No. 98-536
In the Supreme Court of the United States
OCTOBER TERM, 1998
TOMMY OLMSTEAD, COMMISSIONER,
GEORGIA DEPARTMENT OF HUMAN RESOURCES,
ET AL., PETITIONERS
v.
L.C., BY JONATHAN ZIMRING, GUARDIAN AD LITEM
AND NEXT FRIEND, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS
SETH P. WAXMAN
Solicitor General
Counsel of Record
BILL LANN LEE
Acting Assistant Attorney General
BARBARA D. UNDERWOOD
Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to the Solicitor
General
JESSICA DUNSAY SILVER
GREGORY B. FRIEL
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Title II-A of the Americans With Disabilities Act of 1990 (ADA), 42 U.S.C.
12132, provides that "no qualified individual with a disability shall,
by reason of such disability, * * * be subjected to discrimination by any
[public] entity." The Attorney General's "integration regulation,"
28 C.F.R. 35.130(d), provides that "a public entity shall administer
services, programs, and activities in the most integrated setting appropriate
to the needs of qualified individuals with disabilities." The Attorney
General interprets that regulation to require a State that offers treatment
to persons with disabilities to provide such treatment in a community setting
that offers opportunities for interaction with persons without disabilities,
rather than in an institution, when (1) the State's treatment professionals
have determined, in the exercise of reasonable professional judgment, that
community placement of the individual is appropriate, and (2) such a placement
would not require an unreasonable change in state policy or a fundamental
alteration in the nature of the State's treatment program. The question
presented is whether the regulation as so interpreted validly implements
the ADA.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-536
TOMMY OLMSTEAD, COMMISSIONER,
GEORGIA DEPARTMENT OF HUMAN RESOURCES,
ET AL., PETITIONERS
v.
L.C., BY JONATHAN ZIMRING, GUARDIAN AD LITEM
AND NEXT FRIEND, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS
INTEREST OF THE UNITED STATES
The Attorney General has authority to enforce Title II of the Americans
With Disabilities Act of 1990, 42 U.S.C. 12131 et seq. See 42 U.S.C. 12133.
In addition to that enforcement responsibility, Congress has directed the
Attorney General to issue regulations to set forth the forms of discrimination
prohibited by Title II. 42 U.S.C. 12134(a). Pursuant to that mandate, the
Attorney General has issued such regulations. See 28 C.F.R. Pt. 35. One
of those regulations requires a public entity to "administer services,
programs, and activities in the most integrated setting appropriate to the
needs of qualified individuals with disabilities." 28 C.F.R. 35.130(d).
The Attorney General has interpreted that regulation to require the State,
in some circumstances, to treat persons with disabilities in a community
setting rather than an institution. The validity of that interpretation
is at issue here. The United States participated as an amicus curiae in
this case in the court of appeals.
STATEMENT
1. Respondents L.C. and E.W. are mentally retarded individuals who also
have mental disorders. Pet. App. 32a-33a. Before the present litigation
began, L.C. and E.W. were voluntary patients at the Georgia Regional Hospital
at Atlanta (GRH-A) and were confined in a locked psychiatric unit. J.A.
2, 5, 45, 48, 62-63, 78-79. GRH-A is a large, state-run psychiatric institution
whose programs are designed primarily to stabilize individuals during the
acute phase of a mental illness so that treatment can be continued in the
community on an outpatient basis. J.A. 13, 48-49.
L.C. was most recently admitted to GRH-A in May 1992. J.A. 14, 51. By May
1993, L.C.'s psychiatric condition had stabilized, and petitioners and L.C.'s
treating physician agreed that she could appropriately be treated in a community
setting. J.A. 5, 46, 120, 205-207. L.C. nonetheless remained at GRH-A until
after the present litigation began in May 1995. In July 1995, petitioners
discharged L.C. to a state-run institution for treatment of persons with
mental retardation, and in February 1996, petitioners released L.C. to a
community-based program. Pet. App. 33a.
E.W. was most recently admitted to GRH-A in February 1995. J.A. 64, 80.
In March 1996, E.W.'s treating physician concluded that she could be appropriately
treated in the community. J.A. 88-89, 210-212. In that same year, a clinical
psychologist at GRH-A reached the same conclusion. J.A. 213-214; see also
J.A. 101. E.W. nonetheless remained institutionalized until a few months
after the district court issued its judgment in 1997, at which point she
was placed in a community-based program. Pet. App. 2a-3a n.2.
2. In 1995, L.C. filed suit against petitioners, alleging, inter alia, that
petitioners had violated Title II of the ADA and its implementing regulations
by failing to offer her treatment in a community-based residential program
after treatment professionals determined that such a placement was appropriate.
J.A. 26, 28; Pet. App. 31a. E.W. intervened, raising the same claim. J.A.
61-73. The district court granted summary judgment in part in favor of respondents.
Pet. App. 31a-42a. The court held that petitioners' refusal to place respondents
in a community-based program violated Title II of the ADA, which prohibits
a public entity from subjecting any qualified individual with a disability
to discrimination by reason of such disability, 42 U.S.C. 12132, as well
as the Title II integration regulation, 28 C.F.R. 35.130(d), which requires
a public entity to "administer services, programs, and activities in
the most integrated setting appropriate to the needs of qualified individuals
with disabilities." Pet. App. 37a-39a. The court rejected petitioners'
defense that they lacked funds to provide such placements to L.C. and E.W.
Id. at 38a-39a.
3. The court of appeals affirmed the district court's judgment, but remanded
for a reassessment of the State's cost-based defense. Pet. App. 1a-30a.
The court held that when "a disabled individual's treating professionals
find that a community-based placement is appropriate for that individual,
the ADA imposes a duty to provide treatment in a community setting,"
unless such a placement would require a "fundamental alteration"
in the State's treatment program. Id. at 21a-25a.
In reaching that conclusion, the court relied on the Attorney General's
Title II integration regulation. The court concluded that "the plain
language of § 35.130(d) prohibits a state from providing services to
individuals with disabilities in an unnecessarily segregated setting"
and that a State violates that mandate when "the State confines an
individual with a disability in an institutionalized setting when a community
placement is appropriate." Pet. App. 7a, 8a.
