127.  Individually named Plaintiffs bring this action on behalf of themselves and all  other similarly situated, pursuant to Fed. R. Civ. P. 23 (a) and 23(b)(2).   128.  Plaintiffs Brose, Volkman, Tambor, and Finkelstein seek certification of a class  defined as:   19  All chronic ventilator users who are or will be subjected to the New  York State Department of Health Ventilator Allocation Guidelines.  129.  The proposed class is so numerous that joinder of all members is impracticable.   130.  Upon information and belief, the class consists of at least 40 members.   131.  All members of the proposed class share common issues of law and fact with  respect to the Defendants’ obligation to prohibit the reallocation of the personal ventilators of  chronic ventilator users to other individuals. Common questions include whether subjecting  chronic ventilator users who seek acute healthcare in New York State to the Guidelines  constitutes discrimination in violation of Title II of the ADA, Section 504, and Section 1557 of  the ACA.  132.  The Named Plaintiffs’ claims are typical of the claims of the proposed Plaintiff  Class.  Each Named Plaintiff and all members of the proposed class have applied for, are chronic  ventilator users who are or will be subjected to the New York State Department of Health  Ventilator Allocation Guidelines.   133.  The Named Plaintiffs have all experienced harm as a result of the Defendants’  failure or refusal to allow them access to participate in or benefit from a nondiscriminatory  emergency preparedness plan.    134.  Similarly, all proposed class members, as chronic ventilator users who are or will  be subjected to the New York State Department of Health Ventilator Allocation Guidelines have  or will experience harm with regard to the deprivation of participation in or the lack of a benefit  from programs and services as a result of Defendants’ systemic failure or refusal to provide them  with a nondiscriminatory emergency preparedness system. The named individual Plaintiffs will  fairly and adequately protect the interests of the proposed Class.   20  135.  Plaintiffs have a personal and clearly defined interest in vindicating their rights as  well as the rights of the Class in order to obtain prospective injunctive relief prohibiting the  reallocation of the personal ventilators of chronic ventilator users.   136.  Plaintiffs seek relief that will benefit the entire Class.   137.  Plaintiffs’ counsel, attorneys at the National Center for Law and Economic Justice  (NCLEJ) and Disability Rights New York (DRNY) are attorneys experienced in federal class  action litigation involving claims of noncompliance with the ADA, Section 504, and the ACA.  138.  Prosecution of separate actions by individual Class members would create a risk  of inconsistent or varying adjudication with respect to individual Class members, which would  establish incompatible standards of conduct for the party opposing the Class, could be dispositive  of the interests of the other Class members, or could substantially impair or impede their ability  to protect their interests.  139.  Plaintiffs’ claims satisfy the requirements of Rule 23(b)(2) of the Federal Rules of  Civil Procedure, because Defendant has acted on grounds generally applicable to the named  Plaintiffs and each absent member of the proposed class, thereby making final adjudicative and  declaratory relief appropriate with respect to the proposed Class as a whole.    31.  The Guidelines state that the NY DOH is “empowered to issue voluntary, non- binding guidelines for health care workers and facilities; such guidelines are readily implemented  and provide hospitals with an ethical and clinical framework for decision-making.” Guidelines at   32.  The New York State Administrative Procedure Act (“SAPA”) defines a “guidance  document” as “any guideline, memorandum or similar document prepared by an agency that  provides general information or guidance to assist regulated parties in complying with any  statute, rule or other legal requirement.” N.Y.  A.P.A. Law § 102(14).   33.  The Guidelines are a “guidance document” within the meaning of the NY SAPA.   34.  The Guidelines acknowledge that hospitals will likely follow the Guidelines even  if they are non-binding, stating: “Hospitals have expressed a preference for State guidance over  drafting their own policies.” Guidelines at 206.     35.  The Task Force also explicitly encouraged adherence to the Guidelines:  “Although the Guidelines are voluntary, the Task Force strongly recommends that they be  adopted and followed by all health care providers and entities in a pandemic.” Id. at 206.   36.   New York’s largest healthcare provider, Northwell Health, which operates  twenty-three hospitals in New York State, stated publicly that it would follow the Guidelines if it  ran out of ventilators. See Tyler Foggatt, Who Gets a Ventilator?, The New Yorker, April 11,  2020, https://www.newyorker.com/magazine/2020/04/20/who-gets-a-ventilator  7  https://www.newyorker.com/magazine/2020/04/20/who-gets-a-ventilator (last visited Oct. 6,  2020).  