United States Court of Appeals
                        For the First Circuit


No. 24-1973

    GAVEN MCKENNA, by and through his co-guardians Steven and
      Catherine McKenna; JARED MCKENNA, by and through his
           co-guardians Steven and Catherine McKenna,

                       Plaintiffs, Appellants,

                                  v.

          MAINE DEPARTMENT OF HEALTH & HUMAN SERVICES,

                         Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

              [Hon. Nancy Torresen, U.S. District Judge]


                                Before

                  Montecalvo, Kayatta, and Aframe,
                           Circuit Judges.


     Richard L. O'Meara, with whom Ellen P. Masalsky and Murray,
Plumb & Murray were on brief, for appellants.
     Kelly L. Morrell, Assistant Attorney General, with whom Aaron
M. Frey, Attorney General of Maine, Thomas A. Knowlton, Deputy
Attorney General, and Kevin J. Beal, Assistant Attorney General,
were on brief, for appellee.


                           August 18, 2025
           MONTECALVO, Circuit Judge.          Brothers Gaven and Jared

McKenna,   through   their    parents,     Catherine   and   Steven   McKenna

(collectively, the "McKennas"), sued Maine's Department of Health

and   Human    Services    (the    "Department"),      alleging    that   the

Department discriminated against each brother in violation of

federal law.      Both brothers have developmental disabilities and

receive aid from the Department.         The McKennas allege that because

the brothers lived together the Department provided less aid than

it would have had they lived apart thereby violating each brother's

constitutional right to associate.          The district court dismissed

the matter, agreeing with the Department that sovereign immunity

protects it from suit.        The McKennas appeal that judgment.           For

the reasons provided below, we conclude that the Department is not

entitled to sovereign immunity, and, accordingly, we reverse.

                              I. Background1

           Both    Gaven     and   Jared    have     been    diagnosed    with

intellectual disabilities.         Gaven "has a diagnosis of autism and

moderate to severe intellectual disabilities," is nonverbal, and

experiences incontinence.          Jared "has a diagnosis of autism,

moderate   intellectual      disabilities,     and     generalized    anxiety




      1On appeal from the dismissal, "[w]e take all facts pled, as
well as all reasonable inferences to be drawn therefrom, in the
light most favorable to" the McKennas. Efron v. UBS Fin. Servs.
Inc. of P.R., 

 (1st Cir. 2024) (quoting Butler v.
Deutsche Bank Tr. Co. Ams., 

 (1st Cir. 2014)).


                                    - 2 -
disorder."       Both brothers require twenty-four-hour supervision and

assistance with all aspects of daily life.            They live at their

family home with their parents, Catherine and Steven.

            A. The Department's Determination of Services

            Because of their disabilities, Gaven and Jared each

qualify     to     receive   Department-provided    services,   including

institutional- or community-based care.            They were notified of

their eligibility to receive services in a community-based setting

in June 2018.       Per the complaint, both brothers qualified for and

were recommended to receive "Shared Living Services" at the "Single

Member Services"       level.    In Shared Living, a      direct support

professional ("DSP") who shares a home with the services recipient

provides the Department's services.        Under Single Member Services,

a services recipient receives one-on-one care.

            Both Catherine and Steven McKenna are certified DSPs,

able to provide Shared Living Services under the Department's

rules.    Accordingly, the McKennas requested that each brother

receive Single Member Services at home, with Steven as Gaven's DSP

and Catherine as Jared's.       But in August 2018, the Department only

approved Catherine as Jared's DSP and denied Gaven the ability to

apply for Single Member Services with Steven as his DSP until

May 2019.