The court rejected petitioners' contention that the integration regulation
conflicts with the requirement in Title II that an individual must prove
discrimination by reason of a disability. The court noted that Congress
had instructed the Department of Justice to issue regulations that are consistent
with the coordination regulations issued under Section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. 794, and that one of those regulations requires integration
in terms that are substantially the same as those in Section 35.130(d).
Pet. App. 9a (citing 28 C.F.R. 41.51(d) (1997)). The court further concluded
that the integration regulation was consistent with Congress's specific
findings that Title II was intended to overcome discrimination in "institutionalization,"
and discrimination that takes the form of "segregation." Id. at
10a-11a (quoting 42 U.S.C. 12101(a)(3) and (5)). The court also determined
that "the legislative history makes clear that Congress considered
the provision of segregated services to individuals with disabilities a
form of discrimination prohibited by the ADA." Id. at 11a. The court
of appeals concluded that "because § 35.130(d) finds direct support
in the plain language of the ADA, its congressional findings, and the Act's
legislative history, we must apply it here." Id. at 12a.
The court held that, under Title II and its implementing regulations, a
State's duty to provide integrated services when a patient's care warrants
such services is not absolute. Pet. App. 25a. In reaching that conclusion,
the court relied on the Attorney General's "reasonable-modification"
regulation, which provides that "[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." Pet. App. 25a-26a
(quoting 28 C.F.R. 35.130(b)(7)).
The court concluded that the key question was whether petitioners had shown
that treating respondents in the community would cause a fundamental alteration
in their program. Pet. App. 26a. Resolving that question, the court concluded,
involves an assessment of several factors, including "whether treating
[respondents] would require additional expenditures and if so, whether the
State had met its burden of proving that those expenditures were unreasonable
in light of the State's mental health budget." Id. at 28a. Because
the district court had not addressed those questions, the court of appeals
remanded for further proceedings. Id. at 29a-30a.1
SUMMARY OF ARGUMENT
A. The Attorney General's Title II "integration regulation," 28
C.F.R. 35.130(d), provides that "[a] public entity shall administer
services * * * in the most integrated setting appropriate to the needs of
qualified individuals with disabilities." By its terms, the integration
regulation applies to all services administered by a public entity, including
those that are offered exclusively to persons with disabilities. The Attorney
General therefore interprets the regulation to require a State to provide
services to persons with disabilities in a community setting, rather than
in an institution, when a State's treatment professionals have determined,
in the exercise of reasoned professional judgment, that community placement
of the individual is appropriate. Because that interpretation accords with
the text of the regulation, it is entitled to controlling weight.
B. The Attorney General was warranted in concluding that the unjustified
segregation of persons in institutions, when community placement is appropriate,
constitutes a form of discrimination prohibited by Title II. In the text
of the ADA, Congress found that persons with disabilities suffer from various
forms of discrimination, including "segregation," and that discrimination
persists in several contexts, including "institutionalization,"
42 U.S.C. 12101(a)(3) and (5). Those findings demonstrate that Congress
understood the concept of discrimination under the ADA to include the unjustified
segregation of disabled persons in institutions. Equally important, Congress
instructed the Attorney General to adopt regulations that are consistent
with coordination regulations that had been issued by the Department of
Health, Education, and Welfare (HEW) to implement Section 504 of the Rehabilitation
Act, 29 U.S.C. 794. One of HEW's coordination regulations required integration
in substantially the same terms as the Attorney General's integration regulation.
Congress therefore virtually mandated the integration regulation at issue
here.
Congress had ample basis to conclude that the unjustified segregation of
persons in institutions constitutes a form of discrimination based on disability.
First, such segregation can stigmatize persons with disabilities as incapable
or unworthy of participating in community life. Second, such segregation
can result in a form of dissimilar treatment: Persons with disabilities
must give up participation in community life in order to receive the services
they need, while persons without disabilities can receive the services they
need without sacrificing that important interest. Finally, when persons
with disabilities must obtain the services they need in an institution,
they are effectively deprived of their right under the ADA to equal access
to other public services.
C. The integration regulation does not impose undue costs on the State.
By virtue of the Attorney General's "reasonable-modification"
regulation, 28 C.F.R. 35.130(b)(7), the integration obligation does not
apply when compliance would require an unreasonable change in state policy
or a fundamental alteration in the nature of the State's treatment program.
Costs have a bearing on those inquiries. Congress anticipated that the placement
of persons in the community, rather than in an institution, would not impose
undue costs. If a State can show that any additional costs of providing
placement in a community setting are unreasonably high in comparison to
a State's overall mental health budget, however, a State would not be required
to provide placement in a community setting.
ARGUMENT
THE ATTORNEY GENERAL REASONABLY INTERPRETED THE INTEGRATION REGULATION TO
PROHIBIT THE UNJUSTIFIED SEGREGATION OF PERSONS IN INSTITUTIONS, AND THE
REGULATION AS SO CONSTRUED FALLS WITHIN THE ATTORNEY GENERAL'S AUTHORITY
TO IMPLEMENT TITLE II
Title II, Part A of the ADA provides that "no qualified individual
with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any
such entity." 42 U.S.C. 12132. Unlike Titles I and III of the Act,
Title II-A does not spell out the forms of discrimination that are prohibited.
Compare 42 U.S.C. 12112 and 42 U.S.C. 12182(b). Instead, Congress directed
that "the Attorney General shall promulgate regulations in an accessible
format that implement this part." 42 U.S.C. 12134. That Section required
the Attorney General "to issue regulations setting forth the forms
of discrimination prohibited." H.R. Rep. No. 485, 101st Cong., 2d Sess.,
Pt. 3, at 52 (1990).
The Attorney General issued regulations in 1991. 28 C.F.R. Pt. 35. One of
those regulations, the integration regulation, provides that "[a] public
entity shall administer services, programs, and activities in the most integrated
setting appropriate to the needs of qualified individuals with disabilities."
28 C.F.R. 35.130(d). In the preamble to the regulations, the Attorney General
explained that "the most integrated setting" is "a setting
that enables individuals with disabilities to interact with non-disabled
persons to the fullest extent possible." 28 C.F.R. Pt. 35 App. A §
35.130, at 469 (1996).
