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Edelson v. Chapel Haven, Inc.

United States District Court, D. Connecticut

March 1, 2017

SHEREEN EDELSON, et al., Plaintiffs,
v.
CHAPEL HAVEN, INC., et al., Defendants.

          RULING AND ORDER

          Stefan R. Underhill United States District Judge

         On December 22, 2015, the plaintiffs, Shereen Edelson and Arnold Menchel, acting on their own behalf and also on behalf of their disabled adult son, Robert Menchel, filed this action. The complaint alleges that the defendants, Chapel Haven, Inc. and Michael Storz (collectively “the Chapel Haven defendants”) and the Connecticut Department of Developmental Services (“DDS”), Mona Murray, the Connecticut Department of Social Services (“DSS”), and Roderick Bremby (collectively, “the State defendants”), violated various state and federal laws when they terminated Robert's access to care at Chapel Haven. (doc. 1) On March 15, 2015, both sets of defendants filed motions to dismiss the complaint. (docs. 25, 26) In response, the plaintiffs filed an amended complaint on April 4, 2016 (the “complaint” or “amended complaint”). (doc. 29) The State defendants move to dismiss portions of the five counts against them for lack of subject matter jurisdiction and move to dismiss the remainder for failure to state a claim. (doc. 34) The Chapel Haven defendants move to dismiss eleven of the fifteen claims against them for failure to state a claim. (doc. 32)

         For the following reasons, the defendants' motions are granted in part and denied in part.

         I. Standard of Review

         A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

         The party who seeks to invoke a court's jurisdiction bears the burden of establishing that jurisdiction. Thompson v. Cnty. of Franklin, 15 F.3d 245, 249 (2d Cir. 1994) (citing Warth v. Seldin, 422 U.S. 490, 518 (1975)). To survive a motion brought under Rule 12(b)(1), a plaintiff must allege facts demonstrating that the plaintiff is a proper party to seek judicial resolution of the dispute. Id.

         B. Motion to Dismiss for Failure to State a Claim Upon Which Relief May Be Granted

         A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) is designed “merely to assess the legal feasibility of a complaint, not to assay the weight of evidence which might be offered in support thereof.” Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)).

         When deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true, draw all reasonable inferences in favor of the plaintiffs, and decide whether it is plausible that plaintiffs have a valid claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996).

         Under Twombly, “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” and assert a cause of action with enough heft to show entitlement to relief and “enough facts to state a claim to relief that is plausible on its face.” 550 U.S. at 555, 570; see also Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). The plausibility standard set forth in Twombly and Iqbal obligates the plaintiff to “provide the grounds of his entitlement to relief” through more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (quotation marks omitted). Plausibility at the pleading stage is nonetheless distinct from probability, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the claims] is improbable, and . . . recovery is very remote and unlikely.” Id. at 556 (quotation marks omitted).

         II. Background

         The following facts are taken from the amended complaint. Robert Menchel is an intellectually and developmentally disabled adult. Am. Compl. at ¶ 8. Shereen Edelson and Arnold Menchel are Robert's parents, guardians, and the co-conservators of his estate. Id. at ¶ 9. Chapel Haven provides services to developmentally disabled adults, and Michael Storz serves as the president of Chapel Haven. Id. at ¶¶ 10-11. DSS is the agency designated with ensuring Connecticut's compliance with Medicaid requirements. Id. at ¶ 12. DSS has delegated to DDS the provision of home and community-based services for Medicaid recipients. Id. at ¶¶ 13, 51. Bremby and Murray are the respective Commissioners of DSS and DDS, and have been named only in their official capacities. Id.

         Chapel Haven markets itself as offering a “unique” program of lifelong and individualized services. Id. at ¶¶ 22-23. In its Community Member Handbook, Chapel Haven states that it provides a lifelong program of care. Id. at ¶ 60. The Handbook also provides that members have the right to be free from abuse and discrimination, and would only be terminated for enumerated reasons. Id. at ¶¶ 64-65.

         Robert has received services from Chapel Haven since 2000, and has participated in its Supported Living program since 2002. Id.at ¶ 27. Chapel Haven, through unidentified means and at an unidentified time, represented to the plaintiffs that it would assist Robert in all aspects of his life as he grew older. Id. at ¶ 61. In 2011, the parent-plaintiffs purchased a condominium unit for Robert within walking distance of the Chapel Haven campus, because Robert is unable to drive. Id. The amended complaint does not state where Robert was living or how he was accessing the campus between 2000 and 2011. The parent-plaintiffs also live in close proximity to the Chapel Haven campus. Id. at ¶¶ 20-21.

