                                        PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ___________

               Nos. 13-4255 & 13-4405
                    ___________

     DISABILITY RIGHTS NEW JERSEY, INC.,
        A New Jersey Nonprofit Corporation

                          v.

COMMISSIONER, NEW JERSEY DEPARTMENT OF
HUMAN SERVICES; COMMISSIONER, NEW JERSEY
DEPARTMENT OF HEALTH AND SENIOR SERVICES;
STATE OF NEW JERSEY

                 Disability Rights New Jersey, Inc.,
                        Appellant in No. 13-4255

                 Commissioner, New Jersey Department
                 of Human Services; State of New Jersey,
                       Appellants in No. 13-4405
                     __________

    On Appeal from the United States District Court
              for the District of New Jersey
                 (D.C. No. 10-cv-03950)
   District Judge: Honorable Dickinson R. Debevoise
                      ___________
             Argued November 18, 2014
Before: SMITH, HARDIMAN and BARRY, Circuit Judges.

                   (Filed: August 4, 2015)

Nathan S. Mammen (Argued)
John C. O’Quinn
Kirkland & Ellis
655 15th Street, N.W.
Suite 1200
Washington, DC 20005

William E. Dwyer
Disability Rights New Jersey
210 South Broad Street, 3rd Floor
Trenton, NJ 08608

David E. Myre
Samara L. Penn
Kirkland & Ellis
601 Lexington Avenue
New York, NY 10022
      Attorneys for Appellant/Cross-Appellee Disability
      Rights New Jersey, Inc.

Stuart M. Feinblatt (Argued)
Gerard A. Hughes
Office of Attorney General of New Jersey
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
       Attorneys for Appellees/Cross-Appellants State of New
       Jersey et al.




                             2
                       ____________

                OPINION OF THE COURT
                     ____________

HARDIMAN, Circuit Judge.
        These cross-appeals require us to decide whether
mentally ill residents of New Jersey who have been
committed to state custody are entitled to judicial process
before they may be forcibly medicated in nonemergency
situations. At issue is Administrative Bulletin 5:04B, a
procedure regulating the forcible administration of
psychotropic drugs in New Jersey psychiatric hospitals, and
its validity under the Americans with Disabilities Act and the
United States Constitution. The District Court held that AB
5:04B is valid, except as to patients who have been found by
a court not to require continued commitment but who remain
in custody pending transfer. Disability Rights N.J., Inc. v.
Velez, 974 F. Supp. 2d 705 (D.N.J. 2013). We will affirm the
result reached by the District Court, though not for all its
stated reasons.
                               I
                              A
       The New Jersey Department of Human Services
operates four psychiatric hospitals that house civilly
committed adults and those who have been found
incompetent to stand trial or not guilty by reason of insanity.
See N.J. Stat. Ann. § 30:1-7. Temporary civil commitment
may be ordered by a New Jersey court only upon a showing
of probable cause to believe that the person is “in need of
involuntary commitment to treatment,” id. § 30:4-27.10(g),




                              3
which means that he is dangerous to himself, others, or
property by reason of mental illness and is unwilling to accept
treatment voluntarily, id. § 30:4-27.2(m). Within 20 days of
the patient’s initial admission to a facility, the court must hold
a final commitment hearing at which the State must make the
same showing by clear and convincing evidence in order to
prolong the commitment. Id. § 30:4-27.15(a); N.J. Ct. R.
4:74-7(c)(1).
       The final hearings occur at New Jersey’s psychiatric
hospitals but have many of the trappings of conventional
judicial proceedings. Each patient has the right to be
represented by counsel, to be present at the hearing, to present
evidence, and to cross-examine witnesses. N.J. Stat. Ann.
§ 30:4-27.14; N.J. Ct. R. 4:74-7(e). A psychiatrist on the
patient’s treatment team who has examined the patient within
five days of the hearing must testify. N.J. Ct. R. 4:74-7(e).
Commitment hearings take place one or two days per week at
each hospital, and most are uncontested and brief.
       If a patient is committed, his status is subject to
judicial review three months after the final hearing and
periodically thereafter. N.J. Stat. Ann. § 30:4-27.16(a). At
every review hearing, the State is required to prove by clear
and convincing evidence that the involuntary commitment
standard remains satisfied. Id. If the court concludes that the
patient no longer requires commitment, it can order him
discharged or enter a judgment of “conditional extension
pending placement” (CEPP). N.J. Ct. R. 4:74-7(h)(1)–(2).
Patients on CEPP status remain in the hospital only because
an appropriate alternative placement is unavailable; their
status is reviewed within 60 days of the CEPP order’s
issuance and then periodically at intervals no longer than six
months. N.J. Ct. R. 4:74-7(h)(2).




                                4
                               B
         The recent history of civil commitment of the mentally
ill in this country is inextricably linked with the development
of psychotropic drugs—antipsychotics, antidepressants, mood
stabilizers, and the like. According to an expert report
submitted to the District Court, effective psychotropic
medications emerged in the 1950s and “rapidly became a
mainstay of treatment” in psychiatric hospitals “because of
their effectiveness in reducing or eliminating psychotic
symptoms, including delusions, hallucinations, disordered
thinking and speech, and disruptive and aggressive behavior.”
App. 468 (report of Dr. Paul S. Appelbaum). Witnesses
testified that the proper use of psychotropic drugs is “an
almost essential component of treatment for a patient who is
severely enough disturbed to require involuntary
hospitalization,” App. 765, and agreed that “psychotropic
medications are almost universally a part of successful
treatment for patients in psychiatric hospitals,” App. 781.
        For all their benefits, psychotropic drugs can cause
serious side effects, including muscle cramps, dizziness,
metabolic syndrome, parkinsonism, akathesia (motor
restlessness), dystonia (involuntary muscle contractions), and
tardive dyskinesia (involuntary movement of the limbs or
facial muscles). Disability Rights alleges that side effects that
have been observed in New Jersey’s psychiatric hospitals
include fatigue, difficulty walking, confusion, anxiety, sexual
dysfunction, and allergic or toxic reactions to the drugs. For
these reasons (and perhaps others), significant numbers of
civilly committed psychiatric patients refuse to take
psychotropic medication voluntarily, however beneficial it
might be from a clinical perspective. In 2011 and 2012,




