Case 2:13-cv-05670-AB Document 59 Filed 06/12/14 Page 1 of 17

UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF PENNSYLVANIA 


____________________________________

PAULA SMITH, individually and

) 


on behalf of similarly situated persons

) 


)




Plaintiff, )




v.

) Civil Action No. 2:13-CV-5670-AB

)

DEPARTMENT OF PUBLIC

)

WELFARE OF THE COMMONWEALTH )

OF PENNSYLVANIA; BEVERLY

)

MACKERETH, in her official

)

capacity as Secretary of the Department )

of Public Welfare of the Commonwealth )

of Pennsylvania,

)

)


Defendants. )




____________________________________) 


STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

The United States files this Statement of Interest, pursuant to 28 U.S.C. § 517,

because this litigation implicates the proper interpretation and application of Title II of

the Americans with Disabilities Act, 42 U.S.C. § 12101 (“ADA”). The Department of

Justice has authority to enforce Title II and to issue regulations implementing the statute.

42 U.S.C. §§ 12133, 12134. This case involves a public entity’s obligation, under the

ADA’s integration regulation, to provide services to individuals with disabilities in the

most integrated setting appropriate to their needs and to avoid placing individuals at risk

of institutionalization. See 28 C.F.R. § 35.130(d); Olmstead v. L.C., 527 U.S. 581, 607

(1999). Therefore, the United States has an interest in ensuring the appropriate and

consistent interpretation of Title II and the integration regulation.

