PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ NANCY MARKS, Plaintiff - Appellant,

v. COLORADO DEPA RTMENT OF CORRECTIONS; COLORADO DIVISION OF CRIMINAL JUSTICE; SUSAN KELLER, Community Parole Office, Colorado Department of Corrections, in her official capacity; RICK RAEMISCH, Executive Di rector Colorado Department of Corrections, in his official capacity, Defendants - Appellees.

------------------------------ DISABILITY LAW COLORADO; COLORADO CROSS-DISABILITY COALITION; DISABILITY RIGHTS CENTER OF KANSAS; DISABILITY RIGHTS ADVOCATES; DISABILITY RIGHTS EDUCATION AND DEFENSE FUND; AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF COLORADO; AMERICAN CIVIL LIBERTIES UNION OF NEW MEXICO; AMERICAN CIVIL LIBERTIES UNION OF UTAH; AMERICAN CIVIL LIBERTIES UNION OF KANSAS; AMERICAN CIVIL LIBERTIES UNION OF OKLAHOMA; AMERICAN CIVIL LIBERTIES UNION No. 19-1114 (D.C. No. 1:14- CV-01577-RPM) (D. Colo.) FILED United States Court of Appeals Tenth Circuit 

### September 18, 2020 Christopher M. Wolpert Clerk of Court2 OF WYOMING; CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER, Amici Curiae.

________________ _________________ ORDER

________________ _________________ Before BACHARACH and CARSON , * Circuit Judges.

________________ _________________ This matter is before the court on the Appellees’ Petition for Rehearing En Banc (“Petition”). As an initial matter, we sua sponte grant panel rehearing only to the extent of the changes to the original opinion that are reflected in the attached revised opinion. The original opinion is withdrawn and replac ed by the attached revised opinion. Because the revised opinion contains on ly non-substantive changes th at do not affect the outcome of this appeal, it shall be filed nunc pro tunc to the date the origin al opinion was filed. Appellees may not file a second or successive rehearing petition. See 10th Cir. R. 40.3. The Petition was transmitted to all judges of the court who are in regular active service. As no member of the panel and no ju dge in regular active service requested that the court be polled, the request for en banc review is denied. See Fed. R. App. P. 35(f).

* The Honorable Monroe G. McKay particip ated earlier as a panel member, but he passed away before the issuance of this opin ion and has not participated in the decision. “The practice of this court permits the remain ing two panel judges if in agreement to act as a quorum in resolving the appeal.” United States v. Wiles , 106 F.3d 1516, 1516 n.* (10th Cir. 1997); see 28 U.S.C. § 46(d) (“A majority of the number of judges authorized to constitute a court or panel thereo f . . . shall constitute a quorum.”).3 The July 14, 2020 Unopposed Motion for Leave to F ile Brief of Amici Curiae in Opposition to Petition fo r Rehearing En Banc is granted.

Entered for the Court

CHRISTOPHER M. WOLPERT, ClerkPUBLISH
UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

______________________ _________________ NANCY MARKS,
Pl aintiff - Appellant,

v. COLORADO DEPARTMENT OF CORRECTIONS; COLORADO DIVISION OF CRIMINAL JUSTICE; SUSAN KELLER, Community Parole Office, Colorado Department of Corrections, in her official capacity; RICK RAEMISCH, Executive Dir ector Colorado Department of Corrections, in his official capacity,
De fendants - Appellees.

____________________ ______________ DISABILITY LAW COLORADO; COLORADO CROSS-DISABILITY COALITION; DISABILITY RIGHTS CENTER OF KANSAS; DISABILITY RIGHTS ADVOCATES; DISABILITY RIGHTS EDUCATION AND DEFENSE FUND; AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF Case No. 19-1114 FILED United States Court of Appeals Tenth Circuit 

### May 12, 2020 Christopher M. Wolpert Clerk of Court2 COLORADO; AMERICAN CIVIL LIBERTIES UNION OF NEW MEXICO; AMERICAN CIVIL LIBERTIES UNION OF UTAH; AMERICAN CIVIL LIBERTIES UNION OF KANSAS; AMERICAN CIVIL LIBERTIES UNION OF OKLAHOMA; AMERICAN CIVIL LIBERTIES UNION OF WYOMING; CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER, Amici Curiae.