Ventilator Allocation Protocol   37.  The Guidelines set forth a process for an acute medical facility to follow to  determine who will receive a ventilator when there is a shortage of ventilators in the facility.  Guidelines at 3.   38.  Under the Guidelines, a patient’s physician does not determine whether the  patient receives or continues to receive a ventilator, instead, a triage officer or triage committee  makes the decision of whether a patient receives or gets to keep a ventilator. Id. at 5.   39.  A triage officer or triage committee does not have any direct contact with the  patient. “Instead, a triage officer or triage committee examines the data provided by the attending  physician and makes the determination about a patient’s level of access to a ventilator.” Id.   40.  The triage officer or triage community only uses clinical factors to evaluate a  patient’s likelihood of survival and to determine the patient’s access to ventilator therapy. Id.    41.  The Guidelines state that, “This role sequestration allows the clinical ventilator  allocation protocol to operate smoothly. The decision regarding whether to use either a triage  officer or committee is left to each acute care facility (i.e., hospital) because available resources  will differ at each site.” Id.   42.  The Guidelines use a multi-step process with a Sequential Organ Failure  Assessment (SOFA) score to determine which patients will have access to a ventilator during a  time of triage.   8   43.  A SOFA score is a number used to track a person’s status during an intensive care  stay that adds points based on clinical measures of the function of six key organs and systems:  lungs, liver, brain, kidneys, blood clotting, and blood pressure. Id. at 14.   44.  Chronic ventilator users automatically have reduced SOFA scores because their  disabilities significantly impair the functioning of key organ systems such as the lungs, among  others.    45.   The Guidelines permit hospitals to take chronic ventilator users’ personal  ventilators upon their arrival into a hospital and place them into the general ventilator allocation  pool for distribution to those with higher SOFA scores. Id. at 40.   46.  The Guidelines acknowledge that the policy “may place ventilator-dependent  individuals in a difficult position of choosing between life-sustaining ventilation and urgent  medical care.” Id. at 41.   47.  The Guidelines also recognize that the triage policy “may deter chronic care  patients from going to an acute care facility for fear of losing access to their ventilator” and that  “if the ventilator is removed from a person known to depend upon it, s/he will not survive,  regardless of the reason requiring hospitalization.” Id. at 41-42.   48.  The Guidelines further conclude that “[r]esource limitations may require that  ventilation therapy be withheld or withdrawn from some persons without obtaining prior first  person (or proxy) consent.” Id. at 206-07.  Plaintiff Specific Facts  Michelle Brose   49.  Plaintiff Michelle Brose is a 45-year-old chronic ventilator user and a resident of  Staten Island, New York.  9   50.  Ms. Brose is studying biology at Columbia University. Although she usually lives  on campus at Columbia, she currently attends classes remotely from her family home in Staten  Island due to the ongoing COVID-19 pandemic.   51.  Ms. Brose is a member of organizational plaintiff NMD United.   52.  Ms. Brose is a qualified individual with a disability within the meaning of Title II  of the ADA, Section 504, and Section 1557 of the ACA. She has Charcot Marie-Tooth disease,  which causes motor and sensory neuropathy of the peripheral nervous system characterized by  progressive loss of muscle tissue and touch sensation across various parts of the body, and which  affects her ability to breathe on her own.    53.  Ms. Brose has used a ventilator since 1994. She is completely ventilator  dependent and uses a ventilator 24 hours per day because she cannot breathe on her own.    54.  Ms. Brose uses one ventilator during the day and the other ventilator at night.   55.  Ms. Brose knows of the provision in the New York Ventilator Allocation  Guidelines that permits hospitals to reallocate personal ventilators during triage scenarios.    56.  Ms. Brose first learned of the Guidelines from her biology classmates who were  joking about the pandemic and ventilator shortages in an online forum. Ms. Brose clicked on the  link they shared and discovered with horror that the Guidelines specifically contemplated taking  her personal ventilator from her.    57.  Ms. Brose understood the Guidelines to mean that she could not go to a hospital if  she tested positive for the coronavirus for fear of losing access to her life-sustaining personal  ventilator.   58.  Prior to the COVID-19 pandemic, Ms. Brose had 24-hour personal care  attendants. However, once the pandemic began, she no longer felt safe risking aides coming into  10  her home due to her greater susceptibility to the virus. As a result, her mother and sister have  been tending to her care since the beginning of the pandemic.   