United States District Court, N.D. Illinois
January 8, 2004.
BRIAN BRUGGEMAN, by and through his parents, Kenneth and Carol Bruggeman, FRANCES CORSELLO, by and through her parents, Vincent and Agnes Corsello, ANGELA MOORE, by and through her parents, James and Brenda Moore, GREG BLANEY, JR., by and through his parent, Yolanda Duncan, MELISSA COLE, by and through her parents, Frank and Annie Cole JEFFREY FALCONE, by and through his parents Salvatore and Frances Falcone, SEAN STEELE, by and through his parent, Gregory and Lee Pionke, DAVID STIMAN, by and through his parents, Tony and Tammy Goodman, CHRISTINE AUER, by and through her parents, Alfred and Patricia Auer, DOUGLAS WILSMAN, by and through his parent, Loretta Holme, LEAH JONES, by and through her parents, Lawrence and Kathy Jones, Plaintiffs,
ROD BLAGOJEVICH, in his official capacity as Governor of the State of Illinois, BARRY S. MARAM, in his official capacity as Director of the Illinois Department of Public Aid, CAROL L. ADAMS, in her official capacity as Secretary of the Illinois Department of Human Services, GEOFFREY OBRZUT, in his official capacity as Associate Director of the Office of Developmental Disabilities, Defendants
The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge Page 2
MEMORANDUM OPINION AND ORDER
This case comes before this Court on the issue of whether Plaintiffs
are entitled to discovery of any and all documents concerning the extent
to which Defendants (1) have not obtained matching or federal Medicaid
funding for its programs for persons with developmental disabilities; and
(2) have not complied with the Medicaid waiver program and Medicaid with
respect to persons with mental disabilities. For the following reasons,
Plaintiffs' motion to compel discovery is granted in part and denied in
To the extent they are relevant to this determination, the Court adopts
the underlying facts of this case as stated by the Seventh Circuit in
Bruggeman v. Blagojevich, 324 F.3d 906, 908-09 (7th Cir. 2003):
Several developmentally disabled . . . adults,
residents of Illinois, sue the responsible state
officials, in their official capacity, for alleged
violations of the federal Medicaid statute, the
Rehabilitation Act, and the Americans with
Disabilities Act. . . .
The Medicaid statute, administered by each state
that enrolls in the Medicaid program but funded
50-50 by the state and the federal government,
defrays certain medical expenses of individuals
such as these plaintiffs who lack the wherewithal
to pay the expenses themselves. The plaintiffs
live at home with their parents in the Chicago
metropolitan area. The parents would prefer their
children to live in institutions known as
"Intermediate Care Facilities for the
Developmentally Disabled," most of which however
are located in southern Illinois, far from
Chicago. The vacancy rate for ICF/DDs in the
Chicago area is very low, and the parents do not
want to ship their children off to ICF/DDs in the
southern part of the state because of the time and
expense that would be entailed in traveling to
visit them, and so they want the defendants to
adopt a plan for expanding the number of ICF/DDs
in the northern
part of the state. They argue . . . that the
defendants prefer the plaintiffs to live at home
because it would cost the state more to pay for
their care in an institution, and so the
defendants refuse to write letters urging
authorization of additional ICF/DDs in the
northern part of the state to the planning agency
that is responsible for such authorizations and
without the letters the planning agency will not
grant the authorizations.
The Plaintiffs' fourth amended complaint contains five counts:
Count I: Violation of Medicaid Act
Count II: Violation of [Fourteenth Amendment] Due
Count III: Violation of Americans with
Count IV: Violation of Rehabilitation Act
Count V: Violation of [Fourteenth Amendment]
The district court dismissed all five counts.
Plaintiffs appealed only the dismissal of Counts I, III, and IV. The
Seventh Circuit sustained dismissal of Count I on the merits.
