of Congress’s intents in passing the ADA. Congress found that, “historically, society has tended to isolate and segregate individuals with disabilities.” 42 U.S.C. § 12101(a)(2). Congress further found that such discriminatory segregation continues. 42 U.S.C. § 12101(a)(5). Congress thus stated that one of “the Nation’s proper goals” is to ensure “independent living” for individuals with disabilities. 42 U.S.C. § 12101(a)(7). In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court recognized that the unnecessary segregation of an individual with a disability is discrimination prohibited by Title II and the integration mandate. The Court held that “[u]njustified isolation * * * is properly regarded as discrimination based on disability” because it “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Id. at 597, 600. The Court reasoned that “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 601. These concerns and the potential for harm exist both where individuals unnecessarily institutionalized seek to return to their communities and where those with disabilities seek to avoid unnecessary, discriminatory institutionalization or segregation in the first place. Three Circuits Agree “At-Risk” Claims Are Cognizable The Fourth, Ninth and Tenth Circuits have each held that an individual who is at serious risk of institutionalization has a claim under the integration mandate; no court to squarely address the issue has held otherwise. In Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (10th Cir. 2003), the Tenth Circuit held that “disabled persons who * * * stand imperiled with segregation” have standing to 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
The court credited the state’s assertion that “it has safeguards in place that will prevent any plaintiff from being transferred to an institution.” Id. at 874. Crucially, the court found that the “complaint does not give a sufficient reason to think that these [safeguards] will fail.” Id. This language makes clear that the Seventh Circuit did not foreclose at-risk claims. Rather, in order to make out a claim under the integration mandate, an individual need not necessarily be institutionalized, but must give the fact-finder “sufficient reason to think” that the state’s actions could result in institutionalization. Id. Because the Amundson plaintiffs did not connect the state’s actions to a cognizable harm (risk of institutionalization), the court dismissed their claims. So, the Seventh Circuit’s holding in Amundson is not inconsistent with the decisions of the Fourth, Ninth, and Tenth Circuits that at-risk claims are cognizable under the integration mandate. C. The Department of Justice’s Interpretation of the Integration Mandate Warrants Deference The Department’s views on Title II of the ADA “warrant respect,” Olmstead, 527 U.S. at 597-598. Further, its interpretation of its own regulation is “controlling unless plainly erroneous or inconsistent with the regulation,” Auer v. Robbins, 519 U.S. 452, 461 (1997) (citation and internal quotation marks omitted); Perez v. Mortgage Bankers Association, 135 S. Ct. 1199, n. 4 (2015) (Auer deference applies to agencies’ interpretations of their own regulations unless “the agency’s interpretation is plainly erroneous or inconsistent with the regulation” or “does not reflect the agency’s fair and considered judgment” (citations omitted)). The Department’s Olmstead Statement provides that suing to prevent the harm of unnecessary institutionalization or segregation is a cognizable claim under Title II, the integration mandate, and Olmstead. See DOJ Olmstead Statement, Filing No. 145-7. Defendants turn the Department’s Olmstead Statement on its head by claiming that it supports their position that Plaintiffs’ claims must fail because they have not been institutionalized. Defs.’ Reply Supp.
enter institutions in order to get the services they need. Defendants’ response to Plaintiffs’ evidence of risk of institutionalization is a conclusory statement by the Director of Bureau of Developmental Disabilities Services that Plaintiffs’ services are sufficient. Filing 148, at 4 (citing Second Julie Reynolds Decl., Filing No. 147-1, at 3). Defendants’ insistence that Plaintiffs have no integration mandate claim so long as they continue to reside in their homes, Filing No. 148, at 3-4, 10-18, is an impermissibly black and white formulation of the integration mandate. The State does not dispute that even with the efforts of family members, Plaintiffs experienced falls, depression, and other threats to their health due to the change in services. Plaintiffs thus have a cognizable at-risk claim under the integration mandate. IV. CONCLUSION For the reasons stated above, the United States respectfully requests that this Court hold that a non-institutionalized individual with a disability can bring a claim under Title II, its integration mandate, and Olmstead for a State or local government’s actions that put an individual at serious risk of institutionalization or segregation; deny Defendants’ motion for summary judgment; and allow the United States to participate in any argument that the Court may hear on either motion. Dated: March 27, 2015 Respectfully submitted, JOSH J. MINKLER VANITA GUPTA United States Attorney Acting Assistant Attorney General EVE HILL Deputy Assistant Attorney General /s/ Debra G. Richards /s/ Victoria L. Thomas Debra G. Richards Assistant United States Attorney REBECCA BOND Chief SHEILA S. FORAN Special Legal Counsel