The obligation set forth in the integration regulation is not absolute.
When compliance would require a change in state policy, the integration
obligation is subject to the reasonable-modification standard set forth
in 28 C.F.R. 35.130(b)(7). That regulation provides that "[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." Thus, a State must provide services to a person with
a disability in an integrated setting when appropriate to that person's
needs, unless it would require an unreasonable change in state policy or
fundamentally alter the program.
Consistent with its text, the Attorney General interprets the integration
regulation to require States, in certain circumstances, to place persons
with disabilities in a community setting that offers opportunities for interaction
with persons without disabilities, rather than in an institution, where
such opportunities are far more limited, if they exist at all. In particular,
when state treatment professionals determine, in the exercise of reasoned
professional judgment, that placement in a community setting is appropriate
(Youngberg v. Romeo, 457 U.S. 307, 323 (1982); see also School Bd. v. Arline,
480 U.S. 273, 288 (1987)), and such a placement would not require an unreasonable
change in state policy or a fundamental change in the State's treatment
program, a State must offer the individual an opportunity for placement
in a community setting.
Petitioners challenge the Attorney General's interpretation of the integration
regulation on two grounds. First, they argue that it reflects an impermissible
reading of the regulation itself. Second, they argue that it exceeds the
Attorney General's authority to define the forms of discrimination that
are prohibited by Title II. As we demonstrate below, both arguments are
without merit.
A. The Attorney General Has Reasonably Interpreted The Integration Regulation
To Prohibit The Unjustified Segregation Of Persons In Institutions
Petitioners contend (Br. 41-42) that the integration regulation applies
only to services that a State provides to non-disabled persons. That limitation,
however, cannot be found in the text of the regulation. The regulation facially
applies to all services administered by a public entity, including those
that are offered only to persons with disabilities. Under this Court's decisions,
an agency's interpretation of its own regulations is "controlling,"
unless it is "plainly erroneous" or "inconsistent with the
regulation." Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994).
Because the Attorney General's interpretation accords with the plain language
of the regulation, that deferential standard is satisfied.
Petitioners incorrectly assert (Br. 41-42) that the Attorney General originally
interpreted the integration regulation to apply only to those services that
are offered to non-disabled persons. As petitioners note (Br. 41), the Attorney
General has stated that requiring a disabled person to eat in the back of
a government cafeteria, or requiring a blind person to go on a special museum
tour rather than on the tour that is offered to the general public would
violate the integration regulation. See also Pet. Br. App. 18a-20a. But
the Attorney General never intimated that those are the only contexts in
which the integration regulation applies. When an agency adopts a regulation,
it has no obligation to list all conceivable examples of the contexts in
which the rule will apply. Indeed, such a requirement would be completely
unworkable. See Pennsylvania Dep't of Corrections v. Yeskey, 118 S. Ct.
1952, 1955-1956 (1998). Petitioners therefore err in treating the particular
examples discussed by the Attorney General as a limitation on the terms
of the regulation. See Thomas Jefferson Univ., 512 U.S. at 516.
Nor is there any merit to petitioners' suggestion (Br. 41-42) that the Attorney
General's interpretation of the regulation is not entitled to deference
because it was publicly articulated for the first time in a brief filed
in Helen L. v. DiDario, 46 F.3d 325 (3d Cir.), cert. denied, 516 U.S. 813
(1995). This Court rejected a similar contention in Auer v. Robbins, 519
U.S. 452 (1997). There, the Court deferred to an agency's interpretation
of its own regulation that appeared for the first time in a brief submitted
to the Court. Id. at 462-463. The Court explained that the Secretary's position
was not "a post-hoc rationalization advanced by an agency seeking to
defend past agency action against attack," and that there was "simply
no reason to suspect that the interpretation does not reflect the agency's
fair and considered judgment on the matter in question." Id. at 462.
Those requirements for deference are satisfied here. The Department of Justice
brief in Helen L. was not a post-hoc effort to defend a previous agency
action, but was instead a fair and considered judgment on the issue.
Thus, as the court of appeals concluded (Pet. App. 8a), the "express
terms of § 35.130(d), supported by the Attorney General's consistent
interpretation, plainly prohibit a state from treating individuals with
disabilities in a segregated environment, where a more integrated setting
would be appropriate."
B. The Attorney General Was Warranted In Concluding That The Unjustified
Segregation Of Persons In Institutions Constitutes A Form Of Discrimination
Based On Disability Prohibited By Title II
Because the Attorney General issued the integration regulation pursuant
to an express grant of authority to give content to the general statutory
prohibition against discrimination, it is entitled to "controlling
weight," unless it is "arbitrary, capricious, or manifestly contrary
to the statute." Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 844 (1984). This Court has also held that, "[a]s
the agency directed by Congress to issue implementing regulations, * * *
to render technical assistance explaining the responsibilities of covered
individuals and institutions, * * * and to enforce [the ADA] in court, *
* * the Department's views are entitled to deference." Bragdon v. Abbott,
118 S. Ct. 2196, 2209 (1998).
Petitioners contend that the Attorney General acted outside the permissible
limits of her authority to implement Title II. In particular, they argue
(Br. 21) that Title II's prohibition on "discrimination" based
on disability requires proof that similarly situated persons have been treated
differently, and that, when a State offers a service only to persons with
disabilities, such a showing of dissimilar treatment cannot be made. The
term "discrimination," however, does not have a single meaning;
its meaning therefore must be derived from the statutory context in which
it appears. See Alexander v. Choate, 469 U.S. 287 (1985) (Section 504 ban
on discrimination reaches practices that have the effect of denying meaningful
access to persons with disabilities); Southeastern Community College v.
Davis, 442 U.S. 397, 413 (1979) (refusal to make a reasonable modification
to accommodate persons with disabilities constitutes discrimination under
Section 504); Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 592 (1983)
(White, J.) (the term "discrimination" is "inherently"
ambiguous); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 284 (1978)
(Powell, J.) (the concept of discrimination "is susceptible of varying
interpretations"). The Attorney General was warranted in concluding
that, in the context of the ADA, "discrimination" based on disability
includes the unjustified segregation of a disabled person in an institution.
