PAGE 1 Citation Database Mode Not Reported in F.Supp. FOUND DOCUMENT DCT Page USLW 2479, 2 A.D. Cases 1751, 4 A.D.D. 55, 4 NDLR P 366 (CITE AS: 1994 WL 22714 (E.D.PA.)) Helen L., et al. v. Albert DIDARIO, et al. No. CIV. A. 92-6054. United States District Court E.D. Pennsylvania. Jan. 27, 1994. MEMORANDUM O'NEILL. I. Background *1 Plaintiff Helen L. is a 67-year old woman with a traumatic brain injury who was institutionalized at Norristown State Hospital, an institution for persons with mental illness ("Norristown"). Plaintiffs Beverly D. and Eileen F. are women with disabilities who reside at a nursing home in Philadelphia. Defendant Albert DiDario is the Superintendent of Norristown. Defendant Karen Snider is Secretary of the Pennsylvania Department of Public Welfare ("DPW"), which is responsible for administering the State's Attendant Care Services Act. See 62 Pa.Cons.Stat.Ann. s 3051 et. seq. Plaintiffs Beverly D. and Eileen F. have filed a motion for a preliminary injunction [FN1] requesting that the Court order defendant Snider to provide them with community-based attendant care services. [FN2] Both plaintiffs receive Medical Assistance from defendants which pays for their nursing home care and treatment. Plaintiffs assert that defendant's refusal to provide them with community- based attendant care services violates their rights under the Americans With Disabilities Act ("ADA"), 42 U.S.C. s 12101. See Count One, Plaintiffs' amended complaint. On June 25, 1993, the parties agreed to a stipulation of facts in order to allow the Court to rule on plaintiffs' motion for summary judgment, which was filed the same day. Defendants filed a cross-motion for summary judgment. Thereafter, I issued an Order staying discovery pending ruling on the motions for summary judgment. On June 28, 1993, plaintiff Helen L. was discharged from Norristown to an apartment in the area. Nevertheless, she continues to assert her constitutional claim that defendant DiDario violated her substantive due process rights as a result of her confinement at the Hospital from 1952 until 1993. [FN3] See Count II, Plaintiffs' amended complaint. For the following reasons, I will grant defendants' motion for summary judgment as to Count One of plaintiffs' amended complaint and deny defendants' motion as to Count Two. If appropriate, defendants may renew their motion for summary judgment as to Count Two at the close of discovery. II. Discussion A. Plaintiffs' ADA Claim 1. Summary Judgment Standard Under Fed.R.Civ.P. Rule 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07005 Not Reported in F.Supp. PAGE 2 (CITE AS: 1994 WL 22714, *1 (E.D.PA.)) any material fact and that the moving party is entitled to a judgment as a matter of law." See Hines v. Conrail, 926 F.2d 262, 267 (3d Cir.1991). Under Rule 56, summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Id. at 322-323. The moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Id. *2 If the moving party sustains this burden, the nonmoving party must set forth facts demonstrating the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Rule 56(e) provides that when a properly supported motion for summary judgment is made, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. An issue of material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 255; Brenner v. United Brotherhood of Carpenters & Joiners, 927 F.2d 1283, 1287-88 (3d Cir.1991). In addition, "the existence of disputed issues of material fact should be ascertained by resolving 'all inferences, doubts and issues of credibility against the moving party.'" Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3rd Cir.1978), quoting Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3rd Cir.1972). 2. Factual Background This summary of relevant facts is based on the stipulation submitted by the parties. Beverly D., a 46-year old woman, has resided at a nursing home in Philadelphia since September 29, 1988. She is the mother of two daughters and a student at Philadelphia Community College. Before she was admitted to the nursing home, Beverly D. injured herself escaping from a fire in her home. As a result, she has no vision in her right eye and uses a wheelchair. Because of her physical handicaps, Beverly D. requires and receives at the nursing home assistance with daily living activities, such as bathing, preparing meals, doing laundry and shopping. However, she does not require nursing supervision or care. DPW pays for these services under its Medical Assistance Program. Beverly D. wants to live outside the nursing home and in the community. On January 13, 1993, Homemaker Service of the Metropolitan Area, Inc. ("Homemaker"), determined that she is eligible for attendant care services in the community. [FN4] Homemaker also informed Beverly D. that "funding limitations" prevent it from providing such services to her. [FN5] Eileen F., a 46-year old woman, resides at the same nursing home. She was admitted in 1991 after suffering a stroke which requires her to use a wheelchair. [FN6] She has family in Philadelphia and, like Beverly D., wants to live in the community. Similarly, although she requires assistance with daily living activities, Eileen F. would Copr. (C) West 1995 No claim to orig. U.S. govt. works 1-07006 Not Reported in F.Supp. PAGE 3 (CITE AS: 1994 WL 22714, *2 (E.D.PA.)) not require nursing home care if she received attendant care services. On January 13, 1993, Homemaker informed her that she is eligible for attendant care services in the community but that it lacks funds to provide the services. At the nursing home, plaintiffs live only with other persons who have disabilities. They do not live with their families and friends and "are not visited by non-disabled persons." See Stipulation of Facts at PP .38-39. Defendants concede that the "setting for the provision of attendant care services appropriate to the needs of Beverly D. and Eileen F. is in the community" and that a "nursing home is not the setting in which plaintiffs could be provided attendant care services and have maximum contact with nondisabled persons." See Stipulation of Facts at PP .43, 44. Plaintiffs therefore "must remain in a nursing home in order to receive the attendant care services which they require." Id. at P .45. *3 The parties agree that the average cost to DPW of nursing home care is $45,000 a year, of which 56 percent is derived from federal reimbursement and 44 percent from state funds. The average cost to DPW of attendant care in the community is $10,500, for which it receives federal reimbursement. Defendant DPW has not requested that the federal funds be used to pay for attendant care services for the women in the community. 3. Discussion Congress passed the ADA to provide protection for persons with disabilities against discrimination. The Act specifically prohibits discrimination in employment (Title I), in public services (Title II), in public accommodations (Title III) and in telecommunications (Title IV). See Kinney v. Yerusalim, 812 F.Supp. 547, 548 (E.D.Pa.1993), aff'd, 1993 U.S.App. LEXIS 30167 (3d Cir.1993). Title II of the ADA prohibits state and local governments from discriminating on the basis of disability. Title 42 U.S.C. s 12132 provides: Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity. 42 U.S.C.A s 12132 (Supp.1993). [FN7] Prior to the ADA, the prohibition against discrimination covered only those programs and services of government entities that received financial assistance. See 29 U.S.C. s 794. The ADA's Findings and purposes state: * * * * (2) historically, society has tended to isolate and segregate individuals with disabilities, and despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem; (3) discrimination against individuals with disabilities persists in such critical areas as employment, housing public accommodations education, transportation, communication, recreation, institutionalization, health services, voting and access to public services; * * * * (5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07007 Not Reported in F.Supp. PAGE 4 (CITE AS: 1994 WL 22714, *3 (E.D.PA.)) overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, Segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities; * * * * (8) the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals;.... 42 U.S.C.A. 12101 (Supp.1993). This case turns on the interpretation of what plaintiffs call the "integration mandate" of the ADA. Plaintiffs focus on the setting in which they receive services; they allege that even though defendants provide services under two different programs defendants are required to furnish those services in the setting that best integrates plaintiffs into their community. *4 Plaintiffs insist that defendant's refusal to provide attendant care services violates the integration mandate, which they derive from Titles II [FN8] and III [FN9] of the ADA. In their memorandum, Plaintiffs review the regulations detailing and implementing the Act's integration mandate. See, e.g., 28 C.F.R. Section 35.130(d) (regulation intended to effectuate Title II of the ADA stating that a "public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities"). Plaintiffs also assert that cases construing section 504 of the Rehabilitation Act, 29 U.S.C. Section 794, are instructive in determining the meaning of the ADA but that the ADA does more than extend the Rehabilitation Act. See, e.g., 28 C.F.R. Section 35.103(a) ("Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973."). Defendants respond that they are in compliance with the law so long as plaintiffs receive services for which they are eligible and that the Court cannot otherwise dictate how defendants provide those services. Stated another way, defendants maintain that they are required only to ensure that plaintiffs are not discriminated against in comparison with other individuals who are chosen to receive attendant care services. I conclude that defendants' position is legally correct. My ruling is guided by the reasoning of the Massachusetts Supreme Court in Williams v. Secretary of the Executive Office of Human Services, 414 Mass. 551, 609 N.E.2d 447 (1993). In Williams, plaintiffs, a group of homeless and mentally ill individuals, sued the State's Department of Mental Health with respect to the methods by which it served patients. Plaintiffs pursued a number of statutory and constitutional claims, including a claim that the Department did not provide "a sufficient amount of integrated supported housing to satisfy