HADDAD

v.

DUDEK

MARCIA MORALES HOWARD, District Judge.

This case is before the Court on Defendants’ Motion to Dismiss Complaint (Doc. 32; Motion to Dismiss), filed on June 8, 2010. In this case, pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12132 and 12133 (“ADA”), and the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (“Rehab Act”), Plaintiff Michele Haddad seeks declaratory and injunctive relief, ordering the State of Florida, through its agencies, to provide her with home and community-based Medicaid services as part of the Traumatic Brain Injury/Spinal Cord Injury waiver program (“TBI/SCI Waiver Program” or “waiver program”). Plaintiff, a quadriplegic, alleges in her two-count Complaint that Defendants’ failure to provide her with home and community-based Medicaid services pursuant to its TBI/SI Waiver Program would force her into an institutionalized nursing care facility. Plaintiff alleges that Defendants’ actions violate the ADA and the Rehab Act and their implementing regulations, which require that state services and programs, including Medicaid, be administered “ ‘in the most integrated setting appropriate’ to the needs of the individual with disabilities.” (Doc. 1; Complaint ¶ 49). Defendants’ have filed a response in Opposition to the Motion to Dismiss, (Doc. 35; Response), and the matter is ripe for review.

I. Standard of Review 2

A motion to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Rules(s)), is a motion attacking *1314 the legal sufficiency of a complaint. In ruling on a Rule 12(b)(6) motion to dismiss, the Court must accept the factual allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); see also Lotierzo v. Woman’s World Med. Ctr., Inc., 278 F. 3d 1180, 1182 (11th Cir.2002). In addition, all reasonable inferences should be drawn in favor of the plaintiff. See Omar ex rel. Cannon v. Lindsey, 334 F. 3d 1246, 1247 (11th Cir.2003) (per curiam). Nonetheless, the plaintiff must still meet some minimal pleading requirements. Jackson v. Bell-South Telecomm., 372 F. 3d 1250, 1262-63 (11th Cir.2004) (citations omitted). Indeed, while “[s]pecific facts are not necessary,” the complaint should “ ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Further, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The “plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal quotations omitted); see also Jackson, 372 F. 3d at 1262 (explaining that “eonclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal”) (internal citation and quotations omitted). Indeed, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions,” which simply “are not entitled to [an] assumption of truth.” See Iqbal, 129 S.Ct. at 1949, 1951. Thus, in ruling on a motion to dismiss, the Court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). 3

II. Background

A. Underlying Facts 4

According to her Complaint filed May 13, 2010, Plaintiff is a 49 year old woman *1315 who, on September 7, 2007, when she was 47 years old, was in a motorcycle accident caused by an intoxicated driver. Complaint ¶¶ 10, 11. She remained hospitalized in a rehabilitation hospital until January, 2008. Id. ¶ 12. As a result of the accident, Plaintiff became a quadriplegic, paralyzed from her chest down, and having minimal manual dexterity. Plaintiff uses a motorized wheelchair for ambulation. Id. ¶¶ 14-16.

In November 2007, while she was still hospitalized, Plaintiff “applied to Defendants,” specifically the State of Florida, Florida Agency for Health Care Administration and the Florida Department of Health, to receive home health care through the TBI/SCI Waiver Program. She has remained on the “wait list” for services through the filing of her Complaint in May, 2010. Id. ¶ 13.

Plaintiff was married for 24 years and has two adult sons. In November, 2009, Plaintiffs husband divorced her. However, he continued to reside with her until March 2010, when one of her adult sons was able to move into her home. Id. ¶¶ 18-19.

Between January 2008 when she was discharged from the hospital, and March 2010 when her husband left the house, Plaintiffs husband was her primary caregiver. Id. ¶¶ 20. This caregiving included *1316 lifting her out of bed, transferring her to a wheelchair, bathing her, helping her with personal hygiene needs, dressing her, shopping for food, preparing meals, assisting Plaintiff with eating, and repeating these functions at the end of the day to assist her in getting into bed. As caregiver, Plaintiffs husband also assisted her with her use of a catheter, and bowel program. Since March 2010 when her husband left the house, Plaintiffs son has performed these functions for Plaintiff. However, Plaintiffs son, who resides in Miami, desires to return to Miami as soon as Plaintiff obtains appropriate assistance with her activities of daily living from another source. Id. ¶ 21-25.

