When it comes to licensing, can a public entity conduct its processes in a way that discriminates against persons with disabilities or in a way that mandate discrimination against persons with disabilities?

Many years ago I represented a public entity that was the subject of an adverse licensing decision. In that particular situation, the public entity had a group home for persons with a certain type of disability. The Medicaid certification inspection was done in such a way so that the disabilities of the people living in the home was not accommodated. This resulted in the inspection leading to a decertification finding. On behalf of my client, I was able to successfully argue that conducting the certification inspection in a way whereby the residence with disabilities were not properly accommodated not only distorted the results but arguably violated the ADA. The particular case of this blog entry is related but a bit different.

In Kelly v. Mayhew, an unpublished decision that can be found at 2013 WL 5347718 (D. Me. September 23, 2013), Maine’s Department of Health and Human Services Division of Licensing and Regulatory Services mandated that the plaintiff’s employer discriminate against her by telling her employer that they would not allow her to be counted with respect to their staff ratio because of her disability (hearing loss). By saying that she could not be counted for purposes of staff ratio, the Department of Health and Human Services effectively precluded her from working in the field, which she had done for 30 years.

What happened in this case was the following: The plaintiff worked at Sonshine nursery school in Friendship, Maine for 31 years prior to being terminated. In September 2010, the Division of Licensing and Regulatory Services came out to the school to conduct a survey for the school’s application for renewal of a license to operate a childcare facility. During that survey, the surveyor became concerned that the plaintiff was unable to effectively supervise the children because of her hearing loss. The surveyor did not possess any training or expertise in hearing loss nor did he request any information from the plaintiff about her hearing loss. Further, at no point did he ask for a report from her audiologist or ask her for any audiograms. When the plaintiff asked if there was anything wrong, the surveyor said there was no problem. But there very much was a problem. The surveyor told the director of the nursery school that he was concerned that the plaintiff would not be able to hear and respond to the children in an emergency and then determined that she could not be counted as a staff member for purposes of the staff to child ratio. This led to the division of licensing and regulatory services renewing the nursery school’s license with the understanding that the nursery school would hire a new employee in order to comply with the staff to child ratio. Of course, this meant that the nursery school would have to hire someone else. Accordingly, the chairman of the board of the nursery school told the plaintiff that she would be replaced on December 23, 2010 because of the licensing issue. The plaintiff asked the nursery school for a chance to get new hearing aids, but the school was too concerned about their licensing to even consider the request. The plaintiff then contacted the surveyor at the Division of Licensing and Regulatory Services and told the surveyor that she had been wearing hearing aids for the entire 31 years that she worked at the nursery school, that being fired was a nightmare because she loved the children at the nursery school, but she needed new hearing aids, and would get them shortly. She told him that she would correct anything she was doing wrong so she could continue working with the children. The Division of Licensing and Regulatory Services was unresponsive to her pleas. She then filed suit under the Maine Human Rights Act, title II of the ADA and §504 the Rehabilitation Act. Naturally, the case was removed to federal court.

Before proceeding to the merits of the claim, it is important to note a couple of things about this case. First, the plaintiff proceeded pro se, without legal representation i.e. she represented herself. Considering the issues, what she was able to do is actually quite amazing. Second, the defense defended on the grounds that the plaintiff had failed to state a claim under the ADA and § 504 of the Rehabilitation Act as well as on the grounds that any such suit, if the claim was stated, was precluded by the 11th amendment (sovereign immunity). Thus, the court was faced with two issues before it. First, was there a valid claim for violation of the ADA? Second, if there was a valid claim, was that claim precluded by sovereign immunity?

Turning to the first issue, whether the plaintiff had a valid claim for violation of the ADA (title II) and § 504 of the Rehabilitation Act, the court, while noting that they were not aware of any case quite like this one, reasoned that a valid claim existed. Their reasoning was as follows:

1. Title II of the ADA provides that no qualified individual with a disability shall, by reason of that disability, be excluded from the participation in or be denied the benefits of the services programs or activities of the public entity or be subjected to discrimination by any such entity. 42 U.S.C. § 12132.

