                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-8-2005

L. v. Dept Pub Welfare PA
Precedential or Non-Precedential: Precedential

Docket No. 04-3859




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                                      PRECEDENTIAL

 IN THE UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               ____________

                   No. 04-3859
                  ____________

          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))
                  ____________

    Appeal from the United States District Court
      For the Eastern District of Pennsylvania
               D.C. No.: 00-cv-04510
    District Judge: Honorable Berle M. Schiller
                   ____________
                    Argued: July 12, 2005

Before: SLOVITER, McKEE, and ROSENN, Circuit Judges

                 (Filed: September 8, 2005)

Mark J. Murphy (Argued)
Robert W. Meek
Disabilities Law Project
1315 Walnut Street, Suite 400
Philadelphia, PA 19107

       Counsel for Appellants

Claudia M. Tesoro (Argued)
Office of Attorney General of Pennsylvania
21 South 12th Street, 3rd Floor
Philadelphia, PA 19107

       Counsel for Appellees
                      ____________

                 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



                                2
mental health patients 1 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



  1
   For purposes of these proceedings, long-term mental health
patients are those confined to Norristown State Hospital for
more than two years.
  2
   42 U.S.C. § 12132 provides in relevant part: “[N]o qualified
individual with a disability shall, by reason of such 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.”
      3
     28 C.F.R. § 35.130(d) provides: “A public entity shall
administer services, programs, and activities in the most
integrated setting appropriate to the needs of qualified
individuals with disabilities.”

                                 3
the Rehabilitation Act, 29 U.S.C. § 794 4 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 P A. S TAT. A NN. § 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 (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

      4
    29 U.S.C. § 794 provides in relevant part: “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 or
under any program or activity conducted by any Executive
agency or by the United States Postal Service.”
  5
   28 C.F.R. § 41.51(d) provides: “Recipients shall administer
programs and activities in the most integrated setting
appropriate to the needs of qualified handicapped persons.”


  6
  Estelle B. Richman is also listed as an appellee in her official
capacity as Secretary of Public Welfare of the Commonwealth
of Pennsylvania. For simplicity, we refer to appellees
collectively as “DPW.”

                                 4
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). 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


  7
    In addition to its responsibilities for the care, maintenance,
and treatment of the mentally ill in state institutions, DPW also
has similar responsibilities for the mentally retarded. 50 P A .
S TAT. A NN. § 4201. It also provides for public assistance to the
poor and needy of the state, assistance to the blind, and operates
institutions for juvenile delinquents. See Public Welfare Code,
62 P A. S TAT. A NN. § 101 et seq..

                                5
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

                                6
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

                                7
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

                               8
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 governed by

                                9
Olmstead. Frederick L. II, 364 F.3d at 492. Olmstead
requires that patients eligible and desirous of community
placement be discharged into community-based programs if
placement can be reasonably accommodated,8 taking into
account the resources of the state and the needs of other
persons in its care. Olmstead, 527 U.S. at 587.
Pennsylvania’s Mental Health and Mental Retardation Act of
1966 (“MH/MR Act” or “Act”), 50 P A. S TAT. A NN. § 4101 et
seq., identifies the county as the responsible entity for
providing community-based mental heath services.9 DPW is


      8
      A reasonable accommodation may be a “reasonable
modification to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or the
provision of auxiliary aids and services.” 42 U.S.C. § 12131(2).


  9
    50 P A. S TAT. A NN. § 4301 provides in relevant part:
(a)    The local authorities of each county separately or in
       concert with another county or counties . . . shall
       establish a county mental health and mental retardation
       program for the prevention of mental disability, and for
       the diagnosis, care, treatment, rehabilitation and
       detention of the mentally disabled and shall have power
       to make appropriations for such purposes.
                              ***
(d)    [I]t shall be the duty of local authorities in cooperation
       with the department to insure that the following mental
       health and mental retardation services are available:
                              ***

                               10
obligated by both federal and state law to integrate eligible
patients into local community-based settings.

        However, the integration mandate “is not boundless.”
Olmstead, 527 U.S. at 603. As the Supreme Court noted in
Olmstead, the integration imperative is qualified by the
“fundamental alteration” defense, under which integration
may be excused if it would result in a “fundamental
alteration” of the state’s mental health system, for example,
one that would cause the state to disregard or neglect the
needs of other institutionalized patients. See id. at 604. The
Supreme Court also noted that a state may defend against
integration claims by providing “a comprehensive, effectively
working plan for placing qualified persons with mental
disabilities in less restrictive settings, and a waiting list that
moved at a reasonable pace not controlled by the State's
endeavors to keep its institutions fully populated.” Id. at
605–606.