Bruggeman, 324 F.3d at 910-11. It reinstated the Rehabilitation
Act ("RA") and the Americans with Disabilities Act ("ADA") counts, and
remanded the case to the district court to consider whether the State of
Illinois ("the State") has a plan oriented to prevent the isolation or
segregation of developmentally disabled adults. Id. at 913, For
guidance on remand, the Seventh Circuit directed the parties and the
district court to follow Olmstead v. L.C. ex rel. Zimring,
527 U.S. 581 (1999). Id.
In their exploration of the issue posed by the Seventh Circuit,
Plaintiffs served a request for production of documents upon Defendants.
Defendants objected to certain
requests. After receiving no or an allegedly inadequate production
of documents from Defendants, Plaintiffs filed a motion to compel
discovery in response to requests numbered 6, 12, 14, 15, 16,
17, 18, 19, 20, 21, and 31. Plaintiffs have since withdrawn production
requests 6, 13, 14, 15, and 16. Production requests 17 through 21, and 31
are outstanding, and the parties have fully briefed the two issues
surrounding those requests. The first issue pertains to requests 17
through 21; the second issue pertains to request 31. This court will
address each issue in turn.
Under Federal Rule of Civil Procedure 26, the scope of discovery
reaches any matter, not privileged, that is relevant to the claim or
defense of any party. The information sought need not be admissible at
the trial if the information sought appears reasonably calculated to lead
to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1). Thus,
the question is whether the information sought by Plaintiffs is relevant
and likely to lead to the discovery of admissible evidence. The burden is
on the party objecting to the discovery request to show why such
discovery is improper. Med. Billing Consultants, Inc. v. Intelligent
Med. Objects, Inc., No. 01 C 9148, 2003 WL 1809465, at *1 (N.D. Ill.
Apr. 4, 2003).
A. Requests Nos. 17, 18, 19, 20, and 21
1. The Requests and the Objections
Plaintiffs have requested Defendants to produce any and all documents
which reflect that the State of Illinois provides funding for persons
with developmental disabilities and
either "does" or "does not" obtain matching or federal Medicaid
funding for those programs. Reqs. 17 & 18. More specifically,
Plaintiffs request documents, records, reports, and studies done by the
State or any agency, commission, or third party on that subject, Req.
19, or concerning "what steps the State of Illinois must undertake in
order to obtain matching federal Medicaid funding" for those programs,
Req. 21. Plaintiffs also request documents and proposals concerning
whether certain mental disability programs funded by the State are not
receiving federal medicaid reimbursement. Req. 20.
Defendants' response to each of Plaintiffs' requests is the same:
It is undisputed that the State of Illinois
maintains certain grant programs to adults with
mental retardation/developmental disabilities
which are not part of the Medicaid program and for
which federal matching funds are not sought or
received. As these grant programs are not Medicaid
funded, the state has no obligation under the ADA
or the Rehabilitation Act to make them apart of
the Medicaid program, A recently issued report
from the National Association of State Directors
of Developmental Disabilities addressing these
issues will be produced; however, Defendants
object to and will not produce any other documents
in this area generally because it is not relevant
to the case at bar nor likely to lead to the
discovery of relevant information.
Pl. Mot., Ex. A at 6-8.
2. The Dispute Regarding "Available Resources"
This case arises under the RA and the ADA, which include an integration
mandate that requires those disabled persons who are protected by the
acts and participate in state programs and services to obtain those
services in the most integrated setting possible. Pa. Prot. &
Advocacy, Inc. v. Dep't of Pub. Welfare, 243 F. Supp.2d 184, 190
(M.D. Pa. 2003).
Both provisions are enforceable through private causes of action.
Barnes v. Gorman, 536 U.S. 181, 185(2002).
The RA prohibits discrimination by entities receiving federal funds.
See 29 U.S.C. § 794(a); 28 C.F.R. § 41.51(a). Pursuant
to 28 C.F.R. § 41.51(d), recipients of federal funds are required to
"administer programs and activities in the most integrated setting
appropriate to the needs of qualified handicapped persons." Furthermore,
the Department of Justice has mandated:
No qualified handicapped person, shall, on the
basis of handicap, be excluded from participation
in, be denied the benefits of, or otherwise be
subjected to discrimination under any program or
activity that receives or benefits from federal
28 C.F.R. § 41.51(a).
The ADA similarly provides:
Subject to the provisions of this subchapter
[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. The Department of Justice implemented this
section by promulgating the following rule:
A public entity shall administer services,
programs, and activities in the most integrated
setting appropriate to the needs of qualified
individuals with disabilities.
