Penn. Protection and Advocacy v. Penn. Dpw, 03-1461.

• Decision Date: 24 March 2005
• Docket Number: No. 03-1461.,03-1461.
• Citation: 402 F.3d 374
• Parties: PENNSYLVANIA PROTECTION AND ADVOCACY, INC., Appellant v. PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE; Feather Houstoun, in her official capacity as Secretary of Public welfare for the Commonwealth of Pennsylvania; Charles Curie, in his official capacity as Deputy Secretary for Mental Health and Substance Abuse Services; S. Reeves Power, Ph.D., in his official capacity as Superintendent of South Mountain Restoration Center; Mark S. Schweiker, in his official capacity as Governor of the Commonwealth of Pennsylvania; Gerald Radke, in his official capacity as Deputy Secretary for Mental Health and Substance Abuse Services Abuse Services.
• Court: U.S. Court of Appeals — Third Circuit

402 F.3d 374

PENNSYLVANIA PROTECTION AND ADVOCACY, INC., Appellant v. PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE; Feather Houstoun, in her official capacity as Secretary of Public welfare for the Commonwealth of Pennsylvania; Charles Curie, in his official capacity as Deputy Secretary for Mental Health and Substance Abuse Services; S. Reeves Power, Ph.D., in his official capacity as Superintendent of South Mountain Restoration Center; Mark S. Schweiker, in his official capacity as Governor of the Commonwealth of Pennsylvania; Gerald Radke, in his official capacity as Deputy Secretary for Mental Health and Substance Abuse Services Abuse Services.

No. 03-1461.

United States Court of Appeals, Third Circuit.

Argued October 26, 2004.

March 24, 2005.

COPYRIGHT MATERIAL OMITTED

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

Gerald J. Pappert, Attorney General, Calvin R. Koons (Argued), Senior Deputy Attorney General, John G. Knorr, III, Chief Deputy Attorney General, Office of Attorney General, Appellate Litigation Section, Harrisburg, PA, for Appellee.

Before NYGAARD, AMBRO, and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

This matter is the most recent in a line of cases involving the Commonwealth of Pennsylvania's Department of Public Welfare ("DPW") and various mental/nursing institutions administered by that agency.¹ At issue once again is the Commonwealth's alleged failure to comply effectively and expediently with the integration mandate and non-discriminatory administration provisions of Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12134, and Section 504 of the Rehabilitation Act ("RA"), 29 U.S.C. § 794. We hold that DPW's asserted defense to the integration mandate claim of Plaintiff-Appellant Pennsylvania Protection and Advocacy, Inc. ("PP & A") is legally insufficient and that the District Court erred in its legal conclusion that the nondiscriminatory administration provisions were not violated. As such, we remand for further proceedings consistent with this opinion.

I. Factual Background and Procedural History

PP & A is a nonprofit Pennsylvania corporation designated by the Commonwealth as the advocate and protector of the rights of individuals with disabilities, including those who are institutionalized. PP & A brought this action on behalf of residents of South Mountain Restoration Center ("South Mountain"), a "psychiatric transitional facility" run by DPW's Office of Mental Health and Substance Abuse Services ("OMHSAS"). South Mountain is the only nursing-type facility operated by the Commonwealth.

Under Pennsylvania's Mental Health and Mental Retardation Act of 1966 ("MH/MR Act"), 50 P.S. §§ 4101-4704, DPW is charged with providing suitable services to persons with mental illness and retardation. It endeavors to do so as a matter of official policy "in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). Consistent with this policy and the MH/MR Act, county mental health and retardation offices plan for and develop community-based mental health and retardation services, including residential services, for individuals who have serious and persistent mental illness and/or retardation.

DPW also provides services in the community for Pennsylvanians who are elderly and/or medically fragile, including programs that feature on-site nursing staff and extensive assistance with daily living activities. Some of the participants in these programs suffer from serious and persistent mental illness and also receive psychotherapeutic services. DPW employs state and federal funds to implement its programs.

The services and support offered by DPW enable many persons with mental disabilities who are also elderly and/or have serious medical needs, including those who might require nursing-facility level care, to live productively in their communities or other integrated settings. PP & A argues that residents of South Mountain are systematically denied participation in these varied and successful programs, depriving them of integrated treatment in violation of the ADA and the RA.

