Funded  through a grant from the National Institute on Disability and Rehabilitation Research,
U.S. Department of Education, under contract number H224B990002. The opinions expressed do not
necessarily reflect the position of the U.S. Department of Education, and no official endorsement by the
U.S. Department of Education of the opinions expressed herein should be inferred.

Copyright 2001 Neighborhood Legal Services, Inc.

In this issue......
THE COURTS ADDRESS GOLF CARTS, ATTORNEY'S FEES AND MEDICAID CAUSES OF ACTION: The Casey Martin, Buckhannon and Westside Mother's Decisions
Supreme Court decides Casey Martin
Casey Martin is an Individual with a Disability
The PGA’s Tournaments are Covered by Title III of the ADA
The Accommodaation Sought Was “Reasonable” and Not a “Fundamental Alteration”
Buckhannon: The Supreme Court’s Attorney’s Fees decision
Life After Buckhannon
Westside mothers: Medicaid Claims and 42 U.S.C. § 1983
SPECIAL FEATURES:
AT Advocate now published four times per year
AT Court Watch
NY Case Challenges Medicaid’s Reimbursement Rates
The Supreme Court’s Decision in Rowley Revisited

THE COURTS ADDRESS GOLF CARTS, ATTORNEY'S FEES AND MEDICAID CAUSES OF ACTION

The Casey Martin, Buckhannon and Westside Mother’s Decisions

INTRODUCTION

        On the same day in May, the U.S. Supreme Court issued two decisions of great importance to disability advocates. In Casey Martin, the Court ruled for the plaintiff, providing expansive readings on both the extent of coverage under Title III of the Americans with Disabilities Act (ADA) and the ADA’s reasonable accommodation requirements. In Buckhannon, the Court ruled, in the context of the Fair Housing Act Amendments of 1988 (FHAA) and the ADA, that successful plaintiffs can no longer use the “catalyst theory” to qualify for attorney’s fees when a case is resolved without court intervention or sanction.

        A third decision, from a federal district court in Michigan, has the potential to most directly affect the work of assistive technology (AT) advocates. In Westside Mothers, now pending in the 6th Circuit Court of Appeals, the court held that 42 U.S.C. § 1983 is not available to challenge violations of federal Medicaid law.

        Our lead article discusses each decision and its implications for disability advocates. The reader should be cautioned, however, that all three decisions are both legally complex and of recent vintage. Accordingly, the reader should view this article as part of the ongoing discussion of how best to use Casey Martin, limit Buckhannon, and ensure that Westside Mothers is not adopted by other courts.

        PGA Tour, Inc. v. Casey Martin, 121 S.Ct. 1879 (5/29/01) addressed whether Martin can ride a golf cart at the highest levels of professional golf. In setting standards for determining reasonable accommodation requests under the ADA, the Court addressed three issues: 1) Is Martin an individual with a disability? 2) Are the golf tournaments places of “public accommodation” under Title III of the ADA? and 3) Is the accommodation requested reasonable, or does it “fundamentally alter” the PGA’s tournaments? The Court ruled for Martin on each issue.

        The ADA defines disability as “a physical or mental impairment that substantially limits one or more of the major life activities ....” 42 U.S.C. § 12102(A). The Court reviewed the facts to support its conclusion that Martin is an individual with a disability, covered by the ADA. Since birth, he has had Klippel-Trenaunay-Weber Syndrome, “a degenerative circulatory disorder that obstructs the flow of blood from his right leg back to his heart.” It “causes severe pain and has atrophied his right leg.” “Walking ... also created a significant risk of hemorrhaging, developing blood clots, and fracturing his tibia so badly that an amputation might be required.” Martin at 1885-86. While still in college, he could no longer walk an 18-hole golf course.

        Title III prohibits disability-based discrimination “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a). A place of public accommodation is defined in 12 extensive categories, and golf courses are specifically listed. Id. § 12181(7)(L). Legislative history indicates the definition of public accommodation “should be construed liberally to afford people with disabilities ‘equal access’ to the wide variety of establishments available to the nondisabled.” Martin at 1890.