                               5
between 29 and 48 patients were on “refusing status” and
subject to forcible medication at each of the State’s four
psychiatric hospitals. App. 1144.
        The Supreme Court has never decided whether civilly
committed individuals have a constitutional right to refuse
psychotropic drugs. It issued a writ of certiorari in 1981 in a
case posing this question, but an intervening state court
decision ultimately prevented the Court from reaching the
merits. Mills v. Rogers, 457 U.S. 291 (1982). And although
the Court has spoken time and again on the right to refuse
unwanted treatment generally, it has not addressed this issue
in the civil commitment context. See, e.g., Sell v. United
States, 539 U.S. 166 (2003) (concerning the right of a
criminal defendant to refuse antipsychotic medication
intended to render him competent to stand trial); Washington
v. Harper, 494 U.S. 210 (1990) (concerning the due process
rights of prisoners subject to forcible medication for mental
illness); Parham v. J. R., 442 U.S. 584 (1979) (concerning the
due process rights of children institutionalized for mental
health care). In Harper, the most relevant of these cases for
our purposes, the Court held that the Due Process Clause
permits a State to forcibly medicate a dangerous, mentally ill
prisoner without providing a judicial hearing as long as
certain “essential procedural protections” are provided. 494
U.S. at 236.
       Unlike the Supreme Court, we have squarely
addressed the right of civilly committed psychiatric patients
to refuse psychotropic drugs. In 1977, a man involuntarily
committed to a psychiatric hospital in New Jersey filed suit in
federal court challenging the State’s use of forcible
medication in nonemergency situations. Rennie v. Klein, 462
F. Supp. 1131, 1134 (D.N.J. 1978). Shortly thereafter, New




                              6
Jersey adopted Administrative Bulletin 78-3, which became
known as the “Rennie process” and generally consisted of
three steps:
      [1] At the first level, when a patient refuses to
      accept medication, the treating physician must
      explain to the patient the nature of his
      condition, the rationale for using the particular
      drug, and the risks or benefits of it as well as
      those of alternative treatments. [2] If the patient
      still declines, the matter is discussed at a
      meeting of the patient’s treatment team, which
      is composed of the treating physician and other
      hospital personnel, such as psychologists, social
      workers, and nurses who have regular contact
      with the patient. The patient is to be present at
      this meeting if his condition permits.
             [3] If, after the team meeting, the
      impasse remains, the medical director of the
      hospital or his designee must personally
      examine the patient and review the record. In
      the event the director agrees with the
      physician’s assessment of the need for
      involuntary treatment, medication may then be
      administered. The medical director is also
      authorized, but not required, to retain an
      independent psychiatrist to evaluate the
      patient’s need for medication. Finally, the
      director is required to make a weekly review of
      the treatment program of each patient who is
      being drugged against his will to determine
      whether the compulsory treatment is still
      necessary.




                              7
Rennie v. Klein (Rennie I), 653 F.2d 836, 848–49 (3d Cir.
1981) (en banc) (citations omitted), judgment vacated and
remanded, 458 U.S. 1119 (1982). We upheld this procedure
in Rennie I, id. at 851–52, and then upheld it again in Rennie
v. Klein (Rennie II), 720 F.2d 266 (3d Cir. 1983) (en banc),
after the Supreme Court vacated the judgment in Rennie I and
remanded the matter for further consideration in light of
Youngberg v. Romeo, 457 U.S. 307 (1982). We essentially
held in the Rennie cases that civilly committed psychiatric
patients “have a qualified constitutional right to refuse
antipsychotic medication” in nonemergency situations and
“the procedures set forth in Administrative Bulletin 78-3
accommodate [that right] in a manner consistent with the Due
Process Clause.” Rennie II, 720 F.2d at 272 (Seitz, C.J.,
concurring). Notably, we indicated in Rennie I that committed
individuals are entitled to at least as much constitutional
protection in this context as prisoners. See 653 F.2d at 845–
46. The Rennie process was incorporated into a consent order
entered by the District Court in August 1984 that governed
the forcible medication of the mentally ill in New Jersey for
almost 30 years.
                              C
       Disability Rights New Jersey, a nonprofit organization
that advocates for the disabled, filed a complaint in August
2010 in the District Court against New Jersey and the
Commissioner of the New Jersey Department of Human
Services, alleging that the Rennie process violated various
provisions of the United States Constitution, as well as the
ADA and the Rehabilitation Act of 1973. The crux of the suit
was that the Rennie process was nothing more than a “rubber
stamp” for hospital staff members who wished to forcibly
medicate their patients, App. 111 (Compl. ¶ 85), though




                              8
Disability Rights also alleged that New Jersey’s hospitals
failed to properly comply with the procedure. As amended,
the complaint requested declaratory and injunctive relief
invalidating the Rennie process and ordering the State to
provide judicial hearings before involuntarily committed
psychiatric patients could be forcibly medicated in
nonemergent situations. The complaint also demanded
additional procedural protections accompanying a judicial
hearing, including: a requirement that nonemergent forcible
medication take place only after a finding that the patient is
incompetent to make medical decisions; a right to counsel at
the hearing; establishment of a system of “experienced and
knowledgeable” counsel to advocate for patients’ interests; a
right to have independent expert witnesses appointed;
imposition of a “clear and convincing evidence” burden of
proof in forcible medication proceedings; assurance that
hospital staff would be properly trained in the administration
of psychotropic drugs; and a requirement that the State report
monthly to Disability Rights on its use of psychotropic
medication in psychiatric hospitals. App. 321–22 (Am.
Compl. ¶ 6). In sum, Disability Rights demanded that the
State “provide patients who refuse the non-emergency
administration of psychotropic medication with meaningful
due process protections—including legal counsel, notice and
a hearing before a judicial decision-maker—before such
persons may be involuntarily medicated.” App. 248 (Am.
Compl. ¶ 11).
       The State moved to dismiss and argued that Disability
Rights’ claims were precluded by our decisions in the Rennie
cases, but the District Court disagreed. Disability Rights N.J.,
Inc. v. Velez, 2011 WL 2976849, at *6–11 (D.N.J. July 20,
2011). The Court observed that Rennie I “specifically held
that the involuntarily committed patients were to be accorded