______________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1: 14-CV-01577-RPM)

______________________ _________________ Michael Fairhurst (David Lane, with hi m on the briefs), Killmer, Lane & Newman LLP, Denver, Colorado, on behalf of the Plaintiff-Appellant. Cathern H. Smith, Assistant Attorney General (Philip J. Weiser, Attorney General for the State of Colorado, with her on the brief), Denver, Colorado, on behalf of the Defendants-Appellees. Amy Farr Robertson, Co-Executive Director, Civil Rights Education and Enforcement Center, Denver, Colorado , and Claudia Center, Senior Staff Attorney, Disability Rights Program, American Civi l Liberties Union, San Francisco, California, filed an Amici Curiae brief, in support of Appellant.

____________________ ________________ Before BACHARACH and CARSON , * Circuit Judges.

* The Honorable Monroe G. McKay participated earlier as a panel member, but he passed away before the issuance of this opinion and has not participated in the decision. “The practice of this court permits the3 ____________________ ________________ BACHARACH , Circuit Judge.

____________________ ________________ Ms. Nancy Marks was serving a prison term in Colorado when she entered a community corrections program operated by Intervention Community Corrections Se rvices. To stay in th e program, Ms. Marks needed to remain employed. But while participating in the program, she aggravated a previous disability, and Intervention deemed her unable to work. So Intervention terminated Ms . Marks from the program and returned her to prison. (This is called “regression” to prison.) Ms. Marks sued, blaming her regre ssion on two Co lorado agencies: the Colorado Department of Corre ctions (CDOC) and the Colorado Department of Criminal Justice (CDCJ). 1 In the suit, Ms. Marks sought damages and prospective relief based on

 violations of the Americans with Disabilities Act and the Rehabilitation Act and

 a denial of equal protection.
remaining two panel judges if in agre ement to act as a quorum in resolving the appeal.” United States v. Wiles , 106 F.3d 1516, 1516 n.* (10th Cir. 1997); see 28 U.S.C. § 46(d) (“A majority of the number of judges authorized to constitute a court or panel thereo f . . . shall constitute a quorum.”).

1 She also sued Intervention and Jefferson County, but the appeal involves only the claims against th e CDOC and CDCJ (including officialcapacity claims against two CDOC officials). See n.3, below.4 The district court dismissed the clai ms for prospective relief as moot and granted summary judgm ent to the CDOC and CDCJ on the remaining claims on grounds that

 the Rehabilitation Act did not apply because Interven tion had not received fede ral funding,

 neither the CDOC nor the CDCJ could incur liab ility under the Americans with Disabilities Ac t or Rehabilitation Act for Intervention’s d ecision to regress Ms. Marks, and

 the equal-protection claim failed because Ms. Marks did not show that the regressi on decision had lack ed a rational basis. We affirm in part and reverse in pa rt. We agree with the district court that (1) the claims for prospective relief were moot and (2) neither the CDOC nor CDCJ violated Ms. Marks’s right to equal protection. But we reverse the award of summary judgm ent on the claims involving the Rehabilitation Act and Americans with Disabilities Act. On these claims, the district court made two errors. First, the court mistakenly conc luded that the Re habilitation Act didn’t apply be cause Intervention hadn’t received fe deral funding. The court should have consid ered whether th e federal government had funded the CDOC and CDCJ, not Intervention. Second, the court mistakenly fo cused on whethe r the CDOC and CDCJ could incur liabilit y under the Rehabilita tion Act and Americans with Disabilities Act for a regressi on decision unila terally made by5 Intervention. This focus reflects a misunderstandi ng of Ms. Marks’s claim and the statutes. The stat utes prohibit pub lic and federall y funded entities from discriminating against disabled persons in programs like community corrections. These prohib itions apply regardless of whether the entities operate the programs dire ctly or indirectly. So the CDOC and CDCJ could incur liability for disabi lity discrimination by operating the program through Inte rvention. 1. The Colorado Community Corrections System In Colorado, local gov ernments operate community corrections programs under state ove rsight. Colo. Rev. St at. §§ 17-27-101, 17-27- 108(1)–(2) (2013). Co lorado provides this oversig ht through th e CDOC and CDCJ, which set standards, administ er contracts with local governments and other providers of community corrections, and audit the facilities. Id. § 17-27-108(1)–(2). Under state oversight, localities can enter contracts to operate community corrections programs. Id. § 17-27-103(1). With this authority, Jefferson County entered into a contract with CDOC and the Board of Commissioners entered into a co ntract with the CDCJ. In turn, Jefferson County contracted with Interventi on to run the community corrections program where Ms. Marks was placed.6 The CDCJ contract specified that any subcontractors had to adhere to the CDCJ’s standards. 2
2. Aggravation of Ms. Mark s’s Injury and Her Re gression to Prison Ms. Marks suffers from spinal stenos is, which limits her ability to walk and requires her to use a wheelchair. Wh ile participating in community corrections, she fell in the shower and aggravated her disability. The incident prompted Ms. Marks’s physician to send two letters to Intervention. The first letter described Ms. Marks’s injuries, told

