Bill M. and six other developmentally disabled adults (Plaintiffs) sued Nebraska and various Nebraska officials in their official capacities, alleging violations of Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and other federal and state law provisions. Plaintiffs asserted that they are each “eligible for, desire, have applied for or have attempted to apply for and have been denied home and community-based Medicaid-funded services.” Compl. at 2. They alleged that Nebraska’s withholding of funding to these services has left them without adequate services to meet their needs and placed them “at imminent risk of unnecessary institutionalization.” Id. Nebraska and the officials moved to dismiss on various grounds. The district court denied the motion.
This interlocutory appeal is limited to one aspect of the dismissal motion: Nebraska’s contention that Eleventh Amendment immunity precludes the district court from having subject matter jurisdiction over the Title II claim. Plaintiffs contend that Title II and related statutory provisions ostensibly abrogate Eleventh Amendment immunity with respect to a Title II claim. Nebraska argues, in response, that the extension of Title II to the states is unconstitutional under our circuit’s precedent. The United States has intervened to defend the statutory abrogation.
Bill M. v. Health & Human Serv., 04-3263 (8th Cir. May 27, 2005) (holding that Tennesse v. Lane does not apply in denial of access to welfare benefits cases).