MARCIA MORALES HOWARD, District Judge.
This case is before the Court on Defendants' Motion to Dismiss Complaint (Doc. 32; Motion to Dismiss), filed on June 8, 2010. In this case, pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12132 and 12133 ("ADA"), and the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) ("Rehab Act"), Plaintiff Michele Haddad seeks declaratory and injunctive relief, ordering the State of Florida, through its agencies, to provide her with home and community-based Medicaid services as part of the Traumatic Brain Injury/Spinal Cord Injury waiver program ("TBI/SCI Waiver Program" or "waiver program"). Plaintiff, a quadriplegic, alleges in her two-count Complaint that Defendants' failure to provide her with home and community-based Medicaid services pursuant to its TBI/SI Waiver Program would force her into an institutionalized nursing care facility. Plaintiff alleges that Defendants' actions violate the ADA and the Rehab Act and their implementing regulations, which require that state services and programs, including Medicaid, be administered "`in the most integrated setting appropriate' to the needs of the individual with disabilities." (Doc. 1; Complaint ¶ 49). Defendants' have filed a response in Opposition to the Motion to Dismiss, (Doc. 35; Response), and the matter is ripe for review.
A motion to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Rules(s)), is a motion attacking
According to her Complaint filed May 13, 2010, Plaintiff is a 49 year old woman who, on September 7, 2007, when she was 47 years old, was in a motorcycle accident caused by an intoxicated driver. Complaint ¶¶ 10, 11. She remained hospitalized in a rehabilitation hospital until January, 2008. Id. ¶ 12. As a result of the accident, Plaintiff became a quadriplegic, paralyzed from her chest down, and having minimal manual dexterity. Plaintiff uses a motorized wheelchair for ambulation. Id. ¶¶ 14-16.
In November 2007, while she was still hospitalized, Plaintiff "applied to Defendants," specifically the State of Florida, Florida Agency for Health Care Administration and the Florida Department of Health, to receive home health care through the TBI/SCI Waiver Program. She has remained on the "wait list" for services through the filing of her Complaint in May, 2010. Id. ¶ 13.
Plaintiff was married for 24 years and has two adult sons. In November, 2009, Plaintiffs husband divorced her. However, he continued to reside with her until March 2010, when one of her adult sons was able to move into her home. Id. ¶¶ 18-19.
Between January 2008 when she was discharged from the hospital, and March 2010 when her husband left the house, Plaintiffs husband was her primary caregiver. Id. ¶¶ 20. This caregiving included
Plaintiff does not want to go into a nursing home. Instead she wishes to continue residing in the community, where she maintains an active life attending church, going to movies, visiting friends, exercising at the rehabilitation hospital gymnasium, and shopping. Id. ¶¶ 26-28. She owns a home that is accessible with a ramp, a roll-in shower, and a hoyer lift. However, her sole source of income is her monthly Social Security Disability Insurance. Although she is eligible for, and receives, both Medicare and Medicaid, see id. ¶ 29, Plaintiff alleges that "[w]ithout community-based Spinal Cord Waiver services, [she] is at risk of being institutionalized, even though she desperately does not want to reside in a nursing facility." Id. ¶ 30.
In March, 2010, the TBI/SCI Waiver Program was contacted by telephone and informed of Plaintiff's changed home-care circumstances. As of the time of filing the Complaint, Plaintiff had not received any TBI/SCI Waiver Program services, and "Defendants' employee did not know when, or if, Ms. Haddad would receive Waiver services." Id. ¶¶ 31, 32. Plaintiff remained on the "wait list" and was told "to be `eligible' for these services, she will have to enter a nursing home for 60 days." Id. ¶ 41.
Plaintiff alleges that at-home community based services would cost Defendants less than her institutionalization in a nursing home to obtain those same services. Id. ¶¶ 34, 35. She alleges that the same Medicaid-funded personal-care services available in a nursing facility could be provided in the community, and indeed, are provided by Defendants "without conditioning receipt of such services on placement in a nursing facility" to "a very limited number of people who are similar to Ms. Haddad." Id. ¶¶ 37, 38.
