Filed: Apr. 13, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 4-13-2004 L. v. Dept Pub Welfare PA Precedential or Non-Precedential: Precedential Docket No. 02-3721 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "L. v. Dept Pub Welfare PA" (2004). 2004 Decisions. Paper 749. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/749 This decision is brought to you for free and open access by the Opinions
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 4-13-2004 L. v. Dept Pub Welfare PA Precedential or Non-Precedential: Precedential Docket No. 02-3721 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "L. v. Dept Pub Welfare PA" (2004). 2004 Decisions. Paper 749. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/749 This decision is brought to you for free and open access by the Opinions o..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
4-13-2004
L. v. Dept Pub Welfare PA
Precedential or Non-Precedential: Precedential
Docket No. 02-3721
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"L. v. Dept Pub Welfare PA" (2004). 2004 Decisions. Paper 749.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/749
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PRECEDENTIAL
UNITED STATES COURT OF Robert W. Meek
APPEALS FOR THE THIRD CIRCUIT Mark J. Murphy (Argued)
Robin Resnick
Disabilities Law Project
No. 02-3721 Philadelphia, PA l9l07
Attorneys for Appellants
FREDERICK L.; NINA S.; KEVIN C.;
STEVEN F., ON BEHALF OF D. Michael Fisher
THEMSELVES AND ALL PERSONS Attorney General
SIMILARLY SITUATED, Claudia M. Tesoro (Argued)
Senior Deputy Attorney General
Appellants Calvin R. Koons
Senior Deputy Attorney General
v. John G. Knorr, III
Chief Deputy Attorney General
DEPARTMENT OF PUBLIC Office of Attorney General of
WELFARE OF THE Pennsylvania
COMMONWEALTH OF Philadelphia, PA 19107
PENNSYLVANIA; FEATHER O.
HOUSTOUN, IN HER OFFICIAL Attorneys for Appellees
CAPACITY AS SECRETARY OF
PUBLIC WELFARE FOR THE Robert D. Fleischner
COMMONWEALTH OF Center for Public Representation
PENNSYLVANIA Northampton, MA 01060
Attorney for Amici-Appellants
On Appeal from the United States
District Court for the Eastern District of
Pennsylvania OPINION OF THE COURT
(D.C. No. 00-cv-04510)
District Judge: Berle M. Schiller
SLOVITER, Circuit Judge.
Argued October 15, 2003 Appellants represent a class of
mental health patients institutionalized in
Before: SLOVITER, ROTH, and the Norristown State Hospital, a large
CHERTOFF, Circuit Judges congregate psychiatric hospital located in
southeast Pennsylvania, who are qualified
(Filed April 13, 2004) for and wish to be placed in a community-
care setting.1 They seek declaratory and persistent mental disabilities who are
permanent injunctive relief to remedy what institutionalized at Norristown State
they claim are violations of their federal Hospital (“NSH”). Approximately 32% of
statutory rights to a more accelerated the class members are classified as short-
program of deinstitutionalization. They stay patients (approximately 10 months)
appeal from the judgment for the and 68% of the class members are
Commonwealth entered by the District c l a ss i f ie d a s l o n g -s t a y p a t i en t s
Court following a bench trial. Appellants (approximately 12 and a half years).
contend that the District Court erroneously Appellee Department of Public Welfare of
interpreted the applicable legal principles. the Commonwealth of Pennsylvania
The issue raised is significant as it ( “ DPW ” ) is an ag ency of the
implicates the extent to which the state Commonwealth of Pennsylvania (“the
may rely on general cost concerns to avoid Commonwealth”) that provides publicly
its statutory responsibility to eliminate funded mental health care in institutional
disabilities discrimination. and community settings. Also named as a
defendant is Feather O. Houston in her
I. official capacity as Pennsylvania’s
Secretary of Public Welfare. The Office
FACTS AND PROCEDURAL of Mental Health and Substance Abuse
HISTORY Services (“OM HSAS”), is a department of
DPW that has the responsibility to ensure
Appellants represent approximately local access to mental health and substance
300 class members with serious and abuse treatment. App. at 712. OMHSAS
operates nine psychiatric facilities and one
nursing facility throughout Pennsylvania.
1 NSH is one such facility. App. at 717.
The class includes all qualified
Amici curiae represent fourteen former
and willing “persons institutionalized at
state mental health agency administrators
Norristown State Hospital at any time
and have submitted a brief in support of
after September 5, 2000 with the
appellants.
following exceptions: persons who, at
the time of final adjudication, are: 1)
Appellants filed this class action
confined in the Regional Forensic Unit
lawsuit in September 2000, claiming that,
and Juvenile Forensic Unit; 2) are
because the class members are qualified
involuntarily committed . . . ; 3) have
and prepared for community-based
criminal charges pending who have been
services, their continued
found to be incompetent to stand trial; or
institutionalization violates the anti-
4) otherwise are subject to the
discrimination and integration mandates of
jurisdiction of the criminal courts.” App.
the Americans with Disabilities Act
at 711 (Jt. Stipulation).
