                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-31-1995

Helen v DiDario
Precedential or Non-Precedential:

Docket 94-1243




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            UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT



                     No. 94-1243



          HELEN L., BEVERLY D., FLORENCE H.,
      ILENE F., IDELL S., and AMERICAN DISABLED
     FOR ATTENDANT PROGRAMS TODAY ("A.D.A.P.T.")

                               Idell S., Appellant

                          v.

       ALBERT L. DiDARIO, individually and in his
    official capacity as Superintendent of Norristown
  State Hospital, and KAREN F. SNIDER, in her capacity
as Secretary, Pennsylvania Department of Public Welfare

                               Karen F. Snider, Appellee



     Appeal from the United States District Court
       for the Eastern District of Pennsylvania
           (D.C. Civil Action No. 92-6054)



              Argued September 13, 1994

   Before: MANSMANN, COWEN and McKEE, Circuit Judges

           Opinion Filed: January 31, l995



                   ILENE SHANE, ESQ.
                   ROBIN RESNICK, ESQ.
                   Disabilities Law Project
                   801 Arch Street, Suite 610
                   Philadelphia, PA 19107

                   STEPHEN F. GOLD, ESQ. (Argued)
                   Suite 700
                   125 South 9th Street
                   Philadelphia, PA 19107
                              Attorneys for Appellant

                         JOHN A. KANE, ESQ.
                         HOWARD ULAN, ESQ. (Argued)
                         Department of Public Welfare
                         Office of Legal Counsel
                         Room 305, Health & Welfare Building
                         Harrisburg, PA 17120

                              Attorneys for Appellee

                         DEVAL L. PATRICK, ESQ.
                         DAVID K. FLYNN, ESQ.
                         REBECCA K. TROTH, ESQ. (Argued)
                         United States of America
                         Department of Justice
                         P.O. Box 66078
                         Washington, D.C. 20035

                              Attorneys for the United States
                              as Amicus Curiae1



                       OPINION OF THE COURT

McKEE, Circuit Judge


     We are asked to decide if the Pennsylvania Department of

Public Welfare (“DPW")2 is violating Title II of the Americans

with Disabilities Act (the “ADA” or the “Act”), 42 U.S.C. §


     1 The United States Department of Justice has filed an
Amicus Brief. 42 U.S.C. §12133 charges the Department with
enforcement of Title II of the ADA.       Pursuant to 42 U.S.C.
12134(a) and 42 U.S.C. 12206(c)(3), the Department has issued
regulations and a Technical Assistance Manual interpreting Title
II.    See 28 C.F.R. part 35 (1993); The Americans with
Disabilities Act Title II Technical Assistance Manual (1993).
     2
      Although Karen F. Snider is the named defendant in this
lawsuit, she was sued in her capacity as the Secretary of the
Pennsylvania Department of Public Welfare. We will, therefore,
refer to the defendant as the Department of Public Welfare
("DPW"), rather than Snider.
12132, by the manner in which it operates its attendant care and

nursing home programs.   Idell S. alleges that DPW is violating

the ADA by requiring that she receive required care services in

the segregated setting of a nursing home rather than through

DPW's attendant care program.   That program would allow her to

receive those services in her own home where she could reside

with her children.   The district court ruled that DPW is not

violating the ADA because it is not discriminating against Idell

S.   For the reasons that follow we will reverse.


                                I.




      In January of 1994, Idell S. filed an uncontested motion to

join a lawsuit which had previously been filed by Beverly D., and

Ilene F., who were also nursing home residents.3 The suit alleged

     3
       Helen L., the original plaintiff in this law suit, was a
patient at Norristown State Hospital when her suit was filed.
She asserted a constitutional claim against Albert DiDario (the
Superintendent of that facility) for alleged violations of her
Fourteenth Amendment rights for failing to place her in an
appropriate community setting and for unnecessarily maintaining
her in Norristown State Hospital. Although she alleged a claim
under the ADA, she has since been discharged from Norristown
State Hospital and thereafter pursed only a claim for damages for
the alleged violation of her constitutional rights. Memorandum
Opinion, at 15-6.
     In November of 1992, Beverly D. and Ilene F., joined Helen
L.'s law suit and an Amended Complaint was filed asserting a
claim on their behalf against Karen F. Snider, as the Secretary
of the Pennsylvania Department of Public Welfare.    In April of
1993, they filed a motion for a preliminary injunction on their
ADA claim. After the parties agreed to a Stipulation of Facts,
the motion for preliminary injunction was converted to one for
that DPW had violated Title II of the ADA by providing services

in a nursing home rather than in the “most integrated setting

appropriate" to the plaintiffs' needs, and sought declaratory and

injunctive relief.

     Thereafter, Beverly D. and Ilene F. filed for an uncontested

voluntary dismissal of their claim because they had been

discharged from the nursing home. At the same time, Idell S.

moved for summary judgment based upon an Amended Stipulation of

Facts.   Prior to ruling on the joinder and voluntary dismissal

motions, the district court issued a Memorandum and Order dated

January 27, 1994, granting summary judgment against Beverly D.

and Ilene F. and in favor of DPW.        On February 2, 1994, the

district court issued an Order dismissing Beverly D. and Eileen

F. as plaintiffs and adding Idell S. as a plaintiff.         The court

also ruled that “[f]or the reasons stated in the Memorandum filed

January 27, 1994, the motion for summary judgment of Idell S. is

denied and judgment is entered in favor of defendants and against

. . . Idell S. . . . ."

     Idell S. then filed this appeal.4


summary judgment,    and   DPW   filed    a   cross-motion   for   summary
judgment.
     4
       In the same Memorandum and Order which denied Idell S.’s
motion for summary judgment, the district court denied a motion
for summary judgment filed by DiDario and DiDario appealed.
DiDario’s appeal did not involve any questions of law or fact in
common with Idell S.’s appeal. On May 13, 1994, we entered an
Order dismissing DiDario’s appeal for lack of appellate
jurisdiction because the district court Order appealed from was
not a final order.
                                 II.