Case 2:13-cv-05670-AB Document 59 Filed 06/12/14 Page 2 of 17
I. INTRODUCTION The Plaintiff and the putative class (“Plaintiffs”) allege that the Pennsylvania
Department of Public Welfare (“DPW”) unnecessarily places them at serious risk of institutionalization in nursing facilities by failing to provide them with attendant care services in the community. (Pls.’ 2d Am. Compl. 13-15, ¶¶ 57-62, April 11, 2014, ECF No. 11.)1 DPW has already determined that Plaintiffs are in need of, and eligible for, its existing community-based attendant care program. (Virginia Brown Dep. 2, 88:13-23, March 25, 2014, ECF No. 45-7.) Plaintiffs allege that, even though it is less expensive to provide attendant care services in the community, DPW places them at risk of institutionalization in nursing facilities by limiting their access to attendant care services in the community. (See Gov.’s Exec. Budget FY2014-2015 7, April 11, 2014, ECF No. 45-8; Gov.’s Exec. Budget, 46, ECF No. 45-8.) Plaintiffs request that DPW provide them with community-based attendant care services that DPW already provides to individuals with similar disabilities; and they claim that otherwise, they may suffer from a serious decline in health that would likely necessitate nursing facility admission. (Pls.’ Mot. Summ. J., 36-38, April 11, 2014, ECF No. 45.)
DPW denies that it has placed Plaintiffs at serious risk of institutionalization and argues that, even if Plaintiffs were at risk, any change it could make to address the violation would fundamentally alter the nature of its attendant care services. (Defs.’ Mem. Law Supp. Mot. Summ. J. 29-64, May 9, 2014, ECF No. 51-1.) The United States offers this Statement of Interest as a means of clarifying the applicable law so as to assist the Court in deciding the motions before it.
1 Throughout this Statement of Interest, the references to page numbers in the record refer to the ECF page numbers.
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II. STATEMENT OF FACTS The Commonwealth of Pennsylvania offers community-based attendant care
services to individuals with physical disabilities who need hands-on assistance with activities of daily living, such as dressing, taking medication, eating, and bathing. (Decl. Virginia Brown 3, ¶¶ 6-12, May 9, 2014, ECF No. 53-1.) These services are funded one of two ways: (1) through the state- and federally-funded Attendant Care Waiver (“the Waiver”), which is available to those who are both clinically eligible to receive the services and financially eligible for Medicaid; or (2) through the state-funded Act 150 program, which is intended for individuals such as Paula Smith, who are clinically eligible to receive services, but ineligible for Medicaid because their income exceeds 300% of the Federal Benefit Rate paid for Supplemental Security Income benefits ($2163 per month).2 (Decl. Brown 3-4 ¶¶ 10-19, ECF No. 53-1; Anne Henry Dep. 5, 11:7-11, Apr. 11, 2014, ECF No. 45-3; Def.’s Mem. Law at 10, ECF 51-1.)
Prior to 2009, the Act 150 program served all eligible individuals; however, since 2009, there has been a waitlist for Act 150 attendant care services, and it has grown to 283 individuals, seven of whom are currently in nursing facilities. (Decl. Brown 8 ¶ 44, ECF No. 53-1; Decl. Henry 4 ¶¶ 16-17, 5 ¶ 22, May 9, 2014, ECF No. 53-2; Defs’ Mem. Law at 22-23, ECF No. 51-1.) The creation of the Act 150 waitlist coincided with the Commonwealth’s reduction of funding for the program, which was approximately $45 million for fiscal year 2007 to 2008, but now stands at approximately $26 million. (See Pls.’ Stmt. Undisp. Facts Supp. Pls.’ Mot. Summ. J. 30-31, ¶¶ 111-12, April 11, 2014,
2 Pennsylvania created the Act 150 program under the Attendant Care Services Act in 1987. See 62 Pa. Stat. Ann. §§ 3051-3058.
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ECF No. 45-1.) DPW has no plan for transitioning Act 150 applicants off the waitlist. (See Decl. Henry 5 ¶ 20, ECF No. 53-2.)
The putative class includes individuals who have been found eligible for Act 150 services, but remain on the waitlist. (Pls.’ 2d Am. Compl. at 12-13, ECF No. 11.) One individual who has been waiting for services since 2012 was briefly hospitalized, and she informed DPW that her husband can no longer care for her. (Act 150 Waitlist 6, April 11, 2014, ECF No. 45-13.) A man with quadriplegia who is also waiting for services is “in dire need of services,” and DPW noted that he “MUST have additional help at home.” (Act 150 Waitlist 8, ECF No. 45-13) (emphasis in original). This man also required surgery for skin/pressure wounds, a condition that is commonly associated with insufficient care and assistance. (See Act 150 Waitlist 8, ECF No. 45-13.) The doctor of a 55-year-old man on the waitlist indicated that his decreased ambulatory function and ability to transfer himself put him at risk of hospitalization. (Act 150 Waitlist 6, ECF No. 45-13.)
DPW has already determined that Plaintiffs are clinically eligible for nursing facility care and for services through the Waiver and Act 150. (NFCE Clarification 40, April, 4, 2014, ECF No. 45-8; Brown Dep. 2, 88:13-23, ECF No. 45-6.) DPW’s guidance provides the following with respect to individuals who need attendant care services outside of a nursing facility:
[A]n individual who only needs personal care services to remain at home or in a community setting may be [nursing facility eligible] if, absent those personal care services, the individual’s condition would deteriorate to the point that he or she would be institutionalized in a nursing facility in the near future (that is, a month or less). (NFCE Clarification 40, ECF No. 45-8.)
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The cost of serving individuals through the Act 150 program ($27,408 per year) is
slightly less than the Commonwealth’s cost for serving the same person in a nursing
facility through Medicaid ($27,878 per year); and it is half the combined cost to the state
and federal government. (Gov.’s Exec. Budget FY2014-2015 7, April 11, 2014, ECF No.
45-8) (stating that the cost of Act 150 attendant care services is $2284 per month, per
user); (Gov.’s Exec. Budget, 46, ECF No. 45-8) (stating that the yearly average cost of nursing facility care, including the federal and state shares, is $58,080).3
Individuals who do not qualify for Medicaid because their income exceeds $2163
per month may still meet the income criteria for attendant care under Medicaid (either in
a nursing facility or through the Waiver) by using the Commonwealth’s “spend down”
process. 55 Pa. Code §§ 181.1(b), 181.1(f)(7), 181.14(c); Pa. Operations Mem. #13-11­
01, 2-3, April 11, 2014, ECF No. 45-17. With respect to nursing facility care, the “spend
down” process is generally available if the cost of medical care over a six-month period
exceeds an individual’s income during that time, in which case the person may enter the
nursing facility and pay most of his or her income to the nursing facility. 55 Pa. Code
3 The state portion of the nursing facility cost changes yearly based upon the federal share, referred to as Federal Medical Assistance Payment (FMAP). The Commonwealth’s current FMAP is 53.52%, which drops to 51.82% on October 1, 2014. See Federal Financial Participation In State Assistance Expenditures; Federal Matching Shares for Medicaid, the Children’s Health Insurance Program, and Aid to Needy Aged, Blind, or Disabled Persons for October 1, 2013 Through September 30, 2014, 70 Fed. Reg. 231, 71422 (Nov. 30, 2012); Federal Financial Participation In State Assistance Expenditures; Federal Matching Shares for Medicaid, the Children’s Health Insurance Program, and Aid to Needy Aged, Blind, or Disabled Persons for October 1, 2014 Through September 30, 2015, 79 Fed. Reg. 13, 3387 (Jan. 21, 2014).
DPW approximates the FMAP at 52%, presumably because the FMAP changes during the Commonwealth’s fiscal year. (See Defs.’ Mem. Law at 5, ECF No. 51-1.) Using the Commonwealth’s FMAP rate of 52% and the Governor’s budgetary projection for the total yearly nursing facility cost of $58,080, the state cost to serve each person in a nursing facility under Medicaid is $27,878 per year.
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§§ 181.1(b), 181.1(f)(7), 181.14(c). The average per person cost for all nursing facilities is approximately $4840 per month (that is, $26,040 every six months and $58,080 a year). (Gov.’s Exec. Budget, 46, ECF No. 45-8). Therefore, on average, individuals will only be eligible to enter a nursing facility and use the “spend down” process if they have a yearly income lower than approximately $58,080 a year. III. LEGAL AUTHORITY AND ANALYSIS
A. Unnecessary Segregation Congress enacted the ADA in 1990 “to provide a clear and 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, despite some improvements, such forms of discrimination against individuals with disabilities continue[d] to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2). For those reasons, in Title II of the ADA, Congress prohibited discrimination by public entities against individuals with disabilities, providing 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. As directed by Congress, the Attorney General issued regulations implementing Title II. 42 U.S.C. § 12134(a). Central to this case are two regulations, the first of which articulates the “integration mandate” of the ADA and provides 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 CFR § 35.130(d).
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The “most integrated setting” is “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 (2009); cf. Helen L. v. DiDario, 46 F.3d 325, 333 (3d Cir. 1995) (holding that “the ADA and its attendant regulations clearly define unnecessary segregation as a form of illegal discrimination against the disabled”). The second regulation provides that public entities are required to “make reasonable modifications in policies, practices, or procedures” to avoid unjustified segregation of individuals with disabilities; however, public entities are not required to make such modifications if “the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7).
B. Risk of Institutionalization Individuals who are at risk of entering an institution because of a state policy need not wait until they enter the institution in order to assert an ADA integration claim. Pashby v. Delia, 709 F.3d 307, 322-23 (4th Cir. 2013); M.R. v. Dreyfus, 663 F.3d 1100, 1118 (9th Cir. 2011), amended by 697 F.3d 706 (9th Cir. 2012); Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1181-82 (10th Cir. 2003). In Fisher, the Tenth Circuit held that “disabled persons who . . . stand imperiled with segregation” could bring a claim “under the ADA’s integration regulation without first submitting to institutionalization.” Id. at 1182. The court reasoned that “there is nothing in the plain language of the regulations that limits protection to persons who are currently institutionalized.” Id. at 1181. The court concluded that the integration mandate “would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them
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into segregated isolation.” Id. Moreover, the plaintiffs in Fisher “face[d] a substantial
risk of harm” because they were “at high risk for premature entry” to an institution due to
the state policy at issue in the case. Id. at 1184 (internal quotation marks omitted).
Serious risk of institutionalization may be established by evidence that the lack of
sufficient state-sponsored community-based services will likely cause a decline in a
plaintiff’s health, safety, or welfare that would lead to her eventual placement in an
institution. M.R. v. Dreyfus, 697 F.3d 706, 734 (9th Cir. 2012) (citing, with approval, the
statement by the Department of Justice that serious risk of institutionalization is
demonstrated when insufficient services cause plaintiffs “to enter an institution
immediately, or . . . causes them to decline in health over time and eventually enter an institution in order to seek necessary care”).4
C. Reasonable Accommodations
The plaintiff’s prima facie burden in articulating a reasonable accommodation is
“not a heavy one.” Henrietta D. v. Bloomberg, 331 F.3d 261, 280 (2d Cir. 2003)
(internal quotation marks omitted). As the Second Circuit Court of Appeals explained in
Henrietta D., “it is enough for the plaintiff to suggest the existence of a plausible
accommodation, the costs of which, facially, do not clearly exceed its benefits,” and that
4 See also Fisher, 335 F.3d at 1185 (finding the fact that many of the plaintiffs would remain in their homes “until their health ha[d] deteriorated” and would “eventually end up in a nursing home” was sufficient to show the plaintiffs were at risk of institutionalization); V.L. v. Wagner, 669 F. Supp. 2d 1106, 1120 (N.D. Cal. 2009) (concluding that plaintiffs may establish a violation of the integration mandate by showing that the denial of services could lead to an eventual “decline in health” that puts them at “risk [of] being placed in a nursing home”); Crabtree v. Goetz, No. 3:08-0939, 2008 WL 5330506, *3-*12 (M.D. Tenn. Dec. 19, 2008) (unpublished) (granting a preliminary injunction to reinstate plaintiffs’ home health services based on evidence of the plaintiffs’ deteriorating health and likely placement in nursing facilities); Hiltibran v. Levy, No. 10-4185, 2010 WL 6825306, *4-*6 (W.D. Mo. Dec. 27, 2010) (unpublished) (ordering the state to provide plaintiffs incontinence briefs to prevent their eventual placement in nursing facilities).
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“once the plaintiff has done this, she has made out a prima facie showing that a reasonable accommodation is available, and the risk of nonpersuasion falls on the defendant.”5 331 F.3d at 280 (internal quotation marks and alterations omitted); see also Frederick L. v. Dept. of Public Welfare of Commonwealth of Pa., 364 F.3d 487, 492 n.4 (3d Cir. 2004) (Frederick L. I) (stating that a plaintiff in an Olmstead action bears the burden of articulating a reasonable modification that the state may make in order to comply with the ADA).
DPW has not violated the ADA simply because it has a waitlist for Act 150 services, nor does the ADA require the Commonwealth to provide a certain level of benefits to nursing facility eligible individuals;6 however, as noted above, the ADA does require public entities to avoid placing individuals at serious risk of unnecessary statesponsored institutionalization. Frederick L.I, 364 F.3d at 492. Moreover, where individuals are placed at serious risk of such institutionalization and an accommodation is available to prevent such institutionalization, the public entity bears the burden of showing that accommodating those individuals will fundamentally alter its provision of services. Pa. Prot. and Advocacy, Inc. v. Pa. Dept. of Public Welfare, 402 F.3d 374, 379 (3d Cir. 2005). If this Court determines that Plaintiffs have established that they are at risk of needing state-sponsored nursing facility services and have “suggest[ed] the
5 See also Duffy v. Velez, No. 09-5539, 2010 WL 503037, at *3 (D.N.J. Feb. 8, 2010) (unpublished) (holding that a “[p]laintiff need only allege facts showing that an accommodation could be made which would allow” him or her to receive integrated services).
6 See Olmstead, 527 U.S. at 603 n.14 (stating, “We do not in this opinion hold that the ADA imposes on the States a standard of care for whatever medical services they render, or that the ADA requires States to provide a certain level of benefits to individuals with disabilities”) (internal quotation marks omitted).
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existence of a plausible accommodation,” Henrietta D. 331 F.3d at 280 (for example, by making a request for attendant care services in the community), DPW must meet its burden with respect to whether it can properly assert a fundamental alteration defense.7
Courts have routinely recognized that a request to receive services in the community when an individual is entitled to those same services in an institution is a reasonable modification and not a fundamental alteration of a state’s program. For instance, in Townsend v. Quasim, the court stated that Olmstead controls where the issue centers on “what location these services will be provided. Mr. Townsend simply requests that the services he is already eligible to receive under an existing state program (assistance in dressing, bathing, preparing meals, taking medications, and so on) be provided in the community-based adult home where he lives, rather than the nursing home setting the state requires.” 328 F.3d 511, 517 (9th Cir. 2003). Similarly, in the preOlmstead case of Helen L., the Third Circuit Court of Appeals determined that DPW had violated the ADA’s integration mandate by failing to provide state-funded attendant care services for the plaintiff in her own home, rather than in a nursing facility. 46 F.3d at 337-39. See also Radaszewski v. Maram, 383 F.3d 599, 611 (7th Cir. 2004) (stating that “the integration mandate may well require the State to make reasonable modifications to the form of existing services in order to adapt them to community-integrated settings.”). Accordingly, DPW must provide attendant care services in the community to the same group of individuals whom the Commonwealth has already determined it would
7 Contrary to DPW’s argument that Plaintiffs’ other suggested modifications are irrelevant because their “allegations . . . center on the Act 150 program” and should therefore be limited to that program (Defs.’ Mem. Law at 55-56, ECF No. 51-1), nothing in Olmstead or other case law indicates that states can meet their Olmstead obligations only by providing the services through the very same program in which an individual is currently participating, or is on a waiting list to receive services from, or that provided the services to the individual in the past.
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otherwise serve through its Medicaid program in nursing facilities, unless it can establish that doing so will cause a fundamental alteration.8
D. Fundamental Alteration Defense
DPW argues that any change to its current approach to attendant care services
would constitute a fundamental alteration. For summary judgment purposes, DPW bears
the burden of demonstrating such a fundamental alteration based on undisputed facts.
See, e.g., Pa. Prot. and Advocacy, Inc., 402 F.3d at 379-81 (stating that it is error for a
district court, on summary judgment, “to find a fundamental alteration solely on the basis
of budgetary constraints”). A public entity can establish a fundamental alteration defense
if, “in the allocation of available resources, immediate relief would be inequitable, given
the responsibility the State has undertaken for the care and treatment of a large and
diverse population of persons with . . . disabilities.” Olmstead, 527 U.S. at 604.
DPW argues that any accommodations that would require it to change its
attendant care system would impermissibly interfere with its discretion to administer its
Medicaid program. (Defs.’ Mem. Law at 49-50, 55-56, ECF No. 51-1.) This is legally
incorrect. A state’s obligations under the ADA are not defined by the scope of the
federal-state Medicaid program—Title II of the ADA is an independent legal obligation
on states to operate programs, services, and activities in ways that do not discriminate on 8 Contrary to DPW’s assertion that “one could have millions, or even tens-of­
millions, of dollars of assets to pay privately for community-based care and still” receive attendant care services from the DPW (Defs.’ Mem Law at 11, ECF No. 51-1), the Commonwealth’s obligation to provide community-based services does not extend to an unlimited group of individuals. As noted above, the Commonwealth only provides nursing facility services to Medicaid-eligible individuals whose income, on average, is less than $58,080 a year; and therefore, the Commonwealth’s obligation to provide attendant care services is limited to individuals making less than $58,080 per year and who are at serious risk of institutionalization. See 55 Pa. Code §§ 181.1(b), 181.1(f)(7), 181.14(c); (Gov.’s Exec. Budget, 46, ECF No. 45-8); (Pa. Operations Mem. #13-11-01, 2-3, ECF No. 45-17).
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the basis of disability. Townsend, 328 F.3d at 518, n.1. Therefore, complying with the Medicaid Act does not equate to complying with the ADA; therefore, courts have routinely held that a state may run afoul of the ADA even while carrying out CMSapproved state plans, waiver services, and amendments. See e.g., Radaszewski, 383 F.3d at 601 (allowing the plaintiffs’ claims to proceed without regard to federal approval of the state’s Medicaid plan and waiver programs); Crabtree v. Goetz, No. Civ. A. 3:08-0939, 2008 WL 5330506, at *2, *30-*31, (M.D. Tenn. Dec.19, 2008) (unpublished) (same); Grooms v. Maram, 563 F. Supp. 2d 840, 844, 863 (N.D. Ill. 2008) (same).
DPW’s assertion that budget constraints prevent it from providing communitybased services does not square with the fact that the cost of providing community-based attendant care services to Plaintiffs is slightly less than the cost of providing these services in a nursing facility. (See Gov.’s Exec. Budget FY2014-2015 7, ECF No. 45-8; Gov.’s Exec. Budget, 46, ECF No. 45-8.) In addition, the Third Circuit has held that “budgetary constraints alone are insufficient to establish a fundamental alteration defense.” Pa. Prot. and Advocacy, 402 F.3d at 380.
The Third Circuit has also held that public entities may not avail themselves of the fundamental alteration defense unless they can first demonstrate that they have a comprehensive, effectively working plan to comply with the Olmstead mandate. Id. at 381 (holding that the “only sensible reading of the integration mandate consistent with the Court’s Olmstead opinion allows for a fundamental alteration defense only if the accused agency has developed and implemented a plan to come into compliance with the ADA”); Frederick L. v. Dept. of Public Welfare of Pa., 422 F.3d 151, 157 (3d Cir. 2005)
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(“Frederick L. II”) (holding that the existence of an Olmstead plan is a “necessary
element” of a successful fundamental alteration defense).
More specifically, the Third Circuit requires a public entity to prove that it has
developed and is implementing an Olmstead plan that demonstrates a specific and
measurable commitment to action by the public entity, including goals, benchmarks, and timeframes for which the entity can be held accountable.9 Frederick L. II, 422 F.3d at
156-59. The Third Circuit has rejected a public entity’s vague, general assurances and
good faith intentions of future community placement, because such assurances may
change; and it has further held that past progress in deinstitutionalization alone is insufficient to establish a comprehensive, effectively working Olmstead plan.10 Id.;
Frederick L. I, 364 F.3d at 499-501; Pa. Prot. and Advocacy, Inc., 402 F.3d at 383-85;
see also U.S. Dept. of Justice, Statement of the Department of Justice on the Integration
Mandate of Title II of the ADA and Olmstead v. L.C., http://www.ada.gov/olmstead/q&a
_olmstead.htm (last updated June 22, 2011) (providing guidance for ADA and Olmstead
enforcement). 9 In Frederick L. II, the Third Circuit held:
[A] viable integration plan at a bare minimum should specify the time-frame or target date for patient discharge, the approximate number of patients to be discharged each time period, the eligibility for discharge, and a general description of the collaboration required between the local authorities and the housing, transportation, care, and education agencies to effectuate integration into the community.
422 F.3d at 160. 10 DPW applies the standard articulated by the Ninth Circuit Court of Appeals
(Defs.’ Mem. Law at 51-52, ECF No. 51-1), which is less exacting than that of the Third Circuit; however, even if it were applicable, the Ninth Circuit still requires that the state be “genuinely and effectively in the process of deinstitutionalizing disabled persons.” Arc of Wash. State, Inc. v. Braddock, 427 F.3d 615, 619-21 (9th Cir. 2005).
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The Commonwealth claims to have an unwritten Olmstead plan to move some individuals out of institutions and into community-based settings. (Defs.’ Mem. Law at 44-47, ECF No. 51-1.) Plaintiffs claim that unwritten plan lacks the specificity required by Frederick II. (Pls.’ Mot. Summ. J., 51-53, ECF No. 45.) However, resolution of this disputed issue is not essential to defeat the Commonwealth’s fundamental alteration argument. Both parties acknowledge that the Commonwealth does not have a plan to ensure that individuals on the Act 150 waitlist are not placed at serious risk of institutionalization. (See Decl. Henry 4 ¶ 20, ECF No. 53-2; Pls.’ Mot. Summ. J., 51-53, ECF No. 45.) That alone is fatal to DPW’s fundamental alteration defense in this case. DPW incorrectly argues that it can avoid liability for placing Plaintiffs at risk of institutionalization because it has established a comprehensive, effectively working Olmstead plan to move some other individuals out of institutions. (Defs.’ Mem. Law at 54, ECF No. 51-1.) However, a state may not place one group of individuals at serious risk of institutionalization, without any plan to address the alleged violation, solely because it is working towards remedying unnecessary institutionalization as to another group of individuals. See U.S. Dept. of Justice, Statement of the Department of Justice on the Integration Mandate of Title II of the ADA and Olmstead v. L.C., http://www.ada.gov/olmstead/q&a_olmstead.htm (last updated June 22, 2011) (stating that a public entity’s Olmstead “plan should include commitments for each group of persons who are unnecessarily segregated, such as individuals residing in facilities for individuals with developmental disabilities, psychiatric hospitals, nursing homes and board and care homes, or individuals spending their days in sheltered workshops or segregated day programs”). Permitting such a result would contradict Olmstead’s
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holding that a state must consider the needs of a “large and diverse population” of individuals with disabilities served by the state. See Olmstead, 527 U.S. at 604. That is, a public entity cannot rely on its Olmstead plan as part of its defense unless it can prove that its plan comprehensively and effectively addresses the needless segregation of the group at issue.11 IV. CONCLUSION
The United States offers this Statement of Interest as a means of clarifying the applicable law in this action so as to assist the Court in deciding the motions before it. If the Court so desires, counsel for the United States will be present and prepared to argue the present Statement of Interest at any upcoming hearings regarding the Motion.
11 DPW also argues that Olmstead plans are only applicable to individuals in institutions. (See Defs.’ Mem. Law at 53 (stating that “an integration plan is a plan to move people out of institutions and into the community”).) The purpose of an Olmstead plan is for a state to correct its noncompliance with the ADA, not insulate itself from its ADA obligations to people who are facing institutionalization. Further, DPW’s position would effectively push people into institutions in order to benefit from an Olmstead plan, a result plainly at odds with the ADA. Cf. Fisher, 335 F.3d at 1182 (the integration mandate “would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation”).
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Respectfully submitted,
JOCELYN SAMUELS Acting Assistant Attorney General Civil Rights Division EVE L. HILL Deputy Assistant Attorney General JONATHAN M. SMITH Chief, Special Litigation Section BENJAMIN “BO” TAYLOE Deputy Chief REGAN L. RUSH Special Counsel /s/ Joshua L. Rogers JOSHUA L. ROGERS Miss. Bar. No. 101468 DEENA FOX Trial Attorneys Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Telephone: (202) 353-1089 Facsimile: (202) 514-4883 E-mail: Joshua.Rogers@usdoj.gov Attorneys for the United States of America DATED: June 12, 2014
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CERTIFICATE OF SERVICE I hereby certify that on June 12, 2014, a copy of foregoing was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System.
/s/ Joshua L. Rogers JOSHUA L. ROGERS Trial Attorney Special Litigation Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Telephone: (202) 353-1089 Facsimile: (202) 514-4883 Joshua.Rogers@usdoj.gov Counsel for United States
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 Case: 2:13-cv-5670 As of: 07/06/2017 12:05 PM EDT 1 of 10
CLOSED,SPECIAL
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:13−cv−05670−AB

GLEASON v. DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA et al Assigned to: HONORABLE ANITA B. BRODY Cause: 42:12101 The Americans with Disabilities Act of 1990
Plaintiff