        We interpret the Supreme Court’s opinion to mean that
a comprehensive working plan is a necessary component of a
successful “fundamental alteration” defense in these
proceedings. Thus, although we uphold the District Court’s
factual conclusion that accelerating community placements
would constrain the state’s ability to satisfy the needs of other
institutionalized patients, DPW may not avail itself of the
“fundamental alteration” defense to relieve its obligation to



      (6) Aftercare services for persons released from State and
County facilities.

                               11
deinstitutionalize eligible patients without establishing a plan
that adequately demonstrates a reasonably specific and
measurable commitment to deinstitutionalization for which
DPW may be held accountable. Although DPW attempted to
construct such a plan, we are not persuaded that its efforts
have been sufficient.

        The cornerstone of DPW’s deinstitutionalization plan
is the Community/Hospital Integration Projects Program
(“CHIPP”). CHIPP was designed by DPW to reorient “the
focus of mental health services away from reliance on large
[mental health] institutions to community based treatment.”
Despite this commendable goal, however, CHIPP appears to
have missed its mark. Although the initial CHIPP draft plan
contained measurable goals, including plans to “[c]ontinue
downsizing state hospital census at minimum 250 beds
annually,” as well as closing “all civil beds in at least three
state psychiatric hospitals,” the plan that DPW eventually
disseminated abandoned the target closures. The final plan
substituted the more amorphous, i.e., non-specific, goal of
closing “up to 250 CHIPP beds a year.”

       In addition, although the CHIPP plan directed the
county/regional planning offices to submit five-year plans to
effectuate DPW’s deinstitutionalization goals, DPW
inexplicably failed to implement any plan for the first
designated year.

       Finally, DPW requested that each of the state’s nine
regions served by a state psychiatric hospital submit a formal
written plan, called a “Service Area Plan” (“SAP”), for

                               12
implementing the 2002 CHIPP plan.10 Despite receiving all
nine SAPs, however, DPW’s post-remand submissions lacked
any commitment to implement the SAPs in whole or part.
Nor did DPW commit to use the regional SAPs to develop a
coordinated statewide plan that accounted for the needs of
Patients as well as those otherwise institutionalized.

        In attempting to defend the CHIPP plan against
charges of being ineffectual, the Deputy Secretary of DPW’s
Office of Mental Health and Substance Abuse Service
(“OMHSAS”) declared in his post-remand submission that
CHIPP “was never intended to be the ‘last word’ on what
OMHSAS planned to do from that date forward in terms of
serving Pennsylvanians with mental illness. It was, however,
a step that formalized the larger planning and service-delivery
process, and it set forth a framework for future steps.”
However, that is precisely the infirmity with DPW’s proposed
plan for deinstitutionalization, namely its failure to set forth
reasonably specific and measurable targets for community
placement.



   10
      Each SAP was to assess the needs of its regional target
population to reach three goals within five years: (a) attaining
a maximum term of institutionalization of two years for all
patients; (b) limiting a patient’s involuntary commitment to
twice in one year; (c) reduction of the incarceration rate for the
target population, with the intent to provide treatment in lieu of
jail for those mental patients who have run afoul of the criminal
laws.

                               13
                DPW’s post-remand submissions promised the
District Court that “[t]here will be no reversal of the
Department’s proven commitment to deinstitutionalization
throughout our state hospital system.” However, DPW has
failed to demonstrate in reasonably measurable terms how it
will comply with this commitment. In Frederick L. II we
explained that “[o]ne of our principal concerns is the absence
of anything that can fairly be considered a plan for the
future.” Frederick L. II, 364 F.3d at 500. Yet DPW remains
silent as to when, if ever, eligible patients at NSH can expect
to be discharged. Instead, DPW proffers general assurances
and good faith intentions to effectuate deinstitutionalization.
General assurances and good-faith intentions neither meet the
federal laws nor a patient’s expectations. Their
implementation may change with each administration or
Secretary of Welfare, regardless of how genuine; they are
simply insufficient guarantors in light of the hardship daily
inflicted upon patients through unnecessary and indefinite
institutionalization. Thus, notwithstanding any announced
commitment to deinstitutionalization, DPW’s failure to
articulate this commitment in the form of an adequately
specific comprehensive plan for placing eligible patients in
community-based programs by a target date places the
“fundamental alteration defense” beyond its reach.

                              II.

      Many years before the enactment of the ADA,
Pennsylvania adopted an enlightened program for the
mentally ill and mentally retarded. Under the leadership of
Governor William W. Scranton, it passed Pennsylvania’s

                              14
Mental Health and Mental Retardation Act of 1966. That
legislation set the stage for the deinstitutionalization,
whenever possible, of mental health patients and the mentally
retarded. The Act created a delicate and venturesome balance
between the counties and local communities on the one hand
and the State on the other. It also fashioned a difficult but
important role for the DPW in managing the responsibilities
of all the parties in meeting the aftercare and maintenance
needs of the deinstitutionalized patients.