        Idell S. is 43 years old and the mother of two children ages

22 and 14.5    In 1973 she contracted meningitis which left her

paralyzed from the waist down and greatly reduced her ability to

care for herself.    As a result, she has been a patient at the

Philadelphia Nursing Home since December 26, 1989.    Idell S. uses

a wheelchair for locomotion and requires assistance with certain

activities of daily living including bathing, laundry, shopping,

getting in and out of bed, and house cleaning.    She is able to

cook, dress herself (except for her shoes and socks), attend to

her personal hygiene (using a transfer board to access the

toilet) and to her grooming.    The parties agree that, although

Idell S. is not capable of fully independent living, she is not

so incapacitated that she needs the custodial care of a nursing

home.


     Following the issuance of the February 2, 1994 Order
granting summary judgment in favor of Snider and against Idell
S., the district court issued a Rule 54(b) Certification and
Order on February 8, 1994, directing the Clerk to enter final
judgment in favor of defendant Snider against Idell S. Because
Idell S.’s sole claim was disposed of, the certification creates
a final judgment subject to appeal pursuant to 28 U.S.C. §1291.
See, Tilden Financial Corp. v. Palo Tire Service, 596 F.2d 604,
607 (3d Cir. 1979).
     Plaintiffs Florence H. and ADAPT were not parties to the
summary judgment motions in the district court. ADAPT’s motion
for voluntary dismissal was granted by the district court on
February 18, 1994.
        5
      The essential facts surrounding this controversy are not in
dispute. They are contained in an Amended Stipulation of Facts
submitted to the district court in January of 1994.
     DPW operates two different programs that provide physically

disabled persons with assistance in daily living.   DPW funds

nursing home residence through the Medical Assistance program

(“Medicaid”), and it operates an “attendant care program” under

62 Pa. Cons. Stat. Ann. §§ 3051-3055 (the “Care Act”).   The

attendant care program provides “[t]hose basic and ancillary

services which enable an individual [with physical disabilities]

to live in his[/her] home and community rather than in an

institution and to carry out functions of daily living, self care

and mobility.” 62 Pa. Cons. Stat. Ann. §§ 3052, 3054.    DPW's

average cost of caring for a person in a nursing home is $45,000

per year.   The Commonwealth pays 44% of this amount ($19,800) and

the difference ($24,200) is paid by the federal government.

DPW’s average cost of caring for a person in the attendant care

program is $10,500 per year.   That amount is totally borne by the

Commonwealth.

     Homemaker Service of the Metropolitan Area, Inc. (“HSMA")

contracts with DPW to operate an attendant care program.    “The

[s]ervice [provided by HSMA] consists of those basic and

ancillary services which enable eligible individuals to live in

their own homes and communities rather than in institutions and

to carry out functions of daily living, self-care and mobility.”

Amended Stipulation of Facts, ¶ 35.   The program thus allows

eligible individuals: “1. [t]o live in the least restrictive

environment as independently as possible; 2. [t]o remain in their
homes and to prevent their inappropriate institutionalization. .

. .” Id. at ¶36.

     In 1993, HSMA evaluated Idell S. and determined that she was

eligible for attendant care services.   However, because of a lack

of funding, she was placed on a waiting list for that program and

continues living in a nursing home, separated from her children.

The parties agree that if Idell S. were enrolled in the attendant

care program, nursing home care would be inappropriate.6   Except

for access to skilled nursing care which she neither needs nor

wants, Idell S. receives the same kind of services in the nursing

home that the attendant care program would provide.   “DPW has not

applied for reimbursement under the Medical Assistance statute

for personal care/attendant care services in the community,”

Amended Stipulation of Facts ¶41, nor has it “requested Medical

Assistance dollars be available for Attendant Care Services in

the Community.” Id. at ¶37.   Consequently, the Commonwealth

continues to spend approximately $45,000 a year to keep Idell S.

confined in a nursing home rather then spend considerably less to

provide her with appropriate care in her own home.

     Because she is required to receive services in a nursing

home, Idell S. has no contacts with non-disabled persons other


     6
       The parties have stipulated that “[t]he setting for the
provision of attendant care services appropriate to the needs of
Idell S. is in the community.” Amended Stipulation of Facts ¶29.
The parties further agree that “[w]ith attendant care services in
the community, nursing home care would not be appropriate for
Idell S.” Id., at ¶32.
than the staff of the nursing home and visits from her two

children. Idell S. claims that this violates Title II of the ADA.
                                III.

     The standard of review applicable to a grant of summary

judgment is plenary.   Bixler v. Central Pa. Teamsters Health &

Welfare Fund, 12 F.3d 1292, 1297 (3d Cir. 1993).     "On review, the

appellate court is required to apply the same test the district

court should have utilized initially."      Goodman v. Mead Johnson &

Co., 535 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S.

1038 (1977).   A motion for summary judgment shall be granted if

the court determines "that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

as a matter of law." Fed. R. Civ. P. 56(c).      The district court's

interpretation of a federal regulation is a question of law

subject to plenary review.    ADAPT v. Skinner, 881 F.2d 1184, 1191

n. 6 (3d Cir. 1989).

     The district court ruled that Idell S. was

          [d]enied attendant care services because of a
          lack of funds. [The record] does not
          demonstrate that [she has] been denied
          funding for attendant care services because
          [she] is disabled. [Her] failure to show
          that [she] has been excluded from the
          attendant care services program on the basis
          of [her] disability is fatal to [her] claim.


Memorandum Opinion at 11.    We disagree.


                                 A.
     In order to appreciate the scope of the ADA and its

attendant   regulations, it is necessary to examine the

circumstances leading to its enactment.    Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794, was the first broad

federal statute aimed at eradicating discrimination against

individuals with disabilities.7   “Section 504 of the

Rehabilitation Act of 1973, [is] commonly known as the civil

rights bill of the disabled.” ADAPT v. Skinner, 881 F.2d at 1187.

