Minnesota Reports

SHAGALOW v. STATE, A06-246 (Minn.App. 12-19-2006) SHAINA
HUMAN SERVICES, Respondent. No. A06-246. Minnesota Court
of Appeals. Filed: December 19, 2006.

Appeal from the District Court, Hennepin County, File No.
WA 04-011812.


1. The Minnesota Medical Assistance program may deny
coverage for habilitation services delivered outside the
United States.

2. A person’s right to religious freedom under the United
States Constitution and the Minnesota Constitution does not
require that the Minnesota Medical Assistance program pay
for habilitation services outside the United States.

3. The state’s refusal to pay for habilitation services for
a Minnesota resident at a facility in Israel does not
violate the Americans with Disabilities Act.

Corey L. Gordon, Shapiro Gordon LLC, Minneapolis, MN 55416
(for appellant).

Mike Hatch, Attorney General, Robin Christopher Vue-Benson,
Assistant Attorney General, St. Paul, MN 55101 (for

Considered and decided by MINGE, Presiding Judge; LANSING,
Judge; and KLAPHAKE, Judge.


MINGE, Judge.

Appellant challenges the decision of respondent Minnesota
Department of Human Services (DHS) denying Medical
Assistance coverage for habilitation services in Jerusalem,
Israel. Appellant claims that there is no habilitation
services program appropriate for her condition and
compatible with her religious beliefs in Minnesota; that the
only residential habilitation program providing suitable
services consistent with her beliefs is in Jerusalem,
Israel; that rules governing the Medical Assistance program
do not preclude payment for these services in Israel; and
that denial of payment to the Israeli provider is improper,
violates her right to religious freedom under the federal
and state constitutions, and violates the Americans with
Disabilities Act (ADA). Because we conclude that the
state’s decision not to pay for these services is not
arbitrary and capricious, is not erroneous, was based on
religiously neutral reasons, and does not directly affect
appellant’s religious beliefs or practices, and that
granting appellant’s request would place an unreasonable
burden on the state’s administration of its Medical
Assistance program, we affirm.


Appellant Shaina Shagalow is a young Jewish Orthodox woman
who has been diagnosed with mild mental retardation. She
also has a developmental cognitive disorder and attention
deficit hyperactivity disorder. Appellant reads at a
sixth-grade level and requires assistance with grooming and
similar everyday tasks. Appellant is dependent on others to
make legal and medical decisions, and her parents are her
court-appointed legal guardians.

Appellant attended a private Jewish Orthodox school for
girls from the fourth grade through high school. She lived
at home while she attended school. As high school
graduation approached, her family began searching for
habilitation programs for young adults that were also
compatible with her Jewish Orthodox faith. Habilitation
services assist persons to develop skills to live in
society. Minn. R. 9525.1800, subp. 13a (2006). Appellant’s
family knew that no day program consistent with appellant’s
Orthodox faith is available in Minnesota. The only
residential habilitation program which appellant’s parents
could identify that adheres to Jewish Orthodox practices
including gender segregation, strict observance of the
Sabbath, and food preparation and consumption, is one
conducted by Midreshet Darkaynu (Darkaynu), located in
Jerusalem, Israel. There are no such residential Jewish
Orthodox programs in the United States.

Appellant requested that the Hennepin County Children,
Family, and Adult Services Department (county) provide
financial support for habilitation services at Darkaynu as
a part of Minnesota’s Medical Assistance program. Medical
Assistance is this state’s part of the federal Medicaid
program. Appellant does not request assistance for the room
and board or travel portions of the program, only
habilitation services. The county denied appellant’s
request, and appellant requested review. The denial was
upheld by a referee at DHS, and the commissioner of DHS
adopted the referee’s decision. Appellant sought review of
that decision by the Hennepin County District Court. The
district court upheld the decision. This appeal follows.


I. Did DHS err in refusing to pay for habilitation services
at Darkaynu for appellant?

II. Does DHS’s refusal to pay for habilitation services for
appellant at Darkaynu violate her right to religious
freedom secured by the United States Constitution and the
Minnesota Constitution?

III. Does DHS’s refusal to pay for habilitation services
for appellant at Darkaynu violate the Americans with
Disabilities Act?


