Radaszewski, Donna v. Maram, Barry ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3657
DONNA RADASZEWSKI, Guardian,
on behalf of ERIC RADASZEWSKI,
Plaintiff-Appellant,
v.
BARRY S. MARAM,* Director,
Illinois Department of Public Aid,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 9551—John W. Darrah, Judge.
____________
ARGUED SEPTEMBER 8, 2003—DECIDED SEPTEMBER 8, 2004
____________
Before KANNE, ROVNER, and DIANE P. WOOD, Circuit
Judges.
ROVNER, Circuit Judge. As a consequence of brain
cancer and a stroke that he suffered at the age of 13, Eric
*
Barry S. Maram, the current director of the Illinois Department of
Public Aid, is substituted as the defendant in lieu of the named
defendant, Jackie Garner. Fed. R. App. P. 43(c)(2).
2 No. 02-3657
Radaszewski requires around-the-clock medical care in
order to survive. Until he reached the age of 21, the Illinois
Department of Public Aid (“IDPA” or the “Department”)
provided funding through a Medicaid program for children
that enabled Eric to receive 16 hours of private-duty nurs-
ing at home each day. After he turned 21, Eric was no
longer eligible to participate in that program. Illinois has a
separate program providing at-home care for adults who
would otherwise have to be cared for in institutions. How-
ever, funding under that program is capped at a level that
is insufficient to pay for the extent of private-duty nursing
that Eric would need in order to remain at home. Conse-
quently, Eric faces the prospect of entering a long-term care
facility in order to receive the intensive medical care that he
needs. Eric’s mother, Donna Radaszewski, filed this suit
against the Director of the IDPA (the “Director”) on Eric’s
behalf, contending that the IDPA’s failure to fully fund at-
home, private-duty nursing for Eric amounts to disability
discrimination in violation of section 504 of the Rehabilita-
tion Act of 1973, 29 U.S.C. § 794 (the “Rehabilitation Act”),
and Title II of the Americans with Disabilities Act of 1990,
42 U.S.C. § 12132 (the “ADA”), in that Illinois is refusing to
provide the medical services that Eric requires in order to
remain in the most community-integrated setting appropri-
ate for his needs, which is his home. The district court
entered judgment on the pleadings in favor of the Director,
reasoning that the ADA claim against the Director was
barred by the Eleventh Amendment and that the Rehabili-
tation Act claim failed as a matter of law because in-home
nursing care is not a service that Illinois currently provides
to any adult individual. We reverse and remand for further
proceedings.
I.
As this case was resolved on the basis of the pleadings, we
accept the facts alleged in Radaszewski’s supplemental
No. 02-3657 3
complaint as true. E.g., Midwest Gas Servs., Inc. v. Indiana
Gas Co., 317 F.3d 703, 709 (7th Cir.), cert. denied, 124 S. Ct.
82 (2003). We also take judicial notice of the contents of
certain matters in the public record, including administra-
tive findings about Eric’s medical status and needs. See,
e.g., Menominee Indian Tribe of Wisconsin v. Thompson, 161
F.3d 449, 456 (7th Cir. 1998).
Eric was diagnosed with medulloblastoma, a form of brain
cancer, in 1992. After undergoing surgery, radiation, and
chemotherapy to treat the cancer, Eric suffered a mid-brain
stroke in 1993. The cancer, stroke, and medical treatment
have impaired Eric’s physical and mental functions and left
him medically fragile. In the opinion of his physician, Eric
requires one-on-one care by a registered nurse 24 hours per
day in order to survive.
Since July 1994, Eric has received around-the-clock care
at his parents’ home. In August 1995, when his family had
exhausted its medical insurance benefits, Eric began to
receive at-home nursing care through the Illinois Medicaid
program.
Medicaid, a program funded jointly by the States and the
federal government, provides medical assistance both to dis-
abled individuals and to families with dependent children
whose income and resources are otherwise insufficient to
pay for the cost of the medical care that they require. See 42
U.S.C. § 1396; 305 Ill. Comp. Stat. Ann. 5/5-1. Each State
participating in the Medicaid program must submit for
approval to the U.S. Secretary of Health and Human
Services (“HHS”) a plan setting forth the services that the
State will provide in its Medicaid program. 42 U.S.C.
§§ 1396, 1396a(a)(10), 1396d(a), 42 C.F.R. § 440.230(a).
“Private-duty nursing,” defined as nursing services pro-
vided to a person who requires more individualized and
continuous care than would routinely be provided by a
visiting nurse or by the nursing staff of a hospital or skilled
4 No. 02-3657
nursing facility, 42 C.F.R. § 440.80, is one of the services
that a State may elect to include in its Medicaid plan. 42
U.S.C. §§ 1396d(a)(8), 1396a(a)(10)(C); 42 C.F.R. § 440.225.
