                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-20-1994

Easley v. Snider, et al.
Precedential or Non-Precedential:

Docket 94-1199




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                 UNITED STATES COURT OF APPEALS

                      FOR THE THIRD CIRCUIT

                             ____________

                             NO. 94-1199
                              ____________

                TRACY EASLEY, by her next friend,
                   LUCILLE EASLEY; FLORENCE H.

                                  v.

          KAREN SNIDER, Secretary of the Department of
          Public Welfare; KAY ARNOLD, Deputy Secretary
         for Social Programs; HOMEMAKER SERVICES OF THE
                        METROPOLITAN AREA

                                  Karen Snider and Kay Arnold,
                                                    Appellants
                             ____________

          Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                      D.C. No. 93-cv-00221
                          ____________

                       Argued July 18, 1994
      Before:   SCIRICA, LEWIS, and ROSENN, Circuit Judges
                     Opinion Filed September 22, l994
                           ____________

ERNEST D. PREATE, JR., ATTORNEY GENERAL
SUSAN J. FORNEY, SENIOR DEPUTY ATTORNEY GENERAL (Argued)
KATE L. MERSHIMER, SENIOR DEPUTY ATTORNEY GENERAL
JOHN G. KNORR, III, CHIEF DEPUTY ATTORNEY GENERAL
Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
  Attorneys for Appellants

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

STEPHEN F. GOLD, ESQUIRE (Argued)
Suite 700
125 South Nine Street
Philadelphia, PA 19107
  Attorneys for Appellees
                             ____________


                         OPINION OF THE COURT

ROSENN, Circuit Judge.


          This appeal, involving important legal and societal

questions, arises out of an attack on the legality of the

Pennsylvania Attendant Care Services Act (Care Act), 62 P.S. §

3051 et seq. (Supp. 1994).    Pennsylvania enacted this legislation

in 1986 as a program designed to enable physically disabled

persons to live in their homes rather than institutions and, when

possible, to become active and useful members of society.

          The plaintiffs, Tracey Easley (Easley) and Florence

Howard (Howard), both rejected as ineligible for the program,

brought suit in the United States District Court for the Eastern

District of Pennsylvania, alleging that the Care Act conflicts

with the more recently enacted Americans with Disabilities Act of

1990 (ADA or Act), 42 U.S.C.A. 12101 et seq. (Supp. 1994),1

because the Care Act requires that candidates for the program

also be mentally alert.     Plaintiffs sought to enjoin the State of

Pennsylvania from excluding them from the program.    Following a

bench trial, the district court concluded that the program

developed under the Care Act violated the ADA and enjoined the

1
 . These proceedings assert claims under Title II of the ADA.
The district court exercised jurisdiction pursuant to 28 U.S.C. §
1331. This court has jurisdiction as the appeal is from a final
order within the meaning of 28 U.S.C. § 1291.
State from excluding Easley and Howard from receiving attendant

care services.   The State appeals.   We reverse.
                                  I.

          The Care Act authorized the Pennsylvania Department of

Public Welfare (PDPW) to provide attendant care services to

eligible individuals.    The General Assembly declared its purpose

in enacting the law was to enable physically disabled but

mentally alert adults between the ages of eighteen and fifty-nine

to live in their own homes and communities.    Additionally, they

must:
          1.      experience a physical impairment
                  expected to last a continuous
                  period of at least 12 months;

          2.      be capable of selecting,
                  supervising and, if needed, firing
                  an attendant;

          3.      be capable of managing their own
                  financial and legal affairs; and,

          4.      because of their physical
                  impairment, require assistance to
                  complete the functions of daily
                  living, self-care, and mobility.


62 P.S. § 3053.    Persons who are physically disabled but not

mentally alert are excluded from the program.

           A. Tracey Easley and Florence Howard



          At the time of trial, Easley was a twenty-nine year old

woman tragically disabled by a catastrophic car accident in 1982,

just as she was to begin her sophomore year at Vassar College.

Easley suffered a closed head injury which left her with minimal

mobility and without speech.    She apparently can communicate with

her family by blinking her eyes and using other facial
expressions.    Presently, Easley is unable to care for herself and

cannot be left alone.    Easley is not capable of selecting,

supervising, or firing an attendant, or managing her own

financial and legal affairs.

