Helen L. v. DiDario

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
1-31-1995
Helen v DiDario
Precedential or Non-Precedential:
Docket 94-1243
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-1243
HELEN L., BEVERLY D., FLORENCE H.,
ILENE F., IDELL S., and AMERICAN DISABLED
FOR ATTENDANT PROGRAMS TODAY ("A.D.A.P.T.")
Idell S., Appellant
v.
ALBERT L. DiDARIO, individually and in his
official capacity as Superintendent of Norristown
State Hospital, and KAREN F. SNIDER, in her capacity
as Secretary, Pennsylvania Department of Public Welfare
Karen F. Snider, Appellee
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 92-6054)
Argued September 13, 1994
Before: MANSMANN, COWEN and McKEE, Circuit Judges
Opinion Filed: January 31, l995
ILENE SHANE, ESQ.
ROBIN RESNICK, ESQ.
Disabilities Law Project
801 Arch Street, Suite 610
Philadelphia, PA 19107
STEPHEN F. GOLD, ESQ. (Argued)
Suite 700
125 South 9th Street
Philadelphia, PA 19107
Attorneys for Appellant
JOHN A. KANE, ESQ.
HOWARD ULAN, ESQ. (Argued)
Department of Public Welfare
Office of Legal Counsel
Room 305, Health & Welfare Building
Harrisburg, PA 17120
Attorneys for Appellee
DEVAL L. PATRICK, ESQ.
DAVID K. FLYNN, ESQ.
REBECCA K. TROTH, ESQ. (Argued)
United States of America
Department of Justice
P.O. Box 66078
Washington, D.C. 20035
Attorneys for the United States
as Amicus Curiae1
OPINION OF THE COURT
McKEE, Circuit Judge
We are asked to decide if the Pennsylvania Department of
Public Welfare (“DPW")2 is violating Title II of the Americans
with Disabilities Act (the “ADA” or the “Act”), 42 U.S.C. §
1 The United States Department of Justice has filed an
Amicus Brief. 42 U.S.C. §12133 charges the Department with
enforcement of Title II of the ADA. Pursuant to 42 U.S.C.
12134(a) and 42 U.S.C. 12206(c)(3), the Department has issued
regulations and a Technical Assistance Manual interpreting Title
II. See 28 C.F.R. part 35 (1993); The Americans with
Disabilities Act Title II Technical Assistance Manual (1993).
2
Although Karen F. Snider is the named defendant in this
lawsuit, she was sued in her capacity as the Secretary of the
Pennsylvania Department of Public Welfare. We will, therefore,
refer to the defendant as the Department of Public Welfare
("DPW"), rather than Snider.
12132, by the manner in which it operates its attendant care and
nursing home programs. Idell S. alleges that DPW is violating
the ADA by requiring that she receive required care services in
the segregated setting of a nursing home rather than through
DPW's attendant care program. That program would allow her to
receive those services in her own home where she could reside
with her children. The district court ruled that DPW is not
violating the ADA because it is not discriminating against Idell
S. For the reasons that follow we will reverse.
I.
In January of 1994, Idell S. filed an uncontested motion to
join a lawsuit which had previously been filed by Beverly D., and
Ilene F., who were also nursing home residents.3 The suit alleged
3
Helen L., the original plaintiff in this law suit, was a
patient at Norristown State Hospital when her suit was filed.
She asserted a constitutional claim against Albert DiDario (the
Superintendent of that facility) for alleged violations of her
Fourteenth Amendment rights for failing to place her in an
appropriate community setting and for unnecessarily maintaining
her in Norristown State Hospital. Although she alleged a claim
under the ADA, she has since been discharged from Norristown
State Hospital and thereafter pursed only a claim for damages for
the alleged violation of her constitutional rights. Memorandum
Opinion, at 15-6.
In November of 1992, Beverly D. and Ilene F., joined Helen
L.'s law suit and an Amended Complaint was filed asserting a
claim on their behalf against Karen F. Snider, as the Secretary
of the Pennsylvania Department of Public Welfare. In April of
1993, they filed a motion for a preliminary injunction on their
ADA claim. After the parties agreed to a Stipulation of Facts,
the motion for preliminary injunction was converted to one for
that DPW had violated Title II of the ADA by providing services
in a nursing home rather than in the “most integrated setting
appropriate" to the plaintiffs' needs, and sought declaratory and
injunctive relief.
Thereafter, Beverly D. and Ilene F. filed for an uncontested
voluntary dismissal of their claim because they had been
discharged from the nursing home. At the same time, Idell S.
moved for summary judgment based upon an Amended Stipulation of
Facts. Prior to ruling on the joinder and voluntary dismissal
motions, the district court issued a Memorandum and Order dated
January 27, 1994, granting summary judgment against Beverly D.
and Ilene F. and in favor of DPW. On February 2, 1994, the
district court issued an Order dismissing Beverly D. and Eileen
F. as plaintiffs and adding Idell S. as a plaintiff. The court
also ruled that “[f]or the reasons stated in the Memorandum filed
January 27, 1994, the motion for summary judgment of Idell S. is
denied and judgment is entered in favor of defendants and against
. . . Idell S. . . . ."
Idell S. then filed this appeal.4
summary judgment, and DPW filed a cross-motion for summary
judgment.
4
In the same Memorandum and Order which denied Idell S.’s
motion for summary judgment, the district court denied a motion
for summary judgment filed by DiDario and DiDario appealed.
DiDario’s appeal did not involve any questions of law or fact in
common with Idell S.’s appeal. On May 13, 1994, we entered an
Order dismissing DiDario’s appeal for lack of appellate
jurisdiction because the district court Order appealed from was
not a final order.
II.