(“ADA”), 42 U.S.C. §§ 12131-12134 and
2
28 C.F.R. § 35.130(d) (1998), and Section concerns alone do not provide the
504 of the Rehabilitation Act (“RA”), 29 Commonw ealth grounds for a
U.S.C. § 794 and 28 C.F.R. § 41.51(d) fundamental-alteration defense to their
(1998).2 They claim that DPW has failed claims.
to provide services to them in the most
integrated setting appropriate to their On May 6, 2002, the parties filed
needs and has developed no plan to assure extensive joint stipulations regarding the
that this be done. They also claim that facts underlying this case. App. at 710-39.
DPW has failed to require treatment teams In pertinent part, they stated that between
to prepare appropriate individualized 1976 and 1998, DPW closed thirteen state-
assessments of the service needs of the operated psychiatric facilities, including
class members that are a prerequisite for two facilities in southeastern Pennsylvania
community placement. In their answer, in 1990 and 1998. App. at 717.
defendants admit some of the detailed
allegations of the amended complaint and The joint stipulations explain that
deny others. Essentially, defendants assert one way in which DPW closed hospitals is
as an affirmative defense the analysis in by moving qualified patients into
Olmstead v. L.C., 527 U.S. 581 (1999), community care programs. In order to
where a plurality of the Supreme Court determine when a patient is ready for
allowed the states to resist modifications community care, NSH county program
that would effect a fundamental alteration officers hold “monthly Hospital/County
of the states’ services and programs. Discharge Planning meetings,” at which
Although Appellants acknowledge that the staff and county representatives conduct
statutes would not require additional “independent, ongoing assessments of
community placements if the increase each consumer’s discharge readiness and
would require a fundamental alteration of aftercare needs,” and address “unresolved
the Commonwealth’s policy and budget, impediments to discharge.” App. at 715.
Appellants argue that the cost of providing However, NSH does not maintain formal
the additional placements would be waiting lists for community services. App.
defrayed by cost-savings from bed closures at 722.
in NSH. They further argue that cost
The parties also stipulated that
DPW receives the bulk of its mental health
2 funding from the Commonwealth through
The language and implementing
a budgetary process set out in 71 P.S. §§
regulations of the ADA and the RA are
229-240. App. at 723. Under Pa. Code §
virtually the same and the parties
4215.21, county programs must annually
acknowledge the congruence of their
develop and submit to DWP and
integration mandates. Frederick L. v.
OMHSAS an assessment of needs for
Dep’t of Pub. Welfare, 217 F. Supp. 2d
community-based mental health services
581, 591 (E.D. Pa. 2002).
3
and budget estimates. App. at 724. 581 (E.D. Pa. 2002). The District Court
OMHSAS submits a proposed budget to held that Appellants were not entitled to
DPW, which can modify it, and DPW the requested relief because it would have
submits the budget to the Governor’s required a fundamental alteration of the
Office of Budget. The Governor then Commonwealth’s programming and
formulates a comprehensive budget and budgetary allocations. The District Court
submits it to the Legislature, which also found that providing additional
ultimately enacts DPW’s budget. App. at community placements would have
724. negatively affected other state residents
with mental disabilities who received
DPW’s primary funding mechanism services in an institutional setting.
for new community care placements has
been the Community Hospital Integration Appellants contend that the District
Projects Program (“CHIPP”) and the Court erred by stating that the immediate
Southeastern Integration Projects Program extra cost coupled with a lack of
(“SIPP”). App. at 15, 725. The number of immediate cost-savings associated with
community care placements has varied their requested relief, without more,
widely from year to year: 38 in 1996-97; provided DPW with a fundamental-
155 in 1997-98; 82 in 1998-99; 121 in alteration defense. Appellants further
1999-2000; 43 in 2000-01; and 60 argue that the District Court erred in
(proposed) in 2001-02. App. at 726-27. finding that DPW’s pre-budgetary
involvement in the legislative process was
The stipulations describe instances “beyond judicial scrutiny.” Frederick L.,
in which DPW did not request the full 217 F. Supp. 2d at 593.
amount of mental health monies requested
by the counties and instances in which II.
DPW initially requested add itional
community placements, but the Governor DISCUSSION
informed DPW that no funding would be
available or rejected the request. App. at We may set aside the District
725, 729. However, apart from the budget Court’s conclusions of fact only for clear
process, DPW has funded 48 additional error, but we subject its conclusions of law
community care slots through savings in to plenary review. See, e.g., Goldstein v.
overtime. App. at 730. Johnson & Johnson,
251 F.3d 433, 441 (3d
Cir. 2001).