“On appeal from the district court’s appellate review of
an administrative agency’s decision, this court does not
defer to the district court’s review, but instead
independently examines the agency’s record and determines
the propriety of the agency’s decision.” Johnson v. Minn.
Dep’t of Human Servs., 565 N.W.2d 453, 457 (Minn.App.
1997). In accordance with the Minnesota Administrative
Procedure Act (APA), the reviewing court may “reverse or
modify the decision if the substantial rights of the
petitioners may have been prejudiced because the
administrative . . . decision” was:

(a) in violation of constitutional provisions; or (b) in
excess of the statutory authority or jurisdiction of the
agency; or (c) made upon unlawful procedure; or (d)
affected by other error of law; or (e) unsupported by
substantial evidence in view of the entire record as
submitted; or (f) arbitrary or capricious.

Minn. Stat. § 14.69 (2004). “Agency decisions are
presumed to be correct by reviewing courts. . . .” In re
Hutchinson, 440 N.W.2d 171, 176 (Minn.App. 1989), review
denied (Minn. Aug. 9, 1989). Moreover, appellate courts
generally defer to an agency’s expertise. Reserve Mining Co.
v. Herbst, 256 N.W.2d 808, 824 (Minn. 1977). The party
challenging the agency decision has the burden of proving
grounds for reversal. Markwardt v. State Water Res. Bd.,
254 N.W.2d 371, 374 (Minn. 1977); Johnson, 565 N.W.2d at



The first issue is whether DHS’s decision was improper.
Appellant challenges the conclusion of law that Medical
Assistance funds may not be used to pay for services
provided outside of the United States and claims that DHS
and the county had discretion to pay for such services.
Although it is not clear whether appellant claims that DHS
erred as a matter of law and appellant does not expressly
allege that the refusal was arbitrary and capricious, we
will initially construe the appeal from that perspective
because those are relevant standards for judicial review.

Both parties concede from the outset that there is no
federal or state statute or regulation that explicitly
prohibits Medical Assistance from paying for services
provided outside of the country. Likewise, while Minnesota
law permits payment of Medical Assistance to licensed
Canadian institutions under some circumstances, Minn. Stat.
§ 256B.25, subd. 1 (2004), appellant cannot point to
any explicit legal provisions requiring DHS to pay for
habilitation or other services being delivered outside of
the United States. Moreover, there is no evidence that
other states have authorized their Medicaid programs to pay
out-of-country service providers. The federal and state
legal framework, largely, does not speak to the question
here. However, that framework and its administration are
relevant to our decision.

A. Medical Assistance Habilitation Services and the Waiver

Appellant requests benefits through the Consumer-Directed
Community Support (CDCS) portion of Minnesota’s Medical
Assistance program. Minnesota participates in the federal
program by contracting with the Centers for Medicare &
Medicaid Services (CMS), the federal agency that
administers Medicaid. See 42 U.S.C. § 1396a (2000 &
Supp. 2003).

Appellant points out that Minnesota’s CDCS program is
operated pursuant to a waiver granted by CMS and argues
that the flexibility afforded in the waiver allows for
payment of services provided by Darkaynu. CMS is authorized
to grant such waivers from the standard Medicaid
requirements. 42 U.S.C. § 1396n(b) (2000 & Supp.
2003); 42 C.F.R. § 430.25 (2005). Minnesota
requested, and was granted a waiver to pay for home and
community-based services, including habilitation services,
to mentally disabled persons. Minnesota’s CDCS program
waiver permits beneficiaries to work with a case manager to
design a service plan for their unique needs as follows:

Recipients or their representative hire, fire, manage and
direct their support workers. . . . Recipients or their
representatives have control over the goods and services
to be provided through developing the community support
plan, selecting vendors, verifying that the service was
provided, evaluating the provision of the service, and
managing the CDCS budget. . . . . . . . The recipient or
their representative will direct the development and
revision of their community support plan and delivery of
the CDCS services. . . . . The support plan will also
specify provider qualification and training requirements,
who is responsible to assure that the qualification and
training requirements are met, and whether or not a
criminal background study will be required for each

State of Minnesota, Renewal of the Home and Community-Based
Service Waiver for People With Mental Retardation or
Related Conditions (MR/RC), Appendix B-1, 37-39 (Jan. 1,
2003) [hereinafter MR/RC Waiver].