Idell S. is 43 years old and the mother of two children ages
22 and 14.5 In 1973 she contracted meningitis which left her
paralyzed from the waist down and greatly reduced her ability to
care for herself. As a result, she has been a patient at the
Philadelphia Nursing Home since December 26, 1989. Idell S. uses
a wheelchair for locomotion and requires assistance with certain
activities of daily living including bathing, laundry, shopping,
getting in and out of bed, and house cleaning. She is able to
cook, dress herself (except for her shoes and socks), attend to
her personal hygiene (using a transfer board to access the
toilet) and to her grooming. The parties agree that, although
Idell S. is not capable of fully independent living, she is not
so incapacitated that she needs the custodial care of a nursing
home.
Following the issuance of the February 2, 1994 Order
granting summary judgment in favor of Snider and against Idell
S., the district court issued a Rule 54(b) Certification and
Order on February 8, 1994, directing the Clerk to enter final
judgment in favor of defendant Snider against Idell S. Because
Idell S.’s sole claim was disposed of, the certification creates
a final judgment subject to appeal pursuant to 28 U.S.C. §1291.
See, Tilden Financial Corp. v. Palo Tire Service, 596 F.2d 604,
607 (3d Cir. 1979).
Plaintiffs Florence H. and ADAPT were not parties to the
summary judgment motions in the district court. ADAPT’s motion
for voluntary dismissal was granted by the district court on
February 18, 1994.
5
The essential facts surrounding this controversy are not in
dispute. They are contained in an Amended Stipulation of Facts
submitted to the district court in January of 1994.
DPW operates two different programs that provide physically
disabled persons with assistance in daily living. DPW funds
nursing home residence through the Medical Assistance program
(“Medicaid”), and it operates an “attendant care program” under
62 Pa. Cons. Stat. Ann. §§ 3051-3055 (the “Care Act”). The
attendant care program provides “[t]hose basic and ancillary
services which enable an individual [with physical disabilities]
to live in his[/her] home and community rather than in an
institution and to carry out functions of daily living, self care
and mobility.” 62 Pa. Cons. Stat. Ann. §§ 3052, 3054. DPW's
average cost of caring for a person in a nursing home is $45,000
per year. The Commonwealth pays 44% of this amount ($19,800) and
the difference ($24,200) is paid by the federal government.
DPW’s average cost of caring for a person in the attendant care
program is $10,500 per year. That amount is totally borne by the
Commonwealth.
Homemaker Service of the Metropolitan Area, Inc. (“HSMA")
contracts with DPW to operate an attendant care program. “The
[s]ervice [provided by HSMA] consists of those basic and
ancillary services which enable eligible individuals to live in
their own homes and communities rather than in institutions and
to carry out functions of daily living, self-care and mobility.”
Amended Stipulation of Facts, ¶ 35. The program thus allows
eligible individuals: “1. [t]o live in the least restrictive
environment as independently as possible; 2. [t]o remain in their
homes and to prevent their inappropriate institutionalization. .
. .” Id. at ¶36.
In 1993, HSMA evaluated Idell S. and determined that she was
eligible for attendant care services. However, because of a lack
of funding, she was placed on a waiting list for that program and
continues living in a nursing home, separated from her children.
The parties agree that if Idell S. were enrolled in the attendant
care program, nursing home care would be inappropriate.6 Except
for access to skilled nursing care which she neither needs nor
wants, Idell S. receives the same kind of services in the nursing
home that the attendant care program would provide. “DPW has not
applied for reimbursement under the Medical Assistance statute
for personal care/attendant care services in the community,”
Amended Stipulation of Facts ¶41, nor has it “requested Medical
Assistance dollars be available for Attendant Care Services in
the Community.” Id. at ¶37. Consequently, the Commonwealth
continues to spend approximately $45,000 a year to keep Idell S.
confined in a nursing home rather then spend considerably less to
provide her with appropriate care in her own home.
Because she is required to receive services in a nursing
home, Idell S. has no contacts with non-disabled persons other
6
The parties have stipulated that “[t]he setting for the
provision of attendant care services appropriate to the needs of
Idell S. is in the community.” Amended Stipulation of Facts ¶29.
The parties further agree that “[w]ith attendant care services in
the community, nursing home care would not be appropriate for
Idell S.” Id., at ¶32.
than the staff of the nursing home and visits from her two
children. Idell S. claims that this violates Title II of the ADA.
III.
The standard of review applicable to a grant of summary
judgment is plenary. Bixler v. Central Pa. Teamsters Health &
Welfare Fund, 12 F.3d 1292, 1297 (3d Cir. 1993). "On review, the
appellate court is required to apply the same test the district
court should have utilized initially." Goodman v. Mead Johnson &
Co., 535 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S.
1038 (1977). A motion for summary judgment shall be granted if
the court determines "that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law." Fed. R. Civ. P. 56(c). The district court's
interpretation of a federal regulation is a question of law
subject to plenary review. ADAPT v. Skinner, 881 F.2d 1184, 1191
n. 6 (3d Cir. 1989).
The district court ruled that Idell S. was
[d]enied attendant care services because of a
lack of funds. [The record] does not
demonstrate that [she has] been denied
funding for attendant care services because
[she] is disabled. [Her] failure to show
that [she] has been excluded from the
attendant care services program on the basis
of [her] disability is fatal to [her] claim.
Memorandum Opinion at 11. We disagree.
A.
In order to appreciate the scope of the ADA and its
attendant regulations, it is necessary to examine the
circumstances leading to its enactment. Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794, was the first broad
federal statute aimed at eradicating discrimination against
individuals with disabilities.7 “Section 504 of the
Rehabilitation Act of 1973, [is] commonly known as the civil
rights bill of the disabled.” ADAPT v. Skinner, 881 F.2d at 1187.