            In 1987, Easley resided in West Philadelphia, and

through the use of a surrogate, in this case her mother, applied

for and received attendant care services from Resources for

Living Independently (RLI) which was under contract with the

PDPW.   Easley moved in 1991 to an area not serviced by RLI but by

Homemaker Services Metropolitan Area, Inc (HSMA), which was also

under contract with PDPW.

            At the time of trial plaintiff Howard was a fifty-three

year old woman with multiple sclerosis and undifferentiated

schizophrenia.    Howard is immobile from the waist down and, due

to her condition, cannot live alone.    Howard lived with her

daughter until September 1991, but entered the Philadelphia

Nursing Home when her daughter could not obtain attendant care

services for her.

            Howard has expressed dissatisfaction with her present

situation.    She wants to leave the nursing home and live in the

community.    To do this, she would need PDPW-funded attendant care

services.    PDPW, however, determined Howard ineligible under the

Act because she was not mentally alert.    Without using a

surrogate, Howard is incapable of selecting, supervising or

discharging an attendant and is not capable of managing her own

financial and legal affairs.
          Pennsylvania's Attendant Care Program determined the

plaintiffs to be ineligible for its services because they were

not capable of hiring, supervising and, if needed, firing an

attendant and because they are not capable of personally

controlling their own legal and financial affairs.    Both

plaintiffs alleged that defendant Karen Snider, Secretary of the

PDPW, and defendant Kay Arnold, the Deputy Secretary for PDPW's

Office of Social Programs (OSP) which administers the Attendant

Care program, violated the ADA by denying them attendant care

services because they were not "mentally alert."    Easley and

Howard challenge the provision of the Care Act that requires the

participants to be mentally alert.

                 B.   THE ATTENDANT CARE PROGRAM

          The General Assembly stated the policies in pertinent

part underlying the Care Act were as follows:
          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.

          3.   Recipients of attendant care have
               the right to make decisions about,
               direct the provision of and control
               their attendant care services.
               This includes but is not limited to
               hiring, training, managing, paying
               and firing of an attendant.

62 P.S. at § 3052.
          The Care Act defines attendant care services as

"[t]hose basic and ancillary services which enable an individual

to live in his home and community, rather than in an institution,

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

mobility."    Id. at § 3053.    Basic services include assistance

with getting in and out of bed, a wheelchair, or a car and also

include assistance with routine bodily functions such as health

maintenance activities, bathing and personal hygiene, dressing,

grooming, and feeding.    Id.   Certain ancillary services may be

provided which include homemaker services such as shopping,

cleaning and laundry, companion-type services such as

transportation, letter writing, reading mail, and escort, and

assistance with cognitive tasks such as managing finances,

planning activities, and making decisions.      Id.

          The PDPW contracts with various agencies to provide

attendant care services pursuant to the Act and Department

guidelines.    The Department requires that the agencies offer

three models of service delivery: the consumer model, the agency

model, and the combination model.     Under the consumer model the

consumer advertises, interviews, hires, and fires the attendant.

The consumer submits invoices to the respective agencies and

receives money so that the consumer is responsible for the task

of paying the care giver for his or her services.     Under the

agency model, the agency employs the attendant, but the consumer

retains the right to reject an attendant that the consumer

considers unsuitable.    The consumer provides direction in

developing the service plan and retains the responsibility for
supervising the attendant in the home.      Under the combination

model, the consumer selects certain tasks to be performed and

certain tasks the agency will perform.      The consumer has the

responsibility to choose the service delivery model that he/she

most prefers.      PDPW describes the combination model as "a menu

with the consumer selecting what tasks he or she will do and what

tasks the agency will do."

                                  II.

          We must determine if the targeting of the programmatic

services to physically disabled but mentally alert individuals is

permissible or whether the State improperly excluded Easley and

Howard from receiving attendant care services.      We make this

determination by examining the essential nature of the program to

discover whether mental alertness is a necessary eligibility

requirement and whether Easley and Howard can satisfy this

requirement with a reasonable modification, here by using a

surrogate.    In reviewing this appeal, the court exercises a

plenary standard of review when applying legal precepts to

undisputed facts.      Midnight Sessions, Ltd. v. Philadelphia, 945

F.2d 667, 671 n.1 (3d Cir. 1991), cert. denied, 112 S.Ct. 1668
(1992).

              A.   "Mental Alertness" Under The Care Act.

             We begin our analysis with the passage of the ADA.