Appellant asserts that the control granted to recipients
under the waiver gives the recipient broad discretion to
select service providers and that the primary monitor of
quality assurance, as well as the health and safety of the
services provided, is the recipient, not DHS or the county.
We acknowledge that the flexibility of the waiver supports
appellant’s claim that the county has the discretion to
design a program to accommodate her legitimate religious
claims. Appellant in effect asserts that in her situation,
failure to accommodate her claims is an abuse of discretion
or arbitrary and capricious.

Although flexible, the CDCS waiver program includes several
safeguards to ensure service providers meet health and
safety requirements and comply with applicable licensing
statutes. In its administration of the Medical Assistance
waiver, the state must demonstrate that it will employ
necessary safeguards to protect the health and safety of
the beneficiaries, as well as the financial integrity of
the program. 42 C.F.R. § 441.302(a), (b) (2005).
Minnesota law incorporates similar protections. Minn. Stat.
§§ 256B.092, subd. 4, .49, subd. 19 (2004).
The waivers are not a license to ignore federal standards.
If the state does not comply with the requirements
delineated in the approved waiver program, federal law
requires termination of the program, or withholding of
federal matching funds. 42 U.S.C. § 1396n(f)(1)
(2005); 42 C.F.R. § 441.302 (2005).

These licensing and monitoring responsibilities are not
limited to services provided inside the United States, and
the burden of meeting these responsibilities is relevant to
deciding whether the state is obligated to pay for the
services at Darkaynu requested by appellant and whether its
decision not to do so is arbitrary and capricious.

B. Out-of-State Services

The nature of DHS’s authority to pay for services in other
states is also relevant to our analysis of appellant’s
claims for coverage of services outside the United States.
The federal regulation governing Medicaid payments for
services provided outside the state of residence reads as

(b) Payment for services. A State plan must provide that
the State will pay for services furnished in another State
to the same extent that it would pay for services
furnished within its boundaries if the services are
furnished to a recipient who is a resident of the State,
and any of the following conditions is met:

(1) Medical services are needed because of a medical

(2) Medical services are needed and the recipient’s
health would be endangered if he were required to travel
to his State of residence;

(3) The State determines, on the basis of medical advice,
that the needed medical services, or necessary
supplementary resources, are more readily available in the
other State;

(4) It is general practice for recipients in a particular
locality to use medical resources in another State.

42 C.F.R. § 431.52(b) (2005). Thus, the federal
regulation expressly requires Medicaid payments to
out-of-state providers in limited circumstances. Arguably,
the interpretive canon expressio unius est exclusio
alterius applies; by expressly providing for out-of-state
payments the regulation thereby impliedly excludes payment
to out-of-country service providers. See, e.g., Cairl v.
City of St. Paul, 268 N.W.2d 908, 912-13 (Minn. 1978)
(applying the canon in the statutory context). Regardless,
it is not logical to expect that Minnesota would have a
greater obligation to pay for services in Israel than in
another state. Under the regulation, such payment would only
be required if there was “medical advice, that the . . .
necessary supplementary resources, are more readily
available in the other State.” 42 C.F.R. § 431.52(b)
(3) (2005). This medical advice test is a higher standard
than a claim that the out-of-state services are needed to
accommodate a personal preference. It suggests that absent
a constitutional mandate, DHS has discretion to deny
appellant’s request for habilitation services in Israel.

C. Olmstead Amendments

Also relevant to our decision are the so-called Olmstead
Amendments. These are policy changes implemented by CMS
that affect the way in which states use Medicaid funds for
disabled persons. CMS communicated these changes through a
series of letters. The language addressing out-of-state
services provides:

[A]ny standards applicable to the provision of the
service in the State in which the service is furnished
must be met, as well as those standards set forth in the
approved waiver. If one State were to pay for a service
furnished in another, the provider must be qualified under
the standards in the waiver, and the service must also
meet any applicable requirements in the State in which it
is provided.

Letter from CMS to State Medicaid Directors, Olmstead Update
No: 3, Attachment 3-e (July 25, 2000), available at
http://www.cms.hhs.gov/smdl/downloads/smd072500b.pdf. The
same directive continues, “[t]he State operating the waiver
remains responsible for the assurance of the health and
welfare of the beneficiary. . . .” Id. Oversight can be
performed by the home state or the host state in which
services are provided. Id. However, if oversight is provided
by the host state, the policy requires that there be “an
interstate compact or agreement setting forth the
responsibilities of each party.” Id.

