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March 13, 1995

LAWRENCE C. GLOECKLER, in his official capacity as Deputy Commissioner for Vocational and Educational Services for Individuals with Disabilities; THOMAS SOBOL, in his official capacity as Commissioner of the New York State Education Department; OFFICE OF VOCATIONAL AND EDUCATIONAL SERVICES FOR INDIVIDUALS WITH DISABILITIES of the New York State Education Department; and The NEW YORK STATE EDUCATION DEPARTMENT, Defendants.


The opinion of the court was delivered by: FREDERICK J. SCULLIN, JR.

This action was brought by plaintiff seeking declaratory and injunctive relief and monetary damages under Section 504 of the Rehabilitation Act of 1973 ("The Act"), Section 202 of the Americans with Disabilities Act of 1990 ("ADA") and 42 U.S.C. § 1983 for unlawful discrimination in the provision of services, programs and/or activities by a public entity. It is presently before the Court on cross motions for summary judgment.


 Plaintiff suffers from multiple sclerosis, a neurological impairment which is progressive in nature. He has been a client of New York State's Office of Vocational and Educational Services for Individuals with Disabilities ("VESID") since 1984. As a result of his impairment, plaintiff is wheelchair bound with limited use of his upper extremities and a deteriorating ability to speak.

 Pursuant to the Title I of the Rehabilitation Act, plaintiff was issued an Individualized Written Rehabilitation Plan ("IWRP") by his counselors at VESID. Plaintiff's original IWRP, in 1991, included the vocational goal of data clerk. After plaintiff unsuccessfully attempted to secure such employment, however, his goal was changed to that of a homemaker, which is a valid employment goal according to VESID's regulations.

 In 1992, plaintiff notified VESID that he was interested in purchasing a van, which he claimed was necessary for transportation as a result of his being wheelchair bound. Prior to making this purchase, plaintiff requested that VESID pay for the necessary modifications that would be required to accommodate his disability. Under the VESID policy statement § 1350.00, a VESID client can receive reimbursement for modifications necessary to customize a vehicle to accommodate their disabilities. This policy statement allows for a maximum reimbursement of $ 10,500 for modifications to a vehicle in which the client will function as the driver and a maximum of $ 4,000 for modifications to vehicles which the client will only utilize as a passenger.

 As part of its evaluation of this request, VESID required plaintiff to have his driving abilities tested. These tests resulted in a determination that plaintiff was too severely disabled to drive a motor vehicle. As a result, in June 1992, VESID notified plaintiff that he was only entitled to $ 4,000 reimbursement for modifications to his van. Furthermore, plaintiff's VESID counselor determined that a van was not necessary in order for him to meet his goal of homemaker.

 Notwithstanding these determinations, plaintiff's counselor twice submitted a request for a waiver of the $ 4,000 cap to the central office staff. *fn1" Plaintiff's waiver requests were denied by central office on the grounds that special transportation for disabled persons was available to plaintiff and personal transportation, i.e., the van, was not necessary to help him achieve his goal of homemaker. Plaintiff then requested and received a fair hearing to challenge the denials. On November 12, 1992, an Administrative Law Judge ("ALJ") found in favor of VESID, affirming the waiver denial. Defendant Gloeckler, the Deputy Commissioner of VESID at the time, declined to review this decision and, as a result, the decision became final.

 Despite his inability to procure a waiver, plaintiff purchased the van and paid to have it modified. The total cost of the necessary modifications was $ 10,400. Despite its earlier determination and the ALJ finding that plaintiff did not need a van in order to meet his vocational goal, VESID paid $ 4,000 towards the modifications pursuant to the limitation in section 1350.00. Plaintiff commenced this action in September, 1993, claiming that the policy set forth in Section 1350.00 violates section 504 of the Rehabilitation Act, section 202 of the ADA and 42 U.S.C. § 1983.


 Plaintiff's claim is based on his belief that he was discriminated against on the basis of his disability because he was denied full reimbursement for the van modifications solely because he was too disabled to drive. In essence, plaintiff claims that had he not been so severely disabled, he would have been able to drive his van and, therefore, he would have been entitled to $ 10,500 in reimbursement for modifications pursuant to Section 1350.00.

 Section 504 of the Rehabilitation Act

 Section 504 of the Rehabilitation Act was passed in order to guarantee "handicapped individuals access to programs or activities receiving federal financial assistance." U.S. v. University Hosp., SUNY Stony Brook, 729 F.2d 144, 159 (2d Cir. 1984). The statute provides, in pertinent part:

No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....

 29 U.S.C. § 794(a). It is clear, however, that the intended purpose of section 504 was to ensure that handicapped individuals and non-handicapped individuals receive similar treatment and equal access to federally funded programs. Traynor v. Turnage, 485 U.S. 535, 108 S. Ct. 1372, 1382, 99 L. Ed. 2d 618 (1988); Johnson by Johnson v. Thompson, 971 F.2d 1487, 1494 (10th Cir. 1992) ("Section 504 proscribes discrimination between the nonhandicapped and the 'otherwise qualified' handicapped."). It is therefore questionable as to ...

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