Following a three-day bench trial in
May 2002, the District Court issued a A. Statutory Framework
memorandum opinion on September 5,
2002 in favor of DPW. Frederick L. v. This case arises under Title II of the
Dep’t of Pub. Welfare, 217 F. Supp. 2d ADA and Section 504 of the RA. Title II
4
of the ADA provides that “no qualified individuals with disabilities.” 28 C.F.R. §
individual with a disability shall, by 35.130(d). “[T]he most integrated setting
reasons of such disability, be excluded appropriate to the needs of qualified
from participation in or be denied the individuals with disabilities” is “a setting
benefit of services, programs, or activities that enables individuals with disabilities to
of a public entity, or be subjected to interact with nondisabled persons to the
discrimination by any such entity.” 42 fullest extent possible.” 28 C.F.R. pt. 35,
U.S.C. § 12132. The ADA largely mirrors App. A, p. 450 (1998). In short, where
Section 504 of the RA, which states as appropriate for the patient, both the ADA
follows: and the RA favor integrated, community-
based treatment over institutionalization.
No otherwise qualified Significantly, none of the parties contests
individual with a disability . that proposition.
. . shall, solely by reason of
her or his disability, be B. Olmstead v. L.C.
excluded f ro m the
participation in, be denied The parties agree that this case is
the benefits of, or be governed by the Supreme Court’s decision
subjected to discrimination in Olmstead v. L.C., 527 U.S. 581 (1999).
under any program or In Olmstead, two mental health patients
activity receiving Federal alleged that the State of Georgia violated
financial assistance or under the ADA integration mandate by
any program or activity unnecessarily segregating them in mental
conducted by any Executive health institutions and failing to place
agency or by the United them in community-based treatment
States Postal Service. programs. Id. at 593-94. The Court found
that the ADA reflects the congressional
29 U.S.C. § 794(a). We have construed conclusion that unjustified
the provisions of the RA and the ADA in institutionalization perpetuates prejudice
light of their close similarity of language against mental health patients and severely
and purpose. See Helen L. v. DiDario, 46 diminishes their quality of life. Id. at 600-
F.3d 325, 330-32 (3d Cir.), cert. denied, 01. The Olmstead plurality held that,
516 U.S. 813 (1995). under certain circumstances, unnecessary
institutionalization and segregation may
The ADA and RA’s anti- constitute discrimination. Id. at 597.
discrimination principles culminate in their
integration mandates, which direct states Justice Ginsburg, writing for the
to “administer services, programs, and
activities in the most integrated setting
appropriate to the needs of qualified
5
plurality, 3 emphasized that the integration mo difica tions would
mandate “is not boundless.” Id. at 603. It fundamentally alter the
is quali fied by the “reasonable nature of the service,
modifications” and “fundamental- program, or activity.
alteration” clauses, which provide that:
28 C.F.R. § 35.130(b)(7) (1998). In light
[a] public entity shall make of these qualifications, the plurality held
reasonable modifications in that unnecessary institutionalization only
policies, practices , or violates the ADA when the following
procedures wh en th e conditions are met:
modifications are necessary
to avoid discrimination on [1] the State’s treatment
the basis of disability, unless p r o f e s s io n als have
the public entity can determined that community
demonstrate that making the placement is appropriate, [2]
the transfer fro m
institutional care to a less
3 restrictive setting is not
Justice Ginsburg’s plurality
opposed by the affected
opinion was joined by Justices
individual, and [3] the
O’Connor, Souter, and Breyer. Although
placement can be reasonably
Justice Kennedy concurred in the
accommodated, taking into
judgment of the Court, he wrote
account [a] the resources
separately to explore the question of
available to the State and [b]
whether plaintiffs should have been
the needs of others with
required to prove that they had been
mental disabilities.
treated differently than similarly-situated
persons. See Olmstead, 527 U.S. at 611-
Olmstead, 527 U.S. at 587. The Olmstead
15 (Kennedy, J., concurring). Justice
plurality thus made clear that a state may
Kennedy agreed with the plurality that
defend against disability discrimination
States have a responsibility to provide
claims by establishing that the requested
community-based mental health services,
community services would require a
but characterized the responsibility as a
fundamental alteration of the state’s
limited one and emphasized that States
mental health system. Id.4
are entitled to considerable deference in
allocating their budgets. Id. at 615.
Justice Stevens also joined the judgment
4
of the plurality, but did not believe the Under this scheme, the plaintiff first
question was properly before the Court. bears the burden of articulating a
See Olmstead, 527 U.S. at 607-08 reasonable accommodation. The burden
(Stevens, J., concurring). of proof then shifts to the defendant, who
6
Here, the parties do not dispute that fundamental- alteratio n
Appellants have satisfied the first two component of the
Olmstead requirements. The District reasonable-modificatio ns
Court found that one-third of the regulation would allow the
Appellants were qualified for community- State to show that, in the
based mental health services and an even allocation of available
larger portion of the class expressed resources, immediate relief
affirmative interest in being placed in for the plaintiffs would be
community-based care. The point of inequitable, given the
contention instead arises from the responsibility the State has
interpretation of Olmstead’s third prong undertaken for the care and
regarding reasonable accommodation and treatment of a large and
the fundamental-alteration defense. diverse popula tion of
p e r s o n s w i th m e n t a l
C. Reasonable Modifications and the disabilities.
Fundamental-Alteration Defense
Id. at 604. The plurality thus characterized
The Olmstead plurality explained the state’s available resources and
the reasonable-modifications clause and responsibility to other institutionalized
fundamental-alteration defense as follows: mental health patients as primary
c o n s i d e ra t i o n s i n e v a lu a t i n g a
Sensibly construed, the fundamental-alteration defense.
