Easley Ex Rel. Easley v. Snider , 36 F.3d 297 ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
9-20-1994
Easley v. Snider, et al.
Precedential or Non-Precedential:
Docket 94-1199
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
NO. 94-1199
____________
TRACY EASLEY, by her next friend,
LUCILLE EASLEY; FLORENCE H.
v.
KAREN SNIDER, Secretary of the Department of
Public Welfare; KAY ARNOLD, Deputy Secretary
for Social Programs; HOMEMAKER SERVICES OF THE
METROPOLITAN AREA
Karen Snider and Kay Arnold,
Appellants
____________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. No. 93-cv-00221
____________
Argued July 18, 1994
Before: SCIRICA, LEWIS, and ROSENN, Circuit Judges
Opinion Filed September 22, l994
____________
ERNEST D. PREATE, JR., ATTORNEY GENERAL
SUSAN J. FORNEY, SENIOR DEPUTY ATTORNEY GENERAL (Argued)
KATE L. MERSHIMER, SENIOR DEPUTY ATTORNEY GENERAL
JOHN G. KNORR, III, CHIEF DEPUTY ATTORNEY GENERAL
Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
Attorneys for Appellants
ILENE SHANE, ESQUIRE
ROBIN RESNICK, ESQUIRE
Disabilities Law Project
801 Arch Street, Suite 610
Philadelphia, PA 19107
STEPHEN F. GOLD, ESQUIRE (Argued)
Suite 700
125 South Nine Street
Philadelphia, PA 19107
Attorneys for Appellees
____________
OPINION OF THE COURT
ROSENN, Circuit Judge.
This appeal, involving important legal and societal
questions, arises out of an attack on the legality of the
Pennsylvania Attendant Care Services Act (Care Act), 62 P.S. §
3051 et seq. (Supp. 1994). Pennsylvania enacted this legislation
in 1986 as a program designed to enable physically disabled
persons to live in their homes rather than institutions and, when
possible, to become active and useful members of society.
The plaintiffs, Tracey Easley (Easley) and Florence
Howard (Howard), both rejected as ineligible for the program,
brought suit in the United States District Court for the Eastern
District of Pennsylvania, alleging that the Care Act conflicts
with the more recently enacted Americans with Disabilities Act of
1990 (ADA or Act), 42 U.S.C.A. 12101 et seq. (Supp. 1994),1
because the Care Act requires that candidates for the program
also be mentally alert. Plaintiffs sought to enjoin the State of
Pennsylvania from excluding them from the program. Following a
bench trial, the district court concluded that the program
developed under the Care Act violated the ADA and enjoined the
1
. These proceedings assert claims under Title II of the ADA.
The district court exercised jurisdiction pursuant to 28 U.S.C. §
1331. This court has jurisdiction as the appeal is from a final
order within the meaning of 28 U.S.C. § 1291.
State from excluding Easley and Howard from receiving attendant
care services. The State appeals. We reverse.
I.
The Care Act authorized the Pennsylvania Department of
Public Welfare (PDPW) to provide attendant care services to
eligible individuals. The General Assembly declared its purpose
in enacting the law was to enable physically disabled but
mentally alert adults between the ages of eighteen and fifty-nine
to live in their own homes and communities. Additionally, they
must:
1. experience a physical impairment
expected to last a continuous
period of at least 12 months;
2. be capable of selecting,
supervising and, if needed, firing
an attendant;
3. be capable of managing their own
financial and legal affairs; and,
4. because of their physical
impairment, require assistance to
complete the functions of daily
living, self-care, and mobility.
62 P.S. § 3053. Persons who are physically disabled but not
mentally alert are excluded from the program.
A. Tracey Easley and Florence Howard
At the time of trial, Easley was a twenty-nine year old
woman tragically disabled by a catastrophic car accident in 1982,
just as she was to begin her sophomore year at Vassar College.
Easley suffered a closed head injury which left her with minimal
mobility and without speech. She apparently can communicate with
her family by blinking her eyes and using other facial
expressions. Presently, Easley is unable to care for herself and
cannot be left alone. Easley is not capable of selecting,
supervising, or firing an attendant, or managing her own
financial and legal affairs.
In 1987, Easley resided in West Philadelphia, and
through the use of a surrogate, in this case her mother, applied
for and received attendant care services from Resources for
Living Independently (RLI) which was under contract with the
PDPW. Easley moved in 1991 to an area not serviced by RLI but by
Homemaker Services Metropolitan Area, Inc (HSMA), which was also
under contract with PDPW.