                               9
no fewer constitutional protections than prisoners,” id. at *9
(citing 653 F.2d at 846), and the Supreme Court held in
Harper (several years after Rennie) that mentally ill prisoners
facing forcible medication were entitled to procedural
protections that “dwarf[ed]” what the Rennie process
provided, id. at *10. After the District Court denied most of
the motion to dismiss, the State moved to vacate the 1984
Rennie consent order, and the Court obliged in March 2012.
       In June 2012, while Disability Rights’ lawsuit
remained pending, the State replaced the Rennie process with
two separate policies for forcible treatment in emergencies
(AB 5:04A) and nonemergent situations (AB 5:04B). Under
the emergency procedure of AB 5:04A, which Disability
Rights has not challenged, a patient who “presents a risk of
imminent or reasonably impending harm or danger to self or
others” can be forcibly medicated for up to 72 hours unless a
less restrictive alternative method is available. App. 1423,
1425. The patient must be reassessed every 24 hours to
determine whether the emergency persists.
       The nonemergency policy challenged here, AB 5:04B
(the Policy), imposes more stringent requirements because it
permits longer-term forcible medication. The Policy provides
that a psychiatric patient can be forcibly medicated only if he
has been involuntarily committed, “has been diagnosed with a
mental illness, and, as a result of mental illness, poses a
likelihood of serious harm to self, others, or property if
psychotropic medication is not administered[.]” App. 1393.
This means that there must be a “substantial risk” that the
patient will do physical harm to himself, another person, or
property “within the reasonably foreseeable future.” App.
1396. A risk of harm to self must be indicated by “threats or
attempts to commit suicide, or to inflict physical harm on




                              10
one’s self, or by such severe self-neglect as evidenced by a
dangerous deterioration in essential functioning and repeated
and escalating loss of cognitive and volitional control as is
essential for the individual’s health and safety”; a risk of
harm to others must be indicated by “behavior which has
caused [physical] harm or which places another person or
persons in reasonable fear of sustaining such harm”; and a
risk of harm to property must be indicated by “behavior
which has caused substantial loss or damage to property.” Id.
        Patients thought to satisfy the substantive requirements
of the Policy may be forcibly medicated only pursuant to
procedures that, though extensive, stop short of prior judicial
review. First, the patient’s treating physician must complete
an involuntary medication administration report, which
documents the patient’s diagnosis, the medication and dosage
contemplated, the rationale for concluding that the patient
satisfies the substantive standard outlined above, the less
restrictive alternatives considered and rejected, the efforts
made to explain to the patient the need for medication, and
any objections expressed by the patient. Next, the hospital’s
medical director appoints a three-person panel chaired by a
psychiatrist who may be a hospital employee but who may
not be currently involved in the patient’s treatment. The other
members of the panel must be a hospital administrator and a
clinician, neither of whom may be currently involved in the
patient’s treatment.
       At a medication review hearing held on the patient’s
ward within five days of the involuntary medication
administration report being submitted to the medical director,
the panel hears evidence to determine whether to approve
involuntary medication. The patient has the right to be
notified of the hearing, attend the hearing, testify, present




                              11
evidence and witnesses, cross-examine witnesses, and have a
mental health professional or legal counsel present (at the
patient’s expense). The patient is also afforded the assistance
of the hospital’s client services advocate, a psychiatric nurse
who consults with the patient and assists him in presenting
evidence and making objections at the hearing. After the
hearing, involuntary medication will be authorized only if the
chair and at least one other member of the panel agree that the
substantive standard is satisfied. The patient has 24 hours to
appeal the panel’s decision to the medical director, and
administration of the medication can begin immediately if the
panel’s decision is affirmed. Any further appeal must be
made to the Appellate Division of the New Jersey Superior
Court. See N.J. Ct. R. 2:2-3(a)(2).
       The initial approval of forcible medication is valid for
14 days. Within 12 days of that approval, the treating
psychiatrist must report on “the patient’s positive and
negative responses to the medication, what less restrictive
interventions have been attempted or ruled out, and whether
the patient is continuing to withhold consent.” App. 1400. A
panel—which need not comprise the same people as before—
may then authorize forcible medication lasting up to 90 days.
Throughout that period, the treating prescriber must submit
biweekly reports to the medical director detailing the patient’s
progress. If, at the end of 90 days, the patient still does not
consent to medication, the hospital must start the entire
process over again in order to continue the forcible
medication.
       The Policy applies to all involuntarily committed
psychiatric patients in New Jersey—including CEPP patients,
though the State says it has been invoked against them “very
rarely.” N.J. Br. 69 n.14. In 255 total medication review




                              12
hearings held during the six months following the Policy’s
implementation, panels approved medication in all but six
cases, and medical directors affirmed in 55 out of 56 appeals.
App. 2658. In the District Court, Disability Rights attributed
this near-uniformity at least in part to the hospitals’
noncompliance with various components of the Policy and
reliance on weak and stale evidence of dangerousness.
                               II
        New Jersey’s replacement of the Rennie process with
the Policy did not resolve the litigation because the Policy did
not go as far as Disability Rights requested in its complaint.
For example, the Policy did not require premedication judicial
process, a “clear and convincing” showing of incompetence, a
right to counsel in medication review proceedings, or a right
to appointed experts. See supra Section I-C. In November
2012, the parties filed cross-motions for summary judgment.
At that point, the District Court had before it Disability
Rights’ claims that the Policy on its face1 violated the ADA,
the Rehabilitation Act, and the Due Process Clause of the
Fourteenth Amendment (encompassing due process

       1
          Although Disability Rights has repeatedly asserted
during this litigation that the State has failed to consistently
comply with its nonemergency forcible medication policies, it
has done this to point up the policies’ shortcomings rather
than to raise any as-applied claims. See, e.g., App. 459–60
(“DRNJ admits that it challenges the [c]onstitutionality of
[AB 5:04B] . . . . In pursuing this claim, however, DRNJ does
not foreclose itself . . . from asserting that Defendants are
failing to follow the New Policy. DRNJ admits that it is not
challenging medical treatment decisions for any individual
patients.”).




                              13
generally, the right of access to the courts, the right to
counsel, and the incorporated First Amendment right to freely
think and communicate).2 See Disability Rights, 974 F. Supp.
2d at 711.
       The District Court held that the Policy withstood
Disability Rights’ statutory and constitutional challenges,
except with respect to CEPP patients. As to non-CEPP
patients, the Court rejected Disability Rights’ ADA and
Rehabilitation Act claims on two grounds: first, that the
Policy is a “legitimate safety requirement” permitted by
federal regulation, id. at 739 (citing 28 C.F.R. § 35.130(h));
and second, that “‘adequate justification’ exists for
differential treatment of the relevant class because the
treatment is not based on disability, but based on a finding of
dangerousness,” id. (quoting Olmstead v. L.C. ex rel. Zimring,
527 U.S. 581, 612 (1999) (Kennedy, J., concurring in
judgment)). As to CEPP patients, however, the Court granted
summary judgment to Disability Rights on the statutory
claims because those patients have already been found by a
court of law not to be dangerous, and any “volatility” or
relapse into dangerousness could be addressed using the
emergency provisions of AB 5:04A or the recommitment
process. Id. at 738.
       The due process inquiry yielded the same results. With
respect to non-CEPP patients, the District Court concluded
that the Supreme Court’s analysis of the due process rights of
prisoners in Harper required a decision in New Jersey’s

      2
         The District Court dismissed a claim arising under
the Equal Protection Clause of the Fourteenth Amendment in
2011. Disability Rights, 2011 WL 2976849, at *15–16.
Disability Rights did not appeal that decision.




