364 F.3d 487 | 3rd Cir. | 2004
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 ( “D PW ” ) 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. NSH is one such facility. App. at 717. [1] 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 s e r v i c e s , t h e i r c o n t i n u e d 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 28 C.F.R. § 35.130(d) (1998), and Section concerns alone do not provide the 504 of the Rehabilitation Act (“RA”), 29 C o m m o n w e a l t h g r o u n d s f o r 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 funding from the Commonwealth through [2] 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). 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 We may set aside the District available or rejected the request. App. at 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 to plenary review. See, e.g., Goldstein v. community care slots through savings in 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, This case arises under Title II of the 2002 in favor of DPW. Frederick L. v. Dep’t of Pub. Welfare, 217 F. Supp. 2d ADA and Section 504 of the RA. Title II 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. e x c l u d e d f r o m t h e 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 alleged that the State of Georgia violated activity receiving Federal financial assistance or under the ADA integration mandate by any program or activity unnecessarily segregating them in mental health institutions and failing to place conducted by any Executive 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 c o n c l u s i o n t h a t u n j u s t i f i e d 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 constitute discrimination. Id. at 597. The ADA and RA’s anti- 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 plurality, [3] emphasized that the integration m o d i f i c a t i o n s w o u l d mandate “is not boundless.” Id. at 603. It fundamentally alter the is quali fied b y the “reasonable nature of the service, modifications” and “fund ame ntal- 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 p r o c e d u r e s w h e n t h 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 i o n a l s h a v e the public entity can determined that community demonstrate that making the placement is appropriate, [2]
t h e t r a n s f e r f r o m institutional care to a less restrictive setting is not [3] 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
Here, the parties do not dispute that f u n d a m e n t a l - a l t e r a t i o n Appellants have satisfied the first two c o m p o n e n t o f t h e 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 popu lation of
p e r s o n s w i th m e n t a l disabilities. C. Reasonable Modifications and the 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. 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 Id. at 612-13 (Kennedy, J., concurring). [5] limited of circumstances”).
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 s t i t u t i o n a l 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. 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 have focused on the following statement in obligation to administer services with an 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 e s t a b l i s h t h a t a decision in this case. “fundamental alteration”
would be required if the III. relief sought by plaintiffs – a cc e lera ted 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 rgu e 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 a l t e r a t i o n d e f e n s e . F u r t h e r m o r e , deinstitutionalization. Appellants continue, these cost concerns 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 o f 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 t h e a c c o m m o d a t i o n 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
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 c o m m u n i t y p l a c e m e n t s a n d t h e 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 A f t e r h o l d i n g t h a t 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 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).
A p p e l l a n t s c h a l le n g e t h 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). 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 und er the Go v e rnor’ 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 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 OMHSAS administrators, mental health B. Past Progress and Future Planning 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
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 The emp hasis on a hospital population is an important aspect c o m p r e h e n s i v e p l a n of this changing healthcare environment.
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 b e f o r e u s a l s o c r e d i t e d t h e realities.” Id. at 593. Commonwealth’s past progress. See
Frederick L., 217 F. Supp. 2d at 593. There is no reference in Olmstead t o a s t a t e ’ s p a s t p r o g r e s s i n Although the District Court did not deinstitutionalization as relevant to err in tak ing 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 f u t u r e p l a n s t o c o n t i n u e 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 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 p l a c e m e n t , b u t w h e t h e r t h e In analyzing whether there was Commonwealth has given assurance that sufficient evidence before the District Court to justify its acceptance of the there will be. In that connection what is needed at the very least is a plan that is Commonwealth’s fundamental-alteration defense, we conclude that its factual communicated in some manner. The D i s t r i c t C o u r t a c c e p t e d t h e findings are fully supported by the Commonwealth’s reliance on past progress evidence of record. As noted in the foregoing discussion, many of the court’s without requiring a commitment by it to take all reasonable steps to continue that conclusions of law are also consistent with progress. Under the circumstances the governing legal principles. We believe that the cost constraints make it presented here, our reading of Olmstead would require no less. inappropriate for us to direct DPW to
develop 60 community residential slots per year as Appellants request. Unlike After all, what is at issue is compliance with two federal statutes Appellants, we credit the Commonwealth enacted to protect disabled persons. The f o r i t s p a s t p r o g r e s s i n deinstitutionalization. We depart from the courts have held states throughout the country responsible for finding the manner District Court’s analysis in its assumption or prediction that past actions auger future to integrate the schools, improve prison conditions, and equalize funding to commitments. schools within the respective states, Accordingly, we will vacate the notwithstanding the states’ protestations 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 make a submission that the District Court can evaluate to determine whether it complies with this opinion.
NOTES
[4] Under this scheme, the plaintiff first of the plurality, but did not believe the 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
