact that the law is directed at the entity does not preclude its enforcement through suits against officials. If Defendants1 argument is accepted, then no duty imposed on a state government by the Constitution or a statute could be enforced.
In short, the rationale of Walker and Lewis is not persuasive because it ignores the fundamental legal doctrine that suits against state officials in their official capacities are, except for purposes of Eleventh Amendment immunity, suits against the entity itself. According to the Supreme Court, “[official-capacity suits... in general represent only another way of pleading an action against an entity of which an officer is an agent.’ As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity.” Graham, 473 U.S. at 165; see also Hafer v. Melo,5Q2 U.S. 21,25 (1991). Thus, by definition, officials in their official capacities are no more free to violate federal law than the entity itself.
Consistent with these and other Supreme Court decisions, the Sixth Circuit rejected a Walker/Lewis type rationale that claims Title 11 of the ADA allows suits only against an entity and not its officials in their official capacities. According to the Court,
*17 The problem with this argument is that it misrepresents Exparte Young, insofar as it fails to recognize the nuances [of the doctrine]. The court in [Ex pane Young] was not saying that the official was stripped of his official capacity for all purposes, but only for purposes of the Eleventh Amendment. This is evident in Exparte)og itself; though the official was not “the state” for purposes of the Eleventh Amendment, he nevertheless was held responsible in his official capacity for enforcing a state law that violated the Fourteenth Amendment, which by its terms applies only to “states.” And in rejecting the defendants’ Exparte Young argument, we make a similar distinction: an official who violates Title II of the ADA does not represent “the state” for purposes of the Eleventh Amendment, yet he or she may nevertheless be held responsible in an official capacity for violating Title II, which by its terms applies only to public entities].
Carten v. Kent State Univ., 282 F.3d 391, 395-396 (6lh Cir. 2002) (citations omitted).
And like the Sixth Circuit, the vast majority of district and appellate courts have ruled that state officials may be sued to enjoin violations of civil rights laws (like the ADA) that are directed to public entities. See Martin v. Taft, 222 F.Supp. 960 (S.D. Ohio 2002); Espinoza v. Tex. Dep’t of Pub. Safety, 2002 U.S. Dist. LEXIS 18465, at *18, 2002 WL 31191347 (N.D.Tex.); Johnson v. Louisiana, 2002 WL 83645 (E.D. La. Jan. 18, 2002); Reickenbacker v. Foster, 274 F.3d 974, 976 (5lh Cir. 2001).6
Even the Seventh Circuit has disavowed its earlier rationale delineated in Walker concerning the applicability of Ex pane Young in enforcing Title II of the ADA. Bruggeman v. Blagojevich, 324 F.3d 906 (7lh Cir. 2003). In Lewis v. New Mexico Dep’t of Health, it is important to note that the Tenth Circuit did not affirm the district court’s rationale concerning the availability of Ex pane Young in suits *18 involving Title II; following the inclusion of some of the named plaintiffs in the waiver program and the death of the remainder, the ADA claims were voluntarily dismissed. Lewis, 261 F.3d at 975.Walker has been ‘uniformly rejected by the other courts to have considered the issue’ and... it kdid not survive [Garrett] where the Supreme Court said that such a suit is indeed authorized by Exparte Young. Opinion of Judge Sparks, 6R1 1 I 7, citing Bruggeman, at 912-13. No court has adopted the only Eleventh Amendment immunity argument Hale makes in this appeal.
B. ADA Claims Against State Officials for Declaratory and Injunctive Relief Are Permitted Through Ex Parte Young
13

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...
One of the most important and basic principles of American law is that state officials may be sued to enjoin violations of the Constitution and federal law. In its most recent decision concerning enforcement of ADA against state entities. University of Alabama v. Garrett, 531 U.S. 356, 413 (2001), the Supreme Court expressly held that state officials may be sued to enforce Title 1 of the ADA, even though it concluded that the Eleventh Amendment bars suits directly against state government under Title I. More importantly, the Court emphasized that even though it held that state governments could not be sued directly for violations of Title I of the ADA, that did not mean the law was unconstitutional as applied to the states or that state governments could ignore it. The Court explained that the law still could be enforced against state governments through suits against individual state officials pursuant to Ex pane Young and via suits brought by the federal government. Garrett, 531 U.S. 356 at n.9.
For example, in Seminole Tribe, 517 U.S. 44, the Supreme Court reaffirmed that under Ex pane Young, the Eleventh Amendment does not bar actions for prospective *19 injunctive relief against state officials in their official capacities. Id. at 75. See also Idaho v. Coeurd’Alene Tribe of Idaho, 521 U.S. 261, 288 (1997) (“An allegation of an ongoing violation of federal law where the requested relief is prospective is ordinarily sufficient to invoke the Young fiction.”) (O1 Connor, J., joined by Scalia, J., and Thomas, J., concurring in part and concurring in judgment); Verizon Maryland, Inc. v. Public Service Commission oj Maryland, 535 U.S. 635 (2002)(the Supreme Court again explained its holding in Seminole Tribe and affirmed the general availability of Ex pane Young act ions to enforce federal statutes).
Since Garret!, every circuit court of appeal that has ruled on the issue has held that an individual sued in his or her official capacity under the doctrine of Ex parte Young is subject to liability for ongoing violations of Title II of the ADA. See Henrietta D. v. Bloomberg, 331 F.3d 261, 289-90 (2nJ Cir. 2003); Miranda B.\ \ Kitihaber, 328 F.3d 1181, 1187-88 (9th Cir. 2003) (holding “Title ITs statutory language does not prohibit Miranda B.’s injunctive action against state officials in their official capacities1’); Bruggeman, 324 F.3d at 913 (allowing Ex pane Young action, noting there is “no relevant difference between Title I and Title II, which governs access to services”); Carten, 282 F.3d at 396-97 (holding that state officials “are public entities insofar as they represent the state when acting in their official capacity”); Randolph v. Rodgers* 253 F.3d 342 (8lh Cir. 2001) (citing Garrett, holding that Ex parte Young permits injunctive action against a state official in his official capacity and does not require Title 11 of the ADA to provide explicit authority to sue state officials in their official capacity). See also, e.g., Martin, 222 F. Supp.2d at 959-61; Roe v. Ogden, 253 F.3d 1225 (10th Cir. 2001) (post-Garreff case allowing Ex parte Young claim to enforce Title II).
*20Garrett and its progeny confirm that the abrogation issue raised by Hale is a “red herring,” Martin, 222 F. Supp. at 960, and that McCarthy can bring this Exparle Young action. ‘To hold otherwise would be to create a catch-22 situation for ADA plaintiffs, and the Court [should] not follow such absurdity unless mandated to do so by relevant precedent.’Opinion of Judge Sparks, 6RM J 7-1118.
C. Injunctive Relief Is Still Available Under Ex Parte Young Even If Title II Exceeds Congress Authority to Allow a Suit Directly Against the State
This Court has held that Congress did not validly abrogate the state’s Eleventh Amendment immunity because Title II of the ADA exceeds Congress1 § 5 authority in the Fourteenth Amendment. Reickenbacker, 274 F.3d 9747. However, the appeals court went on to say that sovereign immunity “... is no bar to suits for injunctive relief against state officials.” Id. at 976, citing Ex parle Young, 209 U.S. at 159-60 (1908). The reason for this caveat is obvious; a failure in abrogation of Eleventh Amendment immunity does not effect the availability of injunctive relief against state officials provided by Ex pan’e Young.
*21D. Title II Of the ADA Was Enacted Pursuant Congress’ Authority Under the Fourteenth Amendment and the Commerce Clause
Congress intended to use both the Fourteenth Amendment and the commerce clause to remedy discrimination against persons with disabilities in enacting the ADA. United States vs. Mississippi Dep’t of Public Safety, 321 F.3d 495 (Cir. 2003). While the court in Reickenbacker found Congress1 abrogation of sovereign immunity in Title II of the ADA has been found to exceed its authority under § 5 of the Fourteenth Amendment, no court has decided that Title II of the ADA is impermissible
14

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...
legislation undereither the Fourteenth Amendment or commerce clause authority.
Mississippi Department of Public Safety illustrates these points. The Department (“MDPS”) claimed that “the ADA’s regulation of state activity (here employment) is an unconstitutional exercise of congressional authority.” Id. at 499. Moreover, MDPS claimed, as Hale does in this case, that Congress, in enacting the ADA, re\ \ ed exclusively on § 5 of the Fourteenth Amendment to apply the ADA to the state; as such, the ADA as applied to the states is an unconstitutional exercise of congressional power.8Id. at 499 (emphasis added). See Brief of Defendants-Appellants, at 22. In rejecting this contention this Court said:
[tjhis argument is flatly contradicted by the statutory language of the ADA. One of the express purposes of the ADA is “to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.” 42 U.S.C. § l20l(b)(4)(2000). Thus, Congress’intent in enacting the ADA was to use both the Fourteenth Amendment and the commerce clause to remedy discrimination.
*22Id.at 500.
1. Title II Is Constitutional Under the Fourteenth Amendment
Contrary to Male’s argument, (See Brief of Defendant-Appellants, 22-23.) Rickebacker did not find Title 11 to be unconstitutional. 274 F.3d at 983. To the contrary, Rickenbacker specifically says that despite Garret/, Title II is still good law: “This narrowing of the analysis in Garrett means that Title 11 of the ADA could still be a valid exercise of Congress1 § 5 power, but simply not provide the basis for a use of that power to abrogate, thus drawing a distinction between C//V of Boerne and Seminole Tribe.” Rickenbacker at 982 n.60 (citing to Thompson v. Colorado, 258 F.3d at 1253 n. 7). As Thompson stated:
As a result of the directive in Garrett that only congressional findings of constitutional violations by beneficiaries of the Eleventh Amendment be considered, a determination that a statute is not a valid abrogation of Eleventh Amendment immunity does not necessarily mean that the statute is not a valid exercise of Congress’ power to enforce the Fourteenth Amendment. Because the Fourteenth Amendment applies to local government entities not entitled to Eleventh Amendment immunity, the analysis of whether Congress has the power to enact legislation requires inquiry into constitutional violations of these entities in addition to entities entitled to Eleventh Amendment immunity.
Thompson at 1253, n.7
Other appeals courts have reached similar conclusions. In Garcia v. S. U.N. Y. Health Sciences Center, 280 F.3d 98, 108 (2nd Cir. 2001), the Second Circuit found that “[w]hen operating under § 5 Congress may prohibit conduct that itself violates the Fourteenth Amendments’s substantive guarantees. Congress may also remedy or deter violations of these guarantees by ‘prohibiting a somewhat broader swath of conduct” than is otherwise unconstitutional, Garrett, 121 S.Ct. at 963 (internal quotation marks and citation omitted), subject to the requirement that there be *23 ‘congruence and proportionality between the [violation] to be prevented or remedied and the means adopted to that end.”’ Id at 108. See also, Tennessee v. Lane, 315 F.3d 680, 682 (6th Cir. 2003)(“Based on the record before Congress in considering the Americans with Disabilities Act legislation, it was reasonable for Congress to consider that it needed to enact legislation to prevent states from unduly burdening constitutional rights.”), cen granted in part, 123 S.Ct. 2622 (2003); Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808, 820 (6lh Cir. 2002)(Concurring, C.J. Moor, ‘Title 11 may prohibit conduct which is not itself unconstitutional and intrude into legislative spheres of autonomy previously reserved to the States/’).
The enforcement clause of the Fourteenth Amendment allows Congress to pass laws “that... prohibit conduct which is not
15

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...
itself unconstitutional and to intrude into legislative spheres of autonomy previously reserved to the States.” United States v. Morrison, 529 U.S. 598, 620 (2000). In other words, “[legislation which deters or remedies constitutional violations can fall within the sweep of Congress’ enforcement power even if in the process it prohibits conduct which is not itself unconstitutional.” Lope: v. Monterey County 525 U.S. 266, 282-283 (1999). Because Title II responds to the States’ historic and enduring legacy of discriminating, segregating, and isolating persons with disabilities, Title II meets this legislative requirement. The legislation is “designed to guarantee meaningful enforcement” of constitutional rights in light of the historic and enduring legacy of discrimination, segregation, and isolation against persons with disabilities by the States. Garrett at 967.
Title 11 is Congress’ response to this history of discrimination against persons with disabilities. Moreover, Title II consistent with other federal statutes that *24 address historical discrimination - protects persons with disabilities against State conduct that although constitutional is nonetheless proscribed by a statute.9 For instance, under Title II Congress requires that States be prepared to make “reasonable modifications” in providing public services. 42U.S.C. § 12131(2). Given the history’ of segregation and isolation and the resulting entrenched stereotypes, fear, prejudices, and ignorance about persons with disabilities, Congress reasonably determined that a simple ban on discrimination would be insufficient to erase the stain of discrimination. Cf. Green v. County Sch. Bd., 391 U.S. 430, 437-498 (1968)(after unconstitutional segregation, government is “charged with the affirmative duty to take whatever steps might be necessary”” to eliminate discrimination “root and branch”). Therefore, Title II affirmatively promotes the integration of individuals with disabilities - both in order to remedy past unconstitutional conduct and to prevent future discrimination.
Without Title II, Congress could assume that states would continue to exclude, isolate, and segregate persons with disabilities, not taking responsibility for accommodating and integrating such persons into their programs or services. Congress was also correct to conclude that integrating persons with disabilities into *25 the community reduces stereotyping, helps dispel misconceptions, and reduces the likelihood that constitutional violations will reoccur. Cf. Olmstead v. Zimring, 527 U.S. 581,600 (1999)(segregation “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.”).
To ensure against this kind of discrimination, Congress requires states to modify their services, policies, and programs where reasonable. 42 U.S.C. § 12131(2). States need not make modifications when to do so would fundamentally change the essential nature of the program or activity. 28 C.F.R. §§ 35.130(b)(7), 35.150(a)(3), 35.164; Olmstead, 527 U.S. at 606 n.16. Cost, available agency resources, and operational practices help determine whether the modification is reasonable or would fundamentally alter the program or activity. Id. Congress determined, based on the testimony of witnesses and expert studies, that contrary to the misconceptions of many, the vast majority of accommodations entail little or no cost.10 Furthermore, these costs are mitigated when measured against the financial and human costs of denying persons with disabilities needed government services or the equal exercise of fundamental rights, thereby rendering them a permanent underclass. See Plyer v. Doe, 457 U.S. 202, 223-224, 227(1982).
“A proper remedy for an unconstitutional exclusion aims to eliminate so far as possible the discriminatory effects of the past and to bar like discrimination in the future.” United States v. Virginia, 518 U.S. 515, 547 (J996). Section 5 of the Fourteenth Amendment thus empowers Congress to do more than simply prohibit the *26 creation of new barriers to equality; it can enjoin states to tear down the walls erected decades earlier that excluded and discriminated against persons with disabilities. See Id. at 550, n. 19 (Equal Protection Clause itself can require modification of facilities and programs to ensure equal access).
2. Title II is Constitutional Under the Commerce Clause
Contrary to Male’s argument (See Brief of Defendant-Appellants, 23-26), the Supreme Court in Garrett made plain its view that Title 1 of the ADA still governed the conduct of states and that state officials could be subjected to actions in federal court for injunctive relief for violations of Title I, by stating:
Our holding here that Congress did not validly abrogate the States sovereign immunity from suit by private individuals for money damages under Title I does not mean that persons with disabilities have no
16

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...
federal recourse against discrimination. Title 1 of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages as well as by private individuals in actions for injunctive relief under Exparte Young, 209 U.S. 123(1908).
Garret!, 531 U.S. at n.9 (emphasis added).
Garret fs conclusion is in accord with the Supreme Court’s decision under the Age Discrimination in Employment Act (“ADEA”). In Kimel v. Florida Bd. Of Regents, 528 U.S. 62 (2000), the court held that Congress could not validly abrogate states’ Eleventh Amendment immunity under the ADE A because it was not congruent and proportional to the scope of the equal protection clause’s application to age based discrimination. Thus, individuals could not sue state agencies for monetary damages under the ADEA. Id. at 78-91. However, the Supreme Court in Kimel expressly reaffirmed its holding in EEOC v. Wyoming, 460 U.S. 226, 243 (1983), in which it held the ADEA was a valid exercise of Congress’ power under the commerce clause.
*27KimeL 562 U.S. at 78.11
Garretl’s implicit conclusion that the ADA is valid under the commerce clause is consistent with its recent commerce clause jurisprudence. United Stales v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), establish the current framework for assessing the validity of federal legislation under the commerce clause. The Lopez Court reaffirmed the rational basis test used to evaluate the constitutionality of congressional action. 514 U.S. at 557. The Court also reaffirmed the long standing rule that “Congress commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce” including “those activities that substantially affect interstate commerce.” Id, at 558-559. In Morrison, the Court identified four factors to be considered in determining whether an activity “substantially affects” interstate commerce so as to be within the bounds of congressional authority: (1) the “economic nature of the regulated activity”; (2) the existence of a jurisdictional element; (3) the existence of congressional findings concerning the impact of the activity on interstate commerce; and (4) whether the link between the regulated and the interstate activity was too attenuated. Mom’son, 529 U.S. at 611;United States v. Gregg, 226 F.3d 253,263 (3rd Cir. 2000), cert denied, 532 U.S. 971 (2001). The following factors demonstrate that the ADA is valid commerce clause legislation:
*28a. ADA’s Integration Mandate Regulates Economic Activity
Lopez and Morrison require that the regulated activity be economic in nature. Congress may regulate purely intrastate activities if they either “arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.” Lopez, 514 U.S. at 561. The Third Circuit has recognized the “specific activity that Congress is regulating need not itself be objectively commercial, as long as it has a substantial effect on commerce.” United States v. Rodla, 194 F.3d 465,481 (3rd Cir. 1999), cert, denied.120 S.Ct. 2008 (2000).
The ADA’s integration mandate, 42 U.S.C. § 12132 and 28 C.F.R. § 35.130(d), substantially affects economic and commercial activities. The provision of community-based residential and non-residential service alternatives for persons who are unnecessarily institutionalized is an economic and commercial activity. Community-based alternatives are provided by both public and private entities under contract with Texas’ county mental retardation programs. These private entities are engaged in an economic enterprise. These private providers hire and pay staff; purchase or rent houses or other facilities in which to provide the services; retain and pay attorneys, accountants, and other professional advisers; borrow money to finance the transactions; and, engage in other activities in which any other business would engage. The provision of community-based services to individuals with disabilities who are unnecessarily institutionalized or at risk of being institutionalized, therefore, implicates an entire commercial industry.
The Fifth Circuit’s decision in Groome Resources Ltd. L.L.C. v. Parish of Jefferson. 234 F.3d 192,205-06 (5lh Cir. 2000), illustrates this point. In that case, the *29 appeals court held that the “reasonable accommodation” provision of the Fair
17

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...
Housing Amendments Act (“FHAA”), 42 U.S.C. § 3604(f)(3)(B) is valid under the commerce clause. Id. As a result, local zoning.boards were required to make reasonable accommodations to allow the operation of group homes for persons with disabilities. Id. The Court determined that the FHAA’s reasonable accommodation provision affects commercial housing transactions, (i.e., purchases and rentals of housing by group home providers), “and, therefore fits well within the broad definition of economic activity established by the Supreme Court and other circuits.” Id. at 205. The commercial use of property “unquestionably is an ‘activity that affects commerce.” Id. at 207. The Court also noted that the local discrimination by zoning boards which refuse reasonable accommodations for people with disabilities “may be regulated on a federal level for people if that local refusal affects the national economy.” Id. at 210-21 I. Like the local zoning decisions that are regulated by the FHAA reasonable accommodation provision, the state’s unnecessary institutionalization of people with disabilities that are regulated by the ADA’s integration mandate also substantially affects providers’ commercial and economic activities and the national economy.
The integration mandate affects the commercial and economic activity of a variety of groups including providers, individuals who are unnecessarily institutionalized, and individuals who are at a risk of being unnecessarily institutionalized. As Justice Ginsburg wrote for the majority in Olmslead,:
[Confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.
*30Id. at 60 i.
By its very nature, being institutionalized and being at risk of institutionalization can adversely affect commerce. For example, such discrimination can affect an individual’s ability to work, travel, shop, go to the movies, take classes, or engage in any number of other economic or commercial transactions.
In Gregg, the Third Circuit upheld as valid commerce clause legislation the Freedom of Access to Clinic Entrances Act (“FACE”). This law allows the government to enjoin certain protests at abortion clinics. Gregg, 226 F.3d at 261-67. Analyzing FACE under the Lopez and Morrison criteria, the court had little trouble concluding that interrupting health care provider services and preventing individuals from accessing abortion services is an activity “with an effect that is economic in nature.” Id. at 262. Like activity regulated by FACE, the ADA’s integration mandate impacts the provisions of community mental retardation services as well as access to these services to persons who are either unnecessarily institutionalized or at risk of being institutionalized. In both cases, the economic impact and nature of the activity is the same. Finally, as the Fifth Circuit noted in Groome Resources:
... in the context of the strong tradition of civil rights enforced through the Commerce Clause - a tradition in which the FHAA firmly sits - we have long recognized the broadly defined “economic” aspect of discrimination... As long as there is recognition of an interstate effect, discrimination, even local discrimination, can be regulated under Congress’s commerce power.
234 F.3d at 209 (citing Heart of Atlanta Motel, Inc. v. United States, 397 U.S. 241, 257-58 (1964)). Similarly, Congress has broad authority under the commerce clause to regulate disability-based discrimination through the ADA.
*31b. Absence of a Jurisdictional Element Does Not Undermine The Validity of the Integration Mandate
While the ADA does not contain an express Jurisdictional element (i.e., a requirement that limits its application to public services, programs, and activities that impact interstate commerce), the absence of a Jurisdictional element does not render the ADA in general (and the integration mandate specifically) invalid under the commerce clause. See Gregg, 226 F.3d at
18

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...
263;Groome Resources, 234 F.3d at 211. The ADA regulates activities which explicitly impact interstate commerce.
c. ADA’s Congressional Findings Support The Interstate Impact of Disability Based Discrimination In adopting the ADA, Congress expressly “invoke[d] the sweep of congressional authority, including the power... to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.” 42U.S.C. § 12101(b)(4). Congress specifically found that isolation and segregation of individuals with disabilities is “a serious and pervasive social problem” and that discrimination “persists in such critical areas as... institutionalization.” 42U.S.C. § 12IOl(a)(2M3).
Perhaps most significantly, for purposes of the commerce clause, Congress found that:
[T]he continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and non-productivity.
42U.S.C. § 12101(a)(9).
Congress’s findings concerning the economic and commercial impact of *32 disability-based discrimination are “entitled to judicial deference.” Gregg, 226 F.3d al 263.
Congressional findings on the ADA support the economic effects of integrating people with disabilities into society:
Certainly, the elimination of employment discrimination and the main streaming of persons with disabilities will result in more persons with disabilities working, in increased earning, in less dependence on the Social Security system for financial support, in increased spending on consumer goods, and increased tax revenue.
S. REP. NO. 101-116, at 17 (19 H.R. REP. No. 101-485, pt. 2, at 43-44 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 325-26. Accord 89). The House Education and Labor Committee also noted in an “increasingly competitive international economy, our nation must adopt policies which result in a bridging of the vast gulf separating the actual from the potential contributions of people with disabilities to the economy.” HR. REP. NO. 101-485, pt. at 45 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 327. The Committee concluded by stating that there is a “compelling need to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and for the integration of persons with into the economic and social mainstream of American life.” Id. at 50 (emphasis added), reprinted in 1990 U.S.C.C.A.N. at 332.
These formal and informal congressional findings are more than sufficient to establish the impact of disability-based discrimination on interstate commerce. See Groome Resources, 234 F.3d at 211-14 (evidence before Congress, indicating disability-based discrimination “place[sj burdens on the interstate movement of persons and commerce1’ is sufficient to support the FH AA as valid commerce clause legislation). Indeed, “as the connection between racial discrimination and its affect *33 on interstate commerce had been established • in Heart of Atlanta Motel and [Kaizenbach v.J McChmg, Congress was well within its institutional authority to act to prevent discrimination against the disabled.” Groom Resources, 234 F.3d at 213.
19

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...
d. Congress Had a Rational Basis to Conclude that the ADA and its Integration Mandate Have a Substantial Affect on Interstate Commerce
The final factor under Morrison is consideration of whether Congress had a rational basis upon which to conclude that the activities governed by the ADA and its integration mandate have a substantial effect on interstate commerce. See Gregg, 226 F.3d at 263. The link between the statutory requirement and interstate commerce must be sufficiently direct and not too attenuated. See Morrison, 529 U.S. at 610-13;Groome Resources, 234 F.3d at 214-15.
Upholding the FHAA’s reasonable accommodation requirement, the Fifth Circuit concluded:
We do not need to pile “inference upon inference” to see that by refusing to reasonably accommodate the disabled by discriminatory zoning laws, there will be less opportunity for handicapped individuals to buy, sell, or rent homes. The attendant financial loss to the economy from Groome Resources’ failed attempt to purchase such a house in Louisiana is a case in point.
Groome Resources, 234 F.3d at 215.
There is no “need to pile inference upon inference” to determine that the failure to provide community services to persons who are unnecessarily institutionalized or at such risk means that: (1) such individuals will be burdened in their ability to engage in interstate commerce (including working and shopping) and will be burdened in their inability to engage in interstate travel; and (2) that there is a financial loss to the economy since providing community services would enable private providers to *34 expand their services and programs. Further, as the Fifth Circuit observed, the logic of the Supreme Court’s decisions in Heart of Atlanta Motel and Katzenbach v. McChing upholding links between local racial discrimination and interstate commerce, is binding. See Groome Resources, 234 F.3d at 215.
E. The ADA as Commerce Clause Legislation Does Not Violate the 10th Amendment
Hale cites Reno v. Condon, 528 U.S. J41 (2000), in which South Carolina challenged the constitutionality of the Driver’s Privacy Protection Act. See Brief of Defendant-Appellants, 26-28. The case involved the scope of a Congressional mandate restricting the ability of the States to disclose a driver’s personal information without the driver’s consent, and the Tenth Amendment.
Although the holding in Reno is adverse to them. Hale uses it to refer to a passage in the case in which the court noted “previous invalidations’1 of commerce-related laws “not because Congress lacked legislative authority over the subject matter, but because those statutes violated the principles of federalism contained in the Tenth Amendment.” Id. at 149. The “previous invalidations” to which the court refers are the holdings in New York v. United States, 505 U.S. 144 (1992), and Print-v. United States, 521 U.S. 898 (1997).
In New York, Congress “commandeered the state legislative process by requiring a state legislature to enact a particular kind of law”. Reno, 528 U.S. at 149, ref. Ne\ v York, 505 U.S., at 162. And, in Printz, a provision of the Brady Act commanded “state and local enforcement officers to conduct background checks on prospective handgun purchasers.” Reno, 528 U.S. at 149, citing Printz, 521 U.S. at 902. The Reno case involved a restriction of activity; the New York and Printz cases, *35 involved affirmative requirements to establish a prescribed enforcement scheme.
Although the Reno Court makes reference to New York and Prints the Court still holds the federal regulation in Reno is constitutional, stating that the Driver’s Privacy Protection Act is “consistent with the constitutional principles enunciated in New York and Prinlz” because it “does not require the South Carolina Legislature to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals.”Reno, 528 U.S. at 149.
20