A State may choose to provide private-duty nursing services
at the recipient’s home, at a hospital, or at a skilled nursing
facility. 42 C.F.R. § 440.80(c). Prior to this litigation, the
Illinois Medicaid plan included coverage for private-duty
nursing, provided that such nursing was recommended by
a physician, prior approval was obtained from the appropri-
ate State agency, and the care was provided by someone
other than the recipient’s relative; the plan imposed no
limitation on the cost of such care, nor did it limit where
private-duty nursing could be provided to the Medicaid
recipient. See Radaszewski ex rel. Radaszewski v. Garner, 805
N.E.2d 620, 623-24 (Ill. App. Ct. 2003), supplemented on
denial of reh’g (March 25, 2004). In the course of this litiga-
tion, however, Illinois drafted an amendment to its
Medicaid plan to delete all references to private-duty
nursing and submitted the amendment to HHS for clear-
ance; the Secretary approved that amendment on February
2, 2001. Id. at 622-23; Radaszewski Reply Br. Addendum
12-13. The State then initiated rulemaking under the
Illinois Administrative Procedure Act to implement the
change; that process was completed as of September 1,
2001. See Radaszewski, 805 N.E.2d at 622-23.
In addition to the services outlined in their basic Medicaid
plans, States may seek HHS approval to provide home and
community-based services to individuals who would other-
wise require institutional care. The HHS Secretary may
approve these services in the exercise of his “waiver” au-
thority, so labeled because it empowers the Secretary to
waive certain Medicaid requirements that would otherwise
constrain a State’s ability to offer these services—e.g.,
service limitations and financial eligibility criteria. See 42
U.S.C. § 1396n(b)-(h); 42 C.F.R. § 430.25(d). This power is
often used to authorize innovative and experimental
No. 02-3657 5
programs. As relevant here, it facilitates state programs
designed to provide home- and community-based services to
persons who would otherwise have to be cared for in nursing
homes or other institutions: specifically, the Secretary may
issue waivers permitting a State to offer these services only
to individuals who need them in order to avoid
institutionalization, rather than to every State citizen who
qualifies for Medicaid. See 42 U.S.C. § 1396n(c)(1). In seeking
approval for a waiver program offering home and commu-
nity care, however, the State must certify that it is cost-
neutral in the sense that the average per-person cost of the
care offered through the waiver program does not exceed
the average cost of providing that care in an institutional
setting. See § 1396n(c)(2)(D); 42 C.F.R. § 441.302(e).
Pursuant to this waiver authority, HHS has approved
Illinois’s Medicaid program for Medically Fragile, Technology
Dependent Children (the “MFTDC program”). This program
offers a variety of home- and community-based services and
equipment to medically fragile persons under the age of 21
who would otherwise have to be cared for in a skilled
pediatric facility or a hospital. See 89 Ill. Admin. Code §
140.645. The services offered by this program include
private-duty shift nursing and respite care in the recipient’s
home. The amount of services that a person may receive
under this program is determined with reference to the cost
of the care that he or she alternatively would require in a
skilled pediatric facility or a hospital. 89 Ill. Admin. Code
§ 140.645(c)(3).1
1
The Director points out that Congress has required each State
to provide comprehensive medical screening, diagnostic, and
treatment to persons under the age of 21, even if such care
involves services not otherwise covered under the State’s basic
Medicaid plan. See 42 U.S.C. §§ 1396d(a)(4)(B), 1396d(r); see also
305 Ill. Comp. Stat. Ann. 5/5-19(a) (outlining Illinois’s Healthy
(continued...)
6 No. 02-3657
Eric was found eligible for the MFTDC program and be-
gan receiving services in 1995. Based on the estimated cost
of the level of care that Eric would require in a medical
institution, the IDPA approved a care plan for Eric that
called for 16 hours per day of in-home nursing services
provided by registered nurses. Eric’s parents, who were
given special training so that they could provide the nec-
essary care for Eric, tended to him the remaining eight
hours of each day. In order to provide them with periodic
relief from that responsibility, the IDPA also provided Eric
an additional 336 hours of respite nursing services per year.
The IDPA approved this care plan annually until Eric
reached the age of 21 when, by virtue of his age, he became
ineligible for continued participation in the MFTDC
program.
Illinois has a separate HHS-approved waiver program for
disabled adults—the Home Services Program (“HSP”)—
which, like the MFTDC program, offers services not other-
wise covered by the State’s basic Medicaid program and
which enables such adults to continue living at home in lieu
of being cared for in an institution, provided that the cost of
at-home care does not exceed the cost of institutional care.
See 89 Ill. Admin. Code §§ 676.10(a), 676.30(j), 682.100.
However, the services provided pursuant to the HSP are
limited by a Service Cost Maximum (“SCM”) established by
the IDPA. 89 Ill. Admin. Code § 679.50(a). The SCM is
determined with reference to what it would cost to provide
nursing care to the recipient in an institutional setting, e.g.,
a hospital or a nursing facility. See id.; see also 42 C.F.R. §
441.302(c). Based on his degree of impairment and his need
for medical care, an individual who seeks to participate in
1
(...continued)
Kids Program). By virtue of that mandate, States may in practice
offer more Medicaid services to persons under the age of 21 than
they do to adults.
No. 02-3657 7
the HSP is assigned a Determination of Need (“DON”) score
reflecting his risk of institutionalization. See 89 Ill. Admin.
Code §§ 676.30(d), 679.10-679.50. Eric received a DON score
of 70, and at that time, the standard SCM for an individual
with that DON score was $1,857.00 per month. See 89 Ill.
Admin. Code § 679.50 (b) (setting forth current SCMs for
participants in HSP). A higher “exceptional care rate” may
be approved for an individual with a “complex medical
diagnosis.” See 305 Ill. Comp. Stat. Ann. 5/5-5.8a; 89 Ill.
Admin. Code § 140.569(a); In re Appeal of Eric
Radaszewski, Appeal No. 00-019688-HSP, Findings of Fact
of the Hearing Officer ¶ F (IDPA Aug. 18, 2000) (hereinafter,
“IDPA Hearing Officer Findings”).2 A counselor with the
IDPA’s Office of Rehabilitation Service (“ORS”), after
reviewing Eric’s situation, requested and obtained approval
of an exceptional care rate for Eric in the amount of $4,593
per month. However, in the assessment of Eric’s physician,
that amount would only be sufficient to cover four to five
hours per day of at-home nursing services for Eric. The
estimated cost of maintaining Eric’s at-home care 24 hours
per day3 is between $15,000 and $20,000 per month.
2
The exceptional care rate corresponds to what the IDPA would
pay a skilled nursing facility to provide “exceptional medical care” to
the individual. See 305 Ill. Comp. Stat. Ann. 5/5-5.8a; 89 Ill. Admin.
Code § 140.569(a)(1). “Exceptional medical care” is defined as “the
level of medical care required by persons who are medically stable for
discharge from a hospital but who require acute intensity hospital
level care for physician, nurse, and ancillary specialist services .
. . .” 305 Ill. Comp. Stat. Ann. 5/5-1.1(i); see also 89 Ill. Admin.
Code § 140.569(a)(2). Persons eligible for such care, and for
reimbursement at the exceptional care rate, include (but are not
limited to) individuals with head injuries, ventilator-dependent
persons, and persons with HIV/AIDS. Id.
3
Although Eric’s parents historically have provided eight hours
of care to Eric each day, the record indicates that they are now
seeking to have the State fund 24-hour-per-day care to Eric, as the
(continued...)
8 No. 02-3657
However, the ORS contended that it was not authorized to
pay for at-home medical care in excess of what it would cost
to provide exceptional care for Eric at a skilled nursing
facility. The IDPA took the position that if funding at the
exceptional care rate was insufficient to provide for Eric’s
care at home, then he would to have to move to an institu-
tional setting in order to receive care. It determined that
Eric could be adequately cared for in a nursing home
facility.
