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with 504 of the

forth below, motion fbr judgment &I the :

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by Board of

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Marla DeJeNs. I believe thoU Palmira[']s condition would +sen and she would require nursing I

home pllc:emcilt if her daugbt"'', Maria DeJesus, is not allo~d to continue 88 her perooila! care

atteodant." }

Jennifer McCannon, a Skills Trainer from Stavros,2 !tstified at the bearing lhat, "Through

' my course of working with them, we've tried many dift'erent!routes, and finding PCA'a and

getting Into Adult Day Programs, and nodlini seems to work! except to have Maria worldng fur

her ntother." (Hearing Minutes ("H.M.'1, at 31). She also c!'preased her belief that Garcia '

would bavc to go to a nursing homt if a waiver was not~ and that wollld compromise the !

qllllltt)' and quantity of Garda's life M well as defeat the JNIPose of the Stavros program. (H.M.,

at 31·32), ~s Brown, 1111. Advocate &0111 Stavros, added th~ '"no nursing home coUld prDVide ..

. 00111p11mblo care that the daughtilr can provide." (H.M., at ~2). She also stated that it would be '

more cost effective for the claughter to provide the .;are ills~ of placin¥ Garcia in a nur!ing

home. (ll.M., at 33). .

' On June 26,2001, the Board of Hearings (Levin. M.t H.O.) denied the plaintiffs 11ppeal

llld held that the DiviBion correctly determined thai DtiesliS may not be paid as her mother's

PCA:

~In the case at haod the reaulation is clear. MassHe$1th does not allow for family members to be paid as a PCA. 130 CMR 422.402 dtfines a fauilly mClllber as a chlld, spOWIO, parent, son-in-law or daughter-in-law. The ~llant's 'ream' testified in a vecy credible manner, and documerW:d all the point& they msde. However, while the Hearing Officer is sympa1hedc to the appellant's situation, rile regulation does not provide fi)r 411Y exceptions, or for tile ability to gntD.t a waiver. Unfl)rtunately, this appeal must be denied."

1 StaVl\'lS Center for Indepenclent Livina, Inc.;tbe fiscal intermediary, to which Garcia's primary eare phyllician refemd Garcia. ·

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0 questions of fact for of the

43

41 Ct 565,572 (19%).

424

M&.743,750(1997),

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130 42

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the benefits of the services, of a public

v. 901 F. 471,478 (

PCA the Finally, she!

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argue1 that, if the Division does not pay her dauahter, she wil~ be placed in a nursing facility in violat!OO. of the il1tegration mandate of the ADA.

. The Division counters that Garcia is not a qualified +vidual with a disability beCIIIJSe

she cannot find a reimbursable PCA under the regulatiOIIll. 4 4 argues that a waiver of a reaso1111b!y necessary progr.un requirements is not a reasonable lWcommodation. The .Divillion

also IISsetU that it dld Mt deey GfiJ"cla beDefits or subject her~ dl~on because of her . ' disability. Rathor, it states that, through no fault of its awn. ~cia cannot meet 111 essential eligibility requirement i

j As an initial mattl:r, contrazy to the Division's asserti~n, tho plainti1'tlw .deqWltely

preserved !ulr dlacrlmination claimS fur this court's review. t Division argues that the •iu&lo . issue tbat ~parties fully litigat&d below was whether "the qlvision' s decision to terminate

' payments tn the Pl8lntiff' s daUghter for personal care servicei rendered to 1he Plaintiff was

PAGE

coll:!i~tent with the Division'• n~gulations." Defen~t's ~sing Memorandum, IIi 13. Gercia counters that she preserved her claims at 1he initial hearing whm sho asked :fur a waiver or an

• i I

e~~•on to the regulation, and that, after the Disability Law!Center began to represent her, her I I

. ' request for a rehearing inc!~ her dlSt:rllnlnation claims. Plllinliff's Reply MernonndUOI, at 1·

: '

3. Tbe a~y had full opportwrity 10 addzess Garcia'~ di'~on claimll but declined 1o do

so when it denied Gareia a rehearing. Under these olroums,ces, Garcia's psesent

di&criminlltion cbims are properly before this court. i Oarcla is a qWl1lfied iudividual for purposes of the JA. The Division has already

I i I

4 · The Division concedes that it is subject to theiADA. Defendant's Opposing Memorandum, at 15, n. 11 , It also does not dispute that the *laillti.ff is disabled. ld,. at 16.

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to her only I

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IPCA. He expressed for I

unable to with a waiver to the it

is the only who can her e

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July of the court