Date Filed: 09/27/2013 Date Terminated: 06/11/2015 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

JOSEPH GLEASON INDIVIDUALLY AND ON BEHALF OF SIMILARLY SITUATED PERSONS TERMINATED: 10/28/2013

represented by DYNAH HAUBERT Disability Rights Pennsylvania 1315 WALNUT ST SUITE 500 PHILADELPHIA, PA 19107 215−238−8070 Fax: 215−772−3126 Email: dhaubert@disabilityrightspa.org TERMINATED: 10/28/2013 LEAD ATTORNEY

ROBIN RESNICK DISABILITIES LAW PROJECT 1315 WALNUT STREET SUITE 400 PHILA, PA 19107−4798 215−238−8070 Fax: 215−772−3126 Email: rresnick@drnpa.org TERMINATED: 10/28/2013 LEAD ATTORNEY

STEPHEN F. GOLD 1709 BENJAMIN FRANKLIN PARKWAY 2ND FLOOR PHILADELPHIA, PA 19103 215−627−7100 Email: stevegoldada1@gmail.com TERMINATED: 10/28/2013 LEAD ATTORNEY

Plaintiff
PAULA GLEASON TERMINATED: 10/28/2013

represented by ROBIN RESNICK (See above for address) TERMINATED: 10/28/2013 LEAD ATTORNEY

STEPHEN F. GOLD (See above for address) TERMINATED: 10/28/2013 LEAD ATTORNEY

Plaintiff
PAULA SMITH INDIVIDUALLY AND ON BEHALF OF SIMILARLY SITUATED PERSONS

represented by DYNAH HAUBERT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

ROBIN RESNICK

Case: 2:13-cv-5670 As of: 07/06/2017 12:05 PM EDT 2 of 10
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
STEPHEN F. GOLD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
KELLY L. DARR DISABILITY RIGHTS PENNSYLVANIA 1315 WALNUT ST 5TH FL PHILADELPHIA, PA 19107 215−238−8070 Email: kdarr@drnpa.org ATTORNEY TO BE NOTICED

V. Defendant DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA
Defendant BEVERLY MACKERETH IN HER OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA

represented by GREGORY F. CIRILLO DILWORTH PAXSON 1500 MARKET STREET SUITE 3500 PHILADELPHIA, PA 19102 215−575−7000 Fax: 215−575−7200 Email: gcirillo@dilworthlaw.com ATTORNEY TO BE NOTICED
JOHN J. HIGSON DILWORTH PAXSON LLP 1500 MARKET ST SUITE 3500E PHILADELPHIA, PA 19102 215−575−7152 Email: higsonjj@dilworthlaw.com ATTORNEY TO BE NOTICED
JOSHUA D. WOLSON DILWORTH PAXSON LLP 1500 MARKET ST., STE 3500E PHILADELPHIA, PA 19102−2101 215−575−7295 Email: jwolson@dilworthlaw.com ATTORNEY TO BE NOTICED
represented by GREGORY F. CIRILLO (See above for address) ATTORNEY TO BE NOTICED
JOHN J. HIGSON (See above for address) ATTORNEY TO BE NOTICED
JOSHUA D. WOLSON (See above for address) ATTORNEY TO BE NOTICED

Date Filed # Docket Text

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09/27/2013 09/27/2013 10/03/2013 10/04/2013
10/08/2013 10/08/2013 10/08/2013 10/08/2013 10/09/2013
10/09/2013 10/10/2013 10/24/2013

1 COMPLAINT against DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH ( Filing fee $ 400 receipt number 089036.), filed by JOSEPH GLEASON. (Attachments: # 1 Civil Cover Sheet)(ks, ) (Entered: 09/27/2013)
2 Summonses Issued as to DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH. Forwarded To: COUNSEL on 9/27/13 (ks, ) (Entered: 09/27/2013)
2 MOTION for Preliminary Injunction filed by JOSEPH GLEASON.Memorandum of Law and Certificate of Service. (Attachments: # 1 Request for Hearing and Argument, # 2 Text of Proposed Order, # 3 Exhibits A through H, # 4 Exhibits I through L, # 5 Exhibits M & N)(RESNICK, ROBIN) (Entered: 10/03/2013)
3 ORDER that A CONFERENCE REGARDING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (DOC. #2) WILL BE HELD ON TUESDAY, OCTOBER 8, 2013 AT 2:00 P.M.. THE CONFERENCE WILL BE HELDIN CHAMBERS, ROOM 7613 ON THE 7TH FLOOR OF THE U.S. COURTHOUSE, 601 MARKET ST., PHILADELPHIA, PA.. SIGNED BY HONORABLE ANITA B. BRODY ON 10/4/2013. 10/4/2013 ENTERED AND COPIES VIA ECF.(mo, ) (Entered: 10/04/2013)
4 NOTICE of Appearance by JOHN J. HIGSON on behalf of DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH with Certificate of Service(HIGSON, JOHN) (Entered: 10/08/2013)
5 NOTICE of Appearance by JOSHUA D. WOLSON on behalf of DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH with Certificate of Service(WOLSON, JOSHUA) (Entered: 10/08/2013)
6 NOTICE of Appearance by GREGORY F. CIRILLO on behalf of DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH with Certificate of Service(CIRILLO, GREGORY) (Entered: 10/08/2013)
7 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY: Chambers Conference held on 10/8/13. (fdc) (Entered: 10/08/2013)
8 ORDER − IN RESPONSE TO THE PLAINTIFF JOSEPH GLEASON'S COMPLAINT (ECF NO. 1) AND MOTION FOR PRELIMINARY INJUNCTION (ECF NO. 2), IT IS ORDERED AS FOLLOWS:. DEFENDANTS DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA AND BEVERLY MACKERETH MAY FILE AN ANSWER TO THE COMPLAINT AND AN OPPOSITION TO THE MOTION FOR PRELIMINARY INJUNCTION ON OR BEFORE OCTOBER 25, 2013.. PLAINTIFF JOSEPH GLEASON MAY FILE A REPLY TO THE OPPOSITION TO THE MOTION FOR PRELIMINARY INJUNCTION ON OR BEFORE NOVEMBER 1, 2013.. SIGNED BY HONORABLE ANITA B. BRODY ON 10/9/2013. 10/9/2013 ENTERED AND COPIES VIA ECF.(mo, ) Modified on 10/9/2013 (mo, ). (Entered: 10/09/2013)
9 AMENDED COMPLAINT against DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH, filed by JOSEPH GLEASON, PAULA GLEASON, Certificate of Service.(fdc) (Entered: 10/09/2013)
Set/Reset Deadlines as to 2 MOTION for Preliminary Injunction . RESPONSES DUE BY 10/25/2013. REPLIES DUE BY 11/1/2013. (afm, ) (Entered: 10/10/2013)
10 STIPULATION re 8 Order, Set Motion and R&R Deadlines/Hearings,,,, for Leave to File Second Amended Complaint and for Defendants' Response by DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, JOSEPH GLEASON, PAULA GLEASON, BEVERLY MACKERETH. (GOLD, STEPHEN) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 10/24/2013 (nd, ). (Entered: 10/24/2013)

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10/28/2013 10/30/2013 11/12/2013 11/13/2013 11/18/2013 11/21/2013
11/26/2013 11/27/2013
12/05/2013
12/10/2013 01/10/2014

11 SECOND AMENDED COMPLAINT against DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH, filed by PAULA SMITH, Certificate of Service.(fdc) (Entered: 10/29/2013)
12 MOTION to Certify Class filed by PAULA SMITH.Memorandum of Law, Certificate of Service. RESPONSES DUE BY 11/18/2013. (Attachments: # 1 Exhibits A through F, # 2 Exhibits G through I, # 3 Text of Proposed Order)(GOLD, STEPHEN) (Entered: 10/30/2013)
13 Defendants ANSWER to 11 Amended Complaint (Defendants' Answer and Affirmative Defenses to Plaintiff's Second Amended Complaint with Certificate of Service) by DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH.(HIGSON, JOHN) (Entered: 11/12/2013)
14 NOTICE OF RULE 16 SCHEDULING CONFERENCE SET FOR 12/3/2013 04:00 PM IN COURTROOM BEFORE HONORABLE ANITA B. BRODY.(ldb, ) (Entered: 11/13/2013)
15 STIPULATION And Proposed Order by DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWALTH OF PENNSYLVANIA. (HIGSON, JOHN) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 11/18/2013 (nd, ). (Entered: 11/18/2013)
16 STIPULATION AND ORDER...WHEREAS, THE PARTIES HAVE AGREED, PURSUANT TO RULE 26(f) TO CONDUCT A MEET AND CONFER ON NOVEMBER 21, 2013 TO DISCUSS AMONG OTHER THINGS, A SCHEDULE FOR DISCOVERY AND BRIEFING ON THE CLASS CERTIFICATION ISSUES. WHEREAS, THE PARTIES HAVE STIPULATED AND AGREED THAT THE TIME FOR DEFFENDANT TO RESPOND TO PLAINTIFFS' MOTION TO CERTIFY THE CLASS SHOULD BE DEFERRED AND SUBJECT TO THE SCHEDULE THE COURT ORDERS AFTER THE PARTIES CONDUCT THEIR MEET AND CONFER AND PARTICIPATE IN THE DECEMBER 3, 2013 RULE 16 CONFERENCE. APPROVED BY THE COURT:. SIGNED BY HONORABLE ANITA B. BRODY ON 11/20/2013. 11/21/2013 ENTERED AND COPIES VIA ECF.(mo, ) (Entered: 11/21/2013)
17 Discovery Plan by All Parties.(GOLD, STEPHEN) (Entered: 11/26/2013)
18 ORDER that THE TIME OF THE RULE 16 CONFERENCE SCHEDULED FOR TUESDAY, DECEMBER 3, 2013 AT 4:00 P.M. WILL NOW BE HELD AT 11:00 A.M.. THE CONFERENCE WILL BE HELD IN CHAMBERS, ROOM 7613 ON THE 7TH FLOOR OF THE U.S. COURTHOUSE, 601 MARKET ST., PHILADELPHIA, PA. SIGNED BY HONORABLE ANITA B. BRODY ON 11/27/2013. 11/27/2013 ENTERED AND COPIES VIA ECF.(mo, ) (Entered: 11/27/2013)
19 ORDER that THE PARTIES WILL SUBMIT A PROPOSED BRIEFING SCHEDULE TO THE COURT ON PLAINTIFF'S MOTION FOR CLASS CERTIFICATION ON OR BEFORE JANUARY 20, 2014; ALL DISCOVERY DUE BY FEBRUARY 19, 2014; PLAINTIFF'S EXPERT REPORTS DUE FEBRUARY 5, 2014; DEFENDANT'S REPORTS DUE JANUARY 22, 2014; DEPOSITIONS OF ALL EXPERTS TO BE COMPLETED BY FEBRUARY 19, 2014 AND DISPOSITIVE MOTIONS DUE BY MARCH 5, 2014.. SIGNED BY HONORABLE ANITA B. BRODY ON 12/3/2013. 12/5/2013 ENTERED AND COPIES VIA ECF.(mo, ) (Entered: 12/05/2013)
20 NOTICE of Hearing: TELEPHONE CONFERENCE RE: SETTLEMENT MATTERS AND POSSIBLY SCHEDULING A SETTLEMENT CONFERENCE HAS BEEN SET FOR 1/9/2014 09:15 AM BEFORE MAGISTRATE JUDGE DAVID R. STRAWBRIDGE. COUNSEL FOR PLAINTIFF IS DIRECTED TO INITIATE THIS CALL AND ONCE ALL COUNSEL ARE ON THE LINE, TO THEN JOIN CHAMBERS INTO THE CALL (PH: 267−299−7790).(lds, ) (Entered: 12/10/2013)
21 Minute Entry for proceedings held before MAGISTRATE JUDGE DAVID R. STRAWBRIDGE: Telephone Settlement Conference held on 1/9/2014. (kp, ) (Entered: 01/10/2014)

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01/10/2014
01/14/2014 01/16/2014 01/21/2014
01/21/2014 01/30/2014 02/20/2014
02/20/2014 02/21/2014 02/25/2014 02/25/2014
02/28/2014 03/06/2014