         Prior to his termination, Chapel Haven was providing Robert with 17 hours of individualized home support services and 22 hours of job support services per week. Id. at ¶ 28. Rosemary Williams, a Chapel Haven employee, provided Robert's home care services for over fourteen years. Id. at ¶¶ 29-34. Beginning in 2006, Robert worked for 20 hours a week at the naval base in Groton with the help of Chapel Haven's job support services, which included transportation to the base in a group van. Id. at ¶¶ 38, 40.

         A. State Involvement in Robert's Care

         The services that Robert received from Chapel Haven were paid for using federal funds through the Medicaid waiver program. Id. at ¶ 53. In order to receive payments from the Medicaid waiver program, Chapel Haven entered into an agreement with DDS to, inter alia, follow all requirements in the Waiver manual; obtain adequate information to meet the needs of the recipient; discharge a recipient only after review by an interdisciplinary team meeting and approval of the Regional Administration; and obtain prior approval from DDS before changing any support hours to any recipient. Id. at ¶ 59.

         Pursuant to that agreement, the plaintiffs allege that DDS “actively participated and acted in concert with Chapel Haven” in two primary ways: (1) DDS was required to, and actually did approve of any changes to Robert's plan of care, including termination; and (2) Robert was assigned a DDS case manager who worked jointly with Chapel Haven. See Id. at ¶¶ 66-70. The plaintiffs allege that on several occasions, DDS also conducted investigations of Chapel Haven to ensure that it complied with federal regulations and issued several citations for failures to do so. Id. at ¶ 95.

         B. Events Leading Up to Termination

         Robert had previously formed a relationship with another Chapel Haven member, Client A. Id. at ¶ 71. Client A pays Chapel Haven privately for the services she receives instead of using Medicaid funding. Id. at ¶ 73. Chapel Haven makes more money from private paying members than Medicaid members. Id. Client A's parents have also donated substantial amounts of money to Chapel Haven. Id. at ¶ 74.

         Client A developed an unhealthy attachment to Robert and exhibited serious behavioral problems including high levels of anxiety, temper tantrums, threats to a family pet, pounding on the walls of Robert's apartment, and persistent harassment of Robert. Id. at ¶¶ 76-80. The parent-plaintiffs repeatedly informed Chapel Haven about Client A's conduct and asked for assistance. Id. at ¶¶ 81, 89, 90. Chapel Haven failed to follow its internal complaint procedures or to properly supervise Client A. Id. at ¶ 91. Robert's DDS case manager also participated in meetings in which Client A's conduct was discussed, and informed the plaintiffs that another DDS case manager was managing Client A. Id. at ¶¶ 82-84. DDS did not take steps to control Client A. Id. at ¶ 86.

         Client A's unchecked and increasing harassment interfered with Robert's ability to receive and benefit from individual home and job support services. Id. at ¶¶ 87-88. By late 2013, Client A had moved her belongings into Robert's condominium. Id. at ¶ 96. Robert's neighbors repeatedly called the parent-plaintiffs to complain about Client A's disruptive conduct, and the plaintiffs, in turn, repeatedly requested that Chapel Haven and DDS intervene. Id. at ¶¶ 98-100.

         Chapel Haven and DDS then implemented a “Code Red” procedure, in which Robert was instructed to call one of three Chapel Haven employees if Client A became disruptive. Id. at ¶ 101. The plaintiffs assert that the “Code Red” procedure was not practicable because Robert's disabilities would prevent him from being able to make that call, and that Chapel Haven and DDS would have known that the procedure had that flaw. Id.at ¶¶102-04. After the procedure was implemented, the plaintiffs repeatedly requested modifications to the procedure, including allowing others to initiate the procedure. Id. at ¶¶105, 109. Chapel Haven and DDS refused those requests. Id. at ¶ 110.