                              14
favor. The Court concluded that the Policy and the procedure
upheld in Harper are “strikingly similar” and applied the
logic of that decision to the civil commitment context. Id. at
724, 728. Again, the Court declined to extend this ruling to
CEPP patients, holding that the State had “no interest in
continuing to forcibly medicate” such people after they have
been adjudicated not to be dangerous. Id. at 729. As for
Disability Rights’ claims based on the right to counsel, the
right of access to the courts, and the right to think and
communicate freely, the Court held that these claims were
either duplicative of the general due process claim or could be
resolved on the same grounds. See id. at 728, 729 n.9.
       Having found the Policy valid except as to CEPP
patients, the District Court enjoined New Jersey’s hospitals
from using it to forcibly medicate CEPP patients but
otherwise let it stand. See id. at 740. Disability Rights filed a
timely notice of appeal, and the State followed with a timely
cross-appeal.
                               III
       The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1343(a). We have jurisdiction to review the
District Court’s summary judgments under 28 U.S.C. § 1291.
        We review summary judgments de novo, applying the
same test as the District Court. MBIA Ins. Corp. v. Royal
Indem. Co., 426 F.3d 204, 209 (3d Cir. 2005). Summary
judgment is appropriate when “the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“We may affirm a district court for any reason supported by
the record.” Brightwell v. Lehman, 637 F.3d 187, 191 (3d Cir.
2011).




                               15
                               IV
        Title II of the ADA prohibits discrimination against
the disabled in public services, programs, and activities.
Tennessee v. Lane, 541 U.S. 509, 517 (2004). Its core
provision states: “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.”3 42 U.S.C. § 12132. To
state a prima facie case, a plaintiff must show that he is a
“qualified individual with a disability”; that he was excluded
from a service, program, or activity of a public entity; and
that he was excluded because of his disability. Id. Public
entities include States and their subdivisions, id. § 12131(1),
and mental illness qualifies as a disability under the statute,
id. § 12102(1)(A).
       The antidiscrimination mandate of Title II is not
absolute. Federal regulations excuse States from complying
with the ADA with respect to disabled people who pose a
“direct threat” to others, as long as the States make these
determinations     using    comprehensive    “individualized

       3
           Title II and its implementing regulations
“incorporate[] the ‘non-discrimination principles’” of the
Rehabilitation Act, Helen L. v. DiDario, 46 F.3d 325, 331 (3d
Cir. 1995), and the statutes’ core provisions are substantively
identical, see 29 U.S.C. § 794(a) (“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[.]”). Hereafter we refer to the ADA alone.




                               16
assessment[s].” 28 C.F.R. § 35.139. States may also “impose
legitimate safety requirements necessary for the safe
operation of [their] services, programs, or activities” so long
as such requirements “are based on actual risks, not on mere
speculation, stereotypes, or generalizations about individuals
with disabilities.” id. § 35.130(h). Finally, the regulations
permit States to avoid Title II’s requirements when the
modifications needed to ensure compliance would
“fundamentally alter the nature of the service, program, or
activity” at issue. id. § 35.130(b)(7).
        Consistent with the District Court’s opinion, New
Jersey’s defense of the Policy rests largely on these
exceptions to Title II’s antidiscrimination mandate. In our
view, however, there is a dispositive threshold question: does
the Policy exclude civilly committed psychiatric patients from
a service, program, or activity of the State? In other words, is
it actually discriminatory within the meaning of the ADA?
                               A
        First we must determine the nature of the service,
program, or activity posited by Disability Rights. At oral
argument, Disability Rights limited the “service, program, or
activity” from which psychiatric patients in New Jersey are
allegedly excluded under the Policy to the right to judicial
process before being administered medication in nonemergent
situations. Yet in its briefing to the Court, Disability Rights
inconsistently referred to the “service, program, or activity”
as the right to refuse medical treatment. Our Court has made
clear that the phrase “service, program, or activity” is
extremely broad in scope and includes “anything a public
entity does.” Yeskey v. Pa. Dep’t of Corr., 118 F.3d 168, 171
(3d Cir. 1997); 28 C.F.R. § 35.130(b)(1)(vii) (Title II
regulations provide that “[a] public entity, in providing any




                              17
aid, benefit, or service, may not, directly or through
contractual, licensing, or other arrangements, . . . limit a
qualified individual with a disability in the enjoyment of any
right, privilege, advantage, or opportunity enjoyed by others
receiving the aid, benefit, or service.” (emphasis added)).
Although we assume that the right to refuse medical treatment
(or another such right, whether it be common-law or
statutory) could be a service, program, or activity within the
meaning of Title II, this is not the service, program, or
activity posited by Disability Rights.
        Disability Rights’ briefs betray considerable confusion
over the nature of the service, program, or activity in
question. At two pages of its opening brief, for example,
Disability Rights indicates that the relevant service, program,
or activity is the right to refuse treatment. See, e.g., Disability
Rights Br. 22, 26. In between those statements, it contends
that the service, program, or activity is New Jersey’s
“provision of a wide range of medical services for persons
with and without disabilities.” Id. at 23. Still other parts
suggest that the service, program, or activity is actually the
use of judicial process prior to forcible medication. See, e.g.,
id. at 1 (“[AB 5:04B] permits the State to override the most
fundamental right of a person to be free of unwanted medical
treatment . . . without any court authorization or supervision.”
(emphasis added)); Disability Rights Reply Br. 13–14 (“The
issue here is whether the State can subject involuntarily
committed persons with mental illness to special non-judicial
procedures, taking away on ‘dangerousness’ grounds their
right to refuse treatment for mental illness when no other
person and no other type of illness (even if it is a dangerous
illness) is subjected to this type of restriction.” (emphasis
added)); id. at 23 (“The discrimination is evident from the
face of AB 5:04B, because it only takes away the right of




                                18
persons with mental illness to refuse medical treatment, while
all other persons—regardless of their disease—retain the right
to refuse treatment absent a court order requiring otherwise.”
(emphasis added)). The same confusion is evident in
Disability Rights’ memorandum in opposition to the State’s
motion for summary judgment. Compare App. 2375–76
(describing the service, program, or activity as either the right
to refuse treatment or the provision of medical services) with
App. 2378 (“DRNJ does not dispute that psychotropic
medication may be an important—even necessary—part of
any individual patient’s treatment plan. However, this issue is
factually and legally distinct from the necessity of a
disparately applied policy permitting the forcible medication
without a hearing and without representation.” (emphasis in
original)).
        This ambiguity prompted the Court to inquire about
the identity of the relevant service, program, or activity at oral
argument. Disability Rights cabined the service, program, or
activity in question as a premedication judicial process:
       The Court:            What is the service[,]
                             program or activity of the
                             state from which your
                             clients are excluded?
       Disability Rights:    The service[,] program or
                             activity would be the right
                             to refuse treatment that will
                             not be overcome by a
                             judicial hearing, only by a
                             judicial hearing.
                             ....