22 ORDER THAT A SETTLEMENT CONFERENCE WILL BE HELD IN CHAMBERS BEFORE THE HONORABLE DAVID R. STRAWBRIDGE IN ROOM 3030, 3RD FLOOR, UNITED STATES COURTHOUSE, 601 MARKET STREET, PHILADELPHIA, PENNSYLVANIA 19106 ON TUESDAY, 2/25/2014 AT 10:00 AM. ADDITIONAL INFORMATION CONTAINED HEREIN. SIGNED BY MAGISTRATE JUDGE DAVID R. STRAWBRIDGE ON 1/9/14. 1/10/14 ENTERED AND COPIES E−MAILED.(va, ) (Entered: 01/10/2014)
23 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY: Pretrial Conference held on 12/3/13. (fdc) (Entered: 01/14/2014)
24 STIPULATION and Proposed Order by DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWALTH OF PENNSYLVANIA. (HIGSON, JOHN) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 1/16/2014 (nd, ). (Entered: 01/16/2014)
25 STIPULATION AND ORDER... the PARTIES HAVE STIPULATED AND AGREED TO THE FOLLOWING BRIEFING SCHEDULE WITH RESPECT TO PLAINTIFFS' MOTION TO CERTIFY THE CLASS: DEFENDANTS BRIEF IN OPPOSITION DUE: FEBRUARY 21, 2014 AND PLAINTIFFS' REPLY BRIEF DUE MARCH 7, 2014. APPROVED BY THE COURT:. SIGNED BY HONORABLE ANITA B. BRODY ON 1/21/2014. 1/21/2014 ENTERED AND COPIES VIA ECF.(mo, ) (Entered: 01/21/2014)
Set/Reset Deadlines as to 12 MOTION to Certify Class . RESPONSE BRIEF IN OPPOSITION DUE BY 2/21/2014. REPLIES DUE BY 3/7/2014. (afm, ) (Entered: 01/23/2014)
26 Amended MOTION to Certify Class filed by PAULA SMITH.Memorandum of Law and Certificate of Service. RESPONSES DUE BY 2/21/2014. (Attachments: # 1 Exhibits A, B, C, D, E, and F, # 2 Exhibits G, H, and I, # 3 Text of Proposed Order)(RESNICK, ROBIN) (Entered: 01/30/2014)
27 JOINT SCHEDULING ORDER that THE PARTIES TO THIS ACTION HEREBY STIPULATE AND AGREE ON THE FOLLOWING AMENDED PRE−TRIAL SCHEDULE: 1. DISCOVERY: ALL FACT AND EXPERT DISCOVERY SHALL BE COMPLETED ON OR BEFORE MARCH 21, 2014; 2. DISPOSITIVE MOTIONS: ALL DISPOSITIVE MOTIONS SHALL BE FILED ON OR BEFORE APRIL 4, 2014. 3. CLASS CERTIFICATION BRIEFS:.... SIGNED BY HONORABLE ANITA B. BRODY ON 2/19/2014. 2/20/2014 ENTERED AND COPIES VIA ECF.(mo, ) (Entered: 02/20/2014)
Set/Reset Deadlines as to 26 Amended MOTION to Certify Class , 12 MOTION to Certify Class . RESPONSES DUE BY 3/24/2014. (ahf, ) (Entered: 02/25/2014)
28 MOTION to Compel filed by PAULA SMITH.Memorandum of Law and Certificate of Service. (Attachments: # 1 Exhibits A, B, C, C, E, and F, # 2 Exhibits G, H, I, J, K, L, M, and N, # 3 Text of Proposed Order)(GOLD, STEPHEN) (Entered: 02/21/2014)
29 Minute Entry for proceedings held before MAGISTRATE JUDGE DAVID R. STRAWBRIDGE: Settlement Conference held on 2/25/14. (fdc, ) (Entered: 02/25/2014)
30 NOTICE of Hearing: STATUS/FOLLOWUP TELEPHONE CONFERENCE RE: SETTLEMENT MATTERS SET FOR 3/5/2014 04:30 PM BEFORE MAGISTRATE JUDGE DAVID R. STRAWBRIDGE. COUNSEL FOR PLAINTIFF IS DIRECTED TO INITIATE THIS CALL AND ONCE ALL COUNSEL ARE ON THE LINE, IS THEN TO JOIN CHAMBERS INTO THE CALL (PH: 267−299−7790).(lds, ) (Entered: 02/25/2014)
31 MOTION to Compel Production of Documents and Answers to Interrogatories filed by PAULA SMITH.Memorandum of Law and Certificate of Service. (Attachments: # 1 Exhibits A through F, # 2 Text of Proposed Order)(GOLD, STEPHEN) (Entered: 02/28/2014)
32 Minute Entry for proceedings held before MAGISTRATE JUDGE DAVID R. STRAWBRIDGE: TELEPHONE Settlement Conference held on 3/5/14. (jl, ) (Entered: 03/06/2014)

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03/10/2014 03/11/2014
03/13/2014
03/13/2014 03/13/2014 03/13/2014 03/14/2014 03/14/2014 03/19/2014 03/19/2014 03/21/2014 03/24/2014 03/27/2014 03/28/2014

33 Consent MOTION for Extension of Time to File Response/Reply as to 28 MOTION to Compel filed by DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH.Certificate of Service.(HIGSON, JOHN) (Entered: 03/10/2014)
34 ORDER − UPON CONSIDERATION OF THE CONSENT MOTION FOR EXTENSION OF TIME FILED ON BEHALF OF DEFENDANTS, AND ANY RESPONSES THERETO, IT IS HEREBY ORDERED that THE MOTION IS GRANTED, AND DEFENDANTS SHALL HAVE UP TO AND INCLUDING MARCH 14, 2014 TO RESPOND TO PLAINTIFF'S MOTION TO COMPEL [D.I. 28]. ALL OTHER CASE MANAGEMENT DEADLINES REMAIN IN EFFECT. SIGNED BY HONORABLE ANITA B. BRODY ON 3/10/2014.3/11/2014 ENTERED AND COPIES VIA ECF.(mo, ) (Entered: 03/11/2014)
35 STIPULATION AND ORDER... that 1. DEFENDANTS' BRIEF IN RESPONSE TO PLAINTIFF'S MOTION TO COMPEL (D.I. 28) SHALL BE FILED ON OR BEFORE MARCH 19, 2014. 2. DEFENDANTS' BRIEF IN RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND ANSWERS TO INTERROGATORIES (D.I. 31) SHALL BE FILED ON OR BEFORE MARCH 24, 2014. APPROVED BY THE COURT:. SIGNED BY HONORABLE ANITA B. BRODY ON 3/13/2014. 3/13/2014 ENTERED AND COPIES VIA ECF.(mo, ) (Entered: 03/13/2014)
Set/Reset Deadlines as to RESPONSES DUE BY 3/19/2014 TO PLAINTIFF'S MOTION TO COMPEL (D.I. 28). (mo, ) (Entered: 03/13/2014)
Set/Reset Deadlines as to RESPONSES DUE BY 3/24/2014 TO PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND ANSWERS TO INTERROGATORIES (D.I. 31). (mo, ) (Entered: 03/13/2014)
36 JOINT SCHEDULING ORDER −... that 1. ALL FACT AND EXPERT DISCOVERY DUE BYON OR BEFORE 4/4/2014 AND 2. DISPOSITIVE MOTIONS DUE SHALL BE FILED ON OR BEFORE 4/18/2014. APPROVED BY THE COURT:. SIGNED BY HONORABLE ANITA B. BRODY ON 3/13/2014. 3/13/2014 ENTERED AND COPIES VIA ECF.(mo, ) (Entered: 03/13/2014)
Set/Reset Deadlines as to 31 MOTION to Compel Production of Documents and Answers to Interrogatories. RESPONSES DUE BY 3/24/2014. (afm, ) (Entered: 03/14/2014)
Set/Reset Deadlines as to 12 MOTION to Certify Class . RESPONSES DUE BY 4/7/2014. REPLIES DUE BY 4/21/2014. (afm, ) (Entered: 03/14/2014)
37 MOTION for Partial Summary Judgment filed by DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH.Memorandum, Certificate of Service. (Attachments: # 1 Memorandum, # 2 Text of Proposed Order)(WOLSON, JOSHUA) (Entered: 03/19/2014)
38 RESPONSE in Opposition re 28 MOTION to Compel, filed by DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH. (HIGSON, JOHN) Modified on 5/12/2014 (md). (Entered: 03/19/2014)
39 REPLY to Response to Motion re 28 MOTION to Compel filed by PAULA SMITH. (Attachments: # 1 Exhibits 1 & 2)(GOLD, STEPHEN) (Entered: 03/21/2014)
40 RESPONSE in Opposition re 31 MOTION to Compel Production of Documents and Answers to Interrogatories filed by DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH. (HIGSON, JOHN) (Entered: 03/24/2014)
41 REPLY to Response to Motion re 31 MOTION to Compel Production of Documents and Answers to Interrogatories filed by PAULA SMITH. (Attachments: # 1 Exhibit)(GOLD, STEPHEN) (Entered: 03/27/2014)
42 NOTICE of Hearing:FOLLOWUP/STATUS TELEPHONE CONFERENCE RE: SETTLEMENT MATTERS SET FOR 4/9/2014 04:30 PM BEFORE MAGISTRATE

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04/07/2014 04/10/2014 04/11/2014
04/14/2014 04/18/2014
04/21/2014 04/29/2014 05/01/2014
05/01/2014 05/09/2014

JUDGE DAVID R. STRAWBRIDGE. COUNSEL FOR PLAINTIFF IS DIRECTED TO INITIATE THIS CALL AND ONCE ALL COUNSEL ARE ON THE LINE, TO THEN JOIN CHAMBERS INTO THE CALL (Ph: 267−299−7790).(lds, ) (Entered: 03/28/2014)
43 RESPONSE in Opposition re 26 Amended MOTION to Certify Class filed by DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(WOLSON, JOSHUA) (Entered: 04/07/2014)
44 Minute Entry for proceedings held before MAGISTRATE JUDGE DAVID R. STRAWBRIDGE: Telephone Conference (re: settlement) held on 4/9/14. (fdc) (Entered: 04/10/2014)
45 MOTION for Summary Judgment and Opposition to Defendants' Motion for Partial Summary Judgment filed by PAULA SMITH.Memorandum of Law, Certificate of Service. (Attachments: # 1 Plaintiff's Statement of Undisputed Facts, # 2 Exhibits 1 and 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, Pt. 1, # 6 Exhibit 5, Pt. 2, # 7 Exhibit 5, Pt. 3, # 8 Exhibits 6, 7, 8, 9, and 10, # 9 Exhibit 11, # 10 Exhibit 12, # 11 Exhibits 13 and 14, # 12 Exhibit 15, # 13 Exhibit 16, # 14 Exhibits 17, 18, 19, and 20, # 15 Exhibits 21, 22, 23, and 24, # 16 Exhibit 25, # 17 Exhibits 26 and 27, # 18 Exhibits 28, 29, and 30, # 19 Exhibits 31 and 32, # 20 Text of Proposed Order)(RESNICK, ROBIN) (Entered: 04/11/2014)
46 ORDER that PLAINTIFF'S MOTION TO CERTIFY THE CLASS (ECF NO. 12) IS DENIED AS MOOT IN LIGHT OF PLAINTIFF'S AMENDED MOTION TO CERTIFY THE CLASS (ECF NO. 26).. SIGNED BY HONORABLE ANITA B. BRODY ON 4/14/2014.4/14/2014 ENTERED AND COPIES VIA ECF.(mo, ) (Entered: 04/14/2014)
47 STIPULATION AND ORDER THAT THE FOLLOWING SHALL BE CONSOLIDATED INTO A SINGLE FILING AND SHALL BE FILED ON OR BEFORE 5/6/2014; DEFENDANTS' REPLY IN FURTHER SUPPORT OF THEIR MOTION FOR PARTIAL SUMMARY JUDGMENT; DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; AND DEFENDANTS' CROSS−MOTION FOR SUMMARY JUDGMENT; ETC. SIGNED BY HONORABLE ANITA B. BRODY ON 4/18/14. 4/18/14 ENTERED AND COPIES E−MAILED.(ti, ) (Entered: 04/18/2014)
48 REPLY to Response to Motion re 26 Amended MOTION to Certify Class filed by PAULA SMITH. (Attachments: # 1 Exhibit Class Reply Exh. A−E, # 2 Exhibit Class Reply Exh. F−L)(HAUBERT, DYNAH) (Entered: 04/21/2014)
49 Consent MOTION for Extension of Time to File Response/Reply as to 45 MOTION for Summary Judgment and Opposition to Defendants' Motion for Partial Summary Judgment, 37 MOTION for Partial Summary Judgment filed by DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH.Proposed Order and Certificate of Service.(HIGSON, JOHN) (Entered: 04/29/2014)
50 ORDER − UPON CONSIDERATION OF THE CONSENT MOTION FOR EXTENSION OF TIME FILED ON BEHALF OF DEFENDANTS AND ANY RESPONSES THERETO, IT IS HEREBY ORDERED that THE MOTION IS GRANTED, AND DEFENDANTS SHALL HAVE UP TO AND INCLUDING MAY 9, 2014, TO FILE THEIR CONSOLIDATED REPLY IN FURTHER SUPPORT... ALL OTHER CASE MANAGEMENT DEADLINES REMAIN IN EFFECT.. SIGNED BY HONORABLE ANITA B. BRODY ON 5/1/2014.5/1/2014 ENTERED AND COPIES VIA ECF.(mo, ) (Entered: 05/01/2014)
Set/Reset Deadlines as to 37 MOTION for Partial Summary Judgment . REPLIES DUE BY 5/9/2014. (ahf, ) (Entered: 05/02/2014)
51 MOTION for Summary Judgment filed by DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH.Certificate of Service. (Attachments: # 1 Defendants' (1) Memorandum of Law in Support of Their Motion for Summary Judgment, (2)

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05/09/2014 05/09/2014
05/22/2014 05/22/2014 05/29/2014 05/29/2014 05/29/2014 06/12/2014 06/12/2014 06/12/2014

