Juvelis by Juvelis v. Snider

• Decision Date: 10 October 1995
• Docket Number: No. 94-2207,94-2207
• Citation: 68 F.3d 648
• Parties: , 7 NDLR P 120 Nikitas JUVELIS, an incompetent, by his father and next friend, George JUVELIS v. Karen SNIDER, in her official capacity as the Secretary of the Department of Public Welfare, Commonwealth of Pennsylvania, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 648

68 F.3d 648

12 A.D.D. 15, 7 NDLR P 120

Nikitas JUVELIS, an incompetent, by his father and next friend, George JUVELIS v. Karen SNIDER, in her official capacity as the Secretary of the Department of Public Welfare, Commonwealth of Pennsylvania, Appellant.

No. 94-2207.

United States Court of Appeals Third Circuit.

Argued July 20, 1995.

Decided Oct. 10, 1995.

Kate L. Mershimer, (argued), Office of Attorney General of Pennsylvania, Harrisburg, Pennsylvania, for Appellant.

Edmond A. Tiryak, (argued), Philadelphia, Pennsylvania, for Appellee.

Before: SLOVITER, Chief Judge, SCIRICA and McKEE, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In this case we must decide whether the policy of Pennsylvania's Department of Public Welfare requiring intent to establish domicile discriminates under section 504 of the Rehabilitation Act, 29 U.S.C. Sec. 794(a) (1988), against a profoundly retarded individual on the basis of his handicap. The district court found the policy discriminatory and required the Department of Public Welfare to fund retardation services for the plaintiff Nikitas Juvelis. We will affirm.

I.

Nikitas Juvelis (Niki) is a profoundly retarded and physically handicapped 33 year old citizen of the United States. ¹ Although Niki's parents are also United States citizens, they have lived in Venezuela since Niki's birth. When Niki was fifteen, his parents placed him, at their expense, in the Melmark Home, a residential home for the handicapped in Delaware County, Pennsylvania. He has lived there continuously for the past eighteen years. Prior to Niki's placement in Melmark, his parents had no connection to Pennsylvania. In recent years, Melmark's costs have gone up sharply, while Niki's parents have gotten older and their income has declined. The Juvelises anticipate that soon they will be unable to afford Niki's fees at Melmark. ²

Pennsylvania's Department of Public Welfare (DPW) provides benefits to retarded persons, which can include payment for placements in facilities like Melmark. The Juvelises applied for such coverage for Niki. DPW policy gives the counties primary responsibility for determining eligibility for mental retardation services. But the counties may not expend state funds to provide services for a person who is not a state resident. Niki was turned down for coverage because, for funding purposes, he was not considered a bona fide resident ³ of Delaware County or of Pennsylvania. This residency determination was made on the basis of DPW policy, but that policy is nowhere codified as a rule or regulation.

Generally, the policy on residency requires the county to determine the domicile of the individual prior to placement. In this case, because Niki was a minor before placement, he was a resident of his parents' domicile, Venezuela. When an individual reaches majority, DPW presumes he retains his parents' domicile unless and until he establishes a new one. Proof of change of domicile has two components: physical presence plus an intent to remain. Niki has physical presence in Delaware County, Pennsylvania. What he lacks is the mental capacity to form an intent to remain. The crux of this case is whether a residency requirement that depends on mental capacity is discriminatory in a way that violates Sec. 504 of the Rehabilitation Act. To answer this question, we must determine whether residency is essential to DPW's program and whether Niki can satisfy the residency requirement under a reasonable modification to DPW's policy. Easley v. Snider, 36 F.3d 297, 300 (3d Cir.1994). "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." Id. at 305. Accordingly, DPW must show that it cannot employ an exception to its residency policy that would accommodate profoundly retarded persons without incurring an undue burden or modifying the essential nature of its program.

II.

Section 504 of the Rehabilitation Act provides:

"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. Sec. 794(a) (1988 & Supp. IV 1992). As a recipient of federal financial assistance, DPW is subject to the requirements of Sec. 504. DPW maintains that Niki is not "otherwise qualified" for inclusion in Pennsylvania's mental retardation program because he is not a Pennsylvania resident. The Juvelises contend that Pennsylvania's policy for determining residency makes Niki's exclusion "solely by reason of" his retardation. DPW counters that it cannot modify implementation of its residency requirement in a way that would accommodate Niki's handicap without making fundamental changes to its program that would impose an undue burden on the Commonwealth.