        We recognize that the structure of the MH/MR Act
poses difficult problems for the State in meeting specific
numerical goals in placing eligible patients in community-
based programs. Although DPW has broad supervisory duties
over county authorities and the State provides 90% of the
funding, county authorities are the entities charged with
responsibility for aftercare services. This includes
community-based services for individuals discharged from
state hospitals. 50 P A. S TAT. A NN. § 4301(d)(6) (“[I]t shall be
the duty of local authorities in cooperation with [DPW] to
insure [the availability of] [a]ftercare services for persons
released from State and County facilities.”); see also In re
Wayne K, 382 A.2d 989, 991 (Pa. Cmmw. Ct. 1978). In
carrying out these responsibilities, counties are not mere
agents of DPW; rather, the State and counties are partners,
each with separate responsibilities. “The State, through
[DPW], is responsible for the overall supervision and control
of the program to assure the availability of and equitable
provision for adequate mental health and mental retardation
facilities, and the counties, separately or in concert, are
assigned responsibilities as to the particular programs.”

                               15
Hoolick v. Retreat State Hosp., 354 A.2d 609, 611 (Pa.
Cmmw. Ct. 1976).

        Along with DPW’s supervisory responsibilities, the
MH/MR Act charges it with the power and duty “to make . . .
and enforce all regulations necessary and appropriate to the
proper accomplishment of the . . . duties and functions
imposed by this act.” 50 P A. S TAT. A NN. § 4201(2). The
State and the counties are also required by statute to consult
with each other and to cooperate. See 50 P A. S TAT. A NN. §§
4201(3), 4301(d). To this end, DPW reviews each county’s
annual plan for providing mental health services and makes
grants to the counties on the basis of those plans. In cases
where sufficient funds are not available to DPW to pay the
full amount of all county budget requests, DPW has the duty
“to distribute State funds among the counties by a formula
reasonably designed to achieve the objectives of [the MH/MR
Act].” 50 P A. S TAT. A NN. § 4509(5). If DPW does not fund,
or does not fully fund, a county program, the county is
“required to provide only those services for which sufficient
funds are available.” Id. In addition, counties may request
one-year waivers from DPW for relief from their obligations
to provide statutorily mandated services under certain
circumstances, for example, when they are unable, or it would
be economically unsound, to provide the services. 50 P A.
S TAT. A NN. § 4508(a).

       The administration of such a program, involving the
participation of not only the State, State funding, and
participation by the counties, including fund allocation, is not
only difficult to manage, but equally difficult to create. Yet,

                               16
DPW is the entity finally charged with ensuring that the State
and counties comply with their duties. The MH/MR Act
requires DPW to “assure . . . the availability and equitable
provision of adequate . . . services,” 50 P A. S TAT. A NN. §
4201(1), and “to consult with and assist each county in
carrying out . . . duties and functions imposed by this act,” 50
P A. S TAT. A NN. § 4201(3). Therefore, we can see no other
appropriate alternative but to require DPW to ensure that the
State and the counties comply with the mandates of the
MH/MR Act and the applicable federal laws.

                                    III.

       DPW’s inability to invoke the “fundamental alteration”
defense leaves unfulfilled its responsibility to provide Patients
with their requested relief. Having reached this conclusion, it
may be helpful to the District Court if we offer some
guidelines to it in evaluating DPW’s plan for
deinstitutionalization of its patients at NSH.

       In attempting to address the deinstitutionalization
process, there are financial and medical constraints that
burden DPW and inhibit its ability readily to set forth
measurable goals for deinstitutionalization. Furthermore, we
acknowledge that the judiciary is ill-suited to second guess
DPW’s expertise in devising a regimen of community
placement. Ideally, complicated issues such as these are
confided to the entity legislatively charged with oversight.
However, where, as here, the equally compelling concerns of
discrimination and Patients’ rights are in tension with state
agency planning, objective judicial guidance may be helpful.

                               17
        The lengthy procedural history of this case reveals that
we would be promoting confusion rather than clarity if we
were to remand without providing DPW some specifics that
are critically important to a comprehensive, effectively
working plan. To alleviate the concerns articulated in
Olmstead, we believe that a viable integration plan at a bare
minimum should specify the time-frame or target date for
patient discharge, the approximate number of patients to be
discharged each time period, the eligibility for discharge, and
a general description of the collaboration required between
the local authorities and the housing, transportation, care, and
education agencies to effectuate integration into the
community.

                              IV.

      Accordingly, the District Court’s judgment will be
vacated and the case remanded to the District Court for
proceedings consistent with this opinion. Each side to bear its
own costs.




                               18