        The PGA argued there is no Title III claim because Martin is a provider of entertainment rather than a “client” or “customer” of the public accommodation. Martin, they argued, had a job-related claim under Title I. However, as an independent contractor, he could not bring a Title I claim.

        The Court rejected these arguments without deciding whether the phrase “clients or customers” could be applied literally. Instead, it said that because the tournaments offered at least two privileges to the public, watching and competing, they cannot discriminate against the public whether participating as a competitor or spectator. In reaching its conclusion, the Court observed that any individual could participate at the qualifying level by paying $3,000 and submitting two letters of reference from other PGA members. Id. at 1884.

        That entry into the higher levels of PGA play is highly competitive does not make it any less a public accommodation. As the Ninth Circuit had observed, entry into the most elite private colleges is also intensely competitive. That does not remove them from the ADA’s definition of public accommodation. Id. at 1888, n. 18.

        The Court found its conclusion was consistent with case law interpreting the analogous Civil Rights Act of 1964. The Court had held that Title II of that Act applied to both participants and spectators of a sport or activity. Daniel v. Paul, 395 U.S. 298, 306 (1969). Many advocates have urged decision makers to substitute “race” for “disability” when analyzing whether an entity is discriminating under the ADA. The Court took exactly this approach when it observed that under the PGA’s theory, Title II of the Civil Rights Act would allow it to discriminate against golfers on racial grounds. Martin at 1893, n. 35.

        The ADA proscribes both intentional exclusion “as well as ‘the failure to make modifications to existing facilities and practices’.” Id. at 1889, quoting 42 U.S.C. § 12101(5). Accordingly, Title III includes within its definition of discrimination:

[A] failure to make reasonable modification in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.
Id. § 12182(b)(2)(A)(ii).

        The Court set up a three-step analysis to decide whether an accommodation is required: 1) Is it reasonable? 2) Is it necessary? and 3) Does it amount to a “fundamental alteration”? Martin at 1893, n. 38. The PGA did not question that use of a golf cart was reasonable and necessary. Instead, they argued it would fundamentally alter the nature of its tournaments.

        The PGA argued that walking adds fatigue into the skill of shot making, creating an outcome-affecting rule. Allowing a golfer to use a cart would, therefore, fundamentally alter the nature of the game. The Court rejected this argument and found that walking is not an indispensable feature of either the game or the specific tournament. It noted that use of carts is common; the game historically has been about the shot; and in golf “it is impossible to guarantee that all competitors will play under exactly the same conditions or that ability will be the sole determinant of the outcome.” Id. at 1895. It also cited expert testimony, indicating that fatigue induced from walking would not play a significant role in whether a player makes a shot.

        The Court then held that the PGA’s refusal to consider Martin’s personal circumstances runs counter to the ADA’s clear language and purpose. It held that, without exception, an individualized inquiry must determine whether an accommodation “would be reasonable under the circumstances as well as necessary for that person, and yet at the same time not work a fundamental alteration.” Id. at 1896. This point, clearly, has implications far beyond Martin’s case.

        The Court acknowledged that “waiver of an essential rule of competition” would be a fundamental alteration. However, it rejected the PGA’s claim that “all substantive rules for its ‘highest level’ competitors are sacrosanct and cannot be modified under any circumstances [as] effectively a claim that it is exempt from Title III’s reasonable modification requirement.” Id. In other words, a covered entity cannot merely claim a rule is fundamental because it says so. Instead, an individualized inquiry must look to the nature and purpose of the rule and how it applies to the requested modification.

        Here, the rule was “at best peripheral” to the PGA’s events and “might be waived in individual cases without working a fundamental alteration.” Id. Even assuming “the purpose of the walking rule is to subject the players to fatigue, which in turn may influence the outcome of the tournament,” Martin endures greater fatigue than his able-bodied competitors even when riding his golf cart. Id. at 1897. Therefore, the purpose of the rule is “not compromised in the slightest by allowing Martin to use a cart.” Id. Essentially, the Court found that the golf cart merely levels the playing field, allowing Martin the chance to qualify for and compete in PGA events.