Section 504 now reads 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....


29 U.S.C. § 794 (Supp. 1994).8    Section 504's sponsors described

it as a response to "’previous societal neglect’" and introduced
     7
       The law developed under section 504 of the Rehabilitation
Act is applicable to Title II of the ADA. See, Easley v. Snider,
36 F.3d 297 (3d. Cir. 1994).     See also,    28 C.F.R. § 35.103
("[T]his part [applying to the ADA] shall not be construed to
apply a lesser standard than the standards applied under title V
of the Rehabilitation Act of 1973 (29 U.S.C. 791)").
     8
         The   general   prohibition    against   disability-based
discrimination contained in §504 was first proposed in the 92nd
Congress as an amendment to Title VI of the Civil Rights Act of
1964, 42 U.S.C. § 2000d et seq.       Although it was ultimately
enacted by the 93rd Congress as part of a pending Vocational
Rehabilitation Act, its language was patterned after other civil
rights statutes. Alexander v. Choate, 469 U.S. 287, 296 n. 13
(1985).   The language of section 504 is virtually identical to
that of section 601 of Title VI of the Civil Rights Act of 1964
that bars discrimination based upon race, color or national
origin in federally-assisted programs.    Consolidated Rail Corp.
v. Darrone, 465 U.S. 624, 626 (1984).
it to    rectify “the country’s ‘shameful oversights’ which caused

the handicapped to live among society ‘shunted aside, hidden and

ignored.’" Alexander v. Choate, 469 U.S. 287, 296 (1985).

        On April 26, 1976 then-President Gerald Ford signed

Executive Order No. 11914, 3 C.F.R. 117 (1977), which authorized

the Department of Health, Education and Welfare to coordinate

enforcement of section 504 and which required the Secretary of

HEW to promulgate regulations for enforcement.9    Subsequently,

HEW's section 504 rulemaking and enforcement authority was

transferred to the Department of Health and Human Services

(“HHS”).    See 20 U.S.C. § 3508.

        On November 2, 1980, President Carter signed Executive Order

No. 12250, 45 Fed. Reg. 72995, entitled "Leadership and

Coordination of Nondiscrimination Laws".    That Executive Order

transferred HHS’s coordination and enforcement authority to the

Attorney General.    Section 1-105 of that Executive Order provided


     As   originally   enacted,   section  504   referred  to a
"handicapped" individual being discriminated against solely by
reason of a "handicap".        The change in nomenclature from
“handicap” to “disability” reflects Congress’ awareness that
individuals with disabilities find the term “handicapped"
objectionable.   Burgdorf, The Americans with Disabilities Act:
Analysis and Implication of a Second-Generation Civil Rights
Statute, 26 Harv. C.R. - C.L. L.Rev. 413, 522 n. 7 (1991).

     9
        The Rehabilitation Act did not mandate that any
regulations be promulgated. Accordingly the Department of Health,
Education and Welfare (now the Department of Health and Human
Services), did not promulgate any regulations to implement that
Act. Southeastern Community College v. Davis, 442 U.S. 397, 404
n. 4 (1979).
that the HHS guidelines "shall be deemed to have been issued by

the Attorney General pursuant to this Order and shall continue in

effect until revoked or modified by the Attorney General."

Thereafter, the Department of Justice adopted the HHS

coordination and enforcement regulations and transferred them

from 45 C.F.R. part 84 to 28 C.F.R. part 41, 46 Fed. Reg. 40686.

(the “coordination regulations.")   The section 504 coordination

regulations begin by stating that the purpose of 28 C.F.R. part

41 is to “implement Executive Order 12250, which requires the

Department of Justice to coordinate the implementation of section

504 of the Rehabilitation Act of 1973." 28 C.F.R. § 41.1.    A

subsequent section requires all federal agencies to issue

regulations “to implement section 504 with respect to programs

and activities to which it provides assistance."   28 C.F.R. §

41.4.   The coordination regulations contain a separate section

which lists a number of general prohibitions against disability-

based discrimination.   28 C.F.R. § 41.51.   That section mandates

that all recipients of federal financial assistance “shall

administer programs and activities in the most integrated setting

appropriate to the needs of qualified handicapped persons."      28

C.F.R. § 41.51(d).

     Although Section 504 has been called “the cornerstone of the

civil rights movement of the mobility-impaired", ADAPT v.

Skinner, 881 F.2d at 1205 (3d Cir. 1989) (concurring opinion),

its shortcomings and deficiencies quickly became apparent.       See,
e.g., Cook, The Americans with Disabilities Act: The Move to

Integration,   64 Temp. L. Rev. 393, 394-408 (1991) (The

Rehabilitation Act and its regulations have been practically a

dead letter as a remedy for segregated public services).    One

commentator has written that the weaknesses of section 504 arise

from its statutory language,10 the limited extent of its

coverage, inadequate enforcement mechanisms and erratic judicial

interpretations.   Burgdorf, The Americans with Disabilities Act:

Analysis and Implications of a Second-Generation Civil Rights

Statute, 26 Harv. C.R. - C.L. L. Rev. 413, 431 (1991).

     Toward the end of the 1980's the United States Senate and

the House of Representatives both recognized that then current

laws were "inadequate" to combat "the pervasive problems of

discrimination that people with disabilities are facing."   S.

Rep. No. 116, 101st Cong., 1st Sess. 18 (1989); H.R. Rep. No. 485

(II), 101st Cong., 2d Sess. 47 (1990).   The Senate recognized the

need for "omnibus civil rights legislation" for the disabled. S.