2. The protection afforded under title II of the ADA is one of meaningful access to governmental benefits and programs, which means that public entities must take reasonable steps to ensure that individuals disabilities are able to take advantage of public undertakings.

3. Proving a prima facie case under title II of the ADA means establishing: that a person is a qualified individual with a disability; that the person was excluded from participation in or denied the benefits of the public entity’s services, programs, or activities or was otherwise discriminated against; and that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff’s disability.

4. The court noted that public entities certainly have the right to consider whether a person with a disability poses a direct threat to the health and safety of others. However, the Department of Justice regulations insist that any such direct threat finding must be based on reasonable medical judgment relying on current medical knowledge or on the best available objective evidence. (As we have discussed elsewhere in this blog, these regulations come directly from the United States Supreme Court case law. See School Board of Nassau County Florida v. Arline 480 U.S. 273 (1987); See also Chevron v. Echazabal, 536 U.S. 73 (2002)). The complaint specifically noted that the surveyor had no training or expertise in hearing loss and that he made no inquiry into the plaintiff’s condition either by speaking to her audiologists or by asking to look at her audiograms. Therefore, it was reasonable to infer from the plaintiff’s complaint that the surveyor’s assessment that she was unable to supervise children because of her hearing loss was not based on a reasonable judgment relying on current medical knowledge or upon the best available objective evidence as required by the regulations (which, as noted above, would also be required by the case law as well).

5. Since the plaintiff worked at the nursery school for 31 years and wore hearing aids during her entire time there, it was reasonable to infer that she was qualified for the position. Also, it was reasonable to infer that improved hearing aids would’ve corrected any hearing difficulties that the surveyor observed.

6. Title II regulations prohibit a public entity from administering a licensing program in a manner subjecting qualified individuals with disabilities to discrimination on the basis of disability. In addition to citing to the Code of Federal Regulations stating this principle, the court also referred to the Department of Justice’s title II technical assistance manual that says a public entity may not establish requirements for programs or activities of licensees resulting in the discrimination against qualified individuals disabilities. For example, the technical assistance manual says that a public entity’s safety standards may not require the licensee to discriminate against qualified individuals with disabilities in its employment practices.

7. The defense argued that this was an employment matter covered by title I and not by title II, especially since the plaintiff was not their employee. However, the court was not buying this argument. The court said that since title II prohibits a public entity from subjecting to discrimination a person with a disability, that title II of the ADA does not necessarily exclude employment in the context of a case such as this one.

8. The plaintiff made numerous reasonable accommodation requests for her disability, i.e. being granted time to obtain new hearing aids and to do whatever it took to allow her to be counted as part of the staff ratio, all of which were denied.

9. The defense also argued that the request for accommodation came too late, after she had been terminated, but the court did not go for that argument because this really wasn’t an employment discrimination case, rather the plaintiff was alleging that the Division of Licensing and Regulatory Services was preventing her from working in any Division of Licensing and Regulatory Services licensed day care center. Accordingly, the plaintiff was under no obligation to request the accommodation prior to being terminated.

10. As we have mentioned elsewhere in this blog, when it comes to intentional discrimination under title II of the ADA, there are two possible standard that a court might use. First, there is the deliberate indifference standard. Second, there is the discriminatory animus standard. The court noted that the First Circuit hasn’t taken a position on which standard to use. Even so, it didn’t matter in this case, because the plaintiff had alleged sufficient facts in her complaint to satisfy either standard.