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...
Similarly, Title 11 of the ADA does not require the Texas Legislature to enact any laws or regulations; nor does it require state officials to assist in the enforcement of federal statutes regulating private individuals. It simply prohibits discrimination, and provides a remedy when the state does not heed the law.
A case more on point is Hicks v. Armstrong,\ 16 F.Supp.2d 287 (D. Conn. 1999), where a paraplegic pretrial detainee brought a Title 1I ADA suit against the State of Connecticut and local law enforcement officials as a result of injuries he suffered because of defendants1 failure to make reasonable accommodations for his condition. The Hicks Court denied defendants’ motion to dismiss, holding that the ADA does not violate the Tenth Amendment. In Hicks, the State Defendants argued that the “ADA violates the principles of federalism set forth in New York and Printi because it is one example of the federal government compelling the states to enact or administer a federal regulatory program.” 116 F.Supp.2d at 293. Hicks addressed Defendants’ contentions by stating that: ... the ADA violates neither of the prohibitions set forth in New York and Printz because Congress neither commandeers the states1 legislative processes by directly compelling them to enact or administer a federal regulatory program, as prohibited by the Court in New York, nor compels states to implement, enact, or administer, bv legislation or executive *36 action, a federal regulator) program, as prohibited by the Court in Priniz. Id. at 293.
The Hicks Court goes on to say:
The ADA does not require states to pass anti-disability legislation. Moreover, the ADA does not press into federal service state officers and require them to enforce Congressional anti-disability discrimination statutes. The ADA simply requires that state officials abide by the ADA’s requirements.
Id.
Further, “Title II does not compel states to implement or administer a federal regulatory program to remedy or prevent discrimination on the basis of disability. Rather, Title II of the ADA prohibits the state itself from engaging indiscrimination on the basis of disability.” Id. at 293, citing Thompson v. State of Colorado, 29 F.Supp.2d 1226, 1237 (D. Colo. 1998).
III. Hale May Be Sued Under § 504 of the Rehabilitation Act of 1973
Eleventh Amendment immunity is not considered in any.of Male’s arguments concerning § 504. See Brief oj Defendantappellants, 28-3 1. Questions of statutory validity are not intertwined with considerations of Eleventh Amendment immunity and the Court should decline to exercise pendant jurisdiction over them. See Le\ vis v. New Mexico Dep of Health, 261 F.3d 970, 978-979 (10th Cir. 2001).
Defendants argue that § 2000d-7(a) does not waive Eleventh Amendment immunity. This claim is contrary to federal legislation, Supreme Court precedent, and the precedent of every circuit court that has addressed this issue.
Section 2000d-7 is a valid exercise of Congress’s power under the spending *37 clause, Art. I, § 8, Cl. 1, to require state agencies that voluntarily accept federal financial assistance under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, to waive their Eleventh Amendment immunity. See College Sav. Bank v. Florida Prepaid Postec. Ednc. Expense Bd., 527 U.S. 666, 674 (1999). That is, Congress may, in the exercise of its spending power, condition its grant of funds to the states upon their taking certain actions that Congress could not require them to take -“acceptance of the funds entails an agreement to the actions.”12Id. at 686. Therefore, Congress may condition the receipt of federal funds on defendants’ waiver of Eleventh Amendment immunity to § 504 claims.13
A. By Accepting Federal Funds Pursuant to § 2000d-7, States Validly Waive Eleventh Amendment Immunity
The Supreme Court in South Dakota v. Dole, 483 U.S. 203 (1987) recognizes that the financial inducement of federal funds “might be so coercive as to pass the point at which ‘pressure turns into compulsion’.” Id. at 211 (quoting Steward Mach. Co.
21

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...
v. Davis, 301 U.S. 548, 590 (1937)). But the Court went on to hold that although every congressional spending statute “is in some measure a temptation,” the Court nonetheless recognized that “to hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties.” Id. (citing *38California v. UnitedStales, 104F.3d 1086, 1092(9vhCir. 1997), cert, denied, 522 U.S. 806 (1997)).
The federal government can place conditions on federal funding that require states to make the difficult choice of losing federal funds from many different longstanding programs, or even losing all federal funds, without crossing the line to coercion. See Board of Education v. Mergens, 496 U.S. 226 (1990); North Carolina ex rel Morrow v. Califano, 445 F. Supp. 532 (E.D.N.C. 1977) (three-judge court), affd mem., 435 U.S. 962 (1978). Further, mJim C. v. U.S., 235 F.3d. 1079 (8th Cir. 2000), the Eight Circuit held that § 504 embodies the “ordinary quid pro quo that the Supreme Court has repeatedly approved.” Id. at 1081-82; see also West Virginia v. United States Dep’/ of Health & Hum. Sen’s., 289 F.3d 281, 289 (4’h Cir. 2002)(there has been no decision from any court finding a conditional grant to be impennissibly coercive).14
B. By Accepting Federal Funds States are Subject to Private Suits Brought Under § 504 of the Rehabilitation Act
The issue of whether the Rehabilitation Act properly waives a State’s immunity under the Eleventh Amendment has been resolved by both Congress and the courts. Congress enacted § 2000d-7 in response to the Supreme Court’s decision in Atascadero Stale Hospital v. Scanlon, 473 U.S. 234 (1985). In Atascadero, the Supreme Court held that Congress had not provided sufficiently clear statutory language to condition receipt of federal financial assistance on waiver of states *39 Eleventh Amendment immunity for § 504 claims. See Atascadero, 473 U.S. at 246-47. In response to holding. Congress enacted 42 U.S.C. § 2000d-7. This statutory provision unambiguously puts states on express notice, that part of the “contract” for receiving federal funds is the requirement that it consent to suit in federal court for alleged violations of § 504.
Since the court’s decision in Atascadero, the Supreme Court, the Fifth Circuit, and every other federal circuit court that has addressed § 2000d-7 has concluded that by accepting federal funds, a state waives its immunity under the Eleventh Amendment. In Lane v. Pena, 518 U.S. 187, 200 (1996), a case involving the Rehabilitation Act, the Supreme Court held that “Congress responded to our decision in Atascadero by Grafting an unambiguous waiver [in § 2000d-7] of the States Eleventh Amendment immunity...” In Pederson v. Louisiana Slate Univ., 213 F.3d 858, 876 (5lh Cir. 2000), a case involving equal athletic opportunities for men and women at the college level, the Fifth Circuit determined that “we find that in 42 U.S.C. 2000d-7(a)(a) Congress has successfully codified a statute which clearly, unambiguously, and unequivocally conditions recipient of federal funds... on the State’s waiver of Eleventh Amendment immunity’...” See also Reickenbacket\ 274 F.3d at 984 n. 73. Since Reickenbacker, three district court decisions within the Fifth Circuit’s jurisdiction have held that a state waives its sovereign immunity in Ex part e Young proceedings under the Rehabilitation Act when the state receives federal funds. See August v. Mitchell, 205 F. Supp.2d 558, 561 (E.D. La. 2002); Johnson v. Louisiana, 2002 WL 83645 at *5 (E.D. La. 2002); Espinoza v. Tex. Dep’t of Pub. Safety, 2002 WL 31191347 (N.D. Tex. 2002).
In accordance with the Supreme Court and the Fifth Circuit, ever)7 other federal *40 court to address this issue has determined that § 2000d-7’s provisions are unambiguous and states waive their Eleventh Amendment immunity by agreeing to accept federal funds. See Clark v. California, 123 F.3d 1267, 1271 (9lh Cir. 1997); Douglas v. California Dep’t oj’Youth Anth., 271 F.3d 812, 820, opinion amended, 271 F.3d 910 (9lh Cir. 2001); Carter 282 F.3d at 398;Nihiser v. Ohio EPA,269 F.3d 626, 628 (6’h Cir. 2001); Jim C, 235 F.3d 1079;Stanley v. Litscher, 213 F.3d 340 (71’1 Cir. 2000); Litman v. George Mason University.\ 86 F.3d 544,553 (4th Cir. 1999); Koslow v. Pennsylvania, W2 F.3d 161 (3rdCir. 2Q02);Sandoval v. Hagan, 197 F.3d484,493-94 (lllh Cir. 1999) (Title VI), rev’don other grounds, 532 U.S. 275 (2001).
CONCLUSION
ACCORDINGLY, Hale’s claims of Eleventh Amendment are invalid. McCarthy prays that this cause be remanded to the trial court for further proceedings.
Footnotes
22

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...

1

The district court relied upon a similar factual assumptions in dismissing McCarthy’s claims under 42 U.S.C. § 1396n(c)(2J(CJ and

42 U.S.C. § 1396a(a)(8). See 6R1110-1111. The district court relied upon a different assumption regarding the timing in which

some receive waiver services yet others remain on the waiting list in dismissing McCarthy’s equal protection argument under the

Fourteenth Amendment. See 6R1115. However, in that these claims were dismissed pursuant to F.R.C.P. 12(b)6, the claims can be

alleged again, ifdiscovery demonstrates the claims are warranted.

2

It is helpful to know that Blessing v. Freestone, 520 U.S. 329 (1997), Wriht v. Roanokc Redevelopment & Hows. Aulh:, 479 U.S.

418 (.1987). and California v. Sierra Club, 451 U.S. 287 (1981) followed motions for summary judgment. Gon:aga Univ. v. Doe.

536 U.S. 273 (2002) followed trial on the merits. Presumably, the plaintiffs in these cases were permitted opportunities for

discovery, and the courts were not forced to rely upon factual assumptions.

3

In Frazar. the Fifth Circuit rejected claims made in West Side Mothers v. Havcrman. that the Medicaid Act was not the supreme

law of the land under the Supremacy clause. And as the Filth Circuit noted, this part of the district court’s holding was

subsequentJy reversed. See Westside Mothers v. Havcrman, 133 F.Supp. 549(E.D. Mich. 2001). aff d in part, rev Win part, 289

F.3d 852 (6lh Cir. 2002).

4

The Supreme Court held the Boren Amendment to the Medicaid Act to be enforceable. This Amendment required the states to

reimburse health care providers according to reasonable rates, adequate to meet the costs of efficient and economically operated

facilities. In its finding, the Court found both that reimbursement was a mandatory obligation and the term “reasonable rates” was

not ambiguous when read in light of HCFA regulations that described factors to be considered in determining the reasonableness of

rates. Sec Wilder, 496 U.S. at 510. 519.

5

The courts’ decisions in both Walker r. Snyder. 213 F.3d at 347 and Le\ vis, 94 F.Supp.2d at 1217 were rendered prior to the

Supreme Court’s decision in Gurrett. Walker holds that because Title [1 applies to “public entities],” its duties do not extend to the

“employees or managers of these organizations” individually and thus there was no “personal liability.” hi at 346. But a decision in

Illinois recognizes the questionable vitality of the Seventh Circuit’s rationale in Walker in the aftermath ofGarrctl. See Boudrcau e\

rel. Boitdreau v. Rvan. No. 00-5392. slip op. at 14n.5. 2001 WL 840853 (N.D. 111. May 2,2001). And the Seventh Circuit

abandoned this holding in Bruggeman v. Bldgojevic/i. 324 F.3d 906 (7lh Cir. 2003) Similarly, the court in Lewis did not

distinguish between claims brought against individuals in their individual capacities as distinct from their official capacities ancf

did not consider the statements regarding this issue in Gurreli. See Martin v. Tafi. 222 F.Supp.2d 940, 957 n. 10 (S.D. Ohio 2002).

6

See also. Roe #2 v. Oden. 2001 WL 686443 (10th Cir. 2001): Randolph v. Rogers. 2001 WL 641599 (8lh Cir. 2001): See, e.g. In re

Elicit, 254 F.3d 1135,1146 (9lh Cir. 2001); Tclespectrum. Inc. v. Public Sen: Comm *n o/A’v., 227 F.3d 414, 420 (6lh Cir. 2000);

Fredrick L v. Department of Public Welfare, 157 F. Supp.2d 509. 531-32 (E.D. Pa. 2001)J.Bex rel. Hart v Valdcz. 186 F.3d 1280.

1286-87 (10lh Cir. 199): Nelson v. Miller. 1 70 F.3d 641,646-47 (9’h Cir. 1999); Armstrong v. Wilson, 124 F.3d 1019, 1025-26

(9lh Cir. 1997). cen. denied, 524 U.S. 937 (1998).

7

The Court in Garrett recognized that Title I of the ADA “can be en forced... by private individuals in actions for injunctive relief

under Exparle Young.”531 U.S. at 374 n.9. When Congress enacted Title II. it did not limit the availability of equitable remedies.

To the contrary. Congress expressly incorporated the remedies of Title VI. See 42 U.S.C. § 12133; 29 U.S.C. 794a; Garcia. 280

F.3d at 111. In Franklin v. Gwinmll County Public Schools. 503 U.S. 60 (1992), the Court held that the remedies available under

Title IX of the Education Amendments of 1972,20 U.S.C. § 1681, a statute modeled on Title VI. were governed by the “general

rule” under which “absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate

relief in cognizable causes of action brought pursuant to a federal statute.” Id. at 70-71. The holding of Franklin applies to Title II

as well. See Bartleil v. New York State Bd. Oj Law Exam’rs.\ 56 l:.3d 321.331 (2nd Cir. 1998). vacated on other grounds, 527 U.S.

1031 (1999).

8

To be clear, a lack of authority to abrogate Eleventh Amendment immunity does not equate to a lack of constitutional authority to

enact a statute pursuant to the Fourteenth Amendment.

9

Legislation prohibiting or requiring modifications of rules, policies, and practices that have a discriminatory impact is a traditional

and appropriate exercise of § 5 power to combat a history of invidious discrimination. Sec Full Hove v. Klulznick, 448 U.S. 448,

477(1980)(opinion of Burger C.J.H “[Congressional authority [under § 5, I4lh Amendment] extends beyond the prohibition of

purposeful discrimination to encompass state action that has discriminator)’ impact perpetuating the effects of past

discrimination.”) Id. at 502.(Povvell, J., concurring) (’ ‘It is beyond question that Congress has the authority to identify unlawful

discriminatory practices, to prohibit those practices, and to prescribe remedies to eradicate their continuing their continuing

effects.”); Ciiv of Rome v. United Slates, 446 U.S. 156, 176-177(1980) (Congress may prohibit conduct that is constitutional if it

perpetuates the effects of past discrimination): South Carolina v. Kai? enbach. 383 U.S. 301, 325-333 (1966X” invidious

discriminatory purpose may often be inferred from... the fact, if it is true, that the law bears more heavily on one ... group] than

23

Christy MCCARTHY, by and Through her Next Friend..., 2003 WL 24016588...

another.”); Oregon v. Miichell. 400 U.S. 1]2 (1970)(upholding nationwide ban on literacy tests even though they arc not unconstitutional per sc); Guston County v. United Slates. 395 U.S. 285. 293, 296-297 (1969).

10

See S. rep. No. 116. 101st Cong., I51 Sess. at 10-12, 89,92 (1989); H.R. rep. NO. 485, 101s1 Cong. lslSess.Pt. 2, al 34(1989): 2

Leg. Hist. 1552 (EEOC Comm’r Evan Kemp); Id. at 1077 (John Nelson); Id. at 1388-1389 (Juslin Dart); Id. at 1456-1457: hi. at

1560 (Jay Rochlin); 3 leg. hist. 2190-2191 (Robert Burgdorf); Task Force Report 27: Spectrum 2, 30 70. The federal government,

moreover, provides substantial funding to cover many of those costs.

11

The Seventh Circuit has repeatedly opined that the ADA (including Title II) is valid commerce clause legislation. Sec Walker v.

Snytler, 213 F.3d 344. 346 (7Ih Cir. 2000), cert denied.531 U.S. 1 190, (2001): Erickson v. Bd Of Governors of Slate Colleges and

Universities for Northeastern Illinois University. 207 F.3d 945, 952 (7lh Cir. 2000). cert, denied. 53 U.S 190. (2001).

12

Indeed, in Alden v. Maine, 527 U.S. 706, 755 (1999), the Court cited South Dakota v. Dole, 483 U.S. 203 (1987). a case involving

Congress’s spending clause authority, when it noted that “the Federal Government [does not] lack the authority or means to seek

the States’ voluntary consent to private suits.”

13

Hale argues that Ex parte Young is not enforceable because the federal government has no authority to compel states to comply

with conditions on funding that are unrelated to § 504 goals. Brief of’Defendants-Appe I lams, at 28-29. There are no such thing as

§ 504 funds. On its face. § 504 applies to agencies that receive federal funds from any source. See 29 U.S.C. § 794(a)(prohibuing

discrimination under any program or activity receiving federal financial assistance)(emphasis added). The regulations

implementing the Rehabilitation Act define federal financial assistance to include any grant, loan, or contract and any other forms

of assistance. 28 C.F.R. $ 41.3(e)(emphasis added). And certainly the receipt of Medicaid funds would be fundamentally related to

$ 504 goals.

14

In cases where the state received federal’funding after Garrctt, there is no question thai the slate waived iis immunity under § 504.

Pace v. Boglausa Ciiv School Board. 325 F.3d 609, 618 (5th Cir. 2003) en bane review granted, 339 F.3d 348;Milter v. Texas

Tech, 330 F.3d 691, 695 (5lh Cir. 2003) en bane review granted. 342 F.3d 563. Other Circuits have declined to follow Pace, and

found that states waived immunity without the Garreit temporal distinction. Shepard v. Irving, No. 02-1712, slip op. 7 (4’h Cir.

August 20, 2003); Garreli v. University of Alabama. No. 02-16186. slip op. 10 (1 l’h Cir. September 1 1. 2003); A. W. v. Jersey

City Public Schools. 341 F.3d 234, 253-54 (3lf Cir. 2003).

End of Document

24

 
 2003 WL 24016591 (C.A.5)

Page 1

For Opinion See 391 F.3d 676 , 381 F.3d 407
United States Court of Appeals, Fifth Circuit.
Christy MCCARTHY, by and Through her Next Friend Jamie Travis; Todd Gordon, by and Through his Next Friend Trisha Gordon; Allison Pratt, by and Through her Next Friend Paula Pratt; Gail Truman, by and Through her Next Friend Ken Truman; Jim Floyd, Jr., by and Through his Next Friend Jim Floyd, Sr.; Sam Lindsay, by and Through his Next Friend Betty Lindsay; Oshea Brooks; Joe Ray Comacho; Micha Chastain, by and Through
his Next Friend Lori Chastain; Al, by and Through his Next Friend LL; ARC of Texas, on Behalf of its Members and for those Similarly Situated; Sue Ann Ortiz; Patrick Sostack, by and Through their Parents and Next Friends Gary and Lisa Sostack; Scott Sostack, by and Through their Parents and Next Friends Gary and Lisa Sostack; Shyan Forough, by and Through his Parents and Next Friends Reza and Arzu Forough; David Zweifel, by and Through his Parents and Next Friends Linda and Leroy Zweifel; Ashton Bowlen, by and Through her Motion and Next Friend Patricia Bowlen; Tyler Blanchard, by and Through his Mother and Next Friend Faith Blanchard; Garrett Gillard, by and Through his Mother and Next Friend Keeye Gillard; Kameron Lane, by and Through his Mother and Next Friend Angie Lanea; Madison Polk, by and Through her Father and Next Friend
John Polk; Paige Smith, by and Through her Mother and Next Friend Gretta Smith. Plaintiffs-Appellees, v.
KAREN F. HALE, ETC.; ET AL., Defendants, Karen F. Hale, in her Official Capacity as Commissioner of the Texas Department of Mental Health & Mental Retardation; James R. Hine, in his Official Capacity as Commissioner of the Texas Department of Human Services; Albert Hawkins, in his Official Capacity as Commissioner of the Texas Health and Human Services Com-
mission, Defendants-Appellants. No. 03-50608.
August 18, 2003.
On Appeal from the United States District Court Western District of Texas, Austin Division
Brief of Defendants-Appellants
Greg Abbott, Attorney General of Texas, Barry R. McBee, First Assistant Attorney General, Edward D. Burbach , Deputy Attorney General, for LitigationR. Ted Cruz, Solicitor General, Amy Warr, Assistant Solicitor General, P.O. Box 12548 (MC 059), Austin, Texas 78711-2548, [Tel.] (512) 936-1826, [Fax] (512) 474-2697
FNCounsel for Defendants-Appellants
STATEMENT REGARDING ORAL ARGUMENT
This appeal presents important constitutional questions concerning the Eleventh Amendment: (1) whether Congress intended to grant Plaintiffs-Appellees a federal right under 42 U.S.C. § 1983 to enforce a due-process provision of the Medicaid Act against the State; (2) whether Title II of the Americans with Disabilities Act is invalid legislation and, therefore, cannot form the basis of an Ex pane Young suit; and (3) whether § 504 of the Rehabilitation Act is invalid as applied to Defendants-Appellants and, therefore, cannot form the basis of an Ex
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016591 (C.A.5)

Page 2

pane Young suit against them. Defendants-Appellants believe oral argument would aid the Court in resolving these questions.
*ii TABLE OF CONTENTS
Statement Regarding Oral Argument ... i Table of Contents ... ii Table of Authorities ... iv Jurisdictional Statement ... 2 Issues Presented ... 3 Statement of the Case ... 4 Statement of Facts ... 5 Summary of the Argument ... 10 Standard of Review ... 12 Argument ... 13 I. McCarthy's Flawed Ex Parte Young Suit Cannot Overcome Texas's Eleventh Amendment Immunity and, Thus, Is Barred ... 13 A. McCarthy Cannot Assert a “Federal Right” to Enforce the “Due Process” Provision of the Medicaid Act ... 13 B. An Ex Parte Young Suit Cannot Be Brought to Enforce Title II of the ADA Because That Statute Is Not a Valid Federal Law Enforceable Against a State ... 19 1. Because only public entities can be sued under Title II, a Title II suit is incompatible with Fount's fiction that the State entity has not been sued ... 20 2. Title 11 exceeds Congress's lawmaking authority under § 5 of the Fourteenth Amendment ... 22 *iii 3. Title II exceeds Congress's lawmaking authority under the Commerce Clause ... 23 4. Title II is not enforceable Commerce Clause legislation because it regulates the States in their sovereign capacity in violation of the Tenth Amendment ... 26 C. Ex Pane Young Cannot Be Used to Enforce § 504 of the Rehabilitation Act Against These Defendants Because That Statute Is Invalid as Applied to Them ... 28 Conclusion ... 31 Certificate of Service ... 33
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016591 (C.A.5)

Page 3

Certificate of Compliance ... 34

*iv TABLE OF AUTHORITIES

Cases: 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003) ... 19 Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999) ... 20 Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) ... 16, 18 Barnes v. Gorman, 536 U.S. 181 (2002) ... 29 Bd. of Trs. of the Univ. of Ala. v. Garrett, 2000 WL 1339204 (Sept. 13, 2000) ... 21 Blessing v. Freestone, 520 U.S. 329 (1997) ... 10, 11, 13, 14, 15 Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001) ... 21, 22 Bruggeman v. Blagojevich, 324 F.3d 906 (7th Cir. 2003) ... 21, 22 Bryson v. Shumway, 308 F.3d 79 (1st Cir. 2002) ... 17, 18 California v. Sierra Club, 451 U.S. 287 (1981) ... 14, 18 Cozzo v. Tangipahoa Parish Council-President Govt't 279 F.3d 273 (5th Cir. 2002) ... 12 Evergreen Presbyterian Ministries, Inc. v. Hood, 235 F.3d 908 (5th Cir. 2000) ... 12 Ex parte Young, 209 U.S. 123 (1908) ... passim Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) ... 27 Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) ... passim *v Kentucky v. Graham, 473 U.S. 159 (1985) ... 20 Lewis v. N.M. Dep't of Health, 94 F.Supp.2d 1217 (D.N.M. 2000), aff'd, 261 F.3d 970 (10th Cir. 2001) ... 20 Massachusetts v. United States, 435 U.S. 444 (1978) ... 28 Mathews v. Eldridge, 424 U.S. 319 (1976) ... 16, 18 Meachem v. Wing, 77 F.Supp.2d 431 (S.D.N.Y. 1999) ... 18 New York v. United States, 505 U.S. 144 (1992) ... 27 Olmstead v. Zimring, 527 U.S. 581, 119 S.Ct. 2176 (1999) ... 19

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016591 (C.A.5)
Printz v. United Stales, 521 U.S. 898 (1997) ... 27, 28 Puerto Rico Aqueduct & Sewer Auth. v. Melcalf & Eddy, Inc., 506 U.S. 139 (1993) ... 2 Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001) ... 22 Reno v. Condon, 528 U.S. 141 (2000) ... 26, 27 Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) ... 20-21, 22, 23 South Dakota v. Dole, 483 U.S. 203 (1987) ... 12, 28-30 United States v. Lopez, U.S. 549 (1995) ... 24-26 United States v. Morrison, 529 U.S. 598 (2000) ... 24-26 Walker v. Snyder, 213 F.3d 344 (7th Gir. 2000) ... 20, 21 Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498 (1990) ... 6, 13, 14 Wright v. Roanoke Redevelopment & Hous. Auth., 479 U.S. 418 (1987) ... 13 *vi Rules, Statutes and Constitutional Provisions: 28 U.S.C. § 1291 ... 2 29 U.S.C. § 701 ... 30 29 U.S.C. § 794 ... 4 29 U.S.C. § 794(a) ... 30 42 C.F.R. § 430.25(b) ... 8 42 C.F.R. § 430.25(d)(2) ... 8 42 C.F.R. § 430.25(h)(3)(ii) ... 9 42 C.F.R. § 431.201 ... 17 42 C.F.R. § 431.206 ... 17 42 C.F.R. § 431.210 ... 17 42 C.F.R. § 431.220 ... 17 42 C.F.R. § 440.180 ... 8, 9 42 C.F.R. § 441.301(b)(1)(iii) ... 8 42 C.F.R. § 441.3.01 (b)(3) ... 9
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 4

2003 WL 24016591 (C.A.5)
42 C.F.R. § 441.301(b)(6) ... 9 42 C.F.R. § 441.303(f)(6) ... 9, 10 42 C.F.R. § 441.305(a) ... 9, 10 42 U.S.C. § 12101(a)40 ... 25 *vii 42 U.S.C. § 12101 (b)(4) ... 22 42 U.S.C. § 12131 etseq ... 4 42 U.S.C. § 12132 ... 20, 27 42 U.S.C. § 1396 ... 4 42 U.S.C. § 1396a ... 5, 6 42 U.S.C. § 1396a(a) ... 6 42 U.S.C. § 1396a (a)(1) ... 7 42 U.S.C. § 1396a(a)(10) ... 4 42 U.S.C. § 1396a(a)(10)(B) ... 7, 8 42 U.S.C. § 1396a(a)(10)(C)(i)(III) ... 7, 8 42 U.S.C. § 1396a(a)(17) ... 7 42 U.S.C. § 1396a(a)(3) ... passim 42 U.S.C. § 1396a(a)(8) ... 4, 7, 10, 15 42 U.S.C. § 1396n(c) ... 7, 8, 10 42 U.S.C. § 1396n(c)(10) ... 9, 10 42 U.S.C. § 1396n(c)(2) ... 9 42 U.S.C. § 1396n(c)(2)(C) ... 4 42 U.S.C. § 1396n(c)(3) ... 8, 9 42 U.S.C § 1396n(c)(4) ... 9 *viii 42 U.S.C. § 1396n(c)(9) ... 9 FED. R. APP. P. 4(a)(1)(A) ... 2, 5 U.S. CONST. amend. X ... 27
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 5