Plaintiff does not want to go into a nursing home. Instead she wishes to continue residing in the community, where she maintains an active life attending church, going to movies, visiting friends, exercising at the rehabilitation hospital gymnasium, and shopping. Id. ¶¶ 26-28. She owns a home that is accessible with a ramp, a roll-in shower, and a hoyer lift. However, her sole source of income is her monthly Social Security Disability Insurance. Although she is eligible for, and receives, both Medicare and Medicaid, see id. ¶ 29, Plaintiff alleges that “[without community-based Spinal Cord Waiver services, [she] is at risk of being institutionalized, even though she desperately does not want to reside in a nursing facility.” Id. ¶ 30.

In March, 2010, the TBI/SCI Waiver Program was contacted by telephone and informed of Plaintiffs changed home-care circumstances. As of the time of filing the Complaint, Plaintiff had not received any TBI/SCI Waiver Program services, and “Defendants’ employee did not know when, or if, Ms. Haddad would receive Waiver services.” Id. ¶¶ 31, 32. Plaintiff remained on the “wait list” and was told “to be ‘eligible’ for these services, she will have to enter a nursing home for 60 days.” Id. ¶ 41.

Plaintiff alleges that at-home community based services would cost Defendants less than her institutionalization in a nursing home to obtain those same services. Id. ¶¶ 34, 35. She alleges that the same Medicaid-funded personal-care services available in a nursing facility could be provided in the community, and indeed, are provided by Defendants “without conditioning receipt of such services on placement in a nursing facility” to “a very limited number of people who are similar to Ms. Haddad.” Id. ¶¶ 37, 38.

Many persons who have spinal cord injuries, paralysis, and quadriplegia and who have the same or similar daily living activity impairments and needs as Ms. Haddad reside in the community and their own apartments, with appropriate community-based, Medicaid-funded long-term care services.

Id. ¶ 36. Plaintiff further alleges:

Since July 1, 2007, Defendants have provided community-based Medicaid services to 375 people with spinal cord injuries. Defendants will continue to limit those services to 375 people through June 30, 2012.

Id. ¶ 43. Additionally, she asserts that the number of persons with spinal cord injuries on the “wait list” for Medicaid-funded community-based services increased from 434 to 554 in 2008, and “Defendants have recently stated that there are ‘no funded slots open’ in the spinal cord waiver program [TBI/SCI Waiver Program].” Id. ¶¶ 44, 46-48, 67. Noting that she has been on the waiting list for the Medicaid-funded *1317 community-based TBI/SCI Waiver Program for two and a half years, since November 2007, Plaintiff alleges:

Ms Haddad has never been informed about her rank or numerical position on the waiting list, whether her rank or numerical position has even changed, when approximately she will receive Waiver services, what if anything she might do to increase her position, or any other information regarding how slowly or quickly the waiting list might be moving.

Id. ¶ 66.

B. Plaintiff’s Claims for Relief

In her two-count Complaint, Plaintiff contends that Defendants have violated Title II of the ADA, 42 U.S.C. § 12132, and its implementing regulation, 28 C.F.R. § 41.51(d) (Count I), id. ¶¶ 70-75; and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and its implementing regulation, 28 C.F.R. § 41.51(d) (Count II). Id. ¶¶ 76-78. Plaintiff alleges that she is a “qualified person” with disabilities, and that with “reasonable modifications,” Defendants could increase the number of spinal cord injury waiver slots in the TBI/SCI Waiver Program or expand the provision of personal care option services to individuals in their homes instead of only in an assisted living facility, “allocating the same funds Defendants would pay for [Plaintiff] in a nursing home to provide services for Ms. Haddad in the community.” Id. ¶¶ 71, 72, 76. Plaintiff alleges that Defendants’ denial of Medicaid funding for the community-based services she requires to avoid segregation in an institution and remain in the integrated home setting appropriate to her needs, and Defendants’ requirement conditioning receipt of community-based services on her entering a nursing home for 60 days against her will, constitute unlawful discrimination in violation of the ADA and the Rehab Act. Id. ¶¶ 49, 73-75, 77-78.

Plaintiff seeks declaratory and injunctive relief requiring Defendants to provide “Medicaid services which will allow her to continue to reside in the community and not require her institutionalization.” Id. ¶ 50 and at 13-14. She also seeks costs and attorney’s fees pursuant to the ADA and the Rehab Act.

