Direct Liability for a Title II Entity Delegating Their ADA Responsibilities

September 23, 2024

On Friday of last week, I presented to the Minnesota CLE Health Law Institute in Minneapolis on working with disabled clients and disabled attorneys. One of the cases that came up is the one that we are going to be talking about this week, Battle v. state of Tennessee, here, decided by the Middle District of Tennessee on September 6, 2024. If the reasoning of this case proves persuasive in other courts, this decision could be a very big deal indeed for the reasons we will discuss. As usual, blog entry is divided into categories, and they are: facts; court’s reasoning that Tennessee can be directly liable for failing to ensure the group homes carry out their obligations to Deaf residents; court’s reasoning that sovereign immunity applies to Title II damage claims but not to Rehabilitation Act damage claims; Disability Rights Tennessee has standing to sue; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts

The facts of the case can be greatly simplified from what is in the opinion. In Tennessee, you have two different state entities responsible for administering services supporting Tennesseans with disabilities. You have the Department of Intellectual and Developmental Disabilities (DIDD), and you also have the Department of Mental Health and Substance Abuse Services (DMHSAS). They each deal with different disabilities. DIDD is responsible for system planning, setting policy and quality standards, system monitoring and evaluation, disseminating public information, and advocacy for persons of all ages with the disabilities it serves. DIDD publishes a detailed provider manual setting forth directive to licensees. The provider manual informs licensees that it is participating in the Tennessee service delivery system for individuals with intellectual and developmental disabilities by being a party of the provider network. As such, the manual explained that private providers are partners in the common goal to provide quality, person-centered and cost-effective services to individuals with intellectual and developmental disabilities. It requires person-centered plans.

DMHSAS provides direct services through regional mental health institutes and licenses certain types of residential facilities for adults with mental illnesses. Those facilities are formally referred to as Mental Health Adult Residential Facilities and Mental Health Adult Supported Residential Facilities, but they can be described collectively as mental health group homes. DMHSAS, as does DIDD, engages in a mixture of direct service provision, licensure administration, and regulation.

Disability Rights Tennessee, the Protection and Advocacy group for Tennessee, on behalf of several individuals in group homes regulated by each of the above agencies sued saying that the people they were suing on behalf of were not receiving effective communication. All of the plaintiffs identified ASL as their primary language. Each of the group homes were privately operated. However, the plaintiffs alleged that the state of Tennessee was responsible for the group homes failures because it had the responsibility of developing and overseeing the group homes and failed to provide or require the following: 1) appropriate communication evaluations conducted by a person fluent in ASL and familiar with culturally deaf individuals; 2) programs, services, and activities offered with signing staff or qualified sign language interpreters; 3) qualified sign language interpreters for planning meetings; 4) qualified mental health sign language interpreters for mental health treatment; 5) qualified sign language interpreters for habilitative, rehabilitative, behavioral, occupational, vocational, community, and other services; 6) coordination of and scheduling qualified sign language interpreters for medical appointments; 7) provision of group homes meeting the communication needs of culturally deaf individuals including but not limited to, sign fluent staff and necessary assistive technology, such as videophones, flashing fire alarms, and bed shaker alarms; 8) ongoing, strong connection with the culturally deaf community including but not limited to sign fluent interpreters and continued ASL exposure; 9) person-centered planning and supports. The allegations with respect to DMHSAS failures were substantially similar as to DIDD’s failures with language changes recognizing that different disabilities were involved.