Rep. No. 116, 101st Cong., 1st Sess. 19 (1989).   Similarly, the

House addressed the need for legislation that “will finally set

in place the necessary civil rights protections for people with

disabilities."   H. R. Rep. No. 485 (II), 101st Cong., 2d Sess. 40

(1990).   Both branches of Congress concluded:
           [T]here is a compelling need to provide a
           clear and comprehensive national mandate for

     10
        We have also noted that section 504 "is both ambiguous
and lacking in specifics." Disabled in Action of Pennsylvania
v.Sykes, 833 F.2d 1113, 1117 (3d Cir. 1987), cert. denied, ___
U.S. ___, 108 S.Ct. 1293 (1988).
           the elimination of discrimination against
           individuals with disabilities and for the
           integration of persons with disabilities into
           the economic and social mainstream of
           American life. Further, there is a need to
           provide clear, strong, consistent,
           enforceable standards addressing
           discrimination against individuals with
           disabilities.


S. Rep. No. 116, 20; H. R. Rep. No. 485 (II), 50 (emphasis

added).   It was against this backdrop that the ADA was enacted.11
                                B.

     Title II of the ADA, 42 U.S.C. §§ 12131-12134, incorporates

the "non-discrimination principles" of section 504 of the

Rehabilitation Act12 and extends them to state and local

governments.   Easley v. Snider, 36 F.3d 297, 300 (3d Cir. 1994).

Section 202 of Title II provides:
          [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.


42 U.S.C. § 12132. The Act directs the Attorney General to

promulgate regulations necessary to implement Title II.    See 42

U.S.C. § 12134(a).   The Act further commands that those

regulations “be consistent with this chapter and with the

coordination regulations under part 41 of title 28, Code of
     11
        For a concise history of the ADA’s “tortuous legislative
journey", see Jones, Overview and Essential Requirements of the
Americans with Disabilities Act, 64 Temp. L. Rev. 471, 472-475
(1991).
     12
        See 28 C.F.R. § 28.103.
Federal Regulations . . . applicable . . . [under §504 of the

Rehabilitation Act of 1973].” 42 U.S.C. § 12134(b).    Accordingly,

the regulations that the Department of Justice promulgated under

Title II are patterned after the section 504 coordination

regulations.

       Because Title II was enacted with broad language and

directed the Department of Justice to promulgate regulations as

set forth above, the regulations which the Department promulgated

are entitled to substantial deference.    Blum v. Bacon, 457 U.S.

132, 141 (1982).    ("[T]he interpretation of [the] agency charged

with the administration of [this] statute is entitled to

substantial deference.")    "[C]onsiderable weight should be

accorded to an executive department's construction of a statutory

scheme it is entrusted to administer."    Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 844

(1984).     Unless the regulations are “arbitrary, capricious or

manifestly contrary to the statute", the agency's regulations are

“given controlling weight".    Chevron, U.S.A., Inc., 467 U.S. at

844.

       Moreover, because Congress mandated that the ADA regulations

be patterned after the section 504 coordination regulations, the

former regulations have the force of law.    When Congress re-

enacts a statute and voices its approval of an administrative

interpretation of that statute, that interpretation acquires the

force of law and courts are bound by the regulation.    United
States v. Board of Comm'rs of Sheffield, Alabama, 435 U.S. 110,

134 (1978).   The same is true when Congress agrees with an

administrative interpretation of a statute which Congress is re-

enacting.   See Don E. Williams Co. v. Commissioner, 429 U.S. 569,

574-577 (1977).   Although Title II of the ADA is not a re-

enactment of section 504, it does extend section 504's anti-

discrimination principles to public entities.    Furthermore, the

legislative history of the ADA shows that Congress agreed with

the coordination regulations promulgated under section 504.     See,

e.g., S. Rep. No. 116, 101st Cong., 1st Sess. 44 (1989) ("The

first purpose of [Title II] is to make applicable the prohibition

against discrimination on the basis of disability, currently set

out in regulations implementing section 504 of the Rehabilitation

Act of 1973, to. . . state and local governments. . . . ");      H.R.

Rep. No. 485 (III), 101st Cong., 2d. Sess. 50.    ("The general

prohibitions set forth in the section 504 regulations are

applicable to all programs and activities in Title II").

      Idell S.’s challenge to DPW’s treatment of her is based

upon 28 C.F.R. § 35.130(d).   That ADA regulation states that: “A

public entity shall administer services, programs, and activities

in the most integrated setting appropriate to the needs of

qualified individuals with disabilities.”   This regulation is

almost identical to the section 504 integration regulation which

has been in effect since 1981.   See 28 C.F.R. § 41.51(d)
(1981).13   As Congress has voiced its approval of that

coordination regulation, 28 C.F.R. § 130.35(d) has the force of

law.


                                 C.



       In enacting the ADA, Congress found that "[h]istorically,

society has tended to isolate and segregate individuals with

disabilities, and...such forms of discrimination...continue to be

a serious and pervasive social problem."    42 U.S.C. § 12101(a)(2)

(emphasis added).    Congress also concluded that “[i]ndividuals

with disabilities continually encounter various forms of

discrimination, including. . . segregation. . . .", 42 U.S.C.

§12101(a)(5) (emphasis added).    The House Report on the ADA noted

that: "Unlike the other titles in this Act, title II does not

list all of the forms of discrimination that the title is

intended to prohibit.    Therefore, the purpose of [section 204] is

to direct the Attorney General to issue regulations setting forth

the forms of discrimination prohibited."    H.R. Rep. No. 485

(III), 101st Cong., 2d Sess., 52 (1990) (emphasis added).

       In furtherance of the objective of eliminating

discrimination against the disabled, Congress stated that “the

Nation’s proper goals regarding individuals with disabilities are


       13
       The section 504 integration regulation had been in effect
for 8 years when, in 1989,     the 101st Congress began holding
hearings on the proposed ADA.
to assure equality of opportunity, full participation,

independent living, and economic self-sufficiency for such

individuals[.]” 42 U.S.C. §12101(a)(8) (emphasis added).

Similarly, in response to its mandate, the Department of Justice

stated “[i]ntegration is fundamental to the purposes of the

Americans with Disabilities Act.” 28 C.F.R. Part 35, App. A. §

35.130.14   Accordingly, the integration mandate of § 35.130(d) is

contained under 28 C.F.R. § 35.130 which is entitled “[g]eneral

prohibitions against discrimination.”