C. Procedural History

Concurrent with the filing of her Complaint, Plaintiff filed a Motion for Preliminary Injunction and Expedited Hearing. (Doc. 2; Motion for Preliminary Injunction). The Court directed Plaintiff to serve the Motion for Preliminary Injunction on Defendants (Doc. 4; 5/13/10 Order).⁵ Plaintiff accomplished service of process on Defendants, (Docs. 11, 12; Return of Service, filed May 25, 2010), and the Court set an expedited briefing schedule due to the urgency of the matter. (Doc. 13; 5/25/10 Order).⁶ Pursuant to the 5/25/10 Order, the parties submitted briefs *1318 and supporting evidence, in the form of declarations, affidavits and exhibits (see Docs: 24, 25, 26, 27, 29). On June 15, 2010, the Court conducted a hearing on the Motion for Preliminary Injunction. (Docs. 39; 47), and subsequently received 'additional briefing from the parties. (Docs. 41, 43).

1. Order Granting Preliminary Injunctive Relief

On June 23, 2010, the Court entered an Order Granting Preliminary Injunctive Relief. (Doc. 46; 6/23/10 Order). The Court’s Order resolved Plaintiffs request that the Court preliminarily “enjoin Defendants from denying her in-home health care services in order to prevent her from being forced into unnecessary institutionalization in a nursing home.” 6/23/10 Order at 1.

In support of her request, Plaintiff, a quadriplegic, contends that she has continuously lived in the community and could continue to do so if Defendants would provide her with the services she is eligible to receive through the state’s Traumatic Brain Injury/Spinal Cord Injury (TBI/SCI) Medicaid waiver program. [Footnote omitted.] ... To date, she has been denied those services due to a limitation on the number of persons who can participate in the program .... Thus, although eligible for the services, Plaintiff has remained on a waiting list for nearly two and a half years.... Having lost her caregiver, Plaintiff now faces institutionalization if not provided in-home health care services such as those provided under the TBI/SCI waiver which she is otherwise medically and financially eligible to receive.

Id. at 1-2 (citations omitted). In the Order, the Court noted that it had been advised that Plaintiff was hospitalized at the time of the June 15, 2010 hearing due to medical complications unrelated to the alleged denial of services. Id. at 3-4. However, Plaintiffs counsel also advised that upon discharge, Plaintiff “would be unable to go home without the provision of the services she seeks to compel Defendants to provide.” Id. at 3. Although on the day of the hearing, counsel informed the Court that Plaintiff was due to be discharged from the hospital “in two to three weeks,” id. at 3-4, on June²¹, 2010, Plaintiffs counsel filed a Notice stating that Plaintiff was to be discharged from the hospital on June 24, 2010. (Doc. 40). Thus, due to the “exigency of Plaintiffs current circumstances,” the Court issued its 6/23/10 Order “in advance of Plaintiffs impending release from the hospital,” indicating that a more “thorough written analysis” would follow. Id. at 5. In the 6/23/10 Order, having considered the evidence and legal argument presented, the Court granted the Motion for Preliminary Injunction, determining that

Plaintiff has made a clear showing that she has a significant and substantial likelihood of succeeding on the merits of her claim that Defendants’ refusal to provide her with in-home based health care services for which she is financially and medically eligible, and which Defendants provide to others through the TBI/SCI Medicaid waiver program violates the ADA and the Rehab Act; that she will suffer irreparable injury unless the injunction is issued in that she is at imminent risk of being institutionalized in order to obtain the necessary services which Defendants refuse to provide her outside the institutional setting; that the threatened injury to Plaintiff outweighs the possible injury that the limited injunctive relief ordered here may cause *1319 Defendants; and that this injunction will not disserve the public interest.

Id. at 8. The Court waived the requirement that Plaintiff post a bond, and ordered Defendants to immediately re-assess Plaintiffs eligibility and placement on the waiting list for services in the TBI/SCI Waiver Program, and enjoined Defendants from refusing to provide Plaintiff services consistent with those that would be authorized by the TBI/SCI Waiver Program. Id. at 8-9.