            Then, in August 2019, after Gaven applied for Single

Member Services, the Department informed the brothers that they


                                   - 3 -
had instead been approved for "Two Member Services," meaning that

the brothers would share a single DSP rather than each brother

having      his   own   designated    DSP.      The     Department   based    its

determination on its interpretation of the applicable regulations,

which it read as preventing multiple members from receiving Single

Members Services while residing              together    in one house.        The

Department's decision meant that Catherine and Steven could not

both be reimbursed to provide care, such that either the brothers

would need to share a single DSP or Catherine and Steven could

both continue to provide one-on-one care with only one of them

reimbursed for their work.            As the McKennas allege, this was a

financial blow to the brothers, as "[t]he reimbursement rate for

one DSP providing Two Member Services is significantly lower than

the   reimbursement      rate   for   two    DSPs   providing   Single     Member

Services to [two] member[s]."          The rate for Single Member Services

is $156 per day, while the rate for Two Member Services is $78.02

per day.     Although the Department reimbursed the McKennas for only

one   DSP    providing    Two   Member   Services,      Catherine    and   Steven

continued to provide Gaven and Jared with the one-on-one care that

the brothers need.       As a result, the McKennas allege, the brothers

were denied "one-half of the services for which they are qualified

and that are necessary for their health and safety."

              The effect of this decision, the McKennas argue, is that

the Department "prevented Gaven from receiving the disability


                                      - 4 -
services to which he is entitled so long as he lived in the same

home as his brother, Jared, and vice versa."

                           B. State Lawsuit

          In 2020, the McKennas sought review of the Department's

services decision under Maine law in Maine Superior Court.           And,

in 2022, the superior court sided with the McKennas.       The McKennas

now allege that the district court "requir[ed] the Department to

approve both [brothers] to receive the Single Member Services to

which they were entitled despite the brothers' decision to live in

the same home."    As the McKennas allege, the court explained:

          [T]he rules authorize the Department to allow
          two [single]-member-serv[ices] relationships
          in a single home.

                  . . .

               If, as the Department itself recognized,
          Gaven were to move to another home with a
          different    Shared  Living    Provider   (or,
          presumably, if the parents lived separately
          and he lived with his father under a separate
          roof) his services would be funded at the full
          stipend    rate.       This   is    arbitrary,
          unreasonable, and inconsistent with the values
          espoused by the Department policies of
          maximizing community inclusion in a Shared
          Living family environment.

          After     the   state   court   issued   its   decision,   the

Department began reimbursing the McKennas for two DSPs providing

Single Member Services to the brothers.        This means that, since

the July 2022 state court decision, both parents are now reimbursed

for the around-the-clock care they provide to the brothers.


                                  - 5 -
                        C. The Federal Lawsuit

            The McKennas initiated this lawsuit to recover for the

time during which their reimbursement was limited to one DSP

providing services to two members.             They allege discrimination

based on association with an individual with a disability in

violation of Title II of the Americans with Disabilities Act,

     ("Title II").2         In     response,    the

Department filed a motion to dismiss for lack of subject-matter

jurisdiction, arguing that Eleventh Amendment sovereign immunity

barred the suit.3

            The   district   court    agreed    with   the    Department   and

granted the Department's motion to dismiss.                  McKenna ex rel.

McKenna v. Me. Dep't of Health & Hum. Servs., No. 23-CV-00366,

, at *1 (D. Me. Sept. 27, 2024).          As we will explain

thoroughly    below,   the    district       court   determined    that    the

Department was entitled to immunity and dismissed the suit.

            The McKennas timely appealed.




     2 The McKennas also alleged that the Department discriminated
against the brothers in violation of Maine state law, namely the
Maine Human Rights Act, 

(6) (1995). But
the parties later agreed that this claim did not belong in federal
court, and it was dismissed.
     3 The Department also argued that the complaint should be

dismissed for failure to state a claim, but the district court did
not reach that argument because it agreed that it lacked
subject-matter jurisdiction.


                                     - 6 -
                          II. Standard of Review

           We    review   the     district    court's    Eleventh   Amendment

immunity   abrogation     analysis    de     novo.      Fresenius   Med.   Care

Cardiovascular Res., Inc. v. P.R. & the Caribbean Cardiovascular

Ctr. Corp., 

, 60–61 (1st Cir. 2003).