Id. ¶ 36. Plaintiff further alleges:
Id. ¶ 43. Additionally, she asserts that the number of persons with spinal cord injuries on the "wait list" for Medicaid-funded community-based services increased from 434 to 554 in 2008, and "Defendants have recently stated that there are `no funded slots open' in the spinal cord waiver program [TBI/SCI Waiver Program]." Id. ¶¶ 44, 46-48, 67. Noting that she has been on the waiting list for the Medicaid-funded
Id. ¶ 66.
In her two-count Complaint, Plaintiff contends that Defendants have violated Title II of the ADA, 42 U.S.C. § 12132, and its implementing regulation, 28 C.F.R. § 41.51(d) (Count I), id. ¶¶ 70-75; and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and its implementing regulation, 28 C.F.R. § 41.51(d) (Count II). Id. ¶¶ 76-78. Plaintiff alleges that she is a "qualified person" with disabilities, and that with "reasonable modifications," Defendants could increase the number of spinal cord injury waiver slots in the TBI/SCI Waiver Program or expand the provision of personal care option services to individuals in their homes instead of only in an assisted living facility, "allocating the same funds Defendants would pay for [Plaintiff] in a nursing home to provide services for Ms. Haddad in the community." Id. ¶¶ 71, 72, 76. Plaintiff alleges that Defendants' denial of Medicaid funding for the community-based services she requires to avoid segregation in an institution and remain in the integrated home setting appropriate to her needs, and Defendants' requirement conditioning receipt of community-based services on her entering a nursing home for 60 days against her will, constitute unlawful discrimination in violation of the ADA and the Rehab Act. Id. ¶¶ 49, 73-75, 77-78.
Plaintiff seeks declaratory and injunctive relief requiring Defendants to provide "Medicaid services which will allow her to continue to reside in the community and not require her institutionalization." Id. ¶ 50 and at 13-14. She also seeks costs and attorney's fees pursuant to the ADA and the Rehab Act.
Concurrent with the filing of her Complaint, Plaintiff filed a Motion for Preliminary Injunction and Expedited Hearing. (Doc. 2; Motion for Preliminary Injunction). The Court directed Plaintiff to serve the Motion for Preliminary Injunction on Defendants (Doc. 4; 5/13/10 Order).
On June 23, 2010, the Court entered an Order Granting Preliminary Injunctive Relief. (Doc. 46; 6/23/10 Order). The Court's Order resolved Plaintiffs request that the Court preliminarily "enjoin Defendants from denying her in-home health care services in order to prevent her from being forced into unnecessary institutionalization in a nursing home." 6/23/10 Order at 1.
Id. at 1-2 (citations omitted). In the Order, the Court noted that it had been advised that Plaintiff was hospitalized at the time of the June 15, 2010 hearing due to medical complications unrelated to the alleged denial of services. Id. at 3-4. However, Plaintiffs counsel also advised that upon discharge, Plaintiff "would be unable to go home without the provision of the services she seeks to compel Defendants to provide." Id. at 3. Although on the day of the hearing, counsel informed the Court that Plaintiff was due to be discharged from the hospital "in two to three weeks," id. at 3-4, on June 21, 2010, Plaintiffs counsel filed a Notice stating that Plaintiff was to be discharged from the hospital on June 24, 2010. (Doc. 40). Thus, due to the "exigency of Plaintiffs current circumstances," the Court issued its 6/23/10 Order "in advance of Plaintiffs impending release from the hospital," indicating that a more "thorough written analysis" would follow. Id. at 5. In the 6/23/10 Order, having considered the evidence and legal argument presented, the Court granted the Motion for Preliminary Injunction, determining that
Id. at 8. The Court waived the requirement that Plaintiff post a bond, and ordered Defendants to immediately re-assess Plaintiff's eligibility and placement on the waiting list for services in the TBI/SCI Waiver Program, and enjoined Defendants from refusing to provide Plaintiff services consistent with those that would be authorized by the TBI/SCI Waiver Program. Id. at 8-9.
The Court issued its more lengthy analysis, setting forth the Court's reasoning, on July 9, 2010, 784 F.Supp.2d 1284, 2010 WL 6650335 (M.D.Fla.2010). (Doc. 49; 7/9/10 Opinion).
