Frederick L. v. Dept. of Public Welfare of Pa.

• Decision Date: 08 September 2005
• Docket Number: No. 04-3859.,04-3859.
• Parties: FREDERICK L.; Nina S.; Kevin C.; Steven F., on Behalf of Themselves and all Persons Similarly Situated, Appellants v. DEPARTMENT OF PUBLIC WELFARE OF the Commonwealth of PENNSYLVANIA; * Estelle B. Richman, in her official capacity as Secretary of Public Welfare for the Commonwealth of Pennsylvania. * Substituted Pursuant to Rule FRAP 43(c).
• Court: U.S. Court of Appeals — Third Circuit

422 F.3d 151

FREDERICK L.; Nina S.; Kevin C.; Steven F., on Behalf of Themselves and all Persons Similarly Situated, Appellants v. DEPARTMENT OF PUBLIC WELFARE OF the Commonwealth of PENNSYLVANIA;

* Estelle B. Richman, in her official capacity as Secretary of Public Welfare for the Commonwealth of Pennsylvania.

* Substituted Pursuant to Rule FRAP 43(c).

No. 04-3859.

United States Court of Appeals, Third Circuit.

Argued July 12, 2005.

Filed September 8, 2005.

COPYRIGHT MATERIAL OMITTED

Mark J. Murphy (Argued), Robert W. Meek, Disabilities Law Project, Philadelphia, PA, for Appellants.

Claudia M. Tesoro (Argued), Office of Attorney General of Pennsylvania, Philadelphia, PA, for Appellees.

Before SLOVITER, MCKEE, and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

This class action appeal is unique in that both parties have the same objective: the timely discharge of long-term mental health patients¹ from the Norristown State Hospital ("NSH"), a mental heath facility located in southeast Pennsylvania. The parties diverge, however, over the time frame for discharge, the number of patients to be discharged, and the perceived fiscal restraints hindering discharge.

Appellants ("Patients") are a class of mental health patients institutionalized at NSH who are statutorily eligible for deinstitutionalization and who therefore seek integration into community-based healthcare programs. Patients claim that because they are qualified and prepared for community-based services, their continued institutionalization violates the anti-discrimination and integration mandates of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq.² and 28 C.F.R. § 35.130(d) (1998),³ and section 504 of the Rehabilitation Act, 29 U.S.C. § 794⁴ and 28 C.F.R. § 41.51(d) (1998).⁵ Appellee is the Pennsylvania Department of Public Welfare ("DPW"),⁶ the entity charged with the responsibility and duty to provide statewide mental health care. See 62 PA. STAT. ANN. § 1101.

In its first consideration of this case, the District Court ruled in favor of DPW, holding that under Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), the integration accommodation patients requested was unavailable at the time because it would require a "fundamental alteration" of Pennsylvania's mental health program in light of its limited economic resources and its obligations to other segments of the mentally disabled population. Frederick L. v. Dep't of Pub. Welfare, 217 F.Supp.2d 581, 594 (E.D.Pa.2002) ("Frederick L. I").⁷

This court vacated and remanded for further evaluation of whether there was sufficient evidence to justify acceptance of Pennsylvania's "fundamental alteration" defense. Frederick L. v. Dep't of Pub. Welfare, 364 F.3d 487, 501 (3d Cir.2004) ("Frederick L. II"). We based this determination largely upon DPW's failure to heed the Supreme Court's admonition in Olmstead that a state may avoid liability by providing "`a comprehensive, effectively working plan for placing qualified persons with mental disabilities'" in community-based programs with "`a waiting list that moved at a reasonable pace.'" Id. at 494 (quoting Olmstead, 527 U.S. at 605-606, 119 S.Ct. 2176). Accordingly, we directed the District Court on remand to instruct DPW to devise a plan which would demonstrate a commitment to community placement "in a manner for which it can be held accountable by the courts." Id. at 500.

DPW offered post-remand submissions which the District Court credited as proof of the required commitment to deinstitutionalization. The Court, therefore, ruled in favor of DPW on remand. Patients have now appealed again. We vacate the Court's judgment in favor of DPW and remand for further proceedings not inconsistent with this opinion.

I.

The background of this case has been adequately set forth in the cases leading up to this appeal. See Frederick L. I, 217 F.Supp.2d 581; Frederick L. II, 364 F.3d 487. Thus, we dispense with a factual recitation and proceed directly to the legal issues for discussion. We review the District Court's conclusions of law de novo and its factual conclusions for clear error. Goldstein v. Johnson & Johnson, 251 F.3d 433, 441 (3d Cir.2001). In this appeal, Patients challenge DPW's compliance with this Court's mandate in Frederick II that it develop a plan for future deinstitutionalization of qualified disabled persons that commits it to action in a manner for which it can be held accountable by the courts. Frederick II, 364 F.3d at 500.