59.  Ms. Brose knows that during COVID-19, hospital policies have limited family  members’ ability to stay with patients, and she fears that in a triage scenario with nobody there to  advocate for her, she could have her ventilator taken away from her pursuant to the Guidelines.    60.  As a New York State resident and chronic ventilator user to whom the Guidelines  would apply, Ms. Brose fears having to make the impossible choice between foregoing needed  medical care or going to the hospital where, due to the lack of a nondiscriminatory emergency  preparedness plan, her personal ventilator could be taken away, resulting in her inability to  breathe and imminent death.  Mike Volkman   61.  Plaintiff Mike Volkman is a 55-year-old chronic ventilator user and a resident of  Albany, New York.    62.  Mr. Volkman serves on the Board of Directors of organizational plaintiff Not  Dead Yet.   63.  Mr. Volkman is a qualified individual with a disability within the meaning of  Title II of the ADA, Section 504, and Section 1557 of the ACA. He has spinal muscular atrophy  (SMA), a progressive condition characterized by weakness and atrophy of skeletal muscles,  which affects his ability to breathe on his own.    64.  Mr. Volkman has used a ventilator since 2015 and uses it 24 hours per day.   65.  Mr. Volkman has two ventilators, a stationary ventilator used at night and a  portable ventilator that he keeps on the back of his wheelchair.  11   66.  Mr. Volkman lives independently in his community and receives 24-hour care  from home health aides who assist him with daily tasks.   67.  Mr. Volkman has been admitted to the hospital nine times since he started using  his ventilator.   68.  Mr. Volkman considers hospital stays to be extremely dangerous for him. He does  not have a family member or other person available to stay with him at the hospital and is also  without his home health aides who are trained in the specifics of his medical conditions.   69.   As a result, he fears that he will encounter circumstances in which he will not be  able to advocate for himself and medical decisions will be made on his behalf without his input.   70.  During previous hospital admissions both prior to and during the COVID-19  pandemic, in accordance with hospital policies, the hospital has removed Mr. Volkman from his  personal ventilator and placed him on a hospital ventilator despite his preference to remain on his  own personal ventilator.   71.  Mr. Volkman knows of the provision in the Guidelines that permits hospitals to  reallocate personal ventilators during triage scenarios.    72.  He fears that, especially in the midst of this ongoing global pandemic, where the  number of patients presenting with respiratory symptoms is increasing and the demand for  ventilators could potentially outpace the supply, if he as a chronic ventilator user goes to a  hospital, his personal ventilator could be considered a hot “commodity” for someone else’s  benefit and he will have to compete for survival.     73.  As a New York State resident and chronic ventilator user to whom the Guidelines  would apply, Mr. Volkman fears having to make the impossible choice between foregoing  needed medical care or going to the hospital where, due to the lack of a nondiscriminatory  12  emergency preparedness plan, his personal ventilator could be taken away, resulting in his  inability to breathe and eventual death.    Jessica Tambor   74.  Plaintiff Jessica Tambor is a 34-year-old chronic ventilator user and a resident of  Queens, New York.    75.  Ms. Tambor works at the Bronx Independent Living Services as an Independent  Living Specialist.    76.  Ms. Tambor is a qualified individual with a disability within the meaning of Title  II of the ADA, Section 504, and Section 1557 of the ACA. She sustained a spinal cord injury at  birth, which affects her ability to breathe on her own.    77.  Ms. Tambor has used a ventilator throughout her entire life. She uses the  ventilator approximately 12 hours per day, throughout the night and occasionally during the day.    78.  She lives with her family in Queens and her parents assist her with daily tasks.    79.  Ms. Tambor knows of the provision in the Guidelines that permits hospitals to  reallocate personal ventilators during triage scenarios.    8.   80.  She learned about the Guidelines on Facebook where she saw friends and other  ventilator users posting about the potential need for rationing of ventilators and the possibility  that people’s personal ventilators could be taken away and given to other patients.   81.  As a New York State resident and a chronic ventilator user to whom the  Guidelines would apply, Ms. Tambor fears having to make the impossible choice between  foregoing needed medical care or going to the hospital where, due to the lack of a  nondiscriminatory emergency preparedness plan, her personal ventilator could be taken away,  resulting in her inability to breathe and eventual death.  13  Peri Finkelstein   82.  Plaintiff Peri Finkelstein is a 20-year-old chronic ventilator user and resident of  West Hempstead, New York.    83.  