                               19
      The Court:            Please define as succinctly
                            and slowly as you can—
                            because I think this is critical
                            for the ADA claim—what is
                            the service[,] program or
                            activity[?] You started by
                            saying it’s a process. . . .
                            What process?
      Disability Rights:    A judicial hearing.
      The Court:            Okay. . . . All right. Then
                            it’s not about forcible
                            medication. You agree that
                            people can be forcibly
                            medicated, but you say
                            [they] can’t be forcibly
                            medicated unless they have
                            a judicial hearing.
      Disability Rights:    Correct.
Tr. of Oral Arg. at 17–18. Other representations by Disability
Rights during oral argument demonstrate that the relevant
service, program, or activity is not the right to refuse
treatment in general, but instead premedication judicial
process. See, e.g., id. at 3 (“This case is about whether the
state of New Jersey can, in the absence of an emergency,
forcibly medicate competent persons in the state mental
hospitals without a judicial hearing when no other group, no
other illness can be forcibly treated without a judicial
hearing.”); id. at 16 (“And the process is key to providing
these individuals the same rights that every other person
enjoys, which goes to our ADA argument, that every other
person in New Jersey will not have the right to refuse
treatment overridden absent a court order.”); id. at 45 (“[T]he




                              20
issue is not that no other person is being forcibly medicated.
It’s that if the state wants to forcibly medicate those
individuals with those illnesses, they have to follow the
process with a judicial hearing.”). These representations are
consistent with the relief requested in Disability Rights’
amended complaint. See App. 321–22 (requesting as relief,
inter alia, a “plan and schedule” to ensure that patients
refusing to consent to the administration of psychotropic
drugs receive a “judicial hearing,” “representation by counsel
at said hearing,” a system for “appointing experienced and
knowledgeable counsel,” appointing “independent expert
witnesses” for patients, and requiring a “clear and convincing
evidence” standard of proof for involuntary medication).
        Courts routinely invite litigants to clarify their
positions and legal theories at oral argument, and when
litigants accept such invitations, courts routinely hold them to
their representations. See, e.g., Wilkinson v. Austin, 545 U.S.
209, 221 (2005) (recognizing a party’s withdrawal of a
concession at argument); Frisby v. Schultz, 487 U.S. 474, 483
(1988) (construing a municipal ordinance narrowly in
accordance with the view expressed by the municipality
during argument); Coar v. Kazimir, 990 F.2d 1413, 1415 n.2
(3d Cir. 1993) (narrowing the scope of the dispute at issue
based on a party’s representations at argument). We accept at
face value Disability Rights’ assertions during oral argument
that the relevant service, program, or activity is the right to
premedication judicial process.
       And it is proper to hold Disability Rights to its word
because there is significant evidence that the service,
program, or activity at issue in this case is, in fact, procedural
in nature. As a general matter, the scope of a remedy for a
violation of law is necessarily limited by the scope of the law




                               21
itself. See, e.g., Missouri v. Jenkins, 515 U.S. 70, 88 (1995)
(“The nature of the . . . remedy is to be determined by the
nature and scope of the constitutional violation.” (internal
quotation marks omitted)). In the context of a Title II case,
the equitable remedy sought is generally an injunction
requiring the defendant public entity to give the disabled
plaintiff “meaningful access” to the service, program, or
activity from which he has unlawfully been excluded on the
basis of his disability. See, e.g., Lonberg v. City of Riverside,
571 F.3d 846, 851 (9th Cir. 2009) (“[Title II’s] prohibition
against discrimination is universally understood as a
requirement to provide ‘meaningful access.’”); Henrietta D.
v. Bloomberg, 331 F.3d 261, 282 (2d Cir. 2003) (noting that a
“reasonable accommodation” is one that gives an otherwise
qualified plaintiff with a disability “meaningful access” to the
program or service sought). In other words, there is a nexus
between the remedy sought and the service, program, or
activity.
        Here, there is no debate that the remedy demanded by
Disability Rights is an order requiring New Jersey to provide
judicial hearings (and associated procedural protections) prior
to nonemergent forcible medication. Where, as here, a party
clearly articulates the remedy sought but offers shifting or
perhaps ambiguous indications as to the corresponding
service, program, or activity, we can (and should) infer from
that remedy the true identity of the service, program, or
activity. See, e.g., Yeskey, 118 F.3d at 169–72 (holding that a
prison “boot camp” program qualified as an service, program,
or activity after a disabled prisoner sued to be allowed to
participate), aff’d, 524 U.S. 206 (1998). The undisputed fact
that Disability Rights seeks only a procedural remedy is thus
compelling evidence that the service, program, or activity is
procedural too.




                               22
       We have determined—by looking to the briefs, the
record, and oral argument—the nature of the claim Disability
Rights itself chose to pursue. A party’s confusion over the
contours of its own claim (whether inadvertent or strategic)
does not excuse a court from construing it. And there is surely
a difference between “constru[ing] ambiguous filings to make
sense out of them,” as we do here, and “recharacterizing” a
claim in order to give it a better chance of success. Mata v.
Lynch, 135 S. Ct. 2150, 2157 (Thomas, J., dissenting). We
therefore proceed on the understanding that the relevant
service, program, or activity for purposes of the ADA claim is
the right to judicial process before medication is forcibly
administered in nonemergent situations.
                              B
        The fatal defect in Disability Rights’ ADA claim is
that this right does not exist in New Jersey for nondisabled
people, which means the denial of that right to psychiatric
patients is not discriminatory. All New Jersey citizens are
entitled to the judicial processes attendant to civil
commitment. After that point, however, and once an
individual’s care is entrusted to the State, there are no
additional premedication judicial processes available to
anyone. In fact, Disability Rights repeatedly states in its
opening brief that no one in the State but civilly committed
psychiatric patients is subject to forcible medication at all.
See, e.g., Disability Rights Br. 1 (“Notably, the State cannot
forcibly treat persons with other illnesses without their
consent, even if the State unequivocally believes those
persons ‘need’ the treatment to get better.”); id. at 25 (“AB
5:04B deprives persons with mental illness in state
psychiatric hospitals of the right to refuse medical treatment
even though persons without mental illness retain their right