In ruling on the Motion for Preliminary Injunction, the Court repeatedly acknowledged that it was making its determination based upon the limited record before it at the time, and the "unique circumstances currently facing Plaintiff Michele Haddad." Id. at 39 n. 19. The Court anticipated further development of the evidentiary record, noting that its determination that preliminary injunctive relief is appropriate
Id.; see also id. at 6 n. 6 (based on the expedited schedule, the Court noted that "the factual record contained herein may not be completely developed" and that the findings of fact and conclusions of law on preliminary injunction "do not necessarily reflect what may be established on a record more fully developed following trial on these issues"); id. at 31 ("Defendants may be able to support these contentions on a more developed record").
In accordance with the Court's 6/23/10 Order, Defendants, on August 5, 2010, submitted the Affidavit of Kristen Russell Regarding Plaintiff's Status In The Waiver. (Doc. 56-1; Russell Aff.).
Id. ¶ 7. The parties have submitted no further reports regarding Plaintiff's status.
This case is currently scheduled for a Bench Trial during the trial term commencing August 1, 2011. (Doc. 55). The parties have proceeded with discovery in this matter. (See Docs. 55, 60, 61, 62).
Defendants have moved to dismiss Plaintiffs Complaint pursuant to Rule 12(b)(6) for failure to state a claim under the ADA and the Rehab Act for the following reasons: (1) Plaintiff cannot state a claim of discrimination under the ADA because Defendants' alleged conduct is not discriminatory, Motion to Dismiss at 2-3, 5-6; (2) Plaintiffs claims are barred by collateral estoppel, based upon the settlement in the Dubois litigation, id. at 3-5; (3) the ADA regulations do not create a private right of action, id. at 6-8; (4) the ADA does not require a public entity to provide services of a personal nature, id. at 9-13; (5) the relief requested would result in the ADA amending or abrogating the Medicaid Act, id. at 13-20; and (6) the relief requested would result in a "fundamental alteration" to the Florida Medicaid Program, in violation of the ADA, id. at 20-24.
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132.
Id. at 587, 119 S.Ct. 2176. The Court answered this question with a "qualified yes." See id. In doing so, the Court held that the unjustified institutional isolation of persons with disabilities is a form of discrimination by reason of disability. See id. at 597, 600-01, 119 S.Ct. 2176. The Court explained:
Id. at 600-01, 119 S.Ct. 2176 (internal citations omitted). To avoid the discrimination inherent in the unjustified isolation of disabled persons, public entities are required to make reasonable modifications to policies, practices, and procedures for services they elect to provide. Nevertheless, the Olmstead Court recognized that a state's responsibility, once it determines to provide community-based treatment, is not without limits. See id. at 603, 119 S.Ct. 2176.
In considering whether a proposed modification is a reasonable modification, which would be required, or a fundamental alteration, which would not, the Olmstead Court determined that a simple comparison showing that a community placement costs less than an institutional placement is not sufficient to establish reasonableness because it overlooks other costs that the state may not be able to avoid. See id. at 604, 119 S.Ct. 2176. The Court explained,
Id. Indeed, the Court recognized that the fundamental alteration defense must be understood to allow some leeway to maintain a range of facilities and services. See id.
Id. at 605-06, 119 S.Ct. 2176. Thus, having considered the ADA as well as the applicable regulations, the Court concluded that the ADA requires states to provide community based treatment for persons
Defendants argue that Plaintiff has not alleged that she was excluded from services "`by reason of ... disability'" and indeed alleges that individuals with her disability receive community-based services. Motion to Dismiss at 2.
Defendants contend that Plaintiff "lacks standing because she is a member of the class certified in Dubois v. Levine,
A party may raise an affirmative defense, such as collateral estoppel, in a Rule 12(b)(6) motion, where the existence of the defense can be judged on the face of the complaint. Concordia v. Bendekovic, 693 F.2d 1073, 1075 (11th Cir. 1982); Stephens v. State Farm Fire and Cas. Co., No. 1:03-CV-3094-JTC, 2004 WL 5546250, at *1 (N.D. Ga. June 23, 2004), aff'd, 149 Fed.Appx. 908 (11th Cir. 2005). In considering such a challenge, the Court may take judicial notice of and consider documents which are public records, that are attached to the motion to dismiss, without converting the motion to dismiss into a motion for summary judgment. This is based on the fact that such documents are "public records that [are] `not subject to reasonable dispute' because they [are] `capable of accurate and ready determination by resort to sources whose accuracy [can] not reasonably be questioned.'" Horne v. Potter, 392 Fed.Appx. 800, 802 (11th Cir.2010) (quoting Fed. R.Evid. 201(b)). Moreover, "a court may take notice of a another court's order ... for the limited purpose of recognizing the `judicial act' that the order represents or the subject matter of that litigation." United States v. Jones, 29 F.3d 1549, 1553 (11th Cir.1994).