2 State law also required communit y corrections programs to satisfy the CDCJ’s standards. Colo. Re v. Stat. § 17-27 -103(4) (2013).7 Intervention to place her on complete bedres t for two weeks, and recommended physical therapy. The second letter indicated that Ms. Marks’s treatment had been unsuccessful , that she should co ntinue bedrest, and that she was disabled. Although Ms. Marks alleges that sh e could have co ntinued working despite her disability, Intervention decided that she couldn’t and terminated her fr om the program: Six of the eleven Conditions of Placement require physical activity on the part of the client: one of the more important conditions is that she is empl oyed at a phone location. [Ms.] Marks’s medical condition s make it apparent that she will not be able to obtain empl oyment in the foreseea ble future, as is required by the ICCS re sidential program. . . . ICCS has rejected placement after acceptance as he r medical conditi ons no longer make her appropriate to remain in the ICCS residential program. Appellant’s App’x, vol. 2, at 401. Ms. Marks co mpleted her sentence in prison rather than in the community corrections program. 3. Mootness of the Claims for Prospective Relief In part, Ms. Marks sought

 a declaration that her rights ha d been violated under Titles II and III of the Americans with Di sabilities Act, Section 504 of the Rehabilitation Act, and the Constitution,

 an injunction against future discrimination, and

 an injunction ordering the CDOC and CDCJ to reasonably accommodate her disability.8 Appellant’s App’x, vol. 1, at 47–49. 3
The district court dismissed the clai ms for prospective relief as moot, reasoning that Ms. Ma rks had completed her sentence. On appeal, Ms. Marks invokes an exception to mootness, argu ing that the defendants’ conduct was capable of repetition yet evading review. We engage in de novo review of Ms. Marks’s challenge to the determination of mootness. See Rio Grande Silvery Minnow v. Bureau of Reclamation , 601 F.3d 1096, 1109 (10th Cir. 2010). Exercising de novo review, we agree that the claims for prospective relief are moot. Federal jurisdiction exists only if the court could grant relief affecting the plaintiff’s rights. See Preiser v. Newkirk , 422 U.S. 395, 401 (1975) (noting that courts may not “decide questions that cannot affect the rights of litigants in the case before th em” (quoting North Carolina v.
Rice , 404 U.S. 244, 246 (1971))). The gr ounds for jurisdic tion must exist throughout the litigation, even as circumstances change. See Jordan v.
Sosa , 654 F.3d 1012, 1024 (10th Cir. 2011). When circumst ances change and the court can no longer affect the plaintiff’s rights, the case ordinarily becomes moot. Id.