the requirements of the ADA." Id. at 556. In a unanimous decision, the Court rejected plaintiffs' ADA claim. The Court held that the ADA does not require a state to provide services in an integrated setting. The Court explained: nothing in the ADA requires that a specific proportion of housing placements provided by a public mental health service be in 'integrated' housing. Nor does anything in the ADA or its 'integration regulations' address the absence Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07008 Not Reported in F.Supp. PAGE 5 (CITE AS: 1994 WL 22714, *4 (E.D.PA.)) of sufficient integrated residential placements to satisfy the entire demand for such services. Id. at 556-557. The Court continued: [t]he 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.... Courts do not determine whether an agency's allocation of resources or provision of services is efficient or in proportion to the obvious and pressing need of the disabled within the Commonwealth. *5 Id. at 559-560. [FN10] The record developed by the parties establishes that plaintiffs are denied attendant care services because of lack of funds. It does not demonstrate that they have been denied funding for attendant care services because they are disabled. Plaintiffs' failure to show that they have been excluded from the attendant care services program on the basis of their disability is fatal to their claim. Cf. Martin v. Voinovich, 1993 U.S.Dist. LEXIS 18468 at *44 (E.D.Ohio Dec. 14, 1993). Even though defendant Snider concedes that it is more expensive and less salutary for plaintiffs to remain in a nursing home rather than receive attendant care services, this admission does not authorize the Court to adjust the Department's allocation of resources or provision of services. Plaintiffs assert that the fact that they would be served better by attendant care services distinguishes their case from Williams. Given the separation of powers reasoning in Williams that requires courts to avoid involving themselves in administrative agency policy decisions, I am unable to agree. [FN11] Plaintiffs also contend that a judgment in favor of defendants will render the "integration mandate" of 28 C.F.R. s 5.130(d) meaningless. However, this integration mandate may not be invoked unless there is first a finding of discrimination. See, e.g., Williams at 558. See also Pinnock v. International House of Pancakes, 1993 U.S. Dist. LEXIS 16399 at *18-20 (S.D.Cal. Nov. 8, 1993) (discussing "most integrated setting" language of regulations implementing Title III of the ADA). [FN12] I will deny plaintiffs' request for a preliminary injunction and enter judgment in favor of defendants on Count One. B. Helen L.'s Constitutional Claim 1. Factual Background Helen L. was admitted to Philadelphia Hospital sometime in the early 1950s and remained there until 1971, when she was taken to Norristown. She was admitted to Norristown as an involuntary patient pursuant to a court order for interim commitment, which noted that she was "Mentally Ill." See Attachment 2 to Defendant's Motion for Summary Judgment, dated July 22, 1993. According to her verified complaint, Helen L. is not and never was mentally ill. [FN13] Defendant admits that her "organic brain injury ... is not a mental illness." See Defendant's Answer to Amended Complaint at P .22, filed December 23, 1992. [FN14] Plaintiff alleges and DiDario [FN15] admits that at the time Helen L. was admitted to Norristown the hospital staff recommended "the starting of discharge planning probably to a better supervised, all female, boarding Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07009 Not Reported in F.Supp. PAGE 6 (CITE AS: 1994 WL 22714, *5 (E.D.PA.)) home." See Defendant's Answer to Amended Complaint at P .23. In February 1977, Helen L. apparently signed a form consenting to receive inpatient treatment at Norristown. See Attachment 3 to Defendant's Motion for Summary Judgment. She also apparently checked a box on the form stating that she could leave the hospital upon written request with up to 72 hours notice. Id. [FN16] Despite defendant's efforts to discharge plaintiff over the years, she did not leave Norristown until June 1993. *6 In her verified complaint, plaintiff states that she received Mellaril, a psychotropic medicine, while at the hospital. In addition, Helen L. has submitted an affidavit stating: 1. Since I moved to Norristown State Hospital, I believed I was not permitted to leave, but had to stay there. 2. For many years I lived in a locked ward with many other women. I could not leave the ward without permission of the staff.... Often, other women at Norristown State Hospital would bother me but I could not leave the locked ward to get away from them. 3. Frequently over the years, I was denied permission to leave the ward. I do not know why I had to live in this locked ward or why I was not permitted to leave it. * * * * 5. I do not remember signing any papers about staying at Norristown State Hospital. No one ever explained my rights or why I was there. I have always believed that I could not leave Norristown State Hospital and had no option about leaving and no option about living somewhere else. No staff at Norristown State Hospital ever told me I could leave if and whenever I wanted. 6. I did not ask to be placed at Norristown State Hospital and did not stay there on my own. 7. I told the staff over and over that I wanted to live in Northeast Philadelphia near my sisters but they never told me how I could do this. 8. The staff made me take medicine and have shock treatment even though I did not want it, and my memory is worse. See Affidavit of Helen L., dated August 3, 1993. 2. Discussion Plaintiff asserts that defendant DiDario violated her substantive due process rights under the Fourteenth Amendment by failing to place her in an appropriate community setting and unnecessarily maintaining her in an institution. Because she has been discharged from Norristown, she now has only a claim for damages against defendant for his alleged violation of her constitutional rights. Defendant responds that plaintiff's claim should fail because his conduct did not violate the Constitution. Alternatively, he maintains that the Eleventh Amendment and the doctrine of qualified immunity prevent plaintiff from collecting damages for any constitutional violation that may have occurred. Defendant also contends that because Helen L. voluntarily committed herself to Norristown in 1977 he is not liable for any injury she may have suffered while she was there. See generally DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989) (establishing limits of State's affirmative duty to protect individuals). I am unable to agree with defendant that the record developed by the parties thus far demonstrates that defendant is entitled to judgment as a matter of law. Because plaintiff may not have been voluntarily committed to Norristown Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07010 Not Reported in F.Supp. PAGE 7 (CITE AS: 1994 WL 22714, *6 (E.D.PA.)) even after 1977, she may have a claim under Youngberg v. Romeo, 457 U.S. 307 (1982) (involuntarily committed person has constitutional right to safe conditions, to freedom from bodily restraint and to training). See also DeShaney at 199-201 (discussing Youngberg ); Clark v. Cohen, 794 F.2d 79, 87 (3d Cir.), cert. denied, 479 U.S. 962 (1986) (upholding trial court findings that plaintiff's "substantive liberty right to appropriate treatment under Romeo was violated"). There is also a factual question whether she was free to leave the institution. The Order accompanying this Memorandum will lift my July Order staying discovery in the case. If appropriate, defendant may renew his motion for summary judgment after discovery has concluded. *7 The Eleventh Amendment does not bar Helen L. from suing defendant DiDario in his individual capacity as Superintendent of Norristown State Hospital. See Hafer v. Melo, 112 S.Ct. 358 (1991). In my view the present record is not sufficient to enable me to rule on defendant's defense of qualified immunity. Defendant may renew this defense by motion after the close of discovery. room of a restaurant or to refuse to allow a person with a disability to full use of a health spa because of stereotypes about the person's ability to participate." Pinnock at *19. ORDER AND NOW, this day of January, 1994, upon consideration of plaintiffs' motion for a preliminary injunction, the parties' cross-motions for summary judgment as to Count One, defendant's motion for summary judgment as to Count Two and the supporting and opposing memoranda and correspondence thereto, it is hereby ORDERED that: 1. Plaintiffs' motions for a preliminary injunction and for summary judgement as to Count One are DENIED. 2. Defendants' motion for summary judgment as to Count One is GRANTED. Judgment is entered in favor of defendants and against plaintiffs on Count One of plaintiffs' amended complaint. 