These CMS policy changes are relevant to appellant’s
request for two reasons. First, by only addressing services
furnished in other states, the Olmstead Amendments imply
that the waiver program was not intended to fund
out-of-country services. Second, the policy reflects the
host state’s (Minnesota’s) continuing obligation to monitor
the provision of services, another factor that makes it
less likely the program was designed to extend funding for
services provided outside the United States where such
monitoring is a greater challenge.

D. Medicare

Medicare is the federal insurance based health care program
that is also administered by CMS and is a companion program
to Medicaid. Although federal law governing Medicare does
not bind Minnesota’s use of Medicaid funding, it is
relevant that with a few limited exceptions (which do not
apply to the case before us), federal law explicitly
prohibits Medicare from paying for services outside of the
United States. See 42 C.F.R. § 411.9 (2005). To allow
greater flexibility for Medical Assistance than Medicare is
illogical. This comparison supports DHS’s position that it
will not pay for services for appellant in Israel.

E. Minnesota Law

Independent of federal requirements, Minnesota law requires
that residential programs offering “24-hour-a-day care,
supervision, food, lodging, . . . habilitation” be licensed
by the state of Minnesota. Minn. Stat. §§
245A.02, subd. 14, .03, subd. 1 (2004). Darkaynu is a
residential program that provides twenty-four hour care,
supervision, food, lodging, and habilitation services, and
if it were located in Minnesota, state law would require
its licensure. Minnesota law also provides that Medical
Assistance payments may not be made “for care in any
private or public institution, including but not limited to
hospitals and nursing homes, unless licensed by an
appropriate licensing authority of this state, any other
state, or a Canadian province. . . .” Minn. Stat. §
256B.25, subd. 1 (2004). This licensing requirement
supports DHS’s legal conclusion that Darkaynu would have to
be licensed for payment to be made. Appellant claims that
qualified American professionals regularly travel to Israel
and can inspect Darkaynu and certify that it meets all
relevant standards. Appellant asserts that her parents or
members of the Jewish Orthodox community can arrange for
such inspections. However, the awkwardness and informality
of such a surrogate arrangement confirms that DHS is not
required to pay for services at Darkaynu and that its
refusal to do so is not arbitrary and capricious.

F. Conclusion

As previously noted, the flexibility allowed under the
Medical Assistance waiver agreement gives DHS discretion to
approve appellant’s provider. However, DHS’s discretion is
not without limit. The waiver does not vest appellant with
the authority to approve her own service plan. That is the
role of the county and ultimately, DHS. Furthermore, when
one views the waiver in the context of the Medicaid program
and the various federal and state laws, regulations, and
policy directives, it is questionable whether DHS is
authorized to pay for services at a distant facility in
Israel. DHS oversight is required to ensure the quality,
safety, and financial integrity of waiver services and is
emphasized in federal law, 42 U.S.C. § 1396n(f)(1)
(2000); federal CMS regulations, 42 C.F.R. § 441.302
(a), (b) (2005); the CMS Olmstead policy directives; state
law requiring licensure of residential habilitation service
providers, Minn. Stat. § 245A.03, subd. 1; and the
text of the waiver itself. MR/RC Waiver, Appendix B-1,
42-43. Despite appellant’s arguments, we conclude that the
DHS determination that it does not have such authority is a
reasonable exercise of its discretion in interpreting the
law under which it operates. Given DHS’s expertise in
administering its program, this determination is entitled to
respect by this court. We conclude that DHS’s decision,
denying payment for habilitation services for appellant at
Darkaynu, is not an abuse of its discretion, is not in
violation of the waiver or of law, and is not arbitrary and



A. United States Constitution

The next issue is whether refusal by DHS to pay for
habilitation services for appellant at Darkaynu violates
appellant’s right to religious freedom under the United
States Constitution. The First Amendment provides, in part,
that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof. . . .” U.S. Const. amend. I. The religion clauses
apply to the states by incorporation into the Due Process
Clause of the Fourteenth Amendment. Cantwell v.
Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903 (1940).