Section 504 now reads in relevant part:
No otherwise qualified individual with a
disability...shall, solely by reason of her
or his disability, be excluded from the
participation in, be denied the benefits of,
or be subjected to discrimination under any
program or activity receiving Federal
financial assistance....
29 U.S.C. § 794 (Supp. 1994).8 Section 504's sponsors described
it as a response to "’previous societal neglect’" and introduced
7
The law developed under section 504 of the Rehabilitation
Act is applicable to Title II of the ADA. See, Easley v. Snider,
36 F.3d 297 (3d. Cir. 1994). See also, 28 C.F.R. § 35.103("[T]his part [applying to the ADA] shall not be construed to
apply a lesser standard than the standards applied under title V
of the Rehabilitation Act of 1973 (29 U.S.C. 791)").
8
The general prohibition against disability-based
discrimination contained in §504 was first proposed in the 92nd
Congress as an amendment to Title VI of the Civil Rights Act of
1964, 42 U.S.C. § 2000d et seq. Although it was ultimately
enacted by the 93rd Congress as part of a pending Vocational
Rehabilitation Act, its language was patterned after other civil
rights statutes. Alexander v. Choate, 469 U.S. 287, 296 n. 13
(1985). The language of section 504 is virtually identical to
that of section 601 of Title VI of the Civil Rights Act of 1964
that bars discrimination based upon race, color or national
origin in federally-assisted programs. Consolidated Rail Corp.
v. Darrone, 465 U.S. 624, 626 (1984).
it to rectify “the country’s ‘shameful oversights’ which caused
the handicapped to live among society ‘shunted aside, hidden and
ignored.’" Alexander v. Choate, 469 U.S. 287, 296 (1985).
On April 26, 1976 then-President Gerald Ford signed
Executive Order No. 11914, 3 C.F.R. 117 (1977), which authorized
the Department of Health, Education and Welfare to coordinate
enforcement of section 504 and which required the Secretary of
HEW to promulgate regulations for enforcement.9 Subsequently,
HEW's section 504 rulemaking and enforcement authority was
transferred to the Department of Health and Human Services
(“HHS”). See 20 U.S.C. § 3508.
On November 2, 1980, President Carter signed Executive Order
No. 12250, 45 Fed. Reg. 72995, entitled "Leadership and
Coordination of Nondiscrimination Laws". That Executive Order
transferred HHS’s coordination and enforcement authority to the
Attorney General. Section 1-105 of that Executive Order provided
As originally enacted, section 504 referred to a
"handicapped" individual being discriminated against solely by
reason of a "handicap". The change in nomenclature from
“handicap” to “disability” reflects Congress’ awareness that
individuals with disabilities find the term “handicapped"
objectionable. Burgdorf, The Americans with Disabilities Act:
Analysis and Implication of a Second-Generation Civil Rights
Statute, 26 Harv. C.R. - C.L. L.Rev. 413, 522 n. 7 (1991).
9
The Rehabilitation Act did not mandate that any
regulations be promulgated. Accordingly the Department of Health,
Education and Welfare (now the Department of Health and Human
Services), did not promulgate any regulations to implement that
Act. Southeastern Community College v. Davis, 442 U.S. 397, 404
n. 4 (1979).
that the HHS guidelines "shall be deemed to have been issued by
the Attorney General pursuant to this Order and shall continue in
effect until revoked or modified by the Attorney General."
Thereafter, the Department of Justice adopted the HHS
coordination and enforcement regulations and transferred them
from 45 C.F.R. part 84 to 28 C.F.R. part 41, 46 Fed. Reg. 40686.
(the “coordination regulations.") The section 504 coordination
regulations begin by stating that the purpose of 28 C.F.R. part
41 is to “implement Executive Order 12250, which requires the
Department of Justice to coordinate the implementation of section
504 of the Rehabilitation Act of 1973." 28 C.F.R. § 41.1. A
subsequent section requires all federal agencies to issue
regulations “to implement section 504 with respect to programs
and activities to which it provides assistance." 28 C.F.R. §
41.4. The coordination regulations contain a separate section
which lists a number of general prohibitions against disability-
based discrimination. 28 C.F.R. § 41.51. That section mandates
that all recipients of federal financial assistance “shall
administer programs and activities in the most integrated setting
appropriate to the needs of qualified handicapped persons." 28
C.F.R. § 41.51(d).
Although Section 504 has been called “the cornerstone of the
civil rights movement of the mobility-impaired", ADAPT v.
Skinner, 881 F.2d at 1205 (3d Cir. 1989) (concurring opinion),
its shortcomings and deficiencies quickly became apparent. See,
e.g., Cook, The Americans with Disabilities Act: The Move to
Integration, 64 Temp. L. Rev. 393, 394-408 (1991) (The
Rehabilitation Act and its regulations have been practically a
dead letter as a remedy for segregated public services). One
commentator has written that the weaknesses of section 504 arise
from its statutory language,10 the limited extent of its
coverage, inadequate enforcement mechanisms and erratic judicial
interpretations. Burgdorf, The Americans with Disabilities Act:
Analysis and Implications of a Second-Generation Civil Rights
Statute, 26 Harv. C.R. - C.L. L. Rev. 413, 431 (1991).
Toward the end of the 1980's the United States Senate and
the House of Representatives both recognized that then current
laws were "inadequate" to combat "the pervasive problems of
discrimination that people with disabilities are facing." S.
Rep. No. 116, 101st Cong., 1st Sess. 18 (1989); H.R. Rep. No. 485
(II), 101st Cong., 2d Sess. 47 (1990). The Senate recognized the
need for "omnibus civil rights legislation" for the disabled. S.
