Penny et al v. Arkansas Department of Human Services et al
AMENDED ORDER re 31 Order on Motion to Dismiss (correcting year on signature date). Signed by Honorable Susan O. Hickey on March 20, 2013. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
LATOYA PENNY, et al.
CASE NO. 12-CV-1052
ARKANSAS DEPARTMENT OF HUMAN
SERVICES, et al.
The Court enters this Amended Order to correct the date that the original order was issued,
which incorrectly stated the year as 2012 instead of 2013. (ECF No. 31). Before the Court is a
Motion to Dismiss Amended Complaint filed by Defendants. (ECF No. 26). Plaintiffs have
responded. (ECF. No. 28). This matter is ripe for the Court’s consideration.
Plaintiffs filed this suit on behalf of themselves, their minor children, and all other persons
similarly situated. Plaintiffs are parents whose children attend or did attend Sparkman Learning
Center and are beneficiaries of disability-related children services funded by the Arkansas
Department of Human Services (“DHS”). The majority of these funds flow through DHS to
Plaintiffs’ children through the federal-state Medicaid program. Sparkman Learning Center was
licensed by DHS as a Developmental Day Treatment Clinic (“DDTC”) and was receiving DHS
funds. The services provided by Sparkman Learning Center included the following: early
intervention programs for children with developmental delays, developmental disability treatment
for children with developmental delays and special needs, speech therapy services, transportation
services, and child nutrition programs. On or about May 2, 2012, Plaintiffs were notified via letter
that, as of May 18, 2012, Sparkman Learning Center would no longer be eligible to provide services
funded by DHS. By invoking Policy 1088, DHS excluded Sparkman Learning Center from
participation in all DHS programs because the center had violated DHS programs regulations when
it placed a prohibited person in a position of authority at the center.
Plaintiffs claim that the exclusion of Sparkman Learning Center from participation in all
DHS programs, which will allegedly force the center to close its doors, is in violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134, the Rehabilitation Act, 29
U.S.C. § 794, and the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C.
§ 1400. Plaintiffs filed a combined Motion for Restraining Order and Motion for Preliminary
Injunction (ECF No. 3). The Court held a hearing on the motion, and the motion was subsequently
denied. (ECF No. 25). Defendants filed a Motion to Dismiss Amended Complaint (ECF No. 26),
which the Court will now address.
A motion to dismiss pursuant to Rule 12(b)(6) should be granted when the plaintiff fails to
state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The complaint must be
liberally construed in the light most favorable to the plaintiff, and a court must accept as true all
factual allegations in the complaint, even if doubtful. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 55455, 127 S. Ct. 1955 (2007). Dismissal should be granted only when the plaintiff has not proffered
“enough facts to state a claim to relief that is plausible on its face.” Id. at 570. A complaint need
not contain “detailed factual allegations,” but it must contain facts with enough specificity “ro raise
a right to relief above the speculative level.” Id. at 555. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S. Ct. 1937 (2009).
A. ADA and Rehabilitation Act Claims
Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. §
12132. Section 504 of the Rehabilitation Act provides that “[n]o other qualified individual with a
disability . . . shall, solely by reason of his or her disability, be excluded from the participation in,
be denied benefits of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance . . . . 29 U.S.C. § 794(a). Section 504 of the Rehabilitation Act is
similar in substance to the ADA and utilizes largely the same test to determine whether violations
have taken place. Bahl v. County of Ramsey, 695 F.3d 778, 783 (8th Cir. 2012) (“The ADA and §
504 of the Rehabilitation Act are similar in substance and, with the exception of the Rehabilitation
Act’s federal funding requirement, cases interpreting either are applicable and interchangeable for
analytical purposes.”) To prevail on a Title II ADA claim, a plaintiff must establish: (1) that he or
she is a person with a disability as defined by statute; (2) that he or she is otherwise qualified for the
benefit in question; and (3) that he or she was excluded from the benefit because of discrimination
based upon his or her disability. Randolph v. Rogers, 170 F.3d 850, 858 (8th Cir. 1999); see 42
U.S.C. § 12131.
Here, the Court accepts as true the facts that Plaintiffs’ children have disabilities as defined
under the acts and that the children are otherwise qualified to receive the disability services that they
were receiving at Sparkman Learning Center. The central issue is whether DHS’s decision to invoke
Policy 1088 to exclude Sparkman Learning Center from participation in DHS programs could be
viewed as an exclusion of Plaintiffs’ children from receiving DHS services or Medicaid benefits
because of their disabilities. Simply put, the question is whether state action against Sparkman
Learning Center could equate to discrimination on the basis of disability against Plaintiffs’ children.