                                III. Discussion

           The McKennas argue that the district court erred in

concluding      that   Eleventh     Amendment     immunity    protected    the

Department and, in turn, erred in dismissing the case.              Given the

complex nature of the law at hand, and because the district court

accurately laid out the relevant framework, we begin by setting

forth the applicable test and summarizing the district court's

analysis at each step.     Finally, we assess the McKennas' arguments

in favor of reversal.

      A. Legal Framework and the District Court's Decision

           "'The Eleventh Amendment largely shields States from

suit in federal court without their consent, leaving parties with

claims against a State to present them, if the State permits, in

the State's own tribunals.'          This immunity applies only to the

states [and to] arms of a state."            Pastrana-Torres v. Corporación

de P.R. para la Difusión Pública, 

 (1st Cir. 2006)

(quoting Hess v. Port Auth. Trans–Hudson Corp., 

(1994)).   It was uncontested below and is uncontested now that the

Department is an arm of the state and therefore entitled to


                                     - 7 -
immunity and, accordingly, that the burden is on the McKennas to

establish    an   exception   to   immunity.     See   Maysonet-Robles   v.

Cabrero, 

 (1st Cir. 2003) (placing onus to establish

waiver of immunity or abrogation on party seeking application of

that exception).

            One such exception to Eleventh Amendment immunity is

where Congress has abrogated immunity.         Congress abrogates States'

immunity when Congress (1) "unequivocally expresse[s] its intent

to abrogate that immunity" and (2) "act[s] pursuant to a valid

grant of constitutional authority."         Buchanan v. Maine, 

, 171 (1st Cir. 2006) (quoting Kimel v. Fla. Bd. of Regents,

 (2000)).       We address each step of the Kimel test

in turn.

 1. Kimel Step One: Unequivocal Expression of Intent to Abrogate

            Below, the McKennas argued that Congress abrogated the

Department's sovereign immunity through Title II.            The district

court agreed at Kimel's first step that Congress had clearly

expressed its intent to abrogate Eleventh Amendment immunity in

Title II.    See 

 ("A State shall not be immune

under the eleventh amendment . . . from an action in Federal or

State court . . . for a violation of this chapter." (footnote

omitted)).




                                    - 8 -
             2. Kimel Step Two: Valid Grant of Authority

           In    the    context     of    Title II,    to   determine   whether

Congress has acted pursuant to a valid grant of constitutional

authority, we look to the nature of the state conduct at issue.

"[T]he Supreme Court has held that Title II of the ADA validly

abrogates sovereign immunity as to (1) state conduct that actually

violates the Constitution and (2) some classes of state conduct

that do not facially violate the Constitution but are prohibited

by   Title II   in     order   to   'prevent     and   deter   unconstitutional

conduct.'"      Toledo v. Sánchez, 

 (1st Cir. 2006)

(citation omitted) (first citing United States v. Georgia, 

, 158–59 (2006), and then quoting Tennessee v. Lane, 

 (2004)).          In Toledo, we summarized this test, as

laid out by the Supreme Court in Georgia:

           [W]e must determine "on a claim-by-claim
           basis, (1) which aspects of the state's
           alleged conduct violated Title II; (2) to what
           extent such misconduct also violated the
           Fourteenth Amendment; and (3) insofar as such
           misconduct violated Title II but did not
           violate the Fourteenth Amendment, whether
           Congress's purported abrogation of sovereign
           immunity as to that class of conduct is
           nevertheless valid."

 (quoting Georgia, 

).

           In addressing Kimel's second step -- whether Congress

had acted pursuant to valid authority in seeking to abrogate

immunity under Title II -- the district court applied Georgia.




                                         - 9 -
First, the district court determined that the McKennas had stated

a claim under Title II.4          See Buchanan, 469 F.3d at 172.              Next,

the   district    court     assessed    the     McKennas'    argument    that     the

Department's      conduct      violated    the    brothers'     substantive       due

process    and    equal     protection        rights   under    the     Fourteenth

Amendment, concluding that the McKennas "ha[d] not demonstrated"

a constitutional violation.            This analysis is at the core of the

appeal, and we will provide additional details of the applicable

principles and the district court's analysis in Section III.B.1.