2003 WL 24016591 (C.A.5)

Page 6

U.S. CONST. amend. XI ... 2
*2 JURISDICTIONAL STATEMENT
Defendants-Appellants (ihe “State”) filed a motion to dismiss, asserting that the district court lacked jurisdiction over the claims of Plaintiffs-Appellants (“McCarthy” or “Plaintiffs”) because they are barred by the Eleventh Amendment. See U.S. CONST, amend. XI; 3R.465.[FN1] The district court granted the motion in part and denied it in part on May 23, 2003. 6R. 1123-24. On May 29, 2003, the State timely filed a notice of appeal. 6R.1131; see FED. R. app. P. 4(a)(1)(A). The Court has jurisdiction over this interlocutory appeal, which is based on Eleventh Amendment immunity. See 28 U.S.C. § 1291; see also Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 143-45 (1993) (discussing the interlocutory appealability of denials of Eleventh Amendment immunity).
FN1. Record references are designated “(volume #)R.(page #).”
*3 ISSUES PRESENTED
The Exparte Young doctrine permits injunctive relief against state officials to enforce federal constitutional or statutory rights. This is based on the fiction that a suit against an official in his official capacity is not a suit against the State and, therefore, falls outside the Eleventh Amendment's limitation on federal jurisdiction. 1. Do individuals on the waiting list for Texas's community-based mental-retardation and developmental-disabilities programs have a “federal right” to enforce the Medicaid Act's procedural requirement of an opportunity for a hearing under 42 U.S.C. § 1983 when services under the program are delayed, even though - because there are no available slots - they have no underlying substantive right to the services? 2. Does Young encompass a suit for injunctive relief under Title II of the ADA, which solely applies to the States qua States and, therefore, cannot be reconciled with Young's fiction that a suit against a state official in his official capacity is not a suit against a State? 3. Does Young permit a suit seeking injunctive relief for alleged violations of Title II when that statute exceeds Congress's power under § 5 of the Fourteenth Amendment and the Commerce Clause? 4. Does Young permit a suit seeking injunctive relief for alleged violations of Title II, which - unlike Title I - is not a generally applicable law but a direct attempt to regulate the States in their sovereign capacity in violation of the Tenth Amendment? 5. Does Young permit a suit seeking injunctive relief for alleged violations of § 504 of the Rehabilitation Act when the state agency sued receives no § 504 funds and, therefore, the required nexus between the funding and the condition imposed is lacking?
*4 STATEMENT OF THE CASE
On September 4, 2002, Plaintiffs filed a class-action suit for injunctive and declaratory relief under Title II of the Americans With Disabilities Act, 42 U.S.C. § 12131 et seq.,zr\d § 504 of the Rehabilitation Act of 1972,29 U.S.C. § 794. 5R.979. They also sued under 42 U.S.C. § 1983, alleging violations of Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (the “Medicaid Act”), and the Due Process and Equal Protection Clauses of the Constitution. Id. The State moved to transfer venue, 5R.880, and to dismiss all claims as barred by Eleventh Amendment immunity, 3R.383. The motion to transfer venue was granted, and the case was transferred from the Eastern District of Texas, Beaumont Division, to the Western District of Texas, Austin Division. 1R.11.
On May 23, 2003, the district court granted the State's motion to dismiss in part, holding that the Plaintiffs
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016591 (C.A.5)

Page 7

lacked a “federal right” under § 1983 to participate in the State's community-based mental-retardation and developmental-disabilities programs because, among other things, Plaintiffs did not allege that slots were available in the programs, which are subject to a federally-mandated cap. on the number of participants. 6R.1107-10. Thus, the Plaintiffs' claims based on §§ 1396a(a)(8), (10) and 1396n(c)(2)(C) of the Medicaid Act were dismissed. See 6R.1107-10,1123-24. The district court also dismissed McCarthy's claims under the *5 Due Process and Equal Protection Clauses because they failed to state a claim upon which relief could be granted. 6R.1113-15.
The district court then denied the State's motion to dismiss in part, holding that McCarthy's claims under Title II of the ADA, § 504 of the Rehabilitation Act, and § 1396a(a)(3) of the Medicaid Act were not barred by the Eleventh Amendment and could, therefore, proceed. 6R. 1112-13,1115-20. On May 29, 2003, the State timely filed a notice of appeal challenging the district court's failure to dismiss those claims. 6R.1131; see FED. R. App. P. 4(a)(1)(A).
STATEMENT OF FACTS
The Plaintiffs are twenty-one individuals who suffer from mental retardation or developmental disabilities such as autism or cerebral palsy, as well as the Arc of Texas, a nonprofit organization that provides programs and support for such individuals and their families. Eligible individuals requiring long-term care as a result of mental or other disabilities are entitled to treatment in intermediate care facilities for the mentally retarded (“ICFs/MR”) or nursing facilities. See 42 U.S.C. § 1396a. Although only a handful of the individual Plaintiffs reside in such facilities,[FN2] and most of the Plaintiffs live at home, they all assert that they are entitled to receive care in their homes or communities under Texas's Home and Community-based *6 Waiver Services (“HCS”) program and Community Living Assistance and Support Services (“CLASS”) program. They allege that they have been on a waiting list for the HCS and/or CLASS programs for more than one year, and they seek to represent a class of approximately 25,000 individuals who have also been on those waiting lists for more than one year. See 2R.237.
FN2. ICFs/MR range in size from large congregant-care facilities to 6-bed group homes located in residential neighborhoods.
The Plaintiffs sued the heads of the following three Texas state agencies in their official capacities: the Texas Health and Human Services Commission (“HHSC”), which administers the Medicaid program in Texas; the Texas Department of Mental Health and Mental Retardation (“MHMR”), which administers the HCS program; and the Texas Department of Human Services (“DHS”), which administers the CLASS program. 2R.236.
The federal Medicaid program is a “cooperative federal-state program through which the Federal Government provides financial assistance to States so that they may furnish medical care to needy individuals.” Wilder v. Virginia Hosp. Ass ‘n, 496 U.S. 498,502 (1990); see 42 U.S.C. § 1396a. A state's participation in the Medicaid program is voluntary. However, once a state chooses to participate, it must operate its Medicaid program pursuant to a “State Plan” that satisfies the requirements set out in the Medicaid statute. See 42 U.S.C. § 1396a(a).
*7 For example, the State Plan must: be in effect in all political subdivisions of the state, 42 U.S.C. § 1396a(a)(1); provide an opportunity for a hearing to an individual whose claim is denied or not acted upon with reasonable promptness, 42 U.S.C. § 1396a(a)(3); provide that covered medical assistance be furnished with reasonable promptness to all eligible individuals, 42 U.S.C. § 1396a(a)(8); provide services that are comparable in amount, duration, and scope for all groups covered under the plan, 42 U.S.C. § 1396a(a)(10)(B); employ a single standard for determining income and resource eligibility, 42 U.S.C. § 1396a(a)(10)(C)(i)(lII); and include reas-
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016591 (C.A.5)

Page 8

onable standards for determining eligibility for and the extent of services, 42 U.S.C. § 1396a(a)(17).
In 1981, Congress amended the Medicaid Act by adding 42 U.S.C. § 1396n(c) to establish “waiver” programs. In waiver programs, the Secretary of Health and Human Services, through the Centers forMedicare and Medicaid Services (“CMS”),[FN3] is authorized to waive certain Medicaid Act requirements if participating states provide home- and community-based services as part of their Medicaid programs. Section § 1396n(c)[FN4] offers states the option to apply to the Secretary for approval of a waiver of certain Medicaid requirements in order to develop Medicaid-financed *8 home- and community-based programs as alternatives to placing Medicaid-eligible individuals in hospitals, nursing facilities, or ICFs/MR under the Stale Plan. 42 U.S.C. § 1396n(c); 42 C.F.R. § 440.180; 42 C.F.R. § 44I.301(b)(1)(iii). As its name suggests, a waiver relieves states from complying with certain federal requirements that ordinarily must be followed in order to receive federal Medicaid funding under the State Plan. The Medicaid regulations describe the purpose of a Medicaid waiver program as follows:
FN3. CMS was previously known as the Health Care Finance Administration (“HCFA”).
FN4. Waivers under § 1396n(c) are sometimes referred to as “§ 1915(c) waivers,” referring to § 1915(c) of the Social Security Act.
Waivers are intended to provide the flexibility needed to enable States to try new or different approaches to the efficient and cost-effective delivery of health care services, or to adapt their programs to the special needs of particular areas or groups of recipients. Waivers allow exceptions to State plan requirements and permit a State to implement innovative programs or activities on a time-limited basis, and subject to specific safeguards for the protection of recipients and the program.
42 C.F.R. § 430.25(b).
In waiver programs, the usual requirements of statewide availability, § 1396a(a)(1), comparability of services, § 1396a(a)(10)(B), and a single standard for income and resource eligibility, § 1396a(a)(10(C)(i)(III), do not apply. 42 U.S.C. § 1396n(c)(3); 42 C.F.R. § 430.25(d)(2). To qualify for a waiver, a state must demonstrate that providing home- and community-based services to qualified individuals would not require overall expenditures in excess of those that wouJd be *9 required to provide services in an]CF/MR or a nursing facility. 42 U.S.C. § 1396n(c)(2).
Unlike ICF/MR or nursing facility services, which must be made available to all individuals who categorically qualify for Medicaid services in conformance with the Medicaid Act, there is no statutory entitlement to waiver services. In other words, not all people who satisfy the criteria for “waiver” services are entitled to receive them. Because the waiver programs are designed to encourage innovation, each participating state has wide latitude to define the types of services that it will offer under the waiver, to limit the geographical areas where waiver services are offered, to limit the target groups to whom the services are offered, and to make waiver services available in an amount, duration and scope that may differ from the amount, duration and scope of services provided to non-waiver Medicaid recipients. 42 U.S.C. § 1396n(c)(3), (4), (9), (10); 42 C.F.R. § 441.301(b)(3), (6); 42 C.F.R. §§ 430.25(h)(3)(ii), 440.180, 441.303(0(6), 441.305(a).
Finally, and most significantly for this appeal, the Medicaid Act and applicable regulations expressly require states - in their applications to the federal government - to place a limit on the number of persons who may receive services under a waiver program. 42U.S.C § 1396n(c)(9),(10);42C.F.R. § 441.303(f)(6);42 C.F.R. § 441.305(a). Once a state's application is approved, that number “will constitute a limit on the size of the waiver
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016591 (C.A.5)

Page 9

program unless the State requests and the *10 Secretary approves a greater number of waiver participants in a waiver amendment.” 42 C.F.R. § 441.303(f)(6); see 42 C.F.R. § 441.305(a). Indeed, the statute expressly provides that waiver programs may be limited to as few as 200 individuals. 42 U.S.C. § 1396n(c)(10).
Pursuant to 42 U.S.C. § 1396n(c), Texas has obtained approval to offer home-and community-based services to a specified number of individuals who require the level of care provided in ICFs/MR. See 3R.444; 4R.727-850. Plaintiffs did not allege that either the CLASS program or the HCS program had empty slots under the federallyapproved cap.
SUMMARY OR THE ARGUMENT
This appeal presents important Eleventh Amendment questions regarding the proper scope of Ex pane Young when that doctrine is used to enforce the Medicaid Act, Title II of the ADA, and § 504 of the Rehabilitation Act. When bringing a Young suit to enforce a federal statute - like the Medicaid Act - that does not provide an individual right of action, “a plaintiff must assert the violation of a federal right, not merely a violation of federal law” Goniaga Univ. v. Doe, 536 U.S. 273,282 (2002). (quoting Blessing v. Freestone, 520 U.S. 329, 340 (1997) ).
Although the district court correctly held that 42 U.S.C. § 1396a(a)(8) grants the Plaintiffs no federal right to receive community-based Medicaid services “with *11 reasonable promptness,” it erroneously held that Plaintiffs have a federal right to a “due-process” hearing when the “reasonable promptness” provision is violated. 6R.1111-13. These two holdings are incompatible. There can be no right to a due-process hearing to correct the potentially erroneous deprivation of an underlying substantive right when there is no underlying right to vindicate. Here, the Plaintiffs lacked an underlying right to reasonable promptness, so they cannot be entitled to a procedural device - like a due-process hearing - to protect that right. Because the Plaintiffs have no federal right under Gonzaga and Blessing to enforce the Medicaid Act's due-process provision and its regulations, their Ex pane Young claim regarding those provisions should be dismissed.
The district court also mistakenly held that the Plaintiffs could maintain their Young suit to enforce Title II of the ADA and § 504 of the Rehabilitation Act, even though neither of these statutes can constitutionally be applied to these defendants. Title II is not a valid exercise of Congress's power under § 5 of the Fourteenth Amendment or under the Commerce Clause, and, even if Title II were valid Commerce Clause legislation, it would be unconstitutional under the Tenth Amendment. Because Title II is invalid, it cannot form the basis of an Ex pane Young action.
*12 Moreover, § 04 of the Rehabilitation Act, which was enacted pursuant to Congress's spend ing power, is also invalid as applied to these defendants because it fails to satisfy the “relatedness” requirement set forth in South Dakota v. Dole, 483 U.S. 203, 207 (1987). Spending Clause legislation is invalid unless the funds accepted by the State are related to the condition imposed by Congress in exchange for the funds. See id. Because the state agencies sued in this case neither directly receive funds under § 504 nor receive funds related to the goals of § 504, see 4R.852-868, § 504 is invalid as applied to these defendants and cannot be enforced against them through Ex pane Young. Accordingly, Plaintiffs' Title II, § 504, and Medicaid Act claims are barred by the Eleventh Amendment and should be dismissed.
STANDARD OF REVIEW
As a question of statutory interpretation, the Court reviews de novo whether Plaintiffs have particular Medicaid-
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016591 (C.A.5)

Page 10

based rights of action maintainable under § 1983. Evergreen Presbyterian Ministries, Inc. v. Hood, 235 F.3d 908, 918 (5th Cir. 2000). This Court also reviews Eleventh Amendment immunity determinations de novo. Cozzo v. Tangipahoa Parish Council - President Gov't, 219 F.3d 273,280 (5th Cir. 2002).
*13 ARGUMENT
I. McCarthy's Flawed Ex Parte young Suit Cannot Overcome Texas's Eleventh Amendment Immunity and, Thus, Is Barred.
Exparte Young established the “fiction” that an official-capacity suit against a state officer is not a suit against the State because an officer violating supreme federal law acts “without the authority of... the state in its sovereign or governmental capacity” and is “stripped of his official or representative character.” 209 U.S. 123, 159-60 (1908). As a prerequisite to bringing a Young suit, however, “a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” Gonzaga Univ. v. Doe, 536 U.S. at 282 (quoting Blessing, 520 U.S. at 340). Moreover, the federal right must arise from a valid federal law that is enforceable against a State. See Young, 209 U.S. at 159-160. Neither of these prerequisites exists in this case.
A. McCarthy Cannot Assert a “Federal Right” to Enforce the “Due Process” Provision of the Medicaid Act.
A statute confers a “federal right” only if three things are true: (1) Congress must have intended that the provision in question benefit the plaintiff; (2) the asserted right must not be so “vague and amorphous” that enforcement would strain judicial competence, Wilder, 496 U.S. at 509, that is, it must be “sufficiently specific and definite,” *14Wright v. Roanoke Redevelopment & Hotts. Auth., 479 U.S. 418, 430 (1987); and (3) the statute must “unambiguously impose a binding obligation on the States,” that is, “the provision giving rise to the asserted right must be couched in mandatory terms” and reflect more than a congressional preference for certain conduct, Blessing, 520 U.S. at 340-41. See Wilder, 496 U.S. at 509. Unless all three prerequisites are satisfied, dismissal is proper. See Blessing, 520 U.S. at 342.
Recently, in Gonzaga, the Supreme Court clarified its test for determining whether a federal right exists. The Court explained that “[s]ome language in our opinions might be read to suggest that something less than an unambiguously conferred right is enforceable by § 1983.” Gonzaga, 536 U.S. at 282. “This confusion has led some courts to interpret Blessing as allowing Plaintiffs to enforce a statute under § 1983 so long as the plaintiff falls within the general zone of interest that the statute is intended to protect.” Id. at 283. The Court eliminated any confusion when it “rejected] the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983.” Id.
The purpose of the “federal right” inquiry is not to determine whether the statute in question confers rights generally, but whether it “confer[s] rights on a particular class of persons.” Id. at 274 (quoting California v. Sierra Club, 451 U.S. 287, 294 (1981)). Although § 1396a(a)(3) - the Medicaid due-process provision-could bestow a federal right on some other individual in some distinct situation, it *15 confers no federal right on these Plaintiffs because they lack an entitlement to the underlying substantive right that this procedural provision protects.
The district court rejected Plaintiffs' argument that they had a federal right to enforce § 1396a(a)(8) - the “reasonable-promptness” provision. See6RA 110-12. The reasonable-promptness provision provides: A state plan for medical assistance must provide that all individuals wishing to make application for medical as-
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016591 (C.A.5)

Page 11

sistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.
42 U.S.C. § 1396a(a)(8). The district court determined that “[w]hile the Plaintiffs may technically qualify for HCS and CLASS waiver services, the cap on the number of waiver recipients functions as ‘a constraint on eligibility,’ and ‘[individuals who apply after the cap has been reached are not eligible.” 6R.1111 (citation omitted). “Because the Plaintiffs have not been determined ‘eligible,’ they have not satisfied the first prong of Blessing, as they are not among the class of individuals Congress intended [§ 1396a(a)(8)J to benefit.” Id. “Therefore, the Plaintiffs have no entitlement to reasonable promptness and cannot enforce this subsection under § 1983.” 6R.1112.
When the district court proceeded to consider whether Plaintiffs could enforce the due-process provision, it did not recognize that its reasonable-promptness holding precluded - or otherwise affected - its due process evaluation. But the due-process *16 provision and the reasonable-promptness provision are inextricably linked. The due-process provision is designed to protect against - and correct - violations of the reasonable-promptness provision, as shown by its text: A state plan for medical assistance must provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness.
42 U.S.C. § 1396a(a)(3) (emphasis added). The district court's correct conclusion that Plaintiffs have no federal right to reasonable promptness also precludes them from asserting a concomitant procedural entitlement to protect against an erroneous denial of that same right.
Analogizing to constitutional due process jurisprudence, “[t]he first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in ‘property’ or ‘liberty-” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (citing Mathews v. Eldridge, 424 U.S. 319, 322 (1976)). “Only after finding the deprivation of a protected interest do we look to see if the State's procedures comport with due process.” Id. Here, the Plaintiffs have no protected interest in reasonable promptness. 6R.1111-12. Therefore, they have no entitlement to due process to protect against a reasonable-promptness violation. For the same reason, Plaintiffs cannot enforce any of the regulations promulgated under the dueprocess *17 provision, although the district court apparently assumed that they could. See 6R.1112-13 (citing 42 C.F.R. §§ 431.201.206.210.220).
This analysis is not undermined by the district court's cited authority in support of its erroneous conclusion that the due-process provision confers a federal right on Plaintiffs. 6R.1113. In Bryson v. Shumway, the court merely assumed that § 1396a(a)(3) bestowed a federal right because the defendants did not argue otherwise; the defendants' concession removed the issue from the court's purview. 308 F.3d 79, 90 (1st Cir. 2002).
Moreover, unlike McCarthy, the Bryson plaintiffs alleged that the state had failed to fill vacant slots in its waiver program. Id. at 90-91. Had that been the case here, it presumably would have undermined the district court's holding that the Plaintiffs had no federal right to reasonable promptness, since that holding was premised on the lack of any allegation that the HCS and CLASS waiver programs have vacant slots. See 6R. 1111-12. The presence of a protected interest in reasonable promptness, in turn, would have strengthened Plaintiffs' claims of a federal right to enforce the due-process provision. However, because McCarthy does not allege that there are open slots in the waiver programs, Bryson's assumption that § 1396a(a)(3) conferred a federal right on the plaintiffs in that case is inapposite here. In fact, the Bryson court acknowledged this crucial factual difference:
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016591 (C.A.5)

Page 12

*18 It is one thing to have a hearing if [the state] is obligated to create slots... It is another to contemplate a hearing if there are no available slots and there is no requirement to give the first available slot to the next person on the list. It is yet another thing if there is an available slot and the sole issue, applying pre-set criteria for priority status, is who on the waiting list should be placed in that slot.
Id.
The other case cited by the district court, Meachem v. Wing, 77 F.Supp.2d 431 (S.D.N. Y. 1999) is also inapposite. In Meachem, the plaintiffs were not on a waiting list to enter into a waiver program, but were denied services that they had already been receiving. See 77 F.Supp.2d at 435. Thus, the court was not confronted with the effect of the statutory cap on the number of participants in waiver programs, which is at the heart of the district court's opinion in this case. See 6R.1111-12.
As the Supreme Court instructed in Gonzaga, the purpose of the “federal right” inquiry is whether “a statute ‘confer[s] rights on a particular class of persons.”’ See 536 U.S. at 285 (quoting California, 451 U.S. at 294) (emphasis added). These particular Plaintiffs - who, as the district court correctly determined, lack a federal right to enforce the reasonable-promptness provision - cannot invoke the right to due process that is intended to protect against violation of that provision. Without an underlying, substantive protected interest, there can be no right to due process. See Am. Mfrs.,526 U.S. at 59 (citing Mathews, 424 U.S. at 322). Thus, the Plaintiffs have failed to show that Congress unambiguously intended to confer upon them a federal *19 right. SeeGonzaga, 536 U.S. at 287. “Ambiguity precludes enforceable rights.” 31 Foster Children v. Bush, 329 F.3d 1255, 1270 (11th Cir. 2003) (citing Gonzaga, 536 U.S. at 280). Accordingly, Plaintiffs lack a federal right to enforce § 1396a(a)(3), and their claim attempting to enforce that statute through § 1983 should be dismissed.
B. An Ex Parte Young Suit Cannot Be Brought to Enforce Title II of the ADA Because That Statute Is Not a Valid Federal Law Enforceable Against a State.
The Plaintiffs cannot bring a Young suit to enforce Title II of the ADA for several reasons.[FN5] First, enforcement of Title IFs based standards is fundamentally incompatible with the Young doctrine, which rests on the fiction that the state entity has not been sued. Second, there is no valid federal law to enforce under Young, because Title II exceeds Congress's lawmaking power under § 5 of the Fourteenth Amendment and the Commerce Clause. Finally, the Tenth Amendment prohibits federal laws - like Title II - that directly regulate the States qua States in their sovereign capacities.
FN5. The Supreme Court's decision in Olmstead v. Zimring, 527 U.S. 581, 119 S.Ct. 2176 (1999), does not affect this appeal because Olmstead did not reach constitutional issues. In Olmstead, the Supreme Court held that the State of Georgia may have violated Title n and/or its regulations by failing to move qualified disabled individuals from institutions into community placements. See 527 U.S. at 596-97. However, the Court explicitly limited its holding to construction of Title n and its regulations and expressly disclaimed any constitutional significance, stating, “ftlhis case, as it comes to us, presents no constitutional question.” 527 U.S. at 588 (emphasis added). Because the State raises a constitutional. Eleventh Amendment-based defense to Plaintiffs' Title II claims, Olmstead has no effect on - and certainly does not preclude - this defense.
*20 1. Because only public entities can be sued under Title II, a Title II suit is incompatible with Young's fiction that the State entity has not been sued.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016591 (C.A.5)

Page 13

Title II, by its terms, prohibits discrimination by public entities. 42 U.S.C. § 12132. Accordingly, the proper defendant in a Title IJ suit is the entity itself. Id.; see, e.g., Walker v. Snyder,2\3 F.3d 344, 346-47 (7th Cir. 2000); Alsbrookv. City of Maumelle, 184 F.3d 999, J005 n.8 (8th Cir. 1999).
The Young doctrine, by contrast, rests on the fiction that the State, as an entity, has not been sued. 209 U.S. at 159-60. Thus, although suits against an official in his official capacity typically are deemed suits against the entity itself, Young creates an exception when the official-capacity suit seeks prospective injunctive or declaratory relief against a State. See Kentucky v. Graham, 473 U.S. 159, 166, 167 n.]4 (1985) (distinguishing Young suits from other official-capacity suits).
In Walker v. Snyder, the Seventh Circuit correctly recognized an irreconcilable conflict between the Young fiction and Title II's requirement that suits be brought against a public entity. 213 F.3d at 347; see also Lewis v. N.M. Dep't of Health, 94 F.SupP.2d 1217, 1230 (D.N.M. 2000), affd, 261 F.3d 970 (10th Cir. 2001). The Seventh Circuit's reasoning reflect's the Supreme Court's recognition that, when a statute is directed at “the State” rather than a “state official,” Congress did not intend to permit a Young suit to enforce that statute. *21Seminole Tribe of Florida v. Florida, 517 U.S. 44,75 n. 17 (1996) (distinguishing statutes directed at state officials - under which congressional intent to permit a Young suit may be inferred - from statutes directed to the States as entities - under which no such inference lies).
The Seventh Circuit recently retreated from Walker. See Bruggeman v. Blagojevich, 324 F.3d 906 (7th Cir. 2003). The Walker analysis, however, correctly identifies a logical inconsistency between Ex pane Young and Title II's statutory framework, and this Court should reject the Seventh Circuit's erroneous conclusion in Bruggeman that Walker's reasoning did not survive Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001). See Bruggeman, 324 F.3d at 912-13 (citing Garrett, 531 U.S. at 374 n.9).
Garrett suggests, in dicta within a footnote, that an Exparte Young suit could proceed under Title I of the ADA. See 531 U.S. at 374 n.9. In Garrett, however, no Young claim was before the Court. Indeed, the State defendant in Garrett expressly disclaimed any argument that the Eleventh Amendment would bar a Title 1 Young claim thus removing the issue from the Court's consideration. See Pet'r Reply Br., Bd. ofTrs. of the Univ. of Ala. v. Garrett, 2000 WL 1339204, at * 1 (Sept. 13,2000); cf. Sandoval, 532 U.S. at 279 (assuming that regulation was valid because petitioners did not challenge the regulation in the question presented to the Court). Because Young was not at issue in Garrett, footnote 9 could not - and did not - overrule *22 Walker, as the Seventh Circuit mistakenly determined in Bruggernan. 324 F.3d at 912-13 (citing Garrett, 531 U.S. at 374 n.9).
Congress directed Title II at “public entities,” assuming - erroneously - that Title II abrogated the states' immunity from suit. See Reickenbacker v. Foster, 274 F.3d 974, 983 (5th Cir. 2001). With the benefit of hindsight, Congress might have taken a different approach and framed Title II in terms compatible with Young's fiction. But this Court is not “free to rewrite the statutory scheme in order to approximate what it thinks Congress might have wanted had it known [Title II] was beyond its authority.” Seminole, 517 U.S. at 76. Young's fiction cannot be reconciled with Title II, and the Court should dismiss Plaintiffs' Title II claim.
2. Title II exceeds Congress's lawmaking authority under § 5 of the Fourteenth Amendment.
Title II was enacted pursuant to Congress's powers under § 5 of the Fourteenth Amendment and the Commerce Clause. 42U.S.C. § 12101(b)(4). However, the Fifth Circuit has determined that Title II exceeded Congress's § 5 authority. See Reickenbacker, 274 F.3d at 983. In holding that Title II lacked the requisite congruence and proportionality, Reickenbacker observed that “Title II indisputably embodies more than merely a prohibition on un-
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016591 (C.A.5)