     Thus, the ADA and its attendant regulations clearly define

unnecessary segregation as a form of illegal discrimination

against the disabled.15 Accordingly, the district court erred in

holding that the applicable provisions of the ADA “may not be



     14
       We note that this is consistent with the Fair Housing Act
of 1988, 52 U.S.C. §3604(f), another predecessor of the ADA. In
enacting that act, the House Judiciary Committee stated "[t]he
Fair    Housing  Amendments  Act,   like  Section   504  of   the
Rehabilitation Act of 1973, as amended, is a clear pronouncement
of a national commitment to end the unnecessary exclusion of
persons with handicaps from the American mainstream." H. Rep. No.
711, 100th Cong., 2d Sess., 18 (1988), reprinted in 1988
U.S.C.C.A.N. 2173, 2179 (emphasis added; footnote omitted).
     15
       Even if it could be argued that the Act and its
regulations are ambiguous on this point, the heading of the
regulation at issue here, and the legislative history of the ADA
confirm that Congress intended to define unnecessary segregation
of the disabled as a form of illegal discrimination. See Crandon
v. United States, 494 U.S. 152, 158 (1990) (Where there is
ambiguity "[i]n determining the meaning of [a] statute, we look
not only to the particular statutory language, but to the design
of the statute as a whole and to its object and policy."); See
also INS v. Center for Immigrants' Rights,          U.S.        .
112 S. Ct. 551, 556 (1991) (the title of a regulation or section
is relevant to its interpretation).
invoked unless there is first a finding of discrimination."

Memorandum Opinion at 12.
                                D.

     In reaching its conclusion, the district court relied in

large part upon   Williams v. Secretary of the Executive Office of

Human Services, 609 N.E.2d 447 (Ma. 1993).16 In Williams, the

Massachusetts Supreme Court held, inter alia, that the ADA does

not require a specific proportion of that state’s mental health

service placements to be in integrated housing.   The court

stated:
             The focus of Federal disability
          discrimination statutes is to address
          discrimination in relation to nondisabled
          persons, rather than to eliminate all
          differences in levels or proportions of
          resources allocated and services provided to
          individuals with differing types of
          disabilities. In other words, the purpose of
          the ADA is to provide an equal opportunity
          for disabled citizens.


Williams, 609 N.E.2d at 559. (citations omitted).

     We are not persuaded by the analysis in   Williams.   That

court based its decision in part upon our own decision in Clark

v. Cohen 794 F.2d 79 (3rd Cir. 1986), cert denied, 479 U.S. 962

          16
              The   district   court   also  cited   Pinnock   v.
International House of Pancakes, 844 F.Supp. 574, 582-3 (S.D. Ca.
1993), to support its ruling that 28 C.F.R. § 130(d) is not
applicable unless there is a specific finding of discrimination.
Id. at 12. However, Pinnock concerned an action under Title III
of the ADA (public accommodations) and the discussion cited in
the district court's opinion dealt with the Title III integration
regulation which the Pinnock court held is "intended to prevent
segregation based on fears and stereotypes about persons with
disabilities." Id. Idell S.'s suit does not implicate Title III.
(1986) and the Supreme Court’s decision in Alexander v. Choate,

supra.    Our holding in Clark is not based upon the ADA nor

section 504, but upon the Due Process Clause of the Fourteenth

Amendment.   There, a forty-five year old, mentally retarded woman

had been committed to a state-run mental institution since she

was fifteen years old.   She filed a complaint against the

Commonwealth of Pennsylvania and the County of Philadelphia

alleging various Constitutional violations as well as a violation

of section 504 of the Rehabilitation Act.   She alleged that her

confinement was illegal and sought placement in a community-

living arrangement supervised by the County of Philadelphia.

Clark based her Rehabilitation Act claim upon the fact that the

Commonwealth was providing community living arrangements to

persons with disabilities similar to hers while requiring her to

remain in an institution.

     The district court ruled that Clark had not established

disability-based discrimination, but ruled that her confinement

was unconstitutional.17 619 F. Supp. at 696-705.    In affirming

the district court’s judgment we stated “[s]ection 504 prohibits

discrimination against the handicapped in federally funded

programs[,] [i]t imposes no affirmative obligations on the states

to furnish services." Clark v. Cohen, 794 F. 2d at 85, n.3.

However, we were not there concerned with the integration mandate

     17
        Clark had been continuously confined even though the
responsible professionals at the institution admitted that her
condition did not warrant confinement, and her case had never
been reviewed by anyone with authority to release her.
of the ADA or the Rehabilitation Act.   Plaintiff in Clark relied

primarily upon section 504 and 45 C.F.R. §§ 84.4(b)(1)(i)-(iv).

The prohibitions contained in the later regulations are under a

regulation which states "Discriminatory actions prohibited." 45

U.S.C. § 84.4(b).   That regulation does not state that the

actions set forth are prohibited per se.   Rather, it states that

recipients of federal funds may not engage in the enumerated acts

"on the basis of handicap."   45 U.S.C §84.4(b)(1).   Thus, the

section 504 inquiry in Clark had to include a determination of

the basis for the allegedly discriminatory actions.    The language

of 28 C.F.R. § 35.130(d) is very different.