Court’s Reasoning That the State of Tennessee Can Be Directly Liable for Failing to Ensure the Group Homes Carry out Their Obligations to the Deaf, culturally deaf, Individuals They Serve

While Title II of the ADA and §504 are different in their sources (civil rights v. spending power), they both prohibit discrimination against persons with disabilities under a paradigm very similar to each other. So, the two statutes get interpreted the same way.
In order to prevail, a plaintiff has to establish that: 1) plaintiff has a disability; 2) plaintiff is otherwise qualified for the benefit or services at issue; and 3) plaintiff was excluded from participation in, denied the benefits of, or was subjected to discrimination under the program by the defendant because of plaintiff’s disability.
28 C.F.R. §35.130(b)(6) provides that: “a public entity may not administer any licensing or certification program in a manner that subjects qualified individuals with disability to discrimination on the basis of disability, nor may a public entity established requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. The programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part.” As phrased, this regulation leaves open the possibility of liability based upon an agency’s operation of the licensure authority in a manner resulting in discrimination.
28 C.F.R. §35.130(b)(6) recognizes that a government agency’s decision to rely on a privatized and license model rather than on a direct services model, does not inherently excuse it from its antidiscrimination obligations in performing the underlying public services.
Plaintiff’s have adequately pleaded that the group home licensure system and practice are mechanisms by which those two agencies themselves render public services. Further, the plaintiffs allegations largely focused not on the day-to-day operation of group homes, but on the defendant agency roles in coordinating care and setting minimum standards-both of which are services the agency to provide, even if they do not pay for the underlying placements.
Every group home in which the plaintiffs resided was allegedly part of the care system developed and shaped by the defendant agencies in furtherance of those agency specific and acknowledged statutory responsibilities and for the express and intentional benefit of individuals like the plaintiffs.
The agency powers, responsibility, and missions when combined with the allegations in the complaint, are sufficient to establish, for pleading purposes, that the agencies are administering their licensure authority in a manner subjecting qualified individuals with disabilities to discrimination in the provision of public services, including with regard to both care itself and any associated case management services over which the agencies exercise direct or indirect control. Going forward, the plaintiffs still have the ultimate burden to establish that the agencies actually used the kind of authority that the plaintiff’s claim and that the agency’s actions do in fact result discrimination the provision of public services.

Court’s Reasoning That Sovereign Immunity Applies to Plaintiffs Title II Claims for Damages But Not to the Rehabilitation Act Claims for Damages

Title II of the ADA contains statutory language forcibly waving sovereign immunity.
With respect to whether Title II forcibly waives a state’s sovereign immunity, the approach works as follows: 1) forcible waiver is applied where the alleged misconduct violates both Title II and a plaintiff’s constitutional rights under the 14^th Amendment (including the incorporation of any of the Bill of Rights into that amendment); 2) where the conduct violates Title II but not the 14^th Amendment, the court must consider whether sovereign immunity applies to that class of conduct. Doing that, means looking to whether the statutory scheme with proportional to the harm being redressed. It essentially means determining what equal protection tier a person with a disability falls in with respect to the facts of that particular case.
Citing to Board of Trustees of the University of Alabama v. Garrett, States are not required by the 14^th Amendment to make special accommodations (term “special accommodations,” appears in the opinion itself), for the disabled so long as their action toward such individuals are rational.
With respect to §504 to Rehabilitation Act, sovereign immunity poses no obstacle because Tennessee waived sovereign immunity in return for accepting federal funds. It also provides no basis for dismissing Title II claims for injunctive relief as the 11^th Amendment does not bar an ADA Title II claim for prospective relief against state officials in their official capacities.

III

Disability Rights Tennessee Has Standing

The unique structure of Protection and Advocacy systems create something of a challenge for traditional standing principles.
Protection and Advocacy agencies are entrusted with roughly the equivalent of enforcement power by the federal and state governments, but lack the government’s standing to enforce its own laws.
Protection and Advocacy organization must rely on the principle that an association for standing to sue on behalf of its members when: 1) its members would otherwise have standing to sue in their own right; 2) the interests at stake are germane to the organization’s purpose; and 3) neither the claim brought nor the relief requested requires the participation of individual members in the lawsuit.
The individuals for whom a Protection and Advocacy agency is called on to protect are typically not members of the organization or more like constituents or beneficiaries. Therefore, in the absence of a formal membership structure, the Protection and Advocacy agency can rely on the constituent for the purposes of standing only if it can establish a sufficient indicia of membership. So, a Protection and Advocacy organization has standing to assert the injuries of any constituent with whom it has a demonstrated relationship sufficient to establish the indicia of membership.