        In Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 121 S.Ct. 1835 (5/29/01), the Supreme Court ruled that attorney’s fees are not available to plaintiffs as “prevailing parties” under the “catalyst theory.” Although the only statutes before the Court were the FHAA and the ADA, the holding is clearly intended to apply to any federal statute authorizing fees to a prevailing party. The first three sentences of the Court’s opinion set the tone:

Numerous federal statutes allow courts to award attorney’s fees and costs to the “prevailing party.” The question presented is whether this term includes a party that has failed to secure a judgement on the merits or a court-ordered consent decree, but nevertheless achieved the desired result because the lawsuit brought a voluntary change in the defendant’s conduct. We hold that it does not. Id. at 1838.

        In addition, rather than looking to the ADA or FHAA, the Court relied on the language and legislative history of the Civil Rights Attorney’s Fees Act of 1976, 42 U.S.C. § 1988, for its analysis.

        Buckhannon Board and Care Home was ordered to close assisted living homes when they failed a fire marshal’s inspection because some residents were incapable of “self-preservation” as required by West Virginia law. Buckhannon sought declaratory and injunctive relief claiming this requirement violated the FHAA and the ADA. During the course of the litigation, the state legislature removed the “self preservation” requirement from state law, and the case was dismissed as moot.

        Buckhannon requested attorney’s fees using the catalyst theory. Under that theory, plaintiffs may be awarded fees as the prevailing party when they can demonstrate their lawsuit was the “catalyst” for the defendant’s unilateral decision to rectify circumstances giving rise to the lawsuit. The district court denied the motion and the Fourth Circuit affirmed. Even though the Fourth Circuit is the only Circuit to have addressed and rejected the catalyst theory, Buckhannon at 1851-52 (Ginsburg, J., dissenting), the Court granted certiorari to “resolve the disagreement amongst the Courts of Appeals.” Id. at 1839.

        Under the Fourth Circuit’s standard, a party would not be entitled to fees unless they “obtained an enforceable judgement, consent decree or settlement giving some of the legal relief sought.” S-1 and S-2 v. State Bd. of Ed. of N.C., 21 F.3d 49, 51 (4th Cir. 1994) (en banc). In affirming, the Supreme Court narrowed the Fourth Circuit’s holding, declaring that a defendant’s voluntary change of behavior, even if it is the change plaintiffs sought, lacks the “necessary judicial imprimatur” to warrant awarding attorney’s fees. The Court went on to state that “private settlement agreements do not entail the judicial approval and oversight involved in consent decrees.” Buckhannon at 1840, n.7. It declared that a prevailing party is “one who has been awarded some relief by a court.” Id. at 1837. The party must obtain either a judgement on the merits or a court-ordered consent decree that creates a “material alteration of the parties’ legal relationship.”

        The Court cited the traditional “American Rule” enunciated in Key Tronic Corp v. United States, 511 U.S. 809 (1994), that courts generally do not award attorney’s fees without explicit statutory authority. It then discussed the term prevailing party and used the definition from Black’s Law Dictionary, as “a party in whose favor a judgment is rendered, regardless of the amount of damages awarded.” Buckhannon at 1839. The Court said its previous decisions “establish that enforceable judgments on the merits and court-ordered consent decrees create the ‘material alteration of the legal relationship of the parties’ necessary to permit an award of attorney’s fees.” Id. at 1840. It held that the catalyst theory runs against these cases because it allowed an award without a “judicially sanctioned change in the legal relationship of the parties.” Id.

        The Court also rejected legislative history from the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988, as support for the catalyst theory. However, the Senate Report accompanying §1988 could not have been clearer: “parties may be considered to have prevailed when they vindicate rights through a consent judgement or without formally obtaining relief.” As quoted in Buckhannon at 1842. The majority did not even mention an even clearer provision from the House Report:

[A]fter a complaint is filed, a defendant might voluntarily cease the unlawful practice. A court should still award fees even though it might conclude, as a matter of equity, that no formal relief, such as an injunction, is needed.