     In addition, we note that the court in Williams was troubled

by difficulties of proof that are not present here.    The

plaintiffs in Williams had attempted to use a statistical

analysis to establish that disabled persons were more likely to

be adversely affected by the state’s policy than non-disabled

persons.   The court rejected that proof stating:

           The plaintiffs’ use of a system-wide
           percentage of DMH clients . . . ignores the
           fact that the ADA does not mandate particular
           system-wide percentages for allocations of
           community placements. Further, the
           plaintiffs’ figures did not show that any
           particular client’s placement was
           inappropriate, or that they themselves were
           inappropriately placed in a segregated
           setting. . . A mere percentage, standing
           alone, does not establish a presumption of
           inappropriate placement.
Id., at 414 Mass. 551, 557-8, 609 N.E.2d. 447, 453.   We encounter

no such problem as the parties have stipulated that Idell S.’s

placement would be inappropriate if there was an opening in the

attendant care program.18

     The court in Williams was also troubled by pragmatic

concerns of granting relief.   The court stated that "any

interpretation of the ADA must consider the same practicalities

that the United States Supreme Court acknowledged in its

examination of the Federal Rehabilitation Act.   See, e.g.

Alexander v. Choate, . . . ". Id. at 557, 453 (citations

omitted).   Choate did not involve 28 C.F.R. § 35.130(d).    The

claim there was based upon plaintiffs’ assertion that Tennessee’s

planned cutbacks in Medicaid reimbursement for in-patient

hospital stays would disproportionately disadvantage handicapped

persons in violation of section 504.   However, to the extent that

Choate is relevant to our analysis, it supports our holding that

Congress did not intend to condition the protection of the ADA

upon a finding of “discrimination”.

     In Choate, the Supreme Court emphasized the factors which

led to enactment of section 504.
          Discrimination against the handicapped was
          perceived by Congress to be most often the
          product, not of invidious animus, but rather
          of thoughtfulness and indifference -- of
     18
         The precise question raised by Idell S. has not
previously been decided by an appellate court. Similarly, the
cases from other circuits that DPW relies upon to support its
assertion that neither §504 nor Title II of the ADA require
community care were not decided on the basis of 28 C.F.R. §
35.130(d). Brief of Appellee, at 10-11.
            benign neglect. Thus, Representative Vanik,
            introducing the predecessor to § 504 in the
            House described the treatment of the
            handicapped as one of the country’s ‘shameful
            oversights’ which caused the handicapped to
            live among society ‘shunted aside, hidden,
            and ignored.’ Similarly, Senator Humphrey . .
            . asserted that, ‘we can no longer tolerate
            the invisibility of the handicapped in
            America. . . .’ And Senator Cranston . . .
            described the Act as a response to ‘previous
            societal neglect’ . . . 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.


469 U.S. at 295 (emphasis added) (citations and footnotes

omitted).19

     Because the ADA evolved from an attempt to remedy the

effects of “benign neglect” resulting from the “invisibility” of

the disabled, Congress could not have intended to limit the Act’s

protections and prohibitions to circumstances involving

deliberate discrimination. Such discrimination arises from

“affirmative animus” which was not the focus of the ADA or

section 504.     The Supreme court elaborates upon this distinction

noting that, although discrimination against the disabled

normally results from “thoughtfulness” and “indifference”, not

“invidious animus”, such “animus” did exist.     469 U.S. at 295 at

n.12.     (“To be sure, well-cataloged instances of invidious
     19
       The court ruled that the challenged cutbacks were neutral
on their face and that, therefore, plaintiffs could not recover.
However, the court noted that a plaintiff need not establish that
there has been an intent to discriminate in order to prevail
under section 504. 469 U.S. at 295-297.
discrimination against the handicapped do exist”).     However,

that was not the focus of section 504, or the ADA.     Rather, the

ADA attempts to eliminate the effects of that “benign neglect,"

“apathy," and “indifference."   The 504 coordination regulations,

and the ADA “make clear that the unnecessary segregation of

individuals with disabilities in the provision of public services

is itself a form of discrimination within the meaning of those

statutes, independent of the discrimination that arises when

individuals with disabilities receive different services than

those provided to individuals without disabilities.”    Brief of

Amicus at 7.

     The ADA is intended to insure that qualified individuals

receive services in a manner consistent with basic human dignity

rather than a manner which shunts them aside, hides, and ignores

them.20   “[M]uch of the conduct that Congress sought to alter in

passing the Rehabilitation Act [and the ADA] would be difficult

if not impossible to reach were the Act[s] construed to proscribe

only conduct fueled by a discriminatory intent.”   Alexander v.

Choate, 469 U.S. at 296-7.   Thus, we will not eviscerate the ADA

by conditioning its protections upon a finding of intentional or

overt “discrimination.”




     20
      However, as discussed infra, the Act does not require
fundamental changes in the nature of a service or program.
                               IV.

    DPW quotes Traynor v. Turnage, 485 U.S. 535, 548 (1988) to
argue that there can be no improper discrimination here because

the services at issue are only provided to persons with

disabilities.   See Brief of Appellee at 25-6.    However, Traynor

is easily distinguished.   Traynor concerned the legality of 38

U.S.C.A. § 1662 which allowed for an extension of time to use

veteran’s benefits if a disability precluded the veteran from

using the benefits within the time frame established by law.

However, the veteran only qualified if he/she could establish “a

physical or mental disorder which was not the result of [his/her]

own willful misconduct.”   Id. at 535.    Traynor was an honorably

discharged veteran who suffered from alcoholism unrelated to any

psychiatric disorder. Under applicable V.A. regulations, such

alcoholism   was defined as “willful misconduct” thus precluding

him from relying upon his “disorder” to enlarge the period of

time that he could use his benefits.     Traynor challenged this

limitation on behalf of himself, and other similarly situated

veterans.

     In denying the claim, the court noted that section 504 had

been part of the amendments to the Rehabilitation Act which were

passed in 1978 and which extended the scope of that legislation

to “any program or activity conducted by any Executive Agency.”

Id. at 547. The court noted that
          petitioners can prevail under the Rehab-
          ilitation Act claim only if the 1978
          legislation can be deemed to have implicitly
           repealed the willful misconduct provision of
           the 1977 legislation or forbade the Veterans’
           Administration to classify primary alcoholism
           as willful misconduct. They must thereby
           overcome the cardinal rule. . . that repeals
           by implication are not favored.


