The ADA and its implementing regulations, therefore, require the City to provide individuals with disabilities the opportunity to receive treatments for their disabilities in the most integrated setting possible. 28 C.F.R. § 35.130(d) (requiring cities to "administer…programs…in the most integrated setting appropriate to the needs of qualified individuals with disabilities"); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 602 (1999) (individuals with disabilities should be provided treatment opportunities in the most integrated setting possible); Pac. Shores Props., 730 F.3d at 1165 (segregation of the disabled is unlawful); Valley Hous.

Id. at **9 (quoting 28 C.F.R. §35.130(d)). Defendants know how to serve persons with intellectual and developmental disabilities in the community, and they have done so for some people by providing limited access to home and community-based service waivers.

130(g) . . . plainly contradicts the statute and is not enforceable,” 2017 U.S. Dist. LEXIS 22813, at *53; see also id. at *54 n.57 (collecting additional cases that “have hinted, without deciding, that 28 C.F.R. § 35.130(g) may exceed the scope of the ADA provision on which it is based”). Considering these reasons in conjunction with this Court’s finding in Todd, it is clear that the ADA’s purported abrogation of Eleventh Amendment immunity for Title II claims cannot be applied to a for-profit business, such as APC, that claims a right to provide health services to disabled individuals.

Olmstead held that community placement may not be imposed on [students] who do not desire it.” 527 U.S. at 602 (citing 28 CFR § 35.130(c)(1)). Thus, the sweeping relief DOJ seeks – shuttering the GNETS Program – cannot occur so long as there are at least some students who prefer the GNETS Program.

The case turns on the meaning of a regulation that the U.S. Department of Justice adopted to enforce Title II of the ADA. 28 C.F.R.§ 35.130(d). Id.

However, “while Congress intended to decrease segregation and promote integration, neither the ADA nor Section 504 confers an absolute right to [individuals with developmental disabilities] to be placed in the community.” Messier v. Southbury Training Sch., 1999 U.S. Dist. LEXIS 1479, at *30 (D. Conn. Jan 5, 1999). The DOJ promulgated regulations to implement the integration mandate, which provide that a public entity “shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified persons with disabilities.” 28 C.F.R. § 35.130(d). According to the DOJ, the term “most integrated setting” means “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible . . . .” 28 C.F.R. pt

17. Plaintiffs have been subjected to illegal eligibility criteria by Defendants which screen them out or tend to screen them out from the NF/AH Waiver program, in violation of 28 C.F.R. § 35.130(b)(8) and 45 C.F.R. § 84.4(b)(1)(iv).

Finally, the ADA and Section 504 require that public entities 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); see also 42 U.S.C. § 12131(2); Alexander v. Choate, 469 U.S. 287, 301 (1985) (Section 504 requires that “an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers . . . . to assure meaningful access, reasonable accommodations in the grantee’s program or benefit may have to be made”).

Specifically, sections 35.130 and 41.53 oftitle 28 of the Code of Federal Regulations have nothing to do with the rights of students -23- with diabetes under Section 504, the Americans with Disabilities Act, or the IDEA. Section 35.130 applies to all public entities, including public schools, but makes no reference to education or “reasonable accommodations.” Although section 41.53 does indeed refer to “reasonable accommodations,” it does so only with respect to federally-assisted employmentprograms.

The plain meaning of failure to 6 Case 1:16-cv-01982-JHR-AMD Document 16 Filed 08/01/16 Page 11 of 20 PageID: 129 ‘reasonably modify his method of communication with Plaintiff’ alleges the ‘subjection to discrimination’ by a public entity since the failure of a public entity to provide disabled persons with meaningful modifications constitutes discrimination within the meaning of the Act. 28 C.F.R. Section 35.130(b)(7). Defendant’s apparent attempt to distinguish between the acts of the unknown operator of the bus and New Jersey Transit Bus Operations, Defendant’s brief at 29, is misplaced.