3 Though Ms. Marks also sued Jefferson County and In tervention, she later stipulated to dismissal of the claims against these parties. See n.1, above.9 An exception exists wh en the wrongdoing is “c apable of repetition yet evading review.” Ind v. Colo. Dep’t of Corrs. , 801 F.3d 1209, 1215 (10th Cir. 2015). This ex ception is “narrow” and “only to be used in exceptional situations.” Jordan , 654 F.3d at 1034–35 (quoting Chihuahuan Grasslands Allian ce v. Kempthorne , 545 F.3d 884, 892 (10th Cir. 2008), and McAlpine v. Thompson , 187 F.3d 1213, 1216 (10th Cir. 1999)). The plaintiff invoking th e exception bears th e burden of proof. Id. at 1035. To satisfy this burden, Ms. Marks must establish that

 the challenged action ended too quickly to be fully litigated and

 “a reasonable expectation” exis ts for Ms. Marks to again experience the same misconduct.
Id. (quoting Weinstein v. Bradford , 423 U.S. 147, 149 (1975) (per curiam)). We assume without deci ding that Ms. Marks has proven that her regression ended too quickly to be litig ated. Even with th is assumption, the exception would not apply be cause Ms. Marks is unlike ly to experience the same wrongdoing in the fu ture. Ms. Marks does no t allege that she may return to prison, that she may reente r a community correc tions program, or that she may again face regression from a program based on her inability to work. Ms. Marks instead concedes th at “the probability of recurrence against [herself] is not high.” Appellant’s Opening Br. at 63.10 But Ms. Marks argues that she need not show any po ssibility of facing the same conduct ag ain. For this argument, she relies on three cases involving abortion, elections , and press access to trials: Roe v. Wade , 410 U.S. 113, 125 (1973); Norman v. Reed , 502 U.S. 279, 288 (1992); and Press-Enterprise Co . v. Superior Court , 478 U.S. 1, 7 (1986). We disagree with Ms. Marks’s char acterization of these cases, for they all stress the require ment that the same pl aintiff face a risk of encountering the same c onduct in the future. In Roe v. Wade , for example, the Supreme Court applied the mootne ss exception because “[p]regnancy often comes more than once to the same woman .” 410 U.S. at 125 (emphasis added). The Supreme Cour t also applied th e exception in Norman v. Reed because “[t]here would [oth erwise] be every reason to expect the same parties to generate a similar, fu ture controversy.” 502 U.S. at 288 (emphasis added). And in Press-Enterprise Co. v. Superior Court , the Supreme Court applied th e exception be cause the “ petitioner [might] be subjected to a similar . . . order” again in the future. 478 U.S. at 6 (emphasis added). None of Ms. Marks’ s cases imply that plaintiffs can invoke the exception if they face lit tle chance of enc ountering the same conduct in th e future. Ms. Marks also argues that even though sh e’s unlikely to be regressed again, the case is not mo ot because the de fendants’ wrongful11 policies would continue harming other inmates in community corrections programs. But the mootness exception is not triggered by future risks to others. Weinstein v. Bradford , 423 U.S. 147, 149 ( 1975) (per curiam). Again, none of Ms . Marks’s cases suppo rt her proposition. Ms. Marks relies in part on United States v. Howard , 429 F.3d 843, 848 (9th Cir. 2005), but she disregards Howard ’s subsequent history. Howard was withdrawn and supersed ed on rehearing by United States v. Howard , 463 F.3d 999 (9th Cir. 2006). The new opinion was also withdrawn. United States v. Howard , 480 F.3d 1180 (9th Cir. 2007) (mem.). We decline to follow another circuit court’s opinion that was withdrawn. Ms. Marks also relies on Del Monte Fresh Produce Co. v. United
States , 570 F.3d 316 (D .C. Cir. 2009). Th ere the D.C. Circuit concluded that the claims did not become moot because the same plaintiff would likely encounter the same conduct in the futu re. 570 F.3d at 324–25. Del Monte Fresh does not suggest that the mootness except ion applies whenever the same conduct could injure others. Other circuits aside, our cases pr event us from applying the mootness exception based on a risk to others. See, e.g. , White v. Colorado , 82 F.3d 364, 366 (10th Cir. 1996) (hol ding that claims for prospective injunctive relief became moot when the inmate pl aintiff obtained parole). Given these12 cases, we conclude that the claims for prospective relie f became moot upon Ms. Marks’s completion of her sentence. 4. Correctness of the Summa ry-Judgment Rulings On summary judgment, the district co urt ruled that

 the Rehabilitation Ac t didn’t apply because Intervention hadn’t received federal funding,