Plaintiffs cannot meet the third prong of the ADA/Section 504 analysis, which requires a
showing that Plaintiffs’ children were discriminated against solely based on their disabilities.
Plaintiffs conclude in their Amended Complaint th0at, if Sparkman Learning Center closes,
Plaintiffs’ children will not have the equal opportunity to obtain the same benefits or to reach the
same level of achievement as students without disabilities. However, Plaintiffs have failed to state
facts sufficient to support an inference that the alleged exclusion of the children involved was based
solely on their disabilities or that these children are being denied any care available to children
without disabilities. There is no dispute that DHS excluded Sparkman Learning Center from
participation in DHS programs because Sparkman Learning Center was deemed ineligible to
participate in these programs. Plaintiffs’ children are indirectly affected by DHS’s decision to
exclude Sparkman Learning Center from DHS services; however, DHS’s decision to exclude
Sparkman was not based on the disabilities of Plaintiffs’ children. Moreover, none of the children
have been denied the right to apply for funding or accommodations from another qualified provider.
See O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 786, 100 S. Ct. 2467 (1980) (“[W]hile a
patient has a right to continued benefits to pay for care in the qualified institution of his choice, he
has no enforceable expectation of continued benefits to pay for care in an institution that has been
determined to be unqualified.”) In the Amended Complaint, Plaintiffs speculate that their children
will be denied certain services in the future because of a lack of eligible providers in the area;
however, there is no allegation that these children have been or are presently being denied services
at an alternate facility in the area.1 For these reasons, the Court finds that Plaintiff has failed to
effectively state a claim for relief under the ADA and Section 504 of the Rehabilitation Act.
B. IDEA Claims
The IDEA seeks to ensure that all disabled children receive a free appropriate public
education designed to meet their needs. 20 U.S.C. § 1400(d)(1)(A). The IDEA also provides certain
procedural “safeguards to permit parental involvement in all matters concerning the child’s
educational program and [to allow] parents to obtain administrative and judicial review of decisions
they deem unsatisfactory or inappropriate.” M.P. v. Indep. Sch. Dist. No. 721, 326 F.3d 975, 979
(8th Cir. 2003). In the IDEA section of their Amended Complaint, Plaintiffs state two purposes of
the IDEA, assert that Plaintiffs’ children are eligible for services under the IDEA, and claim that
Plaintiffs have a right to appeal the decision of a placement change for their children. Further,
Plaintiffs claim that any part aggrieved by the findings and decision regarding an administrative
complaint has a right to bring a civil action in a district court. Plaintiff’s conclude their IDEA
section of the Amended Complaint by stating that “Defendants’ actions . . . violate the Plaintiffs’
rights under the IDEA.” Plaintiffs seem to allege that the lack of an opportunity to appeal DHS’s
decision to exclude Sparkman Learning Center before the exclusion went into effect is in violation
Plaintiff Latoya Penny alleges in the Amended Complaint that she “called the other providers
within a reasonable geographic range, and none of them have spots available for her son.” Plaintiff
Carmelitha Stewart alleges in the Amended Complaint that she called one day care provider in her
area and was told that it had a waiting list. Plaintiff does not state whether she asked for her child
to be placed on the waiting list. For purposes of deciding this Motion to Dismiss, the Court assumes
that these statements are true. However, neither Plaintiff alleges that she enrolled or even attempted
to enroll her child in an alternate DDTC facility in the area and was denied the right to apply for
funding or accommodations from another qualified provider. It seems that Plaintiffs have not
suffered any injuries if they have not yet even attempted to secure the services of other qualified
providers in the area. Because of the speculative nature of any injuries to Plaintiffs, whether
Plaintiffs have standing to bring this lawsuit is questionable.
of the IDEA. However, Plaintiffs do not specify what specific IDEA regulation that Defendants
allegedly violated, they do not allege that their children have been denied access to a free appropriate
public education, and they state no facts to support their IDEA allegations. The Amended Complaint
sets forth vague, conclusory, and general allegations of IDEA violations, which are not sufficient to
state a claim for IDEA violations. Accordingly, the Court finds that Plaintiffs’ IDEA section of their
Amended Complaint does not contain “enough facts to state a claim to relief that is plausible on its
face.” See Twombly, 550 U.S. at 570, 127 S. Ct. 1955.
For the foregoing reasons, the Court finds that Defendants’ Motion to Dismiss (ECF No. 26)
should be and hereby is GRANTED. Plaintiff’s claims against all Defendants are DISMISSED
IT IS SO ORDERED, this 20th day of March, 2013.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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