Although Olmstead permits courts
to consider a state’s financial burdens in
must establish that the requested relief
evaluating the fundamental-alteration
would require an unduly burdensome or
defense, the Olmstead plurality expressly
fundamental alteration of state policy in
proscribed two methods of cost-analysis.
light of its economic resources and its
First, courts may not simply compare the
obligations to other mentally ill persons
cost of providing the plaintiffs with
in the institutional setting. Although
immediate relief against the entirety of the
Appellants argue that the District Court
state’s mental health budget because the
reversed the burden of proof by requiring
state’s mental health budget will almost
Appellants to demonstrate that their
always dwarf the requested relief. Id. at
requested relief did not require a
603. Second, courts may not merely
fundamental alteration, this contention is
compare the cost of institutionalization
belied by the fact that the District Court
against the cost of community-based
expressly acknowledged the appropriate
health services because such a comparison
burdens of proof in its memorandum
would not account for the state’s financial
opinion. See Frederick L., 217 F. Supp.
obligation to continue to operate partially
2d at 592 n.12.
7
full institutions with fixed overhead costs. State’s choices in basic
Id. at 604 n.15. It is notable for our matters such as establishing
purposes that the plurality did not envision or declining to establish new
the fundamental-alteration defense to be a programs. It is not
rare one that states would seldom be able reasonable to read the ADA
to invoke. See
id. at 603 (eschewing to permit court intervention
formulation of fundamental-alteration in these decisions.
defense as one permitted “only in the most
limited of circumstances”).
Id. at 612-13 (Kennedy, J., concurring).5
Justice Kennedy further stated that states
In his concurrence, Justice Kennedy have considerable latitude in analyzing the
underscored his opposition to judicial “comparative costs of treatment”:
involvement in political and/or budgetary
decisions outside the province of the law. The State is entitled to wide
He stated that federal courts should accord discretion in adopting its
deference to state policym akers’ o w n systems of cost
programmatic and political funding analysis, and, if it chooses,
decisions regarding mental health funding: to allocate health care
resources based on fixed
No State has unlimited and overhead costs for
resources, and each must wh ole institutions and
make hard decisions on how programs. We must be
m u c h t o a ll o c a te to cautious when we seek to
treatment of diseases and infer specific rules limiting
disabilities. If, for example, S t a t e s ’ choic es w h e n
funds for care and treatment Congress has used only
of the mentally ill, including general language in the
the severely mentally ill, are controlling statute.
reduced in order to support
programs directed to the Id. at 615 (Kennedy, J., concurring).
treatment and care of other
disabilities, the decision
may be unfortunate. The
judgment, however, is a 5
Justice Kennedy further opined
political one and not within
that a state without any community
the reach of the statute.
treatment programs in place would not be
G r a v e c o n st i tu t i o n al
required to create such programs under
concerns are raised when a
the ADA. Id. at 613 (Kennedy, J.,
federal court is given the
concurring). We express no opinion on
authority to review the
this view.
8
D. Needs of Other Mentally Ill Persons A. Budget Constraints and Needs of
Others
Olmstead explains that the ADA
does not compel states to provide relief As mentioned above, Olmstead
where the requested relief would require directs courts to evaluate the fundamental-
the state to neglect the needs of other alteration defense in light of the state’s
segments of the mentally disabled resources and its responsibility to continue
population who are not litigants before the providing services to mental health
court. Id. at 597 (recognizing “States’ patients other than those seeking
need to maintain a range of facilities for community care.
the care and treatment of persons with
diverse mental disabilities, and the States’ The bulk of Appellants’ objections
obligation to administer services with an have focused on the following statement in
even hand”). the “Conclusions of Law” section of the
District Court’s opinion:
In addition, the plurality reasoned
that a state may avoid liability by Even if cost savings may
providing “a comprehensive, effectively eventua lly be achieved
working plan for placing qualified persons t h r o u g h
with mental disabilities in less restrictive deinstitutionalization, the
settings, and a waiting list that moved at a immediate extra cost, and
reasonable pace [and was] not controlled the concomitant lack of
by the State's endeavors to keep its immediate aggregate cost
institutions fully populated.” Id. at 605-06. saving, is sufficient to
It is this language that informs our establish that a
decision in this case. “fundamental alteration”
would be required if the
III. relief sought by plaintiffs –
a c c e le ra te d c o m m unity
APPLICATION TO THIS CASE placements – were granted
in this case.