Page 14

constitutional discrimination against the disabled” and, instead, “create[s] an affirmative accommodation obi igation on the part of public entities that far exceeds the constitutional boundaries.” Id. Because *23 Title II is not valid § 5 legislation, it cannot be enforced in an Ex pane Young suit such as this one.
3. Title II exceeds Congress's lawmaking authority under the Commerce Clause.
Moreover, Title II - which is directed at the States as sovereigns and strikes at the heart of state governance - is not a permissible exercise of Congress's Commerce Clause power. Although anti-discrimination legislation directed at private commercial establishments might be within Congress's Commerce Clause power, that does not mean that Congress can regulate the States qua States under the Commerce Clause. Indeed, such a result would patently conflict with the Supreme Court's declaration that § 5 of the Fourteenth Amendment is the only constitutional power through which Congress can abrogate the States' immunity. Seminole Tribe, 517 U.S. at 72-73. But even if the Commerce Clause could be used to regulate the States qua States - which it cannot under Seminole Tribe and its progeny - Title II does not fall within Congress's power under that clause.
A prerequisite for Commerce Clause legislation is a link to interstate commerce. The Supreme Court has identified three -broad categories of activity Congress may regulate: (1) “the channels of interstate commerce”; (2) “the instrumentalities of interstate commerce”; and (3) “those activities that substantially *24 affect interstate commerce.” United States v. Lopez, 514 U.S. 549, 558-59 (1995); see also United States v. Morrison, 529 U.S. 598, 608-09 (2000).
]t is inconceivable that the State's provision of programs and services to the disabled could be viewed as “channels” or “instrumentalities” of interstate commerce. Thus, Title II can survive only if it regulates an activity that substantially affects interstate commerce. Lopez, 514 U.S. at 558-59. Lopez clarified that it is not enough for an activity to affect commerce. Instead, the activity must “substantially” affect interstate commerce. Id. at 559; see also Morrison, 529 U.S. at 609. Several factors guide this inquiry: (1) whether the statute regulates economic activity; (2) whether the statute contains an “express jurisdictional element” limiting its application to objects or activities with an explicit connection to interstate commerce; (3) whether there are “express congressional findings regarding the effects upon interstate commerce” of the regulated object or activity; and (4) whether the alleged substantial effect on interstate commerce is “attenuated.” Morrison, 529 U.S. at 610-13 (reaffirming Lope's guidelines for Commerce Clause inquiries). Title II meets none of these factors.
First, Title II does not regulate “economic activity.” Instead, it regulates public programs and services. A public program or service is not an “economic activity” because it is not an “economic enterprise” or a “commercial transaction, which, *25 viewed in the aggregate, substantially affects interstate commerce.” Lopez, 514 U.S. at 561. As Morrison observed, “thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.” 529 U.S. at 613 (determining that gendermotivated crimes of violence are not, “in any sense of the phrase, economic activity,” despite potential economic consequences). Accordingly, it would be an unprecedented departure from Supreme Court jurisprudence for this Court to hold that the Commerce Clause permits Congress to regulate non-economic activity in the form of public services and programs. See id. This first factor alone, therefore, demonstrates that Title TJ is not valid Commerce Clause legislation.
• Second, Title II does not contain a “jurisdictional element” that limits its application to public services, programs, and activities that affect interstate commerce. Instead, Congress cast a “wider” net, seeking to regulate all public services, programs, and activities. Cf. Morrison, 529 U.S. at 613. This aspect further undermines the ex-
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016591 (C.A.5)

Page 15

istence of a valid connection to interstate-commerce. See id,; Lopez, 514 U.S. at 561-62. Third, there are no legislative findings regarding the effect of public services, programs, and activities on interstate commerce. See 42 U.S.C. § 12101(a)40. Finally, because the first three Lopez/Morrison factors show *26 that Title II does not substantially affect interstate commerce, the “link” to commerce necessarily is “attenuated” under the fourth factor.
Thus, Title II fails the Lopez/Morrison analysis across the board. Because the public services and programs regulated by Title II are not “economic activities” that substantially affect commerce, Title II is not valid Commerce Clause legislation that Plaintiffs can enforce through a Young suit.
4. Title II is not enforceable Commerce Clause legislation because it regulates the States in their sovereign capacity in violation of the Tenth Amendment.
Even if the Court were to determine that Title II regulates activity that substantially affects interstate commerce, the Tenth Amendment would preclude the Plaintiffs' attempt to enforce that statute through a Young suit.
The Supreme Court recently emphasized that Tenth Amendment limitations on federal power apply even when a law regulates subject matter otherwise within Congress's jurisdiction - like interstate commerce. Reno v. Condon , 528 U.S. 141, 149 (2000) (noting previous invalidations of commerce-related laws “not because Congress lacked legislative authority over the subject matter, but. because those statutes violated the principles of federalism contained in the Tenth Amendment”).
Under the Tenth Amendment, “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, *27 respectively, or to the people.” U.S. const, amend. X. In Grafting the nation's constitutional design, “the Framers rejected the concept of a central government that would act upon and through the States.” Printz v. United States, 521 U.S. 898, 919 (1997). Instead, “the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.” Id. at 920 (quoting New York v. United States, 505 U.S. 144, 166 (1992)).
Title II transgresses Tenth Amendment principles by directly regulating the States, in their sovereign capacities, as “public entities,” See id.; see also 42 U.S.C. § 12132. Accordingly, these laws fall outside the category of permissible, “generally applicable” laws, the effect of which on States is incidental. See Condon, 528 U.S. at 151 (holding that Driver's Privacy Protection Act is not directed at States “in their sovereign capacities” but at “States as owners of databases” and - as a “generally applicable” law - raises no Tenth Amendment concerns); see also Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 554 (1985).
Title II is an impermissible federal mandate because it directly prescribes the manner in which the States govern, dictating requirements for state programs, services, and activities. This violates fundamental principles of federalism, because “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress' instructions.” *28New York, 505 U.S. at 162; See also Printz, 521 U.S. at 935 (“The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”) Because Title 11 violates the Tenth Amendment and is therefore unenforceable against the States, Plaintiffs' Title II claims should be dismissed.
C. Ex Parte Young Cannot Be Used to Enforce § 504 of the Rehabilitation Act Against These Defendants Because That Statute Is Invalid as Applied to Them.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016591 (C.A.5)

Page 16

Section 504 cannot be enforced against these Plaintiffs through Exparte Young because it is invalid Spending Clause legislation, as applied to these defendants, under South Dakota v. Dole, 483 U.S. 203, 207 (1987). In Dole, the Supreme Court set out a four-part test for evaluating whether a statute is within Congress's authority under the Spending Clause. First, the exercise of the spending power must be in pursuit of “the general welfare.” Dole, 483 U.S. at 207. Second, Congress must clearly and unambiguously condition States' receipt of federal funds so that the States may exercise their choice knowingly. Id. Third, conditions on federal grants must be related “to the federal interest in particular national projects or programs.” Id. (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978) (emphasis *29 added)). Fourth, the conditions cannot violate other provisions of the Constitution. Dole, 483 U.S. at 208.
As applied to these defendants, § 504 fails to satisfy the third Dole requirement - the “reiatedness” prong - because the agencies sued receive no § 504 funding. See 4R.852-868. The Supreme Court has held that Spending Clause legislation is “much in the nature of a contract.” Banies v. Gorman, 536 U.S. 181, 186 (2002). “Just as a valid contract requires offer and acceptance of its terms, ‘[t]he legitimacy of Congress' power to legislate under the spending power... rests on whether the [recipient] voluntarily and knowingly accepts the terms of the contract.” Id. The federal government should not be able to impose a condition on state agencies that is not within the particular “contract” to which the agency agreed - that is, a condition outside a statute pursuant to which the agency receives funds. To allow otherwise is to deny the contractual nature of the agreement between the State and the federal government. Cf. id.
The agencies sued in this case do not dispute that they receive federal funding from other sources. But even if the acceptance of federal funds under one statute could trigger an obligation to comply with a condition in a separate statute, the Court should nevertheless conclude that § 504 is overinclusi ve because it requires a recipient *30 of federal funds under any statute - no matter how unrelated to § 504's goals - to comply with § 504's provisions: No otherwise qualified individual with a disability in the United States, as defined in section 706(20) of this title, 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.
29 U.S.C. § 794(a) (emphasis added). Such a broad reach is impermissible because Congress has no authority to use its spending power to compel compliance with conditions that are unrelated to the federal interest in the funds accepted by the recipient. See Dole, 483 U.S. at 207.
Section 504 fails the “relatedness” prong of Dole to the extent it imposes conditions on an entity that accepts any federal funds - not just those funds related to § 504's goals. See 29 U.S.C. § 794(a). For example, the Act would require a state university to comply with § 504 as a condition of accepting federal research grants. See id. It cannot be argued that federal research grant money is in any way related to the goals of § 504, which involve promoting the societal integration of persons with disabilities. See 29 U.S.C. § 701. Thus, conditioning the grant of federal research funds on compliance with § 504 would violate Dole's “relatedness” requirement. Such a conditional grant would be beyond Congress's spending power and could not form the basis of an Ex pane Young suit.
*31 The Plaintiffs have identified no grant of federal funds.to these defendant agencies that is related to the conditions imposed by § 504. Therefore, § 504's conditions cannot be constitutionally applied to these defendants under Dole. Accordingly, the Plaintiffs cannot maintain an Exparte Young suit based on § 504, and that claim should be dismissed.
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016591 (C.A.5)

Page 17

CONCLUSION
McCarthy's claims under the Medicaid Act, Title II of the ADA, and § 504 of the Rehabilitation Act should be dismissed.
Christy MCCARTHY, by and Through her Next Friend Jamie Travis; Todd Gordon, by and Through his Next Friend Trisha Gordon; Allison Pratt, by and Through her Next Friend Paula Pratt; Gail Truman, by and Through her Next Friend Ken Truman; Jim Floyd, Jr., by and Through his Next Friend Jim Floyd, Sr.; Sam Lindsay, by and Through his Next Friend Betty Lindsay; Oshea Brooks; Joe Ray Comacho; Micha Chastain, by and Through his Next Friend Lori Chastain; Al, by and Through his Next 2003 WL 24016591 (C.A.5 ) (Appellate Brief )
END OF DOCUMENT

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 
 2003 WL 24016590 (C.A.5)

Page 1

For Opinion See 391 F.3d 676 , 381 F.3d 407
United States Court of Appeals, Fifth Circuit.
Christy MCCARTHY, by and Through her Next Friend Jamie Travis; Todd Gordon, by and Through his Next Friend Trisha Gordon; Allison Pratt, by and Through her Next Friend Paula Pratt; Gail Truman, by and Through her Next Friend Ken Truman; Jim Floyd, Jr., by and Through his Next Friend Jim Floyd, Sr.; Sam Lindsay, by and Through his Next Friend Betty Lindsay; Oshea Brooks; Joe Ray Comacho; Micha Chastain, by and Through his Next Friend Lori Lchastain; Al, by and Through his Next Friend Ll; Arc of Texas, on Behalf of its Members and for those Similarly Situated; Sue Ann Ortiz; Patrick Sostack, by and Through their Parents and Next Friends
Gary and Lisa Sostack; Scott Sostack, by and Through their Parents and Next Friends Gary and Lisa Sostack; Shyan Forough, by and Through his Parents and Next Friends Reza and Arzu Forough; David Zweifel, by and Through his Parents and Next Friends Linda and Leroy Zweifel; Ashton Bowlen, by and Through her Motion and Next Friend Partricia Bowlen; Tyler Blanichard, by and Through his Mother and Next Friend Faith Blan-
chard; Garrett Gillard, by and Through his Mother and Next Friend Keeya Gillard; Kameron Lane, by and Through his Mother and Next Friend Angie Lanea; Madison Polk, by and Through her Father and Next Friend John Friend John Polk; Paige Smith, by and Through her Mother and Next Friend Gretta Smith, Plaintiff-Ap-
pellees, v.
Karen F. HALE, in her Official Capacity as Commissioner of the Texas Department of Mental Health & Mental Retardation; James R. Hine, Inhis Official Capacity as Commissioner of the Texas Department of Human Services; Albert Hawkins, in his Official Capactiy as Commissioner of the Texas Health and Human Services Com-
mission, Defendants-Appellants. No. 03-50608.
November 10, 2003.
On Appeal from the United States District Court For The Western District of Texas Austin Division
Brief of Amici Curiae Supporting Appellees
On Behalf of Amici Curiae, Adapt, American Association of People with Disabilities, the are of the United States, the Brain Injury Association of America, Disability Rights Education and Defense Fund, the Epilepsy Foundation, National Association of Rights Protection, and Advocacy, National Spinal Cord Injury Association, the Nation's Voice on Mental Illness, the Training and Advocacy Support, Center of the National Association of, Protection and Advocacy Systems, Counsel for Amici CuriaeKaren M. Lockwood, Jeffrey Frey, Rachel A. Adams, Howrey Simon Arnold & White, LLP, 1299 Pennsylvania Avenue, NW, Washington, DC 20004, (202) 783-0800Counsel for Amici Curiae
*i TABLE OF CONTENTS
TABLE OF CONTENTS ... i
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016590 (C.A.5)

Page 2

TABLE OF AUTHORITIES ... ii SUMMARY OF ARGUMENT ... 1 ARGUMENT ... 3 I. Appellants' Commerce Clause Defense Against the Enforcement of the ADA Exceeds the Scope of Review On This Interlocutory Appeal Of an Ex parte Young Suit ... 3 II. ADA Title II Is Valid Commerce Clause Legislation That Can Be Enforced Under the Ex parte Young Doctrine ... 6 CONCLUSION ... 23 CERTIFICATE OF COMPLIANCE ADDENDUM A - STATEMENT OF THE IDENTITY AND INTEREST OF AMICI CURIAE ADDENDUM B - TEXAS TABLE OF MEDICAID WAIVER PROGRAMS ADDENDUM C - TABLE OF INTERSTATE CONTRACTORS TO THREE TEXAS AGENCIES FOR HEALTH-RELATED SERVICES UNDER TEXAS MEDICAID WAIVER PROGRAMS
*ii TABLE OF AUTHORITIES
CASES Aguilar v. Texas Dep't of Crim. Justice, 160 F.3d 1052, 1054 (5th Cir. 1998) ... 4 AT&T Communications v. BellSouth Telecommunications, Inc., 238 F.3d 636, 643 (5th Cir. 2001) ... 4 Burns-Vidlak by Burns v. Chandler, 939 F. Supp. 765 (D. Haw. 1996) ... 17 Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978) ... 5 Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) ... 3 Cox v. City of Dallas, 256 F.3d 281, 307 (5th Cir. 2001) ... 4 Ex parte Young, 209 U.S. 123 (1908) ... 1 passim FCC v. Beach Communications, Inc., 508 U.S. 307, 314 (1993) ... 19 Green v. Mansour, 474 U.S. 64, 68 (1985) ... 4 Groome Resources Ltd. v. United States, 234 F.3d 192, 205 (5th Cir. 2000) ... 10 Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 276-77 (1981) ... 19 Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 196 (1997) ... 4
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016590 (C.A.5)

Page 3

Katzenbach v. McClung, Lopez 379 U.S. 294, 304 (1964) ... 19 Maryland v. Wirtz, 392 U.S. 183 (1968) ... 9, 18 Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999) ... 5, 6 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1,37 (1935) ... 9 *iii Perez v. United States, 402 U.S. 146, 156 (1971) ... 19 Preseault v. ICC, 494 U.S. 1, 17 (1990) ... 19 Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) ... 1, 3, 4, 5 Seminole Tribe of Florida v. Flroida, 517 U.S. 44, 72-73 (1996) ... 5, 6, 7 United States v. Lope, 514 U.S. 549 (1996) ... 2, 8, 9, 10, 11, 17, 18 United States v. Morrison, 529 U.S. 598 (2000) ... 2, 9, 10, 17 Univ. of Alabama v. Garrett, 531 U.S. 356, 374 n.9 (2001) ... 7 Verizon Maryland, Inc. v. Public Service Comm'n of Maryland, 535 U.S. 635 (2002) ... 4 STATUTES & LEGISLATIVE MATERIAL U.S. CONST. Art. I. § 8, cl. 3 ... 1 42 U.S.C. § 12101 ... 20, 22 42 U.S.C. § 12131 ... 3 42 U.S.C. § 12101(b)(4) ... 18 42 U.S.C. § 12133 ... 7 42 U.S.C. § 1396(a) ... 12 HR Rep. No. 101-485 ... 21, 22 S. Rep. No. 101-116 ... 21, 22 OTHER AUTHORITIES 2003 CMS Statistics, Table 32 ... 14 Contracts Reported to Texas State Agencies and Institutes of Higher Education (Dec. 2002) ... 15, 16, 17 *iv Home and Community-Based Services Resource Network, Medical State Expenditures, FY2002 ... 13 Home and Community-Based Services Resource Network, Medicaid State Expenditures, FY2002, Table 2 ... 12
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016590 (C.A.5)

Page 4

Texas Health and Human Service, Consolidated Budget for Fiscal Years 2004-2005, App. D: Medicaid (Oct. 15, 2002 ... 13
Texas Medicaid in Perspective (“The Pink Book”), Appenidx A: Texas Medicaid Waivers (4th ed. 2002), ... 12
Nancy Lee Jones, Judicial Decisions Discussing “Program or Activity Receiving Federal Funds” Under Section 504 of the Rehabilitiation Act Before and After Grove City College v. Bell, Congressional Research Service, The Library of Congress (1985) ... 22
Nancy Lee Jones, Overview of Major Issues Under Section 504 of the Rehabilitation Act, Congressional Research Service, The Library of Congress (1985) ... 22
Nancy Lee Jones, Proposed Coverage of Handicapped Persons By Title VII of the Civil Rights Act: An Analysis of H.R. 370. Congressional Research Service, The Library of Congress (1985) ... 22
*1 SUMMARY OF ARGUMENT
Amid support the position of plaintiffs-appellees and urge affirmance and remand for proceedings on the merits. The validity of Title II of The Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (“ADA”) is of profound importance to amid and their members.[FN1] In this brief, amid address defendants-appellants' arguments regarding the Commerce Clause authority for Title II of the ADA.[FN2]
FN1. See statement of the identity and interest of amici curiae, Addendum A hereto.
FN2. U.S. const. Art. I. § S, cl. 3. -
The issue of the constitutionality of the substantive provisions of Title II under the Commerce Clause is beyond this Court's scope of review on interlocutory appeal. Under Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc. 506 U.S. 139 (1993), only the issue of whether there is an Eleventh Amendment bar against suing the state can be appealed before judgment. In this suit, falling as it does under Ex pane Young, Eleventh Amendment immunity is inapplicable and there is no question about any abrogation of the immunity. Further, issues about whether the substantive provisions of the ADA are a valid exercise of Congress's power are not part of an Eleventh Amendment interlocutory appeal in an Exparte Young case.
*2 Were the Court to reach the question, application of the Supreme Court's four reference points for analysis of the substantial effect on interstate commerce in United States v. Lopez, 514 U.S. 549 (1996) and United States v. Morrison, 529 U.S. 598 (2000) makes clear that Congress validly enacted Title II of the ADA. First, the activity regulated is an economic endeavor, whose character is transactional and non-criminal, and whose magnitude is significant. The Texas Medicaid waiver programs that plaintiffs challenge drive hundreds of millions of dollars in benefits and cost hundreds of millions to operate, transactions that are in or directly affect interstate commerce. The state waiver programs are closely integrated with nationwide healthcare and benefits programs. All told, the state Medicaid waiver programs have both a substantial relationship with and a substantial effect on interstate commerce. Second, no express jurisdictional element is required in light of the statutory findings of effect on interstate commerce, and the broad interstate commerce links. Third, while it is not essential that Congress make legislative findings on interstate commerce, it did so here. The court is to defer to them, as they have a rational basis. Fourth, the link with interstate commerce clearly is not attenuated. Congress validly invoked the sweep of congressional authority, including the power to regulate commerce, in order to address the major areas
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016590 (C.A.5)

Page 5

of discrimination faced day-to-day be people with disabilities.
*3 ARGUMENT
Appellants' Commerce Clause attack on Title II of The Americans With Disabilities Act, 42 U.S.C. § 12131 et seq. (“ADA”) fails because: (1) whether the substantive provisions of the ADA are a valid exercise of Congress's power is not subject to review in this interlocutory appeal of an Ex parte Young case; and (2) in any event, the Commerce Clause provides the congressional power to validly enact Title II of the ADA, which is enforceable through Ex parte Young suits, to prohibit discrimination in public services, programming and activities.
I. Appellants' Commerce Clause Defense Against the Enforcement of the ADA Exceeds the Scope of Review On This Interlocutory Appeal of an Ex parte Young Suit
This interlocutory appeal from the district court's denial of defendants' motion to dismiss is lodged pursuant to the narrow collateral order doctrine, which permits appeals to establish Eleventh Amendment immunity as a bar to suit. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &. Eddy, Inc., 506 U.S. 139, 146 (1993); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).[FN3] But this is an Ex parte Young suit. By attempting to attack the constitutionality of the substantive provisions of Title II of the ADA, appellants exceed the interlocutory appeal rule of Puerto Rico Aqueduct.
FN3. Record 1R, passim (no motion or order for certification of interlocutory appeal on any issues).
*4 The Supreme Court held in Puerto Rico Aqueduct that states may take advantage of the Cohen collateral order doctrine to appeal a district court order denying a claim of Eleventh Amendment immunity. 506 U.S. at 144-46. The Court's holding sharply distinguished between suits against the state and Ex parte Young suits against state officials. It stated: Rather than defining the nature of Eleventh Amendment immunity, Young and its progeny render the Amendment wholly inapplicable to a certain class of suits.
506 U.S. at 146 (emphasis added).
This case is one of that class of suits, and the district court correctly analyzed the point. (6R. 1118.) The Supreme Court has explained: In determining whether.... Ex parie Young voids an Eleventh amendment bar to suit, a court need only conduct a ‘straightforward inquiry’ whether it alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.
Verizon Maryland. Inc. v. Public Service Comm'n of Maryland, 535 U.S. 635 (2002) (quoting Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 196 (1997) (O'Connor, J, concurring).[FN4] Plaintiffs sued officials of the state in their official *5 capacity, not against the state entity or its agencies. (2 R. 222.) Their ADA claims seek prospective relief. (Id. at 272.) Arid the suit alleges that the state officials violate federal law - the ADA - in their administration of the Medicaid services, programs and activities. (2 R. 222 et seq.) Appellants agree that it is so pleaded. (Appellants' Brief at 23, passim.)[FN5] Ex parte Young applies, and the Eleventh Amendment immunity is thus found to be wholly inapplicable.
FN4. See also Green v. Mansour, 474 U.S. 64, 68 (1985) (Eleventh Amendment does not prevent feder-
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016590 (C.A.5)

Page 6

al courts from granting prospective injunctive relief to prevent a continuing violation of federal law'1); Cox v. City of Dallas, 256 F.3d 281, 307 (5lh Cir. 2001) (homeowners sued director of Texas state agency alleging violations of RCRA); AT&T Communications v. BellSouth Telecommunications, Inc., 238 F.3d 636, 643 (5th Cir. 2001) (the Supreme Court has for nearly a century allowed suits against state officials; prospective injunctive relief sought under Telecommunications Act of 1996); Aguilar v. Texas Dep't ofCrim. Justice, 160 F.3d 1052, 1054 (5th Cir. 1998).
FN5. The Brief of Plaintiffs-Appellees (Appellees' Brief) at 15-20 demonstrates the invalidity of appellants' contention that an Ex Parte Young suit does not lie under Title D.
Issues about whether the substantive provisions of the ADA are a valid exercise of Congress's power are not part of an Eleventh Amendment interlocutory appeal to which Ex parte Young applies.[FN6] Whether Congress has acted “pursuant to a valid exercise of power” is an Eleventh Amendment issue only when the court must address whether Congress has validly abrogated state sovereign immunity. Nelson v. Miller, 170 F.3d 641, 647-48 (6th Cir. 1999) (quoting Seminole Tribe, 517 U.S. at 55). Appellees “confiate[] two distinct arguments here,” id. at 648, when they confuse whether Congress had the power to *6 abrogate the states' immunity, with whether the substantive provision of the ADA are a valid exercise of Congress's power. Nelson, 170 F.3d at 64S. As to the first, in this suit the “abrogation issue does not arise because Ex parte Young applies to give the federal courts jurisdiction in this case.” See Univ. of Alabama v. Garrett, 531 U.S. 356, 374 n.9 (2001) (standards of Title II of the ADA can be enforced through Ex parte Young suits even though Court held that Congress has not constitutionally abrogated Eleventh Amendment immunity). As to the second, the issue is a putative defense appellants would raise, if at all, in the district court proceedings against enforcement of the ADA on the merits. No case has been found that prevented an action from proceeding under Title II of the ADA in an Ex parte Young suit, and appellants cite none.
FN6. Issues that are not “completely separate from the merits of the action” are outside the collateral order doctrine. Verizon Md., Inc., 535 U.S. at 645 (“The inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the claim.”) (quoting Coopers &Lybrandv. Livesay, 437 U.S. 463, 468 (1978) (listing the three factors that satisfy the collateral order doctrine of CohenJ); Puerto Rico Aqueduct, 508 U.S. at 144 (holding that the collateral order doctrine applies to a claim of immunity from suit, “rather than a mere defense to liability”). Defenses questioning the constitutionality of the substantive statute that gives rise to the cause of action are such merits Jssues.
Because this Court's scope of review is limited to a determination of whether an Eleventh Amendment bar exists, this present appeal is concluded as soon as the court finds the case is properly brought under Ex parte Young.
II. ADA Title II Is Valid Commerce Clause Legislation That Can Be Enforced Under the Ex parteYoung Doctrine.
Were this Court nevertheless to examine the constitutionality of Title II on this appeal, appellants cannot wrest away the substantial Commerce Clause authority for enacting that provision. They fashion their argument from an overbroad reading of *7Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72-73 (1996),[FN7] and a cursory treatment of the Lopez and Morrison criteria for determining whether a regulation substantially affects interstate commerce.[FN8] Their arguments are inadequate.
FN7. Appellants' Brief at 23.
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016590 (C.A.5)