1. a. That statutory context includes the specific findings that Congress
enacted as part of the ADA. Among other things, Congress found that "historically,
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). It found that "individuals
with disabilities continually encounter various forms of discrimination,
including * * * segregation." 42 U.S.C. 12101(a)(5). And it found that
such discrimination persists in a variety of contexts, including "institutionalization."
42 U.S.C. 12101(a)(3). Those findings make clear that Congress understood
the concept of discrimination under the ADA to include the unjustified segregation
of disabled persons in institutions.
b. The genesis of Congress's findings supports that conclusion. The relevant
findings were drawn from the almost- identical findings made by the U.S.
Commission on Civil Rights in a report entitled Accommodating the Spectrum
of Individual Abilities (Clearing House Pub. No. 81, 1983). Compare id.
at 159 with 42 U.S.C. 12101(a)(2) and (3)). One section of the report includes
"institutionalization" among the areas in which discrimination
against persons with disabilities occurs. Accommodating the Spectrum of
Individual Abilities, supra, at 32-34. The report observed that "[i]nstitutionalization
almost by definition entails segregation and isolation." Ibid. The
report further noted that, while "there has been increasing acceptance
in recent years of the fact that most training, treatment, and habilitation
services can be better provided to handicapped people in small, community-based
facilities rather than in large, isolated institutions, * * * a great many
handicapped persons remain in segregative facilities." Id. at 34-35.
Another section of the report identifies "segregation" as a form
of discrimination based on disability, explaining that "[s]egregation
singles out handicapped people and separates them from the rest of society,
frequently as a condition for receiving some service or benefit." Accommodating
the Spectrum of Individual Abilities, supra, at 41. The report further states
that "[m]ental health and mental retardation institutions that house
residents in almost complete isolation from the non-handicapped community
are perhaps archetypal examples of segregation." Ibid.
c. The legislative debates and hearings confirm that Congress's findings
concerning "segregation" and "institutionalization"
reflect an understanding that the unjustified segregation of persons with
disabilities in institutions constitutes a form of disability-based discrimination.
Numerous statements attest to that understanding. E.g., 136 Cong. Rec. H2447
(daily ed. May 17, 1990) (statement of Rep. Miller) ("[I]t has been
our unwillingness to see all people with disabilities that has been the
greatest barrier to full and meaningful equality. Society has made them
invisible by shutting them away in segregated facilities."); 134 Cong.
Rec. S5116 (daily ed. Apr. 28, 1988) (statement of Sen. Simon) (persons
with disabilities "remain[] substantially hidden. They are hidden in
institutions. They are hidden in nursing homes. * * * Because they are hidden,
we too easily ignore the problem and the need for change."); 135 Cong.
Rec. S4986 (daily ed. May 9, 1989) (statement of Sen. Harkin) (a purpose
of the ADA is get disabled persons "out of institutions"); Americans
with Disabilities Act of 1989: Hearings on S. 933 Before the Senate Comm.
on Labor and Human Resources and the Subcomm. on the Handicapped, 101st
Cong., 1st Sess. 215 (1989) (statement of former Senator Weicker) ("For
years, this country has maintained a public policy of protectionism toward
people with disabilities. We have created monoliths of isolated care in
institutions and in segregated educational settings. It is that isolation
and segregation that has become the basis of the discrimination faced by
many disabled people today. Separate is not equal."); Oversight Hearing
on H.R. 4498, Americans with Disabilities Act of 1988 Before the Subcomm.
on Select Educ. of the House Comm. on Educ. and Labor, 100th Cong., 2d Sess.
193 (1988) (statement of Phillip Campbell, Ass'n for Retarded Citizens of
Mass.) ("Persons with mental retardation have experienced some of the
grossest examples of discrimination during the last 100 years. They have
been relegated to segregated congregate facilities across the Nation.").
2. Congress's understanding that Title II would prohibit the unjustified
segregation of persons in institutions is also reflected in its express
instruction to the Attorney General to promulgate regulations consistent
with (1) existing regulations under a related statute, and (2) the definitions
of discrimination that appear in other titles of the ADA. Congress specified,
42 U.S.C. 12134(b), that, "[e]xcept for 'program accessibility, existing
facilities', and 'communications', regulations under subsection (a) of this
section shall be consistent with this chapter and with the coordination
regulations under part 41 of title 28, Code of Federal Regulations (as promulgated
by the Department of Health, Education, and Welfare [HEW] on January 13,
1978), applicable to recipients of Federal financial assistance under section
794 of title 29 [Section 504 of the Rehabilitation Act]." That language
requires the Attorney General, in issuing regulations to enforce Title II,
to make the regulations consistent with other parts of "this chapter",
i.e., Titles I (employment) and III (public accommodations) of the ADA,
and with the coordination regulations that had been issued by HEW to enforce
Section 504 of the Rehabilitation Act.
In adopting the integration regulation, the Attorney General adhered to
that mandate. The integration regulation tracks a Section 504 coordination
regulation that provides that "[r]ecipients 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). The integration
regulation also parallels a requirement in Title III of the ADA, which provides
that "[g]oods, services, facilities, privileges, advantages, and accommodations
shall be afforded to an individual with a disability in the most integrated
setting appropriate to the needs of the individual." 42 U.S.C. 12182(b)(1)(B).
By requiring the Attorney General to adopt regulations "consistent"
with the HEW coordination regulations and with the ADA, Congress virtually
mandated the integration regulation at issue here.2
Moreover, like the Attorney General's integration regulation, HEW's comparable
coordination regulation and the requirement in Title III are not, by their
terms, limited to those services that are offered to persons without disabilities;
instead, they apply to all services that are offered. Nor is there any reason
to believe that Congress understood the regulation or the statutory provision
to contain an implicit limitation not found in the text. To the contrary,
in a 1984 statute Congress had previously used the term "integration"
in regard to individuals with developmental disabilities, and defined it
to include not only the opportunity for persons with disabilities to use
the same services and participate in the same activities as non-disabled
persons, 42 U.S.C. 6001(10)(A) (Supp. II 1984), now codified at 42 U.S.C.
