In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1351

MICHAEL AMUNDSON, by his guardians Ella and

Richard Amundson, et al.,

Plaintiffs-Appellants,

v.

WISCONSIN DEPARTMENT OF HEALTH SERVICES, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 12-cv-609-bbc—Barbara B. Crabb, Judge.

ARGUED JUNE 5, 2013—DECIDED JULY 10, 2013

Before EASTERBROOK, Chief Judge, and BAUER and

HAMILTON, Circuit Judges.

EASTERBROOK, Chief Judge. In 2011 the State of

Wisconsin decided to save money by reducing the subsidies for the Wisconsin Care Program, which among

other things funds disabled persons who live in group

homes. (Wisconsin makes block grants to organizations such as Community Health Partnership, Inc.,
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which administer the programs. Although these intermediaries are responsible for many choices about how to

allocate available funds, we simplify this opinion by

assuming that the state itself made all of the decisions.) The

cuts, which took effect in January 2012, fell most heavily

on groups whose care is most costly. The plaintiffs in

this suit are developmentally disabled and bore the

largest cuts. Persons who had been receiving smaller

payments bore smaller cuts; and for some (such as those

classified by one intermediary as frail elderly) per capita

payments increased. Plaintiffs contend that making larger

absolute cuts for persons whose care is most expensive

violates both the Rehabilitation Act and the Americans

with Disabilities Act. They also contend that reduction

in the state’s payments increases the risk that they will

be moved from group homes to institutions, which

they say would violate both statutes.

Plaintiffs asked the district court to issue an injunction that would require Wisconsin to restore the payment schedule that was in force until 2012. A request for

money from the state naturally led to questions about

the scope of state sovereign immunity under the

eleventh amendment. The district judge did not see

any problem with the claim based on the Rehabilitation

Act, for states have waived their immunity as a condition of receiving federal funds. See Stanley v. Litscher,

213 F.3d 340, 344 (7th Cir. 2000). But the ADA does

not require states to give up their immunity in trade for

grants. The Supreme Court has held that the portions of

the ADA that are not designed to implement disabled

persons’ constitutional rights are not based on §5 of the
No. 13-1351 3

fourteenth amendment and thus cannot be used to override states’ sovereign immunity. Compare University of

Alabama v. Garrett, 531 U.S. 356 (2001), with Tennessee v.

Lane, 541 U.S. 509 (2004). The district court concluded

that the provisions of the ADA that plaintiffs invoke

do not concern the Constitution and therefore are not §5

legislation. That left the possibility of prospective relief

against state officials under Ex parte Young, 209 U.S. 123

(1908). But the district court held that an order to pay

money is never proper under Ex parte Young and that

the ADA therefore drops out of the case.

We doubt that this issue matters. Throughout its

opinion, the district court stressed that the Rehabilitation Act and the ADA are substantively identical with

respect to plaintiffs’ claims. See Jaros v. Illinois Department

of Corrections, 684 F.3d 667, 671–72 (7th Cir. 2012). None

of the litigants argues otherwise in this court. This

means that the Rehabilitation Act by itself affords plaintiffs any relief to which they may be entitled; claims

under the ADA become academic. At all events, we

record our disagreement with the district court’s conclusion about the propriety of relief under Ex parte Young.

Although “Ex parte Young cannot be used to obtain an

injunction requiring the payment of funds from the

State’s treasury,” Virginia Office for Protection & Advocacy

v. Stewart, 131 S. Ct. 1632, 1639 (2011); see also Edelman v.

Jordan, 415 U.S. 651 (1974), other forms of relief are possible.

For example, an injunction might require the state

to treat developmentally disabled persons no worse than
4 No. 13-1351

persons with other disabilities—for example, by making

the same reductions across the board. That is not what

plaintiffs seek (they would prefer to have their 2011

benefits restored), but it would eliminate discrimination. Or a district judge might spell out the minimum

housing required by federal law and leave it to

Wisconsin to determine how to fulfil its obligations. That

compliance with an injunction requiring performance,

rather than payment, may turn out to be costly has

never been an objection to the command to implement

federal law. See, e.g., Ameritech Corp. v. McCann, 297

F.3d 582, 587 (7th Cir. 2002). “In determining whether

the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges

an ongoing violation of federal law and seeks relief properly characterized as prospective.’ ” Verizon Maryland

Inc. v. Public Service Commission of Maryland, 535 U.S.

635, 645 (2002).

To the plaintiffs’ claims. We start with their contention

that the rates now in force are too low to allow them

to continue living in group homes with non-disabled

persons. If they must move to institutions housing only

the disabled, plaintiffs contend, that would violate 42

U.S.C. §12132 and implementing regulations, which are

commonly understood to limit states’ ability to remove

disabled persons from settings generally accessible by

the public. We say “limit” rather than “prohibit” because

although Olmstead v. L.C., 527 U.S. 581 (1999), held that

institutionalization can be a form of “discrimination”

prohibited by §12132, it added that a state may be able
No. 13-1351 5

to justify institutional treatment if “the resources

available to the State” are limited. 527 U.S. at 587. That’s

the sort of justification Wisconsin invokes.

The district court did not reach the merits of plaintiffs’

claim, however, because it deemed the suit premature.

None of the plaintiffs has been placed in an institution.

Indeed, plaintiffs do not allege that any developmentally

disabled person in Wisconsin has been moved, involuntarily, from group to institutional care. Plaintiffs do

allege that some of their number have been required to

leave group settings where they would have preferred

to remain, but they do not allege inability to find

another group home willing to accept the level of reimbursement that the Wisconsin Care Program now offers.

