IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND WILLIAMS, et al., ) ) v. ) Civil No. CCB-94-880 ) WASSERMAN, et al., ) ) ) HUNT, et al., ) ) v. ) Civil No. CCB-91-2564 ) EBBERTS, et al., ) ) ) HATTIE J. ) ) v. ) Civil No. CCB-94-1107 ) WASSERMAN, et al., ) ) ) UNITED STATES OF AMERICA, ) Amicus Curiae. ) ) ) MEMORANDUM OF THE UNITED STATES IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON ADA CLAIM AND IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR PARTIAL SUMMARY JUDGMENT 01-05690 TABLE OF CONTENTS Page Table of Authorities .......................................... i Preliminary Statement ..........................................1 Argument .......................................................5 I. The Unnecessary Segregation of Individuals with Disabilities in Institutions Is a Form of Discrimination Prohibited by the ADA and Its Implementing Regulations ............................5 A. Ending the discrimination of segregation and isolation through unnecessary institutionalization is a specific purpose of the ADA .....................................6 B. ADA's legislative history affirms that one of its major purposes is to remove the barriers of unnecessary segregation ...........10 C. ADA regulations require states to provide services in the most integrated setting appropriate to the needs of people with disabilities ..................................12 II. The Developing Caselaw on the Integration Regulation Affirms that States Are Obligated to Provide Services in the Most Integrated Setting ...........................................18 III. Section 504 Cases Decided Prior to Enactment of the ADA Are Not Relevant To Interpreting Title II's Integration Requirement ................21 IV. Defendants' Failure To Provide Community Services To Individuals Identified as Unnecessarily Institutionalized Is Unjustified ....23 V. Defendants Seek to Evade Their Constitutional Responsibilities Under Youngberg v. Romeo .........25 Conclusion .................................................... 35 01-05691 TABLE OF AUTHORITIES Page(s) CASES: Alexander v. Choate, 469 U.S. 287 (1985) .......................6 Buffington v. Baltimore County, 913 F.2d 113 (4th Cir. 1990) .......................................31 Cammarano v. United States, 358 U.S. 498 (1959) ...............20 Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ..................13 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) ...................................16 Clark v. Cohen, 613 F. Supp. 684 (E.D. Pa. 1985), aff'd, 794 F.2d 79 (3d Cir.), cert. denied, 479 U.S. 962 (1986) .....................22 Clark v. Cohen, 794 F.2d 79 (3d Cir.), cert. denied, 479 U.S. 962 (1986) ..............21-22, 29 Concerned Parents to Save Dreher Park Center v. West Palm Beach, 846 F. Supp. 986 (S.D. Fla. 1994) ......................................13 Conner v. Branstad, 839 F. Supp. 1346 (S.D. Iowa 1993) ......................................19 DeGidio v. Pung, 920 F.2d 525 (8th Cir. 1990) .................34 DeShaney v. Winnebago County DSS, 489 U.S. 189 (1989) .........31 General Electric Co. v. Gilbert, 429 U.S. 125 (1976) ..........13 Helen L. v. DiDario, 46 F.3d 325 (3d Cir.), cert. denied, U.S. , 116 S. Ct. 64 (1995) ........... passim Kentucky Ass'n for Retarded Citizens, Inc. v. Conn, 674 F.2d 582 (6th Cir.), cert. denied, 459 U.S. 1041 (1982) ..............................22, 24 Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825 (1988) ...................................20 Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990) ..........10 Messier v. Southbury Training School, 916 F. Supp. 133 (D. Conn. 1996) ..................13, 28 - i - 01-05692 Phillips v. Thompson, 715 F.2d 365 (7th Cir. 1983) ............22 CASES (cont'd): Plummer v. Branstad, 731 F.2d 574 (8th Cir. 1984) .............23 Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981) ....................34 Rogers v. Evans, 792 F.2d 1052 (11th Cir. 1986) ...............34 Thomas Jefferson University v. Shalala, U.S. , 114 S. Ct. 2381 (1994) ........................14 Thomas S. v. Flaherty, 699 F. Supp. 1178 (W.D.N.C. 1988), aff'd, 902 F.2d 250 (4th Cir.), cert. denied, 498 U.S. 951 (1990) .........30 Thomas S. v. Flaherty, 902 F.2d 250 (4th Cir.), cert. denied, 498 U.S. 951 (1990) .................26, 31 Thomas S. v. Morrow, 601 F. Supp. 1055 (W.D.N.C. 1984), aff'd, 781 F.2d 367 (4th Cir. 1986) .......................................30 Thomas S. v. Morrow, 781 F.2d 367 (4th Cir. 1986) .........passim Todaro v. Ward, 565 F.2d 48 (2d Cir. 1977) ....................34 Torcasio v. Murray, 57 F.3d 1340 (4th Cir. 1995), cert. denied, U.S. , 116 S. Ct. 772 (1996) .........17 Traynor v. Turnage, 485 U.S. 535 (1988) .......................20 United States v. Pennsylvania, 902 F. Supp. 