Decision in ABD Waitlist Case

October 4, 2006: Decision in ABD Waitlist Case

Judge Steven McAuliffe issued a decision on September 29, 2006 in Bryson v. Stephen, the Acquired Brain Disorders waitlist case. In ruling for the Defendants, the Court found that the current wait for home and community based care services, averaging approximately one year, was reasonable and that the State’s increasing fiscal effort to expand the waiver was adequate to avoid violating the ADA and Rehabilitation Act’s integration mandate .The Court cautioned the State, however, that “the continuing obligation will remain a legitimate subject for scrutiny”. While disappointed in the ruling of the Court, the Disabilities Rights Center is pleased that the result of the litigation has been a significant expansion of the waiver, and that the wait for service has been drastically reduced. At the time of filing the lawsuit, individuals had waited as long as ten years in institutions before receiving home and community-based care services.

Court’s decision in the Byson case is available here

Contact: Amy Messer, Disabilities Rights Center Concord, NH (603) 228-0432

This week the parties received an important ruling from US District Court Judge Steven McAuliffe in a case challenging the New Hampshire’s failure to serve many individuals with brain injury in need of community services, but instead placing them on a waiting list. The class action, known as Bryson v. Vailas, was filed by Disabilities Rights Center (DRC) in 1999. All class members are eligible for community services. Many of them are forced to remain in institutions at higher costs to the state.

The state sought to dismiss the case through a motion for summary judgment. Judge McAuliffe held that a trial was necessary and denied the state’s motion ruling that under Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Federal Rehabilitation Act, that:

“When, as is the case here, the State’s treatment professionals reasonably determine that home or community placement is appropriate, and the affected person wishes such treatment, the State must provide it, if the community-based placement can be reasonably accommodated…”

The court also denied DRC’s motion to decide the case without the necessity of a trial. However, Amy Messer, Senior Staff Attorney at DRC was heartened by the ruling. “We are very pleased to have gotten over this important summary judgment hurdle. This decision will allow individuals with acquired brain disorders who have long awaited community care, rather than institutionalization, to proceed with their action against the state.”

The case was on remand from the First Circuit Court of Appeals which had decided that the state was not required to serve 200 individuals under a Medicaid waiver program. Remanded however, was whether the state was required to expand the availability of waiver services under the ADA, the U.S. Supreme Court’s decision in the Olmstead case, and Section 504 of the Rehabilitation Act.

A decision recognizing the state’s obligation to ensure that individuals are not unnecessarily institutionalized is an important one. After spending many years in a nursing home, Bonnie Bryson, a named plaintiff in this lawsuit, who has multiple sclerosis, moved back home with her sister, receiving state supported services. “It has made all the difference in her life and the lives of her family members. We are looking forward to achieving this improved quality of life for others who are anxiously awaiting community based services,” says Amy Messer.

Judge McAuliffe’s decision emphasized that, although the First Circuit decided that plaintiffs have no legal claim under the Medicaid waiver program, they do have enforceable rights under Title II of the ADA and Section 504, both of which entitle people with disabilities to services in the least restrictive environment. The decision went on to say that: “…the State incorrectly perceives the issue of accommodation as strictly related to the limited ABD waiver program; in reality, the State’s obligation to provide community-based services, and the plaintiff’s right to such services, extends beyond the particular requirements or scope of the model waiver program.”

Court’s decision is available here


Disability Rights Center – New Hampshire is a statewide non-profit organization dedicated to eliminating barriers for people with disabilities across New Hampshire. DRC is the federally designated protection and advocacy agency for New Hampshire and has authority under federal law to conduct investigations in cases of probable abuse or neglect.

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