28 C.F.R. § 35.130(d).
The same standard applies for assessing compliance with the integration
mandates of both the ADA and the RA. See Frederick L v. Dep't of Pub.
Welfare, 217 F. Supp.2d 581, 591 (E.D. Pa. 2002). That standard is
set forth in the regulations:
A public entity shall make reasonable
modifications in policies, practices, or
procedures when the modifications are necessary to
avoid discrimination on the basis of disability,
unless the public entity can demonstrate that
making the modifications would fundamentally alter
the nature of the service, program, or activity.
28 C.F.R. § 35.130(b)(7). Pursuant to the regulation, to
prevent a modification to its system, a defendant may put forth a
"fundamental alteration" defense, which requires a court to weigh and to
balance the following factors after a complex fact-intensive inquiry: (1)
the resources available to a state; (2) the range of services a state
provides those with mental disabilities; and (3) a state's obligation to
mete out those services equitably. Olmstead v. L.C. ex rel
Zimring, 527 U.S. 581, 597 (1999); Townsend v. Quasim,
328 F.3d 511
, 520 (9th Cir. 2003); Martin v. Taft, 222 F. Supp.2d 940,
986 (S.D. Ohio 2002). In other words:
Sensibly construed, the fundamental-alteration
component of the reasonable-modifications
regulation would allow the State to show that, in
the allocation of available resources,
immediate relief for the plaintiffs would be
inequitable, given the responsibility the State
has undertaken for the care and treatment of a
large and diverse population of persons with
Olmstead, 527 U.S. at 604 (emphasis added).
In this case, it is the meaning of "available resources" that gives
rise to this dispute. Essentially, Plaintiffs argue that the federal
matching and Medicaid funding that the State has not received
during the relevant periods is within the scope of "available resources"
be used to reasonably accommodate Plaintiffs' immediate relief in
an equitable manner. Defendants argue that such funding is outside the
scope of "available resources" and therefore not relevant, nor likely to
lead to the discovery of admissible evidence.
3. The Scope of "Available Resources"
The "fundamental alteration" defense recognizes that the State's
responsibility to treat qualified disabled persons is not boundless.
Olmstead, 527 U.S. at 603. Indeed, when the Supreme Court enunciated
the fundamental alteration factors in Olmstead v. L. C. ex rel.
Zimring, it did not look beyond the state's mental health budget for
"available resources." In Olmstead, the appellate court made the
assumption that the fundamental alteration defense applies only in the
most limited of circumstances and, consequently, weighed the cost of
expending additional funds to provide the individual plaintiffs with
their requested relief against the defendant state's entire mental health
budget. Id. at 595, 603. In rejecting the appellate court's
construction, the Supreme Court did not expand the scope of "available
resources" considered by the appellate court (i.e., the state's entire
mental health budget), but rather it expanded the scope of expenditures
weighed against that finite budget. See id. at 597, 603. Thus,
instead of considering merely the cost of providing the plaintiff s
requested relief, a court must also consider the range of services the
state provides to others with mental disabilities. Id. at 597,
604. Moreover, it is notable that no factor discussed by the Court in
Olmstead is speculative except the cost of plaintiff's requested
relief. The Court never balanced costs against any resources beyond the
state's existing mental health budget.
Applying Olmstead, the court in Frederick L v. Department
of Public Welfare declared that the scope of a state's "available
resources" is the state's "mental health budget and nothing beyond that
budget." 217 F. Supp.2d at 592. The court in Frederick L.
evaluated the defendant's fundamental alteration defense against the
plaintiff's request for accelerated community placement under Title II of
the ADA by analyzing the state's mental health budget. Id. That
budget consisted of state mental health appropriations and federal-state
"Medical Assistance" appropriations that covered the program at issue in
the case. Id. Recognizing that the accelerated community
placements would result in immediate extra cost for the defendant, the
court noted that it would also factor in a viable source of
funding if it that funding were identified by the plaintiffs.