565 (W.D. Pa. 1995) .......................................33 Wellman v. Faulkner, 715 F.2d 269 (7th Cir. 1983), cert. denied, 468 U.S. 1217 (1984) ....................34 Williams v. Secretary of Executive Office of Human Services, 609 N.E.2d 447 (Mass. 1993) ................19-21 White v. Napoleon, 897 F.2d 103 (3d Cir. 1990) ................34 Wyatt v. King, 773 F. Supp. 1508 (M.D. Ala. 1991) ..............3 Youngberg v. Romeo, 457 U.S. 307 (1982) ....................25-27 - ii - 01-05693 CONSTITUTION AND STATUTES: Due Process Clause (Fourteenth Amendment) .................passim Americans with Disabilities Act of 1990 (ADA): 42 U.S.C. S 12101(a)(2) (title I) ......................7 42 U.S.C. S 12101(a)(3) ................................7 42 U.S.C. S 12101(a)(5) ................................7 42 U.S.C. S 12131-12134 (title II) ................passim 42 U.S.C. S 12131(2) ...................................8 42 U.S.C. S 12132 ...................................7, 8 42 U.S.C. S 12134 ..................................8, 12 42 U.S.C. S 12134(b) ...................................9 Rehabilitation Act of 1973, Section 504, 29 U.S.C. S 794 ..............................6, 9, 21-23 REGULATIONS AND RULES: 28 C.F.R. pt. 35 (1994) ...................................passim Section 35.130(b)(1)(v) ...............................19 Section 35.130(d) .................................passim App. A ............................................15, 16 28 C.F.R. pt. 41 (1994) ........................................9 Section 41.51(d) ...................................9, 13 45 C.F.R. S 84.4(b)(2) (1994) .................................22 LEGISLATIVE MATERIALS: ADA: Hearing Before the Senate Comm. on Labor and Human Resources and the Subcomm. on the Handicapped, 101st Cong., lst Sess. (1989) ..11-12 H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. (1990), reprinted in 1990 U.S.C.C.A.N. 303 ..........................7, 10, 12 H.R. Rep. No. 485 (III), 101 Cong., 2d Sess. (1990), reprinted in 1990 U.S.C.C.A.N. 445 .......................6, 8, 11, 15 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) ............................6, 7, 10, 12 135 Cong. Rec. 19801 (1989) ...................................10 135 Cong. Rec. S4993 (daily ed. May 9, 1989) ..................12 136 Cong. Rec. H2447 (daily ed. May 17, 1990) .................12 - iii - 01-05694 PRELIMINARY STATEMENT The United States appears before this Court as amicus curiae to urge this Court to grant Plaintiffs' Motion for Partial Summary Judgment on their claim brought under the Americans with Disabilities Act of 1990 (ADA) (Plaintiffs' Motion) in Williams and to deny Defendants' Motion for Summary Judgment on Plaintiffs' claims under the Fourteenth Amendment and the ADA (Defendants' Motion).1/ With respect to the arguments concerning the ADA raised in the Williams case, there are no genuine issues of material fact.2/ Specifically, the Court has before it a substantial accumulation of years of admissions by Defendants and their own treating professionals, charged with the responsibility of ______________________ 1/Because the law pursuant to the ADA and the Fourteenth Amendment is the same for mentally disabled individuals unnecessarily segregated in any state-run institution, the United States' brief addresses issues presented in all three cases. 2/Plaintiffs have moved for summary judgment in Williams on behalf of a sub-class of Williams plaintiffs -- individuals for whom State treating professionals have determined that the most integrated setting appropriate to the needs of these individuals is the community rather than an institution. Plaintiffs have not moved for summary judgment on behalf of the individual plaintiff in the Hattie J. case, nor have they moved for summary judgment on behalf of any of the plaintiffs with mental retardation in the Hunt case. Defendants have moved for summary judgment on the ADA claims in all three cases. Defendants' motion for summary judgment should be denied in all three cases. In Williams, where the facts are not in dispute, summary judgment should be issued in favor of Plaintiffs. In Hunt and Hattie J., Defendants' motion should be denied because the facts belie Defendants' contentions that they are meeting their legal responsibilities under the ADA. See, e.g., Defendants' Mem. at 57, 59 (treating professionals have determined that Hunt Plaintiffs should be served in the community, and as of June 30, 1996, all but two Hunt plaintiffs will be served in the community); Defendants' App. at 12, 25 (treating professionals and Plaintiffs' expert determined that Hattie J. should be served in the community). 