Id. at 1858 (Ginsburg, J., dissenting). Nevertheless, citing Key Tronic, the Court stated that this legislative history “is clearly insufficient to alter the accepted meaning of the statutory term.” Id. at 1842.

        Finally, the Court stated that concerns that rejection of the catalyst theory would deter plaintiffs from bringing meritorious, yet expensive, cases were “entirely speculative and unsupported by any empirical evidence.” Id. Equally speculative, however, the Court chose to focus on the potential that under the catalyst theory, a defendant may be deterred from altering its conduct because of the “possibility of being assessed attorney’s fees.” Id.

        To assuage concerns of dire results for plaintiff’s attorneys, the Court proffered that “petitioners’ fear of mischievous defendants only materializes in claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendant’s change in conduct will not moot the case.” Id. The Court fails to point out that the right to damages in civil rights cases has been reduced in many contexts, either by statute or court decisions. Next, the Court speculates that “it is not clear how often courts will find a case mooted,” because:

‘It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice’ unless it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’

Id. at 1842-1843, citing Friends of the Earth v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000). This was, of course, little help to Buckhannon.

        Since Buckhannon is a Supreme Court decision, what can advocates do? First, even though the decision is written with a broad brush, the actual holding is limited to the ADA and FHAA. Therefore, the initial position should be that it does not apply in other contexts. There is already a case pending in the Second Circuit under the Individuals with Disabilities Education Act (IDEA) where the school district has raised Buckhannon as a defense to an award of attorney’s fees. [J.C. v. Regional School District 10] The parents’ counsel have raised several cogent arguments as to why Buckhannon should not apply to the IDEA.

        In cases going forward, attorneys should take protective steps to minimize Buckhannon’s impact. Three steps are suggested by the Court’s opinion. First, where appropriate, add a claim for damages. (In IDEA cases, a claim for reimbursement under Burlington Sch. Comm. v. Department of Educ., 471 U.S. 359 (1985), or a claim for compensatory education may serve this purpose.) Second, even when unilateral action resolves the issues, argue that the case is still not moot. This argument will be most effective when the plaintiff can establish a long history of noncompliance by the defendants. Third, seek a court order (or consent decree) on the merits on some aspect of the case as early as possible in the litigation to meet this new definition of prevailing party on at least one issue. In class actions, move for class certification early on. Once certified, a court order would be needed to approve dismissal.

        In settlement discussions, keep in mind that the Court rejected private settlement agreements as the basis for being a prevailing party. This presents two options. First, include the terms for attorney’s fees in the settlement agreement, which will establish an enforceable contract for the fee. However, if it is necessary to commence a court action to collect the fee, there will be no right to obtain additional fees for these efforts. Second, make any settlement agreement “so ordered” by the court, which would allow a plaintiff to move for fees, having satisfied Buckhannon’s requirements. (In IDEA cases, the closest analogy at the hearing level would be to have any settlement agreement “so ordered” by the hearing officer.)

        Make no mistake, however. The potential impact of Buckhannon can be devastating. Defendants may now have the ability to string a plaintiff along during the course of litigation only to unilaterally provide all the relief a plaintiff seeks on the eve of trial, thus eliminating the right to fees for all the time spent on the case.

        In Westside Mothers v. Haveman, 133 F.Supp.2d 549 (E.D. Mich. 2001), the district court held that 42 U.S.C. § 1983 is not available to challenge alleged violations of federal Medicaid law. Westside Mothers is a class action challenging Michigan’s failure to appropriately administer Early and Periodic Screening, Diagnosis and Treatment (EPSDT) services under Medicaid. The plaintiffs’ attorneys appeared to dot every “i” and cross every “t” in framing their complaint to avoid the increasing jurisdictional hurdles to filing suit against state actors. They named the heads of the state agencies administering Medicaid and sought only prospective, injunctive relief.