Id. (citations and internal quotes omitted).     The court reasoned

that it was not at liberty to assume that the subsequent

enactment of the Rehabilitation Act implicitly repealed the prior

act unless “such a construction is absolutely necessary . . . in

order that [the] words [of the latter statute] shall have any

meaning at all.”   Id. (brackets in original).    These two

enactments were “capable of co-existence” as the “willful

misconduct” provision did not undermine the central purpose of

section 504.   That purpose was to “assure that handicapped

individuals receive ‘evenhanded treatment’ in relation to

nonhandicapped individuals.”    Id. at 548 (citing Alexander v.

Choate).

     The court then noted that the program at issue did not treat

handicapped persons less favorably than nonhandicapped persons as

only handicapped persons could apply for an extension of time.

“In other words § 1662(a)(1) merely provides a special benefit to

disabled veterans who bear no responsibility for their

disabilities that is not provided to other disabled veterans or

to any able-bodied veterans.”   Id.   The court then stated

“[t]here is nothing in the Rehabilitation Act that requires that

any benefit extended to one category of handicapped persons also

be extended to all other categories of handicapped persons.”      Id.
However, the court was not concerned with the application of the

integration mandate, or anything analogous to it, and the holding

is not germane to our analysis. As noted above, Congress has

stated that “discrimination against individuals with disabilities

persists in such critical areas as . . . institutionalization.”

42 U.S.C. §12101 (3).    If Congress were only concerned about

disparate treatment of the disabled as compared to their

nondisabled counterparts, this statement would be a non sequitur

as only disabled persons are institutionalized.

       DPW also relies upon Johnson v. Thompson, 971 F.2d 1487,

1494 (10th Cir. 1992), cert. denied, 113 S.Ct. 1255 (1993).

("[W]here the handicapping condition is related to the

condition(s) being treated, it will rarely, if ever, be possible

to say. . . that a particular decision was ‘discriminatory’")

(citation omitted)).    See Brief of Appellee at 7.   Johnson is

also inapposite.    There, the court was asked to hold that

different levels of medical treatment given to differently

classified infants affected with spina bifida violated section

504.    The case did not involve any claim that the integration

mandate of 504 or the ADA had been violated.21

       DPW also attempts to defeat Idell S.’s claim by labelling it

a claim for “community care” or “deinstitutionalization” --




       21
       See Martin v. Voinovich, 840 F. Supp. 1175, 1191-92 (S.D.
Ohio 1993) (Under §504 and the ADA, discrimination between people
with different disabilities may be actionable).
something which the ADA does not require.22 See Brief of Appellee

at 10. Idell S. is not asserting a right to community care or

deinstitutionalization per se.   She properly concedes that DPW is

under no obligation to provide her with any care at all.    She is

merely claiming that, since she qualifies for DPW’s attendant

care program, DPW’s failure to provide those services in the

“most integrated setting appropriate” to her needs (without a

proper justification) violates the ADA.
                                 V.

     DPW’s obligation to provide appropriately integrated

services is not absolute as the ADA does not require that DPW

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



28 C.F.R. § 35.130(b)(7).   In Southeastern Community College v.
Davis, 442 U.S. 397 (1979), and Alexander v. Choate, supra, the

Supreme Court attempted to define the limits of the requirements

under the ADA.

     In Southeastern, Southeastern Community College refused to

admit an   applicant to its nursing school program because of her
     22
       See Pennhurst State School and Hospital v. Halderman, 451
U.S. 1, 24 (1981) (deinstitutionalization involves "massive"
changes in a state's programs and is not required absent a clear
statutory command).
hearing impairment.    The college argued that a registered nurse

had to meet certain physical requirements, and asserted that

Davis’ disability compromised her ability to effectively

participate in critical training programs and safely care for

patients.   Davis countered that section 504 required that the

school take certain measures to allow her to enjoy the benefits

of the nursing program.   The Court disagreed and held that

section 504 imposes no obligation to engage in “affirmative

action.” Id. at 411.   In Choate, the Court explained that

“affirmative action” as used in Davis "[r]eferred to those

‘changes,' ‘adjustments,' or ‘modifications' to existing programs

that would be ‘substantial' or that would constitute ‘fundamental

alteration[s]' in the nature of a program . . .,' rather than to

those changes that would be reasonable accommodations."

(citations omitted). Id. at 300 n. 20.
            In attempting to discern what is required
          by the language of section 504, we must view
          it in light of two countervailing legislative
          concerns: (1) effectuation of the statute’s
          objectives of assisting the handicapped; and
          (2) the need to impose reasonable boundaries
          in accomplishing this legislative purpose.
          See Alexander v. Choate.


ADAPT v. Skinner, 881 F.2d at 1191.   “The test to determine the

reasonableness of a modification is whether it alters the

essential nature of the program or imposes an undue burden or

hardship in light of the overall program.”    Easely v. Snider, 36

F.3d at 305.
     Here, DPW agrees that “the most integrated setting

appropriate to [Idell S.]” is her home but argues that it cannot

comply with Idell S.'s request for the “most integrated services

appropriate" absent a fundamental alteration of its program.

Brief of Appellee, at 13-17.   The only explanation DPW has

offered for this position is its assertion that funding for

nursing home and attendant care for fiscal year 1993-1994 has

already been appropriated by the General Assembly of Pennsylvania

and that it cannot, under state constitutional law, shift funds

from the nursing care appropriation to attendant care.    Brief of

Appellee, at 14-15.   However, Idell S. is not asking that DPW

alter its requirements for admission to the program, nor is she

requesting that the substance of the program be altered to

accommodate her.23 Even if we assume that DPW cannot (or will

not) cause the necessary shift of funds under its current

procedures and practices, it is clear from this record that

providing attendant care services to Idell S. in her home would

not be a fundamental alteration of the attendant care program or

the nursing home program.

     As previously noted, DPW administers its attendant care

program under the Care Act, 62 Pa. Stat. Ann. § 3052 et seq.