01-05695 - 2 - determining the services necessary to meet the needs of individuals the State has undertaken to serve, that individuals with disabilities are currently inappropriately institutionalized in Maryland's public institutions and would be better served in integrated community programs.3/ For instance, State professionals described Mr. Trail's need for community services as "very urgent, in crisis."4/ In defiance of the long-standing community placement recommendations of the State's own treating professionals, Defendants have unnecessarily segregated the individuals at issue in the motion in institutions and away from society and have failed to provide care in the most integrated setting appropriate to their needs -- in this case, community- based programs. As the United States argues below, this unnecessary segregation is a form of discrimination prohibited by the ADA and its implementing regulations. 28 C.F.R. S 35.130(d) (ADA integration regulation); Helen L. v. DiDario, 46 F.3d 325 (3d Cir.), cert. denied, U.S. , 116 S. Ct. 64 (1995). ______________________ 3/ Gary Williams' List of Undisputed Material Facts in Support of Motion for Summary Judgment on his ADA Claim (Williams Facts) (filed with Plaintiffs' Motion) at PP 6-9, 13, 23-24, 27, 29, 40- 41; Marie Lentz's List of Undisputed Material Facts in Support of Plaintiffs' Motion for Summary Judgment on her ADA Claim (Lentz Facts) (filed with Plaintiffs' Motion) at PP 10-13, 19-20, 23, 53; Ronald Cullen's List of Undisputed Material Facts in Support of Plaintiffs' Motion for Summary Judgment on his ADA Claim (Cullen Facts) (filed with Plaintiffs Motion) at PP 14-20, 23, 41; John Trail's List of Undisputed Material Facts in Support of Motion for Summary Judgment on his ADA Claim (Trail Facts) (filed with Plaintiffs' Motion) at PP 8, 16-17, 20-23, 25-26, 28, 38-44. 4/ Trail Facts at P 22. 01-05696 - 3 - Community-based programs are integrated services both because they are physically located in the mainstream of society and because they provide opportunities for people with mental disabilities to interact with their non-disabled peers in all facets of life. An institutional setting, on the other hand, is a segregated environment because individuals living in such facilities are separated from the community and walled off from the mainstream of society, isolated and apart from the natural community where all of us live, work, and engage in life's many activities. See, e.g., Wyatt v. King, 773 F. Supp. 1508, 1512 (M.D. Ala. 1991). Given these undisputed facts, the Court is presented with a purely legal question: Does Defendants' unnecessary segregation of individuals with disabilities constitute discrimination under title II of the ADA? This case is thus appropriate for summary judgment. The State's defense of its discrimination is without merit. Defendants have misinterpreted the prohibition in title II of the ADA against unnecessary segregation and relied on irrelevant caselaw. And far from being unable to end unnecessary segregation of the individuals at issue in Plaintiffs' Motion, the State admits that it presently operates a dual system for providing residential care, treatment, and training to its citizens with mental disabilities.5/ Besides operating _____________________ 5/ Williams Facts at PP 44-46; Lentz Facts at PP 56-63; Cullen Facts at PP 45-54; Trail Facts at PP 58-66. 01-05697 - 4 - institutions for people with mental disabilities, the State funds an array of community-based programs for people with mental disabilities.6/ In fact, Defendants admit that they can and will fund the recommended community-based services for each of the individuals at issue in Plaintiffs' Motion.7/ In spite of this admission, however, these individuals have not been discharged from State hospitals.8/ As for Defendants' Motion concerning the Fourteenth Amendment, there, too, the State's legal arguments are in error. Defendants have misstated the protections that the Fourteenth Amendment affords to people with mental disabilities institutionalized by a State; confounded the liability standard for assertion of a due process claim under the Fourteenth Amendment; and urged that this Court abdicate its responsibility to ensure that the rights of institutionalized persons with disabilities are respected by the states. _____________________________ 6/ Ibid. 7/ Williams Facts at P 22; Cullen Facts at P 22; Lentz Facts at P 12; Trail Facts at P 27. Defendants have been promising to move these individuals into community programs for a long time but have not fulfilled these promises. See, e.g., Williams Facts at PP 10-12 (Defendants have been promising to discharge Mr. Williams to an appropriate community program for six years). 8/ Williams Facts at P 5; Lentz Facts at P 1, 9; Cullen Facts at P 22; Trail Facts at P 1. 