2. Court’s Preliminary Injunction Opinion

The Court issued its more lengthy analysis, setting forth the Court’s reasoning, on July 9, 2010, 784 F. Supp. 2d 1284, 2010 WL 6650335 (M.D.Fla.2010). (Doc. 49; 7/9/10 Opinion). 7 The factual findings set forth in the 7/9/10 Opinion were based upon the evidence submitted by the parties, including declarations, affidavits, and documents, as well as representations made by counsel for the parties at the June 15, 2010 hearing. Id. at 6-13. The Court first determined that Plaintiff has standing to pursue the claims raised in this action, and then addressed Defendants’ arguments challenging Plaintiffs ability to succeed on the merits of her claims. Id. at 14-16. The Court specifically addressed, analyzed, and rejected the following arguments made by Defendants: (1) Plaintiff cannot state a claim of discrimination under the ADA, id. at 18-21; (2) Plaintiffs claims are barred by collateral estoppel, based upon the settlement in the Dubois litigation, id. at 21-24; (3) Plaintiff fails to state a claim for relief because the ADA regulations do not create a private right of action, id. at 24-26; (4) the ADA regulations provide that a public entity need not provide personal care services, id. at 26-27; and (5) Plaintiffs claims fail to state a claim because they would abrogate or amend the Medicaid Act by making personal care services mandatory or by requiring Defendants to un-cap the TBI/SCI Waiver Program. Id. at 27-29. The Court also specifically addressed whether Plaintiffs claims met the requirements necessary to state a claim of discrimination under the ADA pursuant to the Supreme Court’s decision in Olmstead v. Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999). 7/9/10 Opinion at 29-39. Focusing on the disputed factors, the Court determined, based upon the limited record before it, that Plaintiff had a substantial likelihood of establishing that her requested accommodation — the receipt of community-based services — -was a reasonable accommodation in light of the Defendants’ resources and their obligations under the law, and that Defendants failed to establish that providing Plaintiffs requested accommodation would result in a “fundamental alteration” of Defendants’ programs. Id. at 30-36. Completing its analysis, the Court further found that the prospect of “uncertain, indefinite institutionalization” which would result if relief were not ordered would cause irreparable injury to Plaintiff. Id. at 36-37. Additionally, the Court found that Plaintiff had established that “she is, indeed, on the threshold of unnecessary institutionalization” and that the “balance of harms” lies in Plaintiffs favor. Id. at 37. And finally, the Court found that the “public interest favors pre *1320 venting the discrimination that faces Plaintiff so that she may avoid unnecessary institutionalization.” Id. at 38 (citing Olmstead, 527 U.S. at 599-601, 119 S.Ct. 2176).

In ruling on the Motion for Preliminary Injunction, the Court repeatedly acknowledged that it was making its determination based upon the limited record before it at the time, and the “unique circumstances currently facing Plaintiff Michele Had-dad.” Id. at 39 n. 19. The Court anticipated further development of the evidentiary record, noting that its determination that preliminary injunctive relief is appropriate

should not be interpreted as suggesting that the Court will find such relief warranted under circumstances different from those here, or that Defendants, on a more complete record, cannot establish that such relief would constitute a fundamental alteration of the programs or that they have a comprehensive, effectively working plan for providing services to qualified individuals with disability obviating the need for such relief.

Id.; see also id. at 6 n. 6 (based on the expedited schedule, the Court noted that “the factual record contained herein may not be completely developed” and that the findings of fact and conclusions of law on preliminary injunction “do not necessarily reflect what may be established on a record more fully developed following trial on these issues”); id. at 31 (“Defendants may be able to support these contentions on a more developed record”).

3. Proceedings Following Preliminary Injunction

In accordance with the Court’s 6/23/10 Order, Defendants, on August⁵, 2010, submitted the Affidavit of Kristen Russell Regarding Plaintiffs Status In The Waiver. (Doc. 56-1; Russell Aff.). 8 Ms. Russell stated that Plaintiff was “assessed” by the State on June 24, 2010. Id. ¶ 4. Although Plaintiffs “prioritization score” placed her 88th on the TBI/SCI Waiver Program waiting list, she was placed in the TBI/SCI Waiver Program on July 29, 2010, in order to comply with the 6/23/10 Order. Id. ¶6. Under the TBI/ SCI Waiver Program,

Ms. Haddad receives four hours per day of in-home personal care services and six hours per day of companion care services. She is also receiving nursing services to complete her bowel care. Furthermore, [Defendants have] arranged with Ms. Haddad’s physician to prescribe additional home health care visits to be paid by Medicare for the administration of medication for breathing treatments.

Id. ¶ 7. The parties have submitted no further reports regarding Plaintiffs status. 9

This case is currently scheduled for a Bench Trial during the trial term commencing August 1, 2011. (Doc. 55). The parties have proceeded with discovery in this matter. (See Docs. 55, 60, 61, 62).