Federal cases interpreting the religion clauses establish
that neutral laws of general applicability do not run afoul
of the First Amendment, even if they incidentally burden an
individual’s religious conduct. Employment Div., Dep’t of
Human Res. of Oregon v. Smith, 494 U.S. 872, 879, 110 S. Ct
1595, 1600 (1990). Such neutral, generally applicable laws
“need not be justified by a compelling governmental
interest.” Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 531, 113 S. Ct. 2217, 2226 (1993).
But a law that is not neutral or generally applicable “must
be justified by a compelling governmental interest and must
be narrowly tailored to advance that interest,” even if it
only incidentally burdens an individual’s free exercise.

Appellant challenges DHS’s refusal to pay for a specific
habilitation program. Because of the discretion inherent in
DHS’s decision, appellant argues that we should analyze
this case under the framework established in the
unemployment compensation line of cases represented by
Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790 (1963). In
those cases, “developed in a context that lent itself to
individualized governmental assessment of the reasons for
the relevant conduct,” the Court applied strict scrutiny
and struck down neutral and generally applicable
unemployment compensation rules that conditioned benefits on
an applicant’s willingness to work on Saturdays. Smith, 494
U.S. at 884, 110 S. Ct. at 1603.

We recognize that the strict scrutiny analysis in the
unemployment line of cases was not expressly overruled by
Smith, and that federal circuit courts have used an
individualized assessment approach as an exception to
Smith. See, e.g., Axson-Flynn v. Johnson, 356 F.3d 1277,
1297-99 (10th Cir. 2004); Swanson v. Guthrie Indep. Sch.
Dist. No. 1-L, 135 F.3d 694 (10th Cir. 1998). We do not
disagree with such applications of an individual
assessment, but we decline appellant’s invitation to extend
it to her situation. See Smith, 494 U.S. at 883, 110 S. Ct.
at 1602 (“We have never invalidated any governmental action
on the basis of the Sherbert test except the denial of
unemployment compensation.”). Instead, we continue to apply
the test established in Smith.

Here, in accordance with Smith, DHS’s decision was
religiously neutral. DHS’s action was not motivated by a
desire to harm, restrict, or burden appellant’s exercise of
her religious faith. The decision was neither related to
nor did it proscribe appellant’s practice of her Orthodox
Jewish faith. Rather, the basis for DHS’s decision was to
permit effective monitoring of the quality, health, and
financial integrity of waiver services, irrespective of
appellant’s exercise of religion. This rationale is not a
pretext to conceal religious discrimination or religious
animus.[fn1] In fact, appellant’s alternative CDCS budget
was fully approved.[fn2]

The record on appeal is not developed with respect to the
general applicability of DHS’s decision. Appellant does not
claim that the county or DHS has approved similar
out-of-country requests for members of any other religious
group or for anyone regardless of religion. Without more
evidence, we cannot conclude that DHS’s decision was either
an under — or over — inclusive means to
advance its interest in effectively monitoring the
provision of waiver services.

We conclude that DHS’s decision was neutral and generally
applicable and does not violate the United States

B. Minnesota Constitution

The next issue is whether DHS’s decision violated
appellant’s right to religious freedom guaranteed by the
Minnesota Constitution. The Freedom of Conscience Clause of
the Minnesota Constitution states:

The right of every man to worship God according to the
dictates of his own conscience shall never be infringed;
nor shall any man be compelled to attend, erect or support
any place of worship, or to maintain any religious or
ecclesiastical ministry, against his consent; nor shall
any control of or interference with the rights of
conscience be permitted, or any preference be given by law
to any religious establishment or mode of worship; but the
liberty of conscience hereby secured shall not be so
construed as to excuse acts of licentiousness or justify
practices inconsistent with the peace or safety of the
state. . . .

Minn. Const. art. I, § 16.

We have said that “[t]he language of the Minnesota
Constitution regarding religion is of a distinctively
stronger character than the federal counterpart and
precludes even an infringement on or an interference with
religious freedom.” Olson v. First Church of Nazarene, 661
N.W.2d 254, 260-61 (Minn.App. 2003) (quotation omitted). To
determine whether government action violates an individual’s
right to religious freedom we ask: (1) whether the belief
is sincerely held; (2) whether the state action burdens the
exercise of religious beliefs; (3) whether the state
interest is overriding or compelling; and (4) whether the
state uses the least restrictive means. Hill-Murray Fed’n
of Teachers v. Hill-Murray High Sch., 487 N.W.2d 857, 865
(1992); State v. Hershberger, 444 N.W.2d 282, 285, 289
(Minn. 1989). Appellant has the burden under the second
prong of this test to show that the government’s action
burdens her exercise of religious beliefs, and then the
burden shifts to the state to justify its interest as
compelling and show that it has chosen the least
restrictive means by which to achieve its goal. See
Hill-Murray, 487 N.W.2d at 866 (“Hill-Murray . . . [has]
not established that [the state’s action] excessively
burdens their religious beliefs.”).