Eric filed an administrative grievance with the IDPA,
contending that the Department should be required to pay
more than the exceptional care rate so that he could con-
tinue receiving the care he requires at home rather than in
a nursing home. At the conclusion of an evidentiary hearing
conducted in July 2000, a hearing officer made a number of
factual determinations, including the following findings as
to the level of care that Eric requires:
H. The uncontradicted evidence submitted by Grievant
[Eric] is that the Grievant would be at risk of danger if
he should be placed in a nursing home. Grievant’s
doctor testified that Grievant needs substantial one on
one nursing care to survive. He is medically fragile, prone
to infections, immobilized, catheterized and relies on
oxygen. A registered nurse is required to look for prob-
lems before they become “full blown and he crashes,”
according to Grievant’s doctor. His immunological re-
sponses were severely compromised due to earlier radi-
ation and chemotherapy, so skilled nursing care is a
3
(...continued)
state of their own health has diminished their ability to care for
Eric themselves. Eric’s father has suffered a stroke and can no
longer drive or help move Eric. Eric’s mother was diagnosed with
a brain tumor, and as a result of the tumor and the treatment for
it, she cannot tolerate heat and suffers from dizzy spells. IDPA
Hearing Officer Findings ¶ G.
No. 02-3657 9
“question of survival, not a question of doing well.” The
physician strongly urged that Grievant be given the
funds to support 24 hours per day of skilled nursing
care. Placing Grievant in a nursing home facility of the
type suggested by the State, according to the physician,
would result in Grievant being seriously medically com-
promised, which would lead to many hospitalizations.
I. Grievant’s physician’s opinion was supported by the
registered nurse in charge of Grievant’s care. He
described Grievant’s medical needs in detail. Grievant
has no sense of thirst, so his hydration must be care-
fully monitored in order to avoid serious medical com-
plications. Although Grievant has difficulty swallowing,
he can be given soft food, but only under careful condi-
tions. His nutrition must be carefully monitored.
Grievant cannot protect his airway by turning his head;
any aspiration of food, liquid or medicine can become a
medical emergency. Chronic sinus infections lead to
sepsis, which can be rapid and acute. Grievant also has
osteoporosis and is in danger of breaking bones. His
risk of injury is high because he sometimes forgets he
cannot walk. His short-term memory is not good and he
is often confused. He also has difficulty with urination
and elimination, which if left untreated, can result in
medical emergencies. Grievant has to be under constant
surveillance.
J. According to the expert witness offered by Grievant,
Grievant could not get the level of required nursing care
in a nursing home facility, including the facility sug-
gested by the State (Alden Lincoln Park Nursing
Facility). In her assessment for this hearing, the expert
contacted several nursing homes (including Alden) and
asked about the level of care provided. According to this
witness, none would provide the level of care need by
Grievant: 24 hour[s] per day by skilled clinical nurses.
She based her assessment on the Grievant’s medical
10 No. 02-3657
file, her observation of Grievant, and her 20 years of
experience as a skilled nursing professional.
IDPA Hearing Officer Findings ¶¶ H-J. Presented with the
hearing officer’s factual findings and Eric’s grievance, IDPA
Director Ann Patla concluded that the sole issue that she
had the authority to resolve was whether the IDPA’s own
rules permit the HSP to pay for an individual’s medical care
at a level greater than the exceptional care rate. She
concluded that they do not. In a decision issued in August
18, 2000, she stated: “I find that the Rules set forth do not
allow the HSP program to pay greater than the SCM at the
exceptional care rate in any case.” In re Appeal of Eric
Radaszewski, Appeal No. 00-019688-HSP, Final Adminis-
trative Decision (IDPA Aug. 18, 2000).
On September 1, 2000, Radaszewski filed a complaint for
declaratory and injunctive relief against the IDPA director
in federal court, asserting that a reduction in the level of
private-duty nursing provided to her son at home would
constitute a violation of the federal Medicaid statute as well
as a deprivation of due process in violation of the Four-
teenth Amendment. She sought and obtained a temporary
restraining order obligating the IDPA to continue funding
Eric’s at-home care. However, the district court subse-
quently denied Radaszewski’s request for a preliminary
injunction, concluding that Radaszewski’s complaint alleged
no viable federal claim and that the court consequently
lacked authority to award her preliminary injunctive relief.
Radaszewski v. Patla, No. 00 C 5931, Order (N.D. Ill. Nov.
7, 2000). Radaszewski appealed the preliminary injunction
ruling to this court. While that appeal was pending, HHS on
February 2, 2001, approved the amendment to Illinois’ basic
Medicaid plan eliminating private-duty nursing as a service
provided under that plan. Both parties agreed that the
amendment rendered Radaszewski’s lawsuit moot. On that
basis, we dismissed her appeal in an unpublished order.
No. 02-3657 11
Radaszewski v. Patla, No. 00-3929, 2 Fed. Appx. 565, 2001
WL 242169 (7th Cir. March 8, 2001) (unpublished) (text
available in Westlaw).
Meanwhile, in December 2000, after the district court had
denied her motion for a preliminary injunction, Radaszewski
filed suit against the IDPA Director in Illinois court—
seeking injunctive relief compelling the IDPA to fully fund
the cost of the private-duty nursing care that Eric required
in order to remain at home. Each of the theories that
Radaszewski asserted in support of this relief was premised
on state law. The state court entered a temporary injunc-
tion requiring the IDPA to restore funding to the
Radaszewski family sufficient to pay for 16 hours of private-
duty nursing per day. That injunction, we are told, remains
in effect today. Nearly one year later, the state court
granted Radaszewski leave to file a supplemental complaint
which added, inter alia, claims under Title II of the ADA, 42
U.S.C. § 12132, and Section 504 of the Rehabilitation Act,
29 U.S.C. § 794. Radaszewski contended that the IDPA’s
refusal to pay for full-time private-duty nursing for Eric at
his home was inconsistent with the State’s duty, pursuant
to regulations promulgated under both the ADA and Rehabil-
itation Act, to provide care for a disabled person in the most
community-integrated setting appropriate for that person.