Ms. Finkelstein is studying marketing at Adelphi University.    84.  Ms. Finkelstein is a qualified individual with a disability within the meaning of  Title II of the ADA, Section 504, and Section 1557 of the ACA. She has a rare form of Muscular  Dystrophy and has used a ventilator since the age of two.    85.  Ms. Finkelstein is completely ventilator dependent and uses a ventilator 24 hours  per day because she cannot breathe on her own. She has two ventilators that she uses at different  times throughout the day and night.    86.  Ms. Finkelstein lives with her parents, and they assist her with daily tasks.    87.  Ms. Finkelstein has spent a significant amount of time in the hospital. Each time,  her parents accompanied her at all times and advocated for her needs.    88.  Ms. Finkelstein knows of the provision in the New York Ventilator Allocation  Guidelines that permits hospitals to reallocate personal ventilators during triage scenarios.   89.   Ms. Finkelstein first learned about this provision of the Guidelines on the Internet  in March of 2020. She discovered that the Guidelines place people with disabilities at risk and  that if she had to go to the hospital, her ventilator could be taken away.   90.  After hearing about the Guidelines, Ms. Finkelstein did not leave her house for  months.    91.  She and her mother also feared having to go to the hospital during this time.    92.  Additionally, Ms. Finkelstein will turn 21 years old this year. This impending  milestone has compounded her fears about the Guidelines.   14   93.  As a legal adult, Ms. Finkelstein will no longer qualify for services from the  pediatric division of the hospital, which means that the hospital may prevent her parents from  staying with her at all times and advocating for her needs.    94.  Ms. Finkelstein would have great difficulty advocating for herself while  hospitalized, particularly at night, because the night-time configuration of her ventilator inhibits  her ability to speak.    95.  As a New York State resident and a chronic ventilator user to whom the  Guidelines would apply, Ms. Finkelstein fears that her ventilator could be taken away from her  and reallocated in a triage scenario.    96.  Due to the lack of a nondiscriminatory emergency preparedness plan, she would  have to make the impossible decision of whether to stay home and not access medical care, or to  go to the hospital, where her personal ventilator would likely be taken away, resulting in her  inability to breathe and eventual death.  Not Dead Yet   97.  Plaintiff Not Dead Yet is a not-for-profit corporation and grassroots disability  rights group that opposes legalization of assisted suicide, and euthanasia as deadly forms of  discrimination, and the non-voluntary withdrawal or withholding of life-sustaining medical  treatment, including but not limited to, futility policies involving health care provider decisions  to withhold or withdraw life-sustaining medical treatment.    98.  Not Dead Yet provides information and referral services, including legal referrals,  to individuals who face discrimination in the provision of life-sustaining medical care as well as  to people who are being denied lifesaving medical treatment.  15   99.  Not Dead Yet’s constituents are qualified individuals with disabilities within the  meaning of Title II of the ADA, Section 504, and Section 1557 of the ACA.   100.  Several of Not Dead Yet’s constituents are chronic ventilator users who reside in  New York State, including its President and CEO, Rochester resident Diane Coleman.  101.  Staff and board members of Not Dead Yet regularly give presentations to  disability rights groups, people with disabilities, and their families, on a variety of topics related  to disability discrimination and the provision of healthcare services, including assisted suicide,  the withholding of medical treatment, the effects of end-of-life policies on people with  disabilities, and health care disparities based on race.  102.  Not Dead Yet has known about the Guidelines since shortly after their publication  in November 2015.   103.  At that time, a Not Dead Yet staff member responsible for tracking developments  in healthcare reviewed the Guidelines and raised concerns to the rest of the staff about language  in the Guidelines that allowed hospitals to reallocate personal ventilators and the life-threatening  consequences that this would create for the constituents Not Dead Yet serves.  104.  As COVID-19 spread across the country and New York State, in particular, with  discussion of possible ventilator shortages, Not Dead Yet constituents expressed concerns about  having their ventilators taken away if they needed to go to the hospital.   105.  In response to these concerns, the organization has expended significant time and  resources to inform and advocate for its constituents with respect to the Guidelines.  106.  Staff of Not Dead Yet has given a number of presentations about disability  discrimination and triage policies, including ventilator reallocation, during COVID-19.  16  107.  