 the CDOC and CDCJ couldn’t incur liabilit y under the Americans with Disabilities Ac t or Rehabilitation Act for Intervention’s deci sion to regress Ms. Marks, and

 the equal-protection claim failed because Ms. Marks had not shown the absence of a rational basis to treat her differently than non-disabled inmates. A. Standard of Review For these rulings, we conduct de novo review, drawing all reasonable inferences favorably to Ms. Marks. See May v. Segovia , 929 F.3d 1223, 1234 (10th Cir. 2019) (de novo review); Murphy v. City of Tulsa , 950 F.3d 641, 643 (10th Cir. 2019) (d raw reasonable infere nces favorably to nonmovant). With these inferences, we consider whether the CDOC and CDCJ have shown the absence of a genuine dispute of material fact and their entitlement to judgment as a matter of law. Fe d. R. Civ. P. 56(a).
B. The Applicability of the Rehabilitation Act The district court rejected Ms. Marks’s claim under the Rehabilitation Act in pa rt because Intervention had not recei ved federal funds. We disagree with this ruling because the district court should have13 focused on whethe r the CDOC and CDCJ (not Intervention) had received federal funds. The Rehabilitation Act applies only if the defe ndant received federal funds. 29 U.S.C. § 794(a) (2012); 4 see Barnes v. Gorman , 536 U.S. 181, 184–85 (2002) (stating that “§ 504 of the Rehabil itation Act prohibits discrimination against the disabled by recipients of federal funding, including private organizations”). In district court, the parties ag reed that the CDOC and CDCJ had received federal funding. The district court none theless concluded sua sponte that the Rehabilita tion Act didn’t apply because Intervention hadn’t received federal funds. Ms. Marks challenges th is ruling, arguing that

 the district court s hould have fo cused on whet her the CDOC and CDCJ had received federal funds,

 the CDOC and CDCJ were subj ect to the Rehabilitation Act regardless of whether the federal funds had been used for community corrections, and

 the CDOC and CDCJ admitted in district court that they had received federal funding. We agree with Ms. Marks. The distri ct court should have considered whether the CDOC and CDCJ had receiv ed federal funds. The court had no

4 This section was amended on July 22, 2014, af ter Ms. Marks’s regression to prison. Bu t this amendment does not affect the outcome.14 reason to muddy ap plication of the Re habilitation Act to the CDOC and CDCJ by focusing on the lack of federal funding to a third party like Intervention. See Henrietta D. v. Bloomberg , 331 F.3d 261, 272 (2d Cir. 2003) (observing that to establish a Rehabilitati on Act violation, plaintiffs need only show “that the defendants receive federal f unding” (emphasis added)). Because the CDOC and CD CJ received federa l funding, we conclude that the Rehabi litation Act applies. C. Statutory Liability of the CDOC and CDCJ for Discrimination The district court also reasoned that (1) Interv ention had un ilaterally decided to regress Ms. Marks and (2) the CDOC and CDCJ could not unravel that decisi on. For these reason s, the district court concluded that the community corrections program could not be considered a program of the CDOC or CDCJ, preventing liabili ty even if Ms. Ma rks could satisfy the elements of statutor y liability. We disagree. Under the statutes, the CDOC an d CDCJ could in cur liability for disability discrimination in their own programs. See 42 U.S.C. § 12132 (2012) (prohibiting discrimi nation against the disabl ed by a pub lic entity); 29 U.S.C. § 794(a) (2012 ) (same for discriminatio n by entities receiving federal funding). The issue here is whether the community corrections program could be considered not only a program of Interv ention but also a program of the CDOC and CD CJ. We answer “yes.”15 Ms. Marks was a state prisoner, and the Americans with Disabilities Act and Rehabilitation Act “unambi guously extend[] to state prison inmates.” Pa. Dep’t of Corrs. v. Yeskey , 524 U.S. 206, 213 (1998) (discussing the Americans with Disabilities Act); see also Wright v. N.Y. State Dep’t of Corrs. , 831 F.3d 64, 72 (2d Cir. 2016) (“Both the [Americans with Disabilities Act] a nd the [Rehabilitati on Act] undoubtedly apply to state prisons and their pris oners.”). The CDOC and CDCJ thus could not discriminate against disabl ed prisoners par ticipating in the state’s community corrections program. See Castle v. Eurofresh , 731 F.3d 901, 909 (9th Cir. 2013) (hol ding that state agencies could incur liability under the American s with Disabilities Act and Rehabilitation Act when a subcontractor had committed discrimination against di sabled prisoners in a program for paid labor and vocational training); Henrietta D. v. Bloomberg , 331 F.3d 261, 286 (2d Cir. 2003) (holding th at states incurred liability under the Re habilitation Act for localitie s’ violations because the states’ acceptance of federal funds had reflected a promise to ensure statutory compliance). As long as the CDOC and CDCJ complied with the prohibition against discrimination, they could c hoose how to oper ate the community corrections program. For example, th e CDOC and CDCJ could operate the program themselves or farm out operatio ns to a local or private entity. But16 either way, the CDOC and CDCJ woul d remain subject to the statutory prohibition against discrimination. See Castle , 731 F.3d at 910 (stating that the obligations under Title II of the Americans with Disabilities Act “apply to public entities re gardless of how those entit ies chose to provide or operate their program s and benefits”). Because this prohibition applies, the statutes and related regulations do not allow public or fe derally-funded entities to contract away their liability for discriminati on. For example, the Americans with Disabilities Act prohibits discriminati on when it is ei ther direct or committed “through contractual, licensing, or other arrangements.” 42 U.S.C. § 12182(b)(1)(A) (2012). And the ac companying regulations pr ohibit public entities from committing disability discrimination either “directly or through contractual, licensing, or other arrangements.” 28 C.F.R. § 35.130(b) (2013). 5 Similarly, the regula tions accompanying the Rehabilitation Act prohibit recipients of federal funding from di scriminating against the handicapped “through contractual, licensing, or other arrangem ents.” 28 C.F.R. 42.503(b) (2013).