*1321 III. Discussion

A. Defendants’Motion to Dismiss

Defendants have moved to dismiss Plaintiffs Complaint pursuant to Rule 12(b)(6) for failure to state a claim under the ADA and the Rehab Act for the following reasons: (1) Plaintiff cannot state a claim of discrimination under the ADA because Defendants’ alleged conduct is not discriminatory, Motion to Dismiss at 2-3, 5-6; (2) Plaintiffs claims are barred by collateral estoppel, based upon the settlement in the Dubois litigation, id. at 3-5; (3) the ADA regulations do not create a private right of action, id. at 6-8; (4) the ADA does not require a public entity to provide services of a personal nature, id. at 9-13; (5) the relief requested would result in the ADA amending or abrogating the Medicaid Act, id. at 13-20; and (6) the relief requested would result in a “fundamental alteration” to the Florida Medicaid Program, in violation of the ADA, id. at 20-24.

B. Applicable Law

Title II of the ADA provides that “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. 10 “To state a claim under Title II of the ADA, a plaintiff must allege: (1) that [s]he is a ‘qualified individual with a disability;’ (2) that [s]he was ‘excluded from participation in or ... denied the benefits of the services, programs, or activities of a public entity’ or otherwise ‘discriminated [against] by such entity;’ (3) ‘by reason of such disability.’ ” Shotz v. Cates, 256 F. 3d 1077, 1079 (11th Cir.2001) (quoting 42 U.S.C. § 12132). In the Olmstead decision, the Supreme Court considered the application of this public services antidiscrimination provision in circumstances comparable to those presented by this case:

we confront the question whether the proscription of discrimination may require placement of persons with mental disabilities in community settings rather than in institutions.

Id. at 587, 119 S.Ct. 2176. The Court answered this question with a “qualified yes.” See id. In doing so, the Court held that the unjustified institutional isolation of persons with disabilities is a form of discrimination by reason of disability. See id. at 597, 600-01, 119 S.Ct. 2176. The Court explained:

Recognition that unjustified institutional isolation of persons with disabilities is a form of discrimination reflects two evident judgments. First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.... Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, edu

*1322

cational advancement, and cultural enrichment. Dissimilar treatment correspondingly exists in this key respect: In order to receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice.

Id. at 600-01, 119 S.Ct. 2176 (internal citations omitted). To avoid the discrimination inherent in the unjustified isolation of disabled persons, public entities are required to make reasonable modifications to policies, practices, and procedures for services they elect to provide. Nevertheless, the Olmstead Court recognized that a state’s responsibility, once it determines to provide community-based treatment, is not without limits. See id. at 603, 119 S.Ct. 2176. 11 Rather, the regulations implementing the ANA require only “reasonable modifications” and permit a state to refuse alterations to programs that will result in a fundamental alteration of the program or service. See id.

In considering whether a proposed modification is a reasonable modification, which would be required, or a fundamental alteration, which would not, the Olmstead Court determined that a simple comparison showing that a community placement costs less than an institutional placement is not sufficient to establish reasonableness because it overlooks other costs that the state may not be able to avoid. See id. at 604, 119 S.Ct. 2176. The Court explained,

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 mental disabilities.

Id. Indeed, the Court recognized that the fundamental alteration defense must be understood to allow some leeway to maintain a range of facilities and services. See id.

If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met.... In such circumstances, a court would have no warrant effectively to order displacement of persons at the top of the community-based treatment waiting list by individuals lower down who commenced civil actions.

Id. at 605-06, 119 S.Ct. 2176. Thus, having considered the ADA as well as the applicable regulations, the Court concluded that the ADA requires states to provide community based treatment for persons *1323 with disabilities when: (1) the state’s treatment professionals have determined that community-based services are appropriate for an individual; (2) the individual does not oppose such services; and (3) the services can be reasonably accommodated, taking into account (a) the resources available to the state, and (b) the needs of others with disabilities. See id. at 602-04, 607, 119 S.Ct. 2176; Pa. Prot. & Advocacy, Inc. v. Pa. Dep’t of Pub. Welfare, 402 F. 3d 374, 379-80 (3d Cir.2005); Frederick L. v. Dep’t of Pub. Welfare of the Commonwealth of Pa., 364 F. 3d 487, 493 (3d Cir.2004); Fisher v. Okla. Health Care Auth., 335 F. 3d 1175, 1181 (10th Cir.2003). When these requirements are met, states must provide services to individuals in community settings rather than in institutions. See Fisher, 335 F. 3d at 1181.