Opposition to Plaintiff's Motion for Summary Judgment, and (3) Reply Memorandum in Support of Their Motion for Partial Summary Judgment, # 2 Proposed Order)(WOLSON, JOSHUA) (Entered: 05/09/2014)
52 Defendants' Response and Counter−Statement to Plaintiff's Statement of Undisputed Facts by DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH. (WOLSON, JOSHUA) Modified on 5/12/2014 (lisad, ). (Entered: 05/09/2014)
53 Appendix to Defendants' Memorandum of Law in Support re 51 MOTION for Summary Judgment , 52 Statement by DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit 1 to J. Wolson Declaration, # 6 Exhibit 2 to J. Wolson Declaration, # 7 Exhibit 3 to J. Wolson Declaration, # 8 Exhibit 4 to J. Wolson Declaration, # 9 Exhibit 5 to J. Wolson Declaration, # 10 Exhibit 6 to J. Wolson Declaration, # 11 Exhibit 7 to J. Wolson Declaration, # 12 Exhibit 8 to J. Wolson Declaration, # 13 Exhibit 9 to J. Wolson Declaration, # 14 Exhibit 10 to J. Wolson Declaration, # 15 Exhibit 11 to J. Wolson Declaration, # 16 Exhibit 12 to J. Wolson Declaration, # 17 Exhibit 13 to J. Wolson Declaration, # 18 Exhibit 14 to J. Wolson Declaration, # 19 Exhibit 15 to J. Wolson Declaration)(WOLSON, JOSHUA) Modified on 5/12/2014 (lisad, ). (Entered: 05/09/2014)
54 MOTION in Limine to Preclude Testimony of David Williams, Esq. filed by DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH.Memorandum, Certificate of Service. (Attachments: # 1 Memorandum of Law in Support of Motion, # 2 Exhibit A, # 3 Text of Proposed Order)(WOLSON, JOSHUA) (Entered: 05/22/2014)
55 MOTION in Limine to Preclude Testimony of Stephen Feldman filed by BEVERLY MACKERETH, DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, Memorandum, Certificate of Service. (Attachments: # 1 Memorandum of Law in Support of Motion, # 2 Exhibit A, # 3 Text of Proposed Order)(WOLSON, JOSHUA) Modified on 5/23/2014 (md). (Entered: 05/22/2014)
56 RESPONSE in Opposition re 51 MOTION for Summary Judgment and Reply to Defendants' Opposition to Plaintiff's Motion for Summary Judgment 45 filed by PAULA SMITH. (Attachments: # 1 Plaintiff's Responses to Defendants' Counterstatement of Undisputed Facts, # 2 Exhibits 33, 34, 35, 36, 37, and 38, # 3 Exhibits 39 and 40, # 4 Exhibits 41, 42, 43, 44, 45, and 46, # 5 Text of Proposed Order)(GOLD, STEPHEN) (Entered: 05/29/2014)
57 RESPONSE in Opposition re 54 MOTION in Limine to Preclude Testimony of David Williams, Esq. filed by PAULA SMITH. (Attachments: # 1 Exhibits A, B, and C, # 2 Text of Proposed Order)(GOLD, STEPHEN) (Entered: 05/29/2014)
58 RESPONSE in Opposition re 55 MOTION in Limine MOTION in Limine to Preclude Testimony of Stephen Feldman filed by PAULA SMITH. (Attachments: # 1 Exhibits A, B, C, D, and E, # 2 Text of Proposed Order)(GOLD, STEPHEN) (Entered: 05/29/2014)
59 Statement of Interest by UNITED STATES OF AMERICA. (ROGERS, JOSHUA) (Entered: 06/12/2014)
60 Consent MOTION for Leave to File Replies to Plaintiff's Oppositions to Defendants' Motions in Limine filed by DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH.Certificate of Service. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order)(WOLSON, JOSHUA) (Entered: 06/12/2014)
61 RESPONSE in Support re 51 MOTION for Summary Judgment (Reply Memorandum of Law In Support of Their Motion for Summary Judgment and (2) Sur−Reply in Opposition to Plaintiff's Motion for Summary Judgment) filed by DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH. (Attachments: # 1 Supplemental Declaration of Joshua D. Wolson, Esquire, # 2 Exhibit 1 to Supplemental Declaration)(WOLSON, JOSHUA)

Case: 2:13-cv-5670 As of: 07/06/2017 12:05 PM EDT 9 of 10

06/20/2014
06/20/2014
06/20/2014
06/30/2014 07/29/2014
08/05/2014 08/19/2014 08/21/2014 09/17/2014 09/17/2014
11/04/2014 11/04/2014

(Entered: 06/12/2014)
62 ORDER − UPON CONSIDERATION OF THE CONSENT MOTION FOR LEAVE TO FILE REPLIES TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTIONS IN LIMINE [ECF NO. 60], IT IS ORDERED that THE MOTION IS GRANTED. DEFENDANTS ARE ORDERED TO FILE THEIR REPLY MEMORANDUMS ON THE DOCKET ON OR BEFORE JUNE 27, 2014.SIGNED BY HONORABLE ANITA B. BRODY ON 6/19/2014. 6/20/2014 ENTERED AND COPIES VIA ECF.(mo, ) (Entered: 06/20/2014)
63 RESPONSE in Support re 54 MOTION in Limine to Preclude Testimony of David Williams, Esq. (Defendants' Reply Memorandum in Support of Their Motion in Limine to Preclude the Testimony of David Williams, Esq.) filed by DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH. (WOLSON, JOSHUA) (Entered: 06/20/2014)
64 RESPONSE in Support re 55 MOTION in Limine MOTION in Limine to Preclude Testimony of Stephen Feldman (Defendants' Reply Memorandum in Support of Their Motion in Limine to Preclude the Testimony of Stephen A. Feldman, Esq.) filed by DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH. (WOLSON, JOSHUA) (Entered: 06/20/2014)
65 Response re 59 Statement (Defendants' Response to the Statement of Interest of the United States of America by DEPARTMENT OF PUBLIC WELFARE OF THE COMMONWEALTH OF PENNSYLVANIA, BEVERLY MACKERETH. (WOLSON, JOSHUA) (Entered: 06/30/2014)
66 ORDER that THIS ACTION IS PLACED IN SUSPENSE. IT IS FURTHER ORDERED that A TELEPHONIC STATUS CONFERENCE WILL BE HELD ON AUGUST 19, 2014 AT 2:00 P.M.. PLAINTIFF IS INSTRUCTED TO INITIATE THE CALL.. SIGNED BY HONORABLE ANITA B. BRODY ON 7/28/2014. 7/29/2014 ENTERED AND COPIES VIA ECF.(mo, ) (Entered: 07/29/2014)
67 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY: Telephone Conference held on 7/24/14 (fdc, ) (Entered: 08/05/2014)
68 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY: Telephone Status Conference held on 8/19/14. (fdc) (Entered: 08/19/2014)
69 ORDER that A STATUS CONFERENCE WILL BE HELD IN CHAMBERS AT 10:00 A.M. ON SEPTEMBER 17, 2014.. SIGNED BY HONORABLE ANITA B. BRODY ON 8/20/2014. 8/21/2014 ENTERED AND COPIES VIA ECF.(mo, ) (Entered: 08/21/2014)
70 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY: Status Conference held on 9/17/14. (fdc, ) (Entered: 09/17/2014)
71 ORDER that A FOLLOW−UP TELEPHONE CONFERENCE REGARDING STATUS OF THIS CASE WILL BE HELD ON NOVEMBER 4, 2014 AT 10:00 A.M.. COUNSEL, JOHN HIGSON WILL INITIATE THE CALL.. SIGNED BY HONORABLE ANITA B. BRODY ON 9/17/2014. 9/17/2014 ENTERED AND COPIES VIA ECF.(mo, ) (Entered: 09/17/2014)
72 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY: Telephone Conference held on 11/4/14 (fdc, ) (Entered: 11/04/2014)
73 ORDER − AS STATED ON THE RECORD AT THE NOVEMBER 4, 2014, TELEPHONE CONFERENCE, IT IS ORDERED that DEFENDANT MUST PROVIDE PLAINTIFF'S COUNSEL WITH THE NAMES AND ADDRESSES OF ALL APPLICANTS TO THE ACT 150 COMMUNITY−BASED ATTENDANT CARE SERVICE PROGRAM ON OR BEFORE NOVEMBER 11, 2014.... A STATUS CONFERENCE WILL BE HELD ON WEDNESDAY, DECEMBER 3, 2014 AT 10:00 A.M. IN CHAMBERS, ROOM 7613 ON THE 7TH FLOOR OF THE U.S. COURTHOUSE, 601 MARKET ST.,PHILADLEHIA,PA.. SIGNED BY HONORABLE ANITA B. BRODY ON 11/4/2014. 11/4/2014 ENTERED AND COPIES VIA ECF.(mo, ) (Entered: 11/04/2014)

Case: 2:13-cv-5670 As of: 07/06/2017 12:05 PM EDT 10 of 10

12/03/2014 01/30/2015 02/05/2015 03/25/2015 04/16/2015
04/16/2015 05/26/2015 06/11/2015

74 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY Chambers Conference held on 12/3/2014. Court Reporter: ESR. (fdc) Modified on 12/4/2014 (lisad, ). (Entered: 12/03/2014)
75 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY Pretrial Conference held on 12/1/14. (fdc) (Entered: 01/30/2015)
76 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY Pretrial Conference held on 1/26/15. (fdc) (Entered: 02/05/2015)
77 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY Telephone Status Conference held on 3/24/15. Court Reporter: ESR. (fdc) (Entered: 03/25/2015)
78 ORDER that A STATUS CONFERENCE WILL BE HELD ON TUESDAY, MAY 26, 2015 AT 10:00 A.M., IN CHAMBERS, ROOM 7613 ON THE 7TH FLOOR OF THE U.S. DISTRICT COURT, 601 MARKET ST.,PHILADELPHIA, PA.. SIGNED BY HONORABLE ANITA B. BRODY ON 4/15/2015. 4/16/2015 ENTERED AND COPIES VIA ECF.(mo, ) Modified on 5/26/2015 (mo, ). (Entered: 04/16/2015)
Set/Reset Hearings: STATUS CONFERENCE SET FOR 5/26/2015 10:00 AM IN JUDGE CHAMBERS BEFORE HONORABLE ANITA B. BRODY. (mo, ) (Entered: 04/16/2015)
79 NOTICE of Appearance by KELLY L. DARR on behalf of PAULA SMITH with Certificate of Service(DARR, KELLY) (Entered: 05/26/2015)
80 STIPULATION of Dismissal by PAULA SMITH. (DARR, KELLY) (Entered: 06/11/2015)

 
 Case 2:13-cv-05670-AB Document 1 Filed 09/27/13 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

JOSEPH GLEASON,

:

individually and on behalf of similarly :

situated persons,

:

:

Plaintiff,

:

:

v.

:

:

DEPARTMENT OF PUBLIC WELFARE :

OF THE COMMONWEALTH OF

:

PENNSYLVANIA; BEVERLY

:

MACKERETH, in her official capacity :

as Secretary of the Department of

:

Public Welfare of the Commonwealth :

of Pennsylvania,

:

:

Defendant. :

:

Civil Action No. Class Action

COMPLAINT

I. PRELIMINARY STATEMENT

1. Joseph Gleason is a 52-year-old man who has cerebral palsy

and has been forced to reside in a nursing facility for more than two years.

He has rented an apartment and wants to live independently in the

community but requires attendant care services to assist him with some of

his activities of daily living, such as transferring to and from bed and his

wheelchair, showering, dressing and cooking.

Case 2:13-cv-05670-AB Document 1 Filed 09/27/13 Page 2 of 19
2. Defendants administer a program, known as the “Act 150 Program,” to provide community-based attendant care services to individuals with significant physical disabilities.
3. Eligibility for the Act 150 Program is based solely on whether an individual needs attendant care services and is able to direct those services. There are no income or asset limits for eligibility, but Act 150 Program participants whose income exceeds 300% of the federal poverty level pay a weekly fee toward the cost of the services based on the amount of his or her income.
4. Plaintiff Gleason is eligible for the Act 150 Program, but it has a waiting list of 316 people, which has remained constant for two years.
5. Since Mr. Gleason cannot receive services under the Act 150 Program, he is forced to remain segregated in a nursing facility where he is provided with attendant care services.
6. Defendants pay more than $8,000 monthly for Mr. Gleason’s nursing facility services through the Medical Assistance program, which on information and belief is more than they would pay if they funded community-based attendant care services for him through the Act 150 Program.
2

Case 2:13-cv-05670-AB Document 1 Filed 09/27/13 Page 3 of 19
7. Mr. Gleason is not alone. Defendants only offer Pennsylvanians on the waiting list for the Act 150 Program attendant care services in segregated nursing facilities, not in the community which is the most integrated setting appropriate to their needs. This results in their unnecessary institutionalization or places them at serious risk of unnecessary institutionalization.
8. Defendants’ failure to assure that Mr. Gleason and others similarly situated can access community-based attendant care services through the Act 150 Program violates the integration mandates of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134, and Section 504 of the Rehabilitation Act (RA), 29 U.S.C. §794.
9. Plaintiff Gleason seeks declaratory and injunctive relief which will allow him and others similarly situated to reside in the community and not be subject to unnecessary institutionalization. II. JURISDICTION AND VENUE
10. The Court has jurisdiction over these claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §§ 1343(a)(3) and (4).
11. Plaintiff’s claims for declaratory and injunctive relief are authorized under 28 U.S.C. §§ 2201-02 and Fed. R. Civ. P. 65. Plaintiff’s
3

Case 2:13-cv-05670-AB Document 1 Filed 09/27/13 Page 4 of 19
causes of action for disability discrimination are authorized by 42 U.S.C. § 12133 and 29 U.S.C. § 794a.
12. Venue is proper under 28 U.S.C. § 1391(b). Defendant has offices located in this district, and Defendants’ actions in denying Plaintiff’s request for attendant care services took place in this district. III. PARTIES
13. Plaintiff Joseph Gleason is a 52-year-old man who resides in Philadelphia, Pennsylvania.
14. Defendant Department of Public Welfare (DPW) is the singlestate agency that administers the Medical Assistance Program in Pennsylvania, 42 U.S.C. § 1396a(a)(5) and 55 Pa. Code § 101.1(e), which includes funding for nursing facilities, and has responsibility to establish and implement the Act 150 Program, 62 Pa.C.S. § 3054(a). DPW also has responsibility to assure that its programs, including the Medical Assistance Program and Act 150 Program, are administered in accordance with federal law, including the ADA and RA.
15. Defendant Beverly Mackereth is Secretary of Public Welfare of the Commonwealth of Pennsylvania. Defendant Mackereth is responsible to oversee and administer DPW and its programs, including Medical Assistance and the Act 150 Programs, and to assure that they comply with
4