In their current brief to this Court, Patients argue that in our previous decision remanding to the District Court, we held that DPW could not meet its burden to prove its fundamental alteration defense with proof of its fiscal constraints because if every alteration requiring an outlay of funds were tantamount to a fundamental alteration, the ADA's integration mandate would indeed ring hollow. Patients also argue that in our previous decision we did not accept as sufficient proof DPW's past efforts toward deinstitutionalization and its good faith intention to further deinstitutionalize as quickly as possible given its fiscal constraints. Frederick L. II, 364 F.3d at 499. They similarly argue that we saw as insufficient to establish a fundamental alteration defense DPW's review of county and regional budget requests related to deinstitutionalization efforts and its individualized discharge planning for NSH residents.

Patients recognize that in delineating the balance between their interests in discharge to appropriate community placements and DPW's fiscal and programmatic constraints, this Court was informed by the Olmstead plurality's suggestion that the state could establish a fundamental alteration defense by demonstrating that it had a comprehensive, effectively working plan "to discharge persons who are unnecessarily institutionalized in more integrated settings" and "a waiting list that moved at a reasonable pace." Frederick II, 364 F.3d at 494, 498. Patients complain that against this backdrop, the plan submitted to the District Court by DPW fails to provide concrete, measurable benchmarks and a reasonable timeline for them to ascertain when, if ever, they will be discharged to appropriate community services. Patients contend that such benchmarks and timelines are essential to comply with this Court's mandate.

On the other hand, DPW argues that our previous mandate expressed the issue as whether DPW had "given assurance" that it will make "ongoing progress toward community placement," thereby satisfying the "fundamental alteration" defense. Frederick II, 364 F.3d at 500. In its current brief, DPW emphasizes its past success in moving institutionalized patients into community settings and describes the various mechanisms for doing so, including the Community/Hospital Integration Projects Program ("CHIPP"). DPW also discusses its policy of deinstitutionalizing eligible patients and its various planning efforts aimed at devising strategies to accomplish that goal, including designation of a Service Area Planning ("SAP") group for each of the nine state-operated psychiatric hospitals, each charged with developing plans to achieve three specific goals within five years. DPW admits that it does not intend to implement these plans as written, but it argues that "[t]here is no legal basis for plaintiffs' contention that, without concrete `benchmarks' and `timelines,' DPW's planning efforts are inadequate."

DPW argues that all it was required to do on remand was to demonstrate "a commitment to take all reasonable steps to continue [its past] progress." Frederick II, 364 F.3d at 500. DPW argues that the District Court correctly found that it had satisfied our instruction that it submit a plan on remand for which it could be held accountable, Frederick II, 364 F.3d at 500, because "a court cannot become enmeshed in minutiae. Nor, if the state is heading in the right direction, can a court dictate a certain approach to the development and delivery of mental health services." DPW further argues that, contrary to Patients' contentions, the lack of benchmarks, timelines, commitments to implement any of the SAP plans, and specific relief for class members in its post-remand submission, are not fatal to its fundamental alteration defense because "there is no one `right' approach to Olmstead planning." DPW argues that "hard numbers cannot be the sine qua non of an acceptable plan" and that concrete and measurable guidelines are not sufficient to make a plan to provide community residential services legally acceptable.

DPW also argues that Patients' criticism of its lack of commitment to implement the SAP plans as written is misplaced because the SAP plans are merely tools in a larger state-wide planning process that requires it to assess needs and allocate scarce resources. DPW points out that the January, 2005 announcement of the closing of Harrisburg State Hospital actually exceeds the goals set forth in the SAP plan for that region. It also argues that is has no special duty to class members as opposed to the rest of the patients in its care; that it was not required on remand to demonstrate any specific plans with respect to the class; and that to favor class members over other persons in its care would violate Olmstead.

Because DPW apparently refuses to accept verifiable benchmarks or timelines as necessary elements of an acceptable plan, much of its brief misses the mark. Although we are aware of DPW's strong commitment in the past to deinstitutionalization (viz., Pennsylvania's mental health hospital population has declined from 40,000 in the 1950's to fewer than 3,000 at the time of trial), DPW's post-remand submission amounts to a vague assurance of the individual patient's future deinstitutionalization rather than some measurable goals for community integration for which DPW may be held accountable.

As we noted in Frederick L. II, this case is...