Idell S., 43, has been a nursing home patient since 1989 due to partial paralysis caused by meningitis. Although she is not fully capable of independent living because of her disabilities, she does not require the custodial care of a nursing home. Accordingly, Ms. S. applied for benefits through the state's attendant care program, which provides home health care. In 1993, the DPW found that Ms. S. was eligible for the attendant care program but because of lack of funding placed her on a waiting list. Ms. S. continues to reside in a nursing home, isolated from her children.
Ms. S. sued (joining a lawsuit originated by Helen L., among others), alleging that since she qualifies for DPW's attendant care program, the agency's failure to provide those services violates the ADA. DPW argued that because funds for nursing home and attendant care programs had already been appropriated for the year, accommodating Ms. S. would involve a "fundamental alteration" of its program, which is not required by the ADA. The DPW further argued that it was not "intentionally" discriminating against Ms. S. and that there was no "improper" discrimination because the services at issue are provided only to the disabled.
The court sides with Ms. S on all counts. The court finds that Ms. S. is not asking the DPW to fundamentally alter its program but merely to include her in a program for which she is already eligible. Since the DPW has chosen to provide the attendant care program, the court rules that it must do so in a manner that comports with the ADA. The court also refuses to condition the ADA's protection upon a finding of intentional or overt discrimination. The court's review of the ADA's legislative history indicates that it was intended to eradicate the effects of "benign neglect," "apathy," and "indifference" as well as intentional discrimination. DPW's contention that there is no improper discrimination because the services at issue are provided only to persons with disabilities is similarly unsupported by the ADA, the court rules.
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