At the time of trial plaintiff Howard was a fifty-three
year old woman with multiple sclerosis and undifferentiated
schizophrenia. Howard is immobile from the waist down and, due
to her condition, cannot live alone. Howard lived with her
daughter until September 1991, but entered the Philadelphia
Nursing Home when her daughter could not obtain attendant care
services for her.
Howard has expressed dissatisfaction with her present
situation. She wants to leave the nursing home and live in the
community. To do this, she would need PDPW-funded attendant care
services. PDPW, however, determined Howard ineligible under the
Act because she was not mentally alert. Without using a
surrogate, Howard is incapable of selecting, supervising or
discharging an attendant and is not capable of managing her own
financial and legal affairs.
Pennsylvania's Attendant Care Program determined the
plaintiffs to be ineligible for its services because they were
not capable of hiring, supervising and, if needed, firing an
attendant and because they are not capable of personally
controlling their own legal and financial affairs. Both
plaintiffs alleged that defendant Karen Snider, Secretary of the
PDPW, and defendant Kay Arnold, the Deputy Secretary for PDPW's
Office of Social Programs (OSP) which administers the Attendant
Care program, violated the ADA by denying them attendant care
services because they were not "mentally alert." Easley and
Howard challenge the provision of the Care Act that requires the
participants to be mentally alert.
B. THE ATTENDANT CARE PROGRAM
The General Assembly stated the policies in pertinent
part underlying the Care Act were as follows:
1. The increased availability of
attendant care services for adults
will enable them to live in their
own homes and communities.
2. Priority recipients of attendant
care services under this Act shall
be those mentally alert but
severely physically disabled who
are in the greatest risk of being
in an institutional setting.
3. Recipients of attendant care have
the right to make decisions about,
direct the provision of and control
their attendant care services.
This includes but is not limited to
hiring, training, managing, paying
and firing of an attendant.
62 P.S. at § 3052.
The Care Act defines attendant care services as
"[t]hose basic and ancillary services which enable an individual
to live in his home and community, rather than in an institution,
and to carry out functions of daily living, self-care and
mobility." Id. at § 3053. Basic services include assistance
with getting in and out of bed, a wheelchair, or a car and also
include assistance with routine bodily functions such as health
maintenance activities, bathing and personal hygiene, dressing,
grooming, and feeding. Id. Certain ancillary services may be
provided which include homemaker services such as shopping,
cleaning and laundry, companion-type services such as
transportation, letter writing, reading mail, and escort, and
assistance with cognitive tasks such as managing finances,
planning activities, and making decisions. Id.
The PDPW contracts with various agencies to provide
attendant care services pursuant to the Act and Department
guidelines. The Department requires that the agencies offer
three models of service delivery: the consumer model, the agency
model, and the combination model. Under the consumer model the
consumer advertises, interviews, hires, and fires the attendant.
The consumer submits invoices to the respective agencies and
receives money so that the consumer is responsible for the task
of paying the care giver for his or her services. Under the
agency model, the agency employs the attendant, but the consumer
retains the right to reject an attendant that the consumer
considers unsuitable. The consumer provides direction in
developing the service plan and retains the responsibility for
supervising the attendant in the home. Under the combination
model, the consumer selects certain tasks to be performed and
certain tasks the agency will perform. The consumer has the
responsibility to choose the service delivery model that he/she
most prefers. PDPW describes the combination model as "a menu
with the consumer selecting what tasks he or she will do and what
tasks the agency will do."
II.
We must determine if the targeting of the programmatic
services to physically disabled but mentally alert individuals is
permissible or whether the State improperly excluded Easley and
Howard from receiving attendant care services. We make this
determination by examining the essential nature of the program to
discover whether mental alertness is a necessary eligibility
requirement and whether Easley and Howard can satisfy this
requirement with a reasonable modification, here by using a
surrogate. In reviewing this appeal, the court exercises a
plenary standard of review when applying legal precepts to
undisputed facts. Midnight Sessions, Ltd. v. Philadelphia, 945
F.2d 667, 671 n.1 (3d Cir. 1991), cert. denied, 112 S. Ct. 1668
(1992).
A. "Mental Alertness" Under The Care Act.
We begin our analysis with the passage of the ADA.