         On August 6, 2014, while Robert's visiting nurse was administering his diabetes medications, Client A began provoking Robert. Id. at ¶¶ 115-16. The nurse told Client A to stop. Id. at ¶ 117. Robert became frustrated with Client A, and “an altercation followed.” Id. at ¶¶ 118-19. The nurse then intervened to separate Robert and Client A. Id. at ¶ 120. Client A, however, refused to leave Robert's condominium for another five days. Id. at ¶ 123. The parent-plaintiffs wrote to Chapel Haven through counsel proposing a “collaborative approach” to removing Client A from the apartment. Id. at ¶ 124. Getting no response, they wrote a second letter threatening to “evict” Client A. Id. at ¶ 126. Although Chapel Haven did not respond, it did remove Client A and her belongings from the premises. Id. Sunny Richards, Chapel Haven's Director of Community Programs subsequently called Robert directly to confront him over the August 6 incident. Id. at ¶ 127. Robert was very distressed by the call. Id. at ¶ 128-29.

         Beginning on August 15, 2014, as a result of the stress of the August 6 incident and its aftermath, Robert was hospitalized for seven days. Id. at ¶ 129. Prior to his discharge, a pre- discharge meeting was held with Edelson, Robert's DDS case manager, the visiting nurse supervisor, the hospital psychiatrist, and Richards. Id. at ¶ 130. The psychiatrist recommended that Robert receive modifications to his supports and opined that Robert's hospital admission had been precipitated by Client A's conduct. Id. Richards again refused to change the Code Red procedure to allow others to initiate. Id. at ¶ 131.

         Following Robert's discharge, the plaintiffs requested six specific modifications: (1) additional support hours; (2) that Roberts be dropped off from work at his condominium rather than on campus; (3) that the driver of the van ensure that Robert and Client A do not sit near each other in the van; (4) that Robert and Client A's support coordinators ensure that they do not run into each other at the supermarket; (5) allowing all competent authorities to contact Chapel Haven in the case of Client A's misbehavior; and (6) that Client A not be present at Robert's condominium. Id. at ¶ 132. The hospital supported those requests. Id. at ¶ 133. Chapel Haven did not directly respond to the parent-plaintiffs' requests. It did, however, provide additional support hours for two days, and began dropping off Robert directly at his condominium. Id. at ¶ 134-35.

         C. Termination

         On August 27, 2014, Chapel Haven notified the plaintiffs that it was terminating all services to Robert, banning him from the campus, and dismissing him from the Chapel Haven program as of October 1, 2014. Id. at ¶ 138. The plaintiffs assert that they were given no process and that the stated reason for termination was “false and pretexual” and inconsistent with the grounds for termination in Chapel Haven's Handbook, although they do not disclose what that reason was. Id. at ¶¶ 139-42.

         Chapel Haven and DDS did not inform the plaintiffs of their right to have an interdisciplinary team meeting to review the termination, as provided in Chapel Haven's Agreement with DDS, nor the right to seek a Programmatic Administrative Review (“PAR”) with DDS, nor the right to a “fair hearing” under the Medicaid statute. Id. at ¶ 147. Nevertheless, the plaintiffs learned of their right to a PAR, and requested such a meeting. Id. at ¶ 148.

         On October 1, 2014, a PAR was held. Id. at 149. It was attended by the plaintiffs and counsel, Robert's DDS case manager, Richards, and DDS employees and attorneys. Id. DDS employees apologized for miscommunications regarding five additional hours of support that had been authorized on September 30, 2014. Id. at ¶ 150. Chapel Haven agreed to make the requested modifications, and to continue providing services to Robert. Id. at ¶ 152-53. Chapel Haven also agreed to “next steps, ” including additional staff, a male mentor for Robert, a plan for the use of the additional hours, and exploration of counseling options. Id. at ¶ 154. The group agreed that it would reconvene in six to eight weeks. Id.at ¶ 155.

         The next day, however, Storz contacted DDS without notifying the plaintiffs. Id. at ¶ 156. He stated that Chapel Haven would not make the modifications to which it had agreed, and would persist in terminating Robert's services. Id. He also made false statements about Robert's prior conduct and diagnoses, and asserted that the police should have been called about Robert's conduct with Client A. Id. at ¶¶ 157, 163.