Based on the newly alleged violations of federal law, the
Director removed the action to federal court. Radaszewski
asked the district court to remand the case to state court.
The district court remanded the state-law claims alone,
reasoning that it lacked supplemental jurisdiction over
those claims under Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 104 S. Ct. 900 (1984).
Radaszewski v. Garner, No. 01 C 9551, 2002 WL 31430325,
at *6 (N.D. Ill. Oct. 21, 2002). The state circuit court
subsequently granted judgment on the pleadings in favor of
the Director. However, the Illinois Appellate Court reversed
that judgment and remanded for further proceedings,
12 No. 02-3657
concluding there were questions concerning the propriety of
the rulemaking vis-à-vis the elimination of private-duty
nursing services from the State’s Medicaid plan that could
not be resolved on the pleadings. Radaszewski ex rel.
Radaszewski v. Garner, supra, 805 N.E.2d at 627.
The district court dismissed Radaszewski’s ADA claim
and entered judgment on the pleadings in favor of the
Director on the Rehabilitation Act claim. Radaszewski v.
Garner, No. 01 C 9551, 2002 WL 31045384, 24 Nat’l
Disability L. Rep. ¶ 187 (N.D. Ill. Sept. 11, 2002). Relying
on this court’s opinion in Walker v. Snyder, 213 F.3d 344
(7th Cir. 2000), the court determined that Radaszewski
could not sue the Director in her official capacity in federal
court for relief under Title II of the ADA. Walker held that
the doctrine of Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441
(1908), which permits private suits against state officials in
federal court for injunctive relief, is unavailable in Title II
cases; in Walker’s view, the proper defendant in such a case
was the state agency itself, which, in light of the Eleventh
Amendment, could only be sued in state court. 213 F.3d at
347. Although the district court agreed that case law post-
dating Walker (including the Supreme Court’s decision in
Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S.
356, 374 n.9, 121 S. Ct. 955, 968 n.9 (2001)) had called into
question the validity of Walker’s holding, the court felt
constrained to follow Walker until such time as either this
court or the Supreme Court overruled it. The court therefore
dismissed the ADA claim. 2002 WL 31045384, at *2.
As for the Rehabilitation Act claim, the court reasoned
that neither the Rehabilitation Act nor the ADA “require[s]
that the State create and fund a program that does not al-
ready exist” in order to enable a disabled person to be cared
for in the most integrated community setting possible; rather,
what the statutes require is even-handed treatment as be-
tween able and disabled individuals. Id., at *3. In the
court’s view, it was clear that the IDPA had not discrim-
No. 02-3657 13
inated against disabled individuals: although the State
makes at-home, private-duty nursing services available to
disabled individuals under the age of 21, no one over the
age of 21—disabled or not—receives such services through
the Illinois Medicaid program. Id.4 In essence, Radaszewski
was seeking to compel the State to provide services to her
son at home that it did not otherwise provide, and this
exceeded the scope of the State’s duty under the Rehabilitation
Act and the ADA. “[T]he IDPA is not required to provide the
handicapped more coverage than the non-handicapped
individual to assure ‘adequate health care.’ ” Id. For that
reason the court concluded that the Director was entitled to
judgment on the pleadings on the Rehabilitation Act claim.
Id.
II.
We review de novo the district court’s decision to enter
judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). R.J. Corman Derailment Servs., LLC v.
Int’l Union of Operating Engineers, Local 150, AFL-CIO,
335 F.3d 643, 647 (7th Cir. 2003). In the course of that re-
view, we accept the truth of the allegations in Radaszewski’s
4
In fact, as the IDPA concedes, the HSP makes it possible for a
disabled person over the age of 21 to receive at least some private-
duty nursing services at home. Although private-duty nursing
services have been removed from Illinois’s basic Medicaid plan, a
disabled individual can still access such services through the HSP
waiver program. However, the SCM or exceptional care rate
approved for the individual HSP participant operates to limit the
amount of nursing care that he or she may receive. As we have
noted, the exceptional care rate approved for Eric would enable
him to receive only four or five hours of nursing per day, far less
than the 16 hours of daily care he received under the MFTDC
program and the 24 hours per day that he and his parents cur-
rently seek.
14 No. 02-3657
complaint. Id. Only if Radaszewski could prove no set of
facts consistent with those allegations that might support
her claim for relief may we sustain the judgment entered in
the Director’s favor. Id.
A.
The district court concluded on the strength of this court’s
holding in Walker, 213 F.3d 344, that Radaszewski could
not sue the Director for injunctive relief under the ADA.
However, Bruggeman ex rel. Bruggeman v. Blagojevich, 324
F.3d 906, 912-13 (7th Cir. 2003), issued after the district
court’s decision, recognized that Walker did not survive the
Supreme Court’s decision in Garrett. Garrett explicitly
recognized the right of a private plaintiff to assert an ADA
claim for injunctive relief against a state official in federal
court. 531 U.S. at 374 n.9, 121 S. Ct. at 968 n.9. The State
concedes, in view of Bruggeman, that Radaszewski may
seek injunctive relief from the Director consistent with the
doctrine of Ex Parte Young. Bruggeman, 324 F.3d at 912-13.
We therefore proceed to the merits of Radaszewski’s ADA
claim as well as her Rehabilitation Act claim.
B.
Title II of the ADA prohibits discrimination against
disabled persons by any public entity:
[N]o qualified individual with a disability shall, by rea-
son 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 discrimi-
nation by any such entity.
42 U.S.C. § 12132. The statute defines a “qualified individ-
ual with a disability” as one who, “with or without reason-
able modifications to rules, policies, or practices . . . meets
the essential eligibility requirements for the receipt of ser-
No. 02-3657 15
vices or the participation in programs or activities provided
by a public entity.” 42 U.S.C. § 12131(2). The term “public
entity” is defined to include “any State or local govern-
ment,” as well as “any department, agency, special purpose
district or other instrumentality of a State . . . or local
government.” § 12131(1)(a)(A), (B).
Pursuant to Title II, the Attorney General has promul-
gated a regulation providing 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
“most integrated setting appropriate” is in turn defined as
“a setting that enables individuals with disabilities to
interact with nondisabled persons to the fullest extent
possible.” 28 C.F.R. pt. 35, App. A, p. 450. This integration
mandate does not impose an unqualified obligation on a
public agency, however. Although an agency must make
such modifications as are “reasonable” in order to avoid un-
duly segregating the disabled, it is relieved of that obli-
gation if it can show “that making the modifications would
fundamentally alter the nature of the service, program, or
activity.” 28 C.F.R. § 35.130(b)(7).
