L.C., by JONATHAN ZIMRING as guardian ad litem and next friend; E.W., Plaintiffs-Appellees, versus TOMMY OLMSTEAD, Commissioner of the Department of Human Resources; RICHARD FIELDS, Superintendent of Georgia Regional Hospital at Atlanta; EARNESTINE PITTMAN, Executive Director of the Fulton County Regional Board, all in their official capacities; Defendants-Appellants.
No. 97-8538
United States Court of Appeals for the Eleventh Circuit
April 8, 1998
D. C. Docket No. 1:95-CV-1210-MHS. Appeal from the United States District Court for the Northern District of Georgia. [PUBLISH]
Before TJOFLAT and BARKETT, Circuit Judges, and PROPST*, Senior District Judge.
In granting summary judgment in favor of L.C. and E.W., the district court declared that the State‘s failure to place them in an appropriate community-based treatment program, instead confining them at the state hospital, violates the anti-discrimination provision of Title II of the ADA,
We affirm the district court‘s judgment that the State discriminated against L.C. and E.W. by confining them in a segregated institution rather than in an integrated community-based program. However, we remand this case to the district court for further findings related to the State‘s defense that the relief sought by plaintiffs would “fundamentally alter the nature of the service, program, or activity.”
DISCUSSION
This case presents the question, one of first impression in this circuit, whether
The State has not pointed to any legal authority that supports such a reading of Title II of the ADA and its integration regulation,
We analyze the applicability of the ADA and its regulations first by discussing the plain language of Title II of the ADA and
I.
Title II of the ADA prohibits discrimination against individuals with disabilities in the provision of public services by state and local governments. Section 12132 provides that “no qualified individual with a disability shall, by reason of his disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
Under the statutory scheme of Title II, Congress entrusted the Attorney General with the authority to define the scope of the prohibitions set forth in
Under the Attorney General‘s Title II implementing regulations, “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”
By definition, where, as here, the State confines an individual with a disability in an institutionalized setting when a community placement is appropriate, the State has violated the
Because the express terms of
II.
After review, we are unable to credit the State‘s argument that the ADA does not bar a state from providing public services for individuals with disabilities in a segregated manner because every indication of congressional intent confirms that the ADA applies to the circumstances presented here. As noted earlier, in passing the ADA, Congress mandated that the Attorney General promulgate regulations consistent with the coordination regulations issued pursuant to
It is well-settled that where “a Congress that re-enacts a statute voices its approval of an administrative . . . interpretation thereof, Congress is treated as having adopted that interpretation, and this Court is bound thereby.” United States v. Board of Comm‘rs of Sheffield, Ala., 435 U.S. 110, 134 (1978); Don E. Williams Co. v. Commissioner, 429 U.S. 569, 576-77 (1977). Although Title II of the ADA did not re-enact
Congress’ determination that public services be provided in the most integrated setting
Indeed, the legislative history makes clear that Congress considered the provision of segregated services to individuals with disabilities a form of discrimination prohibited by the ADA. See S. Rep. No. 101-116 at 20 (1989) (noting “compelling need to provide a clear and comprehensive national mandate . . . for the integration of persons with disabilities into the economic and social mainstream of American life“); H.R. Rep. No. 101-485, pt. 2 at 29 (1990) (listing “segregation” as a form of “[d]iscrimination against people with disabilities“); H.R. Rep. No. 101-485, pt. 3 at 26 (1990) (“The ADA is a comprehensive piece of civil rights legislation which promises a new future: a future of inclusion and integration, and the end of exclusion and segregation.“). Noting that “[t]he purpose of Title II is to continue to break down barriers to the integrated participation of people with disabilities in all aspects of community life,” id. at 49-50, the House Committee on the Judiciary explained that “integrated services are essential to
Accordingly, because
We see nothing in the ADA‘s requirement that discrimination be “by reason of such disability” that warrants a different result. The fact that L.C. and E.W. seek community-based treatment services that only disabled persons need does not foreclose their claim that they were unnecessarily segregated. The ADA does not only mandate that individuals with disabilities be treated the same as persons without such disabilities. Underlying the ADA‘s prohibitions is the notion that individuals with disabilities must be accorded reasonable accommodations not offered to other persons in order to ensure that individuals with disabilities enjoy “equality of opportunity, full participation, independent living, and economic self-sufficiency . . . .”