         It is unclear when or how Chapel Haven communicated its intent to persist in terminating Robert's services to the plaintiffs. The amended complaint suggests that Chapel Haven provided them with a statement of reasons insofar as it alleges that the reasons given are “false and pretextual, ” but it does not state what those reasons were. See Id. at ¶ 165. It is also unclear to what extent Chapel Haven provided the agreed-upon modifications in the interim, because the complaint alleges that Robert did receive additional support hours before his termination. See Id. at ¶ 186. The timeline is further confused by the plaintiffs' allegation that Williams, Robert's long-time caregiver, was given only 24-hours' notice of her last day working with Robert. See Id. at ¶¶ 35-37. That timeline appears to be inconsistent with the plaintiffs' allegation that DSS denied their request for a fair hearing to contest the termination in June 2015, id. at ¶ 11, but services were not actually terminated until August 1, 2015, id. at ¶ 184, giving Williams over a month's notice.

         The termination has caused Robert to lose the support and services of Williams-who is effectively bound to Chapel Haven by a non-compete agreement-his job, his friends, and his access to the Chapel Haven campus and community. Id. at ¶¶ 189-91. He does not handle stress and change well, and has become isolated and depressed. Id. at ¶¶ 194-96. Client A, however, continues to receive services from Chapel Haven and also continues to harass Robert. Id. at ¶ 188.

         III. Discussion

         Taking up some preliminary matters, I first consider whether the State defendants engaged in “state action” and whether the Chapel Haven defendants were acting as “state actors, ” closely related issues that underpin many of the federal causes of action in the plaintiffs' complaint. I resolve some technical issues raised with respect to the parent-plaintiffs. I then consider the State Defendants' motions to dismiss portions of the complaint for lack of subject matter jurisdiction and for failure to state a claim. Finally, I consider the Chapel Haven defendants' motion to dismiss for failure to state a claim.[1]

         A. State Action

         1. State Defendants

         Much of the State defendants' motion is premised on the argument that they were not sufficiently involved in Robert's care or in the termination decision to be held liable for those acts. See, e.g., State Defs.' Br. at 19 (in the context of the adverse action requirement for the retaliation claim); 23 (in the context of the freedom of choice and fair hearing provisions of the Medicaid Act); 27-31 (same); 34-35 (in the context of the due process claim). That argument relies heavily on language in the amended complaint alleging that Chapel Haven “unilaterally terminated Robert's service, ” see, e.g., Am. Compl. at ¶ 228; however, reading the complaint as a whole and drawing all reasonable inferences in favor of the plaintiffs, they have adequately alleged that the State defendants were responsible for decisions about Robert's care as active participants. The plaintiffs have alleged that DDS had a contractual right to review all changes to the care Chapel Haven provided to its members and to participate in termination proceedings. See Am. Compl. at ¶ 59. One can also reasonably infer from the complaint that DDS actually did exercise that supervisory responsibility-the complaint alleges that DDS representatives were present at the pre-discharge meeting where the August 21 modifications were discussed, id. at ¶ 130, as well as the October 1, 2014 PAR where the initial termination decision was reversed and additional modifications were proposed, id. at ¶ 149. More importantly, the amended complaint alleges that Storz contacted DDS to explain and justify his decision to proceed with the termination after the PAR meeting, id. at ¶ 156, from which one can infer that DDS then had the opportunity to approve or reject that decision.

         The State defendants' reliance on Blum v. Yaretsky, 457 U.S. 991 (1982), and Rovner v. Keystone Human Servs., 2013 WL 4016490 (M.D. Pa. Aug. 6, 2013), does not change that analysis. Blum lays out an analytical framework for determining whether a decision made by a private actor may nevertheless constitute state action. See 457 U.S. at 1004-05. The Blum Court instructed that extensive regulation was not sufficient to create state action and a State would generally be liable for the decision of a private actor only when (1) “[the State] has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State;” or (2) “the private entity has exercised powers that are traditionally the exclusive prerogative of the State.” Id. (quotation marks and citations omitted). The Court further observed that “[m]ere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible.” Id. Summarizing what would be required in the case at hand, Justice White wrote in his concurrence that the plaintiffs “must show that the transfer or discharge is made on the basis of some rule of decision for which the state is responsible.” Id. at 1012 (White, J., concurring).