01-05698 - 5 - ARGUMENT I. The Unnecessary Segregation of Individuals with Disabilities in Institutions Is a Form of Discrimination Prohibited by the ADA and Its Implementing Regulations. As Plaintiffs have demonstrated in pleadings in support of their summary judgment motion, this Court already has before it a substantial amount of evidence that individuals with disabilities have long been inappropriately institutionalized in Maryland's public institutions and would be better served in integrated community programs. Plaintiffs' Mem. at 3-11 and accompanying Undisputed Material Facts. Despite the fact that Defendants claim to have a significant array of integrated, community-based services in place and, indeed, have the funds to provide community services to each of the individuals at issue in Plaintiffs' Motion who remain inappropriately institutionalized, Defendants have failed to transfer these individuals to community programs. Plaintiffs' Mem. at 34-36 and accompanying Undisputed Material Facts. By failing to serve qualified mentally disabled individuals in the most integrated setting appropriate to their needs, Defendants are violating the ADA's prohibition of disability-based discrimination. Helen L. v. DiDario, 46 F.3d 325 (3d Cir.), cert. denied, U.S. , 116 S. Ct. 64 (1995). For the sub-class of individuals in the Williams case before this Court on Plaintiffs' Motion, as in Helen L., Defendants' own professionals' judgments indicate that community placement is the only professionally justifiable course of action. The relief that Plaintiffs are seeking under the ADA merely requires the 01-05699 - 6 - State of Maryland to fulfill its own judgments and deliver services to people with disabilities in the most integrated setting appropriate to their needs. A. Ending the discrimination of segregation and isolation through unnecessary institutionalization is a specific purpose of the ADA. Nearly twenty years before enacting the ADA, Congress recognized that society historically has discriminated against people with disabilities by unnecessarily segregating them from their family and community, and in response, enacted Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. S 794. The sponsors of that legislation condemned the "invisibility of the handicapped in America," and introduced bills responding to the country's "shameful oversights" that caused individuals with disabilities to live among society "shunted aside, hidden, and ignored." Alexander v. Choate, 469 U.S. 287, 296 (1985) (internal quotation marks omitted). Almost twenty years later, Congress acknowledged that the Rehabilitation Act had not fulfilled the "compelling need * * * for the integration of persons with disabilities into the economic and social mainstream of American life," S. Rep. No. 116, 101st Cong. at 20 (1989). It was the purpose of the ADA to "continue to break down barriers to the integrated participation of people with disabilities in all aspects of community life." H.R. Rep. No. 485 (III) at 49-50 (1990), reprinted in 1990 U.S.C.C.A.N. at 472-473. The ADA begins with congressional findings and purposes that detail the reasons the statute was necessary. Congress 01-05700 - 7 - specifically found that "institutionalization" is one of the "critical areas" in which discrimination against individuals with disabilities persists. 42 U.S.C. S 12101(a)(3). It further found that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U.S.C. S 12101(a)(2). These discriminatory practices continue today through "outright intentional exclusion" and "segregation." 42 U.S.C. S 12101(a)(5). Congress therefore recognized that the isolation, segregation, and exclusion represented by unjustifiable institutionalization constitute disability-based discrimination. The ADA is the congressional response to the compelling need to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and for the integration of persons with disabilities into the economic and social mainstream of American life. Further, there is a need to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities. S. Rep. No. 116, 101st Cong., 1st Sess. 20 (1989); H.R. Rep. No. 485 (II), 101st Cong. 2d Sess. at 50 (1990), reprinted in 1990 U.S.C.C.A.N. at 332. Consistent with the goal of comprehensive integration, the ADA prohibits public entities from discriminating by reason of disability. 