In this case, the sincerity of appellant’s religious belief
is not disputed. But the second and fourth prongs of the
test are disputed. Accordingly, we begin by determining
whether DHS’s refusal to fund appellant’s request
sufficiently burdens appellant’s free exercise of her
religion. Several cases applying the test guide our

In Hershberger, the Minnesota Supreme Court determined
whether a state traffic law “requir[ing] slow-moving
vehicles to display a fluorescent . . . triangular sign”
when moving on public highways violated Amish petitioners’
rights to religious freedom. 444 N.W.2d at 284. The law at
issue in Hershberger directly proscribed the petitioners’
protected religious conduct. The court held that “[w]ithout
question,” application of the statute burdened the
petitioners’ free exercise by forcing them to choose
between criminal sanctions and violating their sincerely
held religious beliefs. Id. at 287. The Hershberger court
emphasized, in particular, the potential for jail time and
punitive fines under the statute. Id.

In Murphy v. Murphy, this court evaluated a state child
support policy that imputed income to a father who, as part
of his sincerely held religious belief, lived and worked
exclusively in a religious community. 574 N.W.2d 77, 79
(Minn.App. 1998). We held that this application of the
child support statute burdened the father’s free exercise
of religion under the state constitution. Id. at 81. We
reasoned that “ordering Murphy to pay a support obligation
that he [would] be unable to pay without taking a secular
job” would burden his free exercise of religion “or cause
him to risk penalties for nonpayment of support.” Id. In
Murphy, like in Hershberger, the court found the weighty
sanction for adherence to Murphy’s religious beliefs
coercive enough to constitute a burden under the second
prong of the test. Id.

But in Hill-Murray, the supreme court held that application
of the Minnesota Labor Relations Act (MLRA) to Hill-Murray,
a parochial high school, did not violate the Minnesota
Constitution. 487 N.W.2d at 864-67. The court found no
constitutional infirmity, in part, because the “minimal
interference” caused by application of the statute did not
“excessively burden[] [Hill-Murray’s] religious beliefs.”
Id. at 866. The court said that any potential for
significant interference with the school’s religious
autonomy was remote. Id. And the court did not find the
potential for increased cost to the school sufficient to
constitute an excessive burden on the school’s exercise of
religion. See id. at 868 (Coyne, J., dissenting).

In contrast to cases in which we have found a burden on
free exercise, DHS’s action here does not force appellant
to choose between criminal sanctions and her free exercise
of religion. DHS’s decision does not penalize her by
reducing her CDCS benefits; appellant has been approved for
full CDCS benefits under her alternative plan. The decision
does not prohibit her exercise of religion. DHS’s refusal
to authorize funding for services provided in Israel does
make appellant’s attendance at Darkaynu more expensive, but
does not directly infringe on her religious autonomy or
require conduct inconsistent with her religious beliefs.
The indirect effect on religion is not motivated by an
intent to affect religious practices and is not unique to

To the extent DHS’s action is a burden on appellant’s free
exercise of religion, DHS claims that its action is
justified by a compelling government interest and is
narrowly tailored to meet that interest. The state has a
legitimate and substantial interest in monitoring social
service programs to ensure the health and safety of
vulnerable program recipients. In other Minnesota cases we
have recognized that the government has a compelling
interest in ensuring safety on public roadways, State v.
Hershberger, 462 N.W.2d 393, 398 (Minn. 1990), “assuring
parents provide primary support for their children,”
Murphy, 574 N.W.2d at 82, “ensur[ing] the peace and safety
of labor relations,” and safeguarding employees’ rights to
collectively organize, Hill-Murray, 487 N.W.2d at 866-67.
The state’s interest in protecting mentally or physically
vulnerable persons is no less important and no less
compelling. See Minn. Stat. § 626.557, subd. 1 (2004)
(“The legislature declares that the public policy of this
state is to protect adults who, because of physical or
mental disability or dependency on institutional services,
are particularly vulnerable to maltreatment. . . .”).