         In both Blum and Rovner, the courts held there was no “state action” by a highly regulated private actor when the state agency had no contemporaneous role in the contested decision. See Blum, 457 U.S. at 1005 (“The decisions about which respondents complain are made by physicians and nursing home administrators, all of whom are concededly private parties.”); Rovner, 2013 WL 4016490, at *1 (“It is undisputed that the Commonwealth defendants played no active role in any of these events.”). By contrast, in the present case, the plaintiffs have alleged that the DDS actually did approve the termination decision before it went into effect, and indeed that Chapel Haven sought out DDS approval before termination. Moreover, in the words of Justice White, the plaintiffs have successfully pointed to the agreement between Chapel Haven and DDS as a “rule of decision” under which the State has the final word, and therefore the final responsibility, on termination decisions. In other words, the plaintiffs have alleged that the State's approval of their termination decision was not merely an acquiescence, but actually an affirmatively required step in order for the termination to take place.[2] Thus, the plaintiffs have adequately alleged that the state actually engaged in “state action” when it affirmatively managed Robert's care and exercised its authority to approve the termination decision.

         2. Chapel Haven Defendants

         The Chapel Haven defendants similarly devote many of their arguments to establishing that they are not “state actors, ” the flip-side of the State defendants' “state action” argument.

         Under either section 1983 or the Fourteenth Amendment, the actions of a private entity are treated as state action when:

(1) the entity acts pursuant to the “coercive power” of the state or is “controlled” by the state (“the compulsion test”); (2) when the state provides “significant encouragement” to the entity, the entity is a “willful participant in joint activity with the [s]tate, ” or the entity's functions are “entwined” with state policies (“the joint action test” or “close nexus test”); or (3) when the entity “has been delegated a public function by the [s]tate, ” (“the public function test”).

Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288, 296 (2001)).

         The plaintiffs here rely solely on the joint action test, and allege that the Chapel Haven defendants can be considered state actors because they acted jointly with the State defendants to terminate Robert from their program. See Pls.' Opp'n Br. at 45-48. To be clear, the mere existence of the contract is not sufficient to convert Chapel Haven into a state actor. See Phelan ex rel. Phelan v. Torres, 843 F.Supp.2d 259, 273 (E.D.N.Y. 2011), aff'd sub nom. Phelan ex rel. Phelan v. Mullane, 512 F. App'x 88 (2d Cir. 2013) (“Although the state and private entities might, by virtue of a contractual relationship, be engaged jointly in the general mission of caring for abandoned children, only the joint acts of the private entity and the state are subject to challenge as state action.”). When applying the “joint action” test, courts routinely explain a determination that the private entity is not a state actor by emphasizing that the state was not involved in the specific decision at issue. See, e.g., Blum, 457 U.S. at 1008; Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 259 (2d Cir. 2008) (“While the State of New York has established procedures governing the limitations that mental health facilities place on the ability of patients to receive visitors, the administrators of those facilities make the decision about whether such limitations should be imposed.”) (emphasis in original); Schlein v. Milford Hosp., Inc., 561 F.2d 427, 428-29 (2d Cir. 1977) (observing that the neither the state nor state officials “contribute[d] material facts or information to the decisionmaking process or play[ed] any other role in the decision”). Conversely, in the present case, as discussed above, the plaintiffs have adequately alleged that the State defendants took action when they exercised their power to pre-approve Robert's termination decision. Thus, when Chapel Haven carried out that termination decision, the plaintiffs have adequately alleged that it was acting jointly with and as the agent of the State.

         B. Parent-Plaintiff Issues

         1. Parental Representative Standing

         The State defendants challenge both the parent-plaintiffs' ability to bring suit on Robert's behalf under all of the various roles identified in the amended complaint and their ability to represent their child jointly.

         With respect to the former issue, I note that the State defendants concede that the parent-plaintiffs have standing to bring the suit on Robert's behalf in their role as his “guardians.” See State Defs.' Br. at 3 (“Neither DDS nor DSS challenge the plaintiffs in their capacity as guardian to bring suit on behalf of Robert.”). Rule 17(c)(1)(A) permits a “general guardian” to sue on an incompetent person's behalf, and does not appear to put any limitations on that representation. Thus, it is unclear why permitting the parent-plaintiffs to sue under their additional roles (or not) would have any effect on this case, and I do not discuss the question further.