C. Defendants ’ Arguments

1. Plaintiff Fails to State A Claim For Relief Under the ADA Because She Fails To Allege Discriminatory Conduct

Defendants argue that Plaintiff has not alleged that she was excluded from services “ ‘by reason of ... disability’ ” and indeed alleges that individuals with her disability receive community-based services. Motion to Dismiss at 2. 12 Defendants’ argument was summarily rejected by the Supreme Court in Olmstead. There, the state argued that plaintiffs encountered no discrimination “by reason of’ their disabilities because they were not denied community placement on account of their disabilities, and because no similarly situated individuals received preferential treatment. 527 U.S. at 598, 119 S.Ct. 2176. The Court responded that “[w]e are satisfied that Congress had a more comprehensive view of the concept of discrimination advance by the ADA.” Id. As such, the Court held that “[ujnjustified insolation ... is properly regarded as discrimination based on disability” under the ADA. Id. at 597, 119 S.Ct. 2176. Moreover, this Court considered the same argument at the preliminary injunction stage of this litigation and similarly rejected it. 07/09/10 Opinion at 21. Defendants’ argument is again, not well-taken. 13

2. Plaintiff’s Claims Are Collaterally Estopped

Defendants contend that Plaintiff “lacks standing because she is a member of the class certified in Dubois v. Levine, *1324 Case No. 4:03-CV-107-SPM.” Motion to Dismiss at 3. Attached to the Motion to Dismiss are a copy of the Complaint for Declaratory and Injunctive Relief filed on April 11, 2003, in the United States District Court for the Northern District of Florida in the Dubois case (Doc. 32-1; Exhibit A); the Court approved Settlement from the Dubois case, filed in October 2006, and covering a class defined as “all individuals with traumatic brain or spinal cord injuries who the state has already determined or will determine to be eligible to receive services from Florida’s Medicaid Waiver Program ... and have not received such services,” and prescribing conduct through June 2009 (Doc. 32-2; Exhibit B at 1); and the Order of Dismissal With Prejudice of the Dubois case, dated January 4, 2007. (Doc. 32-3; Exhibit C).

A party may raise an affirmative defense, such as collateral estoppel, in a Rule 12(b)(6) motion, where the existence of the defense can be judged on the face of the complaint. Concordia v. Bendekovic, 693 F. 2d 1073, 1075 (11th Cir.1982); Stephens v. State Farm Fire and Cas. Co., No. 1:03-CV-3094-JTC, 2004 WL 5546250, at *1 (N.D. Ga. June 23, 2004), aff'd, 149 Fed.Appx. 908 (11th Cir.2005). In considering such a challenge, the Court may take judicial notice of and consider documents which are public records, that are attached to the motion to dismiss, without converting the motion to dismiss into a motion for summary judgment. This is based on the fact that such documents are “public records that [are] ‘not subject to reasonable dispute’ because they [are] ‘capable of accurate and ready determination by resort to sources whose accuracy [can] not reasonably be questioned.’ ” Horne v. Potter, 392 Fed.Appx. 800, 802 (11th Cir.2010) (quoting Fed.R.Evid. 201(b)). Moreover, “a court may take notice of a another court’s order ... for the limited purpose of recognizing the ‘judicial act’ that the order represents or the subject matter of that litigation.” United States v. Jones, 29 F. 3d 1549, 1553 (11th Cir.1994).

Here, the parties do not dispute the fact that the proffered Dubois documents accurately reflect the Dubois proceedings, nor do they appear to dispute that the Court should take judicial notice of the documents. See Motion to Dismiss at 3-5; Response at 2-5; see also United States v. Jones, 29 F. 3d at 1553; Fed.R.Evid. 201(b). Thus, the Court takes judicial notice of documents filed in the Dubois proceedings because they are in the public record, capable of accurate and ready determination, and not reasonably questioned, without converting the Defendants’ Motion to Dismiss into a motion for summary judgment. See Home, 392 Fed.Appx. at 802 (holding that district court properly took judicial notice of documents in plaintiffs first discrimination case and affirming dismissal of the complaint based on res judicata); Universal Express, Inc. v. SEC, 177 Fed.Appx. 52, 53-54 (11th Cir.2006) (district court could take judicial notice of complaint filed in the Southern District of New York without converting motion to dismiss into a motion for summary judgment); Bryant v. Avado Brands, Inc., 187 F. 3d 1271, 1279-80 (11th Cir.1999) (court at motion to dismiss stage was authorized to take judicial notice of relevant public record documents required to be filed with the SEC).