5 These regulations ca rry the force of law. See Marcus v. Kan. Dep’t of Revenue , 170 F.3d 1305, 1306 n.1 (10th Cir. 1999) (stating th at regulations implementing the Americans with Disabi lities Act have the force of law).17 Under these statutes and related re gulations, a state entity’s services include programs “underta ke[n] through thir d parties by means of contracts and other arrangements.” Armstrong v. Schwarzenegger , 622 F.3d 1058, 1065 (9th Cir. 2010). The CDOC and CDCJ thus cannot avoid statutory liability solely because they were not directly invo lved in Inte rvention’s decision to regress Ms. Marks. See Phillips v. Tiona , 508 F. App’x 737, 753 (10th Cir. 2013) (unpublished); 6 see also Armstrong , 622 F.3d at 1068 (holding that Title II of the Americans with Disabi lities Act required state defendants to ensure compliance by private operators). 7
The CDOC and CDCJ characteri ze the community corrections program as the exclusive province of Jefferson County and Intervention. But a factfinder could reason ably regard the program as the state’s. Indeed, a state regulation assigns administ ration of residential community

6 In Phillips , we discussed a potential cl aim against the state for a private prison operator’s discrimination against an inmate. 508 F. App’x at 739. We noted that the priv ate nature of the operator should not materially affect liability because the Americans with Disabi lities Act’s regulations suggest that states can’t use contracts to sidestep obliga tions to disabled inmates. Id. at 753.

7 The CDOC and CDCJ argue that Armstrong is distinguishable because in that case “[t]here was no dispute that the state had the obligation to house the prisoners in th e first instance, so it was contracting out its actual authority over those prisoners to third parties.” Appellees’ Resp. Br. at 23. But the same is true here. Even when Ms. Marks participated in community corrections, the CDOC retained the obligation to house her.18 corrections programs to the CDOC. CDOC Admin. Reg. 250-15(I) (2011). 8
And the CDOC and CDCJ collectiv ely provided funding for community corrections, made referrals to community corrections, 9 created standards for community correctio ns, maintained custody over all inmates in community corrections, continued to mo nitor the status of these inmates while in community corrections, and audited community corrections programs. Colo. Rev. St at. §§ 17-27-103 (4), 17-27-108(1) –(2) (2013); see also Appellant’s App’x, vo l. 2, at 305–06, 448, 475. 10

8 Ms. Marks relied on the 2011 vers ion of the regulation. Appellant’s App’x, vol. 2, at 475–80.

9 Though the CDOC made the referrals, Intervention could decide whether to accept the inmate into community corrections or regress the inmate to prison.