            Accordingly, the district court turned to the question

of    whether    the   state    conduct,      which    did   not   amount    to    a

constitutional violation, was prohibited by Title II in order to

"prevent and deter unconstitutional conduct."                  Id. (quoting Nev.

Dep't of Hum. Res. v. Hibbs, 

 (2023)).                     As the

district court explained, that analysis is in turn dictated by the

three-part inquiry that stems from the Supreme Court's opinion in

City of Boerne v. Flores, 

 (1997), which describes




       The district court explained that "[t]he [brothers] are
       4

people with disabilities under the ADA who share a logical and
significant association as brothers living together in their
family home"; that the Department "knew about their familial
relationship and living arrangement"; and that, "though both
[brothers] qualify for Shared Living Services at the Single Member
Served level, [the Department] denied them those services because
they live together. As a result, they were reimbursed at half the
rate they should have received."       Thus, the district court
determined, "[t]hese allegations are sufficient to state a claim
for associational discrimination."


                                       - 10 -
when   prophylactic     legislation       is    permitted    by    Congress's

enforcement    power.      To    evaluate       the    constitutionality   of

prophylactic legislation, a court considers:

            (1) the constitutional right or rights that
            Congress sought to protect when it enacted the
            statute; (2) whether there was a history of
            constitutional    violations     to    support
            Congress's determination that prophylactic
            legislation was necessary; and (3) whether the
            statute is a congruent and proportional
            response to the history and pattern of
            constitutional violations.

Toledo, 

.      The district court determined that the

McKennas "ha[d] not carried their burden" as to any of the three

requirements of the City of Boerne inquiry.              Thus, the district

court concluded that "Congress did not validly abrogate state

sovereign   immunity"    with   respect    to    the   McKennas'   particular

Title II claim and dismissed the suit.

                                B. Analysis

            With that basic framework and procedural history set

forth, we turn to addressing the McKennas' arguments.              First, we

note that the Department does not contest that Title II satisfies

Kimel's first step.     And this court has previously explained that,

in Title II, Congress "unequivocally express[ed] its intent to

abrogate state sovereign immunity."              Toledo, 

.

Instead, the McKennas challenge the district court's analysis at

Kimel's step two.       Thus, the question before us is whether, in




                                  - 11 -
expressing its intent to abrogate state sovereign immunity in

Title II, Congress acted pursuant to a valid grant of authority.

               The McKennas argue that the district court was wrong in

concluding that their claims could not satisfy the test set forth

in    Georgia       because    the     Department      violated    the    brothers'

constitutional        rights.        And,     alternatively,    they     argue   that

Congress's abrogation was nonetheless valid under City of Boerne.

As    we     will   explain,    we     agree    with   the    McKennas    that    the

Department's decision violated the brothers' equal protection

rights.        Accordingly, Georgia's second prong is satisfied and

Congress validly abrogated sovereign immunity in this context.

Thus, we need not consider their argument under the City of Boerne

test.      And, because the parties do not dispute that the McKennas

stated a claim of associational discrimination under Title II, see

supra note 5, we need not consider the first prong of the Georgia

inquiry.      Thus, we begin our discussion at Georgia's second prong.

Because       we    conclude    that    the    alleged   conduct    violated      the

Fourteenth Amendment, that is also where our inquiry ends.

     1. Georgia's Second Prong: Whether the Department's Conduct
                  Violated the Fourteenth Amendment

               The second prong of the Georgia inquiry asks "whether

any     of    the    [Department's]         conduct    that    violated    Title II

independently states a violation of the Fourteenth Amendment."

.          If we conclude that the Department's conduct



                                        - 12 -
violates    the    Fourteenth      Amendment,          Congress's    abrogation    of

sovereign immunity is valid and the Department is not entitled to

immunity.    The McKennas invoke their equal protection rights,5

arguing that the Department's conduct impinged on the brothers'

fundamental rights and therefore must be reviewed with heightened

or strict scrutiny, which the McKennas contend the Department's

conduct cannot withstand.