III.

The Juvelises sued the Secretary of DPW alleging the policy violated Sec. 504 of the Rehabilitation Act, his constitutional right to travel, and his constitutional rights to procedural and substantive due process. Because there was no dispute as to any material fact, the district court referred the cross motions for summary judgment to the magistrate judge.

The magistrate judge issued a report and recommendation that plaintiff's motion for summary judgment be granted on the ground that DPW policy violated the Rehabilitation Act. ⁴ Both parties filed objections. The district court approved the magistrate judge's finding that DPW's policy violated Sec. 504, and, without setting a timetable, ordered DPW to develop and implement a mechanism that would allow the Commonwealth to apply its residency requirement in a manner that does not discriminate against retarded persons. Meanwhile, the court enjoined DPW from denying Niki benefits.

The Juvelises filed a motion for reconsideration, objecting that the court had failed to provide the parties an opportunity to be heard on the relief. The district court granted the motion for reconsideration, vacated its prior order, and ordered instead (1) approval and adoption of the magistrate judge's report and recommendation, (2) denial of DPW's motion for summary judgment, (3) grant of the Juvelises' motion for summary judgment, and (4) a declaration that DPW's residency policy violates Sec. 504 and that Niki is eligible for mental retardation services.

The district court had subject matter jurisdiction of these federal claims under 28 U.S.C. Secs. 1331 and 1343. We have jurisdiction of a final decision of the district court. 28 U.S.C. Sec. 1291 (1988). In reviewing dispositions on summary judgment, we apply the same test the district court should have used. 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).

IV.

This case presents the narrow question whether DPW can employ an exception to its residency policy that would accommodate a profoundly retarded person without incurring an undue burden or modifying the essential nature of the program. We believe it can.

A.

DPW maintains Niki neither is an "otherwise qualified" person, nor has been discriminated against because of his handicap. "An otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap." Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979). DPW contends Niki is not "otherwise qualified" because he lacks the capacity to form the intent to establish Delaware County or Pennsylvania as his residence. But "an individual may be otherwise qualified in some instances even though he cannot meet all of a program's requirements." Wagner v. Fair Acres Geriatric Center, 49 F.3d 1002, 1009 (3d Cir.1995). "The benefit ... cannot be defined in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled; to assure meaningful access, reasonable accommodations in the grantee's program or benefit may have to be made." Alexander v. Choate, 469 U.S. 287, 300, 105 S.Ct. 712, 719, 83 L.Ed.2d 661 (1985). Furthermore, we have recognized that Sec. 504 requires some affirmative steps to accommodate handicapped persons. Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1385 (3d Cir.1991). The burden is on the recipient of federal funds "to show that the required modification entails a substantial alteration in order to avoid a violation of the Act." Id. "[I]f there is no factual basis in the record demonstrating that accommodating the individual would require a fundamental modification or an undue burden, then the handicapped person is otherwise qualified and refusal to waive the requirement is discriminatory." Easley v. Snider, 36 F.3d at 302. See also Wagner, 49 F.3d at 1016-17 (summary judgment reversed because center failed to offer any factual basis demonstrating that admission of plaintiff would have changed the essential nature of the facility or imposed an undue burden).

DPW concedes that but for his inability to meet the residency test, Niki is qualified for participation in the program providing retardation services. Accordingly, DPW must demonstrate that accommodating Niki would require a fundamental modification of its program or impose an undue burden. This DPW has failed to do. ⁵

B.

DPW contends that accommodating Niki would impermissibly require modification of the essential nature of its program and impose an undue burden. "The first step in resolving this dispute must be to ascertain the essential nature of the ... program." Strathie v. Department of Transp., 716 F.2d 227, 231 (3d Cir.1983). The essential nature of the program is to provide mental retardation services for Pennsylvania residents. ⁶ Thus, DPW maintains, and we agree, that residency is...