Appellants, along with Amici,
argue that the District Court erroneously Frederick L., 217 F. Supp. 2d at 593
construed the fundamental-alteration (internal citations omitted). Appellants
defense with respect to three primary a r gue that th e C ommonw e alth ’s
factors: 1) cost constraints and articulation of additional costs that would
consideration of institutionalized persons; attend deinstitutionalization does not
2) past progress in deinstitutionalization; automatically give rise to a fundamental-
a n d 3 ) l o ng-te r m p l a n n i n g fo r alteration defense. Fu rthermore ,
deinstitutionalization. Appellants continue, these cost concerns
9
do not automatically make a requested to the recipient’s overall
modification unreasonable. In sum, budget, but a “case-by-case
Appellants urge that the Commonwealth’s analysis weighing factors
fiscal concerns, without more, cannot that include: (1)[t]he overall
provide the sole basis for a fundamental- size of the recipient's
alteration defense. DPW acknowledges program with respect to
that government agencies frequently must number of e m ployees,
spend money in order to meet their ADA n u m b e r an d t yp e o f
and RA obligations, absent a windfall of facilities, and size of
cost-savings. budget; (2)[t]he type of the
r e c i p i e n t ’ s o p e r a t io n ,
We have not previously considered including the composition
the extent to which states may assert a a n d str uctur e of th e
fundamental-alteration defense based on recipient’s workforce; and
fiscal concerns alone, but now hold that if (3)[t]he nature and cost of
the District Court’s opinion is read as the accommodation
focusing only on immediate costs, as n e e d e d.” 2 8 C FR §
Ap pellants contend, it would be 42.511(c) (1998); see 45
inconsistent with Olmstead and the CFR § 84.12(c) (1998)
governing statutes. First, Olmstead lists (same).
several factors that are relevant to the
fundamental-alteration defense, including Id. at 606 n.16.
but not limited to the state’s ability to
continue meeting the needs of other Second, at least one court of
institutionalized mental health patients for appeals and one district court have held
whom community placement is not that a singular focus upon a state’s short-
appropriate, whether the state has a term fiscal constraints will not suffice to
waiting list for community placements, establish a fundamental-alteration defense.
and whether the state has developed a In Fisher v. Oklahoma Health Care
comprehensive plan to move eligible Authority,
335 F.3d 1175 (10th Cir. 2003),
patients into community care settings. the plaintiffs challenged the state’s
Olmstead, 527 U.S. at 605-06. The Court decision to limit the number of
noted that Section 504 of the RA specifies prescriptions provided for outpatients with
that: disabilities who received Medical
Assistance, irrespective of medical
[the fundamental-alteration necessity, while it continued providing
and undue hardship] inquiry unlimited prescriptions to disabled in-
requires not simply an patients in nursing homes. The Fisher
assessment of the cost of the plaintiffs argued that because the policy
accommodation in relation would require low-incom e disabled
10
persons to move to nursing homes in order F. Supp. 2d 1017 (D. Haw. 1999), a class
to continue receiving full coverage of all of mentally retarded persons on a waiting
of their prescriptions, the state had violated list for Hawaii’s community-based
the ADA integration mandate. Id. at 1177- program sued the state for violations of the
78. Oklahoma countered that granting ADA and the RA, seeking additional
plaintiffs’ requested relief would have com mu nity place men ts and the
required a fundamental alteration in light development of a program to encourage
of its fiscal crisis.
Id. at 1178, 1182. The movement on the waiting list at a
district court entered summary judgment reasonable pace. Hawaii attempted to
against the plaintiffs because they were not assert a fundamental-alteration defense
currently institutionalized nor did they face based on the theory that increased
a risk of institutionalization.
Id. at 1181. community placements would require the
state to ignore state and federal funding
After holding that limits and alter its existing programs by
institutionalization was not a prerequisite establishing an “unlimited” state fund for
to plaintiffs’ ADA claim, the Court of community mental health services. Id. at
Appeals for the Tenth Circuit rejected the 1034. The district court rejected the
state’s fundamental-alteration defense, state’s defense, noting that a potential
stating that Oklahoma’s fiscal problems funding problem, without more, did not
did not establish a per se fundamental- give rise to a fundamental-alteration
alteration defense.
Id. at 1182. The court defense.
Id. We agree with the Makin
reviewed the legislative history of the court and with Appellants that states
ADA and concluded that Congress cannot sustain a fundamental-alteration
contemplated that states sometimes would defense based solely upon the conclusory
be required to make short-term financial invocation of vaguely-defined fiscal
outlays, even in the face of mounting fiscal constraints.
problems.