Thus, the court held that the plaintiff had alleged sufficient facts to state a valid claim under title II of the ADA and § 504 to Rehabilitation Act. It then had to turn to the second question. That is, since the plaintiff had alleged sufficient facts to support a valid claim under title II of the ADA and § 504 the Rehabilitation Act, were those claims precluded by sovereign immunity? The court held that at the motion to dismiss stage, the plaintiff had alleged sufficient facts to overcome the sovereign immunity defense and they reasoned as follows:

1. There are two possibilities for overcoming a sovereign immunity defense. First, under United States v. Georgia 546 U.S. 151 (2006), sovereign immunity is waived where the facts rise to the level of a constitutional violation. Second, if the facts do not rise to the level of a constitutional violation, then you wind up dealing with the principles laid out in Tennessee v. Lane 541 U.S. 509 (2004). That is, as we have discussed various times in this blog, you get into the whole issue of the equal protection class that persons with disabilities fall into and whether the scheme is a proportional response to the harm being redressed. For the reasons discussed below, the court since it found a constitutional violation, felt no need to explore the Tennessee v. Lane type of analysis.

2. Maine’s Division of Licensing and Regulatory Services conferred on the plaintiff unfavorable status based on her disability. That unfavorable status was that she would not be counted in the staff to child ratio at the nursery school where she had worked for 31 years. The unfavorable status not only cost her her job but she was also left with no way to appeal that status because she was not the licensee. As such, the court found that the plaintiff was fairly asserting a claim for violation of procedural due process under the 14th amendment. Such a claim, if sufficiently alleged-more discuss below-would fall under the U.S. v. Georgia analysis with respect to sovereign immunity being waived.

3. The plaintiff had a constitutionally protected liberty interest either because she was stigmatized or because she had a property interest and in neither case was she given any notice and opportunity to be heard. With respect to being stigmatized, the court, citing to both Wisconsin v. Constantineau, 400 U.S. 433 (1971), and to Paul v. Davis , 424 U.S. 693 (1976), noted that the United States Supreme Court has said that wherever a person’s good name, reputation, honor or integrity is at stake because of what the government is doing, notice and opportunity to be heard is essential. That is, the plaintiff had to show stigmatization plus some type of change in the injured person status or rights under the substantive state or federal law. With respect to property interests, the court noted that a de facto licensing scheme could be considered a property interest under case law. Since the plaintiff’s claim amounted to a claim that she was unlawfully deprived of her constitutionally protected liberty interest in her job related reputation and that the deprivation resulted in a change in her legal rights, the court applied the stigma plus standard.

4. Sufficient facts were alleged to meet the stigma plus standard. In particular, the regulations required staff to provide safe and compassionate services and to be supervised by a person who was aware and responsible for the ongoing activity of the child and who was near enough to intervene when needed. The court noted that the regulations had nothing to do with hearing whatsoever. The court said that such a conclusion by the Division of Licensing and Regulatory Services amounted to a factual finding that the plaintiff was incapable of satisfying these regulations despite 31 years of successful service in doing so. Therefore, such a finding was stigmatization in the legal sense.

5. The plus element of the test was satisfied under either because she was being refused a license to practice her craft (in a footnote, the court noted that the plaintiff would likely be able to show that she was entitled to that de facto license considering her successful experience in the field), or because of the burdens the decision put on her future employment prospects.

6. Accordingly, the state had the obligation to at a minimum give some kind of notice and some kind of opportunity to be heard and since they didn’t, the plaintiff had made out a valid claim of her procedural due process rights under the 14th amendment being violated.

7. Finally, the court did not rule out the 11th amendment not applying down the road if the facts, through discovery, established that the state’s conduct was different than what the plaintiff alleged in the complaint. That is, a constitutional violation is a high standard and it may be possible that the facts will show that the plaintiff’s 14th amendment rights were not violated should the facts be different.


1. This case is both a title II of the ADA case and a constitutional law case, which happens fairly often in the title II arena. It is absolutely amazing to me that this particular plaintiff was able without legal representation to survive a motion to dismiss considering the complexity of the legal issues involved. In short, a defendant would be wise to take seriously all claims, even those of a pro se defendant. Please note, I am no way saying that the defense in this case did not take the claim seriously, rather I am just making a general point.