In March and April of 2020, Diane Coleman wrote posts on the Not Dead Yet  Blog about the ventilator reallocation provision of the Guidelines.  108.  Due to the lack of a nondiscriminatory emergency preparedness plan, Not Dead  Yet’s New York constituents who rely on personal ventilators would face the impossible choice  between foregoing needed medical care or going to the hospital where their personal ventilators  could be taken away, resulting in an inability or reduced ability to breathe and leading to  respiratory failure and death.   NMD United  109.  Plaintiff NMD United is a non-profit organization serving adults living with  neuromuscular disabilities. NMD United is a peer-led organization that works to foster  interactions and provide informational resources to increase self-direction while promoting  independence.  110.  NMD United’s members are qualified individuals with disabilities within the  meaning of Title II of the ADA, Section 504, and Section 1557 of the ACA.   111.  Several of NMD United’s members are chronic ventilator users who reside in  New York State.   112.  NMD United supports its membership through a variety of programs. These  programs include a free series called NMD United Virtual University for adults with  neuromuscular disabilities to discuss important issues relevant to their lives and independence  and a grant program that helps adults living with neuromuscular disabilities by providing funding  for medical supplies, vehicle maintenance and repair, assistive technology, and personal care  attendant advertisement fees. NMD United has given out more than 100 grants to date.  17  113.  NMD United also has an active Facebook group, which it uses to communicate  with members and other people it serves.   114.  NMD United frequently solicits the opinions and concerns of its members and  constituents through surveys and polls. Interaction with members is essential to ensuring that  NMD United fulfills its mission.   115.  In March of 2020, NMD United published a COVID-19 Guide for adults living  with neuromuscular disabilities. This guide provided members with information about how to  reduce and prevent the spread of COVID-19, as well as life-management strategies for people  with neuromuscular disabilities living through the pandemic.    116.   Additionally, from March through May of 2020, NMD United conducted an  anonymous online survey of its members’ primary concerns and advocacy priorities in light of  COVID-19. Responders identified themselves according to their zip codes.    117.  Several responders located within zip codes of New York State identified  themselves as personal ventilator users.   118.  In response to a survey question asking what supplies, resources, and equipment  responders might need, several responders with zip codes within New York State asked “Do I  need to be afraid that my ventilator or other necessary equipment will be taken away?” They also  expressed fears about having to seek medical attention at a hospital.   119.  Due to the lack of a nondiscriminatory emergency preparedness plan, NMD  United’s New York members who rely on personal ventilators would face the impossible choice  between foregoing needed medical care or going to the hospital where their personal ventilator  could be taken away, resulting in their inability to breathe and eventual death.  18  Disability Rights New York  120.  DRNY is the Protection and Advocacy Agency for New York State.   121.  As early as March 2020, DRNY began to receive calls and inquiries from chronic  ventilator users who expressed concerns that they could lose access to their personal ventilator  should they seek acute healthcare during the COVID-19 pandemic.   122.  In response to complaints from chronic ventilator users stating that they feared  seeking acute medical care at a hospital during COVID-19 because of the Guidelines, on March  26, 2020, DRNY sent a letter to Andrew Cuomo, Governor of the State of New York.   123.  The DRNY letter requested that NY DOH issue clear guidance regarding the  potential for discrimination against people with disabilities seeking medical care during the  COVID-19 pandemic, including an unequivocal statement that a chronic ventilator user would  never be extubated without another ventilator readily available for their use.   124.  As of the commencement of this action, DRNY has received no response to this  letter.   125.  On April 7, 2020, DRNY filed a complaint of discrimination with the Office for  Civil Rights at the U.S. Department of Health and Human Services.   126.  Conciliation efforts associated with this complaint have failed, and as of the  commencement of this action, the complaint remains pending.  New York State Ventilator Allocation Guidelines   SECTION 1557 OF THE AFFORDABLE CARE ACT  42 U.S.C. § 18116  161.  Plaintiffs incorporate by reference each and every allegation contained in the  foregoing paragraphs as if specifically alleged herein.  162.  