Congress enacted the ADA to eliminate discrimination against
handicapped individuals by extending the non-discrimination
principles required at institutions receiving federal funds by
the Rehabilitation Act, 29 U.S.C.A. § 790 et seq. (Supp. 1994),
to a much wider array of institutions and businesses, including
services provided by states and municipalities. 42 U.S.C.A. §
12101 et seq. Title II of the ADA provides:
Subject to the provisions of this subchapter,
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.
Id. at § 12132.
The State's reading of the ADA and its supporting
regulations is one which enables a state to provide a particular
class of disabled persons with benefits and services without
obligating itself to extend the same services and benefits to
other classes of persons with disabilities. The regulations
implementing the ADA define a "qualified individual with a
disability" as:
An individual with a disability who, with or
without reasonable modifications to rules,
policies, or practices, . . . meets the
essential eligibility requirements for the
receipt of services or the participation in
programs or activities provided by a public
entity.
28 C.F.R. § 35.104 (1993). Another regulation implementing the
ADA specifically endorses a state's authority to offer benefits
to specific classes of persons with disabilities:
Nothing in this part prohibits a public
entity from providing benefits, services, or
advantages to individuals with disabilities,
or to a particular class of individuals with
disabilities beyond those required by this
part.
Id. at § 35.130(c). Further, the preamble also authorizes a
state to design programs for particular groups of disabilities.
The preamble reads in part:
State and local governments may provide
special benefits, beyond those required by
non-discrimination requirements of this part
that are limited to individuals with
disabilities or a particular class of
individuals with disabilities, without
incurring additional obligations to other
classes of persons with disabilities.
App. A., 28 C.F.R. Ch.I Pt 35 (1993).
The State asserts that in addition to the Care Act's
consistency with the regulations implementing the ADA, the Care
Act is consistent with the regulations implementing the
Rehabilitation Act, 29 U.S.C.A. § 794, the ADA's forerunner.
These regulations state in part:
The exclusion of non-handicapped persons from
the benefits of a program limited by Federal
statute or executive order to handicapped
persons or the exclusion of a specific class
of handicapped persons from a program limited
by Federal statute or executive order to a
different class of handicapped persons is not
prohibited by this part.
45 C.F.R. § 84.4(c) (1993) (emphasis added).
The district court rejected the State's position and
accepted the contentions of Easley and Howard that the
prerequisite of mental alertness is just the sort of
discrimination that the ADA intended to prevent and concluded
that such a criterion contravenes the regulations implementing
the Act. The court relied on an ADA regulation which states in
relevant part:
A public entity shall not impose or apply
eligibility criteria that screen out or tend
to screen out an individual with a disability
or any class of individuals with a disability
from fully and equally enjoying any service
program or activity, unless such criteria can
be shown to be necessary for the provision of
the service, program, or activity being
offered.
28 C.F.R. § 35.130(b)(8) (emphasis added).
The district court refused to accept the State's
characterization of the program and, in its own examination of
the essential nature of the program, the court determined that it
is not necessary to be mentally alert to receive attendant care
services. The court did not view consumer control and
independence as essential elements of the program, but rather
merely two of the many opportunities the program provides.
In Southeastern Community College v. Davis, 442 U.S.
397 (1979), the Court first examined § 504 of the Rehabilitation
Act, the predecessor of the ADA. There, after a deaf woman was
denied admission into a federally-funded nursing program, the
Court was asked to decide whether § 504 prohibited physical
requirements in admission to professional schools. Id. at 400.
In concluding that § 504 did not forbid such requirements, the
Court held that the woman, who could not understand aural
communication without reading lips, was not "otherwise qualified"
for admission to the program because "[a]n otherwise qualified
person is one who is able to meet all of a program's requirements
in spite of his handicap." Id. at 406. In then examining
the physical requirements to determine whether modifications had
to be made so that no discrimination against handicapped
individuals occurred, the Court concluded that no elimination of
requirements was necessary because to do so would fundamentally
alter the program, something not required under the
Rehabilitation Act. Id. at 408, 409 n.9.
Interpreting the Court's decision in Southeastern
Community College, we stated in Strathie v. Department of
Transportation, 716 F.2d 277, 231 (3d Cir. 1983):
A handicapped individual who cannot meet all
of a program's requirements is not otherwise
qualified if there is a factual basis in the
record reasonably demonstrating that
accommodating that individual would require
either a modification of the essential nature
of the program, or impose an undue burden on
the recipient of federal funds.