Id. at 1183. The court thus
decided that such financial obligations did We do not read the District Court’s
not automatically relieve the state from opinion in this case as relying solely on the
meeting Congress’ integration mandate. increased short-term costs that additional
Id. Because the court found that the community placements would entail,
plaintiffs may have had a meritorious notwithstanding the sentence in its opinion
claim under the ADA, it reversed the that suggests a lack of cost-savings alone
district court’s grant of summary judgment will sustain Pennsylvania’s fundamental-
and remanded for consideration of whether alteration defense. Although the court
the plaintiffs’ requested modifications noted the absence of cost-savings and the
would fundamentally alter the program. requisite spending that new community
Id. at 1186. placements would entail, it undertook
more comprehensive analyses that focused
Similarly, in Makin v. Hawaii, 114 upon DPW’s unsuccessful attempts at fund
11
procurement through the Governor’s First, Appellants dispute the District
budget. App. at 20-21. It recognized that Court’s factual conclusion that moving
DPW had submitted evidence that it had currently institutionalized persons into
responsibly spent its budgetary allocation, community settings wo uld req uire
re-allocated overtime savings to increase significant capital outlay by the
funding for community-based mental Commonwealth. Because Appellants
health services, and had a favorable bed anticipate that the lion’s share of the
closure rate when compared with western community care costs would be offset by
Massachusetts, which is considered to be the savings reaped from hospital bed
a model region for deinstitutionalization. closures, they estimate that the additional
App. at 7, 20-21, 30. Moreover, the community placements requested would
D i s t r ic t C o u r t e m p h a s i ze d t h at have a net cost of $1 million. Appellants’
OMHSAS’s ability to increase the number
of community care placements was
hampered by community opposition to
budget; that is, that the District Court
further expansion in the neighborhoods
erred in concluding that it should
where the community centers were
consider DPW’s mental health budget,
located, App. at 23, and that increasing the
rather than the entire budget for DPW.
number of community placements would
Frederick L., 217 F. Supp. 2d at 592
eventually lead to a diminution of services
(“The resources available to the State
for institutionalized persons under the
refers to the state's mental health budget
Commonwealth’s care. App. at 24.
and nothing beyond that budget.”)
(internal quotation and citation omitted).
Appellants c h a l le n g e th e
Although there are a few references to
Common wealth’s position on cost
“resources available to the State,”
constraints, arguing that 1) the relief they
DPW’s myriad non-mental health
request would require only negligible cost
responsibilities, which include cash
increases; 2) DPW could increase its
welfare distribution, medical assistance,
community care budget by simply
food stamps provision, youth centers,
requesting additional funds from the
forestry camps, and chaplaincies, have no
legislature; and 3) DPW could shuffle its
nexus to the “care and treatment” of the
current budget to favor increased
mentally ill described in Olmstead. Id. at
community care programs. We consider
587. Upon examination of the language
and reject each argument. 6
used in Olmstead, we agree with the
District Court that it is DPW’s mental
health budget, rather than DPW’s more
6
Appellants also argue that, in general budget, that must be considered.
undertaking its cost analysis of the See Olmstead, 527 U.S. at 595, 596, 597,
“resources available to the State,” the 603 (referring to state’s “mental health
District Court focused upon the wrong budget” six times).
12
cost comparisons, however, are precisely funding amounts beyond that which is
the sort of reductive cost comparisons p e r m i t te d unde r the Gov e r n o r ’ s
proscribed by the Olmstead plurality, 527 Guidelines.
U.S. at 603-04, as well as by Justice Finally, Appellants argue that the
Kennedy. Id. at 612-13 (Kennedy, J., District Court erred by concluding that
concurring). In following Olmstead and DPW responsibly used its budgeted
r e j e ct i n g A p p e l l a n ts’ d i s f a v o r e d monies because DPW should have shifted
methodology, the District Court did not money from other programs to fund
err. additional com mu nity placem ents .
Assuming a limited pool of budgetary
Second, Appellants argue that the resources, if DPW had siphoned off
District Court erred by not considering monies appropriated for institutional care
DPW’s ability to lobby the legislature for for mental health patients in order to
additional funds during the budgetary increase community placements, DPW
process. Under the budget process in the would have run afoul of Olmstead
Commonwealth, DPW must submit a prohibition on favoring those “who
report to the Commonwealth requesting an commenced civil actions” at the expense
operating budget for the upcoming year of institutionalized mental health patients
before DPW receives its budgetary who are not before the court. Any effort to
allocation. The Governor may then accept institute fund-shifting that would
or reject DPW’s request. Appellants disadvantage other segments of the
contend that DPW does not request the full mentally disabled population would thus
amount necessary to fund all of the fail under Olmstead. 527 U.S. at 604-06.