                              23
to refuse treatment[.]”). Our own review of New Jersey law
persuades us that Disability Rights is basically correct. For
example, mentally ill prisoners are subject to forcible
medication, but they are entitled only to procedures that
closely track the Policy. See N.J. Admin. Code § 10A:16-11.1
et seq. Beyond prisoners and the civilly committed, New
Jersey law broadly protects the right of hospital patients to
refuse medication and treatment. See id. § 8:43G-4.1(a)(8).
The nonexistent provision of specific procedural protections
before such forcible treatment occurs cannot be a service,
program, or activity of the State.
       In its reply brief, Disability Rights suggests that some
other New Jerseyans are subject to court-ordered treatment
without their consent. See, e.g., Disability Rights Reply Br. 6
(“New Jersey courts consistently have held that legally
competent adults have the right to refuse unwanted medical
treatment, except in rare instances of an overriding court
order.”). And, indeed, New Jersey law allows courts to order
incompetent or incapacitated—i.e., disabled—people to
undergo certain forms of medical treatment even though they
are incapable of consenting. See, e.g., N.J. Stat. Ann. § 30:4-
24.2(d)(2) (allowing courts to order necessary “experimental
research, shock treatment, psychosurgery or sterilization” of
psychiatric patients adjudicated to be incapacitated); Matter
of Jobes, 529 A.2d 434, 451 (N.J. 1987) (suggesting that
judicial action can sometimes forestall the withdrawal of life-
sustaining treatment from incompetent patients whose wishes
are unknown).
      But even if we set aside the critical distinctions
between such scenarios and the treatment program at issue
here, New Jersey’s provision of judicial process in those
circumstances does not establish actionable discrimination




                              24
under the ADA in this case. The fact that other disabled
people in the State may be entitled to judicial process before
they are treated without their consent does not mean New
Jersey violates the ADA by forcibly medicating psychiatric
patients under the Policy. The ADA does not require
procedural uniformity in all public efforts to deal with the
various challenges associated with caring for the disabled. In
Traynor v. Turnage, the Supreme Court held that “nothing in
the Rehabilitation Act”—which, as we have discussed,
substantively parallels Title II—“requires that any benefit
extended to one category of handicapped persons also be
extended to all other categories of handicapped persons.” 485
U.S. 535, 549 (1988); see also Ford v. Schering-Plough
Corp., 145 F.3d 601, 608 (3d Cir. 1998) (“The ADA does not
require equal coverage for every type of disability[.]”);
Nondiscrimination on the Basis of Disability in State and
Local Government Services, 56 Fed. Reg. 35,694, 35,705
(July 26, 1991) (“State and local governments may provide
special benefits . . . that are limited to individuals with
disabilities or a particular class of individuals with
disabilities[] without thereby incurring additional obligations
to persons without disabilities or to other classes of
individuals with disabilities.” (discussing 28 C.F.R.
§ 35.130(c))). The mere fact that a State’s law provides for
judicial process before certain disabled people can be
medically treated without their informed consent does not
mean the State must follow identical procedures when it
permits other disabled people to be treated against their will.
In short, Disability Rights has not cited and we are unaware
of any case holding that a Title II violation can be stated in
the absence of an allegation that a qualified person with a




                              25
disability has been denied access to a public service, program,
or activity to which nondisabled people have access.4
        In support of its ADA claim, Disability Rights leans
heavily upon Hargrave v. Vermont, in which the Court of
Appeals for the Second Circuit held that a Vermont statute
violated Title II. 340 F.3d 27 (2d Cir. 2003). The statute at
issue altered Vermont law relating to the durable power of
attorney for health care (DPOA), a document that appoints a
guardian to make health-care decisions in the event of the
executor’s incapacity and “articulat[es] preferences for or
limitations on treatment.” Hargrave, 340 F.3d at 31. Prior to
the law, a DPOA could be revoked only by the executor
himself or by a probate court in conjunction with the
appointment of a guardian for the executor. Id. The law


       4
         The only apparent exception to this rule arises in the
context of unnecessary institutionalization, which is not the
conduct at issue here. See Olmstead, 527 U.S. at 598 (holding
that unjustified institutionalization of disabled people who are
qualified for noninstitutional care can violate Title II even
when no nondisabled people are given preferential treatment);
Helen L., 46 F.3d at 332–33. Significantly, these cases rely on
the “integration mandate,” a regulation obligating States to
administer services in the “most integrated setting appropriate
to the needs of qualified individuals with disabilities” and
effectively defining unnecessary institutionalization as a form
of discrimination under Title II. 28 C.F.R. § 35.130(d).
Disability Rights neither invokes the integration mandate nor
identifies anything in the ADA or its implementing
regulations providing that a State’s procedural inconsistency
in confronting different disability-related issues was a
problem Congress intended to eliminate.




                              26
authorized health care professionals at state psychiatric
hospitals to petition a court to override a civilly committed
person’s DPOA to permit forcible medication in
nonemergency situations. See id. Nancy Hargrave, an
involuntarily     committed      woman      suffering   from
schizophrenia, sued to enjoin enforcement of the law after
being forcibly medicated and executing a DPOA refusing
further treatment with “any and all anti-psychotic,
neuroleptic, psychotropic or psychoactive medications.” Id. at
32 (internal quotation marks omitted).
        In holding that the law violated Title II, the Second
Circuit concluded that it unlawfully discriminated against
mentally ill people by enabling Vermont to override their
refusal of medical treatment, a power the State could not exert
over others. Id. at 38 (characterizing the relevant service,
program, or activity as “the statutorily created opportunity to
execute a DPOA for health care and the right to have it
recognized and followed” (internal quotation marks omitted)).
Hargrave identified a service, program, or activity that was
made available to everyone (i.e., Vermont’s policy of
recognizing DPOAs that could not be overridden on the
motion of a doctor) and alleged that she had been excluded
therefrom because of her disability. Conversely, here
Disability Rights posits a service, program, or activity (the
use of judicial hearings and attendant procedural protections
prior to nonemergency forcible medication) that does not
exist for any nondisabled people. Hargrave thus supports our
view that a Title II claim must allege that a disabled person
has been denied some benefit that a public entity has
extended to nondisabled people—a burden Disability Rights
does not carry here.