For example, under Title I of the ADA, employers may not terminate individuals with known disabilities who can perform the essential functions of the job with a reasonable accommodation even though the employer need not offer similar accommodations to nondisabled employees. See Harris, 102 F.3d at 519 (noting that the ADA “operates to create an affirmative duty for employers to reasonably accommodate individuals with disabilities“); see also Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1021-22 (7th Cir. 1997) (noting that the “ADA encompasses two distinct types of discrimination“: “treating a ‘qualified individual with a disability’ differently because of the disability, i.e. disparate treatment” and “failing to provide a reasonable accommodation“). The employer‘s failure to live up to its duty to provide a reasonable accommodation is unlawful disability-based discrimination. See Stewart v. Happy Herman‘s Chesire Bridge, 117 F.3d 1278, 1285 (11th Cir. 1997) (“[A] qualified individual with a disability may be unlawfully discriminated against because of the individual‘s disability when the individual‘s employer does not reasonably accommodate the disability – unless such an accommodation would impose an undue hardship on the employer.“); see also Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1224 (11th Cir. 1997) (noting that ADA defines discrimination to include failure to make reasonable accommodations to a qualified individual with a disability).
Here, the Attorney General, guided by Congress’ explicit approval of the § 504
Furthermore, a separate section of both the § 504 coordination regulations and the ADA Title II regulations prohibits a public entity from providing “different or separate” services to individuals with disabilities or a class of individuals with disabilities from those provided to
Moreover, the State‘s interpretation of Title II would undermine the congressional intent to end the exclusion and segregation of individuals with disabilities, as expressed in
Further, while the State did not deny L.C. and E.W. community-based placements out of a malevolent intent to segregate them from the community, their indifference to L.C.‘s and
Discrimination against the handicapped was perceived by Congress to be most often the product, not of invidious animus, but rather of thoughtlessness and indifference – of benign neglect. Thus, Representative Vanik . . . described the treatment of the handicapped as one the country‘s “most shameful oversights,” which caused the handicapped to live among society “shunted aside, hidden, and ignored.” . . . Federal agencies and commentators on the plight of the handicapped similarly have found that discrimination against the handicapped is primarily the result of apathetic attitudes rather than affirmative animus.
Id. at 295-96 (footnotes omitted) (citations omitted). Indeed, Justice Marshall‘s opinion for the Court made clear that “much of the conduct that Congress sought to alter in passing the Rehabilitation Act would be difficult if not impossible to reach were the Act construed to proscribe only conduct fueled by a discriminatory intent.” Id. at 296-97. These same concerns underlie the ADA. “[T]he ADA attempts to eliminate the effects of that ‘benign neglect,’ ‘apathy,’ and ‘indifference.‘” Helen L., 46 F.3d at 335; see also H.R. Rep. No. 101-485, pt. 3 at 50 (“‘[T]he goal is to eradicate the invisibility of the handicapped.‘“) (quoting ADAPT v. Skinner, 881 F.2d 1184, 1204 (3d Cir. 1989) (en banc) (Mansmann, J, concurring in part and dissenting in part)). The State‘s failure to place L.C. and E.W. in the community thus falls squarely within the ADA‘s ban on disability-based discrimination.
Nor do any of the cases cited by the State require a different conclusion. The State relies heavily on our en banc decision in S.H. v. Edwards, 886 F.2d 292 (11th Cir. 1989) (en banc), as well as several cases decided by other Circuits, see P.C. v. McLaughlin, 913 F.2d 1033 (2d Cir. 1990);
While it is true that we generally look to Rehabilitation Act precedents in construing the ADA, see Duckett, 120 F.3d at 1225 n.1, none of the cases cited by the State involved claims under the express integration regulation of either the ADA or the § 504 coordination regulations, and therefore, those cases are inapposite here. See Helen L., 46 F.3d at 333-34 (distinguishing prior Rehabilitation Act precedent on this ground).
In S.H., for example, we considered “‘plaintiffs’ claims for relief in the nature of habilitation in the least restrictive environment in accordance with the recommendation of professional treatment staff.‘” S.H., 886 F.2d at 293. S.H. did not involve the integration regulation of either
Finally, we also reject the State‘s suggestion that L.C.‘s and E.W.‘s ADA claim must fail because the denial of community-based placements was based on a lack of funds, not on L.C.‘s and E.W‘s disabilities. Under the ADA, as under Title VII of the Civil Rights Act, “the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy
The fact that it is more convenient, either administratively or fiscally, to provide services in a segregated manner, does not constitute a valid justification for separate or different services under Section 504 of the Rehabilitation Act, or under this title. . . . The existence of such programs can never be used as a basis to . . . refuse to provide an accommodation in a regular setting.