Congress enacted the ADA to eliminate discrimination against

handicapped individuals by extending the non-discrimination

principles required at institutions receiving federal funds by

the Rehabilitation Act, 29 U.S.C.A. § 790 et seq. (Supp. 1994),
to a much wider array of institutions and businesses, including

services provided by states and municipalities.    42 U.S.C.A. §

12101 et seq.   Title II of the ADA provides:

          Subject to the provisions of this subchapter,
          no 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.

Id. at § 12132.


          The State's reading of the ADA and its supporting

regulations is one which enables a state to provide a particular

class of disabled persons with benefits and services without

obligating itself to extend the same services and benefits to

other classes of persons with disabilities.     The regulations

implementing the ADA define a "qualified individual with a

disability" as:
          An individual with a disability who, with or
          without reasonable modifications to rules,
          policies, or practices, . . . meets the
          essential eligibility requirements for the
          receipt of services or the participation in
          programs or activities provided by a public
          entity.


28 C.F.R. § 35.104 (1993).   Another regulation implementing the

ADA specifically endorses a state's authority to offer benefits

to specific classes of persons with disabilities:
          Nothing in this part prohibits a public
          entity from providing benefits, services, or
          advantages to individuals with disabilities,
          or to a particular class of individuals with
          disabilities beyond those required by this
          part.
Id. at § 35.130(c).   Further, the preamble also authorizes a

state to design programs for particular groups of disabilities.

The preamble reads in part:
          State and local governments may provide
          special benefits, beyond those required by
          non-discrimination requirements of this part
          that are limited to individuals with
          disabilities or a particular class of
          individuals with disabilities, without
          incurring additional obligations to other
          classes of persons with disabilities.

App. A., 28 C.F.R. Ch.I Pt 35 (1993).


          The State asserts that in addition to the Care Act's

consistency with the regulations implementing the ADA, the Care

Act is consistent with the regulations implementing the

Rehabilitation Act, 29 U.S.C.A. § 794, the ADA's forerunner.

These regulations state in part:
          The exclusion of non-handicapped persons from
          the benefits of a program limited by Federal
          statute or executive order to handicapped
          persons or the exclusion of a specific class
          of handicapped persons from a program limited
          by Federal statute or executive order to a
          different class of handicapped persons is not
          prohibited by this part.


45 C.F.R. § 84.4(c) (1993) (emphasis added).

          The district court rejected the State's position and

accepted the contentions of Easley and Howard that the

prerequisite of mental alertness is just the sort of

discrimination that the ADA intended to prevent and concluded

that such a criterion contravenes the regulations implementing
the Act.    The court relied on an ADA regulation which states in

relevant part:
          A public entity shall not impose or apply
          eligibility criteria that screen out or tend
          to screen out an individual with a disability
          or any class of individuals with a disability
          from fully and equally enjoying any service
          program or activity, unless such criteria can
          be shown to be necessary for the provision of
          the service, program, or activity being
          offered.


28 C.F.R. § 35.130(b)(8) (emphasis added).

            The district court refused to accept the State's

characterization of the program and, in its own examination of

the essential nature of the program, the court determined that it

is not necessary to be mentally alert to receive attendant care

services.    The court did not view consumer control and

independence as essential elements of the program, but rather

merely two of the many opportunities the program provides.

            In Southeastern Community College v. Davis, 442 U.S.

397 (1979), the Court first examined § 504 of the Rehabilitation

Act, the predecessor of the ADA.    There, after a deaf woman was

denied admission into a federally-funded nursing program, the

Court was asked to decide whether § 504 prohibited physical

requirements in admission to professional schools.    Id. at 400.

In concluding that § 504 did not forbid such requirements, the

Court held that the woman, who could not understand aural

communication without reading lips, was not "otherwise qualified"

for admission to the program because "[a]n otherwise qualified

person is one who is able to meet all of a program's requirements
in spite of his handicap."   Id. at 406.      In then examining

the physical requirements to determine whether modifications had

to be made so that no discrimination against handicapped

individuals occurred, the Court concluded that no elimination of

requirements was necessary because to do so would fundamentally

alter the program, something not required under the

Rehabilitation Act. Id. at 408, 409 n.9.