Here, the parties do not dispute the fact that the proffered Dubois documents accurately reflect the Dubois proceedings, nor do they appear to dispute that the Court should take judicial notice of the documents. See Motion to Dismiss at 3-5; Response at 2-5; see also United States v. Jones, 29 F.3d at 1553; Fed. R.Evid. 201(b). Thus, the Court takes judicial notice of documents filed in the Dubois proceedings because they are in the public record, capable of accurate and ready determination, and not reasonably questioned, without converting the Defendants' Motion to Dismiss into a motion for summary judgment. See Horne, 392 Fed. Appx. at 802 (holding that district court properly took judicial notice of documents in plaintiffs first discrimination case and affirming dismissal of the complaint based on res judicata); Universal Express, Inc. v. SEC, 177 Fed.Appx. 52, 53-54 (11th Cir.2006) (district court could take judicial notice of complaint filed in the Southern District of New York without converting motion to dismiss into a motion for summary judgment); Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1279-80 (11th Cir.1999) (court at motion to dismiss stage was authorized to take judicial notice of relevant public record documents required to be filed with the SEC).
Having considered the Dubois documents attached to the Motion to Dismiss, the Court finds that Defendants' Motion to Dismiss based upon the doctrine of collateral
Defendants argue that the so-called "integration mandate" found in ADA implementing regulation 28 C.F.R. § 35.130(d), which provides that "[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities," does not provide a private right of action, and thus, Plaintiff fails to state a claim. Motion to Dismiss at 6-8. As support, Defendants cite to the recent Eleventh Circuit case Am. Ass'n of People With Disabilities v. Harris, 605 F.3d 1124 (11th Cir.2010), in which the court held that ADA regulation 28 C.F.R. § 35.151(d), which deals with nondiscrimination on the basis of disability in state and local services, 605 F.3d at 1129, standing alone, did not create a private right of action enabling visually impaired and disabled voters to sue state and county election officials to provide handicapped-accessible voting machines. 605 F.3d at 1132, 1135. In Harris, the court vacated the district court's decision which granted recovery based on a violation of the regulation alone.
This Court rejected Defendants' same argument in granting the Preliminary Injunction in this case, finding that the Harris decision presented no bar to Plaintiff's claims because Plaintiff is alleging a violation of the ADA, which does afford a private right of action. See 7/9/10 Opinion at 24-26. Indeed, Plaintiff specified in her Complaint that she is alleging a violation of the ADA, 42 U.S.C. § 12132, (and of the Rehab Act. 29 U.S.C. § 794(a)), as required by Harris. Complaint ¶¶ 71, 74, 77. Compare Harris, 605 F.3d at 1131 (questioning how the district court ordered the defendant to comply with § 35.151(b) without first determining whether the defendant violated the ADA or whether the ADA authorized the relief sought). The relevant provision of the ADA, 42 U.S.C. § 12132, requires all public entities to refrain
Plaintiff's Complaint sufficiently states a claim under Title II of the ADA, and the Rehab Act. The Complaint alleges that Defendants administer Florida's Medicaid Program, that the TBI/SCI Waiver Program is part of the Medicaid Program, Complaint ¶¶ 4, 8, 33, 36, 37, 38, 42, 43, and that Defendants are required to administer their Medicaid Programs, including the TBI/SCI Waiver Program, in compliance with the ADA and the Rehab Act. Id. ¶ 49. Plaintiff adequately alleges that she is a "qualified individual" with a disability, so as to qualify for the protections afforded by the ADA and the Rehab Act, id. ¶¶ 10-30, and that without the declaratory and injunctive relief sought, she is at risk of being institutionalized against her will. Id. ¶¶ 30-32. Moreover, Plaintiff has alleged that the relief requested, that is, placement in the TBI/SCI Waiver Program, can be "reasonably accommodated" by Defendants and could be accomplished without "fundamental alteration" of Defendants' program. Id. ¶¶ 31-38, 42. Accordingly, for purposes of resolving the Motion to Dismiss, the Court finds that Plaintiff has adequately alleged that Defendants have violated the ADA, 42 U.S.C. § 12132, and the Rehab Act, 29 U.S.C. § 794(a). See Olmstead, 527 U.S. at 587, 597, 600, 602-07, 119 S.Ct. 2176.