3. Defendant's motion for summary judgment as to Count Two is DENIED without prejudice to its renewal at the conclusion of discovery. This Order vacates the stay of discovery previously ordered by the Court. FN1. Plaintiff Florence H. is not a party to the pending motion. Plaintiff Disabled In Action of Pennsylvania ("DIA") is a Pennsylvania nonprofit corporation whose members are persons with disabilities and also is not a party to the pending motion. Defendants do not challenge this plaintiff's standing. FN2. For a description of the attendant care program, see Easley v. Snider, 1993 U.S. Dist. LEXIS 18021 (E.D.Pa. Dec. 20, 1993) (Brody, J.). FN3. As a result of her discharge from Norristown State Hospital, Helen L. is relinquishing her claim under the ADA. See Letter of Plaintiffs' Counsel, dated June 25, 1993. FN4. Homemaker is a subcontractor of DPW that has been chosen to provide attendant care services for eligible persons. FN5. See Letter from Homemaker Service of the Metropolitan Area, Inc., to Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07011 Not Reported in F.Supp. PAGE 8 (CITE AS: 1994 WL 22714, *7 (E.D.PA.)) Beverly D., dated January 13, 1993, attached to Stipulation of Facts. FN6. "Eileen F, has no use of her left upper extremity, a mild vision and hearing deficit and some difficulty with speech." See Stipulation of Facts at P .26, dated June 25, 1993. FN7. The term public entity is defined in s 12131 and includes "any State or local government." Id. at s (1)(A). FN8. See 42 U.S.C.A. 12134(a), which authorizes 28 C.F.R. s 35.101 et seq. FN9. See 42 U.S.C.A. 12182(b)(1)(B), which states: "Goods, 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." FN10. The Court's decision addressed claims under Title II and Title III of the ADA. FN11. In a letter to the Court dated January 13, 1994, counsel for plaintiffs provided the following information about a pending case in Pennsylvania Commonwealth Court that is relevant to this dispute. The letter explains that Williams v. Snider, No. 0013 M.D.1993 (Commw. Ct.) "is a mandamus action that seeks to require DPW to apply for available federal funding for personal assistance care services for disabled people. As a result of the Williams litigation, DPW has commissioned a study to determine the feasibility of receipt of federal funds by successfully applying for a waiver under the Medicaid Program for a Personal Assistance Services Program for persons with physical disabilities modeled after Pennsylvania's Act 150 Attendant Care Program.... DPW is still in the process of making a decision whether or not to apply for those federal funds." Even if DPW decided to apply for federal funds, the Federal Health Care Financing Administration must approve the application. The letter concludes that the Commonwealth Court has stayed proceedings in Williams pending the agencies' decision-making process. See Letter of Stephen F. Gold, plaintiffs' counsel, dated January 13, 1994. FN12. In Pinnock, the court noted that the "preamble to the [T]itle III regulation provides two pages of examples and explanations illustrating the meaning of this provision. One example provides that it would be a violation of this provision to require persons with mental disabilities to eat in the back FN13. Plaintiff suffered traumatic brain trauma when she was hit by a trolley car at the age of three. She is able to read and write. See Plaintiffs' Amended Complaint at PP .17, 18. FN14. Defendant DiDario maintains that "Helen L's diagnosis at Norristown State Hospital most typically was organic brain syndrome with mild mental Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07012 Not Reported in F.Supp. PAGE 9 (CITE AS: 1994 WL 22714, *7 (E.D.PA.)) retardation, sometimes with psychosis, sometimes without." See Affidavit of Albert DiDario at P .11, dated July 20, 1993. FN15. In her memorandum of law, plaintiff states that she does not seek damages against defendant Snider. See Plaintiff's Memorandum of Law at 32, filed August 5, 1993. My discussion of her constitutional claim therefore only concerns defendant DiDario. FN16. The form included another box stating that she could leave "at any time" she expressed her "desire to leave in writing." See Attachment 3 to Defendant's Motion for Summary Judgment, dated July 22, 1993. END OF DOCUMENT Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07013 PAGE 1 Citation Database Mode 46 F.3d 325 FOUND DOCUMENT CTA Page USLW 2501, 3 A.D. Cases 1775, 6 NDLR P 92 (CITE AS: 46 F.3D 325) 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. No. 94-1243. United States Court of Appeals, Third Circuit. Argued Sept. 13, 1994. Decided Jan. 31, 1995. As Amended Feb. 2, 1995. Sur Petition for Rehearing Feb. 24, 1995. Nursing home resident joined action against Secretary of Pennsylvania Department of Public Welfare (DPW), alleging that Department violated Americans with Disabilities Act (ADA) by requiring that resident receive required care services in nursing home rather than through Department's attendant care program in her own home. Resident moved for summary judgment. The United States District Court for the Eastern District of Pennsylvania, Thomas N. O'Neill, Jr., J., denied motion and entered judgment for Secretary. Resident appealed. The Court of Appeals, McKee, Circuit Judge, held that Department violated Act by requiring that resident, who had contracted meningitis and was paralyzed, receive required care services in nursing home rather than through attendant care program, for which she was qualified, in her own home. Vacated and remanded. [1] FEDERAL COURTS k660.25 170Bk660.25 District court's order, directing clerk to enter final judgment for defendant against plaintiff, after district court had granted summary judgment for defendant, created final judgment subject to appeal, because plaintiff's sole claim was disposed of. Fed.Rules Civ.Proc.Rule 54(b), 28 U.S.C.A.; 28 U.S.C.A. s 1291. [2] FEDERAL COURTS k766 170Bk766 Standard of review applicable to grant of summary judgment is plenary. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. [3] FEDERAL COURTS k754.1 170Bk754.1 District court's interpretation of federal regulation is question of law subject to plenary review. [4] CIVIL RIGHTS k107(1) 78k107(1) Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07014 46 F.3d 325 PAGE 2 (CITE AS: 46 F.3D 325) Law developed under Rehabilitation Act section mandating nondiscrimination under federal grants and programs is applicable to Title II of Americans with Disabilities Act (ADA). Rehabilitation Act of 1973, s 504, 29 U.S.C.A. s 794; Americans with Disabilities Act of 1990, ss 201-204, 42 U.S.C.A. ss 12131-12134; 28 C.F.R. s 35.103. [5] ADMINISTRATIVE LAW AND PROCEDURE k412.1 15Ak412.1 Regulations promulgated by Department of Justice under Title II of Americans with Disabilities Act (ADA) are entitled to substantial deference. Americans with Disabilities Act of 1990, ss 201-204, 42 U.S.C.A. ss 12131-12134. [5] CIVIL RIGHTS k107(1) 78k107(1) Regulations promulgated by Department of Justice under Title II of Americans with Disabilities Act (ADA) are entitled to substantial deference. Americans with Disabilities Act of 1990, ss 201-204, 42 U.S.C.A. ss 12131-12134. [6] STATUTES k219(4) 361k219(4) Unless they are arbitrary, capricious, or manifestly contrary to statute, agency's regulations are given controlling weight respecting construction of statutory scheme executive department is entrusted to administer. [7] STATUTES k223.5(1) 361k223.5(1) When Congress reenacts statute and voices its approval of administrative interpretation of that statute, that interpretation acquires force of law, and courts are bound by the regulation. [8] STATUTES k223.5(1) 361k223.5(1) When Congress agrees with administrative interpretation of statute which Congress is reenacting, that interpretation acquires force of law and courts are bound by the regulation. [9] CIVIL RIGHTS k107(1) 78k107(1) Americans with Disabilities Act (ADA) regulation, stating that public entity shall administer services, programs, and activities in most integrated setting appropriate to needs of qualified individuals with disabilities, had force of law, as Congress had voiced its approval of Rehabilitation Act coordination regulation to which it was almost identical. Rehabilitation Act of 1973, s 504, 29 U.S.C.A. s 794; Americans with Disabilities Act of 1990, s 202, 42 U.S.C.A. s 12132; 28 C.F.R. ss 35.130(d), 41.51(d). [10] CIVIL RIGHTS k107(1) 78k107(1) Protection of Americans with Disabilities Act (ADA) is not conditioned upon finding of "discrimination." Americans with Disabilities Act of 1990, s 202, Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07015 46 F.3d 325 PAGE 3 (CITE AS: 46 F.3D 325) 42 U.S.C.A. s 12132. [1] CIVIL RIGHTS k107(1) 78k107(1) Unnecessary segregation of individuals with disabilities in provision of public services is itself form of "discrimination" within meaning of Americans with Disabilities Act (ADA) and Rehabilitation Act, independent of discrimination that arises when individuals with disabilities receive different services from those provided to individuals without disabilities. Rehabilitation Act of 1973, s 504, 29 U.S.C.A. s 794; Americans with Disabilities Act of 1990, s 202, 42 U.S.C.A. s 12132; 28 C.F.R. ss 35.130(d), 41.51(d). See publication Words and Phrases for other judicial constructions and definitions. [12] CIVIL RIGHTS k107(1) 78k107(1) Americans with Disabilities Act (ADA) is intended to insure that qualified individuals receive services in manner consistent with basic human dignity rather than manner which shunts them aside, hides, and ignores them. Americans with Disabilities Act of 1990, ss 201-204, 42 U.S.C.A. ss 12131-12134. [13] CIVIL RIGHTS k107(1) 78k107(1) Pennsylvania Department of Public Welfare (DPW) violated Americans with Disabilities Act (ADA) by requiring that nursing home resident, who had contracted meningitis and was paralyzed, receive required care services in nursing home rather than through Department's attendant care program, for which she was qualified, in her own home, despite contention that resident's present placement was required under state legislature's appropriations respecting such programs; providing attendant care services to resident in her home would not be fundamental alteration in attendant care program or nursing home program. Rehabilitation Act of 1973, s 504, 29 U.S.C.A. s 794; Americans with Disabilities Act of 1990, s 202, 42 U.S.C.A. s 12132; 28 C.F.R. s 35.130(d), 41.51(d). [14] FEDERAL COURTS k935.1 170Bk935.1 Generally, appellate court reversing grant of summary judgment will not direct district court to enter summary judgment in favor of appellant because genuine issue of material fact will remain. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. [15] FEDERAL COURTS k935.1 170Bk935.1 On appeal from grant of summary judgment, when appeal concerns only issues of law, Court of Appeals is free to enter order directing district court to enter summary judgment in favor of appellant. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. *327 Ilene Shane, Robin Resnick, Disabilities Law Project, Stephen F. Gold (Argued), Philadelphia, PA, for appellant. John A. Kane, Howard Ulan (Argued), Dept. of Public Welfare, Office of Legal Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07016 46 F.3d 325 PAGE 4 (CITE AS: 46 F.3D 325, *327) Counsel, Harrisburg, PA, for appellee. Deval L. Patrick, David K. Flynn, Rebecca K. Troth (Argued), U.S. Dept. of Justice, Washington, DC, for the U.S. as amicus curiae [FN1]. FN1. The United States Department of Justice has filed an Amicus Brief. 42 U.S.C. s 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). Before: MANSMANN, COWEN and McKEE, Circuit Judges. OPINION OF THE COURT McKEE, Circuit Judge: We are asked to decide if the Pennsylvania Department of Public Welfare ("DPW") [FN2] is violating Title II of the Americans with Disabilities Act (the "ADA" or the "Act"), 42 U.S.C. s 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. FN2. 