10 The defendants al so argue that even if the evidence of st ate oversight had otherwise sufficed, the claims fo r damages would fail based on the absence of intentional conduct. Though this argument mi ght ultimately prevail, we cannot address it here. The parties agree that intentional discrimination is required for a plaintiff to obtain comp ensatory damages under the Rehabili tation Act or the Americans with Disabilities Act. See Barber ex rel. Barber v. Colo. Dep’t of Revenue , 562 F.3d 1222, 1228 (10th Cir. 2009) (“To recover compensatory damages unde r § 504 [of the Rehabilita tion Act], a plaintiff must establish that the agency’s discrimination was intentional.”); see also Hamer v. City of Trinidad , 924 F.3d 1093, 1108–09 (10th Cir. 2019) (suggesting that intentional discri mination is requir ed to recover compensatory damages under the Americans with Disabilities Act), cert. denied sub nom. City of Trinidad v. Hamer , __ U.S. __, 140 S. Ct. 644 (2019); Hans v. Bd. of Shawnee Cty. Comm’rs , 775 F. App’x 953, 956 (10th Cir. 2019) (unpublishe d) (concluding that in tentional discrimination is required to recover compensatory damages under the Americans with19 * * *

Disabilities Act). So in the absence of intenti onal discrimination against Ms. Marks, the parties agree that CDOC and CDCJ would not incur statutory liability for comp ensatory damages. But the district court didn’t decide the issue. The court did conclude that the CDOC and CDCJ weren’t liable for compensatory damages b ecause they couldn’t p revent Intervention from regressing Ms. Marks. But that conc lusion pertained to the agencies’ responsibility for the prog ram—not the existence of intentional conduct. On appeal, the CDOC and CDCJ conflate the issues involving (1) responsibility for th e program with (2) the element of intentional discrimination: “The State Defendant s cannot be liable for intentional discrimination against Mark s, because the decision to regress Marks from ICCS was made without the authority or consent of the State Defendants.” Appellees’ Resp. Br. at 17. But re sponsibility for the program and intentional discrimination are separate issues, and the district court didn’t decide whether the CDOC or CDCJ had intentionally discriminated against Ms. Marks. So we expre ss no opinion on whether the existing evidence would create a factual issue on th e element of inte ntional conduct.20 Federal statutes and regulations prohibited discrimination against prisoners like Ms. Marks wh en they participated in state programs like community corrections. The CDOC and CDCJ could farm out operations to others, but doing so woul d not prevent liability und er the Americans with Disabilities Act or Rehabilitation Act. So the district court shouldn’t have awarded summary judgmen t to the CDOC or CDCJ on these claims.
D. The Equal-Protec tion Claim Ms. Marks also appeals the dist rict court’s grant of summary judgment on her equal-protection clai m, which involves discrimination based on her disability. Th is ruling was correct. Under Supreme Court precedent, claims of disability discrimination trigger rational-basis review. Bd. of Trs. of Univ. of Ala. v. Garrett , 531 U.S. 356, 367 (2001). Ms. Marks admits that pr ecedent requires rationalbasis review but maintain s that disability discri mination should trigger stricter scrutiny. Appellant’ s Opening Br. at 64 n.24; see also Oral Arg. at 30:47 (“What we acknowledg ed is that under casela w which we believe is incorrect, it’s rational basi s review.”). But even if we agreed, we could not buck Supreme Court precedent. See Hutto v. Davis , 454 U.S. 370, 375 (1982) (per curiam) (“[A] pr ecedent of this Court mu st be follow ed by the lower federal courts no matter how misguided the judges of those courts may think it to be.”).21 Under rational-basis review, the underlying decision is presumed valid. City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 440 (1985). This presumption requires us to defer to the deci sionmaker’s choice whenever we can imagine “any reasonab ly conceivable state of facts that could provide a rational ba sis for the classification.” Teigen v. Renfrow , 511 F.3d 1072, 1083 (10t h Cir. 2007) (quoting Copelin-Brown v. N.M. State Pers. Office , 399 F.3d 1248, 1255 (10th Cir. 2005)). Under this standard, states need no t “make special accommoda tions for the disabled, so long as their actions toward such individuals are rational.” Bd. of Trs. of Univ. of Ala. v. Garrett , 531 U.S. 356, 367–68 (2001). The CDOC and CDCJ argue that regression of Ms. Marks was rational because

