United States District Court, E.D. Michigan, Northern Division
UNITED STATES SOCIETY FOR AUGMENTATIVE AND ALTERNATIVE COMMUNICATION, INC., Plaintiff,
NICK LYON, Director, Michigan Department of Health and Human Services, in his official capacity, CHRIS PRIEST, Medicaid Director, Medical Services Administration, Michigan Department of Health and Human Services, in his official capacity, and MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendants.
ORDER DENYING MOTION FOR RECONSIDERATION
HONORABLE THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.
MV, a minor, and the United States Society for Augmentative
and Alternative Communication, Inc. (USSAAC) brought suit
under 42 U.S.C. § 1983 against Nick Lyon, the director
of the Michigan Department of Health and Human Services,
Chris Priest, the Medicaid Director at the Medical Services
Administration, and the Michigan Department of Health and
Human Services on August 28, 2015. ECF No. 1. Plaintiffs
allege that Michigan Medicaid's criteria for coverage of
Speech Generating Devices (SGDs) violates the Medicaid Act,
42 U.S.C. § 1396a et seq., § 504 of the
Rehabilitation Act, 29 U.S.C. § 794, and Title II of the
Americans with Disabilities Act (ADA), 42 U.S.C. §
12131. On May 11, 2016, Defendants filed a motion to dismiss.
ECF No. 20. The Court granted that motion in part and denied
it in part, dismissing Plaintiff MV for lack of standing and
dismissing Plaintiff USSAAC's claims under § 504 of
the Rehabilitation Act and Title II of the ADA. ECF No. 30.
On September 14, 2016, Plaintiff filed a motion for
reconsideration of the Court's decision to dismiss
Plaintiff's claims under the Rehabilitation Act and the
ADA. ECF No. 33. The Court directed Defendants to respond.
ECF No. 34. For the reasons stated below, Plaintiff's
motion for reconsideration will be denied.
relevant allegations have been summarized in this Court's
August 31, 2016, order granting in part and denying in part
Defendant's motion to dismiss. ECF No. 30. That summary
will be incorporated as if fully recounted herein.
to Eastern District of Michigan Local Rule 7.1(h), a party
can file a motion for reconsideration of a previous order,
but must do so within fourteen days. A motion for
reconsideration will be granted if the moving party shows:
“(1) a palpable defect, (2) the defect misled the court
and the parties, and (3) that correcting the defect will
result in a different disposition of the case.”
Michigan Dept. of Treasury v. Michalec, 181
F.Supp.2d 731, 733-34 (E.D. Mich. 2002) (quoting E.D. Mich.
LR 7.1(g)(3)). A “palpable defect” is
“obvious, clear, unmistakable, manifest, or
plain.” Id. at 734 (citing Marketing
Displays, Inc. v. Traffix Devices, Inc., 971 F.Supp.2d
262, 278 (E.D. Mich. 1997). “[T]he Court will not grant
motions for rehearing or reconsideration that merely present
the same issues ruled upon by the Court, either expressly or
by reasonable implication.” E.D. Mich. L.R. 7.1(h)(3).
See also Bowens v. Terris, No. 2:15-CV-10203, 2015
WL 3441531, at *1 (E.D. Mich. May 28, 2015).
motion for reconsideration, Plaintiff argues that the Court
improperly dismissed Counts Four and Five of Plaintiff's
Amended Complaint. Plaintiff asserts that there were three
palpable defects in the Court's order. First, Plaintiff
argues that neither Section 504 nor Title II requires
comparison of access to benefits between people with and
without disabilities. Second, Plaintiff argues that
plaintiffs seeking injunctive relief under Section 504 and/or
Title II do not need to demonstrate intentional
discrimination. Third, Plaintiff argues that Plaintiff's
claims under Section 504 and Title II are challenging
Michigan Medicaid's adoption of discriminatory SGD
coverage criteria, not Defendants' past denials of SGD
first argues that the Court improperly relied on Trayner
v. Turnage, 485 U.S. 535 (1988), in finding that
Plaintiff's claims under § 504 and Title II were
insufficient because they did not allege that Defendants were
discriminating against disabled individuals in favor of
nondisabled individuals. In the August 31, 2016, order, the
Court stated that “[t]he ‘central purpose' of
§ 504 is to ensure that ‘handicapped individuals
receive ‘evenhanded treatment' in relation to
nonhandicapped individuals.'” Op. & Order at
19, ECF No. 30 (quoting Traynor, 485 U.S. at 548).