6001(15)(A) and (C), but also "the residence by persons with developmental
disabilities in homes or home-like settings which are in proximity to community
resources, together with regular contact with nonhandicapped citizens in
their communities." 42 U.S.C. 6001(10)(B) (Supp. II 1984), now codified
at 42 U.S.C. 6001(15)(B). In light of Congress's mandate to formulate an
integration regulation, and Congress's understanding of that term, the Attorney
General was warranted in concluding that Congress viewed a State's unjustified
decision to place a disabled person in an institution, rather than in a
community setting, as a form of discrimination based on disability.
3. Congress had ample basis to conclude that such a decision constitutes
discrimination based on disability. Segregating persons with disabilities
into institutions when they can be appropriately placed in community settings
can have several distinct discriminatory effects. First, the unjustified
segregation of persons with disabilities can stigmatize them as incapable
or unworthy of participating in community life. See 136 Cong. Rec. H2603
(daily ed. May 22, 1990) (statement of Rep. Collins) ("To be segregated
is to be misunderstood, even feared," and "only by breaking down
barriers between people can we dispel the negative attitudes and myths that
are the main currency of oppression."). Segregation always has the
potential to engender or perpetuate negative attitudes, and when the segregation
is unnecessary for treatment purposes, it is especially likely to result
from and reinforce negative attitudes.
Second, the unjustified segregation of persons with disabilities into institutions
imposes a substantial burden on persons with disabilities that the State
does not impose on persons without disabilities: In order to obtain the
medical or therapeutic services that they need, persons with disabilities
must sacrifice their interest in community life, while persons without disabilities
can obtain the services from the State that they need without sacrificing
that important interest.
Finally, the unjustified segregation of persons with disabilities into institutions
can defeat the statutory requirement-not disputed by petitioners-that the
State make available to persons with disabilities the same services that
they provide to non-disabled persons. 42 U.S.C. 12132. When persons with
disabilities must obtain the services they need in an institution, rather
than in a community setting, they are effectively deprived of equal access
to parks, beaches, museums, and other similar public services.
4. The integration regulation's prohibition against unjustified segregation
of persons in institutions is well-designed to serve the important goals
that Congress sought to further through enactment of the ADA. In the text
of the Act, Congress stated that its goals "regarding individuals with
disabilities" were to "assure" not only "equality of
opportunity," but also "full participation, independent living,
and economic self-sufficiency for such individuals." 42 U.S.C. 12101(a)(8).
The Attorney General's integration regulation serves all those purposes,
while petitioners' interpretation of Title II does not.
Indeed, as Congress knew, the isolation of persons with disabilities can
breed fear and stereotypes about persons with disabilities, which in turn
can generate additional discrimination that spills over into other areas,
such as employment, public accommodations, and transportation. See 42 U.S.C.
12101(a)(5) (finding persistent discrimination in those areas); 42 U.S.C.
12101(a)(7) (finding that persons with disabilities face discrimination
as a result of "stereotypic assumptions"). The Attorney General
properly recognized, as did Congress, that this cycle of discrimination
could perpetuate itself indefinitely unless efforts were taken to increase
interaction between persons with disabilities and non-disabled persons.
The integration regulation promotes such interaction and thereby helps to
erode the negative stereotypes that continue to impede equality of opportunity.
Prohibiting unjustified segregation of persons in institutions thus goes
hand-in-hand with all the other portions of the ADA, including the barrier-removal
obligations, the reasonable-accommodation requirements, and the prohibitions
on denial of equal benefits and services. All those provisions promote the
common objective of integrating persons with disabilities into the mainstream
of society.
C. The Integration Regulation Does Not Intrude On The Professional Judgment
Of State Treatment Professionals And Does Not Impose Undue Costs On The
States
1. Petitioners mistakenly assert (Br. 38) that the integration regulation
intrudes on the treatment decisions of the State's health professionals.
The integration regulation does not require a State to provide a community
placement when the State's treatment professionals determine that such a
placement is not "appropriate," and that determination is based
on a reasonable professional judgment that is not affected by extraneous
considerations such as administrative convenience and costs. 28 C.F.R. 35.130(d);
see Youngberg, 457 U.S. at 323; Arline, 480 U.S. at 288. Petitioners' complaint
that the integration regulation interferes with state treatment policy has
a particularly hollow ring in this case, since the State's own treatment
professionals determined that the placement of respondents in a community
setting would be appropriate. See p. 2, supra. And Georgia law expresses
a preference for treatment in the most integrated environment appropriate.
Ga. Code Ann. § 37-4-121 (Mitchie 1995) ("It is the policy of
the state that the least restrictive alternative placement be secured for
every client at every stage of his habilitation. It shall be the duty of
the facility to assist the client in securing placement in noninstitutional
community facilities and programs.").
2. Petitioners are similarly mistaken in their assertion (Br. 13) that the
integration regulation imposes "massive" costs on the States.
As we have noted, the integration mandate does not apply when compliance
would require an unreasonable change in state policy or a fundamental alteration
in the nature of the State's treatment program. 28 C.F.R. 35.130(b)(7).
Costs have a bearing on those inquiries. As the court of appeals concluded
(Pet. App. 28a), if any additional costs of providing treatment in a community
setting, rather than an institution, were shown to be unreasonable in comparison
to a State's overall mental health budget, a State would not be required
to provide the treatment in a community setting. Cf. 42 U.S.C. 12111(10)
(B) (factors for determining undue hardship under Title I include cost and
overall financial resources of the covered entity).3
Unsubstantiated claims of such costs, however, are no substitute for proof.
Congress has found that community placements are less expensive, on average,
than institutional care, S. Rep. No. 139, 97th Cong., 1st Sess. 481 (1981);
S. Rep. No. 273, 101st Cong., 2d Sess. 7, 25-26 (1990), and numerous studies
have reached the same conclusion. Accommodating the Spectrum of Individual
Abilities, supra, at 78 ("Virtually all the relevant literature documents
that segregating handicapped people in large, impersonal institutions is
the most expensive means of care."). Petitioners also acknowledge (J.A.