It follows, of course, that if there is no factual basis in the
record demonstrating that accommodating the individual would
require a fundamental modification or an undue burden, then the
handicapped person is otherwise qualified and refusal to waive
the requirement is discriminatory. Therefore, when determining
whether a program discriminates, a court must determine two
things: (1) whether the plaintiff meets the program's stated
requirements in spite of his/her handicap, and (2) whether a
reasonable accommodation could allow the handicapped person to
receive the program's essential benefits. Further, when
determining an accommodation would allow the applicant to receive
the benefit, a court cannot rely solely on the stated benefits
because programs may attempt to define the benefit in a way that
"effectively denies otherwise handicapped individuals the
meaningful access to which they are entitled . . . ." Alexander
v. Choate, 469 U.S. 287, 300 (1984).
The district court reviewed this case law and concluded
that if mental alertness is not necessary, "then these plaintiffs
are qualified to receive the service despite their lack of mental
alertness." The district court's statement, therefore, can only
be interpreted to mean that unless removing the mental alertness
criteria would be an unreasonable accommodation, i.e., "would
require either a modification of the essential nature of the
program, or impose an undue burden on the recipient of federal
funds," the State would have to drop the requirement.
Consequently, the dominant issue presented here is whether mental
alertness is part of the essential nature of the program. See
Alexander, 469 U.S. at 287 n.19. If mental alertness is not part
of the program's essential nature, the plaintiffs are qualified
and the State is required to accommodate them. Likewise, if
mental alertness is not part of the program's essential nature,
the accommodation is, by definition, reasonable.
The PDPW Manual asserts that the purpose of the program
is "to allow the physically disabled to live in the least
restrictive environment as independently as possible, to remain
in their homes and prevent inappropriate institutionalization,
and to seek and/or maintain employment." The district court
noted that an analysis of the "service[s] actually being offered"
is necessary to determine the essential nature of the program,
slip op. at 11-12, but seemed to forego that examination and
instead relied merely on the foregoing excerpt of the program
manual. Consequently, it determined that providing these stated
benefits was the essential nature of the program, and held that
any physically disabled person whose disability did not prevent
them from receiving these benefits was qualified.
In so holding, the court rejected the State's claim
that consumer control was part of the essential nature of the
program requiring mental alertness as an eligibility criterion.
The court found that consumer control merely provided the State
with an opportunity to service the recipients, and that the State
had not proven it was "necessary for the services to be provided,
or for the benefits to be received." Id. at 20. As evidence
that consumer control is unnecessary to receive the essential
benefits of the program, the court cited the agency model of care
in which "mentally alert individuals are fully empowered to
relinquish consumer control." Id. at 21. In essence, the court
reasoned that if the consumer does not need the ability to hire,
fire, and supervise an attendant under each mode of care, then
mental alertness cannot be essential to participation in the
program.
An examination of the actual services offered
demonstrates that personal control is essential to the program,
and that mental alertness is a necessary requirement for receipt
of the program's essential benefit rather than merely a service
to benefit recipients. The record indicates that contrary to the
court's characterization of the agency model, program
beneficiaries do not relinquish personal control in any of the
attendant care models. Paula Jean Howley, supervisor for PDPW
Attendant Care Programs, testified at trial how the consumer
retains personal control under the agency model. The purpose of
the program has as its well-defined goal the provision of greater
personal control and independence for the physically disabled.
To achieve the programmatic goal, the physically disabled
obviously cannot function independently and exercise personal
control of their lives if they are not mentally alert. Hence,
the joinder of this requirement cannot be attributable to
discrimination, rather, it is "necessary for the provision of the
. . . program or activity being offered."
The argument submitted by Easley and Howard and adopted
by the district court mischaracterizes the Attendant Care
Program. The State intended that the delivery of services to the
physically disabled preserve their independence, recognizing that
without their physical limitations, they would be running their
own lives. The district court's definition of living
independently as "the opportunity to remain in the community or
family home rather than an institution" is drastically different
than the definition of the creators of the program. The
difference is obvious when one considers that the third purpose
of the program is to enable the physically disabled to seek and
maintain employment. The State strives for a level of
independence that allows an individual to become an active,
contributing member of society, a level of independence obviously
greater than one which does nothing more than keep and sustain
persons out of institutions. Mental alertness of the physically
disabled who participate in the program is an essential dimension
without which the objectives of the program cannot be realized.