community placements requested. The
District Court concluded that the pre- However, Appellants argue that
budgetary process “is beyond judicial DPW should re-allocate its funds to favor
scrutiny.” Frederick L., 217 F. Supp. 2d at additional community placements to the
593. We agree. This is not an issue of detriment of budget items that are not
legislative immunity, which DPW has not associated with community care or the care
claimed, but a recognition of the realities of institutionalized persons. For example,
of the budgetary process. DPW explains the parties’ stipulations explain that DPW
that it would not have been able to request requested additional funding for several
the full amount required to fund all of the non-community care items, such as
community placements needed because it approximately $9.5 million for a general
must make its budget request pursuant to 3.5% salary increase for state psychiatric
the Governor’s Guidelines, which limit the services personnel; $2.5 million for
percent-increase that it may request. That contracted repairs; $186,000 for consultant
process is unchallenged here. We cannot fees; $5.7 million for specialized services;
hold, as Appellants would have us do, that $420,000 for contracted personnel
DPW should have requested additional services; $372,000 for travel; $47,000 for
13
out-service training travel; $1.1 million for had a comprehensive,
motorized and other rentals; $75,000 for effectively working plan for
library materials and supplies; $116,000 placing qualified persons
for other services and supplies; and $60.6 with mental disabilities in
million for information systems. App. at less restrictive settings, and
730-32. The Commonwealth explains that a waiting list that moved at
some of the aforementioned increases are a reasonable pace not
mandated under the terms of the controlled by the State’s
employees’ union contract and the other endeav ors to keep its
costs assist in providing “a safe and secure institutions fully populated,
environment” in which to provide “active t h e
treatment” to institutionalized patients. reasonable-modificatio ns
Appellees’ Br. at 53-54. standard would be met.
Because the judiciary is not well- Olmstead, 527 U.S. at 605-06. Appellants
suited to superintend the internal and Amici argue that DPW did not
budgetary decisions of DPW or evaluate main tain a waiting list or have
its physical plant needs, we decline to rely comprehensive, strategic plans to continue
on Appellants’ assertion that the deinstitutionalization.
aforementioned costs are not essential to
the upkeep of DPW’s care-giving The District Court found that DPW
apparatus. Our rejection of Appellants’ begins discharge planning as soon as a
challenges to the District Court’s analysis patient is admitted, with DPW holding
of the cost issues does not mean that we monthly meetings to determine which
similarly adopt the court’s acceptance of patients are ready for discharge. However,
the Commonwealth’s fundamental- the Court acknowledged that, while the
alteration defense. Southeast Region Mental Health Planning
Task Force, which is composed of
B. Past Progress and Future Planning OMHSAS administrators, mental health
for Deinstitutionalization care consumers and providers, had
developed a five-year plan for integration
In setting forth the circumstances in 1994, the Commonwealth has not
under which a state might be relieved of its demonstrated that it has a comprehensive
responsibility to provide ADA relief on the or actionable plan to support increased
basis of the fundamental-alteration integration through community placements
defense, the Olmstead plurality provided or any other mechanisms. App. at 18.
the following hypothetical:
S o m e c o u r t s h a v e giv e n
If, for example, the State considerable weight to the presence of a
were to demonstrate that it planning and/or waiting list referred to by
14
the Olmstead plurality as examples of indicates that the Supreme
factors to be considered in connection with Court intended to shield
the fundamental-alteration defense. The States that had focused on
Makin plaintiffs had alleged that the state and planned for the need to
affirmatively “mismanag[ed] the wait list” place peop le into the
for community care and the court found no community on a statewide
evidence of any “comprehensive plan[s] to basis, prior to and apart
keep the waiting list moving.” Makin, 114 from the litigation before
F. Supp. 2d at 1035 (internal quotation and the Court. A comprehensive
citation omitted). The court thus rejected plan is more than an annual
the state’s fundamental-alteration defense inquiry into whether there
in light of the absence of a comprehensive are extra funds left over in
integration plan, a slow-moving waiting the budget to fund creation
list, and the state’s vague protest of of community beds. It is
general fiscal problems. long-term and central to the
State’s mental health policy,
In contrast, a Maryland district not an “add-on” or “extra
court noted that Maryland maintained a funding” item subject to
waiting list and a waiting list equity fund elimination at the first chill
and also prioritized categories of crisis of budget difficulties.
resolution for services; further, there was
“no indication that the failure to move Amici’s Br. at 23. Appellants argue that
people off the waiting list result[ed] from the District Court should have rejected the
an endeavor to keep the State’s institutions Commonwealth’s fundamental-alteration
fully populated,” as proscribed in defense based on DPW’s failure to
Olmstead. Williams v. Wasserman, 164 F. develop comprehensive plans or a waiting
Supp. 2d 591, 633 n.37 (D. Md. 2001). list. The Commonwealth responds that
Based in part on these factors, the court Olmstead does not require the existence of
sustained the state’s fundamental- a comprehensive plan nor does it state that
alteration defense. Id. at 630-38. a non-stagnant waiting list is the only way
that a state can avoid liability. Appellees’
Appellants, joined by Amici, urge Br. at 41 n.27.
that we adopt long-term planning as a new
factor that should be used in determining Appellants also contend that under
whether a state is entitled to an affirmative the facts of this case the District Court
defense to an ADA or RA claim. Amici erred in crediting DPW’s past progress in
argue as follows: deinstitutionalization. The District Court
initially noted that “[t]he declining state
T he emp hasis on a hospital population is an important aspect
c o m prehensive plan of this changing healthcare environment.