The Rehabilitation Act, which applies to programs receiv-
ing federal financial assistance, contains a similar
antidiscrimination provision, 29 U.S.C. § 794(a), and a
corresponding regulation requiring that an agency adminis-
ter its programs and activities “in the most integrated
setting appropriate to the needs of qualified handicapped
persons,” 28 C.F.R. § 41.51(d). The ADA’s integration
regulation is modeled after that regulation. See Olmstead v.
L.C. ex rel. Zimring, 527 U.S. 581, 592, 119 S. Ct. 2176,
2183 (1999). And consistent with the ADA’s regulatory
scheme, that integration mandate is limited by regulatory
provisions indicating that a recipient of federal funding
need not accommodate a disabled person when the proposed
16 No. 02-3657
accommodation would impose an “undue hardship” on the
recipient. 28 C.F.R. §§ 41.53, 42.511(c); 45 C.F.R. § 84.12(c).
In view of the similarities between the relevant provisions
of the ADA and the Rehabilitation Act and their implement-
ing regulations, courts construe and apply them in a
consistent manner. Frederick L. v. Dep’t of Public Welfare of
Pennsylvania, 364 F.3d 487, 491 (3d Cir. 2004); Fisher v.
Oklahoma Health Care Auth., 335 F.3d 1175, 1179 n.3 (10th
Cir. 2003); see also Bruggeman, supra, 324 F.3d at 912
(noting that the statutory and regulatory provisions
concerning integrated care are “materially identical”). Al-
though our analysis shall focus on the ADA, that analysis
applies with equal force to Radaszewski’s Rehabilitation Act
claim.
In Olmstead, the Supreme Court, looking to the terms
and legislative history of the ADA’s Title II, along with the
integration mandate reflected in its implementing regula-
tions, held that the “unjustified institutional isolation” of a
disabled individual receiving medical care from a State
amounts to an actionable form of discrimination under Title
II. 527 U.S. at 597-603, 119 S. Ct. at 2185-88. That is so,
the Court concluded, even in the absence of traditional
proof that the disabled person is being treated differently
from a nondisabled person who is otherwise similarly situ-
ated. Id. at 598, 119 S. Ct. at 2186.
Recognition that unjustified institutional isolation of
persons with disabilities is a form of discrimination
reflects two evident judgments. First, institutional place-
ment of persons who can handle and benefit from com-
munity settings perpetuates unwarranted assumptions
that persons so isolated are incapable or unworthy of
participating in community life. Second, confinement in
an institution severely diminishes the everyday life
activities of individuals, including family relations,
social contacts, work options, economic independence,
No. 02-3657 17
educational advancement, and cultural enrichment.
Dissimilar treatment correspondingly exists in this key
respect: In order to received needed medical services,
persons with . . . disabilities must, because of those
disabilities, relinquish participation in community life
they could enjoy given reasonable accommodations,
while persons without [such] disabilities can receive the
medical services they need without similar sacrifice.
Id. at 600-01, 119 S. Ct. at 2187 (citations omitted). The
plaintiffs in Olmstead were individuals with mental dis-
abilities who had been institutionalized in state facilities.
Although their treatment providers had concluded that
their needs could be met in community-based programs,
their placement into such programs had been delayed, and
the plaintiffs filed suit under Title II, seeking to compel the
State to transfer them into a community setting. In view of
the integration mandate, the Court agreed with the plain-
tiffs that a State is obliged to provide community-based
treatment for individuals with disabilities, so long as the
State’s treatment professionals find that such treatment is
appropriate, the affected individuals do not oppose
community-based treatment, and placement in the commu-
nity can be reasonably accommodated, taking into account
the State’s resources and the needs of others with similar
disabilities. Id. at 607, 119 S. Ct. at 2190. In a footnote, the
Court disavowed any intent to hold that the ADA imposes on
the States either a particular standard of care or a require-
ment that they provide a particular level of benefits to
disabled persons. Id. at 603 n.14, 119 S. Ct. at 2188 n.14.
“We do hold, however, that States must adhere to the ADA’s
nondiscrimination requirement with regard to the services
they in fact provide.” Ibid.
Radaszewski contends that Illinois’s unwillingness to
continue funding private-duty nursing care for Eric at home
portends precisely the type of “unjustified institutional
isolation” for him that Olmstead described as form of
18 No. 02-3657
discrimination prohibited by the ADA. She asserts that Eric
satisfies each of the three conditions that the Court in
Olmstead cited as prerequisites to the State’s obligation to
provide community-based treatment. Indeed, it appears
that two of these conditions—the propriety of community-
based care for Eric, and the consent of Eric and his affected
family members—are undisputed. There is little doubt that
Eric can be cared for appropriately at home; he has been
receiving care at home since 1994, and according to the
complaint, he benefits from the support of and interaction
with his parents in that environment. And obviously, neither
he nor his family oppose the prospect of him remaining at
home; that is the point of Radaszewski’s complaint. As for
the third condition—the State’s ability to reasonably accom-
modate community-based care for the disabled individual—
Radaszewski asserts that the cost of at-home, private-duty
nursing for Eric is actually less than what the State would
spend if Eric were transferred to an institution. Thus,
Radaszewski believes that the State reasonably can accom-
modate continued at-home care for Eric without jeopardiz-
ing its resources or interfering with the State’s obligation to
care for other disabled individuals. One of the ways that it
might do this, Radaszewski suggests, is by increasing the
cap on the amount that the HSP will pay for the services
that disabled individuals need in order to remain at home.
