United States of America v. Northern IL Special Recreation Assn

Filing 30

MEMORANDUM Opinion and Order. Signed by the Honorable James B. Zagel on 4/11/2013. (ep, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
No. 12 C 7613
Judge James B. Zagel

v.
NORTHERN ILLINOIS SPECIAL
RECREATION ASSOCIATION,
Defendant.

MEMORANDUM OPINION AND ORDER
The United States of America, by its Attorney for the Northern District of Illinois, filed a
one-count complaint alleging the Northern Illinois Special Recreation Association (“NISRA”)
discriminates against individuals with epilepsy in violation of Title II of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12131, and its implementing regulation, 28 C.F.R. Part
35. Defendant filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). The
motion has been fully briefed before the Court. For the reasons discussed below, I deny the
motion.
I. Background
The following facts are accepted as true for the purpose of considering this motion.
NISRA, a public entity within the meaning of the ADA, provides year-round recreational
activities for children and adults with disabilities in northern Illinois.
NISRA does not employ medical personnel, but employs a staff experienced with
working with people with disabilities. Typically, one counselor is responsible for the supervision
of two to four participants, but at times, NISRA provides one-on-one service for its participants.

Also, NISRA staff is trained in administering epinephrine auto-injector (Epi-pen) shots,
dispensing asthma medication, and feeding children with gastronomy feeding tubes. Moreover,
staff is trained in responding to seizures pursuant to NISRA’s seizure management policy.
Participants of NISRA’s programs with a history of seizures submit a seizure plan in
which their doctor describes the type of seizures they experience, the medications they currently
take, and the protocol to follow in the case of a seizure.
M.M. and N.R., both diagnosed with epilepsy, are former participants of NISRA’s
summer camp program. Because of their epilepsy, M.M. and N.R. have a history of experiencing
tonic-clonic seizures (also known as grand mal seizures) and, because of such history both M.M.
and N.R. were prescribed Diastat AcuDial (Diastat).
Diastat is the only FDA-approved medication for out-of-hospital treatment of emergency
seizures. The sooner Diastat is administered, the more effective it will be. Diastat is injected
rectally with a pre-filled plastic syringe: it was developed so people without medical training can
administer the medication.
After its 2008 summer-camp session, NISRA changed its policy to no longer administer
Diastat. M.M. has since experienced a recent onset of tonic-clonic seizures. Attendance at the
camp, coupled with NISRA’s refusal to administer Diastat, makes participation in NISRA’s
programs a risk to her health and life if an emergency presented itself. Similarly, N.R.’s parents
requested N.R.’s personal aide (already provided by the camp) to be allowed to administer
Diastat if needed. NISRA refused and replied the aide would only monitor for seizures and call
911 if a seizure occurred.
II. Legal Standards
Rule 12(b)(6) allows a defendant to seek dismissal of a complaint that fails to state a

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claim upon which relief can be granted. FED.R.CIV.P. 12(b)(6). Federal Rule of Civil Procedure
8(a)(2) requires a plaintiff to provide “a short and plain statement” showing that they are entitled
to relief. This statement must “give the defendant fair notice of what the plaintiff’s claim is and
the grounds upon which it rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002).
Though a complaint need not contain “detailed factual allegations, a formulaic recitation of the
elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). Rather, the plaintiff must provide “enough facts to state a claim to relief that is plausible
on its face.” Id. at 570. The Court will only grant a motion to dismiss if “it appears beyond doubt
that the [complainant] can prove no set of facts in support of his claim which would entitle him
to relief.” Centers v. Centennial Mortg., Inc., 398 F.3d 930, 933 (7th Cir. 2005) (quoting Conley
v. Gibson, 355 U.S. 41, 45–46 (1957)).
In considering a motion to dismiss, the Court must accept as true the allegations of the
complaint and draw all reasonable inferences in favor of plaintiff. Pisciotta v. Old Nat’l
Bancorp, 499 F.3d 629, 633 (7th Cir. 2007) (citation omitted).
III.

Analysis
The ADA is a comprehensive civil rights law enacted “to provide a clear and

comprehensive national mandate for the elimination of discrimination against individuals with
disabilities.” 42 U.S.C. § 1201(b)(1). Title II of the ADA provides that “no qualified individual
with a disability shall, by reason of such disability, be excluded from participation in or be
denied 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. Liability under Title II of the ADA need
not be premised on an intent to discriminate; rather, discrimination may be established by
evidence that (1) the defendant intentionally acted on the basis of the disability, (2) the defendant

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refused to provide a reasonable accommodation, or (3) the defendant’s rule disproportionally
impacted disabled people. Washington v. Indiana High Sch. Athletic Ass’n, Inc., 181 F.3d 840,
847 (7th Cir. 1999).
In its motion to dismiss, NISRA asserts: the complaint does not allege a denial of benefits
“on the basis of” disability, the requested accommodation is unreasonable, and the requested
accommodation would fundamentally alter the nature of NISRA’s services and subject NISRA to
an undue amount of liability. Each argument will be addressed in turn.
A.