Having considered the Dubois documents attached to the Motion to Dismiss, the Court finds that Defendants’ Motion to Dismiss based upon the doctrine of collat *1325 eral estoppel is due to be denied. See 7/9/10 Opinion at 21-24. Indeed, this Court rejected Defendants’ same collateral estoppel argument based upon the Dubois settlement in granting Plaintiffs Motion for Preliminary Injunction. At that time, the Dubois settlement and supporting documents were before the Court and examined. The Court determined that the Dubois Settlement document was insufficient to establish that the first three prerequisites for collateral estoppel — namely that the issue at stake in Dubois was identical to the issues raised here; that the issue was “actually litigated” in Dubois; and that the determination of the issue was a “ ‘critical and necessary part’ ” of the judgment in Dubois — and indeed raised significant questions about Defendants’ ability to satisfy the second and third elements. 7/9/10 Opinion at 22 (citing Christo v. Padgett, 223 F. 3d 1324, 1339 (11th Cir.2000)). Moreover, the Court found that the Dubois Settlement unequivocally established that Plaintiff did not have a full and fair opportunity to litigate the issues raised by her claims in the Dubois proceeding, and thus Defendants failed to satisfy the fourth essential element required for collateral estoppel to .apply. 7/9/10 Opinion at 23. Specifically, because Plaintiff did not suffer her injury until September 7, 2007, which was after the Dubois action was filed and after the Dubois Settlement was signed and approved by the Court, Plaintiff was not a party to the Dubois litigation, and did not have an “ ‘opportunity to litigate’ ” her claims. Id. at 23-24 (citation omitted). For this additional reason, Defendants’ Motion to Dismiss based upon collateral estoppel is due to be denied.

3. Plaintiff Fails To State A Claim Because The Regulations Implementing The ADA Are Not Enforceable By A Private Right Of Action

Defendants argue that the so-called “integration mandate” found in ADA implementing regulation 28 C.F.R. § 35.130(d), which provides that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities,” does not provide a private right of action, and thus, Plaintiff fails to state a claim. Motion to Dismiss at 6-8. As support, Defendants cite to the recent Eleventh Circuit case Am. Ass’n of People With Disabilities v. Harris, 605 F. 3d 1124 (11th Cir.2010), in which the court held that ADA regulation 28 C.F.R. § 35.151(d), which deals with nondiscrimination on the basis of disability in state and local services, 605 F. 3d at 1129, standing alone, did not create a private right of action enabling visually impaired and disabled voters to sue state and county election officials to provide handicapped-accessible voting machines. 605 F. 3d at 1132, 1135. In Harris, the court vacated the district court’s decision which granted recovery based on a violation of the regulation alone.

This Court rejected Defendants’ same argument in granting the Preliminary Injunction in this case, finding that the Harris decision presented no bar to Plaintiffs claims because Plaintiff is alleging a violation of the ADA, which does afford a private right of action. See 7/9/10 Opinion at 24-26. Indeed, Plaintiff specified in her Complaint that she is alleging a violation of the ADA, 42 U.S.C. § 12132, (and of the Rehab Act. 29 U.S.C. § 794(a)), as required by Harris. Complaint ¶¶ 71, 74, 77. Compare Harris, 605 F. 3d at 1131 (questioning how the district court ordered the defendant to comply with § 35.151(b) without first determining whether the defendant violated the ADA or whether the ADA authorized the relief sought). The relevant provision of the ADA, 42 U.S.C. § 12132, requires all public entities to re *1326 frain from discrimination, including “unjustified ‘segregation’ of persons with disabilities as a ‘for[m] of discrimination.’” Olmstead, 527 U.S. at 600, 119 S.Ct. 2176 (citing 42 U.S.C. §§ 12101(a)(2) and (5) as support); see also 29 U.S.C. § 794 and 45 C.F.R. § 84.12 (a Rehab Act regulation). Thus, under Olmstead, the failure to provide Medicaid services to a qualified individual such as Plaintiff in a community-based setting, may constitute a form of discrimination under the relevant statutory scheme. Plaintiffs citation to the ADA’s and Rehab Act’s implementing regulations in her Complaint merely amplified her statutory claims, inasmuch as “the purpose of those regulations is to provide standards for compliance with the” statutes. Harris, 605 F. 3d at 1134-35.