The Director, on the other hand, construes Radaszewski’s
complaint to require a substantive change in the services
IDPA currently provides. Picking up on footnote 14 of the
Olmstead opinion, the State emphasizes that the ADA does
not guarantee that each recipient of state medical benefits
will get care precisely tailored to his needs; instead, the
statute requires the State not to discriminate vis-à-vis
services that it has chosen to provide. 527 U.S. at 603 n.14,
119 S. Ct. at 2188 n.14. Thus, post-Olmstead, courts have
recognized that a State may violate Title II when it refuses
to provide an existing benefit to a disabled person that
No. 02-3657 19
would enable that individual to live in a more community-
integrated setting. E.g., Fisher v. Oklahoma Health Care
Auth., supra, 335 F.3d at 1182-84 (State may violate Title
II when it caps the number of drug prescriptions it will fund
through Medicaid for participants in community-based care
programs, but not for persons who live in nursing homes);
Townsend v. Quasim, 328 F.3d 511, 516-20 (9th Cir. 2003)
(community-based long-term care offered to categorically
needy must be offered to medically needy as well, unless
doing so would fundamentally alter the State’s Medicaid
programs). On the other hand, courts have also held that a
State is not obligated to create new services in order to
enable an institutionalized individual to live in a more
integrated setting. E.g., Rodriguez v. City of New York, 197
F.3d 611, 615-16 (2d Cir. 1999) (neither ADA nor Rehabili-
tation Act compelled State to offer safety monitoring to
persons with mental disabilities so that such individuals
could remain at home, where safety monitoring was not an
existing personal care service that city offered through its
Medicaid program).
Here, IDPA argues, the State’s basic Medicaid plan (by
virtue of the amendment approved in 2001) does not include
private-duty nursing services. Of course, nursing generally
is a service provided, but the particular service that Eric
requires is one-on-one, private-duty nursing. The only
individuals to whom that type of nursing is offered at the
level that Eric requires are persons under the age of 21, who
may receive such services under the MFTDC waiver program.
See n.1, supra. Funding for private-duty nursing is avail-
able through the HSP program, but at a level no higher
than the exceptional care rate—which in this case would
permit no more than five hours of nursing per day. Thus, in
order for Radaszewski to obtain the relief she seeks for Eric,
the IDPA either would have to raise the age limit for
participation in the MFTDC program or raise the level of
care covered by the HSP by substantially increasing the
20 No. 02-3657
exceptional care rate for individuals with disabilities akin
to Eric’s. In the State’s view, neither modification is a
reasonable one, and either one would compel the IDPA to
alter the substance of the services it provides to Medicaid
recipients and thus to offer a new service that does not
currently exist.
A key premise of the State’s argument is that private-
duty nursing would not be provided to Eric in the institu-
tional setting that the IDPA believes is appropriate to his
level of need—i.e., in a nursing home facility. However,
from the face of the complaint, the documents in the public
record relating to Eric’s IDPA grievance, and the briefing in
this appeal, there appear to be at least two important
factual questions relating to this premise that cannot be
resolved on the pleadings.
The first of these questions is whether a nursing home
facility actually could meet Eric’s medical needs, as the
Director supposes. As we noted earlier, the IDPA calculated
the level of benefits for which Eric was eligible under the
HSP with reference to the cost of care at a nursing home
facility; and the IDPA took the position that Eric would
have to seek care in that type of facility if HSP funding at
the exceptional care rate was insufficient to pay for his care
at home. However, the Radaszewskis have consistently
challenged the notion that Eric could receive adequate care
at a nursing home facility. When Eric filed a grievance with
the IDPA challenging the exceptional care rate that the
Department had established for Eric, his parents put on
evidence that Eric could not properly be cared for in a
nursing home facility as the State contended, because such
a facility could not provide the constant, one-on-one care
that he needs in order to survive. Based on that evidence,
which apparently was uncontradicted, the hearing officer
whose findings we quoted above specifically found that Eric
“would be at risk of danger if he should be placed in a
nursing home.” IDPA Hearing Officer findings ¶ H. In view
No. 02-3657 21
of that finding, we must assume that Radaszewski will be
able to prove in this litigation that Eric, if institutionalized,
would require a more care-intensive setting than a nursing
home—a hospital, for example—in order to survive. That
possibility in turn suggests that the type and cost of
medical care that Eric would receive at a nursing home
facility are not the appropriate reference points for assess-
ing whether the private-duty nursing that Eric seeks to
receive at home is a service that would be provided to Eric
in an institutional setting.
The second question concerns the level of care that Eric
would require in an institutional setting—whether it be a
nursing home facility, a hospital, or another type of care
facility. The State posits that Eric would not receive private
nursing care in any institutional setting, even a hospital, so
that there is no institutional precedent that would support
his demand under Title II for private-duty nursing at home.
Cf. Fisher, 335 F.3d at 1183 (“Plaintiffs are simply request-
ing that a service for which they would be eligible under an
existing state program, unlimited medically necessary
prescriptions, be provided in a community-based setting
rather than a nursing home. They are not demanding a
separate service or one not already offered by the state.”);
Townsend, 328 F.3d at 517 (“Mr. Townsend simply requests
that the services he is already eligible to receive under an
existing state program . . . be provided in the community-
based adult home where he lives, rather than the nursing
home setting the state requires.”). Here again, however, the
evidence presented to the IDPA hearing officer, and that
officer’s findings, suggest that Eric might well require
continuous one-on-one nursing care if he were cared for in
an institutional setting. The hearing officer’s summary of
the testimony provided by Eric’s caretakers, most if not all
of which was undisputed, makes it plausible to suppose that
Eric cannot be left unattended—or attended only by a
person lacking significant medical skills— for any amount
22 No. 02-3657
of time. It appears from that summary that he requires
skilled assistance in order to safely accomplish many of the
bodily functions necessary to remain alive—drinking,
eating, eliminating waste, moving about, even breathing.
Radaszewski may thus be able to show that if institutional-
ized, Eric would require the equivalent of the private-duty
nursing care that, until now, he has received at home.
The Director concedes that if Eric were placed in an
institution, the IDPA would obliged to provide him with the
level of care that he needs in order to survive. So if, as the
evidence presented to the IDPA hearing officer strongly
suggests, Eric requires constant monitoring and continuous
skilled assistance in accomplishing basic bodily functions,
then the State will have to provide those services to Eric in
an institutional setting. It may well be, as the Director
represents, that an institutional facility would not assign
private-duty nurses, as such, to provide the care that Eric
requires. In lieu of one nurse assigned only to Eric, for
example, a hospital might be able to rely on a variety of
monitors to keep Eric’s life signs under surveillance, while
a pool of immediately available skilled professionals tending
to multiple patients in a care-intensive unit might be able
to provide the frequent, immediate assistance Eric requires
in order to eat, drink, and so on and to head off any of the
medical crises (e.g., choking or infections) to which he is
vulnerable. But if what that level of care adds up to is the
equivalent of around-the-clock, private-duty nursing care,
then Radaszewski may yet have a viable claim that Eric is
entitled to receive private-duty nursing care at home.