Rep. No. 116, 101st Cong., 1st Sess. 19 (1989). Similarly, the
House addressed the need for legislation that “will finally set
in place the necessary civil rights protections for people with
disabilities." H. R. Rep. No. 485 (II), 101st Cong., 2d Sess. 40
(1990). Both branches of Congress concluded:
[T]here is a compelling need to provide a
clear and comprehensive national mandate for
10
We have also noted that section 504 "is both ambiguous
and lacking in specifics." Disabled in Action of Pennsylvania
v.Sykes, 833 F.2d 1113, 1117 (3d Cir. 1987), cert. denied, ___
U.S. ___, 108 S.Ct. 1293 (1988).
the elimination of discrimination against
individuals with disabilities and for the
integration of persons with disabilities into
the economic and social mainstream of
American life. Further, there is a need to
provide clear, strong, consistent,
enforceable standards addressing
discrimination against individuals with
disabilities.
S. Rep. No. 116, 20; H. R. Rep. No. 485 (II), 50 (emphasis
added). It was against this backdrop that the ADA was enacted.11
B.
Title II of the ADA, 42 U.S.C. §§ 12131-12134, incorporates
the "non-discrimination principles" of section 504 of the
Rehabilitation Act12 and extends them to state and local
governments. Easley v. Snider, 36 F.3d 297, 300 (3d Cir. 1994).
Section 202 of Title II provides:
[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 be
subjected to discrimination by any such
entity.
42 U.S.C. § 12132. The Act directs the Attorney General to
promulgate regulations necessary to implement Title II. See 42
U.S.C. § 12134(a). The Act further commands that those
regulations “be consistent with this chapter and with the
coordination regulations under part 41 of title 28, Code of
11
For a concise history of the ADA’s “tortuous legislative
journey", see Jones, Overview and Essential Requirements of the
Americans with Disabilities Act, 64 Temp. L. Rev. 471, 472-475
(1991).
12
See 28 C.F.R. § 28.103.
Federal Regulations . . . applicable . . . [under §504 of the
Rehabilitation Act of 1973].” 42 U.S.C. § 12134(b). Accordingly,
the regulations that the Department of Justice promulgated under
Title II are patterned after the section 504 coordination
regulations.
Because Title II was enacted with broad language and
directed the Department of Justice to promulgate regulations as
set forth above, the regulations which the Department promulgated
are entitled to substantial deference. Blum v. Bacon, 457 U.S.
132, 141 (1982). ("[T]he interpretation of [the] agency charged
with the administration of [this] statute is entitled to
substantial deference.") "[C]onsiderable weight should be
accorded to an executive department's construction of a statutory
scheme it is entrusted to administer." Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 844
(1984). Unless the regulations are “arbitrary, capricious or
manifestly contrary to the statute", the agency's regulations are
“given controlling weight". Chevron, U.S.A., Inc., 467 U.S. at
844.
Moreover, because Congress mandated that the ADA regulations
be patterned after the section 504 coordination regulations, the
former regulations have the force of law. When Congress re-
enacts a statute and voices its approval of an administrative
interpretation of that statute, that interpretation acquires the
force of law and courts are bound by the regulation. United
States v. Board of Comm'rs of Sheffield, Alabama, 435 U.S. 110,
134 (1978). The same is true when Congress agrees with an
administrative interpretation of a statute which Congress is re-
enacting. See Don E. Williams Co. v. Commissioner, 429 U.S. 569,
574-577 (1977). Although Title II of the ADA is not a re-
enactment of section 504, it does extend section 504's anti-
discrimination principles to public entities. Furthermore, the
legislative history of the ADA shows that Congress agreed with
the coordination regulations promulgated under section 504. See,
e.g., S. Rep. No. 116, 101st Cong., 1st Sess. 44 (1989) ("The
first purpose of [Title II] is to make applicable the prohibition
against discrimination on the basis of disability, currently set
out in regulations implementing section 504 of the Rehabilitation
Act of 1973, to. . . state and local governments. . . . "); H.R.
Rep. No. 485 (III), 101st Cong., 2d. Sess. 50. ("The general
prohibitions set forth in the section 504 regulations are
applicable to all programs and activities in Title II").
Idell S.’s challenge to DPW’s treatment of her is based
upon 28 C.F.R. § 35.130(d). That ADA regulation states that: “A
public entity shall administer services, programs, and activities
in the most integrated setting appropriate to the needs of
qualified individuals with disabilities.” This regulation is
almost identical to the section 504 integration regulation which
has been in effect since 1981. See 28 C.F.R. § 41.51(d)
(1981).13 As Congress has voiced its approval of that
coordination regulation, 28 C.F.R. § 130.35(d) has the force of
law.
C.
In enacting the ADA, Congress found that "[h]istorically,
society has tended to isolate and segregate individuals with
disabilities, and...such forms of discrimination...continue to be
a serious and pervasive social problem." 42 U.S.C. § 12101(a)(2)
(emphasis added). Congress also concluded that “[i]ndividuals
with disabilities continually encounter various forms of
discrimination, including. . . segregation. . . .", 42 U.S.C.
§12101(a)(5) (emphasis added). The House Report on the ADA noted
that: "Unlike the other titles in this Act, title II does not
list all of the forms of discrimination that the title is
intended to prohibit. Therefore, the purpose of [section 204] is
to direct the Attorney General to issue regulations setting forth
the forms of discrimination prohibited." H.R. Rep. No. 485
(III), 101st Cong., 2d Sess., 52 (1990) (emphasis added).
In furtherance of the objective of eliminating
discrimination against the disabled, Congress stated that “the
Nation’s proper goals regarding individuals with disabilities are
13
The section 504 integration regulation had been in effect
for 8 years when, in 1989, the 101st Congress began holding
hearings on the proposed ADA.
to assure equality of opportunity, full participation,
independent living, and economic self-sufficiency for such
individuals[.]” 42 U.S.C. §12101(a)(8) (emphasis added).