        The plaintiffs felt safely within the parameters of Will v. Michigan, 491 U.S. 58 (1989). There, the Supreme Court held that states, and state officials acting in their official capacity, were not “persons” within the meaning of 42
U.S.C. § 1983. The Court was very careful to add, however, that state officials, when sued in their official capacity for injunctive relief, would be persons under § 1983. Will at 71, n. 10.

        By suing only for injunctive relief, they were also conforming to the Supreme Court’s line of Eleventh Amendment cases. In Ex parte Young, 209 U.S. 123 (1909), the Court ruled that suits for injunctive relief did not fall within the Eleventh Amendment’s ambit. In Board of Trustees of the University of Alabama v. Garrett, 121 S.Ct. 955 (2001), it ruled that Congress did not abrogate states’ Eleventh Amendment immunity when it enacted Title I of the ADA. Therefore, an ADA suit for money damages against a state by a private individual was barred. However, the Court expressly reaffirmed the viability of a suit against the state for injunctive relief based on Ex parte Young. Id. at 968, n. 9.

        Nevertheless, the district court in Westside Mothers dismissed the complaint. It reached its conclusions by starting with the premise that “Spending Clause” statutes, such as Medicaid, are not the supreme law of the land, but are merely contracts between two sovereigns. In reaching this conclusion, however, the court ignores Supreme Court precedent.

        It is true that Congress cannot override a state’s Eleventh Amendment immunity pursuant to a power granted to it by Article I of the Constitution, such as the Spending Clause. Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1966). However, this does not mean that such a statute is itself unconstitutional. The statute is still the supreme law of the land and may be enforced by other means, such as suits by the federal government (if authorized by the statute) or suits for injunctive relief by private citizens under Ex parte Young. See Garrett at 968, n. 9. Despite the reaffirmation of the Ex parte Young doctrine in Garrett, the district court went so far as to say that Ex parte Young did not apply.

        Finally, the district court ruled that even if there was no Eleventh Amendment problem, there is no cause of action under § 1983, even though the Supreme Court expressly stated that a cause of action for injunctive relief could be maintained under § 1983 against state officials acting in their official capacity. Will at 71, n. 10. It reached this conclusion by relying on its finding that the Medicaid statute is only a contract and that there can be no “third party beneficiary” actions maintained under § 1983. This, of course, ignores a long line of cases, including Sixth Circuit cases, finding that a private right of action can be brought under § 1983 to enforce provisions of the Medicaid Act.

        While appearing to be “coming out of left field,” the district court’s reasoning is being raised in cases in several other states. The case is on appeal to the Sixth Circuit, and the same issue is being raised in the Fourth and Fifth Circuits. Moreover, although the court acknowledges bucking precedent, it cites a concurrence by Justice Scalia, takes a painstaking look at the history of § 1983, and attempts to predict where the Supreme Court will go. Accordingly, while we believe the Sixth Circuit should reverse the district court in Westside Mothers, it is critical that advocates currently engaged in, or contemplating, a §1983 action to enforce the Medicaid Act be aware of this case and its implications. The National AT Advocacy Project has the briefs filed in the Sixth Circuit in Westside Mothers, including an amicus curiae brief filed by the U.S. Justice Department. Anyone wishing to obtain copies can call Wilma at (716) 847-0650, ext. 271. As this went to press, the Sixth Circuit had not yet scheduled arguments in this case.

        These three decisions, and their future application by the courts, will be important to the work of P&A and legal services advocates, including those who specialize in AT advocacy.

        By approving the use of a mechanical device (i.e., a golf cart) in Casey Martin, the Supreme Court raises the possibility of a wide range of judicially-approved AT interventions in ADA cases. Buckhannon will force public and private sector attorneys alike to re-think how they structure complaints and settlement agreements.

        The pending Westside Mothers case cannot be ignored by the many attorneys who have looked to Medicaid litigation as a way to ensure access to AT and a range of other services for persons with severe disabilities. Like the private firm that filed the recent Medicaid case in New York (see box below), we should continue to consider using 42 U.S.C. § 1983 while being ever mindful of the continued attacks on its viability in the Medicaid context.