                              27
                               C
       Excusing this defect in Disability Rights’ legal theory
would be problematic. We note that Disability Rights would
have us unravel a policy that may well be equal or superior to
the judicial model it demands.5 The State asserts that the
Policy was developed at least in part with bona fide concerns
for patient welfare in mind. See N.J. Br. 10–11. Disability
Rights has not produced any evidence that judicial hearings
would more effectively prevent unnecessary medication than
the Policy—for example, it has not shown that psychiatric
patients are medicated with appreciably less frequency in
States that do provide judicial process.6 See App. 298 (Am.


       5
           In addition, allowing such a challenge could
improperly transform the ADA from an antidiscrimination
statute into a law regulating the quality of care the States
provide to the disabled. See Olmstead, 527 U.S. at 603 n.14
(“We do not in this opinion hold that the ADA imposes on the
States a ‘standard of care’ for whatever medical services they
render, or that the ADA requires States to ‘provide a certain
level of benefits to individuals with disabilities.’”). To do so
would impose “significant federalism costs” by subverting
“the States’ historical role as the dominant authority
responsible for providing services to individuals with
disabilities.” Id. at 624–25 (Thomas, J., dissenting).
       6
          At least as to non-CEPP patients, it would be
surprising if judicial hearings had a significant impact on the
frequency of forcible medication in New Jersey. When a New
Jersey judge commits a mentally ill person to state custody,
he orders “involuntary commitment to treatment.” N.J. Stat.
Ann. § 30:4-27.10 (emphasis added). In addition, the
substantive standards for involuntary commitment and




                              28
Compl. ¶ 147) (listing 29 States in which psychiatric patients
are entitled to judicial hearings before being forcibly
medicated). While it urges us to extend the coverage of Title
II beyond what the statute will bear, Disability Rights also
fails to show that invalidating the Policy would actually serve
the interests of psychiatric patients in New Jersey.
        For the reasons stated, we hold that Disability Rights
has failed to allege a prima facie violation of Title II of the
ADA because the provision of judicial process before the
nonemergent administration of psychotropic drugs is not a
“service, program, or activity” of New Jersey from which the
civilly committed are excluded. Since this flaw in Disability
Rights’ ADA claim applies equally to CEPP and non-CEPP
patients, we will affirm the District Court’s summary
judgment for New Jersey as to the non-CEPP patients and
reverse the summary judgment for Disability Rights as to the
CEPP patients on the ADA claim.
                               V
       Having rejected Disability Rights’ statutory claims, we
turn now to its constitutional claims. The District Court split
its analysis of the due process claim into substantive and

forcible medication are so strikingly similar that different
results at the same patient’s commitment and medication
hearings are unlikely. Civil commitment requires a substantial
likelihood that the person will harm himself, others, or
property “within the reasonably foreseeable future.” Id. §
30:4-27.2(h)–(i). For a person to be forcibly medicated under
the Policy, there must be a “substantial risk” that, “within the
reasonably foreseeable future,” the patient will do “serious
harm to self, others, or property if psychotropic medication is
not administered[.]” App. 1393, 1396.




                              29
procedural components, but we focus on procedural due
process. Because the due process analysis is different for non-
CEPP and CEPP patients, we evaluate them separately.
                               A
        As the Policy relates to non-CEPP patients, our
analysis is guided by Harper, in which the Supreme Court
held that a prison procedure virtually identical to the Policy
satisfied due process. In that case, Washington State confined
Harper, a convicted felon, to its Special Offender Center, a
facility housing prisoners with serious mental illnesses. 494
U.S. at 214. After the State treated Harper with antipsychotic
drugs against his will, Harper filed a § 1983 suit “claiming
that the failure to provide a judicial hearing before the
involuntary administration of antipsychotic medication”
violated the Due Process Clause. Id. at 217. As Disability
Rights admits, New Jersey’s Policy is essentially identical to
the Washington policy at issue in Harper, which required
approval of forcible medication by a three-person committee
accompanied by various other procedural protections. See
Disability Rights Reply Br. 33 n.6 (resisting New Jersey’s
argument that the Policy is more protective by claiming that
the only two differences are illusory).
       The Supreme Court began its review of the
Washington policy by holding that, in light of the side effects
and mind-altering nature of psychotropic drugs, Harper had
“a significant liberty interest in avoiding the unwanted
administration of antipsychotic drugs under the Due Process
Clause,” Harper, 494 U.S. at 221, but that this interest could
be outweighed in appropriate circumstances by “the State’s
interests in prison safety and security,” id. at 223. It rejected
the notion that the Due Process Clause forbids a State from
forcibly medicating a prisoner unless he has been found to be




                               30
incompetent. Id. at 222. The Court then proceeded to consider
the procedural sufficiency of the Washington policy using the
balancing test of Mathews v. Eldridge, 424 U.S. 319 (1976).
Although the Court acknowledged Harper’s strong interest in
refusing unwanted treatment, it rejected the notion that
forcible medication decisions had to be made by judges rather
than medical professionals. See Harper, 494 U.S. at 229–31.
“The risks associated with antipsychotic drugs are for the
most part medical ones, best assessed by medical
professionals,” the Court said. Id. at 233. “A State may
conclude with good reason that a judicial hearing will not be
as effective, as continuous, or as probing as administrative
review using medical decisionmakers.” Id. The Court also
specifically dismissed Harper’s complaints that the
Washington policy did not require a “clear and convincing”
standard of proof or the right to counsel. Id. at 235–36.
        Attempting to distinguish Harper, Disability Rights
insists repeatedly: “New Jersey psychiatric hospitals are not
prisons and their patients are not prisoners.” Disability Rights
Reply Br. 30 (emphasis in original); see also Disability Rights
Br. 2, 46, 53, 55–57. For support, it quotes caselaw holding
that involuntarily committed people “are entitled to more
considerate treatment and conditions of confinement than
criminals.” Disability Rights Br. 53 (quoting Youngberg, 457
U.S. at 321–22). But Disability Rights omits a critical part of
the quotation from Youngberg: “Persons who have been
involuntarily committed are entitled to more considerate
treatment and conditions of confinement than criminals whose
conditions of confinement are designed to punish,” the Court
wrote. 457 U.S. at 321–22 (emphasis added). It is indisputable
that the Due Process Clause permits harsher treatment of
prisoners than civilly committed people insofar as the harsher
treatment relates to the punitive nature of incarceration. But the