           Interpreting the Court's decision in Southeastern

Community College, we stated in Strathie v. Department of

Transportation, 716 F.2d 277, 231 (3d Cir. 1983):
          A handicapped individual who cannot meet all
          of a program's requirements is not otherwise
          qualified if there is a factual basis in the
          record reasonably demonstrating that
          accommodating that individual would require
          either a modification of the essential nature
          of the program, or impose an undue burden on
          the recipient of federal funds.


It follows, of course, that if there is no factual basis in the

record demonstrating that accommodating the individual would

require a fundamental modification or an undue burden, then the

handicapped person is otherwise qualified and refusal to waive
the requirement is discriminatory.   Therefore, when determining

whether a program discriminates, a court must determine two

things:   (1) whether the plaintiff meets the program's stated

requirements in spite of his/her handicap, and (2) whether a

reasonable accommodation could allow the handicapped person to

receive the program's essential benefits.   Further, when

determining an accommodation would allow the applicant to receive

the benefit, a court cannot rely solely on the stated benefits
because programs may attempt to define the benefit in a way that

"effectively denies otherwise handicapped individuals the

meaningful access to which they are entitled . . . ."   Alexander

v. Choate, 469 U.S. 287, 300 (1984).

          The district court reviewed this case law and concluded

that if mental alertness is not necessary, "then these plaintiffs

are qualified to receive the service despite their lack of mental

alertness."   The district court's statement, therefore, can only

be interpreted to mean that unless removing the mental alertness

criteria would be an unreasonable accommodation, i.e., "would

require either a modification of the essential nature of the

program, or impose an undue burden on the recipient of federal

funds," the State would have to drop the requirement.

Consequently, the dominant issue presented here is whether mental

alertness is part of the essential nature of the program.   See

Alexander, 469 U.S. at 287 n.19.   If mental alertness is not part

of the program's essential nature, the plaintiffs are qualified

and the State is required to accommodate them.   Likewise, if

mental alertness is not part of the program's essential nature,

the accommodation is, by definition, reasonable.

          The PDPW Manual asserts that the purpose of the program

is "to allow the physically disabled to live in the least

restrictive environment as independently as possible, to remain

in their homes and prevent inappropriate institutionalization,

and to seek and/or maintain employment."   The district court

noted that an analysis of the "service[s] actually being offered"

is necessary to determine the essential nature of the program,
slip op. at 11-12, but seemed to forego that examination and

instead relied merely on the foregoing excerpt of the program

manual.    Consequently, it determined that providing these stated

benefits was the essential nature of the program, and held that

any physically disabled person whose disability did not prevent

them from receiving these benefits was qualified.

           In so holding, the court rejected the State's claim

that consumer control was part of the essential nature of the

program requiring mental alertness as an eligibility criterion.

The court found that consumer control merely provided the State

with an opportunity to service the recipients, and that the State

had not proven it was "necessary for the services to be provided,

or for the benefits to be received."    Id. at 20.   As evidence

that consumer control is unnecessary to receive the essential

benefits of the program, the court cited the agency model of care

in which "mentally alert individuals are fully empowered to

relinquish consumer control."   Id. at 21.   In essence, the court

reasoned that if the consumer does not need the ability to hire,

fire, and supervise an attendant under each mode of care, then

mental alertness cannot be essential to participation in the

program.

           An examination of the actual services offered

demonstrates that personal control is essential to the program,

and that mental alertness is a necessary requirement for receipt

of the program's essential benefit rather than merely a service

to benefit recipients.   The record indicates that contrary to the

court's characterization of the agency model, program
beneficiaries do not relinquish personal control in any of the

attendant care models.   Paula Jean Howley, supervisor for PDPW

Attendant Care Programs, testified at trial how the consumer

retains personal control under the agency model.   The purpose of

the program has as its well-defined goal the provision of greater

personal control and independence for the physically disabled.

To achieve the programmatic goal, the physically disabled

obviously cannot function independently and exercise personal

control of their lives if they are not mentally alert.    Hence,

the joinder of this requirement cannot be attributable to

discrimination, rather, it is "necessary for the provision of the

. . . program or activity being offered."