Page 7

FN8. Mat 24-25.
Appellants start their Commerce Clause arguments still suffering from the conflation of the issue of abrogation of state immunity from suit on the one hand, and the constitutionality of defenses to enforcement of the substantive ADA on the other. Thus, their statement that under Seminole Tribe the Fourteenth Amendment is the only constitutional power through which Congress can abrogate states' sovereign immunity (Appellants' Brief at 23), ignores the fact that this suit seeks only prospective injunctive relief from state officials in their official capacity, pursuant to the doctrine of Ex parte Young. Sovereign immunity is simply inapplicable. While the Supreme Court ruled in Seminole Tribe that Congress cannot use its Article I powers to abrogate Eleventh Amendment immunity, that decision expressly preserved Ex parte Young suits to remedy a state official's ongoing violation of federal law when sovereign immunity otherwise barred a suit against the state.[FN9] 517 U.S. at 73; see also Garrett, 531 U.S. at 374 n.9 (while *8 Congress did not validly abrogate immunity in Title I of the ADA, Exparte Young suits could still be brought by individuals seeking to enforce Title I against state officials). Appellants'Brief at 23.
FN9. Seminole Tribe based its dismissal of the Ex parte Young suit against the governor on an inapposite merits point - that the statute provided for an intricate remedial scheme, including procedures leading to a mediation, followed by a appeal to the Secretary of the Interior. Id. at 73-74. The remedial scheme of Title II of the ADA is markedly different. 42 TJ.S.C. § 12133.
Appellants' Commerce Clause defense against enforcement has no merit. Title II is clearly a valid use of Congress's power to regulate interstate commerce. The scope of Interstate Commerce power is “broad indeed,” and the Supreme Court has recognized that the “modem-era precedents” that “greatly expand the previously defined authority of Congress under the Clause” were in part “a recognition of the great changes that had occurred in the way business was carried on in this country. Enterprises that had once been local or at most regional in nature had become national in scope.” Lopez, 514 at 556. Summarizing its Commerce Clause jurisprudence, the Supreme Court reiterated in Lopez that it had identified three broad categories of activity that may be reached under the Commerce Clause. Congress may regulate the use of channels of interstate commerce, regulate or protect the instrumentalities of interstate commerce even though the threat may come only from intrastate activities, and regulate activities that have a substantial relation to or substantially affect interstate commerce. 514 U.S. at 558-59. The Court has described the limits of the power as follows: *9 [T]he scope of the interstate commerce power... may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.
Lopez, 514 U.S. at 556-57 (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1935)). At the same time, the Court emphasized that “where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.” Id. at 558 (emphasis in original)(quoting Maryland v. Wirtz, 392 U.S. 183 (1968).)
Title II of the ADA falls well within the Commerce Clause power based on the substantial relationship/substantial effect category of analysis.[FN10] In Lopez and Morrison, the Supreme Court discussed and applied four considerations for addressing the substantial effects test. Lopez, 514 U.S. at 559-63; Morrison, 529 U.S. at 610-12. A challenged regulation need not fulfill all four; rather, the factors *10 are “reference points.” Morrison, 529 U.S. at 613. Using these reference points, the proper resolution of appellants' challenge to the constitutional-
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016590 (C.A.5)

Page 8

ity of Title II of the ADA as applied to Texas' Medicaid waiver programs is clear.
FN10. It may be that the Medicaid program also represents “channel” and an “instrumentality” of interstate commerce. Lopez, 514 U.S. at 637. Broad and deep interstate commerce has grown up entirely around the enactment and enforcement of the many Medicaid/Medicare programs and their, rubric. For example, diagnosis and service codes, developed under the auspices of the government for the uniform coding and reimbursement of treatments and services, are used broadly by private insurers as well. Services and products in this channel include software to automate coding of diagnoses and services; providers who set rates based upon Medicaid/Medicare reimbursable levels; products intended to assist in rendering reimbursable health care services; systems to make electronic payments and transfer of funds for reimbursement under the Acts; provider chains such as hospitals, nursing homes, group homes, and others that routinely count on Medicaid/Medicare programs as their secure source of revenue, and who in fact handle the reimbursement requests of their patients, even publications, trade shows, training courses, and conferences that are tailored to the needs of those who must deal'with the Medicaid programs and waiver services in their business every day.
(1) The first reference point, “whether the activity in question [is] some sort of economic endeavor,” easily demonstrates the validity of Congress's use of the Commerce power for Title II.[FN11] See Morrison, 529 U.S. at 612 (citing Lopez, 514 U.S. at 559-60). This point emphasizes the economic character of the activity, and the magnitude of the economic activity particularly as that speaks to its relationship with interstate commerce.
FN11. Appellants do little more than merely assert otherwise. (Appellants' Brief at 24-25.)
As to the character of the regulated activity, the Supreme Court observed, “a fair reading of Lopez shows that the non-economic, criminal nature of the conduct at issue was central to our decision.”[FN12] Id. An activity-is economic in nature if it arises out of or is connected with a commercial transaction. See Groome Resources Ltd. v. United States, 234 F.3d 192, 205 (5th Cir. 2000) (citing *11Lopez, 514 U.S. at 561). Many state activities of course relate to or involve commercial transactions and other economic activity; indeed some services and programs are entirely about distribution of monetary benefits or services in kind. Medicaid is a prime example. It is a joint federal-state fundsharing program, administered by the states, and providing health benefits and services in kind. Clearly the ADA's regulation against discrimination in state Medicaid waiver program services and other programs of the state is neither non-economic nor criminal. Any of the few instances that may arise in other scenarios wherein the interstate nexus of a program may be characterized as de minimus do not render the statute unconstitutional given its substantial relationship to interstate commerce. Lopez, 514 U.S. at 558; see page 9, supra. Appellants' attempted juxtaposition between “economic activity” or “commercial transactions” on the one hand and “public” programs or activities on the other is entirely unwarranted (Appellants' Brief at 24), and their assertion that these public services and programs are “non-economic activity” is both preposterous and unsupported. (Appellants' Brief at 25.)
FN12. hi circumstances where courts have found the required link to be lacking, the challenged statutes were non-economic in character, distinctly local, or focused on regulating criminal conduct or violence. E.g., Lopez, 514 U.S. at 567 (holding that a federal statute preventing possession of guns within 1000 feet of a public school was invalid under Commerce Clause); Morrison, 529 U.S. at 613 (holding that a federal statute providing right to be free from crimes of violence motivated by gender was invalid under Commerce Clause).

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016590 (C.A.5)

Page 9

As to the magnitude of the economic endeavor, both the size of the Texas Medicaid waiver program benefits and their impact on interstate commerce can be understood by reference to facts drawn from public documents created by Texas *12 and other government agencies, and available on websites owned by the state and other reliable authorities.[FN13]
FN13. Amid focus in the text on the Texas Medicaid waiver programs, and particularly the programs under § 1915(c) of the Social Security Act, 42 U.S.C. § 1396a. The Home Community-based Waiver Services (“HCBS”) and Community Living Assistant and Support Services (“CLASS”) that are the subject of plaintiffs' claims and section 1915(c) waiver programs.
In the footnotes, amid also provide figures pertinent to the broader impact of the result in this case on the Medicaid program in general, and the state waiver programs in particular, nationally and in Texas.
The Texas Medicaid waiver programs under section 1915(c) of the Social Security Act, known as “home and community-based services” (hereafter “HCBS”), drive hundreds of millions of dollars in interstate commerce. See Addendum B, infra.'[FN14] The FY2002 expenditure by Texas for these HCBS waiver programs was 5765,013,032.[FN15]
FN14. Addendum B is Texas' table of Medicaid waiver programs Texas Medicaid in Perspective (“The Pink Book”), Appendix A: Texas Medicaid Waivers (4th ed. 2002), available at www.hhsc.st3te.tx.iis/medicaid/reports/pb/2002pinkbook.html (last visited Oct. 22, 2003). The programs under section 1915(c) appear on page two. Of these, the three listed on rows 2, 3, and 4 on page 2 appear to match the HCBS and CLASS programs that are challenged by plaintiffs in this suit.
FN15. Home and Community-Based Services Resource Network, Medical State Expenditures, FY2002, spreadsheet available at w Oct. 22, 2003).
These programs are growing. First established in 1990, the programs were fully established by all 50 states in 1997. From 1997, there has been a 17.1% annual compounded rate of growth in the 1915(c) programs. Id.
Nationwide, the total FY2002 expenditure for § I915(c) waiver programs alone exceeded $16 billion. Home and Community-Based Services Resource Network, Medicaid Stats Expenditures, FY2002. Table 2, available at hup:// wwv.ta/HCBSwai vers-Table2.xls (last visited Oct. 22, 2003).
*13 The logic behind the appellants' arguments in this case, of course, would • reach also the other Texas Medicaid waiver programs. Quantifying all waiver programs together speaks to their size and their necessary interstate effect. For example, 782,653 enrollees received Texas Medicaid waiver benefits and services in FY2001. See Addendum B, last column. The services they received necessitated significant interstate transactions. According to Texas' Health and Human Services own budget for FY2004-2005, historically prescription drugs have represented 37% of the state expenditures on all optional services for Medicaid; intermediate care facilities for the mentally retarded comprised 31% of the expenditures for Medicaid optional services; and waiver services for HCBS (of which the CLASS and DHS programs are a significant part) comprised 20% of the expenditures. [FN16] These types of services necessarily directly involve transactions in interstate commerce: for example, major pharmaceutical companies are outside Texas, as are suppliers of other equipment, goods, and services in the waiver program.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016590 (C.A.5)

Page 10

FN16. Texas Health and Human Service, Consolidated Budget for Fiscal Years 2004-2005, App. D: Medicaid (Oct. 15, 2002), available at www.hhsc.state.tx.us/about hhsc/finance/reports (last visited Oct. 22, 2003), at 14 of 1 7.
*14 Of course, the state Medicaid waiver programs are integrated into the larger national Medicaid system. [FN17] The Commerce Clause analysis should give due recognition to that integration. For example, it is to be expected that the mandatory and optional (waiver) Medicaid programs operate synergistically in the state's administration of them, such as by having common administrative staff and software, using common purchasing, and answering to many common rules and regulations that pertain to the transactional aspects of the reimbursement and funding systems. This imparts to the state waiver programs a national component which should be sufficient in itself to sustain the finding that the waiver programs have a “substantial relationship” with interstate commerce, regardless of their. effect.[FN18]
FN17. The appellants concede that the Medicaid program is a joint federal-state program. (Appellants'Brief at 6.) They also concede that the state's participation is voluntary. (Id.) Further, they explain that Texas accepted the option provided by the Medicaid laws of applying to the Secretary of Health and Human Services (“HHS”) for approval of programs which would continue Medicaid funding for home- and community-based programs outside hospitals, nursing facilities, or intermediate care facilities. (Id. at 7-S.) Thus, the entire set of services and programs at issue in this suit are part and parcel of a comprehensive national health benefits program.
FN18. Nationally, total Medicaid benefits distributed in FY 2001 were 5215 billion. 2003 CMS Statistics, Table 32, available at http:// cms.hhs.gov/researchesr/pubs/03cmsstats.Ddf. In Texas alone, Medicaid expenditures were projected to be $26.6 billion in FY2002-03. Texas Health and Human Services, Consolidated Buget for Fiscal Years 2004-2005, App. D: Medicaid (Oct. 15, 2002), available at hhsc/ finance/rerjgrts (last visited Oct. 22, 2003), all.
Appellants cannot insulate this large volume of interstate commerce involved in their state Medicaid waiver programs, or the interstate effects of the *15 intrastate portion of this commerce, on grounds that Texas is a state, or that the commerce is part of a state-administered program. Those Texas waiver programs are not incidental, small, or purely intrastate. And of course they are not non-economic.
Publicly available data on expenditures by the State to carry out its waiver programs further underscore the interstate effect of the state programs. The Texas agencies purchase substantial amounts of products and services in interstate commerce. A report published by the Texas Legislative Budget Board lists reported contracts between Texas agencies and private entities that were effective during the year 2002.[FN19] The listed contracts cover the four categories of construction, information services, professional services, and “other,” and the report lists them by agency and category. For each contract, the report specifies the contractor's name, a description of the service contracted, and the contract value.[FN20] By consulting the list of contracts reported for the three agencies whose *16 officials are defendants in this suit,[FN21] one can easily identify a large group of contractors that are interstate companies.[FN22] In addition, the description of services rendered provides evidence that they include services to the waiver programs directly, or that they apply to agency administration procedures that include the waiver programs.[FN23]
FN19. Contracts Reported to Texas State Agencies and Institutes of Higher Education (Dec. 2002), published by Texas at www.lbfa.state.tx.us/contracts/TDocuments.hUn (last visited Oct. 22, 2003)
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016590 (C.A.5)

Page 11

(“Contracts Report”). The state required agencies to report all contracts of $14,000 or more, and all that were reported are listed. See id. at. 1, for a description of the universe of contracts listed.
FN20. Id.
FN21. The contracts relevant to the three agencies were identified largely from pages 75-81 of the Contracts Report, which address contracts with the Texas Health &. Human Services Commission, Texas Department of Mental Health and Mental Retardation, and the Texas Department of Human Services. A second source for identifying contractors active in the waiver programs of the three agencies was the Private Providers Association in Texas (“PPAT”), which identified several additional companies that are involved in the Texas section 1915(c) waiver program. See www.ppat.com/member listing.htm (last visited Oct. 22, 2003). Contract values for those companies as well were found in other sections of Contracts Report, at pages 109, 113 and 124.
FN22. Internet search engines and corporate web sites were consulted to determine which of the contractors located according to the method of footnote 17 were interstate. The services provided by a contractor were deemed to be in interstate commerce if: (1) the contractor's headquarters were located in a state other than Texas; or (2) the contractor had headquarters in Texas and also had offices outside of Texas; or (3) the contractor had headquarters in Texas and did business outside of Texas.
FN23. The services listed for these contractors cover, for example, case management, habitation, respite care, psychological services, speech, occupational, physical and other specialized therapy, adaptive aids and supplies, home modifications, dietary assistance, pre-vocational training, communications services, emergency response services, and home-delivered meals, as well as computer systems and services for operating the agencies programs.
Initially counting only the contracts held by interstate contractors, and only for the three agencies, the value of contracted services that is in interstate commerce exceeded $782 million. See Addendum C, infra.[FN24] This figure is salient evidence of the substantial amount of interstate commerce conducted in *17 conjunction with state services and programs just for the three agencies.[FN25] When the entirety of the service contracts reported for the three agencies is considered, including intrastate companies whose activities impact interstate commerce, the figure is $933.1 million.[FN26]
FN24. Addendum C lists the contractors determined to be in interstate business as described in the foregoing discussion, the state's description of their service, and their total contract values.
FN25. Moreover, of the $7S2 million, $384 million is business done with contractors that are actually headquartered outside Texas. Addendum C.
FN26. Contracts Reported to Texas State Agencies and Institutes of Higher Education (Dec. 2002).
Congress acted well within its Commerce Clause authority to impose on the state's administration of this (and other) services, programs, and activities the right of persons with disabilities to be free from discrimination in the administration of those programs.[FN27] This case is not even close to the outer limit of the power: in the words of Lopez, Title II applied to the Texas administration of Medicaid and Medicaid waiver services and programs poses no threat of any “obliteration” of local as distinct from national concerns. Lopez, 514 U.S. at 556-57.
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016590 (C.A.5)

Page 12

FN27. See Burns-Vidlak by Burns v. Chandler, 939 F. Supp. 765 (D. Haw. 1996) (.ADA applied to state waiver regardless of whether the waiver agreement recited the ADA as a condition).
(2) The second reference point in Morrison was whether the firearms statute at issue there had an express jurisdictional element limiting its reach to a subject that has an explicit connection with or effect on interstate commerce. *18529 U.S. at 612. The Court explained that this element “may establish that the enactment is in pursuance of Congress's regulation of interstate commerce.” Id.
No such express jurisdictional element is needed for that purpose with respect to Title II - Congress wrote right into the statute itself that the enactment was pursuant to its regulation of interstate commerce. 42 U.S.C. § 12101(b)(4) (“to invoke the sweep of congressional authority, including the power... to regulate commerce, in order to address the major areas of discrimination faced day-to-day be people with disabilities”).
Further, no such limitation is required for the purpose of expressly narrowing the statute to the group of services or programs that may have an exp+licit connection with interstate commerce, and appellants' “wider net” point is unavailing. The Court foreclosed such a novel position in Maryland v. Wirtz, 392 U.S. 183 (1968), and reiterated the point in italics in Lopez. See page 9, supra. Congress is obviously not required to write into general regulatory statutes a catalogue of every circumstance to which the statute may be found to apply at the time of enactment or in the future.
(3) As a third reference point, the Court considers legislative findings and congressional committee findings regarding the effect on interstate commerce. Lopez, 514 U.S. at 639; Morrison, 529 U.S. at 612 (noting that in Lopez, legislative history did not contain express congressional findings regarding the *19 effect upon interstate commerce of gun possession in a school zone). In both Lopez and Morrison, the Court emphasized that “Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce.” Lopez, 514 U.S. at 562-563 (citing Katzenbach v. McClung, 379 U.S. 294, 304 (1964); Pere: v. United States, 402 U.S. 146, 156 (1971) (stating that “Congress need [not] make particularized findings in order to legislate”)). Once such findings are made, however, the Supreme Court has held that it “must defer to a congressional finding that a regulated activity affects interstate commerce ‘if there is any rational basis for such a finding.’ “Preseauh v. ICC, 494 U.S. 1, 17 (1990) (quoting Model v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 276-77 (1981)). In fact, deference to rationally based legislative judgments “is a paradigm of judicial restraint.” FCC v. Beach Communications, Inc., 508 U.S. 307, 314 (1993).
The ADA language and legislative history are replete with references to the substantial relationship between interstate commerce and the discrimination against persons with disabilities that Congress intended to eliminate from programs, services, and activities regulated by the ADA. Appellants do not make any case otherwise.
Congressional findings related to the ADA demonstrate a rational basis for the conclusion that the ADA-bears a substantial relation to interstate commerce. *20 Relating Title 11 to interstate commerce through the effects of discrimination against persons with disabilities on interstate enterprises, the labor market, and the national economy, Congress made statutory findings that relate the ADA to interstate commerce, including the following: (3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services; (5) individuals with disabilities continually encounter various forms of discrimination, including... exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits,
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016590 (C.A.5)

Page 13

jobs, or other opportunities; (9) the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.
42U.S.C. § 12101.
The legislative history sets forth additional congressional findings in support of the interstate commerce nexus. The Senate Committee on Labor and Human Resources repeatedly addressed the importance of equality for persons *21 with disabilities to the economic mainstream of the nation. E.g., S. rep. No. 101-116, at 2 (1989) (“the purpose of the ADA is to provide a clear and comprehensive national mandate... to bring persons with disabilities into the economic and social mainstream of American life...”); id. at 16-17 (“it is contrary to sound principles of fiscal responsibility to spend billions of Federal tax dollars to relegate people with disabilities to positions of dependency upon public support”) (considering the testimony of chairperson of National Council on Disability); id. (“[T]he National Council on the Handicapped states that current spending on disability benefits and programs exceeds $60 billion annually.”) (considering a statement received from former President Bush).
The Senate recognized the broad impact on commerce of discrimination in its many forms on the basis of disability. “Discrimination [against persons with disabilities] still persists in such critical areas as employment in the private sector, public accommodations, public services, transportation, and. telecommunications.” Id. at 6. Similarly, the House of Representatives recognized that discrimination against persons with disabilities affected commerce not only on a national, but on an international level. H. rep. No. 101-485, pt. 4, at 116-17 (1990). These and *22 other findings demonstrate that Congress had firmly in mind rational bases to employ the Commerce power when enacting the ADA.[FN28]
FN28. Congress held eighteen hearings, during the 100th and 101st Congresses. See S. Rep. No. 101-116, at 4-5 (1989) (listing 4 committee and subcommittee hearings in 101st Cong., and a joint committee hearing in 100th Cong.); H.R. Rep. No. 101-485, pt. 2, at 24-28 (1990) (listing 4 committee and subcommittee hearings in 101st Cong., and a subcommittee hearing and a joint committee hearing in 100th Cong.); H.R. Rep. No. 101-4S5.pt. 3, at 24 (1990) (listing 4 committee and subcommittee hearings in 101st Cong.); H.R. Rep. No. 101-4S5, pt. 4, at 28-29 (1990) (Iisting2 subcommittee hearings in 101st Cong.); Americans with Disabilities Ace Hearings on H.R. 2273 Before the Subcomm. on Surface Transportation of the House Comm. on Public Works and Transportation. 101st Cong. (1990).
Congress also considered the conclusions of several specialized investigatory and advisory bodies, including the White House Conference on Handicapped Individuals; the National Council on Disability (established by Congress in 1984); the U.S. Commission on Civil Rights; the Advisory Commission on Intergovernmental Relations; the General Accounting Office; and the Task Force on the Rights and Empowerment of Americans with Disabilities. These bodies studied the effects of discrimination on the basis of disability. The Congressional Research Service also was asked to provide numerous reports See, e.g., Nancy Lee Jones, Judicial Decisions Discussing “Program or Activity Receiving Federal Funds” Under Section 504 of the Rehabilitation Act Before and After Grove City College v. Bell. Congressional Research Service, The Library of Congress (19S5); Nancy Lee Jones, Overview of Major Issues Under Section 504 of the Rehabilitation Act, Congressional Research, The Library of Congress Nancy Lee Jones, Proposed Coverage of Handicapped Persons By Title VI! of the Civil Rights Act: An
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2003 WL 24016590 (C.A.5)

Page 14

Analysis of H.R. 370, Congressional Research Service, The Library of Congress (1985).
The national economic implications of these findings provoked Congress to act. 42 U.S.C. § 12101(b)(4). There can be no doubt that the congressional findings were rational, and that the Commerce Clause power is sufficient to address these concerns.
(4) On the fourth reference point - whether the link is “attenuated” - appellants offer no argument. Of course, the foregoing discussion of the programs *23 at issue here cements the fact that the link of Title II to interstate commerce is far from attenuated.
CONCLUSION
This suit is proper under Ex parte Young. Even were the appellate court to examine the challenge to the constitutionality of the ADA in this narrow Eleventh Amendment appeal, it should find that Congress had clear and ample Commerce Clause authority to require in the ADA that persons with disabilities not be discriminated against in the provision of services and programs by the state officials who administer them.
Christy MCCARTHY, by and Through her Next Friend Jamie Travis; Todd Gordon, by and Through his Next Friend Trisha Gordon; Allison Pratt, by and Through her Next Friend Paula Pratt; Gail Truman, by and Through her Next Friend Ken Truman; Jim Floyd, Jr., by and Through his Next Friend Jim Floyd, Sr.; Sam Lindsay, by and Through his Next Friend Betty Lindsay; Oshea Brooks; Joe Ray Comacho; Micha Chastain, by and Through his Next Friend Lori Lchastain; Al, by and Through his 2003 WL 24016590 (C.A.5 ) (Appellate Brief )
END OF DOCUMENT

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

 
 Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...

2003 WL 24016592 (C.A.5) (Appellate Brief) United States Court of Appeals, Fifth Circuit.
Christy MCCARTHY, by and through her next friend Jamie Travis, et al., Plaintiffs-Appellees, v.
Karen F. HALE, in her official capacity as Commissioner of the Texas Department of Mental Health & Retardation, et al., Defendants-Appellants.
No. 03-50608. November 05, 2003.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, AUSTIN DIVISION

Brief for the United States as Intervenor

R. Alexander Acosta, Assistant Attorney General, Jessica Dunsay Silver, Kevin Russell, Attorneys, Civil Rights Division, U.S. Department of Justice, 950 Pennsylvania Avenue-PHB 5010, Washington, DC 20530, (202) 305-4584

STATEMENT REGARDING ORAL ARGUMENT

The United States believes that oral argument will assist the Court in reaching its decision in this case.

*i TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT

JURISDICTIONAL STATEMENT ....................................................................................................................................

1

STATEMENT OF THE ISSUES ..........................................................................................................................................

2

STATEMENT OF THE CASE ..............................................................................................................................................

2

SUMMARY OF ARGUMENT ..............................................................................................................................................

7

ARGUMENT: ................................................................................................................................................................................

9

I. SUITS UNDER TITLE II MAY BE BROUGHT AGAINST STATE OFFICIALS IN THEIR

9

OFFICIAL CAPACITIES FOR PROSPECTIVE RELIEF ..................................................................................

II. THE CONSTITUTIONALITY OF TITLE II AND SECTION 504 AFFECTS THE MERITS

16

OF PLAINTIFFS’ CLAIMS, NOT THE COURT’S JURISDICTION UNDER EXPARTE

YOUNG TO ADJUDICATE THE CLAIMS .................................................................................................................

A. The Constitutionality Of A Federal Statute Is A Question On The Merits That Does Not Affect The

16

Eleventh Amendment Analysis Under Ex parte Young ....................................................................................................

B. Even If This Court Had Discretion To Decide The State’s Constitutional Challenges InThis Appeal,

19

It Should Decline To Do So ........................................................................................................................................................