H.R. Rep. No. 101-485, pt. 3 at 50. The State‘s argument that its lack of funds makes its refusal to provide integrated services non-discriminatory is inconsistent with the ADA‘s statutory scheme and would permit a public entity to justify its refusal to comply with the ADA by asserting that it lacked the money to do so.
We emphasize that our holding does not mandate the deinstitutionalization of individuals with disabilities. Instead, we hold that where, as here, a disabled individual‘s treating professionals find that a community-based placement is appropriate for that individual, the ADA imposes a duty to provide treatment in a community setting – the most integrated setting appropriate to that patient‘s needs. Where there is no such finding, on the other hand, nothing in
III.
The State also argues that the district court erred in granting summary judgment to E.W. because there is a disputed issue of fact regarding whether E.W could be placed in a community-based treatment program. We review the district court‘s grant of summary judgment de novo, applying the same standards as the district court. Harris, 102 F.3d at 518. Summary judgment is appropriate if the pleadings, depositions, and affidavits show that no genuine issue of material fact exists for trial and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We must view all evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party. Harris, 102 F.3d at 519.
The State concedes that, at times during the course of this litigation, its own experts found that E.W. could be placed in a community treatment program. However, it claims that because, at other times, those experts maintained that E.W. should receive treatment in an institutionalized setting, a genuine issue of material fact exists as to whether community-based treatment was a possibility for E.W. In particular, the State points to the statements of Dr. Gary DeBacher, the chief of the Psychology staff at GRH-A, Joseph Steed, a behavioral specialist with the Fulton County Regional Board, and Gloria Sheppard, a member of the Board‘s Comprehensive Evaluation Team. As the State argues, these experts found that E.W. could not be placed in the community at certain times during this litigation. At the same time, however, these experts testified that a community-based placement would be appropriate for E.W. once
In light of the testimony and considering the record as a whole, we reject the State‘s argument that the district court‘s grant of summary judgment was in error. All the experts, including E.W‘s treating physician, were unanimous that E.W. could be appropriately placed in a community-based treatment program, provided that it could give E.W. the level of care and supervision she needed.9 The State has not suggested that such placements were not available to E.W. Indeed, they were able to find such a placement for E.W. after the district court‘s judgment.
We do not suggest that should a trial court find that a patient, for medical reasons, needs institutionalized care, it must nonetheless order placement in a community-based treatment program. We recognize that the determination whether a patient can be appropriately placed in a community-based treatment program is a fluid one, subject to change as the patient‘s medical condition improves or worsens. Over the course of litigation, there may be times that a patient can be treated in the community, and others where an institutional placement is necessary. But
Under these principles, the district court correctly denied the State‘s motion for summary judgment. Summary judgment is not precluded here by the fact that, at earlier times in the litigation, some of the State‘s experts opined that E.W. could not be placed in the community immediately. None of the State‘s experts concluded that E.W. needed to be placed at GRH-A on a long-term basis. At most, they believed that, in the short term, continued hospitalization was necessary in order to permit E.W. to make the transition to a community-based living arrangement in a group home. Although one of the State‘s experts, Joseph Steed, expressed concerns that E.W. would not progress to the point where she could be placed in the community, the evidence in the record shows that, in the spring and summer of 1996 – after Steed‘s initial assessment as well as the others cited by the State – GRH-A attempted to find a community placement for E.W, but could not because there were no available state Medicaid waiver funds for such a placement.
Accordingly, because the State‘s own professionals agreed that E.W. could be placed in a less segregated setting, the State has failed to demonstrate that there is a material issue of fact for trial as required by Fed. R. Civ. P. 56. Accordingly, the grant of summary judgment was not in error.
In Part II we rejected the State‘s argument that it complied with the ADA in this case because the denial of community placements to L.C. and E.W. was based on the State‘s lack of funds, not on plaintiffs’ disabilities. We must now address whether the lack of available funding provides the State a defense to plaintiffs’ ADA claim.
Notwithstanding that under the ADA and its Title II regulations the State has a duty to provide integrated services when the patient‘s care warrants such services, that duty is not absolute. As discussed above, the State need not provide these services if to do so would require a fundamental alteration in its programs. Under Title II, “[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.”
L.C. and E.W. have demonstrated that the State may reasonably modify its provision of services by providing treatment to them in an integrated setting. L.C. and E.W. point out that, under Georgia law, the State has the authority to transfer funds between institutional and community-based treatment programs based on need.