15
In the 1950s, Pennsylvania housed d e v e l o p m e n t a l d i s a b il i ti e s ,” a n d
approximately 40,000 people in its state M a r y l a n d ’ s l o n g - s t an d i n g p ol i c y
mental hospitals; at the time of trial [in leadership in supporting community-based
2002], fewer than three thousand patients mental health treatment. Williams, 164 F.
were housed in the ten remaining Supp. 2d at 633. The Williams court noted
OM HSAS-operated facilities.” Frederick that Maryland had “been gradually closing
L., 217 F. Supp. 2d at 583 n.4. At the institutions and expanding the number and
close of its opinion, the District Court range of community-based treatment
concluded that “the record as a whole programs it offers for people with severe
convincingly demonstrates that, over time, disabilities” and Maryland decreased its
DPW has used its mental health budget to mental hospital population from 7,114 in
establish more and more community-based 1970 to 1,200 in 1997.
Id. at 634. As
programs, and DPW will continue to do noted above, the District Court in the case
so, to the extent possible given fiscal before u s a l s o cre d ited th e
realities.”
Id. at 593. Commonwealth’s past progress. See
Frederick L., 217 F. Supp. 2d at 593.
There is no reference in Olmstead
to a state’s past progress in Although the District Court did not
deinstitutionalization as relevant to err in ta king in to acc oun t the
analyzing a fun dam ental-a lteration Commonwealth’s past progress in
defense. As Appellants argue, past evaluating its fundam ental-alteration
progress is not necessarily probative of defense, it was unrealistic (or unduly
future plans to continue optimistic) in assuming past progress is a
deinstitutionalizing. For example, reliable prediction of future programs. One
although DPW funded more than 200 of our principal concerns is the absence of
community placements in the past two anything that can fairly be considered a
fiscal years, only 33 placements are slated plan for the future. The District Court
for next year. As such, Appellants argue made a finding that “Defendants have not
that DPW’s past progress should not d e m o n s t r a te d that th e y ha ve a
provide grounds for relieving DPW of its comprehensive effectively working plan
responsibility to continue providing for placing qualified persons with mental
community care in the future. disabilities in less restrictive settings.” Id.
at 587. The court continued, “At trial, one
It is true that the district court in of Defendants’ witnesses, Gerald Radke,
Williams, which accepted Maryland’s Deputy Secretary for OMHSAS, admitted
fundamental-alteration defense, relied such a plan is not in place.” Id. The
most upon the state’s “role in the course of representative of the Commonwealth
de-institutionalization[, the] development arguing before us disagreed with the
of community-based treatment programs District Court’s conclusion that there was
for all Maryland citizens with mental and no such plan. She stated that “the district
16
court recognized several indicia of a plan vulnerable. It is a gross injustice to keep
at Norristown that we submit show that these disabled persons in an institution
there is a plan.” Tr. of Argument at 31. notwithstanding the agreement of all
She conceded, however, that there is no relevant parties that they no longer require
piece of paper that represents that plan but institutionalization. We must reflect on
her explanation of a plan (policies and that more than a passing moment. It is not
procedures at NSH utilized for ongoing enough for DPW to give passing
review of patients from the minute they acknowledgment of that fact. It must be
come in and for discharge planning for prepared to make a commitment to action
each patient individually) falls far short of in a manner for which it can be held
the type of plan that we believe the Court accountable by the courts.
referred to in Olmstead.
IV.
The issue is not whether there is a
piece of paper that reflects that there will CONCLUSION
be ongoing progress toward community
placement, but whether the In analyzing whether there was
Commonwealth has given assurance that sufficient evidence before the District
there will be. In that connection what is Court to justify its acceptance of the
needed at the very least is a plan that is Commonwealth’s fundamental-alteration
communicated in some manner. The defense, we conclude that its factual
D i s tr i c t C o u r t a c c e p te d t h e findings are fully supported by the
Commonwealth’s reliance on past progress evidence of record. As noted in the
without requiring a commitment by it to foregoing discussion, many of the court’s
take all reasonable steps to continue that conclusions of law are also consistent with
progress. Under the circumstances the governing legal principles. We believe
presented here, our reading of Olmstead that the cost constraints make it
would require no less. inappropriate for us to direct DPW to
develop 60 community residential slots per
After all, what is at issue is year as Appellants request. Unlike
compliance with two federal statutes Appellants, we credit the Commonwealth
enacted to protect disabled persons. The for its past progress in
courts have held states throughout the deinstitutionalization. We depart from the
country responsible for finding the manner District Court’s analysis in its assumption
to integrate the schools, improve prison or prediction that past actions auger future
conditions, and equalize funding to commitments.
schools within the respective states,
notwithstanding the states’ protestations Accordingly, we will vacate the
about the cost of remedial actions. The judgment of the District Court and remand
plaintiffs in this case are perhaps the most so that it can direct the Commonwealth to
17
make a submission that the District Court
can evaluate to determine whether it
complies with this opinion.
18