Plaintiffs Complaint sufficiently states a claim under Title II of the ADA, and the Rehab Act. The Complaint alleges that Defendants administer Florida’s Medicaid Program, that the TBI/SCI Waiver Program is part of the Medicaid Program, Complaint ¶¶ 4, 8, 33, 36, 37, 38, 42, 43, and that Defendants are required to administer their Medicaid Programs, including the TBI/SCI Waiver Program, in compliance with the ADA and the Rehab Act. Id. ¶ 49. Plaintiff adequately alleges that she is a “qualified individual” with a disability, so as to qualify for the protections afforded by the ADA and the Rehab Act, id. ¶¶ 10-30, and that without the declaratory and injunctive relief sought, she is at risk of being institutionalized against her will. Id. ¶¶ 30-32. Moreover, Plaintiff has alleged that the relief requested, that is, placement in the TBI/SCI Waiver Program, can be “reasonably accommodated” by Defendants and could be accomplished without “fundamental alteration” of Defendants’ program. Id. ¶¶ 31-38, 42. Accordingly, for purposes of resolving the Motion to Dismiss, the Court finds that Plaintiff has adequately alleged that Defendants have violated the ADA, 42 U.S.C. § 12132, and the Rehab Act, 29 U.S.C. § 794(a). See Olmstead, 527 U.S. at 587, 597, 600, 602-07, 119 S.Ct. 2176.

4. Plaintiff Fails To State A Claim Because The ADA Does Not Require A Public Entity To Provide Plaintiff With Personal Services

Defendants next contend that Plaintiffs claims under the ADA and the Rehab Act fail because the ADA regulations exclude personal care services sought by Plaintiff from the purview of the ADA. Defendants cite to regulation 28 C.F.R. § 35.135, which states that the ADA “does not require a public entity to provide to individuals with disabilities ... services of a personal nature, including assistance in eating, toileting, or dressing.” 28 C.F.R. § 35.135. Motion to Dismiss at 9-13. Thus, to place Plaintiff in the TBI/SCI Waiver Program, would, according to Defendants, be declaring “an exception for public entities that provide [personal care] services.” Id. at 10.

The Court rejected Defendants’ argument in the proceedings on the Motion for Preliminary Injunction, finding that while “[t]he ADA does not require states to provide a level of care or specific services, ... once states choose to provide certain services, they must do so in a nondiscriminatory fashion. 7/9/10 Opinion at 27 (citing Olmstead, 527 U.S. at 603 n. 14, 119 S.Ct. 2176 (“States must adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide”); Fisher, 335 F. 3d at 1182 (state may not amend option programs so as to violate the ADA)). The Court concluded:

*1327

Here, Defendants have elected to provide the services that Plaintiff requests through the TBI/SCI Waiver program. Having done so, they must provide them in accordance with the ADA’s anti-discrimination mandate. Therefore, if Plaintiff is entitled to Medicaid services and is otherwise qualified for, desires, and requires TBI/SCI Waiver services in order to avoid unnecessary institutionalization, the ADA may, indeed, require Defendants to provide Plaintiff with such services if doing so would not result in a fundamental alteration of its programs.

Id.

Regulation Section 35.135 states that public entities that are not already providing personal services are not required to do so. However, when public entities do provide personal services, the ADA’s general prohibition against discrimination requires that “[n]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services ... of a public entity, or be subjected to discrimination by any such entity,” 42 U.S.C. § 12132; see also 28 C.F.R. § 35.130(a), and that “[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 clear implication is that the ADA requires a public entity to administer its existing programs in a nondiscriminatory manner and “in the most integrated setting appropriate.” See id.

Plaintiff alleges in her Complaint that Defendants have undertaken to provide personal care services in nursing homes and in the community, but refuse to provide them to her in the community unless she first enters a nursing home. Complaint, ¶¶ 8, 9, 33, 36, 38, 42, 43. Thus, notwithstanding 28 C.F.R. § 35.130, under the facts as alleged, Plaintiff has stated a statutory claim for declaratory and injunctive relief under the ADA and the Rehab Act.