         The State defendants also argue that only one of the plaintiff-parents may represent their son. As the State defendants point out, the Second Circuit has approvingly cited in dicta a 10th Circuit case as “stand[ing] for the (sound) proposition that only one party may act in a representative capacity with respect to an infant or incompetent who comes before the court.” Neilson v. Colgate-Palmolive Co., 199 F.3d 642, 650 (2d Cir. 1999) (citing Garrick v. Weaver, 888 F.2d 687, 693 (10th Cir. 1989)). The Garrick court, in turn, did not rely on binding legal authority but instead invoked policy considerations, observing that two guardians could interfere with the orderly development of the lawsuit by creating the potential for inconsistent positions. 888 F.2d at 693. Although that problem had actually been realized before the Garrick court, its concerns could apply with equal force in the present case. At the hearing on these motions, I instructed the parent-plaintiffs to designate one parent as the “primary” representative, whose views would be followed in the unlikely case of a dispute between them. Because the plaintiff-parents have not yet done so, I now order them to inform the court within thirty days of this Order which parent is the “primary” decision-maker in the context of this case.

         2. Parental Standing for Associational Claims Brought on their Own Behalf

         Some language in the complaint suggests that the plaintiff-parents are bringing claims on their own behalf under Title II of the ADA, and several counts refer to harms suffered by the “Plaintiffs, ” suggesting that those counts were brought on behalf of Robert and his parents. At the hearing, however, the parent-plaintiffs clarified that the only claims brought on their own behalf are the Rehabilitation Act Claims in Counts One, Two, and Three of the complaint.

         The Chapel Haven defendants challenge the parent-plaintiffs' ability to bring such claims. See Chapel Haven Defs.' Reply Br. at 1-2. The Second Circuit has held that associational claims are cognizable under the Rehabilitation Act if the plaintiffs can “establish that each suffered an injury independent from [the disabled person]” as a result of their association with a disabled person, and further show that the injury was “causally related to the denial of federally required services to the disabled person.” Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 280, 282 (2d Cir. 2009) (Wesley, J. concurring, but writing for the majority for that portion of the ruling). In Loeffler, the plaintiffs alleged that they were required to provide a service that should have been provided by the hospital, and were subject to specific and personal emotional distress. Id. Given that Loeffler held additional caretaking tasks and emotional distress suffered by the care-giving family members to be sufficient, the Chapel Haven defendants have not shown as a matter of law that the plaintiff-parents will be unable to make an associational claim; however, thus far, the plaintiff-parents have alleged individual damages in a conclusory and vague manner, and they have not meaningfully alleged causation at all. See Am. Compl. at ¶¶ 198, 210, 223 (making vague claims about expenses, time expended, and unattributed emotional distress). I accordingly grantthe motion to dismiss the plaintiff-parents' associational claims without prejudice to amending within thirty days of this Order.

         C. State Defendants' Rule 12(b)(1) Motion

         The State defendants move to dismiss the ADA claims against them in Counts One, Two, and Three for lack of subject matter jurisdiction on sovereign immunity grounds.[3] See State Defs.' Br. at 6 -10 (headed “The Eleventh Amendment Bars the Claims for Monetary Damages under Title II of the ADA”). First, I note that the State defendants do not appear to be challenging those counts to the extent that they are brought under section 504 of the Rehabilitation Act, which expressly requires states to waive sovereign immunity as a condition of receiving federal funds. Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 113 (2d Cir. 2001).

         Title II of the ADA has been held to validly abrogate sovereign immunity in certain circumstances. See United States v. Georgia, 546 U.S. 151, 159 (2006) (sovereign immunity abrogated if both Title II and Fourteenth Amendment violations are shown); Goonewardena v. New York, 475 F.Supp.2d 310, 323, 326 (S.D.N.Y. 2007) (sovereign immunity abrogated even without a specific constitutional violation because statute's penalty is a congruent and proportional response to the history of discrimination against the disabled).[4] The Georgia framework for determining whether a Title II claim can abrogate sovereign immunity asks a court to determine whether the plaintiff has shown both a Title II claim and a constitutional claim. It thereby functionally moves what would otherwise be a Rule 12(b)(6) argument that the plaintiff has failed to state a claim under the statute into Rule 12(b)(1) territory. As discussed below, I find that Robert has adequately alleged a Title II violation against the State defendants, and accordingly, I conclude that sovereign immunity does not apply to bar the claim at this stage of the proceedings.

         D. State Defendants' Rule ...


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