The Supreme Court’s Decision in Rowley Revisited (Again):
Maybe One Aspect of the Decision Should be Embraced

        For the close to twenty years since the Supreme Court's decision in Board of Educ. v. Rowley, 458 U.S. 176 (1982), most special education advocates have been searching for ways to minimize or avoid its impact in cases under the Individuals with Disabilities education Act (IDEA). For example, the National Assistive Technoloy Project has devoted at least part of three newsletters and part of the booklet Funding of Assistive Technology: The Public School's Special Education System as a Funding Source to this endeavor. However, a recent re-read of Rowley has uncovered a long-lost gem from the decision.

        Rowley established a two-part test to determine if a school district’s proposed individualized education program (IEP) was appropriate for a child: (1) Was the IEP developed in accordance with the IDEA’s procedures? and (2) Was the IEP so developed reasonably calculated to ensure the child would benefit from an education? Id. at 206-207. In determining educational benefit, the IDEA does not require that a student be given the best possible education or one designed to maximize potential. Id. at 199. When reviewing a case concerning whether a student has received an appropriate education, “courts must be careful to avoid imposing their view of preferable educational methods upon the States.” Id. at 207(empha-sis added). The Supreme Court concluded that “once a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States.” Id. at 208 (emphasis added).

        Citing this language, school districts across the country have rejected, at IEP Team meetings, parents’ requests for a particular educational methodology. Looking at this same language, advocates have acquiesced and sought ways around this apparent restriction. What was ignored in this analysis, however, was the Supreme Court’s actual wording of where the restriction lay. By its express terms, it did not apply at IEP Team meetings, but only to reviewing courts. Many believed, however, that if you could not ask for a particular educational methodology from a reviewing court, how could you ask at the IEP Team meeting.

        This assumption ignores the Supreme Court’s view of the role of the parents at IEP Team meetings. The Supreme Court made it clear that their participation is critical:

It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process ... as it did upon the measurement of the resulting IEP against a substantive standard. We think that the congressional emphasis upon full participation of concerned parties throughout the development of the IEP ... demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.

Id. at 205 -206 (emphasis added). Yet, how far does “full participation” go? Does it extend to discussions of appropriate methodology at IEP Team meetings?

        The answer the Supreme Court gave is a resounding yes! Buried between the two quotes discussed above, that courts must be careful about imposing educational methodology on states, is a clear statement about how educational methodology is to be determined at IEP Team meetings:

The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardians of the child.

Id. at 207 (emphasis added).

        This means that at the IEP Team meeting the goals and objectives are to be established for the student. Once those goals have been developed, the IEP Team is to select the best possible method to achieve those goals. The parents are to be joint participants, with the other IEP Team members, in discussing and deciding what that educational method should be. Morever, since this is an IEP Team decision, it is subject to review at an impartial hearing and, if available, state level review. It is only when the case gets to court that Rowley’s discussion of the reviewing court’s deference to the decision of the local and state educational agencies comes into play.

        We have designed a word-searchable digest, using computer technology, to store and retrieve hearing decisions and other administrative documents. We also have indexed more than 400 documents from more than 100 pending and decided court cases. All documents are available through our AT Resource Library. Please send us your hearing decisions, briefs and other documents involving AT.

Please send information to:
Attn.: Jim Sheldon                                                                                  TEL: (716) 847-0650
Neighborhood Legal Services, Inc.                                                          FAX: (716) 847-0227
Ellicott Square Building                                                                            TDD: (716) 847-1322
295 Main Street, Rm 495                                                                       e-mail: atproject@nls.org
Buffalo, NY 14203                                                                                 Web Page: www.nls.org

The AT Advocacy Project will provide nationwide services to PAAT projects including technical assistance to advocates wanting to access funding for assistive technology for individuals with disabilities.

Another Look at Services Available From the Vocational Rehabilitation System, Including an Analysis After New Regulations