Section 1557 of the Affordable Care Act (ACA) states, in relevant part:   Except as otherwise provided for in this title (or an amendment made  by this title), an individual shall not, on the ground prohibited under  title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title  IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.),  the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or  section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), be  excluded from participation in, be denied the benefits of, or be  subjected to discrimination under, any health program or activity, any  26  part of which is receiving Federal financial assistance, including  credits, subsidies, or contracts of insurance, or under any program or  activity that is administered by an Executive Agency or any entity  established under this title (or amendments). The enforcement  mechanisms provided for and available under such title VI, title IX,  section 504, or such Age Discrimination Act shall apply for purposes  of violations of this subsection.   42 U.S.C. § 18116 (a).   163.  The United States Department of Health and Human Services (HHS) published a  final rule implementing Section 1557 on June 19, 2020. 85 FR 37160 (codified at 45 C.F.R. §  92).   164.  Section 1557 prohibits discrimination on the basis of disability in certain health  programs and activities.  45 C.F.R. § 92.   165.  Section 1557 states, in pertinent part, that “[t]he enforcement mechanisms  provided for and available under...Section 504 [of the Rehabilitation Act of 1973] ...shall apply  for purposes of violations of this subsection.” 42 U.S.C. § 18116 (a).   166.  NY DOH was, at all times relevant to this action, and is currently a recipient of  federal financial assistance within the meaning of Section 1557 of the ACA.  167.  NY DOH provided and provides a “health program or activity” where “health  program or activity’’ is defined as “encompass[ing] all of the operations of entities principally  engaged in the business of providing healthcare that receive Federal financial assistance....For  any entity not principally engaged in the business of providing healthcare, the requirements  applicable to a ‘‘health program or activity’’ under this part shall apply to such entity’s  operations only to the extent any such operation receives Federal financial assistance.” 45 C.F.R.  § 92.3(b).   27  168.  Section 1557 adopts the definition of disability from Section 504 of the  Rehabilitation Act. 45 C.F.R. § 92.2(b)(4)  169.  Chronic ventilator users who seek acute medical care in New York State are  individuals with disabilities under Section 1557 of the ACA.  170.  NY DOH’s Guidelines violate Section 1557 of the ACA's prohibition on  discrimination “under any health program or activity receiving Federal financial assistance...on  the grounds of...disability.” 45 C.F.R. § 92.1.  171.  As a result of NY DOH’s acts and omissions, chronic ventilator users seeking  acute medical care in New York State have and will continue to be excluded from participation  in, denied the benefits of, and subjected to discrimination from a healthcare system subject to the  NY DOH Guidelines.  SECTION 504 OF THE REHABILITATION ACT OF 1973  29 U.S.C. § 794  152.  Plaintiffs incorporate by reference each and every allegation contained in the  foregoing paragraphs as if specifically alleged herein.  153.  Section 504 of the Rehabilitation Act provides, in pertinent part that “[n]o  otherwise qualified individual with a disability in the United States… shall, solely by reason of  his or her disability, be excluded from the participation in, be denied the benefits of, or be  24  subjected to discrimination under any program or activity receiving Federal financial assistance.”  29 U.S.C. § 794(a).  154.  NY DOH was, at all times relevant to this action, and is currently a recipient of  federal financial assistance within the meaning of Section 504.  155.  NY DOH provided and provides a “program or activity” where “program or  activity” is described as “all operations of a department, agency, special purpose district or other  instrumentality of a State or of a local government.” 29. U.S. C. § 794(b)(1)(A).  156.  The Guidelines are a “program or activity” of the NY DOH within the meaning of  Section 504.  157.  A disability is defined as “a physical or mental impairment that substantially  limits one or more major life activities of such individual.” 29 U.S.C. § 705(9)(B) (citing 42  TITLE II OF THE AMERICANS WITH DISABILITIES ACT  42 U.S.C. § 12101, et seq.  140.  Plaintiffs incorporate by reference each and every allegation contained in the  foregoing paragraphs as if specifically alleged herein.  141.  Congress enacted the ADA “to provide a clear and comprehensive national  mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. §  21  12101(b)(1). Congress specifically found, inter alia, that “discrimination against individuals with  disabilities persists in such critical areas as . . . access to public services.” Id. § 12101(a)(3).  142.  Title II of the ADA states, in pertinent part:  [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, programs, or activities of a public entity, or subjected  to discrimination by any such entity.  