                             a. Level of Review

            We begin, as the district court did, with the question

of what level of scrutiny to apply.                   The district court rejected

the   argument    that     the   Department's          conduct    impinged   on   the

brothers' fundamental rights to associate and live with their

family members because the brothers "have always lived together

with their parents in their family home" and the McKennas "ha[d]

not alleged any threat to this living arrangement."

            Accordingly,         the         district     court      assessed     the

Department's      action   under       the    rational    basis     standard.     The

Department contended that its "actions were based on a legitimate

governmental purpose -- to conserve limited financial resources by

providing      reimbursement           to      just     one      person   for     the

usually-simultaneous provision of services to two [m]embers in the


      5Below, the McKennas also asserted that the Department's
conduct violated the brothers' substantive due process rights.
The district court rejected this argument, and the McKennas do not
challenge that conclusion on appeal.


                                        - 13 -
same home."        The court accepted the Department's cost-saving

explanation and reasoned that "it [was] difficult to see how [this

cost-saving       measure]    differs       from   any   number    of    legislative

funding choices" and that "the wisdom of [such] decision[s] is

left to elected officials."

            The McKennas now contend that the district court erred

in applying rational basis review and that the district court

should have instead applied a heightened level of scrutiny.6                      The

McKennas raise two primary arguments as to why the Department's

actions should be reviewed under heightened scrutiny: that their

conduct   burdened     a     suspect    or    quasi-suspect       class -- namely,

disabled individuals -- and that it impinged upon the brothers'

fundamental right to associate and live with one another.                         See

Toledo, 

 ("Unless state action burdens a suspect

class or impinges upon a fundamental right, we review equal

protection    claims       for   a     rational     relationship        between   the

disparity    of    treatment     and    a    legitimate    government      purpose."

(citing Heller v. Doe, 

 (1993))).                  The Department

contends that neither argument is availing.                However, we need not

resolve the dispute over the applicable level of scrutiny because

we agree with the McKennas that, in any event, the Department's




     6 It is unclear whether the McKennas seek the application of
strict scrutiny or intermediate scrutiny. Given our conclusion,
we need not resolve this ambiguity.


                                       - 14 -
conduct cannot survive rational basis review.               See Att'y Gen. of

N.Y. v. Soto-Lopez, 

 (1986) (noting there was "no

occasion to inquire whether enhanced scrutiny was appropriate"

where "contested classifications did not survive even rational

basis scrutiny").

          "The    general     rule    is    that    [government   conduct]    is

presumed to be valid and will be sustained if the classification

drawn by the statute is rationally related to a legitimate state

interest."     City of Cleburne v. Cleburne Living Ctr., 

 (1985); see also Foote v. Ludlow Sch. Comm., 

 (1st Cir. 2025) (per curiam) ("[W]e presume the challenged

conduct is valid so long as it 'is rationally related to a

legitimate     state       interest.'"        (quoting     González-Droz      v.

González-Colón, 

 (1st Cir. 2011))).                  As we have

explained, "[t]he question is not what went on in the mind of the

state actor but whether anyone, including the judge, can conceive

of a rational reason for such a classification."              Jeneski v. City

of Worcester, 

 (1st Cir. 2007) (citing Nordlinger

v. Hahn, 

, 11–12 (1992)).                And, under rational basis,

plaintiffs bear the burden of demonstrating that "there exists no

fairly conceivable set of facts that could ground a rational

relationship     between    the   challenged         classification   and    the

government's legitimate goals."            Doherty v. Merck & Co., 892 F.3d




                                     - 15 -
493, 500 (1st Cir. 2018) (quoting Eulitt ex rel. Eulitt v. Me.