Defendants next contend that Plaintiffs claims under the ADA and the Rehab Act fail because the ADA regulations exclude personal care services sought by Plaintiff from the purview of the ADA. Defendants cite to regulation 28 C.F.R. § 35.135, which states that the ADA "does not require a public entity to provide to individuals with disabilities ... services of a personal nature, including assistance in eating, toileting, or dressing." 28 C.F.R. § 35.135. Motion to Dismiss at 9-13. Thus, to place Plaintiff in the TBI/SCI Waiver Program, would, according to Defendants, be declaring "an exception for public entities that provide [personal care] services." Id. at 10.
The Court rejected Defendants' argument in the proceedings on the Motion for Preliminary Injunction, finding that while "[t]he ADA does not require states to provide a level of care or specific services, ... once states choose to provide certain services, they must do so in a nondiscriminatory fashion. 7/9/10 Opinion at 27 (citing Olmstead, 527 U.S. at 603 n. 14, 119 S.Ct. 2176 ("States must adhere to the ADA's nondiscrimination requirement with regard to the services they in fact provide"); Fisher, 335 F.3d at 1182 (state may not amend option programs so as to violate the ADA)). The Court concluded:
Id.
Regulation Section 35.135 states that public entities that are not already providing personal services are not required to do so. However, when public entities do provide personal services, the ADA's general prohibition against discrimination requires that "[n]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services ... of a public entity, or be subjected to discrimination by any such entity," 42 U.S.C. § 12132; see also 28 C.F.R. § 35.130(a), and that "[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). The clear implication is that the ADA requires a public entity to administer its existing programs in a nondiscriminatory manner and "in the most integrated setting appropriate." See id.
Plaintiff alleges in her Complaint that Defendants have undertaken to provide personal care services in nursing homes and in the community, but refuse to provide them to her in the community unless she first enters a nursing home. Complaint, ¶¶ 8, 9, 33, 36, 38, 42, 43. Thus, notwithstanding 28 C.F.R. § 35.130, under the facts as alleged, Plaintiff has stated a statutory claim for declaratory and injunctive relief under the ADA and the Rehab Act.
Defendants assert that the relief sought by Plaintiff would require a finding that the ADA invalidates one or more provisions of the Medicaid Act, and since the ADA did not amend the Medicaid Act, Plaintiff has failed to state a claim upon which relief can be granted. Motion to Dismiss at 13-20. Defendants argue that while Medicaid mandates nursing facility services, it does not require community-based personal services. Id. at 13-16. Defendants contend that while a state may voluntarily provide additional non-mandatory services under a "waiver" agreement with the federal government, such as the TBI/SCI Waiver Program, it may "cap" the number of persons receiving waiver services. Id. at 14-15. Defendants reason that requiring them to provide in-home personal care services to Plaintiff would "nullify" provisions of the Medicaid Act. Id. at 16.
The Court addressed this same argument before, and held that Plaintiff's claim does not require a finding that the ADA invalidates or amends the Medicaid Act by mandating the provision of community-based personal care services to Plaintiff which is an otherwise optional benefit under Medicaid, 7/9/10 Opinion at 28. Indeed, the Court observed that "[a] state that chooses to provide optional services, cannot defend against the discriminatory
The Supreme Court has instructed that "the proscription of discrimination may require placement of persons with... disabilities in community settings rather than in institutions" when 1) "the State's treatment professionals have determined that community placement is appropriate"; 2) the "transfer from institutional care to a less restrictive setting is not opposed by the affected individual"; and 3) "the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities." Olmstead, 527 U.S. at 587, 119 S.Ct. 2176 (emphasis added).