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. I. In January of 1994, Idell S. filed an uncontested motion to join a lawsuit which had *328 previously been filed by Beverly D., and Ilene F., who were also nursing home residents. [FN3] The suit alleged 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. FN3. 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 pursued 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 Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07017 46 F.3d 325 PAGE 5 (CITE AS: 46 F.3D 325, *328) 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 summary judgment, and DPW filed a cross-motion for summary judgment. 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 Ilene 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....." [1] Idell S. then filed this appeal. [FN4] FN4. 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. 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. s 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. II. Idell S. is 43 years old and the mother of two children ages 22 and 14. [FN5] 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 Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07018 46 F.3d 325 PAGE 6 (CITE AS: 46 F.3D 325, *328) S. is not capable of fully independent living, she is not so incapacitated that she needs the custodial care of a nursing home. FN5. 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. ss 3051-3055 (the "Care *329 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. ss 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, p 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 P 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. [FN6] 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 P 41, nor has it "requested Medical Assistance dollars be available for Attendant Care Services in the Community." Id. at P 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. FN6. 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 P 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 P 32. Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07019 46 F.3d 325 PAGE 7 (CITE AS: 46 F.3D 325, *329) Because she is required to receive services in a nursing home, Idell S. has no contacts with non-disabled persons other 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. [2][3] 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., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (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. [4] In order to appreciate the scope of the ADA and its attendant regulations, it is *330 necessary to examine the circumstances leading to its enactment. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. s 794, was the first broad federal statute aimed at eradicating discrimination against individuals with disabilities. [FN7] "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: FN7. 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. s 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)"). 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. s 794 (Supp.1994). [FN8] Section 504's sponsors described it as a response to " 'previous societal neglect' " and introduced 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, 105 S.Ct. 712, 717, 83 L.Ed.2d 661 (1985). Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07020 46 F.3d 325 PAGE 8 (CITE AS: 46 F.3d 325, *330) FN8. The general prohibition against disability-based discrimination contained in s 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. s 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, 105 S.Ct. 712, 717 n. 13, 83 L.Ed.2d 661 (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, 104 S.Ct. 1248, 1250, 79 L.Ed.2d 568 (1984). 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.Rev. 413, 522 n. 7 (1991). 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. [FN9] 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. s 3508. FN9. 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, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979). 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 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. s 41.1. A subsequent section requires all federal agencies to issue regulations "to implement section 504 with respect to Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07021 46 F.3d 325 PAGE 9 (CITE AS: 46 F.3D 325, *330) programs and activities to which it provides assistance." 28 C.F.R. s 41.4. The coordination regulations contain a separate section which lists a number of general prohibitions *331 against disability-based discrimination. 28 C.F.R. s 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. s 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, [FN10] 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). FN10. 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, 485 U.S. 989, 108 S.Ct. 1293, 99 L.Ed.2d 503 (1988). 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 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. [FN11] FN11. 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). B. Title II of the ADA, 42 U.S.C. ss 12131-12134, incorporates the "non- Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07022 46 F.3d 325 PAGE 10 (CITE AS: 46 F.3D 325, *331) discrimination principles" of section 504 of the Rehabilitation Act [FN12] and extends them to state and local governments. Easley v. Snider, 36 F.3d 297, ILLEGIBLE (3d Cir. 1994). Section 202 of Title II provides: FN12. See 28 C.F.R. s 35.103. [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. s 12132. The Act directs the Attorney General to promulgate regulations necessary to implement Title II. See 42 U.S.C. s 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 Federal Regulations ... applicable ... [under s 504 of the Rehabilitation Act of 1973]." 42 U.S.C. s 12134(b). Accordingly, the regulations that the Department of Justice promulgated under Title II are patterned after the section 504 coordination regulations. [5] [6] 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. *332 132, 141, 102 S.Ct. 2355, 2361, 72 L.Ed.2d 728 (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, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (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, 104 S.Ct. at 2782. [7] [8] 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, 98 S.Ct. 965, 980, 55 L.Ed.2d 148 (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, 97 S.Ct. 850, 854-55, 51 L.Ed.2d 48 (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 Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07023 46 F.3d 325 PAGE 11 (CITE AS: 46 F.3D 325, *332) 504 regulations are applicable to all programs and activities in Title II"). [9] Idell S.'s challenge to DPW's treatment of her is based upon 28 C.F.R. s 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. s 41.51(d) (1981). [FN13] As Congress has voiced its approval of that coordination regulation, 28 C.F.R. s 35.130(d) has the force of law. FN13. 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. 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. s 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. s 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 to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals[.]" 42 U.S.C. s 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 *333 35, App. A. s 35.130. [FN14] Accordingly, the integration mandate of s 35.130(d) is contained under 28 C.F.R. s 35.130 which is entitled "[g]eneral prohibitions against discrimination." FN14. We note that this is consistent with the Fair Housing Act of 1988, 52 U.S.C. s 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). Thus, the ADA and its attendant regulations clearly define unnecessary segregation as a form of illegal discrimination against the disabled. [FN15] Accordingly, the district court erred in holding that the applicable provisions Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07024 46 F.3d 325 PAGE 12 (CITE AS: 46 F.3D 325, *333) of the ADA "may not be invoked unless there is first a finding of discrimination." Memorandum Opinion at 12. FN15. 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, 110 S.Ct. 997, 1001, 108 L.Ed.2d 132 (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, 502 U.S. 183, 189-91, 112 S.Ct. 551, 556, 116 L.Ed.2d 546 (1991) (the title of a regulation or section is relevant to its interpretation). D. In reaching its conclusion, the district court relied in large part upon Williams v. Secretary of the Executive Office of Human Services, 414 Mass. 551, 609 N.E.2d 447 (1993). [FN16] 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: FN16. 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. s 35.130(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. 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. 962, 107 S.Ct. 459, 93 L.Ed.2d 404 (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. Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07025 46 F.3d 325 PAGE 13 (CITE AS: 46 F.3D 325, *333) 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. *334 [FN17] Clark v. Cohen, 613 F.Supp. 684, 696-705 (E.D.Pa.1985). 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 of the ADA or the Rehabilitation Act. Plaintiff in Clark relied primarily upon section 504 and 45 C.F.R. ss 84.4(b)(1)(i)-(iv). The prohibitions contained in the later regulations are under a regulation which states "Discriminatory actions prohibited." 45 C.F.R. s 84.4(b)(1). 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 C.F.R. s 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. s 35.130(d) is very different. FN17. 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. 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, 557-58, 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. [FN18] FN18. 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 s 504 nor Title II of the ADA require community care were not decided on the basis of 28 C.F.R. s 35.130(d). Brief of Appellee, at 10-11. Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07026 46 F.3d 325 PAGE 14 (CITE AS: 46 F.3D 325, *334) [10] 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, 609 N.E.2d at 453 (citations omitted). Choate did not involve 28 C.F.R. s 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 thoughtlessness and indifference--of benign neglect. Thus, Representative Vanik, introducing the predecessor to s 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 *335 similarly have found that discrimination against the handicapped is primarily the result of apathetic attitudes rather than affirmative animus. 