Case 2:13-cv-05670-AB Document 1 Filed 09/27/13 Page 5 of 19
federal law. Defendant Mackereth is sued in her official capacity only for actions and omissions under color of state law. IV. CLASS ACTION
16. Pursuant to Fed. R. Civ. P. 23(a) and (b)(2), the named Plaintiff brings this action on behalf of himself and the following class of persons: All Pennsylvanians who are or will be placed on the waiting list for the Act 150 Program.
17. The class is so numerous that joinder of all its members is impracticable. There are approximately 316 people who are on the Act 150 Program waiting list. Based on information and belief, many of these people either are institutionalized because or are at serious risk of institutionalization because they cannot access community-based attendant care services. Joinder is also impracticable because class members lack the knowledge and financial means to maintain individual actions.
18. There are questions of law or fact that are common to the named Plaintiff and putative class members, including whether: (a) Defendants violate the ADA and RA by offering attendant care services to them only in segregated, institutional settings rather than the community ; (b) Defendants have decreased the number of persons served by the Act 150 Program despite a waiting list; (c) Defendants have refused to request
5

Case 2:13-cv-05670-AB Document 1 Filed 09/27/13 Page 6 of 19
additional funding to provide services to individuals on the Act 150 Program’s waiting list or to use available funding to provide services to Plaintiff and class members; (d) whether Defendants’ policies and practices – including decreasing the number of persons served by the Act 150 Program, maintaining a waiting list for the Act 150 Program, and refusing to use available funding to serve people on the waiting list – result in a lack of necessary community-based attendant care services so that Plaintiff and class members are unnecessarily institutionalized or at serious risk of unnecessary institutionalization; (e) whether Defendants fail to provide named Plaintiff and class members with meaningful choice of communitybased long-term care alternatives to nursing facilities; and (f) whether Defendants fail to have any plan, with timelines and benchmarks, to move people off of the Act 150 Program waiting list at a reasonable pace.
19. Mr. Gleason’s claims are typical of the claims of putative class members. Mr. Gleason, like all class members, is eligible for attendant care services in the Act 150 Program and has been placed on a waiting list for those services.
20. The named Plaintiff will fairly represent and adequately protect the interests of members of the class as a whole. The named Plaintiff does not have any interests antagonistic to those of other class members.
6

Case 2:13-cv-05670-AB Document 1 Filed 09/27/13 Page 7 of 19
21. By filing this action, the named Plaintiff has displayed an interest in vindicating his rights, as well as the claims of others who are similarly situated.
22. The relief sought by the named Plaintiff will inure to the benefit of members of the class generally.
23. The named Plaintiff is represented by counsel who are skilled and knowledgeable about civil rights litigation, disability discrimination, practice and procedure in the federal courts and the prosecution and management of class action litigation.
24. Defendants have acted or refused to act on grounds generally applicable to the class, thereby making final injunctive relief appropriate with respect to the class as a whole under Fed. R. Civ. P. 23(b)(2). V. FACTUAL ALLEGATIONS
25. Joseph Gleason is a 52-year-old man with cerebral palsy. 26. As a result of his disability, Mr. Gleason uses a motorized wheelchair for ambulation. 27. After Mr. Gleason graduated from high school, he attended the Bucks County Community College, from which he received his Associate Degree in 1985.
7

Case 2:13-cv-05670-AB Document 1 Filed 09/27/13 Page 8 of 19
28. From 1987 to 2010, Plaintiff Gleason worked full-time in the admissions office of Bucks County Community College.
29. Until 2003, Mr. Gleason lived with in his family home. After his mother died, Mr. Gleason continued to live there with his brother and his brother’s family.
30. In 2010, Mr. Gleason, who was then using a manual wheelchair, slipped on the snow and fell backwards in his wheelchair, resulting in serious injuries to his back.
31. Mr. Gleason was hospitalized for several months due to his back injuries.
32. When Mr. Gleason was ready to leave the hospital in 2011, he was unable to return to live with his brother and his brother’s family because his physical impairments were too significant for his brother and his family to provide him the care he needed at home.
33. Because Mr. Gleason could not return to his family home and had no access to services to allow him to remain in the community, he was forced to enter a nursing facility in 2011, where he remains.
34. Mr. Gleason requires assistance with some activities of daily living, including transferring to and from his bed and his wheelchair, dressing, showering, cooking, and some house cleaning. He can and does
8

Case 2:13-cv-05670-AB Document 1 Filed 09/27/13 Page 9 of 19
brush his teeth, comb his hair, eat (but he cannot cut the food), do his laundry, and toileting (but he cannot pull his pants up). He can also take his own medications and can shop for food.
35. If Mr. Gleason had access to attendant care services in the community to assist him with his daily living activities, he could live independently and contribute to and participate in society.
36. Mr. Gleason wants to move to the community so he can return to work, live alone, and be independent of institutional rules and procedures.
37. At the nursing facility, Mr. Gleason has no privacy. There is no toilet in his bedroom and he must use a toilet located in the shower room.
38. Mr. Gleason eats alone because he feels like cattle in the dining room at the nursing facility.
39. At the nursing facility, Mr. Gleason cannot even participate in “movie night” because it is scheduled on his shower night. He does not want to forego a shower because the nursing facility provides showers only twice a week. In his own apartment, Mr. Gleason would like to shower every day.
40. Mr. Gleason owns and uses a computer in his room.
9

Case 2:13-cv-05670-AB Document 1 Filed 09/27/13 Page 10 of 19
41. Defendants’ Medical Assistance Program pays $8,082.72 per month for the services Mr. Gleason receives in his nursing facility. In addition to that sum, Mr. Gleason also must contribute toward his nursing facility care all but $45 of his $783.90 monthly Social Security Disability Income (SSDI) benefits and $1,558.38 from private insurance.
42. Mr. Gleason uses the $45 per month of the SSDI benefits he is permitted to keep to pay for paratransit services so he can leave the nursing facility periodically and to buy pizza and other incidentals.
43. On December 20, 2012, Mr. Gleason applied to receive services through Medical Assistance-funded Home and Community-based (HCBS) Waiver programs administered by DPW’s Office of Long-Term Living (OLTL).
44. OLTL’s HCBS Waiver programs include the “Attendant Care Waiver,” which provides community-based attendant care services to individuals with physical disabilities, and the “Independence Waiver,” which provides community-based attendant care and other services to individuals with physical disabilities. To be eligible for these or other HCBS Waiver programs, individuals’ income and resources cannot exceed limits established by the Medical Assistance Program.
10

Case 2:13-cv-05670-AB Document 1 Filed 09/27/13 Page 11 of 19
45. With access to HCBS Waiver services, Mr. Gleason could move from the nursing facility to the community.
46. After he applied for the HCBS Waiver program, Mr. Gleason was informed by Maximus, the Independent Enrollment Broker with which DPW contracts to take and help process applications for HCBS Waiver services, that he was eligible for HCBS Waiver services through Defendants’ Independence Waiver that would enable him to receive community-based attendant care services.
47. Based on that information, Mr. Gleason located an accessible apartment in Philadelphia in late July 2013. He signed a lease to begin on August 1, 2013 and borrowed money from his brother and sister for a security deposit and two months’ rent.
48. On September 6, 2013, DPW sent Mr. Gleason a notice that stated he was determined to be ineligible for HCBS Waiver services because his monthly income of $2,342.28 exceeded the $2,130 monthly income limit to qualify for Medical Assistance benefits, including HCBS Waivers.
49. Besides the HCBS Waiver programs, DPW’s OLTL administers the Act 150 Program.
11

Case 2:13-cv-05670-AB Document 1 Filed 09/27/13 Page 12 of 19
50. The Act 150 Program, created by the Attendant Care Services Act, 62 Pa.C.S. § 3051 et seq., authorizes DPW to fund attendant care services for eligible individuals to provide them assistance with their activities of daily living and allow them to live independently in their own homes and communities rather than in institutions.
51. Unlike Medical Assistance programs, there are no income or asset requirements that limit eligibility for the Act 150 Program. Eligibility for the Act 150 Program is based solely on the applicant’s need for attendant care services and ability to direct his or her services. Individuals whose income exceeds 300 percent of the federal poverty level, however, are required to contribute toward the cost of their services.
52. When DPW denied Mr. Gleason’s application for the Medical Assistance HCBS Waiver services, it did not inform him that he could apply for the Act 150 Program to receive community-based attendant care services.
53. Mr. Gleason learned of the Act 150 Program through advocates who helped him to apply for that Program.
54. Although Mr. Gleason has applied for and is eligible to receive community-based attendant care services through the Act 150 Program, he
12

Case 2:13-cv-05670-AB Document 1 Filed 09/27/13 Page 13 of 19
will not be able to secure those services because there is a waiting list for that program.
55. Since, at least, Fiscal Year 2007-08, DPW has decreased the number of persons who received attendant care services under the Act 150 Program. In Fiscal Year 2007-08, there were 2,479 budgeted slots available. In Fiscal Year 2011-12, there were budgeted slots for 2,277 individuals. In Fiscal Year 2012-13, there were budgeted slots to serve only 2,016 individuals.
56. As the number of budgeted slots for the Act 150 Program has decreased, the waiting list for the Program has grown. In December 2012, there were 294 individuals on the Act 150 Program waiting list. There currently are approximately 316 individuals on that waiting list.
57. DPW has stated that there is a two-year waiting list for the Act 150 Program.
58. DPW has stated that it will continue to serve individuals who currently participate in the Act 150 Program, but will not serve any additional individuals in the current Fiscal Year, 2013-14.
59. On information and belief, DPW knows or should know that there are individuals, like Mr. Gleason, on the Act 150 Program waiting list
13

Case 2:13-cv-05670-AB Document 1 Filed 09/27/13 Page 14 of 19
who are institutionalized and could live in the community if they had access to attendant care services through the Act 150 Program.
60. On information and belief, DPW knows or should know that there are individuals on the Act 150 Program waiting list who are at serious risk of institutionalization if they cannot access attendant care services in the community through that program.
61. DPW has not sought funding to expand the Act 150 Program and, to the contrary, has decreased funding for it despite the waiting list and the fact that individuals on that waiting list are unnecessarily institutionalized or at risk of unnecessary institutionalization.
62. On information and belief, the cost of funding attendant care services through Act 150 to Mr. Gleason and putative class members would be less than the cost to DPW’s Medical Assistance program of providing them with attendant care services in nursing facilities where they are unnecessarily segregated. VI. CLAIMS
A. Count I - Violation of Title II of the ADA 63. Paragraphs 1 through 62 are incorporated by reference. This Count is brought solely against Defendant Mackereth in her official capacity for acts and omissions under color of state law.
14

Case 2:13-cv-05670-AB Document 1 Filed 09/27/13 Page 15 of 19
64. Mr. Gleason and putative class members are individuals with physical impairments that substantially limit one or more major life activities, including walking and caring for themselves. As such, they are persons with disabilities protected by the ADA. 42 U.S.C. § 12102(1)(A).
65. Mr. Gleason and putative class members are eligible for the Act 150 Program and, as such, are qualified persons with disabilities under the ADA. 42 U.S.C. § 12131(2).
66. DPW, administered by Defendant Mackereth, is a public entity subject to the requirements of Title II of the ADA. 42 U.S.C. § 12131(1).
67. Defendant Mackereth violates Title II of the ADA, 42 U.S.C. § 12132 and 28 C.F.R. § 35.130(d), by failing to offer Mr. Gleason and putative class members attendant care services in the community, which is the most integrated setting appropriate to their needs, and, instead, offering them such services only in segregated institutions and by either subjecting them to unnecessary institutionalization or placing them at serious risk of unnecessary institutionalization.
68. Defendant Mackereth violates Title II of the ADA, 42 U.S.C. § 12132 and 28 C.F.R. § 35.130(b)(3), by using methods of administration that subject Mr. Gleason and putative class members to discrimination through actual or serious risk of unnecessary segregation and
15

Case 2:13-cv-05670-AB Document 1 Filed 09/27/13 Page 16 of 19
institutionalization, including, but not limited to: (a) failing to assess whether persons on the Act 150 Program waiting list are institutionalized or at serious risk of institutionalization; (b) failing to use available funding to provide services to Mr. Gleason and putative class members through the Act 150 Program ; (c) allowing the Act 150 Program to serve fewer and fewer people despite the increasing need for such services; and (d) failing to have a plan with specific and concrete benchmarks and timelines within which DPW will provide Mr. Gleason and putative class members with community-based attendant care services through the Act 150 Program.
B. Count II - Violation of Section 504 of the RA 69. Paragraphs 1 through 68 are incorporated by reference. This Count is brought solely against Defendant DPW. 70. Mr. Gleason and putative class members are individuals with physical impairments that substantially limit one or more major life activities, including walking and caring for themselves. As such, they are persons with disabilities protected by Section 504 of the RA, 29 U.S.C. § 705(20)(B). 71. Mr. Gleason and putative class members are eligible for the Act 150 Program and, as such, are qualified persons with disabilities under Section 504 of the RA.
16