Id. at 603-04, 119 S.Ct. 2176 (citing 28 C.F.R. § 35.130(b)(7)). "Fundamental-alteration" is an affirmative defense. See id. at 597, 119 S.Ct. 2176 ("evaluating a State's fundamental-alteration defense"), 603 ("cost-based defense"), 605 ("fundamental-alteration defense"). A complaint may be dismissed for failure to state a claim "when its allegations ... show that an affirmative defense bars recovery on the claim." Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11th Cir.2001). "If the complaint contains a claim that is facially subject to an affirmative defense, that claim may be dismissed under Rule
Looking at the four corners of the Complaint, as the Court must when considering a Rule 12(b)(6) Motion to Dismiss, Plaintiff has alleged that she has been on the TBI/SCI Waiver Program waiting list for two and a half years. Complaint ¶¶ 13, 40, 41, 65. When Plaintiff contacted Defendants to report her changed circumstances in March, 2010, "Defendants' employee did not know when, or if, Ms. Haddad would receive waiver services." Id. ¶ 32. In the Complaint, Plaintiff alleges that the TBI/SCI Waiver Program "community-based Medicaid services" is limited to 375 participants through 2012, that the number of persons with spinal cord injuries on the "`wait list'" increased from 434 to 554 in 2008, that Defendants have not increased the number of people with spinal cord injuries who will receive community-based waiver services, and that Defendants "have recently stated there are `no funded slots open' in the spinal cord waiver program." Complaint ¶ 43, 44, 46, 48, 64, 67. Additionally,
Id. at ¶ 66. Plaintiff alleges that Defendants have told her that to be "`eligible'" for TBI/SCI Waiver Program, "she will have to enter a nursing home for 60 days" first, id. ¶ 41, although a "very limited number of people" similar to plaintiff receive the community-based services without first entering a nursing home. Id. ¶ 38. Plaintiff alleges that the cost to Defendants of providing her community-based personal services would be less than providing those same services in the institutionalized setting, to which Defendants are requiring her to submit. Id. ¶ 34, 35.
Defendants argue first that Plaintiffs claims would "allow" the ADA to "trump" the Medicaid Act resulting in a "fundamental alteration" of the state's Medicaid Program. Motion to Dismiss at 20. As confirmed by the Supreme Court in Olmstead, and as set forth above, see supra at 15-18, Plaintiffs claims do not seek to alter any Medicaid program; instead Plaintiff seeks relief alleging that the Medicaid TBI/SCI Waiver Program offered by the state violates the ADA and the Rehab Act because it would result in her involuntary isolation and segregation in a nursing home, which the Supreme Court has said may be contrary to the ADA's proscription against discrimination.
Next, Defendants contend that placing Plaintiff in the TBI/SCI Waiver Program would result in their being "forced to reduce services that others in the TBI/SCI Waiver program are currently receiving." Motion to Dismiss at 21. As support, Defendants cite to the Affidavit of TBI/SCI Medicaid Waiver program administrator Kristen Russell, attached as an exhibit to their Motion to Dismiss. (Doc. 32-4 (Russell Aff.)). On this Motion to Dismiss, the Court's review is limited to the four corners of the Complaint which does not include the Russell Affidavit. Long, 508 F.3d at 578 n. 3; Bickley, 461 F.3d at 1329 n. 7. Defendants also argue that ordering the relief sought by Plaintiff would cause a fundamental alteration and disruption of Defendants' "`comprehensive, effectively
Recognizing that a State must have some "leeway" to administer services to disabled persons in community settings "with an even hand," the Supreme Court discussed the "fundamental-alteration defense." Olmstead, 527 U.S. at 605-06, 119 S.Ct. 2176.
Id. This defense, raised by Defendants in a motion to dismiss, cannot succeed given the allegations of the Complaint which the Court must accept as true.