           The argument submitted by Easley and Howard and adopted

by the district court mischaracterizes the Attendant Care

Program.   The State intended that the delivery of services to the

physically disabled preserve their independence, recognizing that

without their physical limitations, they would be running their

own lives.   The district court's definition of living

independently as "the opportunity to remain in the community or

family home rather than an institution" is drastically different

than the definition of the creators of the program.   The

difference is obvious when one considers that the third purpose

of the program is to enable the physically disabled to seek and

maintain employment.   The State strives for a level of

independence that allows an individual to become an active,

contributing member of society, a level of independence obviously

greater than one which does nothing more than keep and sustain
persons out of institutions.    Mental alertness of the physically

disabled who participate in the program is an essential dimension

without which the objectives of the program cannot be realized.

             The goals intended to elevate the lives of the

physically disabled bear some resemblance to the State's earlier

goals to alleviate the lot of another class of handicapped, the

mentally disabled and retarded, when it enacted the comprehensive

Mental Health and Retardation Act in 1966, 50 P.S. § 4102 et seq.

This legislation endeavored to deinstitutionalize, insofar as

possible, the State's mental health and retardation centers and

set up whenever possible County Mental Health and Retardation

Boards with programs at the county and community levels.      The

Care Act is another progressive program by the State to improve

the lot and lives of many physically disabled by providing

opportunities for personal independence and employment.    See

Knutzen v. Eben Ezer Lutheran Housing Center, 815 F.2d 1343,

1353-54 (10th Cir. 1987) (Rehabilitation Act was intended to

serve as a helping hand and not "as a 'sword' with which the

handicapped may carve a share from every federal benefit

program").

          Final support for our view is an independent evaluation

of the program conducted in 1985 and 1986 by The Conservation

Company and The Human Organization Science Institute, Villanova

University, at the behest of the PDPW.    As the report

demonstrates, Pennsylvania's Attendant Care legislation followed

a number of similar programs adopted by other states.

Associations of handicapped persons (e.g., United Cerebral Palsy,
Disabled in Action, Pennsylvania Alliance of Physically

Handicapped) actively urged legislators to begin attendant care.

A Final Report of an Evaluation of the Pennsylvania Attendant

Care Demonstration Program, Vol. 1, p.5.   The report also

observes that the role of attendants differs from that of

traditional aides or homemakers.   Under this program, the

attendant is directed by the handicapped individual and performs

a wide range of tasks for the physically disabled person.    This

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
          Care 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.


Id. at 4.    These concerns were later incorporated in the policy

declaration of the Care Act, cited by the State in support of its

position.   62 P.S. § 3052(3), see page 5 supra.
            An important part of Easley and Howard's argument that

mental alertness is not a necessary prerequisite to receiving

attendant care services is based on their analogy between the use

of surrogates by consumers and clients who use the "agency" or

"combination" models offered by the program.    This comparison

both overstates the control Easley and Howard exercise over their

own lives and understates the role of the clients in the agency

and combination models of service delivery.    In the agency model,
the consumer must supervise the attendant and the service plan

and may reject the attendant at any time.     In the combination

model, the consumer must designate tasks he/she will perform and

assign tasks to the agency.    All three models require, at the

very least, that the consumer make a decision as to the best form

of service delivery.    The choice of any service model is very

different from a surrogate making the decision for the consumer.

Allowing a decision by a surrogate is at complete odds with the

program objectives.

           Accordingly, we hold that mental alertness is a

necessary prerequisite to participation in the attendant care

program.   Although we appreciate the contentions by the

plaintiffs of the benefits Easley and Howard could derive from

this program, this unfortunately is insufficient to carry out the

purposes sought to be accomplished by the legislature.        Again,

the Care Act's policy declaration and the Independent Report to

PDPW explain that the essential nature of the program is to

foster independence through consumer control for individuals who,

but for their physical disabilities, could manage their own

lives, achieve independence, and perhaps obtain employment.        As

such, mental alertness of the participants is a prerequisite.

           This does not end the matter, however, as we must

determine whether the use of surrogates as decision-makers for

non-mentally alert consumers is a reasonable modification under

the Care Act.

           B.   Reasonable Modifications Under the Care Act
          The reasonable modification provision of the

regulations implementing the ADA requires:
          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
          services, program, or activity.


28 C.F.R. § 35.130 (b)(7).    Easley and Howard argue that even if

mental alertness is an essential prerequisite to receiving

attendant care services, they could satisfy this prerequisite by

the use of surrogates.    They claim that the failure to allow this

reasonable modification violates the ADA and the regulations

implementing the Act.    The State, on the other hand, takes the

position that the modification requested by the plaintiffs is

unreasonable, and is not required under the regulations

implementing the ADA.