Causation
First, Defendant asserts no individuals were denied access to NISRA’s programs

“because of” their disability. The language “‘[o]n the basis of’ means there must be a ‘causal
link’ between the challenged action and the disability.” Wisc. Community Servs., Inc. v. City of
Milwaukee, 465 F.3d 737, 752 (7th Cir.2006).
Defendant relies on the fact that M.M. and N.R. have participated in NISRA’s programs
and the facial neutrality of NISRA’s policy not to administer drugs “in contradiction to
established medical guidelines.” But such an assertion misconstrues Plaintiff’s allegations. The
United States’ position is not that NISRA denied M.M. and N.R. admission to its programs or
that NISRA employs a policy that facially discriminates against epileptic participants. Under the
Title II regulations, reasonable modifications in policies are required when necessary to avoid
discrimination on the basis of disability. See 28 C.F.R. § 35.130(b)(7). Plaintiff’s claim,
therefore, depends upon a showing that NISRA could have reasonably accommodated M.M. and
N.R., but refused to do so. See McPherson v. Michigan High Sch. Athletic Ass’n, Inc., 119 F.3d
453, 461 (6th Cir. 1997). Failure to make a reasonable accommodation, regardless of
discriminatory intent, is sufficient to demonstrate a causal connection between a disability and

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the denial of a benefit. See Washington, 181 F.3d at 846–47.
Plaintiff’s complaint alleges that staff members are trained specifically to respond to
participants’ seizures. It further alleges that participants submit a seizure plan in which their
doctors describe the type of seizures they experience, the medications they currently take, and
the proper protocol to follow in the case of a seizure. According to the complaint, NISRA’s
policy exposes its epileptic participants to a risk of serious injury and death, when NISRA could
reasonably accommodate those participants.
“[I]n examining the facts and matching them up with the stated legal claims, we give ‘the
plaintiff the benefit of imagination, so long as the hypotheses are consistent with the complaint.’”
Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009). The complaint persistently
alleged that the refusal to accommodate, by administering Diastat, effectively denied a benefit
“on the basis of” M.M.’s, N.R.’s, and other epileptic participants’ disability.
B.

The ADA’s reasonable accommodation standard
Second, Defendants ask this Court to declare the United States’ requested

accommodation unreasonable as a matter of law. However, Defendant provides no previous case
declaring the request for a service-providing entity to administer an emergency prescription drug,
like Diastat, an unreasonable accommodation as a matter of law. I decline to be the first to do so.
Defendant’s brief relies on cases declaring a requested accommodation unreasonable as a
matter of law when plaintiffs were requesting: (1) the administration of drugs in excess dosages,
see Davis v. Francis Howell Sch. Dist., 138 F.3d 754, 757 (8th Cir. 1998); (2) the addition of
staff members to administer medical prescriptions, see McDavid v. Arthur, 437 F. Supp. 2d 425,
428 (D. Md. 2006); or (3) the monitoring of a child-student’s blood sugar, see B.M. v. Bd. of
Edu. of Scott Cty., Ky., 2008 WL 4073855, at *23 (E.D. Ky. 2008).

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None of Defendant’s examples carry weight in the context of Plaintiff’s complaint. First,
all of the cases cited were decided at the motion for summary judgment stage, and not on the
pleadings alone. Second, Plaintiff alleges Diastat was developed so people without medical
training can administer the medication. The complaint also suggests that any training required to
administer Diastat is comparable to the training already provided by NISRA: staff learn how to
properly respond to seizures, feed children with gastronomy feeding tubes, and to administer
other prescription and emergency drugs.
The Defendant also relies on the Food and Drug Administration, Physician’s Desk
Reference (“PDR”), and drug manufacturer standards to assert the requested accommodation is
unreasonable as a matter of law.1 But these standards do not require such a finding. The PDR
requests the person administering Diastat to receive instruction from the prescribing physician,
distinguish certain types of seizures, and provide post-administration monitoring of the
individual receiving Diastat. The PDR standards do not make Plaintiff’s request patently
unreasonable, especially when NISRA staff already have training related to seizures and certain
staff members already provide constant one-on-one care for participants.
Finally, Defendant claims the DOJ previously litigated on the grounds that Diastat is an
unreasonable accommodation. In K.S.R. v Pete Geren, Sec.’y of the Army, et, al., the DOJ denied
that it would be a reasonable accommodation for Army staff to administer Diastat, and stated that
“[t]he [Diastat] accommodations sought are unduly burdensome and are not required by law.”
Defendant argues this is an admissible admission, fatal to Plaintiff’s instant case. But
“[r]easonableness is not a constant. To the contrary, what is reasonable in a particular situation
may not be reasonable in a different situation - even if the situational differences are relatively
1

Per Defendant’s request, the Court takes judicial notice of the documents from the FDA, PDR and the drug
manufacturer, attached as exhibits to Defendant’s motion to dismiss. See U.S. v. Howard, 381 F.3d 873, 880 (9th
Cir. 2004) (taking judicial notice of content from the PDR).

