MEMORANDUM & ORDER Plaintiff Dwight Gregory Schine (“Plaintiff” or “Schine”) commenced this action by his next friend, Stephen Short, against the New York State Office for People with Developmental Disabilities (“OPWDD”) and that agency’s acting commissioner Kerry Delaney (collectively “Defendants”) alleging violations of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12131 and Section 504 of the Rehabilitation Act of 1973 (“Section 504″), 29 U.S.C. §794a. Currently before the Court is Defendants’ motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Motion, Docket Entry (“DE”) [49]. Plaintiff has opposed the motion. For the reasons set forth below, the motion is granted.I. BACKGROUNDA. Factual Background1Plaintiff, who is approximately 54 years of age, suffers from intellectual and developmental disabilities. Since childhood, he has suffered from chronic and persistent psychiatric symptoms, and has been diagnosed by his licensed clinical psychologist with various cognitive and neuropsychological deficits as well as “OCD, Asperger’s Syndrome,…Borderline Personality Disorder, ADHD, Depression, Anxiety and PTSD.” Complaint (“Compl.”) 86. Given his developmental disabilities, Schine is qualified to receive full-time care in an Intermediate Care Facility (“ICF”). Bishop Decl. 2; LoPresti Decl. 8. Instead, however, he lives in the community and receives supportive services funded by both the state and federal government. OPWDD’s denial of Schine’s request to reallocate this funding to make a change in his living arrangements is the subject of this litigation.1. Self-Direction Program for Qualified IndividualsQualified individuals may receive care at an ICF, or may alternatively receive benefits through the Home and Community Based Services (“HCBS”) waiver program which “permits a State to furnish an array of home and community-based services that assist Medicaid beneficiaries to live in the community and avoid institutionalization.” Application for a §1915(c) Home and Community-Based Services Waiver (“HCBS Waiver Appl.”), Pl. Ex. 10. “The waiver is set forth in an agreement between OPWDD and the federal government, in which the federal government approves OPWDD’s use of federal money for which it would not otherwise reimburse OPWDD, and in exchange, OPWDD is subject to certain federal standards to which it would not otherwise be subjected.” Bishop Decl. at 3. OPWDD is an operating agency for the waiver program in New York state.The HCBS waiver includes an option to “self-direct” certain services, giving individuals the flexibility to choose a mix of supports and services that are “provided outside the requirements found in a formalized program model” and allowing them “to receive services more aligned to their individual needs.” Bishop Decl. at