After a thorough review of Plaintiff's Complaint, the Court readily concludes that Defendants' fundamental alteration defense is not established as a matter of law on the face of Plaintiffs Complaint. For example, as part of this defense, Defendants argue that they would be forced to reduce services to others and that their "comprehensive plan" would be disrupted, if they were to be forced to provide Plaintiff with the services she requests. However, Plaintiff alleges that Defendants have told her she could receive community-based services if she would enter a nursing home facility first. It is not at all apparent from the Complaint how Defendants' program would be "fundamentally altered" if Plaintiff were granted the relief requested and placed in the TBI/SCI Waiver program immediately rather than 60 days hence. Plaintiff also alleges that the community-based services cost less than institutionalized services, and that Plaintiff would receive community-based services if she first submits to involuntary institutionalization. These allegations, accepted as true, undermine Defendants' argument that providing Plaintiff with relief would force Defendants to reduce services to others. Additionally, Plaintiff alleges that she has been on the waiting list for the TBI/SCI Waiver Program for two and a half years, that she has communicated to Defendants that her circumstances are such that she faces immediate institutionalization absent placement in the TBI/SCI Waiver Program, and that Defendants are unable to certify that she will ever be placed in the community-based Waiver Program, unless she first submits to mandatory 60-day institutionalization. These allegations belie Defendants' current contention that the state has a comprehensive effectively working plan. Indeed, the allegations of the Complaint concerning the delay and uncertainty surrounding placement on, and movement off of, the TBI/SCI
Upon due consideration, it is hereby
1. Defendants' Motion to Dismiss Complaint (Doc. 32) is
2. The deadlines and settings in the Court's Case Management and Scheduling Order (Doc. 55) remain in effect.
Defendants apparently base their Rule 12(b)(1) motion on their assertion that Plaintiff "lacks standing." Motion at 2, 3; see AT & T Mobility, LLC v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 494 F.3d 1356, 1359 (11th Cir.2007) ("[s]tanding ... `is a threshold jurisdictional question which must be addressed prior to and independent of the merits of a party's claims'") (citation omitted)). Defendants contend that Plaintiff "lacks standing" because she "fails to allege discriminatory treatment," an essential element of Plaintiff's claim of a violation of the ADA. Motion at 2-3. This argument, however, does not go to Plaintiff's standing, but is addressed directly to the merits of Plaintiff's claims. As such, this challenge is more properly brought pursuant to Rule 12(b)(6). Indeed, Defendants have asserted the same challenge under Rule 12(b)(6). Id. at 5-6. Additionally, Defendants argue that Plaintiff "lacks standing" because her claims are collaterally estopped by a class settlement in a prior case, Dubois v. Levine, Case No. 4:03-CV-107-SPM (N.D.Fla.) Motion at 3-6. Such a challenge is not brought pursuant to Rule 12(b)(1). Instead, a collateral estoppel challenge brought by a motion to dismiss is made pursuant to Rule 12(b)(6). See e.g. Concordia v. Bendekovic, 693 F.2d 1073, 1075-76 (11th Cir.1982); Stephens v. State Farm Fire and Cas. Co., No. 1:03-CV-3094-JTC, 2004 WL 5546250, at *1-3 (N.D.Ga.2004), aff'd 149 Fed.Appx. 908 (11th Cir.2005); see also Ishler v. Internal Revenue, 237 Fed.Appx. 394, 397 (11th Cir. 2007) ("preclusion doctrines do not go to `jurisdiction,' but rather `provide affirmative defenses once a court exercises jurisdiction over a civil action'" (quoting Pittsburg County Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 707 n. 4 (10th Cir.2004)). Accordingly, Defendants' Motion to Dismiss will be considered in accordance with the legal standards applicable to consideration of motions brought pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure.
The Eleventh Circuit has instructed that a district court may consider extrinsic evidence in ruling on a motion to dismiss "if it is (1) central to the plaintiff's claim, and (2) its authenticity is not challenged." SFM Holdings, Ltd., 600 F.3d at 1337; see also Brown v. Brock, 169 Fed.Appx. 579, 582 (11th Cir. 2006) ("[f]irst, judicially noticed facts will not give rise to conversion ... Second, a document outside the pleadings may be considered if it is essential to the plaintiff's claim and not in dispute.... Third, conversion even without notice, will be deemed harmless if the record shows the parties understood conversion would take place and submitted all the documents they would have even with sufficient notice".... (citations omitted)); Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1267-68 (11th Cir.2002); Peterson v. Atlanta Housing Auth., 998 F.2d 904, 913 (11th Cir.1993). The Court, in its discretion, declines to consider any documents beyond those listed in the above exceptions, and thus, Defendants' Motion to Dismiss will not be converted to a motion for summary judgment. Harper v. Lawrence County, Ala., 592 F.3d 1227, 1232 (11th Cir.2010); Jones, 917 F.2d at 1531-32.