Dep't of Educ., 

 (1st Cir. 2004)).

                  b. Application of Rational Basis Review

            With these principles set forth, we turn to whether the

Department's actions survive rational basis review.                 It is first

necessary     to    define     the    Department's     conduct    that    we    are

considering.       Here, the brothers were both determined to require

and to be eligible for around-the-clock one-on-one care by a DSP,

like all members at the Single Services level.                     However, the

Department, in interpreting the applicable                   regulatory   scheme,

determined that if two such members -- Gaven and Jared -- lived

together, they were entitled to reimbursement for a single DSP to

provide care for both members.

            The     Department       contends   that   its    decision    was       in

furtherance        of   its    legitimate       governmental     objective          of

cost-saving.        And   it   is    uncontested   that   saving    money      is    a

legitimate governmental purpose.                Of course, as the McKennas

acknowledge, providing fewer services will necessarily result in

a cost-saving for the state. Instead, the parties' dispute relates

to whether identifying cost-saving alone is enough.

            The McKennas argue that "cost-saving alone does not

provide a rational basis for discriminati[on] . . . .               Rather, the

cost-saving approach must be accompanied by a rational explanation

for the decision to differentiate."             The Department disagrees with


                                       - 16 -
this position, arguing that cost-saving alone is enough to render

its    decision    rational.         We    disagree    with   the    Department's

assessment of the law.         As we explain below, the cost-saving must

be connected to a rational government decision or policy.

            Although the Department points to several cases that

explain the legitimacy of cost-saving as a government objective,

those cases ultimately undermine the Department's position as each

highlights      the   importance          of   the    connection    between    the

government's goal of cost-saving and a rational decision or policy

chosen to effectuate it. See Rodriguez ex rel. Rodriguez v. United

States, 

 (11th Cir. 1999) (explaining that

Congress cannot draw "wholly irrational" lines to effectuate the

valid goal of cost-saving (quoting Mathews v. Diaz, 

 (1976))); Guttman v. Khalsa, 

 (10th

Cir.    2012)     (approving    of        line -- drawn    partially     to   save

costs -- that      also   allegedly        furthered    public-safety      goals);

Toledo, 

 ("All of these actions are rationally

related    to   the   University's         academic    mission     and   budgetary

constraints . . . ."); Jefferson v. Hackney, 

(1972) ("Since budgetary constraints do not allow the payment of

the full standard of need for all welfare recipients, the State

may have concluded that the aged and infirm are the least able of

the categorical grant recipients to bear the hardships of an

inadequate standard of living."); but cf. Council 31 of the Am.


                                      - 17 -
Fed'n of State, Cnty. & Mun. Emps. v. Quinn, 

(7th     Cir.    2021)       ("Instituting        cost-savings     measures      is

unquestionably a legitimate governmental interest, particularly

for a government in such dire fiscal straits.             And by Council 31's

own admission the State would save approximately $75 million by

implementing the pay freeze.             It is therefore evident that the

Rules are a rational method of contributing to the legitimate

governmental aim of cost savings.").               Rather than supporting the

Department's position that cost-saving alone renders its actions

constitutional, these cases underscore the requirement that there

must be a rational connection between the Department's goal and

its decision to treat the brothers differently based solely on the

fact that they lived together.            And the Department has presented

no case where a court has determined that that a governmental act

in furtherance of cost-saving is sufficient without a rational

basis for the discrimination.

            Accepting the Department's position would allow it to

"protect [its coffers] through a random means, such as elimination

from coverage of all persons with an odd number of letters in their

surnames."      Ohio Bureau of Emp. Servs. v. Hodory, 

 (1977).      Rather, as the Supreme Court has explained, while

"protecting the fiscal integrity of Government programs, and of

the    Government   as   a    whole,    'is   a   legitimate     concern   of   the

State[,]' [t]his does not mean that [a legislature] can pursue the


                                       - 18 -
objective of saving money by discriminating against individuals or

groups."    Lyng v. Int'l Union, United Auto., Aerospace & Agr.

Implement Workers of Am., 

 (1988) (citation

omitted) (quoting Ohio Bureau of Emp. Servs., 

).

Indeed, "cost alone does not support differentiating individuals."