Similarly, in response to its mandate, the Department of Justice
stated “[i]ntegration is fundamental to the purposes of the
Americans with Disabilities Act.” 28 C.F.R. Part 35, App. A. §
35.130.14 Accordingly, the integration mandate of § 35.130(d) is
contained under 28 C.F.R. § 35.130 which is entitled “[g]eneral
prohibitions against discrimination.”
Thus, the ADA and its attendant regulations clearly define
unnecessary segregation as a form of illegal discrimination
against the disabled.15 Accordingly, the district court erred in
holding that the applicable provisions of the ADA “may not be
14
We note that this is consistent with the Fair Housing Act
of 1988, 52 U.S.C. §3604(f), another predecessor of the ADA. In
enacting that act, the House Judiciary Committee stated "[t]he
Fair Housing Amendments Act, like Section 504 of the
Rehabilitation Act of 1973, as amended, is a clear pronouncement
of a national commitment to end the unnecessary exclusion of
persons with handicaps from the American mainstream." H. Rep. No.
711, 100th Cong., 2d Sess., 18 (1988), reprinted in 1988
U.S.C.C.A.N. 2173, 2179 (emphasis added; footnote omitted).
15
Even if it could be argued that the Act and its
regulations are ambiguous on this point, the heading of the
regulation at issue here, and the legislative history of the ADA
confirm that Congress intended to define unnecessary segregation
of the disabled as a form of illegal discrimination. See Crandon
v. United States, 494 U.S. 152, 158 (1990) (Where there is
ambiguity "[i]n determining the meaning of [a] statute, we look
not only to the particular statutory language, but to the design
of the statute as a whole and to its object and policy."); See
also INS v. Center for Immigrants' Rights, U.S. .
112 S. Ct. 551, 556 (1991) (the title of a regulation or section
is relevant to its interpretation).
invoked unless there is first a finding of discrimination."
Memorandum Opinion at 12.
D.
In reaching its conclusion, the district court relied in
large part upon Williams v. Secretary of the Executive Office of
Human Services, 609 N.E.2d 447 (Ma. 1993).16 In Williams, the
Massachusetts Supreme Court held, inter alia, that the ADA does
not require a specific proportion of that state’s mental health
service placements to be in integrated housing. The court
stated:
The focus of Federal disability
discrimination statutes is to address
discrimination in relation to nondisabled
persons, rather than to eliminate all
differences in levels or proportions of
resources allocated and services provided to
individuals with differing types of
disabilities. In other words, the purpose of
the ADA is to provide an equal opportunity
for disabled citizens.
Williams, 609 N.E.2d at 559. (citations omitted).
We are not persuaded by the analysis in Williams. That
court based its decision in part upon our own decision in Clark
v. Cohen 794 F.2d 79 (3rd Cir. 1986), cert denied, 479 U.S. 96216
The district court also cited Pinnock v.
International House of Pancakes, 844 F.Supp. 574, 582-3 (S.D. Ca.
1993), to support its ruling that 28 C.F.R. § 130(d) is not
applicable unless there is a specific finding of discrimination.
Id. at 12. However, Pinnock concerned an action under Title III
of the ADA (public accommodations) and the discussion cited in
the district court's opinion dealt with the Title III integration
regulation which the Pinnock court held is "intended to prevent
segregation based on fears and stereotypes about persons with
disabilities." Id. Idell S.'s suit does not implicate Title III.
(1986) and the Supreme Court’s decision in Alexander v. Choate,
supra. Our holding in Clark is not based upon the ADA nor
section 504, but upon the Due Process Clause of the Fourteenth
Amendment. There, a forty-five year old, mentally retarded woman
had been committed to a state-run mental institution since she
was fifteen years old. She filed a complaint against the
Commonwealth of Pennsylvania and the County of Philadelphia
alleging various Constitutional violations as well as a violation
of section 504 of the Rehabilitation Act. She alleged that her
confinement was illegal and sought placement in a community-
living arrangement supervised by the County of Philadelphia.
Clark based her Rehabilitation Act claim upon the fact that the
Commonwealth was providing community living arrangements to
persons with disabilities similar to hers while requiring her to
remain in an institution.
The district court ruled that Clark had not established
disability-based discrimination, but ruled that her confinement
was unconstitutional.17 619 F. Supp. at 696-705. In affirming
the district court’s judgment we stated “[s]ection 504 prohibits
discrimination against the handicapped in federally funded
programs[,] [i]t imposes no affirmative obligations on the states
to furnish services." Clark v. Cohen, 794 F. 2d at 85, n.3.
However, we were not there concerned with the integration mandate
17
Clark had been continuously confined even though the
responsible professionals at the institution admitted that her
condition did not warrant confinement, and her case had never
been reviewed by anyone with authority to release her.
of the ADA or the Rehabilitation Act. Plaintiff in Clark relied
primarily upon section 504 and 45 C.F.R. §§ 84.4(b)(1)(i)-(iv).
The prohibitions contained in the later regulations are under a
regulation which states "Discriminatory actions prohibited." 45
U.S.C. § 84.4(b). That regulation does not state that the
actions set forth are prohibited per se. Rather, it states that
recipients of federal funds may not engage in the enumerated acts
"on the basis of handicap." 45 U.S.C §84.4(b)(1). Thus, the
section 504 inquiry in Clark had to include a determination of
the basis for the allegedly discriminatory actions. The language
of 28 C.F.R. § 35.130(d) is very different.