Case 2:13-cv-05670-AB Document 1 Filed 09/27/13 Page 17 of 19
72. Defendant DPW is a recipient of Federal financial assistance and, as such, is subject to the requirements of Section 504 of the RA. 29 U.S.C. § 794(b).
73. Defendant DPW violates Section 504 of the RA, 29 U.S.C. § 794 and 28 C.F.R. § 41.51(d), by failing to offer Mr. Gleason and putative class members attendant care services in the community, which is the most integrated setting appropriate to their needs, and, instead, offering them such services only in segregated institutions and by either subjecting them to unnecessary institutionalization or placing them at serious risk of unnecessary institutionalization.
74. Defendant DPW violates Section 504 of the RA, 29 U.S.C. § 794 and 28 C.F.R. § 41.51(b)(3), by using methods of administration that subject Mr. Gleason and putative class members to discrimination through actual or serious risk of unnecessary segregation and institutionalization, including, but not limited to: (a) failing to assess whether persons on the Act 150 Program waiting list are institutionalized or at serious risk of institutionalization; (b) failing to use available funding to provide services to Mr. Gleason and putative class members through the Act 150 Program; (c) allowing the Act 150 Program to serve fewer and fewer people despite the increasing need for such services; and (d) failing to have a plan with
17

Case 2:13-cv-05670-AB Document 1 Filed 09/27/13 Page 18 of 19

specific and concrete benchmarks and timelines within which DPW will provide Mr. Gleason and putative class members with community-based attendant care services through the Act 150 Program. VI. RELIEF REQUESTED
75. Plaintiff Gleason respectfully requests that the Court grant the following relief:
a. exercise jurisdiction over this action; b. certify this case to proceed as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2); c. issue appropriate declaratory and injunctive relief; and d. grant such other relief as may be appropriate, including awarding reasonable attorneys’ fees, litigation expenses, and costs pursuant to 42 U.S.C. § 12205 and 29 U.S.C. § 794a(b).
Respectfully submitted,

Dated: September 27, 2013

By: /s/ Stephen F. Gold Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 215-627-7100 ext. 227

18

Case 2:13-cv-05670-AB Document 1 Filed 09/27/13 Page 19 of 19
By: /s/ Robin Resnick Robin Resnick PA Bar No. 46980 Disability Rights Network of PA 1315 Walnut Street, Suite 500 Philadelphia, PA 19107-4705 215-238-8070
By: /s/ Dynah Haubert Dynah Haubert PA Bar No. 313862 Disability Rights Network of PA 1414 North Cameron Street 2nd Floor Harrisburg, PA 17103 717-236-8110 Attorneys for Plaintiff
19

 
 Case 2:13-cv-05670-AB Document 11 Filed 10/28/13 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

PAULA SMITH, individually and on

:

behalf of similarly situated persons, :

:

Plaintiff,

: Civil Action No. 2:13-cv-5670-AB

:

v.

: Class Action

:

DEPARTMENT OF PUBLIC WELFARE :

OF THE COMMONWEALTH OF

:

PENNSYLVANIA; BEVERLY

:

MACKERETH, in her official capacity :

as Secretary of the Department of

:

Public Welfare of the Commonwealth :

of Pennsylvania,

:

:

Defendants. :

:

SECOND AMENDED COMPLAINT

I. PRELIMINARY STATEMENT

1. Plaintiff, Paula Smith, is a 56-year-old woman who has had

multiple sclerosis since 2006. Ms. Smith resides in a fully accessible

apartment with her 17-year-old daughter. Ms. Smith’s daughter must assist

her mother with her activities of daily living, including transferring to and

from her bed and her wheelchair, dressing, showering, and grooming.

2. Defendants administer a program, known as the “Act 150

Program,” to provide community-based attendant care services to

individuals with significant physical disabilities.

Case 2:13-cv-05670-AB Document 11 Filed 10/28/13 Page 2 of 19
3. Eligibility for the Act 150 Program is based solely on whether an individual needs attendant care services and is able to direct those services. There are no income or asset limits for eligibility, but Act 150 Program participants whose income exceeds 300% of the federal poverty level pay a weekly fee toward the cost of the services based on the amount of his or her income.
4. Plaintiff Smith is eligible for the Act 150 Program, but it has a waiting list of 316 people, which has remained relatively constant for two years.
5. Since Ms. Smith cannot receive services under the Act 150 Program, she must depend on her teenage daughter, who wishes to attend college and live on campus, for assistance with her activities of daily living. When her daughter goes to college, Ms. Smith will be forced to enter a nursing home.
6. Ms. Smith is not alone. Defendants only offer Pennsylvanians on the waiting list for the Act 150 Program attendant care services in segregated nursing facilities, not in the community which is the most integrated setting appropriate to their needs. This results in their unnecessary institutionalization or places them at serious risk of unnecessary institutionalization.
2

Case 2:13-cv-05670-AB Document 11 Filed 10/28/13 Page 3 of 19
7. Defendants’ failure to assure that Ms. Smith and others similarly situated can access community-based attendant care services through the Act 150 Program violates the integration mandates of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134, and Section 504 of the Rehabilitation Act (RA), 29 U.S.C. § 794.
8. Plaintiff Smith seeks declaratory and injunctive relief to allow her and others similarly situated to reside in the community rather than in institutions. II. JURISDICTION AND VENUE
9. The Court has jurisdiction over these claims pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §§ 1343(a)(3) and (4).
10. Plaintiff’s claims for declaratory and injunctive relief are authorized under 28 U.S.C. §§ 2201-02 and Fed. R. Civ. P. 65. Plaintiff’s causes of action for disability discrimination are authorized by 42 U.S.C. § 12133 and 29 U.S.C. § 794a.
11. Venue is proper under 28 U.S.C. § 1391(b). Defendants have offices located in this district, and Defendants’ actions in denying Plaintiff’s request for attendant care services took place in this district.
3

Case 2:13-cv-05670-AB Document 11 Filed 10/28/13 Page 4 of 19
III. PARTIES 12. Plaintiff Paula Smith is a 56-year-old woman who resides in
Philadelphia, Pennsylvania. 13. Defendant Department of Public Welfare (DPW) is the single-
state agency that administers the Medical Assistance Program in Pennsylvania, 42 U.S.C. § 1396a(a)(5) and 55 Pa. Code § 101.1(e), which includes funding for nursing facilities, and has the responsibility to establish and implement the Act 150 Program, 62 Pa. Cons. Stat. § 3054(a). DPW also has responsibility to assure that its programs, including the Medical Assistance Program and Act 150 Program, are administered in accordance with federal law, including the ADA and RA.
14. Defendant Beverly Mackereth is Secretary of Public Welfare of the Commonwealth of Pennsylvania. Defendant Mackereth is responsible to oversee and administer DPW and its programs, including Medical Assistance and the Act 150 Program, and to assure that they comply with federal law. Defendant Mackereth is sued in her official capacity only for actions and omissions under color of state law. IV. CLASS ACTION
15. Pursuant to Fed. R. Civ. P. 23(a) and (b)(2), Plaintiff Smith brings this action on behalf of herself and the following class of persons:
4

Case 2:13-cv-05670-AB Document 11 Filed 10/28/13 Page 5 of 19
All Pennsylvanians who are or will be placed on the waiting list for the Act 150 Program.
16. The class is so numerous that joinder of all its members is impracticable. There are approximately 316 people who are on the Act 150 Program waiting list. Based on information and belief, many of these people either are institutionalized or are at serious risk of institutionalization because they cannot access community-based attendant care services. Joinder is also impracticable because class members lack the knowledge and financial means to maintain individual actions.
17. There are questions of law or fact that are common to Ms. Smith and putative class members, including whether: (a) Defendants violate the ADA and RA by offering attendant care services to them only in segregated, institutional settings rather than the community; (b) Defendants have decreased the number of persons served by the Act 150 Program despite a waiting list; (c) Defendants have refused to use available funding or to request additional funding to provide services to individuals on the Act 150 Program’s waiting list or to use available funding to provide services to Plaintiff and class members; (d) Defendants’ policies and practices – including decreasing the number of persons served by the Act 150 Program, maintaining a waiting list for the Act 150 Program, and refusing to
5

Case 2:13-cv-05670-AB Document 11 Filed 10/28/13 Page 6 of 19
use available funding or seek additional funding to serve people on the waiting list – result in a lack of necessary community-based attendant care services so that individuals on the waiting list are unnecessarily institutionalized or at serious risk of unnecessary institutionalization; (e) Defendants fail to provide Ms. Smith and class members with meaningful choice of community-based long-term care alternatives to nursing facilities; and (f) Defendants have no plan, with timelines and benchmarks, to move people off of the Act 150 Program waiting list at a reasonable pace.
18. Ms. Smith’s claims are typical of the claims of putative class members. Ms. Smith, like all class members, is eligible for attendant care services in the Act 150 Program and has been placed on a waiting list for those services.
19. Ms. Smith will fairly represent and adequately protect the interests of members of the class as a whole. Ms. Smith has no interests antagonistic to those of other class members.
20. By filing this action, Ms. Smith has displayed an interest in vindicating her rights, as well as the claims of others who are similarly situated.
21. The relief sought by Ms. Smith will inure to the benefit of members of the class generally.
6

Case 2:13-cv-05670-AB Document 11 Filed 10/28/13 Page 7 of 19
22. Ms. Smith is represented by counsel who are skilled and knowledgeable about civil rights litigation, disability discrimination, practice and procedure in the federal courts, and the prosecution and management of class action litigation.
23. Defendants have acted or refused to act on grounds generally applicable to the class, thereby making final injunctive relief appropriate with respect to the class as a whole under Fed. R. Civ. P. 23(b)(2). V. FACTUAL ALLEGATIONS
24. Plaintiff, Paula Smith, is a 56-year-old woman with multiple sclerosis.
25. As a result of her impairment, Ms. Smith uses a motorized wheelchair for ambulation.
26. After Ms. Smith graduated from Dobbins High School, she received an Associate Degree from the Berean Institute.
27. Ms. Smith worked for the Navy Quarter Master as a billing clerk for a number of years and then worked for 17 years as a data support clerk for the Philadelphia Water Department until 2006 when her multiple sclerosis became too debilitating for her to continue working.
7

Case 2:13-cv-05670-AB Document 11 Filed 10/28/13 Page 8 of 19
28. Paula Smith is the grandmother of four grandchildren and the mother of four daughters, ages 32, 26 (twins) and 17. Only her youngest daughter, Faith C., currently resides at home.
29. In 2006, when she could no longer work due to her disability, Ms. Smith applied to receive attendant care services through the Attendant Care Waiver.
30. The Attendant Care Waiver is a Medical Assistance-funded Home and Community Based Services Waiver program administered by DPW’s Office of Long Term Living (OLTL). To be eligible for this or other HCBS Waiver programs, an individual’s income and resources cannot exceed limits established by the Medical Assistance Program.
31. Due to her disability, Ms. Smith needs attendant care services to provide her assistance with her daily living activities, including transferring to and from her wheelchair and bed, bathing, dressing, meal preparation, light housekeeping, laundry, and shopping.
32. DPW determined that Ms. Smith met the program and financial eligibility criteria for the Attendant Care Waiver and began receiving 35 hours a week of services in October, 2006 – 26 hours a week for basic attendant care services and 9 hours a week for ancillary services, such as shopping, laundry, light housekeeping, and changing linens.
8

Case 2:13-cv-05670-AB Document 11 Filed 10/28/13 Page 9 of 19
33. Sometime in late 2007, Ms. Smith became eligible for Social Security Disability Insurance (SSDI) benefits and began receiving about $1,100 a month in addition to her monthly pension of about $1,200. Ms. Smith’s increased income made her financially ineligible for the Attendant Care Waiver and resulted in her termination from that program.
34. Besides the HCBS Waiver programs, DPW’s OLTL administers the Act 150 Program.
35. The Act 150 Program, created by the Attendant Care Services Act, 62 Pa. Cons. Stat. Ann. § 3051 et seq., authorizes DPW to fund attendant care services for eligible individuals to provide them assistance with their activities of daily living and allow them to live independently in their own homes and communities rather than in institutions.
36. Unlike Medical Assistance programs, there are no income or asset requirements that limit eligibility for the Act 150 Program. Eligibility for the Act 150 Program is based solely on the applicant’s need for attendant care services and the ability to direct his or her services. Individuals whose income exceeds 300 percent of the federal poverty level, however, are required to contribute toward the cost of their services.
37. Ms. Smith was transferred to the Act 150 program at the time she was terminated from the Attendant Care Waiver and she continued to
9

Case 2:13-cv-05670-AB Document 11 Filed 10/28/13 Page 10 of 19
receive attendant care services for 35 hours a week. In 2008, she became unable to budget her limited income and to maintain her copayments for the Act 150 Program, and she had to leave the program.
38. Since late 2008, Plaintiff Smith has had to rely exclusively on her teenage daughter to assist her with many activities of daily living.
39. Ms. Smith toilets herself with the commode she keeps in her bedroom.
40. Although her right hand dexterity is poor, causing her to cut herself at times, Ms. Smith attempts to cook and prepare supper for her daughter and herself.
41. As a result of her multiple sclerosis and her impairments, Ms. Smith is presently fatigued all the time. When she tries to transfer on her own or even walk short distances, she falls sometimes and her daughter must lift her.
42. Ms. Smith wears incontinence pads because she is frequently incontinent and must stay wet and soiled until her daughter returns from school.
43. Ms. Smith’s teenage daughter, Faith C., wakes at 5 a.m. to help her mother with her morning activities of daily living and then leaves for
10