84-85, 171) that community-based care of mentally retarded persons is generally
less expensive, on a per-patient basis, than institutional care. For example,
Georgia has estimated (J.A. 171) that it would cost $30,000 to $60,000 more
per person per year to keep mentally retarded individuals in an institution
than it would cost to move them to a community program and provide necessary
support services.
Moreover, in 1981, Congress enacted a Medicaid "waiver" program
that permits States to apply to the Department of Health and Human Services
(HHS) for a waiver of certain Medicaid rules in order to offer community-based
services. See 42 U.S.C. 1396n(c). Under the program, the federal government
provides between 50% and 83% of the total Medicaid costs for community-based
care, the same federal contribution that is available for institutional
care. 42 U.S.C. 1396d(b). By 1996, HHS had authorized (at Georgia's request)
matching funds for up to 2109 community placements. Georgia, however, used
only 700 of its "waiver slots." J.A. 93. When petitioners ultimately
moved respondents to community placements, they used federal money from
the waiver program to offset a significant portion of the cost of such care.
J.A. 161-164.
At the same time, the federal government's experience in operating the Medicaid
waiver program has revealed costs that States may incur in the aggregate
in moving persons from institutions to more integrated settings. If a State
is unable to close or consolidate facilities, it may experience increased
overall expenses by funding community placements without being able to take
advantage of the savings associated with the closure of institutions. If
a State is able to consolidate or close facilities in response to community
placements, the State may still incur the transitional cost of operating
institutions that are only partially full until the closure or consolidation
can be completed. The fixed overhead costs involved in operating those facilities
may negate the cost savings that States could otherwise achieve by treating
persons in the community rather than in institutions. See Pet. App. 28a-29a;
J.A. 171-172. The availability of community placements may also increase
the aggregate demand for community services among those not currently in
institutions. For example, persons eligible for treatment may not have sought
it in the past because they were unwilling to receive it in an institution.
The increased availability of community services may prompt such persons
to seek treatment for the first time. See William G. Weissert et al., Cost
Savings From Home And Community-Based Services: Arizona's Capitated Medicaid
Long-Term Care Program, 22 J. of Health Pol., Pol'y & L. 1329, 1337-1339,
1344 (1997); Rosalie A. Kane et al., The Heart Of Long-Term Care (1998).
Nonetheless, studies dealing with the elderly suggest that those concerns
can be anticipated and that it appears possible to design a community placement
program that manages costs and need not produce unreasonable increases in
the overall cost to the State of providing long-term care. Weissert, supra,
22 J. of Health Pol., Pol'y & L. at 1343, 1345-1347; Kane, supra, at
70-71.
In addition, nothing in the ADA suggests that courts must ignore the States'
legitimate administrative concerns in accomplishing the transition of eligible
individuals from institutional to community-based care. The transfer of
eligible persons from institutions to the community is a multifaceted process
that sometimes cannot be accomplished all at once. Even when treating professionals
have evaluated eligible individuals and determined that a community setting
is appropriate, States will need to locate proper community placements and
determine which eligible individuals should receive priority for available
slots. In order to ensure that this occurs in an orderly fashion, States
may appropriately adopt a plan that addresses various administrative issues,
including the order in which eligible persons will be placed in the community,
so as to proceed in a systematic and prompt way. In determining whether
a public entity has a defense under 28 C.F.R. 35.130(b)(7), a court may
appropriately take into account whether the public entity has adopted such
a plan to achieve compliance with the ADA. If a State establishes that it
has such a plan, that plan would serve as a valid defense in situations
where a particular request for a community placement was inconsistent with
the plan and responding to such a request and similar requests would so
disrupt the orderly implementation of the plan as to create an unreasonable
change in state policy or a fundamental alteration not required by the ADA.
Petitioners conceded below (J.A. 159) that the costs of providing services
to respondents in the community "are, by definition, not unreasonable,
nor could they 'fundamentally alter' the services provided by the State."
Petitioners contend, however, that the relevant inquiry is the cost of providing
services to all persons who desire it and that the court of appeals erred
in limiting the inquiry to the costs of providing treatment to respondents.
Br. 37-38. In their question presented to this Court, petitioners did not
challenge the court of appeals' ruling on that ground. In any event, the
court of appeals did not preclude petitioners from introducing evidence
that they had devised a comprehensive plan that takes into account the aggregate
costs of moving persons from institutions to community settings, and that
placement of respondents would fundamentally alter that plan. While the
court of appeals instructed the district court to consider the costs of
providing services to the respondents, it also stated that "[t]he district
court may also consider any other factors it believes are relevant to the
fundamental alteration inquiry." Pet. App. 30a.
D. Petitioners' Remaining Arguments Are Unpersuasive
Petitioners offer a series of additional arguments intended to show that
the Attorney General's integration regulation exceeds the authority conferred
by Congress to implement the Title II mandate against discrimination based
on disability. None is persuasive.
1. Petitioners first contend (Br. 22-29) that, prior to enactment of the
ADA, courts uniformly rejected claims that Section 504 required placement
of persons with disabilities in the community. Petitioners further contend
that Congress intended to incorporate that settled interpretation when it
enacted the ADA. See Bragdon, 118 S. Ct. at 2208. The premise of petitioners'
argument is incorrect: prior to enactment of the ADA, there was no settled
judicial understanding concerning whether Section 504 prohibited the unjustified
segregation of persons with disabilities in institutions.
Petitioners rely (Br. 26) on several lower-court decisions to support their
view that there was a judicial consensus rejecting any right to community
placement under Section 504. But of the decisions cited by petitioners,
three were decided after Congress enacted the ADA, P.C. v. McLaughlin, 913
F.2d 1033 (2d Cir. 1990); Jackson v. Fort Stanton Hosp. & Training Sch.,
757 F. Supp. 1243 (D.N.M. 1990), rev'd on other grounds, 964 F.2d 980 (10th
Cir. 1992); People First v. Arlington Dev. Ctr., 878 F. Supp. 97 (W.D. Tenn.