In addition, we note that the court in Williams was troubled
by difficulties of proof that are not present here. The
plaintiffs in Williams had attempted to use a statistical
analysis to establish that disabled persons were more likely to
be adversely affected by the state’s policy than non-disabled
persons. The court rejected that proof stating:
The plaintiffs’ use of a system-wide
percentage of DMH clients . . . ignores the
fact that the ADA does not mandate particular
system-wide percentages for allocations of
community placements. Further, the
plaintiffs’ figures did not show that any
particular client’s placement was
inappropriate, or that they themselves were
inappropriately placed in a segregated
setting. . . A mere percentage, standing
alone, does not establish a presumption of
inappropriate placement.
Id., at 414 Mass. 551, 557-8, 609 N.E.2d. 447, 453. We encounter
no such problem as the parties have stipulated that Idell S.’s
placement would be inappropriate if there was an opening in the
attendant care program.18
The court in Williams was also troubled by pragmatic
concerns of granting relief. The court stated that "any
interpretation of the ADA must consider the same practicalities
that the United States Supreme Court acknowledged in its
examination of the Federal Rehabilitation Act. See, e.g.
Alexander v. Choate, . . . ". Id. at 557, 453 (citations
omitted). Choate did not involve 28 C.F.R. § 35.130(d). The
claim there was based upon plaintiffs’ assertion that Tennessee’s
planned cutbacks in Medicaid reimbursement for in-patient
hospital stays would disproportionately disadvantage handicapped
persons in violation of section 504. However, to the extent that
Choate is relevant to our analysis, it supports our holding that
Congress did not intend to condition the protection of the ADA
upon a finding of “discrimination”.
In Choate, the Supreme Court emphasized the factors which
led to enactment of section 504.
Discrimination against the handicapped was
perceived by Congress to be most often the
product, not of invidious animus, but rather
of thoughtfulness and indifference -- of
18
The precise question raised by Idell S. has not
previously been decided by an appellate court. Similarly, the
cases from other circuits that DPW relies upon to support its
assertion that neither §504 nor Title II of the ADA require
community care were not decided on the basis of 28 C.F.R. §
35.130(d). Brief of Appellee, at 10-11.
benign neglect. Thus, Representative Vanik,
introducing the predecessor to § 504 in the
House described the treatment of the
handicapped as one of the country’s ‘shameful
oversights’ which caused the handicapped to
live among society ‘shunted aside, hidden,
and ignored.’ Similarly, Senator Humphrey . .
. asserted that, ‘we can no longer tolerate
the invisibility of the handicapped in
America. . . .’ And Senator Cranston . . .
described the Act as a response to ‘previous
societal neglect’ . . . Federal agencies and
commentators on the plight of the handicapped
similarly have found that discrimination
against the handicapped is primarily the
result of apathetic attitudes rather than
affirmative animus.
469 U.S. at 295 (emphasis added) (citations and footnotes
omitted).19
Because the ADA evolved from an attempt to remedy the
effects of “benign neglect” resulting from the “invisibility” of
the disabled, Congress could not have intended to limit the Act’s
protections and prohibitions to circumstances involving
deliberate discrimination. Such discrimination arises from
“affirmative animus” which was not the focus of the ADA or
section 504. The Supreme court elaborates upon this distinction
noting that, although discrimination against the disabled
normally results from “thoughtfulness” and “indifference”, not
“invidious animus”, such “animus” did exist. 469 U.S. at 295 at
n.12. (“To be sure, well-cataloged instances of invidious
19
The court ruled that the challenged cutbacks were neutral
on their face and that, therefore, plaintiffs could not recover.
However, the court noted that a plaintiff need not establish that
there has been an intent to discriminate in order to prevail
under section 504. 469 U.S. at 295-297.
discrimination against the handicapped do exist”). However,
that was not the focus of section 504, or the ADA. Rather, the
ADA attempts to eliminate the effects of that “benign neglect,"
“apathy," and “indifference." The 504 coordination regulations,
and the ADA “make clear that the unnecessary segregation of
individuals with disabilities in the provision of public services
is itself a form of discrimination within the meaning of those
statutes, independent of the discrimination that arises when
individuals with disabilities receive different services than
those provided to individuals without disabilities.” Brief of
Amicus at 7.
The ADA is intended to insure that qualified individuals
receive services in a manner consistent with basic human dignity
rather than a manner which shunts them aside, hides, and ignores
them.20 “[M]uch of the conduct that Congress sought to alter in
passing the Rehabilitation Act [and the ADA] would be difficult
if not impossible to reach were the Act[s] construed to proscribe
only conduct fueled by a discriminatory intent.” Alexander v.
Choate, 469 U.S. at 296-7. Thus, we will not eviscerate the ADA
by conditioning its protections upon a finding of intentional or
overt “discrimination.”
20
However, as discussed infra, the Act does not require
fundamental changes in the nature of a service or program.
IV.
DPW quotes Traynor v. Turnage, 485 U.S. 535, 548 (1988) to
argue that there can be no improper discrimination here because
the services at issue are only provided to persons with
disabilities. See Brief of Appellee at 25-6. However, Traynor
is easily distinguished. Traynor concerned the legality of 38
U.S.C.A. § 1662 which allowed for an extension of time to use
veteran’s benefits if a disability precluded the veteran from
using the benefits within the time frame established by law.
However, the veteran only qualified if he/she could establish “a
physical or mental disorder which was not the result of [his/her]
own willful misconduct.” Id. at 535. Traynor was an honorably
discharged veteran who suffered from alcoholism unrelated to any
psychiatric disorder. Under applicable V.A. regulations, such
alcoholism was defined as “willful misconduct” thus precluding
him from relying upon his “disorder” to enlarge the period of
time that he could use his benefits. Traynor challenged this
limitation on behalf of himself, and other similarly situated
veterans.
In denying the claim, the court noted that section 504 had
been part of the amendments to the Rehabilitation Act which were
passed in 1978 and which extended the scope of that legislation
to “any program or activity conducted by any Executive Agency.”