Nothing in the regulations promulgated under the ADA
or the Rehabilitation Act or in the Court’s decision in
Olmstead conditions the viability of a Title II or section 504
claim on proof that the services a plaintiff wishes to receive
in a community-integrated setting already exist in exactly
the same form in the institutional setting. Although a State
is not obliged to create entirely new services or to otherwise
No. 02-3657 23
alter the substance of the care that it provides to Medicaid
recipients in order to accommodate an individual’s desire to
be cared for at home, the integration mandate may well
require the State to make reasonable modifications to the
form of existing services in order to adapt them to com-
munity-integrated settings. Some forms of medical treat-
ment—for example, prescription medications—might be
virtually the same whether provided to the recipient in an
institution or at home. See Fisher, 335 F.3d at 1183. But
particularly when the treatment involves services provided
by medical professionals, the care might vary in format
depending on whether it is provided to the individual in an
institution or a community-based setting. If variations in
the way services are delivered in different settings were
enough to defeat a demand for more community-integrated
care, then the integration mandate of the ADA and the
Rehabilitation Act would mean very little. Of course, the
State always has the opportunity to show that adapting
existing institution-based services to a community-based
setting would impose unreasonable burdens or fundamen-
tally alter the nature of its programs and services, and for
that reason it should not be required to accommodate the
plaintiff. 28 C.F.R. § 35.130(b)(7); see Olmstead, 527 U.S. at
603-06, 119 S. Ct. at 2188-90. But so long as it is possible for
the plaintiff to show that the services he seeks to receive at
home are, in substance, already provided in the institu-
tional setting, then the State is not entitled to judgment on
the pleadings based on the argument that the services
would take on a different form or method if provided in a
community setting.
Also relevant to the question of whether continuous
private-duty nursing is a service that Illinois does not
presently offer in any setting is the fact that IDPA can and
does make available a limited amount of funding for pri-
vate-duty nursing to adults participating in the HSP. Recall
that the purpose of a waiver program like HSP is to enable
medically needy individuals to avoid institutionalization by
24 No. 02-3657
making services available to them that are otherwise not
part of the State’s basic Medicaid program. At-home
nursing care, which has now been removed from Illinois’s
Medicaid plan, would constitute such a service. The cap on
the level of funding that HSP would provide to Eric and his
family prevents him from receiving the level of private-duty
nursing services that he needs—recall that the exceptional
care rate approved for Eric would pay for only four or five
hours of private-duty nursing per day rather than the 24
hours per day that his family seeks. But the fact that the
State already provides for some private-duty nursing tends
to belie the notion that providing such care to Eric so that
he may remain at home would require the State to alter the
substance of its Medicaid programs by creating an entirely
“new”service.
Insofar as the HSP is concerned, the State contends that
Eric is ineligible for that program (and that Radaszewski
cannot plead or prove otherwise) because the cost of the
continuous care that he needs admittedly exceeds the cost
of exceptional care in a nursing facility, the latter figure
being the most that IDPA, under its current rules, will pay
for Eric’s at-home care. That point is not dispositive of the
federal claims that Radaszewski has made here. It is true,
as the Director points out, that the ADA only prohibits
discrimination against “qualified individuals with disabili-
ties,” whom (as we noted earlier) the statute describes as
disabled individuals who “with or without reasonable modi-
fications to rules, policies, or practices . . . mee[t] the essential
eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public
entity.” 42 U.S.C. § 12131(2); see Olmstead, 527 U.S. at 601-
02, 119 S. Ct. at 2187-88. For present purposes, it appears
undisputed that Eric is qualified for the receipt of home
services through the HSP in the sense that he has severe,
long-term disabilities, he is eligible for Medicaid, and he is
at risk of placement in an institutional health care facility.
See 89 Ill. Admin. Code § 682.100 (setting forth HSP
No. 02-3657 25
eligibility requirements). It is also undisputed that his
home is an appropriate care setting for Eric—he has lived
there since the onset of his disabilities with the support of
the at-home services that he received through the MFTDC
waiver program until he reached the age of 21—the very
same services that he seeks to continue receiving as an
adult.
By no means is Eric an “unqualified” disabled person in
the sense that Olmstead emphasized—he is not someone
who is “unable to handle or benefit from community set-
tings,” 527 U.S. at 601-02; 119 S. Ct. at 2187, whom the
State’s medical professionals believe is not able to live in a
community-integrated setting, id. at 602, 119 S. Ct. at 2188,
or who does not want to live in a such a setting, ibid. On the
contrary, Radaszewski’s complaint, together with the IDPA
grievance records, suggest that with appropriate care Eric
can live at home (he has in fact done so for a number of
years), that he wishes to continue doing so, and that he
profits in that environment from the daily interaction with
and nurturing by his parents and the access to on-line
learning that he has at home. Supplemental Complaint Count
I ¶ 11, Count VI ¶¶ 40-46, Count VII ¶¶ 42-45; IDPA Hear-
ing Officer Findings ¶ A (“[Eric] has been cared [for] at
home for the past 5 years through funding from the Illinois
Division of Specialized Care for Children (DSCC). This care,
plus the admirable efforts of his parents, has allowed
Grievant to be cared for in his home. Grievant wishes to be
maintained in his home with his family; this is also his
parents’ wish[ ].”). Eric thus appears to meet these “essential”
requirements for at-home care. See Townsend, 328 F.3d at
516 (plaintiff was a “qualified individual with a disability”
for purposes of Title II because he was eligible to receive
services through State’s Medicaid program, he preferred to
receive such services in a community-based setting, and
community-based services were appropriate for his needs).
Accepting the allegations of the complaint as true, Eric is
also qualified for the HSP program in the sense that the
26 No. 02-3657
cost of his continued care at home would not exceed the
anticipated cost of caring for him in an institutional setting.