The goals intended to elevate the lives of the
physically disabled bear some resemblance to the State's earlier
goals to alleviate the lot of another class of handicapped, the
mentally disabled and retarded, when it enacted the comprehensive
Mental Health and Retardation Act in 1966, 50 P.S. § 4102 et seq.
This legislation endeavored to deinstitutionalize, insofar as
possible, the State's mental health and retardation centers and
set up whenever possible County Mental Health and Retardation
Boards with programs at the county and community levels. The
Care Act is another progressive program by the State to improve
the lot and lives of many physically disabled by providing
opportunities for personal independence and employment. See
Knutzen v. Eben Ezer Lutheran Housing Center, 815 F.2d 1343,
1353-54 (10th Cir. 1987) (Rehabilitation Act was intended to
serve as a helping hand and not "as a 'sword' with which the
handicapped may carve a share from every federal benefit
program").
Final support for our view is an independent evaluation
of the program conducted in 1985 and 1986 by The Conservation
Company and The Human Organization Science Institute, Villanova
University, at the behest of the PDPW. As the report
demonstrates, Pennsylvania's Attendant Care legislation followed
a number of similar programs adopted by other states.
Associations of handicapped persons (e.g., United Cerebral Palsy,
Disabled in Action, Pennsylvania Alliance of Physically
Handicapped) actively urged legislators to begin attendant care.
A Final Report of an Evaluation of the Pennsylvania Attendant
Care Demonstration Program, Vol. 1, p.5. The report also
observes that the role of attendants differs from that of
traditional aides or homemakers. Under this program, the
attendant is directed by the handicapped individual and performs
a wide range of tasks for the physically disabled person. This
enables physically disabled persons to
better control their lives and reach maximum
independence when they are able to direct
their own personal care and manage their
home, business, and social lives. Attendant
Care in Pennsylvania continues to be seen as
part of the wider independent living movement
whose fundamental goals are to enable the
physically disabled to: a) maintain a less
restrictive and/or independent living
arrangement; b) maintain employment; and/or
c) remain in their homes.
Id. at 4. These concerns were later incorporated in the policy
declaration of the Care Act, cited by the State in support of its
position. 62 P.S. § 3052(3), see page 5 supra.
An important part of Easley and Howard's argument that
mental alertness is not a necessary prerequisite to receiving
attendant care services is based on their analogy between the use
of surrogates by consumers and clients who use the "agency" or
"combination" models offered by the program. This comparison
both overstates the control Easley and Howard exercise over their
own lives and understates the role of the clients in the agency
and combination models of service delivery. In the agency model,
the consumer must supervise the attendant and the service plan
and may reject the attendant at any time. In the combination
model, the consumer must designate tasks he/she will perform and
assign tasks to the agency. All three models require, at the
very least, that the consumer make a decision as to the best form
of service delivery. The choice of any service model is very
different from a surrogate making the decision for the consumer.
Allowing a decision by a surrogate is at complete odds with the
program objectives.
Accordingly, we hold that mental alertness is a
necessary prerequisite to participation in the attendant care
program. Although we appreciate the contentions by the
plaintiffs of the benefits Easley and Howard could derive from
this program, this unfortunately is insufficient to carry out the
purposes sought to be accomplished by the legislature. Again,
the Care Act's policy declaration and the Independent Report to
PDPW explain that the essential nature of the program is to
foster independence through consumer control for individuals who,
but for their physical disabilities, could manage their own
lives, achieve independence, and perhaps obtain employment. As
such, mental alertness of the participants is a prerequisite.
This does not end the matter, however, as we must
determine whether the use of surrogates as decision-makers for
non-mentally alert consumers is a reasonable modification under
the Care Act.
B. Reasonable Modifications Under the Care Act
The reasonable modification provision of the
regulations implementing the ADA requires:
A public entity shall make reasonable
modifications in policies, practices, or
procedures when the modifications are
necessary to avoid discrimination on the
basis of disability, unless the public entity
can demonstrate that making the modifications
would fundamentally alter the nature of the
services, program, or activity.
28 C.F.R. § 35.130 (b)(7). Easley and Howard argue that even if
mental alertness is an essential prerequisite to receiving
attendant care services, they could satisfy this prerequisite by
the use of surrogates. They claim that the failure to allow this
reasonable modification violates the ADA and the regulations
implementing the Act. The State, on the other hand, takes the
position that the modification requested by the plaintiffs is
unreasonable, and is not required under the regulations
implementing the ADA.