Id. at 547. The court noted that
petitioners can prevail under the Rehab-
ilitation Act claim only if the 1978
legislation can be deemed to have implicitly
repealed the willful misconduct provision of
the 1977 legislation or forbade the Veterans’
Administration to classify primary alcoholism
as willful misconduct. They must thereby
overcome the cardinal rule. . . that repeals
by implication are not favored.
Id. (citations and internal quotes omitted). The court reasoned
that it was not at liberty to assume that the subsequent
enactment of the Rehabilitation Act implicitly repealed the prior
act unless “such a construction is absolutely necessary . . . in
order that [the] words [of the latter statute] shall have any
meaning at all.” Id. (brackets in original). These two
enactments were “capable of co-existence” as the “willful
misconduct” provision did not undermine the central purpose of
section 504. That purpose was to “assure that handicapped
individuals receive ‘evenhanded treatment’ in relation to
nonhandicapped individuals.” Id. at 548 (citing Alexander v.
Choate).
The court then noted that the program at issue did not treat
handicapped persons less favorably than nonhandicapped persons as
only handicapped persons could apply for an extension of time.
“In other words § 1662(a)(1) merely provides a special benefit to
disabled veterans who bear no responsibility for their
disabilities that is not provided to other disabled veterans or
to any able-bodied veterans.” Id. The court then stated
“[t]here is nothing in the Rehabilitation Act that requires that
any benefit extended to one category of handicapped persons also
be extended to all other categories of handicapped persons.” Id.
However, the court was not concerned with the application of the
integration mandate, or anything analogous to it, and the holding
is not germane to our analysis. As noted above, Congress has
stated that “discrimination against individuals with disabilities
persists in such critical areas as . . . institutionalization.”
42 U.S.C. §12101 (3). If Congress were only concerned about
disparate treatment of the disabled as compared to their
nondisabled counterparts, this statement would be a non sequitur
as only disabled persons are institutionalized.
DPW also relies upon Johnson v. Thompson, 971 F.2d 1487,
1494 (10th Cir. 1992), cert. denied, 113 S.Ct. 1255 (1993).
("[W]here the handicapping condition is related to the
condition(s) being treated, it will rarely, if ever, be possible
to say. . . that a particular decision was ‘discriminatory’")
(citation omitted)). See Brief of Appellee at 7. Johnson is
also inapposite. There, the court was asked to hold that
different levels of medical treatment given to differently
classified infants affected with spina bifida violated section
504. The case did not involve any claim that the integration
mandate of 504 or the ADA had been violated.21
DPW also attempts to defeat Idell S.’s claim by labelling it
a claim for “community care” or “deinstitutionalization” --
21
See Martin v. Voinovich, 840 F. Supp. 1175, 1191-92 (S.D.
Ohio 1993) (Under §504 and the ADA, discrimination between people
with different disabilities may be actionable).
something which the ADA does not require.22 See Brief of Appellee
at 10. Idell S. is not asserting a right to community care or
deinstitutionalization per se. She properly concedes that DPW is
under no obligation to provide her with any care at all. She is
merely claiming that, since she qualifies for DPW’s attendant
care program, DPW’s failure to provide those services in the
“most integrated setting appropriate” to her needs (without a
proper justification) violates the ADA.
V.
DPW’s obligation to provide appropriately integrated
services is not absolute as the ADA does not require that DPW
make fundamental alterations in its program.
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
service, program, or activity
28 C.F.R. § 35.130(b)(7). In Southeastern Community College v.
Davis, 442 U.S. 397 (1979), and Alexander v. Choate, supra, the
Supreme Court attempted to define the limits of the requirements
under the ADA.
In Southeastern, Southeastern Community College refused to
admit an applicant to its nursing school program because of her
22
See Pennhurst State School and Hospital v. Halderman, 451
U.S. 1, 24 (1981) (deinstitutionalization involves "massive"
changes in a state's programs and is not required absent a clear
statutory command).
hearing impairment. The college argued that a registered nurse
had to meet certain physical requirements, and asserted that
Davis’ disability compromised her ability to effectively
participate in critical training programs and safely care for
patients. Davis countered that section 504 required that the
school take certain measures to allow her to enjoy the benefits
of the nursing program. The Court disagreed and held that
section 504 imposes no obligation to engage in “affirmative
action.” Id. at 411. In Choate, the Court explained that
“affirmative action” as used in Davis "[r]eferred to those
‘changes,' ‘adjustments,' or ‘modifications' to existing programs
that would be ‘substantial' or that would constitute ‘fundamental
alteration[s]' in the nature of a program . . .,' rather than to
those changes that would be reasonable accommodations."
(citations omitted). Id. at 300 n. 20.
In attempting to discern what is required
by the language of section 504, we must view
it in light of two countervailing legislative
concerns: (1) effectuation of the statute’s
objectives of assisting the handicapped; and
(2) the need to impose reasonable boundaries
in accomplishing this legislative purpose.
See Alexander v. Choate.
ADAPT v. Skinner, 881 F.2d at 1191. “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.” Easely v. Snider, 36
F.3d at 305.
Here, DPW agrees that “the most integrated setting
appropriate to [Idell S.]” is her home but argues that it cannot
comply with Idell S.'s request for the “most integrated services
appropriate" absent a fundamental alteration of its program.
Brief of Appellee, at 13-17. The only explanation DPW has
offered for this position is its assertion that funding for
nursing home and attendant care for fiscal year 1993-1994 has
already been appropriated by the General Assembly of Pennsylvania
and that it cannot, under state constitutional law, shift funds
from the nursing care appropriation to attendant care. Brief of
Appellee, at 14-15. However, Idell S. is not asking that DPW
alter its requirements for admission to the program, nor is she
requesting that the substance of the program be altered to
accommodate her.23 Even if we assume that DPW cannot (or will
not) cause the necessary shift of funds under its current
procedures and practices, it is clear from this record that
providing attendant care services to Idell S. in her home would
not be a fundamental alteration of the attendant care program or
the nursing home program.