The availability of these alternate sources of funding makes L.C.‘s and E.W.‘s request for modification of the State‘s program of providing services to disabled persons a reasonable one “‘in the run of cases.‘” Willis, 108 F.3d at 286 n.2 (quoting Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993)). Accordingly, it is the State‘s duty to demonstrate that providing treatment to L.C. and E.W. fundamentally alters the nature of the service it provides “‘in the context of the particular agency‘s operations.‘” Id.; Helen L., 46 F.3d at 337; H.R. Rep. No. 101-485, pt. 3 at 51 (noting importance of “size and budget” of the particular agency).
The State does not argue that the relief requested by L.C. and E.W. will effect a fundamental alteration by requiring it to dismantle its provision of institutionalized care to individuals with disabilities. Instead, the State argues that it lacks the funds to provide community-based services to L.C. and E.W. The district court rejected this argument, reasoning that the State could provide community-based services to L.C. and E.W. at less cost than providing institutional care for them at GRH-A. Accordingly, it found that the State‘s purported lack of funds to provide community-based services to L.C. and E.W. was insufficient as a matter of law to establish that providing community-based care to plaintiffs would constitute a fundamental alteration.
Under the ADA, as with other federal statutes, “[i]nadequate state appropriations do not excuse noncompliance” with federal law. Alabama Nursing Home Ass‘n v. Harris, 617 F.2d 388, 396 (5th Cir. 1980) (Medicaid Act); see also Doe v. Chiles, No. 96-5144, (11th Cir. Feb. 26, 1998) (same); Tallahassee Memorial Regional Med. Ctr. v. Cook, 109 F.3d 693, 704 (11th Cir. 1997) (same). Having chosen to provide services to individuals with disabilities, the State – both
Our cases make clear that the ADA does not permit the State to justify its discriminatory treatment of individuals with disabilities on the grounds that providing non-discriminatory treatment will require additional expenditures of state funds. We recognized this principle in United States v. Board of Trustees for University of Alabama, 908 F.2d 740 (11th Cir. 1990). There, we held that, considering the size of the University of Alabama‘s transportation budget, the University failed to show that an additional expenditure of $15,000 to modify its bus system to reasonably accommodate individuals with disabilities would impose an undue financial hardship. The University could not simply claim that it lacked the funds to make these modifications in its bus system; rather it could only justify its discriminatory treatment by demonstrating that its transportation budget could not be reasonably modified to take account of the needs of the disabled. In light of its “annual transportation budget of $1.2 million,” we concluded that requiring minimal additional expenditures of $15,000 would not “cause an undue financial burden on UAB.” Id. at 751.
The district court did not consider whether treating L.C. and E.W. would require additional expenditures and if so, whether the State had met its burden of proving that those expenditures were unreasonable in light of the State‘s mental health budget. Instead, it noted that the State currently provided community-based services to individuals with disabilities and that such services could be provided at less cost than segregated services. Based on these two factors, the district court concluded that the State had failed to show that providing community-
There is evidence in the record that suggests that, because of fixed overhead costs associated with providing institutional care, the State will be able to save money by moving patients from institutionalized care to community-based care only when it shuts down entire hospitals or hospital wings, but not when it moves one or two patients from a hospital into the community. See Olmstead Dep. at 78-80; Bliss Dep. at 33-34. Thus, it may be that requiring the State to treat L.C. and E.W. in a community-based program will require additional expenditure of state funds.
Nonetheless, the ADA may still require the State to expend additional funds in order to provide L.C. and E.W. with integrated services. Unless the State can prove that requiring it to make these additional expenditures would be so unreasonable given the demands of the State‘s mental health budget that it would fundamentally alter the service it provides, the ADA requires the State to make these additional expenditures. Because the district court did not consider this question and because of the complexity of the factual issues concerning the funding for mental health services in Georgia, we remand this case to the district court for further proceedings on this issue. In determining whether the State can meet its burden of establishing a fundamental alteration, the district court should consider, among other things: (1) whether the additional expenditures necessary to treat L.C. and E.W. in community-based care would be unreasonable given the demands of the State‘s mental health budget; (2) whether it would be unreasonable to require the State to use additional available Medicaid waiver slots, as well as its authority under Georgia law to transfer funds from institutionalized care to community-based care, to minimize any financial burden on the State; and (3) whether any difference in the cost of providing
Accordingly, the judgment of the district court is AFFIRMED and the case is REMANDED for further proceedings consistent with this opinion.