As we have noted, approval for Medicaid waiver programs
offering community-based care is conditioned on certifica-
tion that the average per-capita cost of at-home or other
community-based care does not exceed the average per-
capita cost of institutional care. See 42 U.S.C. § 1396n(c)(2)(D);
42 C.F.R. § 441.302(e). In view of that federal requirement,
one of the eligibility requirements that Illinois has specified
for participation in the HSP program is that an individual
does not require in-home services that are expected to cost
more than what the State would pay to provide institutional
care to an individual with a similar DON score. 89 Ill.
Admin. Code § 682.100(h). As we have noted, Radaszewski
asserts that the cost of providing private-duty nursing care
to Eric at home, although it exceeds the exceptional care
rate approved for Eric by several multiples, is nonetheless
no greater and perhaps less than what it would cost the
State to care for Eric in an appropriate institution. We
assume, as we must, that Radaszewski will be able to prove
the truth of that assertion. Her assertion is plausible,
particularly in view of the fact that the MFTDC program,
through which Eric received funding for private-duty
nursing until he turned 21, has a similar requirement of
cost-neutrality. See 89 Ill. Admin. Code § 140.645(c)(3).
Consequently, we discern no impediment concerning Eric’s
status as a “qualified individual with a disability” that
would preclude the relief his mother seeks under Title II.
The cost of around-the-clock private-duty nursing care no
doubt is relevant to the separate question of whether re-
quiring the State to continue providing that care for Eric at
home would entail reasonable modifications to IDPA’s rules
and practices or would result in a fundamental alteration of
the services and programs that Illinois provides to similarly
No. 02-3657 27
situated individuals.5 As we have noted, the cost of provid-
ing 24-hour private-duty nursing care to Eric at home is
estimated at between $15,000 and $20,000 per month, an
amount three to four times greater than the exceptional
care rate approved for Eric. So in that respect, the State
would have to substantially increase the level of expendi-
tures it would otherwise make on Eric’s behalf under the
HSP in order to continue Eric’s at-home care. That alone
does not defeat his Title II claim. See Fisher, 335 F.3d at
1183 (“If every alteration in a program or service that
required the outlay of funds were tantamount to a funda-
5
The plaintiffs in Olmstead were, as we have indicated, persons
with mental disabilities. When it addressed the fundamental-
alteration defense in that case, the Supreme Court spoke of the
need to consider the State’s obligations to other persons with the
same broad type of disabilities, i.e., other persons with mental
disabilities. See 527 U.S. at 604, 119 S. Ct. at 2189 (“Sensibly con-
strued, the fundamental-alteration component of the reasonable-
modifications regulation would allow the State to show that, in
the allocation of available resources, immediate relief for the
plaintiffs would be inequitable, given the responsibility the State
has undertaken for the care and treatment of a large and diverse
population of persons with mental disabilities.”) (emphasis ours);
id. at 607, 119 S. Ct. at 2190 (“[W]e conclude that, under Title II
of the ADA, States are required to provide community-based treat-
ment for persons with mental disabilities when the State’s treatment
professionals determine that such placement is appropriate, the
affected persons do not oppose such treatment, and the placement
can be reasonably accommodated, taking into account the resources
available to the State and the needs of others with mental disabili-
ties.”) (emphasis ours). It is not immediately apparent here what
the relevant group of disabled persons should be for purposes of
the fundamental-alteration defense, and this is not a matter that
the parties themselves have addressed in the briefing. For present
purposes, we will refer simply to other persons with disabilities
similar to Eric’s. If and when the fundamental-alteration defense
is reached in further proceedings, the parties and the district court
will want to consider how to more precisely define and describe
that group.
28 No. 02-3657
mental alteration, the ADA’s integration mandate would be
hollow indeed.”). Once again, however, if, as Radaszewski
represents, it would cost the State no more and possibly less
to care for Eric at home than it would to care for him in an
institution, this would be highly relevant to whether the
State is obliged under Title II to provide him with full-time,
at-home care.
Olmstead did note that because a State is obliged to
maintain a full range of facilities in order to provide care for
its disabled citizens, it may not always be able to fully
realize the cost savings of placing an individual person in a
community setting rather than an institution. 527 U.S. at
604, 119 S. Ct. at 2189. Moving one resident of a state-
funded institution into the community does not necessarily
mean that the State immediately could close or reduce the
size of that institution; in the short run, the State might
incur greater costs by funding a community placement for
the individual who can be cared for there while continuing
to provide institutional services for those who cannot be
cared for in a community setting. Ibid. A court must
therefore take care to consider the cost of a plaintiff’s care
not in isolation, but in the context of the care it must
provide to all individuals with disabilities comparable to
those of the plaintiff.
This is not an assessment that can be made on the
pleadings in this case. The State may be able to show that
in view of the obligations it has not just to Eric but to all
individuals with similar disabilities, it cannot fund a home
placement for Eric without fundamentally altering the care
it provides to others with similar needs. But the evidence
might also show something different to be true. If the State
would have to pay a private facility to care for Eric, for
example, and the cost of that placement equaled or ex-
ceeded the cost of caring for him at home, then it would be
difficult to see how requiring the State to pay for at-home
care would amount to an unreasonable, fundamental
No. 02-3657 29
alteration of its programs and services. Indeed, Radaszewski
represents that this is precisely the case in Illinois, and
that, as a result, if Eric were to be cared for in an institu-
tion, the State would be paying a private contractor to pro-
vide that care. In any event, what matters at present is that
a much more developed record will be required in order to
assess whether the injunctive relief that Radaszewski seeks
would require a fundamental alteration of the State’s pro-
grams and services.
The district court therefore erred in entering judgment on
the pleadings in the Director’s favor. The allegations of
Radaszewski’s complaint permit the inference that a home
placement remains appropriate for Eric, that he and his
family do not oppose such a placement, and that such a
placement can be reasonably accommodated, taking into
account the resources available to the State and the needs
of others with comparable disabilities. See Olmstead, 527
U.S. at 607, 119 S. Ct. at 2190. At the same time, the plead-
ings do not permit a finding that the injunctive relief that
Radaszewski seeks either is unreasonable or would require
a fundamental alteration of the State’s programs and ser-
vices for similarly-situated disabled persons. Radaszewski
is entitled to proceed on her complaint.
III.
For the reasons discussed, we REVERSE the judgment on
the pleadings entered in favor of the IDPA Director and
REMAND for further proceedings consistent with this opinion.
30 No. 02-3657
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-8-04