Id. at 593. However, the fact that such funding was not
identified merely buttressed the court's conclusion that the demanded
relief was a "fundamental alteration" and that the state was doing what
it could with its limited budget. Id. The court noted that
granting relief for the plaintiff would drain scarce resources to the
detriment of others with mental disabilities because nothing short of an
increase in funding would provide the relief sought. Id.
Similarly, in Williams v. Wasserman, 164 R Supp.2d 591, 638
(D. Md. 2001), the court found that the immediate shift of existing
resources required by the plaintiff would result in a fundamental
alteration. In Williams, the defendant had participated in
various Medicaid "waiver" programs, which allow the use of federal funds
to provide community services to a person who otherwise would have been
served by the state. Id. at 634-35.
Although the court seemingly accepted the plaintiff's argument that
it would be cheaper in the long-run to grant the requested relief, it
found that the relief would not result in immediate cost saving to the
defendant. Id. at 637. Furthermore, the court found that any
cost savings eventually realized by the defendant by granting the
requested relief would represent a relatively small percentage of the
existing budget. Id. at 63 8. Without exploring the possibility
of additional Medicaid funding, the court held that the immediate shift
of resources sought by the plaintiff was a fundamental alteration, given
the existing budget. Id.
Thus, it is clear to this Court that Olmstead and its progeny
limit the scope of "available resources" to the state's mental health
budget. This result makes logical sense because if a plaintiff is seeking
immediate relief, as are Plaintiffs in this case, then only the resources
available in the budget should be a factor; speculative or potential
resources are irrelevant. It follows, therefore, that Defendants' failure
in this case to obtain federal matching or Medicaid funding is
irrelevant, as such funding is merely a speculative and not an available
However, to the extent an existing or a current or future proposed
budget has included efforts by Defendants to gain federal matching or
Medicaid funding, then inquiry into those efforts is permissible because
it may lead to admissible evidence at trial. The availability of that
funding is also relevant because it may be a viable source of funding by
the time of trial.
Finally, the Court acknowledges the decision in Martin v.
Taft, 222 F. Supp.2d 940, 970-73 (S.D. Ohio 2002), wherein that
court, while exploring "available resources" under
a "reasonable modification" question, found that the plaintiff
class of disabled persons sufficiently stated elements of an ADA claim to
survive a motion to dismiss because the plaintiffs claimed, inter
alia, that the state may request additional waiver slots to expand
community-based services. This Court, however, respectfully disagrees
with the decision because allowing such an inquiry is beyond the scope of
inquiry permissible under Olmstead.
Because this issue thus has been decided under Olmstead, the
Court need not address the Spending Clause constitutional issue raised by
Defendants. Therefore, Plaintiffs' motion to compel document production
for requests numbered 17, 18, 19, 20, and 21 is denied regarding the
availability of federal matching or Medicaid funds that were never sought
by Defendants, and granted to the extent that Defendants' existing and
proposed mental health budgets include actual or proposed matching
federal Medicaid funding.
B. Request No. 31
Plaintiffs have requested Defendants to produce "From 2001 to the
present, any and all documents which reflect in any manner that the State
of Illinois is not in compliance with the Medicaid waiver program and/or
Medicaid with respect to persons with mental disabilities." Pl. Mot. at
5. Defendants object to this inquiry as being irrelevant and barred
because the document request addresses only the Medicaid claim that has
been dismissed. Def. Resp. at 13. Plaintiffs reply that they clarified
the request in a letter to Defendants, dated November 6, 2003, which
states: "The Plaintiffs are asking the Defendant to produce documents
which reflect in any manner that the Illinois Medicaid Plan and/or
Medicaid Waiver plan which services the developmentally disabled is
not in compliance with ADA or the Rehabilitation Act." Reply at 5-6.