469 U.S. at 295, 105 S.Ct. at 717-18 (emphasis added) (citations and footnotes omitted). [FN19] FN19. 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, 105 S.Ct. at 717-18. [11] 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 "thoughtlessness" and "indifference," not "invidious animus", such "animus" did exist. 469 U.S. at 295 n. 12, 105 S.Ct. at 717 n. 12. ("To be sure, well-cataloged instances of invidious 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 Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07027 46 F.3d 325 PAGE 15 (CITE AS: 46 F.3D 325, *335) 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. [12] 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. [FN20] "[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 296-97, 105 S.Ct. at 718. Thus, we will not eviscerate the ADA by conditioning its protections upon a finding of intentional or overt "discrimination." FN20. However, as discussed infra, the Act does not require fundamental changes in the nature of a service or program. IV. [13] DPW quotes Traynor v. Turnage, 485 U.S. 535, 548, 108 S.Ct. 1372, 1382, 99 L.Ed.2d 618 (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. s 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, 108 S.Ct. at 1372. 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, 108 S.Ct. at 1381. The court noted that petitioners can prevail under the Rehabilitation Act claim only if the 1978 legislation can be deemed to have implicitly repealed the willful misconduct provision of the 1977 *336 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. Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07028 46 F.3d 325 PAGE 16 (CITE AS: 46 F.3D 325, *336) That purpose was to "assure that handicapped individuals receive 'evenhanded treatment' in relation to nonhandicapped individuals." Id. at 548, 108 ILLEGIBLE Ct. at 1382 (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 s 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. s 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, --- U.S. ----, 113 S.Ct. 1255, 122 L.Ed.2d 654 (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. [FN21] FN21. See Martin v. Voinovich, 840 F.Supp. 1175, 1191-92 (S.D.Ohio 1993) (Under s 504 and the ADA, discrimination between people with different disabilities may be actionable). DPW also attempts to defeat Idell S.'s claim by labelling it a claim for "community care" or "deinstitutionalization"--something which the ADA does not require. [FN22] 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. FN22. See Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 24, 101 S.Ct. 1531, 1543, 67 L.Ed.2d 694 (1981) (deinstitutionalization involves "massive" changes in a state's programs and is not required absent a clear statutory command). V. Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07029 46 F.3d 325 PAGE 17 (CITE AS: 46 F.3D 325, *336) 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. *337 28 C.F.R. s 35.130(b)(7). In Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (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 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, 99 S.Ct. at 2369. 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., 469 U.S. at 300 n. 20, 105 S.Ct. at 720 n. 20. In attempting to discern what is required by the language of section ILLEGIBLE04, 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." Easley 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. [FN23] 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 Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07030 46 F.3d 325 PAGE 18 (CITE AS: 46 F.3D 325, *337) fundamental alteration of the attendant care program or the nursing home program. FN23. 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). As previously noted, DPW administers its attendant care program under the Care Act, 62 Pa.Stat.Ann. s 3052 et seq. (1994). That Act states: 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 *338 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. s 35.130(d) in particular. We fail to see how compliance with 28 C.F.R. s 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 [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 473, (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. s 12101(a)(8). Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07031 46 F.3d 325 PAGE 19 (CITE AS: 46 F.3D 325, *338) 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. [FN24] The General Appropriations Act. Act 1-A of 1993, at 104, 115. DPW asserts that "[u]nder state constitutional law, Secretary Snider cannot move funds from one line to another." See Brief of Appellee at 14-15 (citing Ashbourne School v. Commonwealth, Department of Education, 43 Pa.Cmwlth. 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 473-74. 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 Citizens' Council, ILLEGIBLE78 F.2d at 475. We stated: FN24. This, of course, does not explain why DPW has not changed her status in a new budget year. 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 *339 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 475-76. 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. [14] [15] 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). Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07032 46 F.3d 325 PAGE 20 (CITE AS: 46 F.3D 325, *339) 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. s 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. Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE and SAROKIN, Circuit Judges. SUR PETITION FOR REHEARING Feb. 24, 1995 The petition for rehearing filed by appellee in the above entitled case having been submitted to the judges who participated in the decision of this court and to all other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. Judges Becker, Stapleton, Hutchinson, Alito and Roth would grant rehearing. END OF DOCUMENT Copr. (C) West 1995 No claim to orig. U.S. govt. works 01-07033 No. 94-1243 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT HELEN L., et al., IDELL S., Plaintiff-Appellant v. ALBERT L. DIDARIO, et al., Defendants-Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE DEVAL L. PATRICK Assistant Attorney General DAVID K. FLYNN REBECCA K. TROTH Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-4541 01-07034 TABLE OF CONTENTS PAGE STATEMENT OF JURISDICTION . . . . . . . . .. . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE AND STANDARD OF REVIEW . . . . . . . . . . . . . . . . 1 INTEREST OF THE UNITED STATES . . . . . . . . .. . . . . . . . . . . . . . . 2 STATEMENT OF RELATED CASES AND PROCEEDINGS . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . .. . . . . . . . . . . . . . . . . . . 2 A. Procedural History . . . . . . .. . . . . . . . . . . . . . . . 2 B. Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 SUMMARY OF ARGUMENT . . . . . . . . .. . . . . . . . . . . . . . . . . . . . 6 ARGUMENT: PENNSYLVANIA'S DEPARTMENT OF PUBLIC WELFARE VIOLATED TITLE II OF THE ADA BY REFUSING TO PROVIDE SERVICES TO IDELL S. IN THE MOST INTEGRATED SETTING APPROPRIATE TO HER NEEDS . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 8 A. The Unnecessary Segregation Of Individuals With Disabilities Is A Form Of Discrimination Prohibited By The ADA And Its Implementing Regulations . . . . . . .. . . . . . . . . . . . . . . . . 8 B. Prior Rehabilitation Act Cases Are Not Relevant To Interpreting Title II's Integration Requirement . . . . . . . . . . . . . . . 16 C. DPW's Failure To Provide Services To Idell S. In An Integrated Setting Is Unjustified . . . . . . .. . . . . . . . . . . 19 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 - i - 01-07035 TABLE OF AUTHORITIES CASES: PAGE ADAPT v. Skinner, 881 F.2d 1184 (3d Cir. 1989) . . . . . . . . . . . . . . . 6 Alexander v. Choate, 469 U.S. 287 (1985) . . . . . . . . . . . . . . . . . 6 Brown v. Board of Educ., 347 U.S. 483 (1954) . . . . . . . . . . . . . . . 14 Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . 16 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) . . . . . . . . .. . . . . . . . . . . . . . . . . . 16 Clark v. Cohen, 613 F. Supp. 684 (E.D. Pa. 1985) . . . . . . . .. . . . . 17 Clark v. Cohen, 794 F.2d 79 (3d Cir.), cert. denied, 479 U.S. 962 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Kentucky Ass'n for Retarded Citizens, Inc. v. Conn, 674 F.2d 582 (6th Cir.), cert. denied, 459 U.S. 1041 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20 Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993), cert. denied, 114 S. Ct. 1545 (1994) . . . . . . . . . 19 Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16 P.C. v. McLaughlin, 913 F.2d 1033 (2d Cir. 1990) . . . . . . . .. . . . . 18 Plummer v. Branstad, 731 F.2d 574 (8th Cir. 1984) . . . . . . . . . . . . . 18 Phillips v. Thompson, 715 F.2d 365 (7th Cir. 1983) . . . . . . . . . . . . . 17 United States v. Board of Comm'rs, 435 U.S. 110 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Williams v. Secretary of Executive Office of Human Services, 414 Mass. 551, 609 N.E.2d 447 (Mass. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . 5 STATUTES: Americans With Disabilities Act (ADA): 42 U.S.C. 12101(a)(3) (Title I) . . . . . . . . . . . . . . . . . . . 8 42 U.S.C. 12101(a)(5) . . . . . .. . . . . . . . . . . . . . . . . 8 42 U.S.C. 12101(b)(3) . . . . . .. . . . . . . . . . . . . . . . . 2 - ii - 01-07036 STATUTES (cont'd): PAGE 42 U.S.C. 12112(b)(1) . . . . . . . . . . . . . . . . . . . . 11, 13 42 U.S.C. 12131 et seq. (Title II) . . . . . . . . . . . . . . . passim 42 U.S.C. 12131(2) . . . . . . . . . . . . . . . . . . . . . . . . . 9 42 U.S.C. 12131-12134 (Part A) . . . . . . . . . . . . . . . . . . 8 42 U.S.C. 12132 . . . . . . . . . . . . . . . . . . . . . 1, 2, 4, 9 42 U.S.C. 12133 . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. 12134 . . . . . . . . . . . . . . . . . . . . . . . . . . 9 42 U.S.C. 12134(a) . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. 12134(b) . . . . . . . . . . . . . . . . . . . . . . 10, 11 42 U.S.C. 12182(b)(1)(A)(ii) (Title III) . . . . . . . . . . . . . 13 42 U.S.C. 12182(b)(1)(A)(iii) . . . . . . . . . . . . . . . . . . 13 42 U.S.C. 12182(b)(1)(B) . . . . . . . . . . . . . . . . . . . 11, 13 42 U.S.C. 12206(c)(3) . . . . . . . . . . . . . . . . . . . . . . . 