1992)), and one of the cases did not decide the issue, S.H. v. Edwards,
No. C81-877A (N.D. Ga. Apr. 10, 1987), aff'd, 860 F.2d 1045 (11th Cir. 1988),
cert. denied, 491 U.S. 905 (1989). More important, petitioners ignore the
decisions that held or assumed that Section 504 requires community placement
in certain circumstances. Kentucky Ass'n for Retarded Citizens, Inc. v.
Conn, 674 F.2d 582, 585 (6th Cir.), cert. denied, 459 U.S. 1041 (1982);
Homeward Bound, Inc. v. Hissom Mem'l Ctr., No. 85-C-437-E, 1987 WL 27104,
at *20-21 (N.D. Okla. July 24, 1987); Garrity v. Gallen, 522 F. Supp. 171,
213-215 (D.N.H. 1981); Lynch v. Maher, 507 F. Supp. 1268, 1278-1280 (D.
Conn. 1981); Halderman v. Pennhurst State Sch. & Hosp., 446 F. Supp.
1295 (E.D. Pa. 1978), aff'd in part and rev'd in part, 612 F.2d 84 (3d Cir.
1979), rev'd, 451 U.S. 1 (1981). Thus, before enactment of the ADA, the
question whether Section 504 prohibited unjustified segregation of persons
in institutions was an open one.
Traynor v. Turnage, 485 U.S. 535 (1988), relied upon by petitioners (Br.
23), does not hold otherwise. That case held that Section 504 did not repeal
a statute that prevented persons with a disability resulting from their
own willful misconduct (in this case alcoholism) from using educational
benefits provided by the GI bill after the statutory deadline. The Court
found "nothing in the Rehabilitation Act that requires that any benefit
extended to one category of handicapped persons, also must be extended to
other categories of handicapped persons." 485 U.S. at 549. Traynor
does not remotely suggest that Section 504 permits the unjustified segregation
of persons in institutions.
Petitioners are also incorrect in their assertion (Br. 28) that, prior to
enactment of the ADA, no federal administrative agency had interpreted Section
504 to prohibit segregation of persons in institutions. The Department of
Justice argued in the Pennhurst litigation that, in certain circumstances,
Section 504 prohibits unnecessary institutionalization of persons with disabilities.
See U.S. Br. at 36-45, Halderman v. Pennhurst State Sch. & Hosp., No.
78-1490 (filed Oct. 2, 1978). Following Southeastern Community College v.
Davis, 442 U.S. 397 (1979), the Department again argued that Section 504
prohibits unnecessary institutionalization, but indicated that, in light
of Davis, a State could not be required to create a new system of community
facilities where none existed before. See U.S. Br. at 29, Halderman v. Pennhurst
State Sch. & Hosp., No. 78-1490 (filed Oct. 14, 1981). The Department
did not address the question after Alexander, 469 U.S. at 300-301, and Arline,
489 U.S. at 287 n.17, clarified the meaning of Davis. Because there was
no settled judicial or administrative construction of Section 504 on the
question presented in this case prior to enactment of the ADA in 1990, the
fact that Congress generally patterned Title II of the ADA on Section 504
has no significance here.
2. Petitioners contend (Br. 30-32) that the Attorney General's interpretation
of Title II conflicts with the Medicaid Act, because that Act establishes
a preference for care in institutions rather than the community. As we have
noted, however, the Medicaid Act provides a mechanism by which States may
obtain waivers to treat persons in the community. Moreover, HHS has a policy
of encouraging States to take advantage of the waiver program, and often
approves more waiver slots than a State ultimately uses. For example, as
we have noted, HHS approved up to 2109 waiver slots for Georgia, but Georgia
used only 700. In any event, nothing in the Medicaid Act prevents the State
from fulfilling its obligations under Title II. To the extent that the State
is unable to utilize funding obtained under the Medicaid Act to serve all
those who are eligible for treatment in the community, it may use its own
resources for that purpose.
Petitioners also contend (Br. 30-32) that the Attorney General's interpretation
of Title II conflicts with the Medicaid Act because the Medicaid Act does
not provide funding for the community placement of persons who prefer institutional
care. Neither Title II nor the Attorney General's regulations, however,
require a State to treat an individual in the community if that individual
prefers treatment in an institution. See 42 U.S.C. 12201(d); 28 C.F.R. 35.130(e)(1).
Petitioners also err (Br. 32) in attributing "great weight" to
Congress's failure to pass legislation that would have made the treatment
of persons in the community a requirement for receiving Medicaid funds.
That legislation would have gone significantly beyond the requirements in
Title II and the integration regulation. More fundamentally, failed legislative
proposals do not provide a sound basis for determining the meaning of another
statute. Central Bank v. First Interstate Bank, 511 U.S. 164, 187 (1994).
3. Petitioners contend (Br. 32-33) that the Attorney General's interpretation
of the integration regulation is inconsistent with the "clear statement"
rule set forth in Gregory v. Ashcroft, 501 U.S. 452 (1991). In that case,
the Court refused to construe ambiguous language in the Age Discrimination
in Employment Act of 1967, 29 U.S.C. 621 et seq., to require States to alter
their practices concerning when state judges must retire. The Court relied
on a canon of statutory construction that, absent an "unmistakably
clear" expression of intent to "alter the usual constitutional
balance between the States and the Federal Government," a court should
interpret a statute to preserve rather than destroy the States' "substantial
sovereign powers." 501 U.S. at 460-461. Gregory is inapplicable here
for three reasons.
First, contrary to petitioners' understanding (Br. 33), the Gregory clear
statement rule does not apply simply because a proposed interpretation of
a federal statute would affect "an area traditionally regulated by
the States." City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732
n.5 (1995) (refusing to apply a clear statement rule to decide whether the
Fair Housing Act, 42 U.S.C. 3601 et seq., applies to zoning restrictions
that limit the number of unrelated persons that can occupy a home in a residential
community). The clear statement rule applies only when the proposed interpretation
would implicate "a decision of the most fundamental sort for a sovereign
entity." Ibid. The present case does not implicate the type of core
sovereignty concerns that were at issue in Gregory. Instead, it is much
more akin to the kind of imposition on traditional state functions at issue
in City of Edmonds.