The test to determine the reasonableness of a
modification is whether it alters the essential nature of the
program or imposes an undue burden or hardship in light of the
overall program. School Bd. of Nassau County v. Arline, 480 U.S.
273, 287 n. 17 (1987); Alexander v. Choate, 469 U.S. 287, 300
(1985); Nathanson v. Medical College of Pennsylvania, 926 F.2d
1368, 1384-86 (3d Cir. 1991). An analysis of the proposed
modification leads us to conclude that Easley and Howard's
suggested modification, the use of surrogates, would, at the very
least, change the entire focus of the program. The focus
fundamentally would shift from the provision of attendant care
and its societal objectives for the physically disabled to
personal care services to the many thousands of physically
disabled who are often served by other specially designed state
programs. The proposed alteration would create a program that
the State never envisioned when it enacted the Care Act. The
modification would create an undue and perhaps impossible burden
on the State, possibly jeopardizing the whole program, by forcing
it to provide attendant care services to all physically disabled
individuals, whether or not mentally alert. We therefore hold
that the use of surrogates would be an unreasonable modification
of the attendant care program under the Act.
C. The Care Act and the ADA.
The district court agreed with Easley and Howard's
interpretation of 28 C.F.R. § 35.130(c) that physically
handicapped persons cannot be rendered ineligible for the program
because they also are afflicted with a mental disability that
leaves them mentally unalert. To support its analysis the
district court cited the regulations implementing Title III of
the ADA which distinguish between offering services to one class
of persons with disabilities and barring a person with the same
needs because the individual has another disability. The
regulation states in part:
A health care provider may refer an
individual with a disability to another
provider, if that individual is seeking . . .
services outside of the referring provider's
area of specialization, and if the referring
provider would make a similar referral for an
individual without a disability who seeks or
requires the same treatment or services.
28 C.F.R. § 36.302(b)(2).
The plaintiffs acknowledge that the State may lawfully
provide an attendant care program serving individuals with a
certain handicap, but assert that the State discriminated against
them because they have an additional handicap. As discussed
earlier in this opinion, the Care Act does not discriminate
against the mentally disabled; it focuses on a different class of
handicapped. The language of the Rehabilitation Act, the ADA,
the Independent Report to the PDPW, and the regulations
implementing the acts contemplate and point to specific classes
of disabled. The State emphasizes the power of government to
design a program for a particular class of handicapped. As an
illustration, it cites the Randolph-Sheppard Act, which provides
vending licenses to blind persons. 20 U.S.C. 107(a) (1990).
There are other programs offered by the Commonwealth of
Pennsylvania, e.g., the Comprehensive Mental Health and
Retardation Act to which we have alluded, a program for the deaf
and hearing impaired, 43 Pa. C.S.A. § 1463 et seq., and a program
for the care and treatment of persons suffering from chronic
renal diseases, 35 Pa. C.S.A. § 6201 et seq.
Our reading of the Care Act is not inconsistent with
the ADA and the Rehabilitation Act. The regulations implementing
these acts contemplate reaching groups of disabled without
incurring obligations to other groups of handicapped. Cases
interpreting the Rehabilitation Act have stated that their main
thrust is to assure handicapped individuals receive the same
benefits as the non-handicapped. The Supreme Court in Traynor v.
Turnage, 485 U.S. 535, 548 (1987), declared "[t]here is nothing
in the Rehabilitation Act that requires any benefit extended to
one category of handicapped persons also be extended to all other
categories of handicapped persons."
The State has not rejected Easley and Howard from the
program because, mentally unalert, they are unworthy of help; the
State merely distinguishes this program established by the Care
Act from a program providing assistance to the non-mentally alert
physically disabled. This is not a case of State discrimination
against a subgroup of the group of people who are physically
disabled. On the contrary, this is a case where an additional
handicap, a severe degree of mental disability, renders
participation in the program ineffectual.
III. CONCLUSION
We therefore hold that the Pennsylvania Attendant Care
Services Act which requires that qualified persons be not only
physically handicapped but also mentally alert does not violate
the ADA's non-discriminatory purposes. We further hold that the
use of surrogates by the non-mentally alert physically disabled
is not a reasonable modification of the Pennsylvania Attendant
Care Services Act.
Accordingly, the judgment of the district court will be
reversed. Each side to bear its own costs.