2 Rehabilitation Act of 1973, Section 504, 29 U.S.C. 794 . . . . . . . . . . . . . . . . . . . . . . . . passim 28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1343(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1343(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 62 Pa. Cons. Stat. Ann. (1994)  3053 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 REGULATIONS AND RULES: 28 C.F.R. part. 35 (1993) . . . . . . . . . . . . . . . . . . . . . . 2 Section 35.130(b)(1)(iv) . . . . . . . . . . . . . . . . . . . . . 16 Section 35.130(d) . . . . . . . . . . . . . . . . . . . . . . passim 28 C.F.R. part. 41 (1993) . . . . . . . . . . . . . . . . . . 7, 10, 17 Section 41.51(d) . . . . . . . . . . . . . . . . . . . . . . . 10, 12 45 C.F.R. 84.4(b)(2) . . . . . . . . . . . . . . . . . . . . . . . 12, 17 Fed. R. Civ. P. 54(b) . . . . . . . . . . . . . . . . . . . . . . . 1, 3 - iii - 01-07037 LEGISLATIVE MATERIALS: PAGE H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. (1990), reprinted in 1990 U.S.C.C.A.N. 303 . . . . . . . . . . . . . . . . . . . . . . 14, 15 H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. (1990), reprinted in 1990 U.S.C.C.A.N. 445 . . . . . . . . . . . . . . . . . 6, 8, 9, 14, 15 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) . . . . . . . . . . 6, 8, 13 135 Cong. Rec. 19801 (1989) . . . . . .. . . . . . . . . . . . . . . 13 135 Cong. Rec. 19898 (1989) . . . . . . . . . . . . . . . . . . . . . 14 MISCELLANEOUS: The Americans With Disabilities Act Title II Technical Assistance Manual (1993) . . . . . . . . . . . . . . . . . . 2 - iv - 01-07038 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 94-1243 HELEN L., et al., IDELL S., Plaintiff-Appellant v. ALBERT L. DIDARIO, et al., Defendants-Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE STATEMENT OF JURISDICTION The district court entered final judgment in this case against Idell S. pursuant to Fed. R. Civ. P. 54(b) on February 8, 1994 (App. 7, 261).1/ Idell S. timely filed a notice of appeal on February 14, 1994 (App. 7, 258). This Court has jurisdiction over the appeal pursuant to 28 U.S.C. 1291. The district court's jurisdiction was based on 28 U.S.C. 1331, 1343(a)(3), 1343(a)(4), and 42 U.S.C. 1983. STATEMENT OF THE ISSUE AND STANDARD OF REVIEW Whether Pennsylvania's Department of Public Welfare violated Title II of the Americans With Disabilities Act (ADA), 42 U.S.C. 12132, by refusing to provide services to a qualified individual with a disability in the most integrated setting appropriate to 1/ "App." refers to the appendix filed by appellant. 01-07039 - 2 - her needs. The United States agrees with appellant that the district court's grant of summary judgment is reviewed de novo. INTEREST OF THE UNITED STATES The Department of Justice enforces Title II of the ADA. See 42 U.S.C. 12133. An express purpose of the ADA is "to ensure that the Federal Government plays a central role in enforcing the standards established in [the Act] on behalf of individuals with disabilities." 42 U.S.C. 12101(b)(3). 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). STATEMENT OF RELATED CASES AND PROCEEDINGS There are no related cases pending in this Court or any other federal court. Another appeal, No. 94-1255, arose from the same district court case but it did not involve any questions of law or fact in common with this appeal and it was dismissed on May 13, 1994. STATEMENT OF THE CASE A. Procedural History Appellant Idell S. and five other plaintiffs filed suit against the Pennsylvania Department of Public Welfare (DPW), alleging, inter alia, that DPW violated Title II of the ADA, 42 U.S.C. 12132, by failing to provide services to people with disabilities in the community through its attendant care program rather than in a nursing home (App. 9, 256). The district court 01-07040 - 3 - issued an order and memorandum opinion on January 27, 1994 (Mem.), dismissing the ADA claims of two of the plaintiffs (App. 6). On February 2, 1994, the district court denied Idell S.'s motion for summary judgment and on February 8, entered final judgment against Idell S. pursuant to Fed. R. Civ. P. 54(b) (App. 7, 261). She filed a notice of appeal on February 14, 1994 (App. 7, 258). The remaining plaintiffs, including Helen L., ultimately dismissed their claims because they are no longer in nursing homes. B. Facts Idell S. is a 43-year-old woman who is paralyzed from the waist down as a result of meningitis (App. 243). Although Idell S. can cook, dress herself, and care for her personal hygiene, she needs assistance getting in and out of bed, bathing, shopping, and doing some household chores (App. 243-244). Because she was unable to remain home with her two children without some assistance, Idell S. was forced to enter a DPW- maintained nursing home in 1989 (App. 243-244). In the nursing home, Idell S. lives only with people with disabilities, and has little contact with her children or other people without disabilities (App. 245). Defendant DPW provides services to individuals with physical disabilities under two programs. In addition to running nursing homes such as the one in which Idell S. now lives, DPW operates an attendant care program for people living in homes in the community (App. 245, 247). Through that program, DPW provides 01-07041 - 4 - "[t]hose basic and ancillary services which enable an eligible individual to live in his home and community rather than in an institution and to carry out functions of daily living, self-care and mobility." 62 Pa. Cons. Stat. Ann.  3053 (1994). See also App. 244-246. Idell S. alleges that DPW has violated Title II of the ADA, 42 U.S.C. 12132, which 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." Idell S. specifically alleges that DPW has violated the Attorney General's regulations implementing Title II, 28 C.F.R. 35.130(d), under which [a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. Idell S. argues that she does not need nursing services such as those provided in the nursing home, and that she could more appropriately be served in DPW's attendant care program. DPW conceded that Idell S. does not need nursing care, is a good candidate for the attendant care program, and that attendant care for Idell S. in her home would cost the State of Pennsylvania $9,300 less per year than nursing home care (App. 244-245; Mem. 3; Feb. 2, 1994 Order). DPW also admits that "[w]ith attendant care services in the community, nursing home care would not be appropriate for Idell S." (App. 245). DPW 01-07042 - 5 - nevertheless has failed to provide her attendant care in her home because that particular program is underfunded (App. 244). Idell S. thus is on a waiting list for the attendant care program (App. 249). On February 2, 1994, the district court dismissed Idell S.'s claims, incorporating its January 27, 1994, memorandum opinion in which it dismissed the claims of two of the other plaintiffs. In granting judgment for DPW, the district court found that plaintiffs were denied attendant care services not because they were disabled, but because of a lack of funds for the particular program (although the attendant care program would cost the State $9,300 a year per person less). Mem. 3, 5; Feb. 2, 1994 Order. The court relied on Williams v. Secretary of Executive Office of Human Services, 414 Mass. 551, 609 N.E.2d 447 (Mass. 1993), in which the Massachusetts Supreme Judicial Court held that the ADA does not require a specific proportion of the mental health service's housing placements to be in integrated housing. According to the Massachusetts court, the ADA addresses discrimination against individuals with disabilities in relation to persons without disabilities, "rather than * * * eliminat[ing] all differences in levels or proportions of resources allocated and services provided to individuals with differing types of disabilities." 414 Mass. at 559, 609 N.E.2d at 454. The district court also found that the integration regulation, 28 C.F.R. 35.130(d), did not require DPW to provide Idell S. attendant care in her home since "this integration mandate may 01-07043 - 6 - not be invoked unless there is first a finding of discrimination." Mem.5. SUMMARY OF ARGUMENT In enacting Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, Congress recognized that society historically has discriminated against people with disabilities by unnecessarily segregating them from their family and community. The sponsors of that legislation condemned the "invisibility of the handicapped in America," and introduced bills responding to the country's "shameful oversights" that caused individuals with disabilities to live among society "shunted aside, hidden, and ignored." Alexander v. Choate, 469 U.S. 287, 296 (1985) (internal quotations omitted). See also ADAPT v. Skinner, 881 F.2d 1184, 1204 (3d Cir. 1989) (Mansmann, J., concurring in part and dissenting in part) (goal of the Act was "mainstreaming" people with disabilities). Almost twenty years later, Congress recognized that the Rehabilitation Act had not fulfilled the "compelling need * * * for the integration of persons with disabilities into the economic and social mainstream of American life," S. Rep. No. 116, 101st Cong., 1st Sess. 20 (1989), and enacted the ADA "to continue to break down barriers to the integrated participation of people with disabilities in all aspects of community life." H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. 49-50 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 472-473. 01-07044 - 7 - Title II of the ADA, 42 U.S.C. 12131 et seq., prohibits public entities from discriminating against individuals with disabilities. Congress directed the Attorney General to issue regulations implementing this general mandate consistent with the rest of the ADA, as well as the coordination regulations, 28 C.F.R. part 41, which implemented Section 504 of the Rehabilitation Act. Both the Section 504 coordination regulations and the rest of 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. The Attorney General, in compliance with the legislative mandate, thus issued 28 C.F.R. 35.130(d), requiring public entities to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." There is no dispute here that Idell S. could most appropriately be served in her home where she could live with her two children, and that the only reason she has been forced to live in a nursing home for five years is that the Pennsylvania Department of Public Welfare has allocated more funds to nursing home care than to its attendant care program. It also is undisputed that the State could save $9,300 a year if it reallocated nursing home funds to the underfunded attendant care 01-07045 - 8 - program for Idell S. DPW's refusal to reallocate funds in this instance and provide at-home care to Idell S. has resulted in her unnecessary segregation from her family and her community in violation of Title II and its implementing regulations. ARGUMENT PENNSYLVANIA'S DEPARTMENT OF PUBLIC WELFARE VIOLATED TITLE II OF THE ADA BY REFUSING TO PROVIDE SERVICES TO IDELL S. IN THE MOST INTEGRATED SETTING APPROPRIATE TO HER NEEDS A. The Unnecessary Segregation Of Individuals With Disabilities Is A Form Of Discrimination Prohibited By The ADA And Its Implementing Regulations 1. In enacting the ADA, Congress found that discrimination against individuals with disabilities persists in a variety of critical areas, including institutionalization, 42 U.S.C. 12101(a)(3), and that "individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion * * * [and] segregation." 