                               31
Supreme Court has repeatedly stated that forcible treatment of
mentally ill prisoners cannot be a component of a State’s
program of punishment. See Harper, 494 U.S. at 241 (“Forced
administration of antipsychotic medication may not be used as
a form of punishment.”); Vitek v. Jones, 445 U.S. 480, 493
(1980) (“[I]nvoluntary commitment to a mental hospital is not
within the range of conditions of confinement to which a
prison sentence subjects an individual.”). This principle is
borne out by the Supreme Court’s indication that the logic of
Harper applies to the forcible medication of pretrial detainees.
See Riggins v. Nevada, 504 U.S. 127, 135 (1992).
       Because forced administration of psychotropic drugs
can be used only for safety and treatment reasons in both the
prison and civil commitment contexts, there is no relevant
distinction between Harper and this case for due process
purposes, at least with respect to non-CEPP patients. See
Jurasek v. Utah State Hosp., 158 F.3d 506, 511 (10th Cir.
1998) (rejecting a similar due process challenge to forcible
medication on the ground that Harper applies in the civil
commitment context as long as similar procedural protections
are afforded). It would be passing strange if due process were
to permit the State to forcibly medicate a criminal whose
conviction bears no suggestion of physical dangerousness
without a judicial hearing, while mandating judicial hearings
for mentally ill people who have already been adjudicated to
be so dangerous as to require civil commitment. Therefore,
we will affirm the District Court’s summary judgment in
favor of New Jersey on the due process claim with respect to
non-CEPP patients.
                               B
      As for CEPP patients—individuals who have been
found by a court to no longer be sufficiently dangerous to




                              32
need involuntary confinement, but who remain in custody
pending transfer to an appropriate community-based
placement—we agree with the District Court that the due
process claim has merit. Disability Rights is correct that
Harper, which did not address situations in which a State
wishes to forcibly medicate a person who has already been
adjudicated by a court to be nondangerous, does not control
with respect to CEPP patients. Accordingly, we turn to the
familiar Mathews v. Eldridge balancing test. See Harper, 494
U.S. at 229 (using Mathews to analyze procedural due process
rights in the forcible medication context).
        Mathews requires us to weigh three factors: (1) “the
private interest that will be affected by the official action”; (2)
“the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards”; and (3) “the
Government’s interest, including the function involved and
the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.” 424 U.S. at
335. Application of these factors persuades us to agree with
the District Court that the Policy violates the Due Process
Clause with respect to CEPP patients.
        First, as the Supreme Court held in Harper, an
individual’s interest in avoiding the unwarranted
administration of psychotropic drugs is, to say the least, “not
insubstantial.” 494 U.S. at 229. Psychotropic medication
alters and regulates the patient’s cognitive processes and can
trigger serious side effects. Id. at 229–30. A patient’s interest
in avoiding such an invasion of his bodily integrity can only
be greater when a court of law has already declared him fit to
return to life in the community.




                                33
       Meanwhile, the risk of erroneous results in the absence
of a judicial hearing is considerably higher than in the non-
CEPP context. When New Jersey applies the Policy to a
CEPP patient, it effectively vacates a court’s prior
determination that the patient is not dangerous. Such a
decision may be appropriate in some circumstances—CEPP
patients are only entitled to judicial review hearings every six
months after their first 60 days on CEPP status, so they have
plenty of time in State custody in which to relapse into
dangerousness. See N.J. Ct. R. 4:74-7(h)(2). But allowing the
Policy to be applied to CEPP patients would permit the State
to forcibly medicate a patient just a few days after a judge has
deemed the patient no longer dangerous. In such
circumstances, due process may require the hospital and the
commitment court to agree that the basis for a previous
judicial finding of nondangerousness no longer exists.
       Finally, the State’s interest in denying judicial process
to CEPP patients seems slight. Although we disagree with the
District Court’s statement that the State “has no interest in
continuing to forcibly medicate” CEPP patients, Disability
Rights N.J., 974 F. Supp. 2d at 729, New Jersey admits that it
has “very rarely” sought to forcibly medicate CEPP patients
pursuant to the Policy, N.J. Br. 69 n.14. For those CEPP
patients who do relapse while in custody, the State may
invoke AB 5:04A to address any emergency until a judicial
hearing can be held. And if providing judicial process for all
psychiatric patients would result in just a five-percent
increase in hearings, as Disability Rights asserts and the State
does not contest, see Disability Rights Br. 37, then the “fiscal
or administrative burden[]” imposed on New Jersey by a
judicial hearing requirement for CEPP patients would be light
indeed, Mathews, 424 U.S. at 335.




                              34
       The balance among these three factors convinces us
that, as the District Court held, the State cannot apply the
Policy to CEPP patients consistent with due process of law.
To hold otherwise would permit psychiatric hospitals to
forcibly treat patients with mind-altering drugs even after a
judge has ruled that the factual basis for their continued civil
commitment has disappeared. If a patient actually remains so
dangerous as to require long-term, nonemergent forcible
medication, the appropriate course for the State is to
recommit the patient through normal judicial channels, not to
leave the patient on CEPP status. We will therefore affirm the
District Court’s summary judgment for Disability Rights on
the due process claim with respect to CEPP patients.
       Our analysis effectively disposes of the constitutional
claims arising under the right of access to the courts, the right
to counsel, and the right to freely think and communicate.
Harper, as discussed above, squarely rejects the first two of
those claims. See 494 U.S. at 231 (“[W]e conclude that an
inmate’s interests are adequately protected, and perhaps better
served, by allowing the decision to medicate to be made by
medical professionals rather than a judge.”); id. at 236 (“[I]t
is less than crystal clear why lawyers must be available to
identify possible errors in medical judgment.” (quoting
Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305,
330 (1985))). The claim based on the right to freely think and
communicate is duplicative of the general due process claim
and can be resolved on the same grounds. We have long held
that a civilly committed person’s right to be free from
unwanted treatment with mind-altering drugs is a qualified
one, see Rennie II, 720 F.2d at 272 (Seitz, C.J., concurring),
and there is no reason to think that the Harper hearings
provided under the Policy impermissibly infringe upon that
right.




                               35
                       *     *      *
        In implementing the Policy, the State of New Jersey
discharged one of its most important and daunting
responsibilities: the care and custody of people too mentally
ill to live in freedom. New Jersey determined that, while
judges have an important role to play in the civil commitment
process, matters of medical treatment are more appropriately
handled by medical professionals. We conclude that the
State’s approach comports with the demands of the
Constitution and the Americans with Disabilities Act, except
as to CEPP patients, whose constitutional rights entitle them
to judicial process before psychotropic medication may be
forcibly administered. An appropriate order follows.




                             36