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slight.” Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 795 (1st Cir. 1992); see also Sierra
Club v. Secretary of the Army, 820 F.2d 513, 517 (1st Cir.1987). The administration of Diastat
may very well be a reasonable accommodation in one situation and yet unreasonable in another
situation. But even if the DOJ’s prior argument is in conflict with its position in the instant case,
the Attorney General “is not estopped from changing his view.” See Miller v. California
Speedway Corp., 536 F.3d 1020, 1032–33 (9th Cir. 2008) (citing Good Samaritan Hosp. v.
Shalala, 508 U.S. 402, 417 (1993)).
Ultimately, what constitutes a reasonable accommodation under Title II depends on a
variable mix of factors; factors not entirely obtainable at the pleading stage. Discoverable facts,
consistent with the complaint, could support a conclusion that the requested accommodation is
reasonable under Title II.
C.

NISRA’s affirmative defenses
Third, Defendants argue the accommodation requested would impose an undue

administrative burden, fundamentally alter the nature of NISRA’s services, and subject NISRA
to an undue amount of liability. However, these affirmative defenses are not apparent from the
face of the complaint, when drawing all reasonable inferences in Plaintiff’s favor. See Pisciotta,
499 F.3d at 633.
Title II regulations require reasonable modifications in policies when necessary to avoid
discrimination on the basis of disability unless doing so would fundamentally alter the nature of
the service, see 28 C.F.R. § 35.130(b)(7), or would create undue financial and administrative
burdens. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n.17 (1987).
As a preliminary matter, Defendant’s assertion that the administration of Diastat would
fundamentally alter its services is an affirmative defense. See Olmstead v. L.C. ex rel. Zimring,

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527 U.S. 581, 603 (1999) (citing 28 CFR § 35.130(b)(7)). Dismissing a case on the basis of an
affirmative defense is properly done under Rule 12(c), not Rule 12(b)(6). Yassan v. J.P. Morgan
Chase & Co., 708 F.3d 963, 975–76 (7th Cir. 2013). But procedural defect aside, I cannot find
NISRA entitled to its affirmative defenses at this time.
To prove an undue burden, this Circuit requires Defendant to show “the costs are
excessive in relation either to the benefits of the modification or to the [entity’s] financial
survival or health.” Vande Zande v. Wisc. Dep’t of Admin., 44 F.3d 538, 548 (7th Cir. 1995).
Similarly, the fundamental alteration defense allows a state to avoid making modifications to
accommodate disabled individuals if it can “show that adapting existing institution-based
services to a community-based setting would impose unreasonable burdens or fundamentally
alter the nature of its programs or services.” Radaszewski ex. rel. Radaszewski v. Maram, 383
F.3d 599, 611 (7th Cir. 2004). NISRA has not made such a showing at this stage in the litigation.
The complaint alleges that, given the seizure-related training and procedures Defendant
already has in place, the requested accommodation is reasonable. What may constitute an undue
hardship for one entity may not be an undue hardship for another entity. See E.E.O.C. v. Sears,
Roebuck & Co., 417 F.3d 789, 797 (7th Cir. 2005); Hendricks-Robinson v. Excel Corp., 154 F.3d
685, 692–93 (7th Cir. 1998). A ruling on Defendant’s affirmative defenses requires more
knowledge as to the nature of NISRA’s services provided and the actual financial and
administrative burdens the requested accommodation would impose.
Finally, Defendant asserts the requested accommodation would cause NISRA to violate
state law. Even if a conflict exists between state and federal law, “state laws can be preempted by
federal regulations and statutes.” See Hillsborough Cty. v. Automated Medical Laboratories,
Inc., 471 U.S. 707, 713 (1985). Therefore, a conflict with state law would not bar Plaintiff from

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obtaining the requested relief. However, whether preemption applies to this case is beyond the
scope of this 12(b)(6) inquiry.2 And after examining the facts pled and the stated legal claim
under Title II of the Americans with Disabilities Act, I find Plaintiff is entitled to proceed on its
complaint.
IV.

Conclusion
For the reasons discussed, Defendant’s motion to dismiss is DENIED.

ENTER:

James B. Zagel
United States District Judge

DATE: April 11, 2013

2

Courts have decided a preemption defense on a 12(b)(6) motion when: the complaint itself established a
preemption defense, see Morequity, Inc. v Naeem, 2001 WL 1426518, at *1 (N.D. Ill. 2001); the plaintiff is
potentially barred from bringing certain state law or statutory claims, see Allis Chalmers Corp. v. Lueck, 471 U.S.
202, 220 (1985); Lateef v. Pharmavite LLC, 12 C 5611, 2012 WL 5269619, at *2–3 (N.D. Ill. 2012); or the defense
somehow divests the court of jurisdiction. See Bausch v. Stryker Corp., 630 F.3d 546, 550 (7th Cir. 2010).
Defendant has not implicated preemption in any of the above manners.

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