(1994).   That Act states:


     23
        See Easley v. Snider, supra (The ADA does not require
that the Commonwealth extend its attendant care services to
physically disabled individuals who were not mentally alert as
doing so would result in an unreasonable modification of the
program).
           The General Assembly declares it is the
           policy of this Commonwealth that:

              (1) The increased availability of
           attendant care services for adults will
           enable them to live in their own homes and
           communities.
              (2) Priority recipients of attendant care
           services under this act shall be those
           mentally alert but severely physically
           disabled who are in the greatest risk of
           being in an institutional setting.


     We have previously noted that the attendant care program
          enables physically disabled persons to
          "better control their lives and reach maximum
          independence when they are able to direct
          their own personal care and manage their
          home, business, and social lives. Attendant
          [c]are in Pennsylvania continues to be seen
          as part of the wider independent living
          movement whose fundamental goals are to
          enable the physically disabled to: a)
          maintain a less restrictive and/or
          independent living arrangement; b) maintain
          employment; and/or c) remain in their homes."


Easley, 36 F.3d at 304.   This is remarkably similar to the policy

and purpose of the ADA in general, and 28 C.F.R. § 35.130(d) in

particular.   We fail to see how compliance with 28 C.F.R. §

35.130(d) requires DPW to fundamentally alter its attendant care

program.   Nor do we perceive how the requested moderation would

place an undue burden on DPW.   On the contrary, the relief that

Idell S. is requesting merely requires DPW to fulfill its own

obligations under state law. This is not “unreasonable."
          As with Section 504 of the Rehabilitation
          Act, integrated services are essential to
          accomplishing the purposes of title II [of
          the ADA]. As stated by Judge Mansmann in
          Adapt v. Skinner, the goal [is to] eradicate
            the ‘invisibility of the handicapped'" . . .
            [s]eparate-but-equal services do not
            accomplish this central goal and should be
            rejected.

              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 [title II of
            the ADA].


H. R. Rep. 485 (III), 101st Cong. 2d Sess. 50. reprinted in 1990

U.S.C.C.A.N. at 73, (emphasis added).

       Ironically, DPW asserts a justification of administrative

convenience to resist an accommodation which would save an

average of $34,500 per year, would allow Idell S. to live at home

with her children, and which would not require a single

substantive change in its attendant care or nursing home

programs.    DPW’s resistance to such an accommodation is totally

inconsistent with Congress’ pronouncement that “[t]he Nation's

proper goals regarding individuals with disabilities are to

assure equality of opportunity, full participation, [and]

independent living. . . .” 42 U.S.C. § 12101(a)(8).

       DPW asserts that it cannot change Idell S.'s care because

the nursing home and attendant care programs are currently funded

on two separate lines of its budget.24   The General

Appropriations Act.   Act 1-A of 1993, at 104, 115. DPW asserts

that    “[u]nder state constitutional law, Secretary Snider cannot

       24
      This, of course, does not explain why DPW has not changed
her status in a new budget year.
move funds from one line to another.”   See Brief of Appellee at

14-15 (citing Ashbourne School v. Commonwealth, Department of

Education, 43 Pa. Com. 593, 403 A.2d 161 (1979).   It is not now

up to us to invent a funding mechanism whereby the Commonwealth

can properly finance its nursing home and attendant care

programs.   However, the ADA applies to the General Assembly of

Pennsylvania, and not just to DPW. DPW can not rely upon a

funding mechanism of the General Assembly to justify

administering its attendant care program in a manner that

discriminates and then argue that it can not comply with the ADA

without fundamentally altering its program.   We dismissed a

similar contention in Delaware Valley Citizen’s Council for Clean

Air v. Commonwealth of Pennsylvania, 678 F.2d 470 (3rd Cir.

1982).   There, plaintiff sought to hold certain members of the

executive branch of state government in contempt for failing to

comply with a consent decree in which the officials had agreed to

establish an admissions inspection program. After the consent

decree had been executed, the General Assembly enacted

legislation which specifically “prohibited the expenditure of

state funds by the executive branch for the implementation of

[that program].   Although the Governor vetoed the bill, the

legislature overrode the veto and enacted [the legislation] into

law.” Id. at 473-4.   Thereafter, the Department of Transportation

“ceased all efforts toward implementing the [program].” Id.

There, as here, the defendants relied upon Ashbourne, to argue
that their hands were tied by the power of appropriations vested

in the General Assembly.     We rejected that position.   “These

arguments disregard the fact that the Commonwealth itself was and

remains bound by the consent decree.”     Delaware Valley Citizen’s

Council, 678 F.2d at 475. We stated:
          Because the Commonwealth, including all its
          branches, is bound by the decree, the
          argument of inability to comply rings hollow.
          Even if the executive branch defendants were
          physically or legally incapable of complying
          with the decree, those Commonwealth officials
          sitting in the General Assembly certainly are
          not incapable of insuring the Commonwealth’s
          compliance.


678 F.2d at 476-6.   The same applies here:   since the

Commonwealth has chosen to provide services to Idell S. under the

ADA, it must do so in a manner which comports with the

requirements of that statute.


                                 VI.

     Generally, an appellate court reversing a grant of summary

judgment will not direct the district court to enter summary

judgment in favor of appellant because a genuine issue of

material fact will remain.     First National Bank v. Lincoln

National Life Insurance Co., 824 F.2d 277, 281 (3d Cir. 1987).

However, when an appeal concerns only issues of law, we are free

to enter an order directing the district court to enter summary

judgment in favor of the appellant.    Kreimer v. Bureau of Police

for the Town of Morristown, 958 F.2d 1242, 1250 (3d Cir. 1992).
     Here, there are no genuine issues of material fact because

of the Amended Stipulation entered into by the parties.   The only

issue that remains is the interpretation and application of the

ADA and 28 C.F.R. § 130.35(d).   Accordingly, we will vacate the

order granting summary judgment in favor of defendant and remand

this case to the district court for entry of an order granting

summary judgment to Idell S. and against DPW.