 her continued housing in commu nity corrections was unsafe because Intervention lacked medi cal staff and could not provide extended bedrest or medical care and

 Ms. Marks had violated her conditi ons by failing to attend job training and educat ional programs or work at a telephone location. We reach only the first reason and conclude that it satisfies rationalbasis review. Intervention lacked on-s ite medical staff, and the CDOC and CDCJ could reasonably consider the facilities un safe for Ms. Marks. Indeed, she had already fa llen in the shower because of th e absence of a grab bar or shower chair. And a phy sician had said that Ms. Marks’s22 movement was limited, that she need ed physical therapy, and that she required bedrest. So even if the CDOC and CDCJ could have prevented the regression decision, they could have rationally doubted Inte rvention’s ability to accommo date Ms. Marks’s medical needs. See Welsh v. City of Tulsa , 977 F.2d 1415, 1420 (10t h Cir. 1992) (holding that a municipal defendant had a rational basis for not hiring a disa bled firefighter because of his need for special accommodations). 11 At oral argument, Ms. Marks cont ended that she could have been transferred to other communi ty corrections facilities. Oral Arg. at 33:15. But this argument did not appear in the appellate briefs, and we do not consider arguments newly ha tched at oral argument. Hancock v. Trammell , 798 F.3d 1002, 1017 (10th Cir. 2015). Concluding that a ration al basis existed for the decision to order Ms. Marks’s regression, we uphold the aw ard of summary judgment to the CDOC and CDCJ on the equal-protection claim. 12

11 Our scrutiny of the equal-protection clai m under the rational-basis standard does not bear on whether the regression violated the Americans with Disabilities Act or the Rehabilitation Act. See Pushkin v. Regents of Univ. of Colo. , 658 F.2d 1372, 1383 (10th Ci r. 1981) (stating that the rationality of an employer’s conduct do es not prohibit li ability under the Rehabilitation Act).

12 The CDOC and CDCJ also argue that even if Ms. Marks’s equalprotection claim would otherwise succeed, her only remaining remedy— monetary damages—would be unavailab le under the Eleven th Amendment. Money damages are unavailable against st ate officials sued in their official23 5. Conclusion In our view, the district court correctly

 granted summary judgment to the CDOC and CDCJ on the equal-protection claim and

 dismissed the claims for pr ospective relief as moot. But we also conclude that the distri ct court erred in granting summary judgment to the CDOC and CDCJ on the claims und er the Rehabilitation Act and Americans with Disabilities Act. The Rehabilitation Act applies because the CDOC and CDCJ received federal funding. And a factfinder could reasonably view the community corrections program as the CDOC and CDCJ’s, rendering them liable fo r the alleged disc rimination against Ms. Marks. 13 We thus reverse th e entry of summary judgment and remand for further proceedings.

capacities. Will v. Mich. Dep’t of State Police , 491 U.S. 58 , 71 (1989). But the CDOC and CDCJ raise Eleventh Amendment immunity for the first time on appeal. Given the ab sence of any such argument below, the district court had no obligation to addr ess the Eleventh Amendment. Wis. Dep’t of Corr. v. Schacht , 524 U.S. 381, 389 (1998).

13 In district court, the CDOC and CDCJ also argued that they enjoyed Eleventh Amendment immunity on the claims under the Americans with Disabilities Act and Rehab ilitation Act. The district court did not reach the Eleventh Amendment issue on these cl aims, and the CDOC and CDCJ have not briefed the issue here. We thus leave this issue to the district court to decide in the first instance.