Case 2:13-cv-05670-AB Document 11 Filed 10/28/13 Page 11 of 19
school. After school she assists her mother with the remaining activities of daily living which are required.
44. Faith is a senior in high school. She plans to attend college, reside on campus, and not to continue to provide attendant care services for her mother.
45. Ms. Smith likes to visit Faith at her school, go to the movies and malls, have her grandchildren visit, and go out to restaurants.
46. Ms. Smith presently receives monthly SSDI benefits in the amount of $1,332 and a monthly pension from the Philadelphia Water Department in the amount of $1,220.44, which makes her financially ineligible for HCBS Waiver Programs.
47. In late 2009, Ms. Smith received skills training in Financial Management, Meals and Nutrition Skills, Health and Wellness from Liberty Resources, Inc., a non-profit organization that advocates for individuals with disabilities. She also participated in Accessing Public Transportation classes at Liberty Resources to learn how to access and ride public buses.
48. Ms. Smith applied for Act 150 attendant care services approximately two years ago with the assistance of Liberty Resources. On several occasions in the last two years, she has contacted Maximus, the
11

Case 2:13-cv-05670-AB Document 11 Filed 10/28/13 Page 12 of 19
enrollment broker for the Act 150 Program, but has not received any indication when she will receive attendant care services.
49. Although Ms. Smith applied for and is eligible to receive community-based attendant care services through the Act 150 Program, she will not be able to secure those services because there is a waiting list for that program.
50. Since at least Fiscal Year 2007-08, DPW has decreased the number of persons who received attendant care services under the Act 150 Program. In Fiscal Year 2007-08, there were 2,479 budgeted slots available. In Fiscal Year 2011-12, there were budgeted slots for 2,277 individuals. In Fiscal Year 2012-13, there were budgeted slots to serve only 2,016 individuals.
51. As the number of budgeted slots for the Act 150 Program has decreased, the waiting list for the Program has grown. In December 2012, there were 294 individuals on the Act 150 Program waiting list. There currently are approximately 316 individuals on that waiting list.
52. DPW has stated that there is a two-year waiting list for the Act 150 Program.
12

Case 2:13-cv-05670-AB Document 11 Filed 10/28/13 Page 13 of 19
53. DPW has stated that it will continue to serve individuals who currently participate in the Act 150 Program, but will not serve any additional individuals in the current Fiscal Year, 2013-14.
54. On information and belief, DPW knows or should know that there are individuals, like Ms. Smith, on the Act 150 Program waiting list who are at serious risk of institutionalization if they cannot access attendant care services in the community through that program.
55. DPW has not sought funding to expand the Act 150 Program and, to the contrary, has decreased funding for it despite the waiting list and the fact that individuals on that waiting list are unnecessarily institutionalized or at risk of unnecessary institutionalization.
56. On information and belief, the cost of funding attendant care services through the Act 150 Program to Ms. Smith and putative class members would be less than the cost to DPW’s Medical Assistance program of providing them with attendant care services in nursing. VI. CLAIMS
A. Count I - Violation of Title II of the ADA 57. Paragraphs 1 through 56 are incorporated by reference. This Count is brought solely against Defendant Mackereth in her official capacity for acts and omissions under color of state law.
13

Case 2:13-cv-05670-AB Document 11 Filed 10/28/13 Page 14 of 19
58. Ms. Smith and putative class members are individuals with physical impairments that substantially limit one or more major life activities, including walking and caring for themselves. As such, they are persons with disabilities protected by the ADA. 42 U.S.C. § 12102(1)(A).
59. Ms. Smith and putative class members are eligible for the Act 150 Program and, as such, are qualified persons with disabilities under the ADA. 42 U.S.C. § 12131(2).
60. DPW, administered by Defendant Mackereth, is a public entity subject to the requirements of Title II of the ADA. 42 U.S.C. § 12131(1).
61. Defendant Mackereth violates Title II of the ADA, 42 U.S.C. § 12132 and 28 C.F.R. § 35.130(d), by failing to offer Ms. Smith and putative class members attendant care services in the community, which is the most integrated setting appropriate to their needs, and, instead, offering them such services only in segregated institutions and by either subjecting them to unnecessary institutionalization or placing them at serious risk of unnecessary institutionalization.
62. Defendant Mackereth violates Title II of the ADA, 42 U.S.C. § 12132 and 28 C.F.R. § 35.130(b)(3), by using methods of administration that subject Ms. Smith and putative class members to discrimination through actual or serious risk of unnecessary segregation and
14

Case 2:13-cv-05670-AB Document 11 Filed 10/28/13 Page 15 of 19
institutionalization, including, but not limited to: (a) failing to assess whether persons on the Act 150 Program waiting list are institutionalized or at serious risk of institutionalization; (b) failing to use available funding to provide services to Ms. Smith and putative class members through the Act 150 Program; (c) allowing the Act 150 Program to serve fewer and fewer people despite the increasing need for such services; and (d) failing to have a plan with specific and concrete benchmarks and timelines within which DPW will provide Ms. Smith and putative class members with community-based attendant care services through the Act 150 Program.
B. Count II - Violation of Section 504 of the RA 63. Paragraphs 1 through 62 are incorporated by reference. This Count is brought solely against Defendant DPW. 64. Ms. Smith and putative class members are individuals with physical impairments that substantially limit one or more major life activities, including walking and caring for themselves. As such, they are persons with disabilities protected by Section 504 of the RA. 29 U.S.C. § 705(20)(B). 65. Ms. Smith and putative class members are eligible for the Act 150 Program and, as such, are qualified persons with disabilities under Section 504 of the RA.
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66. Defendant DPW is a recipient of Federal financial assistance and, as such, is subject to the requirements of Section 504 of the RA. 29 U.S.C. § 794(b).
67. Defendant DPW violates Section 504 of the RA, 29 U.S.C. § 794 and 28 C.F.R. § 41.51(d), by failing to offer Ms. Smith and putative class members attendant care services in the community, which is the most integrated setting appropriate to their needs, and, instead, offering them such services only in segregated institutions and by either subjecting them to unnecessary institutionalization or placing them at serious risk of unnecessary institutionalization.
68. Defendant DPW violates Section 504 of the RA, 29 U.S.C. § 794 and 28 C.F.R. § 41.51(b)(3), by using methods of administration that subject Ms. Smith and putative class members to discrimination through actual or serious risk of unnecessary segregation and institutionalization, including, but not limited to: (a) failing to assess whether persons on the Act 150 Program waiting list are institutionalized or at serious risk of institutionalization; (b) failing to use available funding to provide services to Ms. Smith and putative class members through the Act 150 Program; (c) allowing the Act 150 Program to serve fewer and fewer people despite the increasing need for such services; and (d) failing to have a plan with
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Case 2:13-cv-05670-AB Document 11 Filed 10/28/13 Page 17 of 19

specific and concrete benchmarks and timelines within which DPW will provide Ms. Smith and putative class members with community-based attendant care services through the Act 150 Program. VI. RELIEF REQUESTED
69. Plaintiff Smith respectfully requests that the Court grant the following relief:
a. exercise jurisdiction over this action; b. certify this case to proceed as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2); c. issue appropriate declaratory and injunctive relief; and d. grant such other relief as may be appropriate, including awarding reasonable attorneys’ fees, litigation expenses, and costs pursuant to 42 U.S.C. § 12205 and 29 U.S.C. § 794a(b).
Respectfully submitted,

Dated: October 28, 2013

By: /s/ Stephen F. Gold Stephen F. Gold PA Bar No. 09880 1709 Benjamin Franklin Parkway Second Floor Philadelphia, PA 19103 215-627-7100 ext. 227

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Case 2:13-cv-05670-AB Document 11 Filed 10/28/13 Page 18 of 19
By: /s/ Robin Resnick Robin Resnick PA Bar No. 46980 Disability Rights Network of PA 1315 Walnut Street, Suite 500 Philadelphia, PA 19107-4705 215-238-8070
By: /s/ Dynah Haubert Dynah Haubert PA Bar No. 313862 Disability Rights Network of PA 1414 North Cameron St., 2nd Floor Harrisburg, PA 17103 717-236-8110 Attorneys for Plaintiffs
18

Case 2:13-cv-05670-AB Document 11 Filed 10/28/13 Page 19 of 19
CERTIFICATE OF SERVICE I, Robin Resnick, hereby certify that the foregoing Second Amended Complaint was served on the following by first class mail postage prepaid and email on the following counsel on October 28, 2013:
Gregory F. Cirillo, Esquire John J. Higson, Esquire Joshua D. Wolson, Esquire
Dilworth Paxson LLP 1500 Market Street, Suite 3500E
Philadelphia, PA 19102
/s/ Robin Resnick Robin Resnick

 
 Case 2:13-cv-05670-AB Document 37 Filed 03/19/14 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PAULA SMITH, individually and on behalf :

of similarly situated persons,

:

Plaintiff, :

: Civil Action No. 2:13-cv-5670-AB

v.

:

:

DEPARTMENT OF PUBLIC WELFARE :

OF THE COMMONWEALTH OF

:

PENNSYLVANIA; BEVERLY

:

MACKERETH, in her official capacity as :

Secretary of the Department of Public

:

Welfare of the Commonwealth of

:

Pennsylvania

:

:

:

MOTION FOR PARTIAL SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 56 and this Court’s Preferred Procedure for

such Motions, Defendants Department of Public Welfare of the Commonwealth of Pennsylvania

(“DPW”) and Beverly Mackereth in her official capacity as Secretary of the Department of

Public Welfare of the Commonwealth of Pennsylvania (collectively with DPW, “Defendants”)

respectfully move this Court for an Order granting partial summary judgment.

Pursuant to this Court’s Preferred Procedure, Defendants state as follows:

(1) This Motion is directed to Plaintiff’s burden to demonstrate that under the

Americans With Disabilities Act (“ADA”) and the Rehabilitation Act – the claims asserted in

Counts I and II of Plaintiff’s Second Amended Complaint (“SAC”) – there are reasonable

modifications available to DPW in order to accommodate Plaintiff’s demand for state-funded

services. In particular, the Motion challenges Plaintiff’s theory that the Court can require DPW

to alter its financial eligibility standards for Medicaid when Congress has expressly granted

Case 2:13-cv-05670-AB Document 37 Filed 03/19/14 Page 2 of 3

DPW the discretion to adopt or not adopt the programs in question. The Motion raises two

primary arguments:

(a) Because Plaintiff’s case focuses exclusively on DPW’s administration of a

state-funded program called “Act 150,” possible modifications to the joint federal/state Medicaid

program are irrelevant; and

(b) Basic principles of statutory interpretation demonstrate that Congress did

not intend the ADA or the Rehabilitation Act to constrain the discretion that Congress granted to

the states to adopt or not to adopt the policies in question.

(2) There is no legally sufficient evidentiary basis to support the issues identified

above.

(3) Defendants hereby request that the Court enter partial summary judgment

pursuant to Fed. R. Civ. P. 56(c).

WHEREFORE, for the reasons stated herein, and in the accompanying Memorandum of

Law, which is incorporated herein by reference, Defendants request that the Court grant this

Motion and enter partial summary judgment.

Respectfully submitted,

/s/ Joshua D. Wolson
Gregory F. Cirillo (PA ID No. 46878) John J. Higson (PA ID No. 80720) Joshua D. Wolson (PA ID No. 84988) DILWORTH PAXSON LLP 1500 Market St., Suite 3500E Philadelphia, PA 19102 (215) 575-7000 (telephone) (215) 575-7200 (facsimile)

Dated: March 19, 2014

Counsel for Defendant

116529713_1

2

Case 2:13-cv-05670-AB Document 37 Filed 03/19/14 Page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that on the 19th day of March, 2014, I caused the foregoing Motion For Partial Summary Judgment to be filed via the Court’s ECF system, which provided notice and access to the following:
Stephen F. Gold 1709 Benjamin Franklin Parkway
Second Floor Philadelphia, PA 19103
Robin Resnick Disability Rights Network of PA
1315 Walnut Street, Suite 500 Philadelphia, PA 19107 Dynah Haubert
Disability Rights Network of PA 1414 North Cameron Street Harrisburg, PA 17103 Counsel for Plaintiff /s/ Joshua D. Wolson
116529713_1

 
 Case 2:13-cv-05670-AB Document 80 Filed 06/11/15 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

PAULA SMITH, individually and on

:

behalf of similarly situated persons, :

:

Plaintiff,

: Civil Action No. 2:13-cv-5670-AB

:

v.

: Class Action

:

DEPARTMENT OF HUMAN SERVICES :

OF THE COMMONWEALTH OF

:

PENNSYLVANIA, et al.,

:

:

Defendants. :

:

STIPULATION OF VOLUNTARY DISMISSAL

Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), the

parties, through their counsel, stipulate to Plaintiff’s voluntary dismissal of

this case without prejudice.

/s/ Kelly Darr Kelly Darr – PA 80909 Disability Rights Network of PA 1315 Walnut Street, Suite 500 Philadelphia, PA 19107-4705 (215) 238-8070
/s/ Stephen F. Gold Stephen F. Gold – PA 09880 1709 Benjamin Franklin Pkwy., 2nd Fl. Philadelphia, PA 19103 (267) 546-1307

/s/ John J. Higson John J. Higson – PA 80720 Joshua D. Wolson – PA 84988 Dilworth Paxson LLP 1500 Market Street, Suite 3500E Philadelphia, PA 19102 (215) 575-7100
Counsel for Defendants

Counsel for Plaintiff

Case 2:13-cv-05670-AB Document 80 Filed 06/11/15 Page 2 of 2
CERTIFICATE OF SERVICE I, Kelly Darr, hereby certify that the foregoing Stipulation of Dismissal was filed on June 11, 2015 with the Court’s ECF system and is available for viewing and downloading from the ECF system by the following counsel who consented to electronic service:
Gregory F. Cirillo, Esquire John J. Higson, Esquire Joshua D. Wolson, Esquire
Dilworth Paxson LLP 1500 Market Street, Suite 3500E
Philadelphia, PA 19102
/s/ Kelly Darr Kelly Darr