Second, Gregory's clear statement rule is merely "a rule of statutory
construction to be applied where statutory intent is ambiguous." 501
U.S. at 470; Salinas v. United States, 522 U.S. 52, 59-61 (1997). As explained
above, Congress's findings concerning "segregation" and "institutionalization"
reflect Congress's clear understanding that the unjustified segregation
of persons in institutions constitutes a form of discrimination based on
disability. And Congress's instruction to the Attorney General in 42 U.S.C.
12134, in essence, required the Attorney General to adopt an integration
regulation covering all services provided by public entities, including
the type of treatment services offered by petitioners in this case. Because
there is no ambiguity with respect to Congress's intent on the question
presented in this case, the Gregory clear statement rule does not apply.
Finally, even assuming that Congress's intent is ambiguous, Congress directed
the Attorney General to issue regulations that would resolve any ambiguities
on the scope of Title II's nondiscrimination prohibition. 42 U.S.C. 12134.
Since the clear statement rule is nothing more than an aid to resolving
Congress's intent on an issue, that rule is inapplicable when Congress expressly
delegates authority to an administrative agency to give content to a general
statutory prohibition. Cf. Fidelity Fed. Sav. & Loan Ass'n v. de la
Cuesta, 458 U.S. 141, 154 (1982) (agency acting within the scope of its
delegated authority may preempt state law, even though a court acting on
its own would not conclude that Congress preempted state law unless Congress
clearly manifested such an intent).
4. Petitioners' reliance (Br. 33-35) on Pennhurst State School & Hospital
v. Halderman, 451 U.S. 1 (1981), is also misplaced. The statutory provision
at issue there stated that treatment "should be provided in the setting
that is least restrictive of the person's personal liberty." 42 U.S.C.
6010(2) (1976) (emphasis added). In the absence of any clear indication
that Congress intended through that language to impose a mandatory obligation
on the States, the Court held that the provision was merely precatory. 451
U.S. at 19. By contrast, Title II of the ADA, 42 U.S.C. 12132, provides
that "no qualified individual with a disability shall, by reason of
such disability * * * be subjected to discrimination by any [public] entity"
(emphasis added). And the integration regulation provides that "[a]
public entity shall administer services, programs, and activities in the
most integrated setting appropriate to the needs of qualified individuals
with disabilities." 28 C.F.R. 35.130(d) (emphasis added). "The
contrast between the congressional preference at issue in Pennhurst and
the antidiscrimination mandate of [Title II and the integration regulation]
could not be more stark." Arline, 480 U.S. at 286 n.15. Pennhurst is
therefore inapplicable here. See Arline, 480 U.S. at 286 n.15 (holding that
Pennhurst is not applicable to statutes, like Section 504, that clearly
mandate action).
5. Finally, petitioners assert (Br. 44) that the Attorney General's interpretation
should be rejected in order to avoid the constitutional question whether
Title II as so construed would exceed congressional authority under Section
5 of the Fourteenth Amendment. The principle that a statute should be construed
to avoid constitutional doubt is only implicated, however, when the statute
is genuinely ambiguous. Salinas, 522 U.S. at 59-61. For the reasons we have
given, there is no such ambiguity here.
In any event, the prohibition against unjustified segregation of persons
in institutions readily satisfies constitutional standards. Legislation
will be upheld as a valid exercise of Congress's power under Section 5 of
the Fourteenth Amendment if there is a "congruence and proportionality
between the injury to be prevented or remedied and the means adopted to
that end." City of Boerne v. Flores, 521 U.S. 507, 520 (1997). The
integration mandate of Title II readily satisfies that test.
Irrational and invidious discrimination on the basis of disability violates
the Equal Protection Clause. City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432 (1985). Moreover, this Court in Cleburne recognized that "irrational
prejudice," 473 U.S. at 450, "irrational fears," id. at 455
(Stevens, J., concurring), and "impermissible assumptions or outmoded
and perhaps invidious stereotypes," id. at 465 (Marshall, J., concurring
in part and dissenting in part), existed against persons with disabilities
and, at times, infected governmental decisionmaking. Congress similarly
found that discrimination against persons with disabilities persists in
many contexts and that such discrimination is often the product of impermissible
stereotypes and misconceptions. 42 U.S.C. 12101(a)(2), (3), (5) and (7).
The integration regulation is a measured response to the discrimination
identified by Congress. It is designed to increase the interaction between
persons with disabilities and their non-disabled counterparts, thus hastening
the breakdown of the stereotypes that have impeded full equality. The regulation
also serves as a prophylactic safeguard against intentionally discriminatory
efforts to exclude persons with disabilities from residential communities.
Cf. Katzenbach v. Morgan, 384 U.S. 641, 654 (1966). At the same time, the
regulation is carefully crafted to avoid undue burdens on the States. The
Title II integration mandate is therefore well within Congress's power under
Section 5 of the Fourteenth Amendment.
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
BILL LANN LEE
Acting Assistant Attorney General
BARBARA D. UNDERWOOD
Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to the Solicitor
General
JESSICA DUNSAY SILVER
GREGORY B. FRIEL
Attorneys
MARCH 1999
1 Following this Court's grant of the petition for a writ of certiorari,
the district court issued a decision on remand, rejecting petitioners' fundamental
alteration defense. 1/29/99 Order at 1. The court found that the annual
cost to the State of providing community-based treatment to L.C. and E.W.-about
$20,000 each-was not unreasonable in relation to the State's overall mental
health budget, which was $706.8 million in fiscal year 1998. Id. at 5.
2 Congress expressed the same integration mandate in the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. 1412(5)(B), requiring States
that receive federal funds under that statute to "assure that, to the
maximum extent appropriate, children with disabilities * * * are educated
with children who are not disabled."
3 It would also be a fundamental alteration to require a State to create
an entirely new community-based program. For example, a State that has a
community-based program that serves persons with mental retardation would
not be required to create a program to serve mentally ill individuals who
are not mentally retarded. A State, however, could be required to expand
existing community-based programs to serve additional eligible individuals
to the extent that such an expansion did not require an unreasonable change
in state policy or a fundamental alteration.