42 U.S.C. 12101(a)(5). The ADA is the congressional response to the "compelling need to provide a clear and comprehensive national mandate * * * for the integration of persons with disabilities into the economic and social mainstream of American life." S. Rep. No. 116, 101st Cong., 1st Sess. 20 (1989). In sum, "[i]ntegration is fundamental to the purposes of the ADA." H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. 56 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 479. Title II of the ADA prohibits discrimination against people with disabilities by state and local governments and is divided into two parts. Part A, 42 U.S.C. 12131-12134, contains the 01-07046 - 9 - general prohibition against discrimination by public entities and other generally applicable provisions, while Part B applies to public transportation. Part A is short and general, and its substantive provision mandates that "no qualified individual with a disability2/ 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. In 42 U.S.C. 12134, Congress directed the Attorney General to promulgate regulations implementing this general mandate. It noted that "[u]nlike the other titles in this Act, title II does not list all of the forms of discrimination that the title is intended to prohibit. Thus, the purpose of this section is to direct the Attorney General to issue regulations setting forth the forms of discrimination prohibited." H.R. Rep. No. 485 (III) at 52, reprinted in 1990 U.S.C.C.A.N. at 475. Congress specified that, except with regard to program accessibility and communications issues, the Attorney General's ADA regulations "shall be consistent with [the ADA] and with the coordination 2/ A "qualified individual with a disability" is: an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 42 U.S.C. 12131(2). 01-07047 - 10 - regulations under part 41 of title 28, Code of Federal Regulations * * * applicable to recipients of Federal financial assistance under section 794 of Title 29 [Section 504 of the Rehabilitation Act of 1973]." 42 U.S.C. 12134(b). The coordination regulations implementing Section 504 of the Rehabilitation Act, 28 C.F.R. part 41 (1993), cover only five pages and govern the Section 504 obligations of federal agencies. The integration regulation, 28 C.F.R. 41.51(d), is a separate subpart under the "[g]eneral prohibitions against discrimination" and provides that "[r]ecipients [of federal financial assistance] shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons." The Attorney General, following Congress' mandate, enacted Title II regulations patterned after the Section 504 coordination regulations. The ADA's integration regulation, 28 C.F.R. 35.130(d), thus 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's regulation also conforms to the definition of discrimination in the rest of the ADA, as 42 U.S.C. 12134(b) requires. For example, the general prohibition on discrimination by public accommodations in Title III of the ADA contains language almost identical to the Section 504 and ADA integration regulations: "Goods, services, facilities, privileges, advantages, and accommodations shall be afforded to 01-07048 - 11 - 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) (emphasis added). In Title I covering employment, the definition of discrimination includes "limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee." 42 U.S.C. 12112(b)(1). 2. The district court erred in finding that DPW did not violate Title II of the ADA by choosing to provide services to Idell S. in an unnecessarily segregated setting. Although the court apparently assumed that the integration regulation, 28 C.F.R. 35.130(d) (1993), properly construes the statute,3/ it found that the regulation's "integration mandate may not be invoked unless there is first a finding of discrimination." Mem. 5. In the court's view, "[p]laintiffs' failure to show that they have been excluded from the attendant care services program on the basis of their disability is fatal to their claim." Ibid. Another way to state the district court's holding is that there 3/ It would be difficult to find to the contrary in light of the explicit statutory language directing the Attorney General to issue ADA regulations consistent with the other parts of the ADA and "the coordination regulations under part 41 of title 28, Code of Federal Regulations." 42 U.S.C. 12134(b). See Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 563 (1990) (attaching "overriding significance" to explicit congressional approval of administrative regulations); United States v. Board of Comm'rs, 435 U.S. 110, 134 (1978) (when Congress voices its approval of an administrative interpretation, Congress is treated as having adopted that interpretation and the agency interpretation has the force and effect of law). Certainly, adopting the language of the Rehabilitation Act's integration regulation maintains consistency between the regulations under the two statutes. 01-07049 - 12 - can be no "discrimination" under Title II if the service at issue is provided only to individuals with disabilities. The district court's interpretation ignores that the fundamental purpose of the Act and the regulations is to end the exclusion and segregation of individuals with disabilities. As an initial matter, the district court (and DPW) failed to recognize the importance of Congress' specific mandate regarding the implementing regulations. First, Congress directed the Attorney General to follow the Section 504 coordination regulations, in which integration is a stand-alone requirement, 28 C.F.R. 41.51(d), rather than other Section 504 regulations in which the integration requirement is linked to differences in services provided to individuals with disabilities and those without disabilities. The Department of Housing and Human Services (HHS) Section 504 regulations, for example, require integration only in the context of providing opportunities for people with disabilities that are equal to those available to individuals without disabilities. 45 C.F.R. 84.4(b)(2) (1993). Congress' choice of the coordination regulations, which impose a duty to provide services to individuals with disabilities in an integrated setting -- unrelated to any difference in services provided to individuals with disabilities vis-a-vis individuals without disabilities -- is a significant guide to the statute's meaning. Congress also directed the Attorney General to issue Title II regulations "consistent with" the rest of the ADA. Title I of 01-07050 - 13 - the ADA defines the term "discriminate" to include segregation of employees with disabilities. 42 U.S.C. 12112(b)(1). Title III prohibits various types of discrimination, including the failure to provide services "in the most integrated setting appropriate to the needs of the individual." 42 U.S.C. 12182(b)(1)(B). This separate "integration" requirement is independent of Title III's other provisions prohibiting the differential treatment of people with disabilities in the provision of services that also are available to individuals without disabilities. 42 U.S.C. 12182(b)(1)(A)(ii), (iii). The ADA's legislative history confirms that Congress intended the ADA to end the unnecessary segregation of people with disabilities from the community because "[o]ne of the most debilitating forms of discrimination is segregation imposed by others." S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989). In introducing the legislation, Senator Harkin declared that "[f]or too long, individuals with disabilities have been excluded, segregated, and otherwise denied equal, effective, and meaningful opportunity to participate in the economic and social mainstream of American life. It is time we eliminate these injustices." 135 Cong. Rec. 19801 (1989). The House and Senate Reports emphasize that the purpose of the Act is to end the isolation, exclusion and segregation of individuals with disabilities, and the discrimination that "persists in such critical areas as * * * institutionalization." S. Rep. No. 116 at 8 (citing findings of the U.S. Commission on Civil Rights). See id. at 20 ("compelling 01-07051 - 14 - need" for the "integration of persons with disabilities into the economic and social mainstream of American life"); H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. 22 (1990), reprinted in 1990 U.S.C.C.A.N. 303 (purpose of the ADA is to "bring persons with disabilities into the economic and social mainstream of American life"); id. at 28, reprinted in 1990 U.S.C.C.A.N. at 310 (noting the historic "isolation" of individuals with disabilities); H.R. Rep. No. 485 (III) at 26, reprinted in 1990 U.S.C.C.A.N. at 449 (finding that "segregation for persons with disabilities 'may affect their hearts and minds in a way unlikely ever to be undone,'" quoting Brown v. Board of Educ., 347 U.S. 483, 494 (1954)); H.R. Rep. No. 485 (III) at 49-50, reprinted in 1990 U.S.C.C.A.N. at 472-473 ("purpose of Title II is to continue to break down barriers to the integrated participation of people with disabilities in all aspects of community life"). While Congress was concerned about the social cost of segregating individuals with disabilities from society, Congress also was aware of the economic cost of such exclusion, and that "discrimination results in dependency on social welfare programs that cost the taxpayers unnecessary billions of dollars each year." H.R. Rep. No. 485 (II) at 43; reprinted in 1990 U.S.C.C.A.N. at 325. See also 135 Cong. Rec. 19898 (1989) (Sen. Simon estimated that "[m]ore than $100 billion a year is being spent by Government to sustain people with disabilities in welfare situations"). 