2. State entities in doing their regulatory activities have the obligation to carry out their activities in a way that do not discriminate against persons with disabilities. That can either mean making sure that their inspections are done in a way that complies with the ADA, the example of the case that I worked on many years ago. It could also mean, as in this case, that the state needs to be very careful about mandating as a condition of licensure that the licensee discriminate against a person with a disability.

3. Sovereign immunity will be waived if the conduct rises to the level of a constitutional violation. If not, then you get into the whole issue of the equal protection class of the person with a disability given the facts and whether the situation is a proper enforcement of the 14th amendment to the U.S. Constitution.

4. It is interesting that the nursery school was not sued. Perhaps, that was because she did not feel comfortable doing so in light of her long tenure there. Also, the ADA does contain a provision that discrimination occurring as a result of licensing requirements is not discrimination under the ADA.

5. It is curious that this decision is unpublished since it has many incredibly significant points in it and deals with a case of first impression. There can be many reasons why a case goes unpublished. Regardless of what those reasons may be in this case, counsel need to be aware that jurisdictions have rules in terms of the precedential value of unpublished cases. Even so, for anyone representing public entities engaged in licensing activities, this case is a must read.

Licensing regulations and the Americans With Disabilities Act

Recently, the New York Times reported that a federal judge ruled that the city of New York must start approving taxi medallions so that more taxis were wheelchair accessible. After reading the article, I decided to go to the case itself, Noel V. New York City Taxi and Limousine Commission, 2011 WL 6747466 (S.D. N.Y. December 23, 2011). In this case, the plaintiffs sued the New York City Taxi and Limousine Commission because their regulations were not set up to approve a sufficient number of taxis that were wheelchair accessible. Interestingly enough, the Commission defended on the grounds that title II of the ADA did not apply to them. There were two possible ways title II could apply.  First, there is a section of title II that applies to public entities operating a demand responsive system. Second, and more common, is that title II demands that governmental entities be accessible to persons with disabilities. With respect to the first issue, the court decided that the Commission was not operating a demand responsive system (which would have required that each and every taxi be wheelchair accessible), and therefore, the provisions of the Americans with Disabilities Act pertaining to a demand responsive system did not apply. However, the court did find that the Commission was a public entity subject to title II of the Americans with Disabilities Act, and therefore, its operations must be accessible to persons with disabilities. The Commission admitted that it had both the ability and authority to provide more wheelchair accessible vehicles but simply had chosen not to do so. Therefore, only 232 taxi cabs in New York out of 13,237 were accessible to individuals using wheelchairs. The court held that the Commission did not provide meaningful access to this public benefit. Therefore the court ordered that the Commission to propose a comprehensive plan that provides meaningful access to taxi services for passengers using wheelchairs. The plan must include targeted goals and standards as well as anticipated measurable results. Furthermore, until such a plan was proposed and approved by the court, all new taxi medallions sold or new street hail livery licenses or permits issued by the Commission must be for wheelchair accessible vehicles. No doubt this is a great victory for persons with disabilities.

However the question becomes where did the “meaningful access” standard come from? That, is an interesting story. Noel relies on another case, Henrietta D v. Guilani, 119 F. Supp. 2d 181 (E.D.N.Y. 2000), where the court held that a city program that provided federal and state benefits for individuals suffering from AIDS was run in such a way that the beneficiaries of that program lacked meaningful access to it. This decision relied on Alexander v. Choate, 469 U.S. 287 (1985), a Rehabilitation Act case, which upheld a Tennessee reduction of annual inpatient hospital days that the Tennessee Medicaid program would pay. It is there that the, “meaningful access” phrase first appears. It appears in the context of saying that the reduction in hospital stays is a neutral decision and does not impact upon whether a person with a disability had meaningful access to the program. Therefore, one can see that in Noel the term, “meaningful access” is being used quite a bit differently than what it had been used in prior case law.