Finally, we consider the fourth prong of the test: whether
the state is using the least restrictive means to
accomplish its objective. DHS’s decision not to fund
services in Jerusalem is based on its obligation to monitor
the quality of waiver services, to ensure services are
provided in a safe and healthy environment, and to
investigate reports related to the vulnerability of
recipients or misuse of public funds. Appellant argues that
there is no requirement that state employees make on-site
visits to service providers, that the monitoring function
can be performed by a visiting credentialed volunteer
identified by her family, and that this monitoring function
can be narrowly designed to accommodate appellant’s
religious beliefs and still satisfy DHS’s obligations.
Appellant also argues that her parents have a strong
interest in her welfare, will communicate with and visit
appellant in Israel, and that this family monitoring would
further satisfy DHS’s requirements to provide quality
assurance. While we do not question the sincerity of
appellant’s representations, we do not find the argument
persuasive. The terms of Minnesota’s waiver give DHS and the
county substantial discretion in determining how best to
monitor and investigate the provision of services in the
interest of recipients’ safety and health and the financial
integrity of the program. Because DHS is in the best
position to determine the least restrictive means by which
to effectively achieve its goal, DHS’s position is entitled
to deference.

A judicial determination that as a matter of constitutional
law DHS is required to undertake the individualized program
appellant urges would create untold complexities. Others
seeking benefits at remote locations would claim
discrimination if their requests were rejected. Of
necessity, DHS would become involved with evaluating the
character of the parents, programs in distant parts of the
world, and ad hoc monitoring arrangements. Stating
appellant’s dramatic demand reveals its weakness: unless
DHS pays for enrollment in a faith-based program in Israel,
it violates her religious freedom. The location is the
subject of recurring military conflict half way around the
world. If the state must make this accommodation, it is
hard to imagine an accommodation that would not be
constitutionally mandated. We conclude that DHS’s decision
did not violate appellant’s rights under the Minnesota



The final issue is whether DHS’s decision violated Title II
of the Americans with Disabilities Act (ADA). Title II of
the ADA states, “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 (2000).[fn3] In Olmstead v. ex rel. Zimring, 527 U.S.
581, 603 n. 14, 199 S. Ct. 2176, 2188 n. 14 (1999), the
Supreme Court interpreted this language and held that the
ADA does not require the provision of a particular level of
benefits and only requires states to “adhere to the ADA’s
nondiscrimination requirement with regard to the services
they in fact provide.” Id. (emphasis added).

Under Olmstead, this situation presents no ADA violation
because appellant has not demonstrated that the agency has
denied appellant benefits they regularly provide, or that
appellant was denied services on account of her disability.
Instead, DHS’s full approval of appellant’s alternative
budget, DHS’s legitimate concern with its monitoring the
provision of services in Israel, and the subsequent
amendment to the waiver program formally prohibiting funding
of services provided outside of the country, all indicate
that appellant’s disability was not the reason her request
was denied. Accordingly, we conclude appellant does not
have a claim under Title II and that DHS’s decision to deny
appellant’s request did not violate the ADA.


We affirm the decision of the district court and hold that
DHS did not err or abuse its discretion and did not violate
the United States or Minnesota constitutions, or the ADA by
refusing to provide coverage in the Medical Assistance
program for habilitation services for appellant at
Midreshet Darkaynu in Jerusalem, Israel.


[fn1] The state’s recent addendum to its federally approved
waiver program, which expressly prohibits funding for
waiver services out-of-country and binds the agency’s
future operation for all beneficiaries irrespective of
religious practice, is further evidence of the decision’s
neutrality. Amendment to MR/RC Waiver, 3 (effective Apr. 1,

[fn2] While appellant asserts the plan is inadequate,
appellant developed an alternative plan for Medical
Assistance support for services for the 2004-2005 year. The
alternative plan includes payment for day and evening
staff, an eight-week summer camp, music lessons, and
adaptive sports lessons. The cost of the requested services
is $27,623.20 and was approved by the county.

[fn3] See also Minn. Stat. § 363A.12, subd. 1 (2004).