01-07052 - 15 - The reports of the House Judiciary Committee and the House Committee on Education and Labor explain that although Title II does not "list all the types of actions that are included within the term 'discrimination' as was done in Titles I and III," the forms of discrimination prohibited by Title II shall be identical to those set out in Titles I and III of the legislation. H.R. Rep. No. 485 (II) at 84, reprinted in 1990 U.S.C.C.A.N. at 367; (1990); see also H.R. Rep. No. 485 (III) at 52 (1990), reprinted in 1990 U.S.C.C.A.N. at 475. As noted above, Titles I and III define discrimination to include the segregation of people with disabilities. Congress clearly intended this form of discrimination by public entities to be prohibited as well, regardless of whether the segregation occurred as a result of the differential provision of services. Certainly nothing conflicts more with Congress' purpose of ending segregation than the inappropriate confinement of individuals with disabilities. The Attorney General's Title II regulations reflect Congress' determination that services must be provided in appropriate integrated settings to achieve the Act's purposes. The ADA's integration regulation, 28 C.F.R. 35.130(d) (1993), is an independent subpart of the provision entitled "[g]eneral prohibitions against discrimination" that defines discrimination. The definition of discrimination thus includes the unnecessary segregation of individuals with disabilities from the rest of the community. No showing of differential treatment of people with disabilities and individuals without disabilities is required, 01-07053 - 16 - since on its face, the regulation applies to all services administered by a public entity. It is not restricted to services that also are provided to people without disabilities. The structure of the rest of the Title II regulations supports this reading. If 28 C.F.R. 35.130(d) applied only to programs and services offered to everyone, then 28 C.F.R. 35.130(b)(1)(iv), which prohibits a public entity from providing separate services to people with disabilities than are provided to others, would be redundant. The Attorney General's regulations thus recognize, consistent with the statute, that in the case of individuals with disabilities, discrimination takes many different forms, including programs that perpetuate the false assumption that people with disabilities must be segregated from the rest of society. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).1/ B. Prior Rehabilitation Act Cases Are Not Relevant To Interpreting Title II's Integration Requirement Because "overriding significance" must be attached to the congressional ratification of administrative regulations, see Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 563 (1990), prior Rehabilitation Act cases that did not consider the type of integration requirement that the Section 504 coordination 1/ In this case, the Attorney General's regulations reflect the clear statutory directive. Even if Title II's requirements were ambiguous, the Attorney General's regulations are entitled to significant deference because Congress authorized the Attorney General to issue regulations enforcing the Act's general mandate. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-848 (1984). 01-07054 - 17 - regulations (28 C.F.R. part 41) mandate are of little relevance in interpreting the requirements of Title II of the ADA. While Congress may have envisioned Title II as incorporating Section 504 standards, Congress specifically endorsed the interpretation of Section 504 reflected in the coordination regulations, rather than the regulations issued by other agencies or any of the decisions DPW cites. Thus, although some courts of appeals, including the Third Circuit, considered whether Section 504 of the Rehabilitation Act generally provides a right to community treatment, none considered the integration regulation as a stand- alone requirement, or whether the Department of Justice properly interpreted the Rehabilitation Act and the ADA to prohibit discrimination in the form of unnecessary segregation. In Clark v. Cohen, 794 F.2d 79, 84 n.3 (3d Cir.), cert. denied, 479 U.S. 962 (1986), for example, this Court did not consider whether unnecessary segregation was a form of discrimination under the Rehabilitation Act. It simply affirmed the lower court's finding that the Act and HHS's regulations, 45 C.F.R. 84.4(b)(2) (in which there is no stand-alone integration requirement), do not require a public entity to provide services in an integrated setting without proof of unequal treatment. See Clark v. Cohen, 613 F. Supp. 684, 691 (E.D. Pa. 1985). Two other appellate cases DPW cites (DPW Br. 11) also did not address the stand-alone integration requirement at issue here,5/ and the 5/ In Phillips v. Thompson, 715 F.2d 365, 368 (7th Cir. 1983), the court summarily concluded (without reference to regulations) (continued...) 01-07055 - 18 - remaining two appellate cases, while they did not involve the stand-alone integration requirement, actually assumed that the Rehabilitation Act may require public entities to provide services to individuals with disabilities in integrated settings. Thus, in Kentucky Ass'n for Retarded Citizens, Inc. v. Conn, 674 F.2d 582, 585 (6th Cir.), cert. denied, 459 U.S. 1041 (1982), the court did not dispute that Section 504 required services in the least restrictive setting. Rather, it found that the district court had not clearly erred as a factual matter in concluding that institutionalization of some individuals may be appropriate under Section 504. Similarly, in Plummer v. Branstad, 731 F.2d 574, 579 (8th Cir. 1984), the court assumed that Section 504 requires states to provide services to individuals in "integrated settings appropriate to their particular needs" and found that providing adult daytime services to disabled individuals in the intermediate care facilities in which they lived rather than in separate adult day care centers "does not run afoul" of that principle. In short, none of the Rehabilitation Act cases DPW cites supports the district court's interpretation of the ADA and its implementing regulations. 5/ (... continued) that the Rehabilitation Act creates no affirmative duty "to create less restrictive community residential settings." The Second Circuit in P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d Cir. 1990), addressed Section 504 claims only in the context of deciding defendants' claims of qualified immunity, finding that the plaintiff had not shown discriminatory animus and that Section 504 does not clearly establish an obligation to treat all individuals with disabilities the same. 01-07056 - 19 - C. DPW's Failure To Provide Services To Idell S. In An Integrated Setting Is Unjustified DPW also argues (although the district court did not reach the issue) that even if Title II and its implementing regulations require a public entity to provide all services to individuals with disabilities in an integrated setting, DPW is excused from that obligation if it requires the public entity to make a "fundamental alteration" of its program. This Court need not reach this issue6/ because DPW's argument that compliance in this case would require substantial modifications in its system of providing services to people with disabilities is without merit. DPW has in place a program -- the attendant care program -- that it concedes is appropriate for Idell S. The only reason it gives for not enrolling Idell S. in that program is that DPW has allocated more funds to nursing home care than attendant care (DPW Br. 14-15). As appellant notes (Idell S. Reply Br. 17), however, DPW has not explained why it would be a "fundamental alteration" for it simply to request a different mix of funding from the General Assembly, or recommend that funding for services for individuals with disabilities in the attendant care program and nursing program be combined to allow flexibility to fund the services most in demand. 6/ Cf. Kinney v. Yerusalim, 9 F.3d 1067, 1074 (3d Cir. 1993), cert. denied, 114 S. Ct. 1545 (1994) (finding that in Title II, Congress limited the defenses available to cases in which plaintiffs were challenging a public entity's failure to alter existing facilities or communications systems). 01-07057 - 20 - DPW's suggestion (DPW Br. 19-20) that massive "deinstitutionalization" will cause a fundamental alteration in its program is also without merit. Unlike the plaintiffs in Kentucky Ass'n for Retarded Citizens, Inc., 674 F.2d at 582, for example, Idell S. has not claimed that institutionalization is improper as a matter of law under the ADA. Rather, her claim is an individual claim that the ADA accords her the right to treatment in an integrated setting appropriate to her needs, which in this case is a program DPW already has in place. DPW has conceded as a factual matter that "[w]ith attendant care services in the community, nursing home care would not be appropriate for Idell S." (App. 245). There also is no dispute that allowing her to remain in her home with her children and receive attendant care services would save the State of Pennsylvania $9,300 a year (App. 244-245; Mem. 3, Feb. 2, 1994 Order), consistent with Congress' finding that placing individuals with disabilities in situations of unwanted dependency needlessly costs taxpayers billions of dollars a year. Providing care for Idell S. through the attendant care program is compelled by the ADA and its regulations, and requires no fundamental alteration in DPW's program. 01-07058 - 21 - CONCLUSION The District Court's judgment should be reversed. Respectfully submitted, DEVAL L. PATRICK Assistant Attorney General (Signature of Troth) DAVID K. FLYNN REBECCA K. TROTH Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-4541 01-07059 CERTIFICATE OF SERVICE I hereby certify that on September 6, 1994, I sent two copies of the foregoing Brief of the United States as Amicus Curiae by Federal Express to the following addresses: Stephen F. Gold, Esq. 125 South Ninth Street, Suite 700 Philadelphia, PA 19107 Ilene W. Shane, Esq. Robin Resnick, Esq. Disabilities Law Project 801 Arch Street, Suite 610 Philadelphia, PA 19107 John A. Kane, Esq. Howard Ulan, Esq. Department of Public Welfare Office of Legal Counsel Room 305, Health and Public Welfare Building Harrisburg, PA 17120 (Signature of Troth) REBECCA K. TROTH Attorney 01-07060