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.
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 whether Congress even intended section 504 to provide plaintiffs with a claim for discrimination vis-a-vis other handicapped individuals.
While the Supreme Court has never ruled upon whether section 504 applies to this type of claim, it has stated that "there is nothing in the Rehabilitation Act that requires that any benefit extended to one category of handicapped persons also be extended to all other categories of handicapped persons."
Traynor, 108 S. Ct. at 1382. Similarly, the Second Circuit has noted that "the law governing § 504 did not clearly establish an obligation to meet [a handicapped individual's] particular needs vis-a-vis the needs of other handicapped individuals, but mandated only that services provided nonhandicapped individuals not be denied [a handicapped individual] because he is handicapped."
P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d Cir. 1990). Accordingly, it would seem that section 504 was not intended to be used to advance claims of discriminatory distribution of services to handicapped persons under the Rehabilitation Act.
The logic of this ruling becomes even more apparent when one attempts to apply the facts of the case at bar to the test for establishing a prima facie section 504 claim.
In order to establish a prima facie case of discrimination under section 504 of the Rehabilitation Act, plaintiff must prove that (1) he is a "handicapped person" under the Act; (2) he is "otherwise qualified" for the benefit sought; (3) he is being denied the benefit "solely by reason of" his handicap; and (4) the benefit exists as part of a federally funded program. Doe v. New York University, 666 F.2d 761, 774 (2d Cir. 1981).
In the case at bar, it is undisputed that two of these elements have been satisfied: that plaintiff's condition renders him handicapped under the Act, and that VESID is a federally funded program. However, in order for plaintiff to establish the "otherwise qualified" element of a section 504 claim, he must show that, absent the disability, he would have been entitled to the benefit which was denied him.
Id., at 775. Because the Rehabilitation Act does not provide any benefits or services to non-handicapped individuals, plaintiff cannot be "otherwise qualified." Plaintiff cannot prove that he was denied services based on his handicap and, at the same time, prove that in spite of his handicap he was otherwise entitled to those services. Defendant accurately contends that plaintiff would be unable to establish such proof because, absent his disability, he would not be eligible for any services under the Act.
The Second Circuit has held that section 504 does not apply to medical treatment cases where "the handicap itself . . . gives rise to, or at least contributes to, the need for services." University Hosp., 729 F.2d at 156. This determination was based upon an analogous situation to the present case - one in which, absent the handicap, there would be no need for the medical care, therefore the handicapped individual could never be "otherwise qualified" for the treatment. The Court reasoned that "one would not ordinarily think of a newborn infant suffering from multiple birth defects as being 'otherwise qualified' to have corrective surgery . . . ." Id.; see also, Johnson, 971 F.2d 1487; Woolfolk, 872 F. Supp. 1381, 1995 WL 11976.
It would seem that the medical treatment context is directly analogous to the Rehabilitation Act context, thereby requiring similar treatment. Though some courts have held that section 504 is available to handicapped plaintiffs suing for discriminatory distribution of services under the Act, none have directly addressed the situation presented in the case at bar.
Here, plaintiff alleges that he was denied specific services, i.e., the $ 10,500 reimbursement limitation for van modifications, "solely by reason of" his having multiple sclerosis. However, to establish such a claim, the plaintiff must show that the denial of services (full reimbursement) was the result of class-based discrimination towards all multiple sclerosis sufferers.
The test, for establishing such a discriminatory animus, is not whether any other handicapped individuals are receiving the alleged benefits, but rather whether others "with the same handicap " as plaintiff are receiving the benefits.
The word solely provides the key: the discrimination must result from the handicap and from the handicap alone. If others with the same handicap do not suffer the discrimination, then the discrimination does not result "solely by reason of [the] handicap."