As previously noted, DPW administers its attendant care
program under the Care Act, 62 Pa. Stat. Ann. § 3052 et seq.
(1994). That Act states:
23
See Easley v. Snider, supra (The ADA does not require
that the Commonwealth extend its attendant care services to
physically disabled individuals who were not mentally alert as
doing so would result in an unreasonable modification of the
program).
The General Assembly declares it is the
policy of this Commonwealth that:
(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.
We have previously noted that the attendant care program
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
[c]are 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."
Easley, 36 F.3d at 304. This is remarkably similar to the policy
and purpose of the ADA in general, and 28 C.F.R. § 35.130(d) in
particular. We fail to see how compliance with 28 C.F.R. §
35.130(d) requires DPW to fundamentally alter its attendant care
program. Nor do we perceive how the requested moderation would
place an undue burden on DPW. On the contrary, the relief that
Idell S. is requesting merely requires DPW to fulfill its own
obligations under state law. This is not “unreasonable."
As with Section 504 of the Rehabilitation
Act, integrated services are essential to
accomplishing the purposes of title II [of
the ADA]. As stated by Judge Mansmann in
Adapt v. Skinner, the goal [is to] eradicate
the ‘invisibility of the handicapped'" . . .
[s]eparate-but-equal services do not
accomplish this central goal and should be
rejected.
The fact that it is more convenient, either
administratively or fiscally, to provide
services in a segregated manner, does not
constitute a valid justification for separate
or different services under Section 504 of
the Rehabilitation Act, or under [title II of
the ADA].
H. R. Rep. 485 (III), 101st Cong. 2d Sess. 50. reprinted in 1990
U.S.C.C.A.N. at 73, (emphasis added).
Ironically, DPW asserts a justification of administrative
convenience to resist an accommodation which would save an
average of $34,500 per year, would allow Idell S. to live at home
with her children, and which would not require a single
substantive change in its attendant care or nursing home
programs. DPW’s resistance to such an accommodation is totally
inconsistent with Congress’ pronouncement that “[t]he Nation's
proper goals regarding individuals with disabilities are to
assure equality of opportunity, full participation, [and]
independent living. . . .” 42 U.S.C. § 12101(a)(8).
DPW asserts that it cannot change Idell S.'s care because
the nursing home and attendant care programs are currently funded
on two separate lines of its budget.24 The General
Appropriations Act. Act 1-A of 1993, at 104, 115. DPW asserts
that “[u]nder state constitutional law, Secretary Snider cannot
24
This, of course, does not explain why DPW has not changed
her status in a new budget year.
move funds from one line to another.” See Brief of Appellee at
14-15 (citing Ashbourne School v. Commonwealth, Department of
Education, 43 Pa. Com. 593, 403 A.2d 161 (1979). It is not now
up to us to invent a funding mechanism whereby the Commonwealth
can properly finance its nursing home and attendant care
programs. However, the ADA applies to the General Assembly of
Pennsylvania, and not just to DPW. DPW can not rely upon a
funding mechanism of the General Assembly to justify
administering its attendant care program in a manner that
discriminates and then argue that it can not comply with the ADA
without fundamentally altering its program. We dismissed a
similar contention in Delaware Valley Citizen’s Council for Clean
Air v. Commonwealth of Pennsylvania, 678 F.2d 470 (3rd Cir.
1982). There, plaintiff sought to hold certain members of the
executive branch of state government in contempt for failing to
comply with a consent decree in which the officials had agreed to
establish an admissions inspection program. After the consent
decree had been executed, the General Assembly enacted
legislation which specifically “prohibited the expenditure of
state funds by the executive branch for the implementation of
[that program]. Although the Governor vetoed the bill, the
legislature overrode the veto and enacted [the legislation] into
law.” Id. at 473-4. Thereafter, the Department of Transportation
“ceased all efforts toward implementing the [program].” Id.There, as here, the defendants relied upon Ashbourne, to argue
that their hands were tied by the power of appropriations vested
in the General Assembly. We rejected that position. “These
arguments disregard the fact that the Commonwealth itself was and
remains bound by the consent decree.” Delaware Valley Citizen’s
Council, 678 F.2d at 475. We stated:
Because the Commonwealth, including all its
branches, is bound by the decree, the
argument of inability to comply rings hollow.
Even if the executive branch defendants were
physically or legally incapable of complying
with the decree, those Commonwealth officials
sitting in the General Assembly certainly are
not incapable of insuring the Commonwealth’s
compliance.
678 F.2d at 476-6. The same applies here: since the
Commonwealth has chosen to provide services to Idell S. under the
ADA, it must do so in a manner which comports with the
requirements of that statute.
VI.
Generally, an appellate court reversing a grant of summary
judgment will not direct the district court to enter summary
judgment in favor of appellant because a genuine issue of
material fact will remain. First National Bank v. Lincoln
National Life Insurance Co., 824 F.2d 277, 281 (3d Cir. 1987).
However, when an appeal concerns only issues of law, we are free
to enter an order directing the district court to enter summary
judgment in favor of the appellant. Kreimer v. Bureau of Police
for the Town of Morristown, 958 F.2d 1242, 1250 (3d Cir. 1992).
Here, there are no genuine issues of material fact because
of the Amended Stipulation entered into by the parties. The only
issue that remains is the interpretation and application of the
ADA and 28 C.F.R. § 130.35(d). Accordingly, we will vacate the
order granting summary judgment in favor of defendant and remand
this case to the district court for entry of an order granting
summary judgment to Idell S. and against DPW.