Defendants object to this modification, arguing that it violates
Rule 34 and Rule 26(a) as being overly-broad, and, alternatively, Plaintiffs
cannot now assert a new Medicaid claim. Def. Resp. at 13. The Court
agrees with Defendants that the request does not comply with Rule 34.
At a minimum, information must be relevant to be discoverable.
Fed.R.Civ.P. 26(b)(1). Relevance for the purposes of discovery is more broad
than relevance for the purposes of evidence. See Fed.R.Civ.P.
26(b)(1). So long as the information to be discovered is not privileged
and is reasonably calculated to lead to the discovery of admissible
evidence, the information sought need not be admissible at trial.
Id.; Oppenheimer Fund Inc. v. Sanders, 437 U.S. 340,
350-51 (1978). The scope of "relevance" for purposes of discovery is
determined by reference to subject matter in issue and not particular
pleadings. Fed.R.Civ.P. 26(b)(1).
First, the Court rejects Defendants' contention that Plaintiffs are
asserting a new Medicaid claim. Second, the Court accepts Plaintiffs'
clarification as appropriate to avoid being related to the dismissed
Medicaid claim. Plaintiffs' clarification of their request in a letter to
limit the request to the State's Medicaid waiver plan's noncompliance
with the ADA or the RA was permissible. See Kidwiler v. Progressive
Paloverde Ins. Co., 192 F.R.D. 193,
201 (N.D.W. Va. 2000) (affirming a magistrate judge's order
compelling a defendant to answer a document request that was clarified by
a subsequent letter). Therefore, the Court will analyze the document
request as modified.
The Court finds that the request is beyond the scope of Rule 34 because
it does not request the production of documents with "reasonable
particularity." A request for production of documents must describe the
documents requested with "reasonable particularity," Fed.R.Civ.P. 34.
The test for reasonable particularity is whether the request places a
party upon "reasonable notice of what is called for and what is not."
Parsons v. Jefferson-Pilot Corp., 141 F.R.D. 408, 412 (M.D.N.C.
1992), cited in St. Paul Reins. Co., Ltd v. Commercial Fin.
Corp., 198 F.R.D. 508, 514 (N.D.Iowa 2000); Kiawiler,
192 F.R.D. at 202 n.96. Thus, the party requesting the production of
documents must provide "sufficient information to enable [the party to
whom the request is directed] to identify responsive documents."
Parsons, 141 F.R.D, at 412.
Here, Plaintiffs request all documents that reflect in any
manner noncompliance with the ADA or the RA. The request does not
place Defendants upon "reasonable notice of what is called for and what
is not" because the language is overly-broad and extremely vague. See
Pulsecard, Inc. v. Discover Card Servs., Inc., No. 94-2304-EEO, 1995
WL 526533, at *3 (D. Kan. 1995) (finding as overly-broad the terms "refer
in any manner to" and "related in any manner to"). As a result,
Defendants cannot identify responsive documents. The language used
requires Defendants to ponder and to speculate in order to decide what is
and what is
not responsive. See id. Consequently, Plaintiffs have
failed to phrase the request with reasonable particularity.
Therefore, Plaintiffs' motion to compel document production for request
number 31 is denied. However, to the extent that Defendants' documents
directly state that the Illinois Medicaid Plan and/or Illinois
Medicaid Waiver Plan which services the developmentally disabled is not
in compliance with ADA or the RA, those documents should be produced.
For the reasons set forth in this opinion, Plaintiffs' motion to
compel document production for requests numbered 17, 18, 19, 20, and 21
is denied except to the extent that an existing or a proposed budget
includes efforts by Defendants to gain federal matching or Medicaid
funding. Plaintiff's motion to compel document production for request
number 31 is denied, except to the extent that Defendants' documents
directly state that the Illinois Medicaid Plan and/or Illinois Medicaid
Waiver Plan which services the developmentally disabled is not in
compliance with the ADA or the RA.
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