United States v. Vaello-Madero, 

 (1st Cir. 2020),

rev'd on other grounds, 

 (2022).              By our estimation,

the Department has sought to do exactly what the Supreme Court

warned against in Lyng: to "sav[e] money by discriminating against

individuals" without any rational justification to do so.                     

.     And, as we will explain, our own consideration of

the Department's policy reveals no rational basis for the magnitude

of the discrepant compensation.

            Before the district court, the Department articulated

its rationale as "conserv[ing] limited financial resources by

providing     reimbursement        to     just    one     person     for      the

usually-simultaneous provision of services to two [m]embers in the

same home."     Before us, the Department briefly explained that it

"reasonably     believed    that        one   person    could    provide      the

usually-simultaneous       services       (including    meal     planning     and

preparation) to two members in the same home, thereby conserving

finite resources in order to distribute them to other [service

recipients]."      Thus,    the    Department     based    its     decision    to

discriminate against the brothers on an assumption that some of


                                    - 19 -
the care a DSP provides can serve two individuals at the same time.

Even assuming this to be true, we cannot say that this would

warrant requiring two individuals to receive half of the care they

need.

            Common sense dictates that care-taking for two entails

more work than care-taking for one.             While certain economies of

scale might take hold when two members live together, at the very

least, caring for two members generates more work, particularly

where both are determined to need around-the-clock care.                 And the

deference owed the Department's allocations of financial resources

does not render its decision rational.               See Lyng, 

("[O]ur review of distinctions that Congress draws in order to

make    allocations     from    a   finite    pool    of    resources   must   be

deferential, for the discretion about how best to spend money to

improve the general welfare is lodged in Congress rather than the

courts." (citing Bowen v. Owens, 

 (1986))).

            Rather than paying more in total -- whether 200% or some

lower      percentage      keyed       to      the         brothers'    specific

requirements -- the Department paid the same as if there were only

one brother receiving services.         The Department implemented a rule

that if two members resided together, their services would be cut

in half.   If two members require around-the-clock one-on-one care,

it is irrational to conclude that a single DSP can provide adequate

care to both members.          And, even assuming there are times where a


                                     - 20 -
DSP can provide adequate care for two members at once, such tasks

cannot comprise enough of each member's needs to assume that adding

a second person would ever result in zero additional service

requirements.     Cf. Jefferson, 

 (finding decision to

reduce benefits to younger constituents rational where "the State

may have concluded that the aged and infirm are the least able of

the categorical grant recipients to bear the hardships of an

inadequate standard of living").

          In      searching     for     a     rational    basis   behind    the

Department's determination that a single DSP can provide adequate

care to two members in need of around-the-clock care and assistance

with all daily activities, as we are obligated to do, we asked the

Department to explain itself.               Despite a state court opinion

labeling the Department's decision "arbitrary," briefing from the

McKennas explaining the lack of rationale, and direct questions at

oral argument as to the basis for the determination, the Department

has not once offered a valid rational explanation for its policy

decision beyond "cost-saving."          And our review of the Department's

actions has unearthed no acceptable justification for what we can

only   describe    as   a     "wholly       irrational"   line    between   the

Department's decision and its goal of cost-saving.                Rodriguez ex

rel. Rodriguez, 

 (quoting Mathews, 

).




                                      - 21 -
           Thus,      because   the    Department       has     not    offered    any

rational basis for its discrimination, the identified governmental

purpose of cost-saving is not adequate.             As the Department has not

offered an alternative rationale for this decision, and we are not

aware of any, we conclude that it fails rational basis review.

Accordingly,     we   conclude     that     the    Department's        conduct,    as

alleged,     violated     the    brothers'        equal    protection       rights.

Therefore,     Congress    acted      pursuant     to     valid       constitutional

authority in abrogating sovereign immunity in this context and

Georgia's second prong is satisfied.7

                                IV. Conclusion

           For   these    reasons,     we   reverse       the   district     court's

dismissal and remand for further proceedings consistent with this

opinion.




     7 Given this conclusion, we need not consider Georgia's third
prong and whether City of Boerne would support abrogation.


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