Wisconsin believes that the changes it has made will

reduce the cost of care by excluding the highest-cost

providers from the program, but without landing any

developmentally disabled person in an institution. If

that’s so, Wisconsin has fulfilled its obligations under

federal law, no matter how much plaintiffs prefer the

comfort and amenities of the more-expensive group

homes. And whether that is so, the district court concluded, cannot be determined without more experience under the current rates. Plaintiffs fear the

worst, but their fears may be unwarranted.

We agree with the district court that this aspect of

the suit is unripe. Ripeness is a matter of timing: the

judiciary should not act prematurely or unnecessarily. If

plaintiffs’ fears come to pass, they can return to court.

If the fears do not come to pass, however, there is no
6 No. 13-1351

legal injury, and an opinion today would be advisory.

Wisconsin maintains that it has safeguards in place that

will prevent any plaintiff from being transferred to

an institution. The complaint does not give a sufficient

reason to think that these will fail.

By contrast, plaintiffs’ contention that they are being

treated worse than persons with other disabilities is

ripe. If Wisconsin buys the best available care

for persons with visual impairments, but pays only for

mediocre care for the developmentally disabled, then

plaintiffs have a theory of discrimination even though

all of them remain in group homes. The district court

stopped here, however, concluding in reliance on Grzan

v. Charter Hospital, 104 F.3d 116 (7th Cir. 1997), that discrimination among disabled persons never violates the

ADA or the Rehabilitation Act. See also, e.g., Mallett v.

Wisconsin Division of Vocational Rehabilitation, 130 F.3d

1245 (7th Cir. 1997); EEOC v. CNA Insurance Cos., 96

F.3d 1039, 1044 (7th Cir. 1996). Grzan held that a

disabled person can show forbidden discrimination

only by comparison with a non-disabled person. Plaintiffs

concede that Grzan dooms this aspect of their suit but

ask us to modify or overrule Grzan in light of the

Supreme Court’s later decision in Olmstead. They

observe that after Olmstead several appellate courts

have concluded that discrimination among persons with

different disabilities can state a good claim. See, e.g.,

Henrietta D. v. Bloomberg, 331 F.3d 261, 274 (2d Cir. 2003);

C.O. v. Portland Public Schools, 679 F.3d 1162, 1169 (9th

Cir. 2012); Johnson v. K Mart Corp., 273 F.3d 1035, 1053–54

(11th Cir. 2001).
No. 13-1351 7

Olmstead indeed supersedes Grzan, for two reasons.

First, the Justices observed that they have allowed intraclass claims of discrimination. Olmstead gives as an example O’Connor v. Consolidated Coin Caterers Corp., 517

U.S. 308, 312 (1996), which concluded that discrimination

against older persons within the class of all persons

protected by the Age Discrimination in Employment

Act—say, favoring 45 year olds over 60 year olds—could

violate that statute. Olmstead, 527 U.S. at 598 n.10.

Second, and more important, the Court held that the

word “discrimination” as used in §12132 includes not

only disparate treatment of comparably situated persons

but also undue institutionalization of disabled persons,

no matter how anyone else is treated. 527 U.S. at 597–603.

Grzan thought that “discrimination” requires a comparison to the treatment of someone outside the

protected class; Olmstead holds otherwise.

This is as far as plaintiffs get, however, because they

have not offered any comparison group or any standard

by which “worse treatment” could be identified. Before

the change made in 2011, developmentally disabled

persons received greater subsidies than any other subcategory of the disabled. The 2011 revisions cut their

subsidy, but plaintiffs do not contend that they are now

treated worse than some other set of disabled persons.

Suppose it costs at least $50,000 a year to provide for

care of a developmentally disabled person in a group

home and more (say, $75,000) to pay for top-quality

group care. Suppose that it costs only $40,000 a year to

provide for care of a blind person in a group home. Finally,
8 No. 13-1351

suppose that until 2011 Wisconsin was paying $75,000

a year for each developmentally disabled person and

$40,000 a year for each blind person, but that in 2011

the payments were cut to $50,000 and $40,000 for these

groups. Although one group lost money and the other

did not, this would not be discrimination against the

developmentally disabled; it would instead be the end

of discrimination in favor of the developmentally disabled.

If care for dyslexia costs only $5,000 a year for several

years, then nothing after training is completed, it would

amount to “discrimination” to provide greater payments for dyslexics than for the developmentally disabled. But plaintiffs do not say that the amount provided

for their care is below what Wisconsin provides

for some other disability that is less expensive to cope

with. They do not even say that they are receiving a

lower percentage of the cost of their care than persons

with other kinds of disabilities do.

Instead, plaintiffs’ theory is that any reduction that

leaves them unable to remain in group homes that their

physicians or other providers think the optimal placement for them is forbidden “discrimination.” That is

untenable, unless the state is providing other groups

of disabled persons with whatever care, in whatever

location, their physicians most favor, and plaintiffs

do not contend this. Plaintiffs tell us nothing about

what kind of care persons with other disabilities

receive in Wisconsin. Their sole argument is that

Wisconsin reduced their own subsidies. Apart from the

possibility (which is unripe) that the reduction may lead
No. 13-1351 9

to undue institutionalization, this is not a theory of

“discrimination” at all. It is a claim of absolute entitlement. Perhaps such a claim could be made under the

Medicaid Act (a principal source of funds for the Wisconsin Care Program), but plaintiffs told the district

court, and repeated at oral argument on appeal, that

they are not contending that Wisconsin has violated the

duties it assumed when joining the Medicaid program.

In sum, plaintiffs’ contention that Wisconsin’s decision

will lead to their institutionalization is unripe, and their

contention that Wisconsin has discriminated in some

other way founders for lack of a useful theory of “discrimination.” The judgment of the district court accordingly is affirmed.

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