          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.   School Bd. of Nassau County v. Arline, 480 U.S.

273, 287 n. 17 (1987); Alexander v. Choate, 469 U.S. 287, 300

(1985); Nathanson v. Medical College of Pennsylvania, 926 F.2d

1368, 1384-86 (3d Cir. 1991).   An analysis of the proposed

modification leads us to conclude that Easley and Howard's

suggested modification, the use of surrogates, would, at the very

least, change the entire focus of the program.    The focus

fundamentally would shift from the provision of attendant care
and its societal objectives for the physically disabled to

personal care services to the many thousands of physically

disabled who are often served by other specially designed state

programs.    The proposed alteration would create a program that

the State never envisioned when it enacted the Care Act.      The

modification would create an undue and perhaps impossible burden

on the State, possibly jeopardizing the whole program, by forcing

it to provide attendant care services to all physically disabled

individuals, whether or not mentally alert.    We therefore hold

that the use of surrogates would be an unreasonable modification

of the attendant care program under the Act.

                    C. The Care Act and the ADA.

            The district court agreed with Easley and Howard's

interpretation of 28 C.F.R. § 35.130(c) that physically

handicapped persons cannot be rendered ineligible for the program

because they also are afflicted with a mental disability that

leaves them mentally unalert.    To support its analysis the

district court cited the regulations implementing Title III of

the ADA which distinguish between offering services to one class

of persons with disabilities and barring a person with the same

needs because the individual has another disability.    The

regulation states in part:
          A health care provider may refer an
          individual with a disability to another
          provider, if that individual is seeking . . .
          services outside of the referring provider's
          area of specialization, and if the referring
          provider would make a similar referral for an
          individual without a disability who seeks or
          requires the same treatment or services.
28 C.F.R. § 36.302(b)(2).


          The plaintiffs acknowledge that the State may lawfully

provide an attendant care program serving individuals with a

certain handicap, but assert that the State discriminated against

them because they have an additional handicap.    As discussed

earlier in this opinion, the Care Act does not discriminate

against the mentally disabled; it focuses on a different class of

handicapped.   The language of the Rehabilitation Act, the ADA,

the Independent Report to the PDPW, and the regulations

implementing the acts contemplate and point to specific classes

of disabled.   The State emphasizes the power of government to

design a program for a particular class of handicapped.    As an

illustration, it cites the Randolph-Sheppard Act, which provides

vending licenses to blind persons.    20 U.S.C. 107(a) (1990).

There are other programs offered by the Commonwealth of

Pennsylvania, e.g., the Comprehensive Mental Health and

Retardation Act to which we have alluded, a program for the deaf

and hearing impaired, 43 Pa. C.S.A. § 1463 et seq., and a program

for the care and treatment of persons suffering from chronic

renal diseases, 35 Pa. C.S.A. § 6201 et seq.
          Our reading of the Care Act is not inconsistent with

the ADA and the Rehabilitation Act.    The regulations implementing

these acts contemplate reaching groups of disabled without

incurring obligations to other groups of handicapped.   Cases

interpreting the Rehabilitation Act have stated that their main

thrust is to assure handicapped individuals receive the same
benefits as the non-handicapped.    The Supreme Court in Traynor v.

Turnage, 485 U.S. 535, 548 (1987), declared "[t]here is nothing

in the Rehabilitation Act that requires any benefit extended to

one category of handicapped persons also be extended to all other

categories of handicapped persons."

            The State has not rejected Easley and Howard from the

program because, mentally unalert, they are unworthy of help; the

State merely distinguishes this program established by the Care

Act from a program providing assistance to the non-mentally alert

physically disabled.   This is not a case of State discrimination

against a subgroup of the group of people who are physically

disabled.   On the contrary, this is a case where an additional

handicap, a severe degree of mental disability, renders

participation in the program ineffectual.

                          III.   CONCLUSION

            We therefore hold that the Pennsylvania Attendant Care

Services Act which requires that qualified persons be not only

physically handicapped but also mentally alert does not violate

the ADA's non-discriminatory purposes.    We further hold that the

use of surrogates by the non-mentally alert physically disabled

is not a reasonable modification of the Pennsylvania Attendant

Care Services Act.

            Accordingly, the judgment of the district court will be

reversed.   Each side to bear its own costs.