What does this all mean? It is very strange in a way. The Commission never argued at the lower level that summary judgment should be denied because a question of fact existed as to whether the program and activities of the Commission were accessible to persons with disabilities or whether there were other ways that could be formulated so that the program and activities of the Commission could be accessible to persons with disabilities, wheelchair users in this case. Perhaps, an appeal might claim that the lower court did not apply the proper legal standard (that is, “meaningful access” is being used in this case in a way different than existing precedent, and therefore, the argument goes that an appellate court should send the case back down with the correct legal standard, whatever that may be).

At any rate, a deceptively complex case, that bears following in the future. It also serves notice on regulatory bodies that their regulations should be formulated in such a way that they do not have a disparate impact on (screen out) persons with disabilities. Failure to do so, could subject the agency to a title II suit along the lines described here.

Update: During the week of March 19, the city received a stay from the Second Circuit United States Court of Appeals with respect to the District Court decision referenced here. The city has also made clear that it will be appealing the decision, perhaps along the lines discussed here.

In fact, this case was appealed and on June 28 the second circuit came down with its decision whereby the Second Circuit held that the city was not in violation of part a of title II of the Americans with Disabilities Act and that the District Court erred in granting partial summary judgment for the plaintiff and entering the temporary injunction. The Second Circuit vacated and remanded for entry of partial summary judgment for the city. In doing so, the Second Circuit had to find that the district court abused its discretion in its decision.

How did the Second Circuit go about reversing the District Court decision? First, the court noted that the Americans with Disabilities Act while broad in scope was not without its limits.

Second, the court turned to the federal regulations dealing with licenses. The court said that what this section does is prohibit the agency issuing the regulations from refusing to grant licenses to persons with disabilities who are otherwise qualified own or operate taxis but does not assist persons who are consumers of the licensee’s product. Such a conclusion was also supported by the Department of Justice’s technical assistance manual, which the court found to be persuasive authority.

Third, the court found that a program or activity of the public entity was not involved here. That is, an activity of the public entity does not become a “program or activity” of the public entity merely because it is licensed by the public entity unless the private industry practice is the result of the licensing requirements. Such was not the case here (that is, the licensing scheme did not cause the discrimination). While the number of taxis that have to be accessible were small, nothing prevented the private companies from using whatever number of accessible taxis they desired. To buttress this point, the court cited to several cases that made this distinction between the regulatory agencies and the licensees or the people being regulated themselves. They did distinguish one case that did not make that distinction, but that case was substantially different as it dealt with the situation with a private entity had to use equipment required by the public agency (machine for the state lottery in West Virginia).

Finally, an interesting question arises as to why the plaintiffs went after the public entity and not the taxi companies themselves. It turns out, as the Court notes, that federal regulations specifically exempt providers of taxi service from being required to purchase or lease accessible automobiles. Therefore, since the taxi industry is exempt from being required to purchase or lease accessible taxis, there can be no underlying violation of the ADA for a licensing authority to fail to address that by regulation.

What does this all mean? It means that for purposes of the Americans with Disabilities Act, there is a big difference between the regulations issued by a public entity and the people or entities subject to those regulations. Unless those regulations mandate discrimination, the Americans with Disabilities Act is not going to allow a title II claim to proceed. It also means that the time to ensure that the regulations increase accessibility to the maximum extent is at the time the regulations are being formulated not once they are done. For example, when a state or the federal government formulates regulations, those regulations first have to be proposed, then receive comments from the public, then those comments have to be digested by the regulatory body, and then the final regulations have to be issued. These regulations of New York were not state or federal but it is possible that prior to issuing the licensing regulations, there may have been some ability for the public to comment on the proposed licensing regulations. If not, that fact might offer grounds for attacking the regulations.