III. TITLE II IS VALID FOURTEENTH AMENDMENT LEGISLATION ................................................

22

1

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
*ii A. The Substantive Requirements Of Title II As A Whole Are Valid Fourteenth Amendment Legislation, Even If The Abrogation Provision Is Not ..................................................................................................... B. In The Alternative, Title II, As Applied In The Olmstead Setting. Is Valid Fourteenth Amendment Legislation ......................................................................................................................................................................................... 1. Congressional Record Of Unconstitutional State Conduct ........................................................................................ 2. Congruence and Proportionality .......................................................................................................................................... IV. TITLE II IS VALID COMMERCE CLAUSE LEGISLATION .......................................................................... A. Economic Nature Of Activity ................................................................................................................................................ 1. Title II Regulates Economic Conduct ................................................................................................................................ 2. Title II Is An Integral Part Of Comprehensive Scheme To Regulate InterstateCommerce ........................... B. Jurisdictional Element ............................................................................................................................................................. C. Congressional Findings ......................................................................................................................................................... D. Attenuation .................................................................................................................................................................................. V. TITLE II DOES NOT VIOLATE THE TENTH AMENDMENT ........................................................................ VI. SECTION 504 IS VALID SPENDING CLAUSE LEGISLATION ............................................................ *iii CONCLUSION ...................................................................................................................................................................... CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
*iv TABLE OF AUTHORITIES CASES: Alden v. Maine, 527 U.S. 706 (1999) .................................................................... Alexander v. Choate, 469 U.S. 287 (1985) ......................................................... Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) .......................................... Armstrong v. Wilson, 124 F.3d 1019 (9th Cir. 1997), cert. denied, 524 U.S. 937 (1998) ............................................................................................................. AT&T Communications v. BellSouth Telecomm, Inc., 238 F.3d 636 (5th Cir. 2001)l .............................................................................................................. Baker v. Bell, 630 F.2d 1046 (5th Cir. 1980) .....................................................
2

22 25 26 32 34 35 35 39 42 43 45 46 51 52
9, 24 14 13 13 12
14, 20

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
Barnes v. Gorman, 536 U.S. 181 (2002) ............................................................. Bazemore v. Friday, 478 U.S. 385 (1986) .......................................................... Blodgett v. Holden, 275 U.S. 142, 148 (1927) .................................................. Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) .................. Bragdon v. Abbott, 524 U.S. 624 (1998) ............................................................. Brennan v. Stewart, 834 F.2d 1248 (5th Cir. 1988) ........................................ Bruggeman v. Blagojevich, 324 F.3d 906 (7th Cir. 2003) ............................ Buck v. Bell, 274 U.S. 200 (1927) .......................................................................... Campbell v. Kruse, 434 U.S. 808 (1977) ............................................................. *v Camps Newfound/Owatonna. Inc. v. Town of Harrison, 520 U.S. 564 (1997) ....................................................................................................................... Carten v. Kent State Univ., 282 F.3d 391 (6th Cir. 2002) ............................. City of Boerne v. Flores, 521 U.S. 507 (1997) .................................................. City of Cleburne v. Cleburne Living Cir., Inc., 473 U.S. 432 (1985) ....... Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996) ................................................. EEOC v. Wyoming, 460 U.S. 226 (1983) ............................................................ Employees of Dep’t of Pub. Health & Welfare v. Department of Pub. Health & Welfare, 411 U.S. 279 (1973) .............................................................. Feminist Women’s Health Cir., Inc., v. Mohammad, 586 F.2d 530 (1978), cert. denied, 444 U.S. 924 (1979) ........................................................... Fry v. United States, 421 U.S. 542 (1975) .......................................................... Gaar v. Quirk, 86 F.3d 451 (5th Cir. 1996) ........................................................ Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) ........... CDF Realty Invs., Inc. v. Norton, 326 F.3d 622 (5th Cir. 2003) ................ Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030 (7th Cir. 1987) ........ Green v. Mansour, 474 U.S. 64 (1985) ................................................................ Groome Res. Ltd. v. Parish of Jefferson, 234 F.3d 192 (5th Cir. 2000) .. Gros v. City of Grand Praire, 209 F.3d 431 (5th Cir. 2000) ....................... *vi Hafer v. Melo, 502 U.S. 21, 25 (1991) .........................................................
3

5 13 19 passim 14 14, 15, 18 10 27 14 36, 37
11, 12 25
26, 27 13
36, 48 26
38
36 18 20, 36 39 14 15 passim 19 12

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
Helms v. McDaniel, 657 F.2d 800 (5th Cir. 1981), cert. denied, 455 U.S. 946 (1982) ............................................................................................................. Hodel v. Indiana, 452 U.S. 314 (1981) ................................................................ Honig v. Students of Cal. Sch. for the Blind, 471 U.S. 148 (1985) ........... Hospital Bldg. Co., v. Trustees of Rex Hosp., 425 U.S. 738 (1976) ......... Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) ......... Idaho v. Coeur d Alene Tribe, 521 U.S. 261 (1997) ....................................... Jordan v. City of Greenwood, 711 F.2d 667 (5th Cir. 1983) ....................... Katzenbach v. McClung. 379 U.S. 294 (1964) .................................................. Kentucky v. Graham, 473 U.S. 159 (1985) ......................................................... Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) ..................................... Lau v. Nichols, 414 U.S. 563 (1974) .................................................................... Lewis v. New Mexico Dep’t of Health, 261 F.3d 970 (10th Cir. 2001) ............................................................................................................................................... Lorillard v. Pons, 434 U.S. 575 (1978) ................................................................ Lussier v. Dugger, 904 F.2d 661 (11th Cir. 1990) ........................................... Maryland v. Wirtz, 392 U.S. 183 (1968), overruled on other grounds, National League of Cities v. Usery, 426 U.S. 833 (1976), overruled, Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) ........... *vii Miener v. Missouri, 673 F.2d 969 (8th Cir. 1982) .................................. National League of Cities v. Usery, 426 U.S. 833 (1976) ............................ Nevada Dep’t of Human Res. v. Hibbs, 123 S.Ct. 1972 (2003) ................. New York v. United States, 505 U.S. 144 (1992) ............................................. Olmstead v. L.C., 527 U.S. 581 (1999) ................................................................ Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ............ Perez v. Region 20 Educ. Serv. Cir., 307 F.3d 318 (5th Cir. 2002) .......... Printz v. United States, 521 U.S. 898 (1997) ..................................................... Prout v. Starr., 188 U.S. 537 (1903) ..................................................................... Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506
4

14
39 14 38 45 15 20 45 12 passim 13 18, 19
14 14 20, 36
14 20, 36, 48
24, 25 50
passim 10, 15
10 50 10
2

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
U.S. 139, 143-145 (1993) .......................................................................................... Quern v. Jordan, 440 U.S. 332 (1979) ................................................................. Randolph v. Rodgers, 253 F.3d 342 (8th Cir. 2001) ....................................... Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001) ................................. Reno v. Condon, 528 U.S. 141 (2000) .................................................................. Russell v. United States, 471 U.S. 858 (1985) ................................................... S-I v. Turlington, 635 F.2d 342 (5th Cir.), cert. denied. 454 U.S. 1030 (1981) ................................................................................................................................ South Carolina v. Baker, 485 U.S. 505 (1988) ................................................. *viii South Dakota v. Dole,483 U.S. 203 (1987) .............................................. Swint v. Chambers County Comm’n, 514 U.S. 35 (1995) ............................ Telespectrum Inc. v. Public Serv. Comm’n, 227 F.3d 414 (6th Cir. 2000) .................................................................................................................................. Thompson v. Colorado, 278 F.3d 1020 (10th Cir. 2001), cert. denied, 535 U.S. 1077 (2002) .................................................................................................. United States v. Alabama, 791 F.2d 1450 (11th Cir. 1986) ......................... United States v. Bird, 124 F.3d 667 (5th Cir. 1997), cert. denied, 523 U.S. 1006 (1998) ........................................................................................................... United States v. California, 297 U.S. 175 (1936) ............................................ United States v. Jennings, 195 F.3d 795 (5th Cir. 1999), cert. denied, 530 U.S. 1245 (2000) .................................................................................................. United States v. Lipscompb., 299 F.3d 303 (5th Cir. 2002) ......................... United States v. Lopez, 514 U.S. 549 (1995) ..................................................... United States v. McFarland, 311 F.3d 376 (5th Cir. 2002) (en banc), cert. denied, 123 S. Ct. 1749 (2003) ...................................................................... United States v. Mississippi Dep’t of Pub. Safety, 321 F.3d 495 (5th Cir. 2003) ......................................................................................................................... United States v. Morrison, 529 U.S. 598 (2000) .............................................. United States v. Virginia. 518 U.S. 515 (1996) ................................................ United Transp. Union v. Long Island R.R. Co., 455 U.S. 678 (1982) ...... *ix Verizon Md., Inc. v. Public Serv. Comm’n, 535 U.S. 635 (2002) ......
5

9 12-13 passim 46, 49, 50, 51
38 14
36, 51 51 19 13
23
13 38
36 38
18 34, 35, 39, 46
20
36, 45, 47
35, 38, 42 32 36
7, 12, 17

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000), cert. denied, 531 U.S. 1190 (2001) ..................................................................................................................... White v. United States Pipe & Foundry Co., 646 F.2d 203 (5th Cir. 1981) .................................................................................................................................. Ex Parte Young, 209 U.S. 123 (1908) ................................................................... CONSTITUTION & STATUTES: United States Constitution: Spending Clause, Art. I. § 8, Cl. 1 ......................................................................... Commerce Clause Art. I. § 8, Cl. 3 ........................................................................ Tenth Amendment ........................................................................................................ Eleventh Amendment .................................................................................................. Fourteenth Amendment .............................................................................................. Section 5 ........................................................................................................................... 28 U.S.C. 1291 ............................................................................................................... 28 U.S.C. 1292(b) ......................................................................................................... 28 U.S.C. 1331 ............................................................................................................... 28 U.S.C. 1343 ............................................................................................................... 42 U.S.C. 1997b(a)(1) ................................................................................................. 42 U.S.C. 2000d-7 ........................................................................................................ 47 U.S.C. 252(b)(4) ..................................................................................................... 47 U.S.C. 252(e) ........................................................................................................... *x Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq. ................................................................................................................................. 42 U.S.C. 12101(a)(1) ................................................................................................. 42 U.S.C. 12101(a)(2) ................................................................................................. 42 U.S.C. 12101(a)(3) ................................................................................................. 42 U.S.C. 12101(a)(6) ................................................................................................. 42 U.S.C. 12101(a)(7) .................................................................................................
6

10
19
passim
2, 7, 9, 51 passim passim passim passim 22 1-2 19 1 1 29 5 12 12 passim
44 3
3, 41, 43 44 42

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
42 U.S.C. 12101(a)(9) ................................................................................................. 42 U.S.C. 12101(b)(1) ................................................................................................ 42 U.S.C. 12101(b)(4) ................................................................................................ 42 U.S.C. 12111-12117 (Title I) ............................................................................. 42 U.S.C. 12131-12165 (Title II) ........................................................................... 42 U.S.C. 12132 ............................................................................................................ 42 U.S.C. 12133 ............................................................................................................ 42 U.S.C. 12134 ............................................................................................................ 42 U.S.C. 12181-12189 (Title III) .......................................................................... 42 U.S.C. 12182(b)(1)(B) .......................................................................................... Civil Rights of Institutionalized Persons Act. 42 U.S.C. 1997 et seq. ..... Development Disablilities Act of 1984. 42 U.S.C. 6000 et seq. ................. Driver’s Privacy Protection Act of 1994, 18 U.S.C. 2721 et seq. .............. Fair Housing Amendments Act (FHAA), 42 U.S.C. 3604 ........................... Rehabilitation Act of 1973, 29 U.S.C. 701 et seq. 29 U.S.C. 794 (Section 504) .................................................................................................................. 29 U.S.C. 794(a) ........................................................................................................... 29 U.S.C. 794a(a)(2) ................................................................................................... 29 U.S.C. 794(b) ........................................................................................................... Title XIX of the Social Security Act (Medicaid Act), 42 U.S.C. 1396 et seq. ................................................................................................................................. *xi REGULATIONS: 28 C.F.R. 35.130(b)(7) ............................................................................................... 28 C.F.R. 35.130(d) ..................................................................................................... 28 C.F.R. 36.203 ........................................................................................................... LEGISLATIVE HISTORY: H.R. Rep. No. 485, 101st Cong., 2d Sess. (1990) Pt.2 ......................................................................................................................................
7

3 3 3, 34 passim passim 25 13 4 passim 50 28, 29 28 49 34, 42 passim
5 13
5 5, 6
4 4, 50
50
31, 42, 43, 44

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
Pt.3 ......................................................................................................................................
Pt.4 ......................................................................................................................................
S. Rep. No. 116, 101 st Cong., 1 st Sess. (1989) ..............................................
Staff of the House Comm. on Educ. and Labor. 101st Cong., 2d Sess., Legis. History of Pub. L. No. 101-336: The Americans with Disabilities Act 2242 (Comm. Print 1990) Vol.2 .............................................
Vol.3 ..................................................................................................................................
132 Cong. Rec. 10589(1986) ...................................................................................
136 Cong. Rec. H2603 (daily ed. May 22. 1990) .............................................
MISCELLANEOUS:
California Att’y Gen., Commission on Disability: Final Report (Dec. 1989) ..................................................................................................................................
D. Rothman, The Discovery of the Asylum (1971) ..........................................
J. Keilson. Recruiting Human Service Employees in Good Times and Otherwise .........................................................................................................................
*xii J. Wiener, et al., Home and Community-Based Services in Seven States, 23 Health Care Financing Review 100 (Spring 2002) .....................
Karon & Beutel, Intermediate Care Facilities for the Mentally Retarded: Facility and Client Characteristics, 1999 (2001) .......................
M. Burgdorf & R. Burgdorf, A History of Unequal Treatment, 15 Santa Clara Lawyer 855 (1975) ..............................................................................
Mental Disability and the Right to Vote, 88 Yale L.J. 1644 (1979) ..........
National Council on the Handicapped, On the Threshold of Independence (1988) ...................................................................................................
T. Cook. The Americans with Disabilities Act: The Move to Integration. 64 Temp. L. Rev. 393 (1991) ..........................................................
Task Force on the Rights and Empowerment of Americans with Disabilities, From ADA to Empowerment (1990) ...........................................
U.S. Civil Rights Comm’n Accommodating the Spectrum of Individual Abilities (1983) ........................................................................................

43 43 passim 28, 43
27 28 42
28 26 38 37 37 27-28 27 40 27 43 passim

JURSDICTIONAL STATEMENT Plaintiffs filed this case alleging violations of, among other statutes, Title II of the Americans with Disabilities Act, 42 U.S.C.
8

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
12131 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794. The district court had jurisdiction pursuant to 28 U.S.C. 1331, 1343. On May 23, 2003, the district court denied Defendants’ motion to dismiss the complaint as barred by the State’s Eleventh Amendment immunity. Defendants then filed a timely notice of appeal on May 29, 2003. This Court has jurisdiction to review the correctness of the district court’s denial of the State’s claim of sovereign immunity pursuant to *2 28 U.S.C. 1291. See Puerto Rico Aqueduct & Sewer Aitth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 143-145(1993).
STATEMENT OF THE ISSUES
The United States will address the following issues:
1. Whether an individual may sue state officials in their official capacities to enjoin continuing violations of Title 11 of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504).
2. Whether this Court should review the State’s challenge to the constitutionality of Title II and Section 504 in this interlocutory appeal from a denial of Eleventh Amendment immunity.
3. Whether the substantive requirements of Title II of the ADA are a valid exercise of Congress’s powers under either the Fourteenth Amendment or the Commerce Clause.
4. Whether the substantive requirements of Title II of the ADA violate the Tenth Amendment.
5. Whether Section 504 is valid Spending Clause legislation.
STATEMENT OF THE CASE
This case involves the application 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 (Section 504), 29 U.S.C. 794, to Texas’s administration of programs for individuals with mental retardation and other developmental disabilities.
*3 1. Congress enacted the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq., to establish a “comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. 12101(b)(1). Congress found that “historically, society has tended to isolate and segregate individuals with disabilities,” and that “such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. 12101(a)(2). Discrimination against persons with disabilities “persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.” 42 U.S.C. 12101(a)(3). “[T]he continuing existence of unfair and unnecessary discrimination and prejudice,” Congress concluded, “denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.” 42 U.S.C. 12101(a)(9).
Based on those findings, Congress “invoke[d] the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce” and enacted the ADA. 42 U.S.C. 12101 (b)(4). The ADA targets three areas of discrimination against persons with disabilities. Title I, 42 U.S.C. 12111-12117, addresses discrimination by employers affecting interstate commerce; Title 11. 42 U.S.C. 12131-12165, addresses discrimination by *4 govemmental entities in the operation of public services, programs, and activities, including transportation; and Title III, 42 U.S.C. 1218112189, addresses discrimination in public accommodations operated by private entities.
In enacting the ADA, Congress instructed the Attorney General to promulgate regulations to interpret and implement Title II of the Act. See 42 U.S.C 12134. The Title II regulations require, among other things, that a “public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. 35.130(d). In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court interpreted Title II in light of
9

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
the integration regulation and held that “[u]njustified isolation” of individuals with disabilities in institutions “is properly regarded as discrimination based on disability,” in violation of the ADA. Id. at 597. At the same time, the plurality recognized that the State’s responsibility under the Act “is not boundless.” Id. at 603 (plurality); see also id. at 607 (Stevens, J., concurring) (same). States need only make “reasonable modifications,” to avoid discrimination, which does not include changes that would “fundamentally alter the nature of the service, program, or activity.” Id. at 603 (plurality); id. at 607 (Stevens, J., concurring); 28 C.F.R. 35.130(b)(7).
2. Section 504 of the Rehabilitation Act of 1973 was the predecessor to the ADA and provides that “[n]o otherwise qualified individual with a disability in the United States * * * shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to *5 discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. 794(a). The provision applies to a “program or activity,” a term defined to include “all of the operations” of a state agency, university, or public system of higher education “any part of which is extended Federal financial assistance.” 29 U.S.C. 794(b). Section 504 may be enforced through private suits against States or state agencies providing programs or activities receiving federal funds. See 42 U.S.C. 2000d-7: Barnes v. Gonnan, 536 U.S. 181, 185 (2002).
3. Plaintiffs are 21 individuals with mental retardation or developmental disabilities, seeking to represent a class of similarly situated individuals, and a nonprofit group that provides services to the class (see Order, R-6-1097).1 They allege, among other things, that “the defendants violated Title II by failing to provide them ‘community mental retardation or developmental disability habitation and support services in the most integrated setting appropriate’ and failing to provide * * * services to individuals in [intermediate care facilities for the mentally retarded] that would allow them to avoid institutionalization” (id. at 1115-1116).2 Plaintiffs sued the heads of the relevant Texas state agencies in their *6 official capacities, seeking prospective injunctive and declaratory relief (see id. at 236,272).
On May 23, 2003, the district court denied the State’s motion to dismiss Plaintiffs’ Title II and Section 504 claims, while granting the motion in substantial part with respect to Plaintiffs’ claims under the Medicaid Act and the Fourteenth Amendment (see R-6-1104-1123). Plaintiffs’ ADA and Section 504 claims for prospective relief against the state officials in their official capacities were not barred by the Eleventh Amendment, the court concluded (id. at 1116-1118, 1120), because they fell within the exception to sovereign immunity established in Ex pane Young, 209 U.S. 123 (1908). The State nonetheless argued that it was “immune from suit under Title II of the ADA because the statute exceeds Congress’s Commerce Clause power and regulates the states in violation of the Tenth Amendment” (R-6-1118). However, the district court found (ibid.) that because Plaintiffs “validly invoked the Ex pane Young exception, it need not address the defendants’ sovereign immunity arguments.” “[I]t is axiomatic that the Eleventh Amendment is not implicated when state officials are properly sued under the Ex pane Young exception and the state or its agency is not a defendant” (ibid.). Finally, the district court held (id. at 1120-1123) that Plaintiffs stated a claim under Section 504 and Title II, as interpreted by Olmstead.
The State subsequently took this interlocutory appeal, asserting (Br. 2) jurisdiction pursuant to the collateral order doctrine to challenge the district court’s denial of its Eleventh Amendment immunity claim. The scope of this appeal is necessarily limited by its interlocutory posture. The only question within this Court’s jurisdiction is whether an individual may sue state officials in their official capacities to enjoin continuing violations of Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504). The Supreme Court has repeatedly held that suits against state officials in their official capacities to enjoin an ongoing violation of federal law are not barred by the Eleventh Amendment under the doctrine of Ex pane Young. 209 U.S. 123 (1908). See, e.g., Verizon Md., Inc. v. Public Serv. Comm’n, 535 U.S. 635 (2002). This is true even in cases, such as this one and Ex pane Young itself, in which the plaintiff seeks to enforce a legal obligation that is imposed on a State or state agency rather than specifically on a state official. This Court should resist the State’s invitation to go further and decide whether Title II is a constitutional exercise of Congress’s Fourteenth Amendment authority or Commerce Clause power, and whether Section 504 is valid Spending Clause legislation. These constitutional questions will only require an answer if Plaintiffs prevail upon remand. Moreover, the Supreme Court is currently considering related questions in a case that will be decided this Term. Finally, the State’s constitutional challenges raise novel issues of first impression and enormous import that were never ruled upon by the district court.
*7 SUMMARY OF ARGUMENT
10

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
If this Court reaches the State’s challenges to the validity of Title II and Section 504, it should reject them. As held open by this Court in *8 Reickenbacker v. Foster 274 F.3d 974 (5th Cir. 2001), the substantive requirements of Title II are a valid exercise of Congress’s power to enforce the Fourteenth Amendment, even if the statute does not validly abrogate the State’s immunity to claims for damages. In reviewing the substantive requirements, this Court must consider the entire record of unconstitutional conduct by state actors, including the actions of local government officials. That record is particularly strong in the context of the institutionalization of the mentally retarded. Moreover, the Court must also take into account that suits against States, or against state officials for money damages, are no longer available to enforce the substantive requirements of Title II. In light of these factors, Title II’s prohibition against disability discrimination by public entities is a valid means of enforcing the Fourteenth Amendment.
Title II is also a valid exercise of Congress’s power under the Commerce Clause. In prohibiting discrimination in the State’s residential treatment services for individuals with mental retardation, Congress regulates a service that is economic in nature and which substantially affects interstate commerce. Such services are pan of a national market in which both private and public entities participate. The Supreme Court has recognized in certain situations that when similar economic activities are undertaken by nonprofit entities or state hospitals, they fall within Congress’s Commerce Clause authority.
More generally, Congress is entitled to prohibit disability discrimination in public programs as part of its broader economic regulation of employment and public accommodations. Congress understood that discrimination in public *9 services substantially impedes the economic efficacy of removing barriers to participation in the labor and consumer markets. This case illustrates the point -people unjustifiably institutionalized by the State are severely limited in their ability to have jobs or patronize public accommodations in their communities.
Furthermore, the ADA does not commandeer state legislators or executive officials in violation of the Tenth Amendment and applies substantially identical non-discrimination requirements on public and private entities alike, consistent with the Tenth Amendment.
Finally, as the United States has argued in numerous other cases currently pending before this Court, the requirements of Section 504 are a valid exercise of Congress’s power under the Spending Clause.
ARGUMENT
I. SLUTS UNDER TITLE II MAY BE BROUGHT AGAINST STATE OFFICIALS IN THEIR OFFICIAL CAPACITIES FOR PROSPECTIVE RELIEF
The Eleventh Amendment bars private suits against a State sued in its own name absent a valid abrogation of sovereign immunity by Congress or waiver of immunity by the State. See Alden v. Maine, 527 U.S. 706, 755-756 (1999). The Eleventh Amendment also bars suits against officials in their official capacities, subject to the established exception articulated in Ex pane Young, 209 U.S. 123 (1908). See, e.g. Quern\ . Jordan, 440 U.S. 332, 337 (1979). Ex Pane Young held that the Eleventh Amendment posed no bar to suits against state officials in their official capacities for prospective relief to end ongoing violations of federal *10 la. See ibid. While the Court in Ex pane Young explained its results in terms that have since been called a “fiction” (that a state official violating federal law is not acting on behalf of “the State”), courts have long recognized that the legitimacy and longevity of the doctrine is grounded in a practical construction of the Constitution’s dual commands of state sovereignty and the supremacy of federal law. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105 (1984); see also Pront v. Starr; 188 U.S. 537, 542-543 (1903).
Relying on the Seventh Circuit’s overruled decision in Walker v. Snyder, 213 F.3d 344, 346-347 (7th Cir. 2000), cert. denied, 531 U.S. 1190 (2001),3 the State asserts (Br. 20) that Congress precluded use of Ex parts Young suits to enforce Title 11 when it imposed the obligations of that Title on “public entities,” rather than on public officials. In fact, the State asserts (Br. 20) that, as a general rule, “when a statute is directed at ‘the State,’ rather than a ‘state official,’ Congress did not intend to permit a Young suit to enforce that statute.” The State proposes a limitation on Ex pane Young that has no basis in the precedents of this Court or the Supreme Court, one that would ignore the Court’s on-point instruction in Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001),4 and *11 overrule scores of cases, including Ex pane Young itself.5
11

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
As the Sixth Circuit recently explained in rejecting the same argument the State makes here, the
problem with this argument is that it misrepresents Ex pane Young, insofar as it fails to recognize the nuances [of the doctrine]. The Court in [Ex parte Young] was not saying that the official was stripped of his official capacity for all purposes, but only for purposes of the Eleventh Amendment. This is evident in Ex pane Young itself: though the official was not “the state” for purposes of the Eleventh Amendment, he nevertheless was held responsible in his official capacity for enforcing a state law that violated the Fourteenth Amendment, which by its terms applies only to “states.” * * * And in rejecting the defendants’ Ex pane Young argument, we make a similar distinction: an official who violates Title II of the ADA does not represent “the state” for purposes of the Eleventh Amendment, yet he or she nevertheless may be held responsible in an official capacity for violating Title II, which by its terms applies only to “public entit[ies].”
Carter; v. Kent State Univ., 282 F.3d 391, 396 (6th Cir. 2002) (citations omitted). Thus, a suit against a public official in his official capacity is a suit against the state agency for every purpose except Eleventh Amendment immunity. “Officialcapacity suits * * * ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’ As long as the government entity receives notice and an opportunity to respond, an *12 official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 165-166 (1985) (citations omitted); see also Hafer v. Melo, 502 U.S. 21, 25 (1991). Accordingly, an ey pane Young suit against a public official in his official capacity to enjoin violations of Title II is quite properly considered to be a suit against the relevant “public entity” for purposes of the ADA. See Carten, 282 F.3d at 396.
Because an Ex pane Young suit is essentially a suit against the State, but one permitted by the Eleventh Amendment, the Supreme Court and the courts of appeals have consistently permitted Ex pane Young suits to enforce federal requirements that are. by their terms, directed at States rather than at public officials. Most recently, the Supreme Court in Verizon Md., Inc.\ . Public Sen: Comm ‘n, 535 U.S. 635 (2002), approved the use of Ex pane Young to enforce provisions of the Telecommunications Act of 1996, which imposed obligations on a “State commission.” See 47 U.S.C. 252(b)(4), (e). That the statute addressed a state entity rather than state officials did not preclude a suit under Ex pane Young. “The mere fact that Congress has authorized federal courts to review whether the Commission’s action” complies with federal law does not, the Court observed, indicate “whom the suit is to be brought against the state commission, the individual commissioners, or the carriers benefitting from the state commission’s order.” Verizon, 535 U.S. at 647. See also, e.g., AT&T Communications v. BellSouth Telecomm., Inc., 238 F.3d 636, 647-649 (5th Cir. 2001) (imposing duties on a “state Commission”); *13 Randolph v. Rodgers, 253 F.3d 342, 348 (8th Cir. 2001); Telespectrum, Inc. v. Public Serv. Comm w, 227 F.3d 414, 420 (6th Cir. 2000); Armstrong v. Dan’s, 275 F.3d 849, 879 (9th Cir. 2001); Armstrong v. Wilson, 124F.3d 1019, 1025-1026 (9th Cir. 1997), cert, denied, 524 U.S. 937 (1998); Dufly- v. Riveland, 98 F.3d 447, 452 n.4 (9th Cir. 1996).
The State can point to nothing in the ADA to show that Congress intended a different rule to apply in cases enforcing Title II. In Verizon, the Court explained that the doctrine of Ex pane Young is presumed to apply unless Congress displays an “intent to foreclose jurisdiction under Ex pane Young.” 535 U.S. at 647. Like the Telecommunications Act of 1996. Title II imposes obligations upon public entities but does not identify who the defendants in a suit for injunctive relief should be. Instead. Title II incorporates the “remedies, procedures, and rights” of Section 504, which adopts the “remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964.” See 42 U.S.C. 12133 (ADA); 29 U.S.C. 794a(a)(2) (Section 504). By the time Congress enacted Title II, courts had long entertained suits for injunctive relief against public officials in their official capacities to enforce Title VI6 and Section 504.7 By incorporating the “remedies, *14 procedures, and rights” of Section 504 and Title VI, Congress therefore incorporated the right to sue government officials in their official capacities under Title II. Cf. Lorillardv. Pons, 434 U.S. 575, 580-581 (1978) (Congress is presumed to incorporate existing judicial interpretations when it adopts a preexisting remedial scheme); Bragdon v. Abbott, 524 U.S. 624, 645 (1998) (same).
The State responds (Br. 20) that there is an “irreconcilable conflict between the Young fiction and Title II’s requirement that suits be brought against a public *15 entity.” But the Supreme Court has long acknowledged that the Ex pane Young doctrine
12