Plaintiff quotes Olmstead v. L.C. ex rel. Zimring,
527 U.S. 581, 598 (1999), for the proposition that a claim
under Title II can exist even if there is no showing that a
similarly situated individual was given preferential
treatment. The primary thrust of the Olmstead
decision is that the “unjustified institutional
isolation of persons with disabilities is a form of
discrimination, ” Id. at 600. And the
Olmstead Court did, in fact, discuss the fact that
dissimilar treatment of disabled individuals does occur when
they are unjustly institutionalized. See Id. at 601
(“Dissimilar treatment correspondingly exists in this
key respect: In order to receive needed medical services,
persons with mental disabilities must, because of those
disabilities, relinquish participation in community life they
could enjoy given reasonable accommodations, while persons
without mental disabilities can receive the medical services
they need without similar sacrifice.”). However,
Plaintiff's point is well taken. The reasoning in
Traynor which focuses on discrimination against
disabled individuals in favor of nondisabled individuals has
been undermined by Olmstead and subsequent courts of
appeal decisions. See Amundson ex rel. Amundson v.
Wisconsin Dep't of Health Servs., 721 F.3d 871, 874
(7th Cir. 2013) (collecting cases). But see Parker v.
Metro. Life Ins. Co., 121 F.3d 1006, 1019 (6th Cir.
1997) (a pre-Olmstead decision which follows
Traynor in holding that the ADA and Rehabilitation
act only prohibit discrimination between the disabled and
non-disabled). Although the Sixth Circuit has not explicitly
overruled Parker or rejected Traynor, the
Supreme Court's decision in Olmstead has
rejected that reasoning. Thus, Traynor will not be
relied upon as a basis for the Court's dismissal of
Plaintiff's claims under § 504 and Title II.
the Court's opinion and order relied only in part on
Traynor in dismissing Plaintiff's claims under
§ 504 and Title II. Plaintiff further argues that the
Court committed a palpable error in its alternative ground by
stating that Plaintiff was required to allege
“intentional discrimination.” Plaintiff argues
that proof of intentional discrimination is not required for
injunctive relief. In support of that argument, Plaintiff
cites Ability Ctr. of Greater Toledo v. City of
Sandusky, where the Sixth Circuit held that “Title
II does more than prohibit public entities from intentionally
discriminating against disabled individuals. It also requires
that public entities make reasonable accommodations for
disabled individuals so as not to deprive them of meaningful
access to the benefits of the services such entities
provide.” 385 F.3d 901, 907 (6th Cir. 2004).
Plaintiff characterizes Ability Center as standing
for the proposition that intentional discrimination need not
be demonstrated by plaintiffs seeking injunctive relief under
§ 504 and Title II, Sixth Circuit precedent draws a
different distinction. Rather, the Sixth Circuit has
distinguished intentional discrimination claims from
disparate-impact and reasonable-accommodation claims. See
Everson v. Leis, 412 F.App'x 771, 784 n.6 (6th Cir.
2011) (Moore, J., dissenting). Although it is unclear
“whether a reasonable-accommodation claim under Title
II is a viable claim separate from a disparate-treatment or
disparate-impact type claim, ” several cases draw that
distinction. Id., 412 F.App'x at 784 n.6 (citing
Tucker v. Tennessee, 539 F.3d 526, 532 (6th Cir.
2008); Dillery v. City of Sandusky, 398 F.3d 562,
568 (6th Cir. 2005)). Likewise, several other circuits have
held that claims for reasonable accommodation under Title II
are separate from intentional discrimination claims. See
Id. (citing Wis. Cmty. Servs., Inc. v. City of
Milwaukee, 465 F.3d 737, 751 (7th Cir. 2006);
Henrietta D. v. Bloomberg, 331 F.3d 261, 275 (2d
Cir. 2003)). Under reasonable accommodation claims, the
plaintiff must still show that “the reason for his [or
her] deprivation is his disability.” Wis. Cmty.
Servs., 465 F.3d at 751. Even if Plaintiff is advancing
a reasonable accommodation or disparate-impact claim,
however, Plaintiff's allegations are insufficient to
state a claim.
Plaintiff's Complaint does not include allegations or
requests related to a reasonable-accommodation claim.
See Compl. ECF No. 17, at ¶¶ 70-88
(alleging that Michigan Medicaid “discriminates against
qualified individuals with disabilities solely on the basis
of” the nature and severity of their disabilities
because beneficiaries with acquired speech impairments can
receive SGDs). “In ADA cases, the plaintiff bears the
burden of establishing the elements of the prima facie case,
including-if needed-‘the existence of a reasonable
accommodation' that would enable him to participate in
the program, service, or activity at issue.”
Ability Ctr. of Greater Toledo v. Lumpkin, 808
F.Supp.2d 1003, 1024 (N.D. Ohio 2011). At best, the Complaint
alleges that Defendant's coverage criteria has a
disparate-impact on disabled individuals under the age of
twenty-one who need SGDS for habilitative purposes, as
opposed to ...