Thoughts/Takeaways

This case basically involves the principle that the ADA and the Rehabilitation Act are nondelegable duties (see this blog entry). Not carrying out those duties can potentially lead to direct liability even if the nonfederal governmental entity is not the one administering the programs and activities.
The court gets it wrong with respect to stating that failure to accommodate cases fall within the rational basis class. That simply isn’t true. Failure to accommodate (actually, any suit for damages against an employer by a person with a disability), in the employment context per Board of Trustees of the University of Alabama v. Garrett, here, does fall within the rational basis class. However, that is not the same thing as saying that failure to accommodate always falls in the rational basis class. That simply isn’t true. For example, in Tennessee v. Lane, here, the court held that the specific equal protection tier that a person with a disability falls into depends upon the individual facts of the case. They also held that with respect to accessing the courts, a person with disabilities are at least in the intermediate scrutiny class if not higher. So, it simply isn’t right to say that failure to accommodate cases regardless of the context they occur in, fall within the rational basis class.
The reasoning of this decision essentially sets up a system of vicarious liability. I have a hard time with saying that vicarious liability applies to the ADA and Rehabilitation Act in light of their statutory scheme and the case law over the years. That said, there is another way the court could have gone about it. There are numerous other regulatory provisions that offered a tighter fit for independent liability of the nonfederal governmental entities. Those regulatory provisions include 28 C.F.R. §§35.130(b)(1)(i-v,vii), (b)(2), (3), immediately below:

(b)

(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability—

(i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;

(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

(iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;

(iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others;

(v) Aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the public entity’s program;

(vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.

(2) A public entity may not deny a qualified individual with a disability the opportunity to participate in services, programs, or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.

(3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration:

(i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability;

(ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities; or

(iii) That perpetuate the discrimination of another public entity if both public entities are subject to common administrative control or are agencies of the same State.

A separate question is whether 28 C.F.R. §§35.130(b)(1)(i-v,vii), (b)(2), (3) would survive Loper Bright, discussed here. I think a strong argument exist that it would because these regulations are very closely tied to the statutory language of the ADA. Keep in mind, we don’t actually know what is the standard that courts will use in deciding that regulations are extremely persuasive to a matter being considered by the court. Things would have been a lot simpler if Loper Bright had said that Kisor v. Wilkie, here, applied to final regulations as well to agency interpretations of their regulations.
If this decision holds, it has absolutely huge implications in other worlds. For example, medical licensing boards delegations of their duties to PHPs is one such area.
The court gives a nice discussion of how standing works with Protection and Advocacy groups. Every state has a Protection and Advocacy group. What they do vary considerably from state to state as well as the amount of litigation that they get involved in.
Deaf or deaf mean very different things. Deaf means: 1) ASL or a sign language is the primary language; 2) 65-120 db hearing loss; and 3) attended a state school for the deaf. Deaf is just someone with a severe to profound hearing loss, 65-120 db.
Until this case, I never thought of licensing regulatory provisions of the regulations as applying in this context. I always viewed the licensing regulatory provisions as applying to the licensing of professionals. Was I being too narrow? Maybe, maybe not. I might not have been because the very last sentence of that regulatory provision says that the programs and activities conducted by the licensee are not covered by that particular provision. Regardless, as noted in §IV(3) of this blog entry, there are numerous other regulatory provisions applicable to this kind of situation.
This case involved a motion for judgment on the pleadings.
You can’t get damages under Title II and §504 simultaneously. It is either one or the other. So, I am not sure it matters if Title II damages claims were dismissed when the §504 claims were allowed to go forward.
“Special accommodation,” is a term that drives disability activists absolutely bonkers. Use “reasonable accommodations,” or “reasonable modification,” instead. Nothing special at all about the accommodations a person with a disability needs to get to the same starting line as a person without a disability as it is a matter of right.
Sovereign immunity, with one very rare exception, here, does not apply to prospective relief against officials sued in their official capacity.