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
is based on a legal fiction that creates this formal contradiction, even while insisting that the fiction must be observed. See, e.g., Pennhurst, 465 U.S. at 105-106 (acknowledging that Exparte Young “created the ‘well-recognized irony’ that an official’s unconstitutional conduct constitutes state action under the Fourteenth Amendment but not the Eleventh Amendment. Nonetheless, the Ex pane Young doctrine has been accepted as necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to ‘the supreme authority of the United States.”’) (citations omitted); Idaho v. Coew d’Alene Tribe of Idaho, 521 U.S. 261, 293 (1997) (plurality opinion); Green v. Mansour, 474 U.S. 64, 68 (1985); Brennan v. Stewart, 834 F.2d 1248, 1252-1253 (5th Cir. 1988).
Because Plaintiffs have properly invoked the doctrine of Ex parte Young, the Eleventh Amendment does not bar Plaintiffs suit. Accordingly, this Court should affirm the district court’s holding and remand the case for further proceedings on the merits.
*16 II. THE CONSTITUTIONALITY OF TITLE II AND SECTION 504 AFFECTS THE MERITS OF PLAINTIFFS’ CLAIMS, NOT THE COURT’S JURISDICTION UNDER EXPARTE YOUNG TO ADJUDICATE
THE CLAIMS
The bulk of the State’s brief asks this Court to decide whether Plaintiffs have stated a claim on the merits, attempting to portray this as part of the Eleventh Amendment inquiry over which this Court has interlocutory jurisdiction. In particular, the State seeks immediate review of whether the substantive requirements of Title II and Section 504 are valid exercises of Congress’s enumerated powers. This invitation must be rejected because the constitutionality of Title II and Section 504 affects the merits of Plaintiffs’ claims, not the court’s jurisdiction under Ex pane Young to adjudicate the claims.
A. The Constitutionality- Of A Federal Statute Is A Question On The Merits That Does Not Affect The Eleventh Amendment Analysis Under Ex parte Young
The State asserts (Br. 13) that “a prerequisite to bringing a Young suit” is “a valid federal statute that is enforceable against a State.” Yet the State can cite no decision from this Court, or any other, holding that a court must examine the constitutionality of a federal statute to establish jurisdiction under Ex pane Young.8
*17 Although the State is surely right that a valid federal law or regulation is a requirement for a successful suit under Ex pane Young, and a prerequisite for any injunctive relief under that doctrine, a valid federal law is not a prerequisite to the court’s jurisdiction to adjudicate the merits of the claim. “In determining whether the doctrine of Ex pane Young avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Public Sen’. Comm’n, 535 U.S. 635, 645 (2002) (citation omitted).
Importantly, the question is whether the complaint “alleges” a violation of federal law. not whether that allegation is correct. See id. at 646 (“[T]he inquiry into whether suit lies under Ex pane Young does not include an analysis of the merits of the claim.”). Accordingly, a claim under Ex pane Young may fail for many reasons - the plaintiff may not state a claim under the relevant legal provision, a regulation may be an invalid interpretation of the statute it enforces, the statute may be unconstitutional, or the plaintiffs case may falter for lack of *18 proof. But these failures do not deprive the court of jurisdiction to consider the claim.
Indeed, to hold otherwise would be to convert every merits challenge in an Ex pane Young case into a jurisdictional issue. Even if only the constitutional validity of the federal statute were considered a jurisdictional prerequisite under Ex pane Young, this would require courts to first consider the constitutionality of a federal statute in ever) Ex pane Young case before considering nonconstitutional grounds, and would even seemingly require the courts to challenge the constitutionality of federal statutes sua sponte. See, e.g., Gaar v. Quirk, 86 F.3d 45 1, 453 (5th Cir. 1996). There is no legal basis for such a requirement.
“[UJnless the suit ‘clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction* or ‘wholly
13

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
insubstantial and frivolous,’ a federal court always has jurisdiction of a suit seeking to enjoin state officials from violating federal law.” Brennan v. Stewart, 834 F.2d 1248, 1255 (5th Cir. 1988) (citations omitted). See also Lewis v. New Mexico Dep ‘t of Health, 261 F.3d 970, 976 (IOth Cir. 2001) (“[A]t the immunity stage * * * federal courts apply the limited jurisdictional standard used to assess whether a claim sufficiently confers subject matter jurisdiction, asking only whether a claim is ‘wholly insubstantial and frivolous,1 rather than reaching the merits of the claim.”).
In this case, as in others, “[constitutionality is an issue on the merits, not a jurisdictional one.” United States v. Lipscomb, 299 F.3d 303, 350 (5th Cir. 2002). *19 Accordingly, the constitutionality of Title II and Section 504 are not properly before this Court at this stage in the litigation. See Swint v. Chambers Count\ : Comm h, 514 U.S. 35, 41-48 (1995); Lewis, 261 F.3d at 978-979; Gros v. City of Grand Praire, 209 F.3d 431, 436-437 (5th Cir. 2000).9
B. Even If This Court Had Discretion To Decide The State’s Constitutional Challenges In This Appeal, It Should Decline To Do So
Even if this Court had discretion to entertain the State’s constitutional claims, there are substantial reasons not to do so in this case. First, this Court will not need to decide the constitutionality of Title II and Section 504 unless the Plaintiffs prevail on the merits upon remand. Considering a constitutional challenge to an act of Congress is “the gravest and most delicate duty that [a] Court is called on to perform.” Blodgett v. Holden, 275 U.S. 142, 148 (1927) (opinion of Holmes, J.). “It ought to go without saying, but apparently the circumstances call for a reminder, that the federal courts should not reach a constitutional question, especially one concerning the validity of an act of Congress, if the merits of the case may be settled on nonconstitutional grounds.” Wliite v. United States Pipe & Foundry Co., 646 F.2d 203, 206 (5th Cir. 1981). “Moreover, if a constitutional question is presented on appeal, it should not be *20 addressed if there is a possibility the case can be decided on narrower statutory grounds on remand.” Jordan v. City of Greenwood, 711 F.2d 667, 669 (5th Cir. 1983).
Second, the Supreme Court is presently considering whether the abrogation provision of Title II is valid legislation to enforce the Fourteenth Amendment. See Tennessee v. Lane, cert, granted, No. 02-1667 (May 15, 2003). Thus, the decision in Lane may conclusively resolve the State’s constitutional challenges. As discussed below, because Lane involves a challenge to the ADA’s abrogation of sovereign immunity, it presents a somewhat different question than does the State’s challenge to the constitutionality of the substantive requirements of the Act. However, the decision in Lane will at the very least provide important guidance for this case. Accordingly, if this Court determines to reach the merits of the State’s constitutional challenge, it should await a decision in Lane before rendering its decision in this case.
Third, the constitutionality of the substantive provisions of Title II is a question of first impression and enormous import, one that implicates complex areas of constitutional law. Cf, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) (overruling National League of Cities v. Usety, 426 U.S. 833 (1976) (overruling Maryland v. Winz, 392 U.S. 183 (1968))); United States v. McFarland,3\ \ F.3d 376 (5th Cir. 2002) (en bane), cert, denied, 123 S. Ct. 1749 (2003). This Court should be hesitant to break new ground in the area unnecessarily.
*21 Finally, the district court did not address the State’s novel constitutional arguments below (see R-6-1118). “Generally this court will not reach the merits of an issue not considered by the district court.” Baker v. Bell, 630 F.2d 1046, 1055 (5th Cir. 1980). Moreover, the briefing on the constitutional questions in the district court did not address the full range of issues relevant to the proper adjudication of the State’s constitutional claims. The United States raises below substantial arguments in favor of the constitutionality of Section 504 and Title II which were not fully briefed before the district court. Thus, the limited briefing and evaluation of the State’s present claims in the district court further counsels against premature adjudication of those issues for the first time on appeal.
*22 III. TITLE II IS VALID FOURTEENTH AMENDMENT LEGISLATION
Although we believe that the Court should not reach the State’s constitutional challenges, if it does so, the Court should hold that the substantive requirements of Title II are valid legislation to enforce the Fourteenth Amendment, even if the abrogation provision is not.
14

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
A. The Substantive Requirements Of Title II As A W7iole Are Valid Fourteenth Amendment Legislation, Even If The Abrogation Provision Is Not
Section 5 of the Fourteenth Amendment is an affirmative grant of legislative power to Congress, see Kimel v. Florida Bd. of Regents, 528 U.S. 62, 80 (2000,), that gives Congress the “authority both to remedy and to deter violation of [Fourteenth Amendment] rights * * * by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text.” Board of Trs. of Univ. of Ala.\ . Garrett. 531 U.S. 356, 365 (2001). That power is not unlimited, however, for Congress lacks the power to redefine legislatively the substance of the Fourteenth Amendment. Ibid. To police this distinction, the Supreme Court has required that “§ 5 legislation reaching beyond the scope of § 1 ‘s actual guarantees must exhibit ‘congruence and proportionality between the, injury to be prevented or remedied and the means adopted to that end.”’ Ibid.
In Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001), this Court held that “Congress has not validly acted through its Fourteenth Amendment § 5 power to abrogate state sovereign immunity” to claims under Title II. Id. at 984. While we respectfully disagree with that decision, this Court need not depart from it to *23 uphold the constitutionality of the substantive provisions of Title II. The Court in Reickenbacker specifically held open whether the substantive requirements of Title II were valid Fourteenth Amendment legislation even if the abrogation was invalid. The Court did so because it recognized that the Fourteenth Amendment review of an abrogation provision takes into account different factors than does review of the substantive requirements themselves. See 274 F.3d at 982. In evaluating the Title II abrogation provision, Reickenbacker examined the evidence of unconstitutional discrimination by States, but not local entities, since the abrogation provision had relevance only to the State and its agencies. See id. at 982 (following Garrett, 531 U.S. at 368-369). That mode of review, this Court acknowledged, “means that Title II of the ADA could still be a valid exercise of Congress’ § 5 power, but simply not provide a basis for a use of that power to abrogate” state sovereign immunity. Id. at 982 n.60. See also Thompson v. Colorado, 278 F.3d 1020. 1032 n.7 (10th Cir. 2001), cert, denied, 535 U.S. 1077 (2002). Deciding the broader question of whether the substantive provisions of Title II are valid Fourteenth Amendment legislation, therefore, requires comparing the terms of the Act to the legislative and historical record of unconstitutional state and local discrimination as a whole. See Reickenbacker, 274 F.3d at 982 n.60. As this Court observed in Reickenbacker, and as the Supreme Court noted in Garrett, that combined record is much more substantial than the predicate reviewed by this *24 Court in Reickenbacker. See Garrett, 531 U.S. at 369; Reickenbacker, 274 F.3d at 982.10
In addition, the limitations on the remedies available to enforce the substantive requirements of Title II in this Circuit after Reickenbacker, support the conclusion that the substantive requirements of the Act are proportional and congruent. In Nevada Department of Human Resources v. Hibbs, 123 S. Ct. 1972 (2003), limitations on the remedies available to enforce the statute supported the Court’s conclusion that the statute was proportional and congruent. See id. at 1983-1984. In this Circuit, after Reickenbacker, the remedies available under Title II are significantly limited and no longer include enforcement actions against nonconsenting States directly, or suits against state officials for money damages. “Private suits against nonconsenting States - especially suits for money damages -may threaten the financial integrity of the States” and can significantly interfere with a State’s ability to allocate scarce resources in accordance with the priorities of its electorate. Alden v. Maine, 527 U.S. 706, 750-751 (1999). At the same time, an abrogation provision creates “the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties.” Id. at 749.
*25 Therefore, even if the “predicate for money damages against an unconsenting State in suits brought by private persons” is absent, Garrett, 531 U.S. at 376 (Kennedy, J., concurring), the predicate for the substantive non-discrimination requirements of Title II is constitutionally sufficient, particularly in light of the evidence of both local and State conduct. Cf. Hibbs, 123 S. Ct. at 1983-1984.
B. In The Alternative. Title II, As Applied In The Olmstead Setting, Is Valid Fourteenth Amendment Legislation
It is the position of the United States that the congruence and proportionality test should be applied to the requirements of 42 U.S.C. 12132 as a whole and that this Court should hold that provision constitutional on its face. Although the Supreme
15

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
Court has not directly addressed the scope of the congruence and proportionality review, the nature of the test and the Court’s practice in past cases suggest that courts should examine the relevant provision in all its potential applications. Cf., e.g., City ofBoerne v. Flares, 521 U.S. 507, 532-533 (1997); Kimel, 528 U.S. at 85-88; Garrett, 531 U.S. at 372-373; Hibbs, 123 S. Ct. at 1983-1984.
However, if this Court disagrees, it would be appropriate to uphold Title II as applied to Olmstead cases, and to leave its constitutionality in other applications for another day. As applied to unjustified institutionalization, Title II is a congruent and proportional response to a substantial record of unconstitutional state conduct and its continuing effects.
*26 l. Congressional Record Of Unconstitutional State Conduct
“[PJersons with mental disabilities have been subject to historic mistreatment, indifference, and hostility.” Olmstead, 521 U.S. at 608 (Kennedy, J., concurring in judgment). That “lengthy and tragic history,” City ofCleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 461 (1985) (Marshall, J., concurring in the judgment in part), assumed an especially pernicious form in the late 1800s and early decades of the next century, when the eugenics movement and Social Darwinism labeled persons with mental and physical disabilities “a menace to society and civilization... responsible in a large degree for many, if not all, of our social problems.” Id. at 462; see also U.S. Civil Rights Comm’n, Accommodating the Spectrum of Individual Abilities 19 (1983) (Spectrum). Persons with disabilities were portrayed as “sub-human creatures” and “waste products” responsible for poverty and crime. Spectrum 20.
A cornerstone of that regime was forced institutionalization directed at separating individuals with disabilities from the community at large.11 “A regime of state-mandated segregation” emerged in which “[mjassive custodial institutions were built to warehouse the retarded for life; the aim was to halt reproduction of the retarded and ‘nearly extinguish their race.”’ debit me t 473 U.S. at 462 *27 (Marshall, J., concurring in the judgment in pan).12 State statutes provided for the involuntary institutionalization of persons with mental disabilities and, frequently. epilepsy.13 Some States also required public officials and parents, sometimes at risk of criminal prosecution, to report the “feeble-minded” for institutionalization. Spectrum 20, 33-34; T. Cook, The Americans with Disabilities Act: The Move to Integration, 64 Temp. L. Rev. 393, 402 (1991). Additionally, almost every State accompanied institutionalization of those with mental disabilities with compulsory sterilization and prohibitions of marriage. Cleburne, 473 U.S. at 462-463 (Marshall. J., concurring in the judgment in part); see also Buck v. Bell, 274 U.S. 200, 207 (1927) (upholding compulsory’ sterilization law “in order to prevent our being swamped with incompetence/’; “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. * * * Three generations of imbeciles are enough.”).14
*28 In subsequent years, the eugenics movement fell into disrepute, but the effects of the movement continue into the present. See Spectrum 20. In considering the ADA, Congress heard extensive testimony that unconstitutional treatment of the institutionalized as well as the effects of the long history of state-sponsored institutionalization of individuals with disabilities continued. The legislative hearings catalogued unconstitutional treatment and unjustified institutionalization of persons in state mental health and mental retardation facilities. See, e.g., 2 Staff of the House Cornm. on Educ. and Labor, 101st Cong., 2d Sess., Legis. History of Pub. L. No. 101-336: The Americans with Disabilities Act 2242 1203 (Comm. Print 1990) (Leg. Hist.) (Lelia Batten) (state hospitals are “notorious for using medication for controlling the behavior of clients and not for treatment alone. Seclusion rooms and restraints are used to punish clients.”); id. at 1262-1263 (Eleanor C. Blake) (detailing the “minimal, custodial, neglectful, abusive” care received at state mental hospital, and willful indifference resulting in rape); Spectrum 32-35; see also California Att’y Gen., Commission on Disability: Final Report 114 (Dec. 1989). Congress also drew upon its prior experience investigating institutionalization in passing the Developmental Disabilities Act of 1984, 42 U.S.C. 6000 et seq., and the Civil Rights of Institutionalized Persons Act, 42 U.S.C. 1997 et seq. See, e.g., 132 Cong. Rec. 10589 (1986) (Sen. Kerry) (findings of investigation of state-run facilities for the *29 mentally retarded “were appalling. The extent of neglect and abuse uncovered in their facilities was beyond belief”).
Moreover, the Department of Justice’s investigations in the 1980s under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. 1997 et seg.. further documented egregious and flagrant denials of constitutional rights by state-run institutions for individuals with disabilities.15 Unconstitutional uses of physical and medical restraints were commonplace iri many institutions. For example, investigations frequently found institutions strapping mentally retarded residents to their beds in
16

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
five-point restraints for the convenience of staff16 One facility forced mentally retarded residents to inhale ammonia fumes as punishment for *30 misbehavior.17 Residents in other facilities lacked adequate food, clothing and sanitation.18 Many state facilities failed to provide basic safety to individuals with mental illness or mental retardation, resulting in serious physical injuries, sexual assaults, and even deaths.19 Others were denied minimally adequate medical care, *31 leading to serious medical complications and further deaths.20
Congress was aware that continued unnecessary institutionalization of people with mental disabilities also perpetuated the fears and irrational misconceptions about such individuals that are the legacy of an earlier era. In Olmstead, the Court observed that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” 527 U.S. at 600-601. Such irrational fears and beliefs, Congress found, are at the root of much of the discrimination faced by individuals with disabilities today. See H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess., at 30 (1990) (much of the discrimination against individuals with disabilities “results from false presumptions, generalizations, misperceptions, patronizing attitudes, ignorance, *32 irrational fears, and pernicious mythologies1’); S. Rep. No. 116, 101st Cong., 1st Sess. 8-9 (1989) (“[O]ur society is still infected by the ancient, now almost subconscious assumption that people with disabilities are less than fully human and therefore are not fully eligible for the opportunities, services, and support systems which are available to other people as a matter of right.”).
2. Congruence and Proportionality
The integration regulation of Title II, as interpreted by Olmstead, is a congruent and proportional response to the continuing instances and risk of unconstitutional state conduct in the area of institutions, and to the continuing effects of past violations. “A roper remedy for an unconstitutional exclusion * * * aims to eliminate so far as possible the discriminator)’ effects of the past and to bar like discrimination in the future.” United States v. Virginia, 518 U.S. 515, 547 (1996) (internal punctuation and citation omitted). The integration regulation elaborated in Olmstead does just that, eliminating unnecessary institutionalization of people with mental disabilities, while at the same time reducing the well-documented risks of unconstitutional neglect and abuse within state-run institutions. The regulation also acts remedially and prophylactically to address one of the important sources of the irrational stereotypes that Congress found at the heart of much government discrimination against people with disabilities. See Spectrum 43 (“Because discriminatory practices and prejudices are closely intertwined, an effective remedy of the former must incorporate a remedy for the latter.”); ibid. (One of “two major avenues for changing such [discriminatory] *33 attitudes” is “increasing social contact and interaction of nonhandicapped and handicapped people”).
At the same time, the integration regulation is carefully limited under Olmstead to take into account a State’s limited resources and competing responsibilities, as well as to provide the State substantial discretion in the structuring and operation of its programs. See 527 U.S. at 603-606 (plurality). It does not require the State to close its institutions or find community settings for every individual regardless of her needs. Instead, Title II simply requires States “to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Id. at 607 (plurality). This requirement reflects Congress’s attempt to implement the requirements of the Fourteenth Amendment, not an unconstitutional attempt to redefine them.
*34 IV. TITLE II IS VALID COMMERCE CLAUSE LEGISLATION
Title II is also a valid exercise of Congress’s authority under the Commerce Clause, a power Congress specifically invoked in enacting the ADA. See 42 U.S.C. 12101(b)(4). The Supreme Court has
identified three broad categories of activity that Congress may regulate under its commerce power. First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate 17

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate * * * those activities that substantially affect interstate commerce.
United Stales v. Lope:, 514 U.S. 549, 558-559 (1995) (citations omitted). Title II is valid under the third Lopei category because it addresses discrimination that has a substantial effect on interstate commerce.21
This Court recently considered whether Congress acted within its powers under the third Lopez category in enacting the Fair Housing Amendments Act (FHAA), 42 U.S.C. 3604, which, like Title II, prohibits disability discrimination by public entities. In Groome Resources Lid. v. Parish of Jefferson, 234 F.3d 192, 215-216 (5th Cir. 2000), the Court held that Congress validly prohibited disability discrimination by a parish zoning board under its power to regulate conduct with a substantial effect on interstate commerce. In so doing, the Court established the framework that must be applied in this case.
*35 ”]n reviewing an act of Congress passed under its Commerce Clause authority, we apply the rational basis test as interpreted by the Lopez court” and as “elucidated in the Supreme Court’s recent discussion in” United States v. Morrison, 529 U.S. 598 (2000). Groome, 234 F.3d at 203. The question is whether “a rational basis exist[s] for concluding that the regulated activity sufficiently affect[s] interstate commerce.” Id. at 204 (quoting Lopez, 514 U.S. at 557). To answer that question, the court must consider four factors, none of which is independently determinative of Congress’s power: (1) the “economic nature of the regulated activity”; (2) whether there is an express jurisdictional element; (3) the legislative basis for the enactment, including any congressional findings; and (4) the degree to which the relationship between the regulation and interstate commerce is attenuated. Id. at 204-205 (citing Morrison, 529 U.S. at 610-612).
A. Economic Nature Of Activity
Title II regulates economic conduct because (1) the activities regulated by Tnle II fall within economic activity, and (2) to the extent Title II regulates some activities that are not in themselves economic, the regulation of such activities is an essential part of the comprehensive scheme of economic regulation created by the ADA.
1. Title II Regulates Economic Conduct
This Court has “recognized a broad reading of commercial and economic activities under the Commerce Clause.” Groome, 234 F.3d at 208. Title II addresses discrimination in many activities that can be easily classified as *36 economic, and have clear commercial counterparts whose activities frequently have a substantial effect on interstate commerce. Examples include the administration of public housing, universities, hospitals, nursing homes, recreational facilities, training programs, transportation services, and public utilities. See, e.g., Camps Newfound/ Owatonna, Inc. v. Town ofHarrison, 520 U.S. 564, 586 & n. 1 8 f 1997) (nonprofit nursing homes and hospitals can engage in activity that substantially affects interstate commerce); Maryland v. Wirtz, 392 U.S. 183, 193-195 (1968) (operation of public hospitals and schools can affect interstate commerce), overruled on other grounds, National League of Cities v. Useiy, 426 U.S. 833 (1976), overruled, Garcia\ . San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). The fact that such services are provided by a public entity does not, in itself, render them noneconomic. Cf., e.g., Garcia, 469 U.S. at 537 (regulation not rendered beyond Commerce Clause simply because enterprise is operated by a public entity); Winz, 392 U.S. at 196-197 (same); United States v. California, 297 U.S. 175, 183-194 (1936) (same).22
*37 In the context of this case, the ADA prohibits discrimination in the administration of residential programs for individuals with developmental disabilities, mainly in institutional settings, nursing homes and intermediate care facilities for the mentally retarded (ICFs/MR). In Camps Newfound/Owatonna. Inc. v. Town ofHarrison, 520 U.S. 564 (1997), the Supreme Court concluded that, in certain circumstances, the activities of nonprofit nursing homes and hospitals can fall within the scope of the Commerce Clause. See id. at 585-587 & n. 18. Among other things, such entities “purchase goods and sen-ices in competitive markets, offer their facilities to a variety of patrons, and derive revenues from a variety of sources, some of
18

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
which are local and some out of State.” Id. at 585-586. The same is true of the residential treatment services at issue here, some of which are provided in state nursing home and hospital-like facilities (see R-2-228-229).23 Moreover, like private nursing homes and *38 hospitals, state residential care facilities for the mentally retarded combine the provision of medical services and residential housing, both of which are activities this Court has previously found can be economic under Morrison. See Groome, 234 F.3d at 208 (providing group home for Alzheimer patients involved “economic activity”); United States v. Bird, 124 F.3d 667, 682 (5th Cir. 1997) (medical services), cert, denied, 523 U.S. 1006 (1998).24 Thus, the services at issue in this case are economic and can actively and substantially effect interstate commerce through the purchase of interstate labor, real estate and other goods.25
*39 2. Title II Is An Integral Part Of Comprehensive Scheme To Regulate Interstate Commerce
Even if Title II applies to some non-economic activities of public entities, this is not a fatal defect. “[A] complex regulatory program * * * can survive a Commerce Clause challenge without showing that every single facet of the program is independently and directly related to a valid congressional goal. It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test.” Model v. Indiana, 452 U.S. 314, 329 n.17 (1981); see also Lopez, 514 U.S. at 561 (recognizing rule); Groome, 234 F.3d at 210 (same). Thus, this Court has held that “[o]ne way in which the regulated activity might be economic is when * * * the intrastate activity is part of an economic regulatory scheme which could be undercut but for the particular intrastate regulation.” GDF Realty Invs., Inc. v. Norton, 326 F.3d 622, 630 (5th Cir. 2003) (citing Lopez, 514 U.S. at 561). Under this test, “the larger regulation must be directed at activity that is economic in nature” and “the regulated intrastate activity must also be an ‘essential’ part of the economic regulator)’ scheme.” Id. at 639. Title II regulates economic activity under this view because prohibiting discrimination in public services is essential to ensuring the full implementation of Congress’s goal of removing disability discrimination from the quintessentially economic areas of employment and public accommodations.
*40 First, Congress understood that discrimination in public services could substantially interfere with access to the opportunities for economic participation opened through Titles I and III. This case is one example. Few, if any, of the benefits of Title I or Title III are available to those whom the government has institutionalized without sufficient justification. See Olmstead v. Z.C, 527 U.S. 581, 601 (1999) (“[Confinement in an institution severely diminishes the everyday life activities of individuals, including * * * work options, economic independence, educational advancement, and cultural enrichment.”). Similarly, Congress had substantial evidence that barriers in public transportation would undermine the economic benefits of preventing discriminatory hiring practices or improving access to public accommodations. See, e.g., S. Rep. No. 116, 101st Cong., 1 st Sess. 13(1989) (“[AJccess to transportation is the key to opening up education, employment, recreation; and other provisions of the [ADA] are meaningless unless we put together an accessible public transportation system in this country.”) (testimony of Timothy Cook); National Council on the Handicapped, On the Threshold of Independence 63 (1988); Spectrum 42. In another example, discriminator)’ zoning practices, inaccessible sidewalks, and communications barriers with municipal utilities, tax offices and other officials all create interconnected barriers to participation in the national real estate market. Cf. Groome, 234 F.3d at 209-211. Accordingly, governmental discrimination interferes both with Congress’s attempt to regulate economic activities directly under Titles 1 and III, but also Congress’s attempt to achieve the broader economic *41 goal of increasing economic participation and seli-suiiiciency 01 individuals with disabilities.
Second, Congress could rationally conclude that permitting discrimination by public entities would, in some contexts, discourage private compliance with Title III by public accommodations. As in this case. Title II often applies to government services that have private-sector counterparts, such as housing, education, transportation, communication, recreation and health services. See 42 U.S.C. 12101 (a)(3) (finding persistent discrimination in each of these areas). Requiring private entities, but not public providers of similar services, to bear the costs of accommodating individuals with disabilities would place the private providers at a competitive disadvantage and create a financial disincentive for private compliance with Title III. For example, a county-run community college that is not required to install wheelchair ramps or provide sign language interpreters would have lower operating costs than a private two-year college in the same area. The comparative burden on the private entity would likely be exacerbated by increased enrollment of students with disabilities who could not attend the public counterpart because of its inaccessibility. Private schools facing such prospects might well be discouraged from voluntary compliance with Title III, knowing that its compliance could draw more students (and expenses).
19