As of August 31, 2001, South Mountain had 175 residents (down from 1,091 in 1969 and 800 in 1985). The median age of the residents was 75, and over 90% of the residents were admitted from state psychiatric facilities. Many South Mountain residents have been institutionalized for decades in state-operated facilities (approximately 40 residents of whom have been institutionalized for more than 50 years).

In June 2000, in response to an inquiry from the Statewide Community Hospital Integration Planning Committee concerning the need for community-based services for residents of OMHSAS facilities, professional staff of South Mountain determined that 80% of its residents "could function in the community now if the necessary community support services were in place and operational" and that none of its residents were precluded from leaving "due to serious medical problems that cannot be met in the community." DPW concedes this report was submitted, but "dispute[s] that the statements are material" because the figures were computed on the assumption that "resources were unlimited, and resources are not unlimited."

PP & A filed its initial complaint in September 2000 and its second amended complaint, which is before us here, approximately one year later. The second amended complaint alleged that DPW was operating South Mountain in violation of the ADA and RA² because its failure to include South Mountain residents in integrated treatment programs (instead limiting them to institutionalized treatment at South Mountain) ran afoul of the laws' (i) mandate to integrate patients, where appropriate, in the community, and (ii) prohibiting against discriminatory administration. DPW vigorously disputed these allegations.

In January and February 2002, the parties filed cross-motions for summary judgment. In January 2003, after extensive discovery and briefing in connection with these motions, the District Court issued a Memorandum and Order granting DPW summary judgment and denying PP & A the same. The Court held as a matter of law that granting PP & A relief would require a fundamental alteration of DPW's programs, and thus it was shielded from liability by the "fundamental alteration" exception to the integration mandate described in Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999). The District Court's decision rested solely on this fundamental alteration ground. On the basis of its disposition of the integration mandate claim, the District Court also granted summary judgment to DPW on PP & A's discriminatory administration claim.

We review the District Court's grant of summary judgment here and, for the reasons described below, vacate the District Court's order and remand the case for further proceedings consistent with this opinion.

II. Jurisdiction and Standard of Review

PP & A filed its lawsuit pursuant to 42 U.S.C. § 1983, Title II of the ADA, 42 U.S.C. §§ 12131-12134, § 504 of the RA, 29 U.S.C. § 794, and Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. The District Court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We have appellate jurisdiction under 28 U.S.C. § 1291.

"We exercise plenary review over a district court's grant of summary judgment and apply the same standard as the district court; i.e., whether there are any genuine issues of material fact such that a reasonable jury could return a verdict for the plaintiffs." Debiec v. Cabot Corp., 352 F.3d 117, 128 n. 3 (3d Cir.2003) (citing Fed.R.Civ.P. 56(c)). We are required to review the record and draw inferences in a light most favorable to the non-moving party, id., yet the non-moving party must provide admissible evidence containing "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Pamintuan v. Nanticoke Mem'l Hosp., 192 F.3d 378, 387 n. 13 (3d Cir.1999); Wetzel v. Tucker, 139 F.3d 380, 383 n. 2 (3d Cir.1998).

III. Applicable Law

A. ADA and RA Integration Mandate

Primarily at issue in this case is the integration mandate embodied in the regulations that implement the ADA and RA.³ This mandate requires states to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d) (implementing the ADA's integration requirement); see also 28 C.F.R. § 41.51(d) (implementing the RA's integration requirement). "[T]he most integrated setting appropriate to the needs of qualified individuals with disabilities" is a setting that "enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible." 28 C.F.R. pt. 35 app. A. "In short, where appropriate for the patient, both the ADA and the RA favor integrated, community-based treatment over institutionalization." Frederick L., 364 F.3d at 491-92.

The integration mandate is qualified by the "fundamental alteration" exception, which provides that

[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

28 C.F.R. § 35.130(b)(7) (1998) (emphasis added).

This case requires us to construe the "fundamental alteration" defense to the integration mandate in light of the Supreme Court's opinion in Olmstead and our subsequent decision in Frederick L.⁴ In Olmstead, a plurality of the Supreme Court held that a violation of the integration mandate should be found when:

[1] the State's treatment professionals have determined that community placement is...