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
Finally, Congress understood that elimination of discrimination in employment and public accommodations required prohibiting similar discrimination by public entities which helps foster the stereotypical attitudes and *42 ignorance that Congress found at the core of much of the discrimination it was attempting to eradicate under Titles I and III. As the Supreme Court observed in Olmstead, government discrimination against individuals with disabilities, particularly unjustified institutionalization, “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” 527 U.S. at 600. Such assumptions and attitudes were at the core of much of the discrimination Congress was attempting to remove from the private sector. See, e.g., 42 U.S.C. 12101(a)(7); H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 30 (1990); S. Rep. No. 116, supra, at 7. Accordingly, Congress could rationally conclude that its regulation of discrimination in employment and public accommodations would be undermined if discrimination in public services was left unaddressed. See Spectrum 43. Prohibiting unwarranted institutionalization is a particularly important measure toward this end. See ibid.; 136 Cong. Rec. H2603 (daily ed. May 22, 1990) (statement of Rep. Collins) (“To be segregated is to be misunderstood, even feared,” and “only by breaking down barriers between people can we dispel the negative attitudes and myths that are the main currency of oppression.”).
B. Jurisdictional Element
Like the Fair Housing Amendments Act upheld in Groome, Title II has no Jurisdictional element. See 234 F.3d at 211. While “[s]uch a Jurisdictional element may establish that the enactment is in pursuance of Congress’ regulation of interstate commerce,” Morrison. 529 U.S. at 612, it is not a necessary *43 requirement, especially where, as here, the effect of the regulated conduct on interstate commerce is apparent. See Groome, 234 F.3d at 211.
C. Congressional Findings
In enacting the ADA, Congress conducted a massive investigation into the nature and consequences of disability discrimination in America.26 That investigation documented that disability discrimination, including discrimination in public programs, had a pervasive, negative impact on the national economy and interstate commerce.
As discussed above. Congress found persisting discrimination in a number of areas in which public entities participate in national markets along side private companies and nonprofit organizations, including housing and medical services. See 42 U.S.C. 12101(a)(3). And, as described previously, Congress also found that discrimination in public services generally had a complex, interactive effect with discrimination in the private sector. See pp. 38-42, supra; see also H. R. Rep. No. 485, Pt. 2, supra, at 37; id. at 84; H. R. Rep. No. 485, Pt. 3, supra, at 25; H. R. Rep. No. 485, Pt. 4, supra, at 25. The result, Congress found, was an *44 interconnected web of barriers that had a substantial effect on the national economy and left America’s approximately 43 million individuals with disabilities, as a group, “severely disadvantaged socially, vocationally, economically, and educationally.” 42 U.S.C. 12101(a)(1), (6).
Congress found, for example, that disability discrimination was “depriv[ing] our nation of a critically needed source of labor in a period where demographic and other changes in society are creating shortages of qualified applicants in many jobs.” H. Rep. No. 485, Pt. 2, supra, at 44 (testimony of Attorney General Thomburgh). Data showed that two-thirds of Americans with disabilities of working age were unemployed, even though two-thirds of that group wanted a job. Id. at 32. Those who did work, earned about a third less than their non-disabled counterparts. Ibid. About half had household incomes of less than $15,000. Ibid. This diminished economic status combined with other discriminator)’ barriers to suppress economic participation as consumers.27 See ibid.
Congress found that the cumulative effect of these interrelated sources of discrimination left millions in the “bondage of unjust, unwanted dependency on families, charity, and social welfare. Dependency that is a major and totally unnecessary contributor to public deficits and private expenditures.” S. Rep. 116, *45 supra, at 16 (testimony of Sandy Perrino). President Bush reported that “[excluding the millions of disabled who want to work from the employment ranks costs society literally billions of dollars annually in support payments and lost income tax revenues.” Id. at 17. Conversely, removing those impediments, Congress found, would result in “more persons with disabilities working, in increased earnings, in less dependence on the Social Security system for financial support, in increased spending on consumer goods, and increased tax
20

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
revenues.” Ibid, (quoting testimony of Attorney General Thomburg).
In United States v. Mississippi Department of Public Safety, 321 F.3d 495 (5th Cir. 2003), this Court reviewed these congressional findings and legislative history and observed that they “ably demonstrate that Congress realized the effect that disability discrimination was having (and would continue to have) on interstate commerce in the absence of the ADA.” 321 F.3d at 501. See also Katzenbach v. McClung, 379 U.S. 294, 299-300 (1964).
D. Attenuation
The connection between disability discrimination and interstate commerce documented by Congress in enacting the ADA is not unduly attenuated. This Court recently held that the requirements of Title I had a self-evident connection to interstate commerce. See Mississippi Dep’t of Pub. Safety, 321 F.3d 495, 499-501 (5th Cir. 2003). So does discrimination in public accommodations, which is addressed by Title III. Cf. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (public accommodations provision of Civil Rights Act of *46 1964). So, too, one need not “pile inference upon inference” to determine that interstate commerce is affected by the discrimination prohibited by Title II. In many applications, Title II regulates public entities’ participation in commercial activities that are part of a national market, as in the case of discrimination in public housing, universities, hospitals, nursing homes, recreational facilities, training programs, transportation services, and public utilities. Cf. Lopez, 514 U.S. at 574 (Kennedy, J.) (“Congress can regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy”). In other applications, Title II prevents discrimination in government regulation of interstate commercial activities, as in the case of licensing and zoning practices. In this case, the connection is apparent -institutionalization of individuals with disabilities directly inhibits their participation in national markets as employees and consumers. Finally, even at its most attenuated, the requirements of Title II are clearly directed at removing barriers that impose direct and substantial impediments to persons with disabilities’ participation in traditional economic activities as workers and consumers.
*47 V. TITLE II DOES NOT VIOLATE THE TENTH AMENDMENT
This use of Congress’s Commerce Clause authority does not violate the Tenth Amendment. See Reno v. Condon, 528 U.S. 141, 150-151 (2000). The State argues (Br. 27) that Title II violates the Tenth Amendment “by directly regulating the States, in their sovereign capacities.” But the Supreme Court has, in limited circumstances, rejected the assertion that Congress may not use its Commerce Clause power to regulate States “in their sovereign capacities,” and has approved the use of the Commerce Clause to enact civil rights legislation and extend that legislation to state governments.28
*48 Although the State does not cite National League of Cities v. Usety, 426. U.S. 833 (1976), its assertion that Congress may not regulate States as States barkens back to the legal standard enunciated by that case. That case, of course, was overruled by Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). In Garcia, the Court upheld Congress’s authority to regulate the wages of state government workers, even though this measure was one “directly regulating the States” (Br. 27). In any case, even National League of Cities did not preclude Congress from ever applying Commerce Clause legislation to a State. In EEOC v. Wyoming, 460 U.S. 226 (1983), the Court applied National League of Cities to Congress’s attempt to use its Commerce Clause authority to prohibit age discrimination in state employment. The Court explained that regulating “States as States’1 was simply one of three necessary conditions for finding a Tenth Amendment violation.29 The Court in Wyoming concluded that under these standards, prohibiting age discrimination in state employment did not violate the Tenth Amendment. Id. at 239-242. Because the ADEA required the State to “achieve its goals in a more individualized and careful manner” but did not require the State to abandon those goals, “the degree of federal intrusion * * * is sufficiently less serious than it was in National League of Cities so as to make it *49 unnecessary for us to override Congress’s express choice to extend its regulatory authority to the States.” Id. at 239-240.
The State further suggests (Br. 27) that Title II violates the Tenth Amendment because it “fall[s] outside the category of permissible, ‘generally applicable’ laws whose effect on States is incidental.” The only authority the State cites for this alleged requirement is Condoti, 528 U.S. at 150-151, and Garcia, 469 U.S. at 554. But neither case directly supports that
21

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...
assertion. Cotidon specifically declined to decide whether there is any such Tenth Amendment requirement, see 528 U.S. at 151, and Garcia simply observed that the regulation it was upholding applied to both state and private employers, 469 U.S. at 554. In any case, Title II is at least as generally applicable as the statute the Supreme Court upheld against Tenth Amendment challenge in Condon. In that case, the Supreme Court held that the Driver’s Privacy Protection Act of 1994 (DPPA), 18 U.S.C. 2721 et seq., was “generally applicable” because it imposed related requirements to both state and private entities, even though those requirements were substantively quite different and imposed through separate statutory provisions.30 Even more so than the DPPA, the ADA is “generally applicable” because it imposes comparable *50 requirements on both public and private entities. See generally Title II, 42 U.S.C. 12131-12165 (public entities); Title III, 42 U.S.C. 12181-12189 (public accommodations). This is particularly true as the Act applies to this case, because the ADA regulations require both public and private entities to serve individuals with disabilities in the most integrated setting appropriate to their needs. See 28 C.F.R. 35.130(d) (public entities); 28 C.F.R. 36.203 (public accommodations); 42 U.S.C. 12182(b)(1)(B) (same).
Nor does the surcharge regulation violate the Tenth Amendment principles of New York v. United Slates, 505 U.S. 144 (1992), or Prints v. United States, 521 U.S. 898 (1997), as suggested by the State (Br. 27-28). New York and Printz quite properly prevent Congress from “commandeer[ing] the state legislative process by requiring a state legislature to enact a particular kind of law” or “conscripting the States’ officers directly.” Condon, 528 U.S. at 149 (upholding federal statute that regulates a State’s dissemination of certain personal driver information). In Condon, the Supreme Court found that neither principle prohibits Congress from enacting a law that simply “regulate[s] a state activity,” rather than “seek[ingj to control or influence the manner in which States regulate private parties.” Id. at 150. While it is true that the ADA affects “the manner in which the States govern” (Br. 27), “[s]uch ‘commandeering/ is * * * an inevitable consequence of regulating a state activity. * * * That a State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity is a commonplace that presents no constitutional *51 defect.” Condon, 528 U.S. at 150-151 (quoting South Carolina v. Baker, 485 U.S. 505,514-515(1988)).

VI. SECTION 504 IS VALID SPENDING CLAUSE LEGISLATION
The State also argues (Br. 28) that Plaintiffs’ Ex parts Young claims to enforce Section 504 must fail because Section 504 is not valid legislation under the Spending Clause. In particular, the State argues (Br, 29-31) that Section 504 violates the “relatedness” requirement of South Dakota v. Dole, 483 U.S. 203, 207 (1987), because it prohibits discrimination by an agency that receives any federal funding, rather than being limited to agencies that receive funding directly under the Rehabilitation Act itself. As argued above, the constitutionality of Section 504 is not relevant to the State’s assertion of sovereign immunity in a suit proceeding under Ex pane Young. The State’s constitutional challenge, therefore, is not properly before this Court in this interlocutory appeal. The State’s argument is also meritless, as the United States has argued in a number of other cases presently pending before this Court, including Miller v. Texas Tech University, No. 02-10190, which is being heard en banc. We do not, therefore, undertake to repeat our arguments on this issue again in this case.31

*52 CONCLUSION
The district court’s denial of the State’s motion to dismiss Plaintiffs’ Title II and Section 504 claims on sovereign immunity grounds should be affirmed.

Footnotes

1

“R” refers to the volume and page, or page range, of the record on appeal.

2

Plaintiffs also allege (R-2-266-271) that the State is in violation of a number of provisions of Title XIX of the Social Security Act

(Medicaid Act), 42 U.S.C. 1396 et seq., and the.Fourteenth Amendment.

3

See Bruggeman v. Blagojevich, 324 F.3d 906, 912-913 (7th Cir. 2003).

4

See Garrett, 531 U.S. at 374 n.9 (noting that Exparte Young is available to enforce Title I’s obligations with respect to a state

22

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...

employer); see also Ferez v. Region 20 Educ. Sen: Or., 307 F.3d 318, 332 n.7 (5th Cir. 2002) (same for Title II’s obligation for a “public entity”); Reickenbacker v. Foster, 274 F.3d 974, 976 (5th Cir. 2001) (same).

5

See 209 U.S. at 130-132 (enforcing Fourteenth Amendment requirements imposed upon a “State”).

6

For example, in United Slates v. Alabama, 791 F.2d 1450, 1457 (11th Cir. 1986), the court held “that injunctive relief against the

Board itself [under Title VI] is so barred [by the Eleventh Amendment], but that such relief against Board members in their official

capacities is permitted.” See also, e.g., Bazemore v. Friday, 478 U.S. 385 (1986); Lait v. Nichols, 414 U.S. 563 (1974); Gomez v.

Illinois State Ed. of Educ., SI 1 F.2d 1030, 1039 (7th Cir. 1987) (“It would appear initially that the Superintendent might be held

accountable for the appropriate declaratory and injunctive relief under ey Pane Young, 209 U.S. 123 (1908), and its progeny.”).

7

There had been a number of Supreme Court cases against state officials in their official capacities under Section 504. See

Alexander v. Choate, 469 U.S. 287 (1985); Honig v. Students of Cat. Sch. for the Blind, 471 U.S. 148 (1985); Smith v. Robinson,

468 U.S. 992 (1984); Campbell v. Kntse, 434 U.S. 808 (1977). Courts of appeals had also held that Ex pane Young suits were

available to enforce Section 504. See, e. g., Lussier v. Dagger, 904 F.2d 661, 670 n. 10 (11th Cir. 1990) (“[O]f course, the Eleventh

Amendment does not bar Lussier’s claims for equitable relief under § 794 against defendants named in this case in their official

capacities.” (citing Ex pane Young)); Brennan v, Stewart, 834 F.2d 1248, 1255, 1260 (5th Cir. 1988) (discussing Ex pane Young at

length); Miener v. Missouri, 673 F.2d 969, 982 (8th Cir. 1982) (finding Ex pane Young inapplicable because relief sought was not

prospective); Helms v. McDaniel,651 F.2d 800, 806 n.10 (5th Cir. 1981) (citing Ex pane Young), cert, denied, 455 U.S. 946 (1982).

Other cases, while not making an express holding, routinely adjudicated Section 504 suits brought against government officials in

their official, capacities. See, e.g, S-l v. Turlington, 635 F.2d 342 (5th Cir.), cert, denied, 454 U.S. 1030 (1981); Baker v. Bell, 630

F.2d 1046 (5th Cir. 1980).

8

The State does cite (Br. 13) to a passage of Ex pane Young itself, but that passage says nothing about jurisdictional prerequisites.

Instead, the Court-explained that issuing an injunction to end an ongoing violation of federal law did not violate principles of

sovereign immunity because such violations should not be considered acts of the State for purposes of the Eleventh Amendment.

See £v Pane Young, 209 U.S. 123, 159-160 (1908). This, of course, explains why plaintiffs must prevail on their claims before

obtaining equitable relief under E.x pane Young. But it does nothing to establish that a court must evaluate the constitutionality of a

statute before assuming jurisdiction to decide whether the state official is, in fact, in violation of a valid federal law.

9

The State could have asked the district court to certify the issue for immediate appeal under 28 U.S.C. 1292(b). Had it done so, and

had the district court and this Court agreed that the issue be decided immediately, there would be no question of appellate

jurisdiction.

10

The United States argued in Simmons v. Texas Dep’t ofCriminalJustice, No. 01-40503 (5th Cir.) (filed Aug. 2001) (brief available

at http://www.usdoj.gov/crt/ briefs/simmons.pdf), that this expanded record supports Title II as valid Fourteenth Amendment

legislation. See also Brief for the United States, California Med. Bd. v. Hason, No. 02-479 (U.S.) (filed Feb. 2002) (available at

http:/ Avww.usdoj.gov/ osg/briefs/2002/3mer/2mer/2002-0479.mer.aa.pdf). Space limitations prevent us from fully repeating those

arguments here.

11

See Spectrum 19-20; see also Employees ofDep ‘t of Pub. Health & Welfare v. Department of Pub. Health & Welfare, 411 U.S.

279, 284 n. 2 (1973) (noting that “the institutionalization of the insane became the standard procedure for society” and a “cult of

asylum swept the country”) (quoting D. Rothman, The Discovery of the Asylum 130(1971)).

12

See also id. at 463 n. 9 (noting Texas statute, enacted in 1915 (and repealed in 1955), with stated purpose of institutionalizing the

mentally retarded to relieve society of “the heavy economic and moral losses arising from the existence at large of these

unfortunate persons”).

13

See Spectrum 19; T. Cook, The Americans with Disabilities Act: The Move to Integration, 64 Temp. L. Rev. 393, 400 (1991);

Note, Mental Disability and the Right to Vote, 88 Yale L.J. 1644 (1979).

14

See also 3 Staff of the House Comm. on Educ. and Labor, 101st Cong., 2d Sess., Legis. History of Pub. L. No. 101 -336: The

Americans with Disabilities Act 2242 (Comm. Print 1990) (testimony of James Ellis); M. Burgdorf & R. Burgdorf A Histon- of

Unequal Treatment, 15 Santa Clara Lawyer 855, 887-888 (1975).

15

In the years immediately preceding enactment of the ADA, the Department of Justice found unconstitutional treatment of

individuals with disabilities in state institutions for the mentally retarded or mentally ill in more than 25 States. In California

Medical Board v. Hason, No. 02-479, the United States lodged with the Supreme Court summaries of some of the written notice of

investigative findings produced by the Department of Justice in compliance with 42 U.S.C. 1997b(a)(1). Those summaries are

reproduced in the addendum to this brief, along with the letters specifically cited in this brief Copies of the letters forming the basis

23

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...

of the summary chart have also been served on counsel and can be provided to this Court upon request.

16

See Notice of Findings Regarding Los Lunas Hospital and Training School 2 (1988); Notice of Findings Regarding Fairview

Training Center 4-5 (1985) (residents frequently placed in physical restraints and medicated in lieu of being given training or

treatment); Notice of Findings Regarding Westboro State Hospital 7 (1986) (geriatric patients in psychiatric hospital frequently

given ‘sedating drugs “as punishment for antisocial behavior, for the convenience of staff, or in lieu of treatment”).

17

See Notice of Findings Regarding Los Lunas Hospital and Training School 2 (1988).

18

See, e.g., Notice of Findings Regarding Hawaii State Hospital 2-3 (1990) (residents lacked adequate food, had to wrap themselves

in sheets for lack of clothing, and were served food prepared in a kitchen infested with cockroaches); Notice of Findings Regarding

Westboro State Hospital 3 (1986) (investigation found that the “smell and sight of urine and feces pervade not only toilet areas, but

ward floors and walls as well * * *. Bathrooms and showers were filthy. Living areas are infested with vermin. There are

consistent shortages of clean bed sheets, face cloths, towels, and underwear.”); Notice of Findings Regarding Fairview Training

Center 6, 9 (due to lack of adequate staffing, many residents suffer from “the unhealthy effects of poor oral and other bodily

hygiene. We observed several residents who were laying or sitting in their own urine or soiled diapers or clothes,’1 while 70% of

residents suffered from gum disease and 35% “had pinworm infection, a parasite which is spread by fecal and oral routes in

unclean environments”).

19

Notice of Findings Regarding Los Lunas Hospital and Training School 3 (1988) (facility failed to provide minimally adequate

supervision arid safety, and as a result “a woman was raped, developed peritonitis and died”); Notice of Findings Regarding

Rosewood Center 4 (1984) (inadequate supervision of residents contributed to rapes and sexual assaults of several residents;

profoundly retarded resident left unsupervised drowned in bathtub; another died of exposure after leaving the facility unnoticed);

Notice of Findings Regarding Fairview Training Center 3 (1985) (Department found “numerous residents with open wounds,

gashes, abrasions, contusions and fresh bite marks” due to lack of training for residents and lack of adequate supervision by staff);

Notice of Findings Regarding Northville Regional Psychiatric Center 2-3 (1984) (one resident died after staff placed him in a

stranglehold and left him unconscious on seclusion room floor for 15-20 minutes before making any effort to resuscitate him); id.

at 3 (several other residents found dead with severe bruising, many other incidents of “rape, assault, threat of assault, broken bones

and bruises” found).

20

See, e.g.. Notice of Findings Regarding Enid and Pauls Valley State Schools 2 (1983) (inadequate medical care and monitoring

contributed to deaths of six residents); Notice of Findings Regarding Manteno Mental Health Center 4 (1984) (investigation of

state mental health facility found “widespread occurrence of severe drug side-effects” that could be “debilitating or life-

threatening” going “unmentioned in patient records, unrecognized by staff, untreated, or inappropriately treated”); Notice of

Findings Regarding Napa State Hospital 2-3 (1986) (facility staff “violated all known standards of medical practice by prescribing

psychotropic medications in excessively large daily doses” and by failing to monitor patients for serious, irreversible side effects).

21

As the United States has argued to this Court in the pending case of Meyers v. Texas, No. 02-50452 (argued Mar. 12, 2003), Title

II is valid legislation in some applications under the first and second Lopez categories as well.

22

See also EEOC v. Wyoming, 460 U.S. 226, 243 (1983) (ADEA); Fry v. United States, 421 U.S. 542 (1975) (Economic

Stabilization Act); United Tramp. Union v. Long Island R.R. Co., 455 U.S. 678 (1982) (Railway Labor Act); United States v.

California, 297 U.S. 175, 183-184 (1936) (Safety Appliance Act); cf. South Carolina v. Baker, 485 U.S. 505, 511-513 (1988)

(Tenth Amendment does not prevent Congress from regulating state bonds); see also United States v. Mississippi Dep’t of Pub.

Safety, 321 F.3d 495 (5th Cir. 2003) (Title I of ADA); Groome Resources Ltd. v. Parish of Jefferson, 234 F.3d 192 (5th Cir. 2000)

(FHAA).

23

For example, in both Texas and nationwide, most ICFs/MR are privately owned. See Karon & Beutel, Intermediate Care Facilities

for the Mentally Retarded: Facility and Client Characteristics, 1999 13 (2001) (available at http://w\

w.chsra.wisc.edi4/CHSRA/DDQIs/facclient char.pdf) (Eighty-four percent of ICFs/MR are privately owned, about one-third by

for-profit companies). One private, for-profit interstate provider of such services is ResCare, Inc., of Louisville, Kentucky, which

reports that its 29,000 employees provide services to some “32,000 people in 32 states, Washington, D.C., Puerto Rico and

Canada,” including Texas. See ResCare website, http://w\ \ w.rescare.com/web/main/ history.asp (visited October 23, 2003).

Providing services in community settings has the same types of connections to interstate markets. See, e.g., J. Wiener, et a I., Home

and Community-Based Sendees in Seven States, 23 Health Care Financing Review 100-105, 109 (Spring 2002) (available at http://\

ww.cms.hhs.gov/review/ 02spring/02Springpg89.pdf).

24

See also Hospital Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 744-745 (1976) (Tor-profit hospital); Feminist Women ‘s

Health Ctr., Inc. v. Mohammad, 586 F2d 530, 539-540 (1978) (nonprofit clinic), cert, denied, 444 U.S. 924 (1979); United States

v. Jennings, 195 F.3d 795, 801-802 (5th Cir. 1999) (medical office), cert, denied, 530 U.S. 1245 (2000); see also Russell v. United

24

Christy MCCARTHY, by and through her next friend Jamie..., 2003 WL 24016592...

States, 471 U.S. 858, 862 (1985) (noting Congress’s “power to regulate the class of activities that constitute the rental market for real estate”).

25

See, e.g., J. Keilson, Recruiting Human Service Employees in Good Times and Otherwise 1, 3 (prepared for the United States

Centers for Medicare & Medicaid Services) (available at http:// Mvw.cms.hhs.gov/promisingpracliceslkeilson.pdf) (describing

Massachusetts’ attempts to recruit workers in competition with “nearly every private company, non-profit organization, and even

other state agencies” by recruiting out-of-state and internationally).

26

In addition to holding 13 committee hearings, Congress commissioned two reports by expert panels and designated a task force to

hold 63 public forums across the country, from which Congress gathered statements from nearly 5,000 individuals regarding their

personal experiences with disability discrimination, often at the hands of state and local governments. See 2 Leg. Hist. 1040; Task

Force on the Rights and Empowerment of Americans with Disabilities, From ADA to Empowerment 16-18 (1990). Congress also

considered several reports and surveys. See S. Rep. No. 116, supra, at 6; H.R. Rep. No. 485, Pt. 2, supra, at 28.

27

Polls showed that many people with disabilities “never go to a restaurant, never go to a grocery store, and never go to a church or

synagogue.” Id. at 34. A “large majority” never went to a movie or a sporting event. Ibid. This was due only in part to actual

barriers in the places of public accommodations themselves. See id. at 35; S. Rep. No. 116, supra, at 13.

28

For example, in Kimel v. Florida Board of Regents, 528 U.S. 62, 78 (2000), the Supreme Court held that while extending the

ADEA to States was not within Congress’s power to enforce the Fourteenth Amendment, it did “constitute a valid exercise of

Congress’s power [t]o regulate Commerce... among the several States/ Art. I, § 8, cl. 3,” and “did not transgress any external

restraints imposed on the commerce power by the Tenth Amendment.” Similarly, in University of Alabama v. Garrert, 531 U.S.

356 (2001), the Supreme Court suggested, and this Court recently held, that extending Title I of the ADA to state employers was a

valid exercise of Congress’s Commerce Clause authority. See id. at 374 n.9; United States v. Mississippi Dep’t of Pub. Safety, 321

F.3d 495 (5th Cir. 2003). The Supreme Court has also applied other Commerce Clause legislation to state operations, despite

claims that doing so violated principles of federalism or the Tenth Amendment. See, e.g., Reno v. Condon, 528 U.S. 141, 150-151

(2000) (Driver’s Privation Protection Act of 1994 applied to state agency); Garcia v. San Antonio Metro. Transit Auth., 469 U.S.

528 (1985) (minimum wage standards applied to state employers); see also Groome Res. Ltd. v. Parish of Jefferson, 234 F.3d 192,

215-216 (5th Cir. 2000) (FHAA applied to government zoning board).

29

The other two were: “Second, the federal regulation must address matters that are indisputably ‘attribute] of state sovereignty.’

And third, it must be apparent that the States’ compliance with the federal law would directly impair their ability ‘to structure

integral operations in areas of traditional government functions.”’/*/, at 237 (citations omitted).

30

Section 2721 (a) of the Act applies solely to state agencies and employees, regulating their ability to disclose protected personal

information obtained by the state department of motor vehicles. When disclosures are allowed, the recipients of that information,

which may include private entities, are prohibited by Section 272 l(c) from selling or disclosing that information to other parties,

except as provided by the Act.

31

Miller is one of three cases being heard by the Court en banc to determine whether a State that accepts federal funds waives its

sovereign immunity to claims under Section 504. See also Johnson v, Louisiana Dep’t of Educ., No. 02-30318; Pace v. Bogalusa

City Sch. Dist., No. 01 - 31026. If this Court holds that acceptance of federal funds constitutes a waiver of sovereign immunity to

Section 504 claims, the Eleventh Amendment will pose no bar to Plaintiffs’ Section 504

End of Document

25