42 U.S.C. S 12132. Title II of the ADA forbids state and local governments to discriminate against people with disabilities, and is divided into two parts. Part A, 42 U.S.C. 01-05701 - 8 - SS 12131-12134, contains the general prohibition against disability-based discrimination by public entities and other generally applicable provisions. (Part B applies to public transportation and is, therefore, not applicable to this case.) Part A of title II mandates that "no qualified individual with a disability9/ shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. S 12132. In 42 U.S.C. S 12134, Congress directed the Attorney General to promulgate regulations implementing this general mandate. See H.R. Rep. No. 485 (III), 101 Cong., 2d Sess. at 52 (1990), reprinted in 1990 U.S.C.C.A.N. at 475 ("Unlike the other titles in this Act, title II does not list all of the forms of discrimination that the title is intended to prohibit. Thus, the purpose of this section is to direct the Attorney General to issue regulations setting forth the forms of discrimination prohibited.") ____________________ 9/ A "qualified individual with a disability" is: an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 42 U.S.C. S 12131(2). 01-05702 - 9 - However, Congress did specify that (except with regard to program accessibility and communications issues) the Attorney General's title II ADA regulations "shall be consistent with [the ADA] and with the coordination regulations under part 41 of title 28, Code of Federal Regulations * * * applicable to recipients of Federal financial assistance under section 794 of Title 29 [Section 504 of the Rehabilitation Act of 1973]." 42 U.S.C. S 12134(b). This citation refers to the Section 504 coordination regulations of the former Department of Health, Education, and Welfare (HEW).10/ Most pertinent here, the specified coordination regulations contain an express, stand-alone, integration requirement which mandates that "[r]ecipients [of federal financial assistance] shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons." 28 C.F.R. S 41.51(d) (1994).11/ ______________________ 10/ HEW was originally the agency designated to coordinate Section 504 regulations promulgated by the various federal agencies. It promulgated such coordination regulations on January 13, 1978. Pursuant to an Executive Order on August 11, 1981, responsibility for these coordination regulations was transferred to the Department of Justice, which adopted the regulations in toto and transferred them to 28 C.F.R. pt. 41. The regulations remain there today, despite the fact that other Section 504 regulations, including regulations for the Department of Health and Human Services, are found in other parts of the Code of Federal Regulations. For a more detailed description and history of various Section 504 regulations, see Helen L., 46 F.3d at 330-31. 11/ The congressional choice made in title II of the ADA to ratify the Section 504 coordination regulations, not any other specific set of Section 504 regulations, is important; other Section 504 regulations did not contain a stand-alone integration requirement. See Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 563 (1990) ("overriding significance" must be attached to the (continued...) 01-05703 - 10 - B. ADA's legislative history affirms that one of its major purposes is to remove the barriers of unnecessary segregation. The ADA's legislative history confirms that Congress intended the ADA to end the unnecessary segregation of people with disabilities from the community because "[o]ne of the most debilitating forms of discrimination is segregation imposed by others." S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989). In introducing the legislation, Senator Harkin declared that "[f]or too long, individuals with disabilities have been excluded, segregated, and otherwise denied equal, effective, and meaningful opportunity to participate in the economic and social mainstream of American life. It is time we eliminate these injustices." 135 Cong. Rec. 19801 (1989). The House and Senate Reports emphasize that the purpose of the Act is to end the isolation, exclusion and segregation of individuals with disabilities, and the discrimination that "persists in such critical areas as * * * institutionalization." S. Rep. No. 116 at 8 (citing findings of the U.S. Commission on Civil Rights). See also id. at 20 ("compelling need" for the "integration of persons with disabilities into the economic and social mainstream of American life"); H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. at 22 (1990), reprinted in 1990 U.S.C.C.A.N. 304 (purpose of the ADA is _______________________________ 11/ (...continued) congressional ratification of administrative regulations). Unlike the stand-alone integration requirement in the Section 504 coordination regulations, the integration requirement in other Section 504 regulations is specifically linked to differences in services provided to individuals with disabilities and those without disabilities. 01-05704 - 11 - to "bring persons with disabilities into the economic and social mainstream of American life"); id. at 28, reprinted in 1990 U.S.C.C.A.N. at 310 (noting the historic "isolation" of individuals with disabilities); H.R. Rep. No. 485 (III) at 26, reprinted in 1990 U.S.C.C.A.N. at 448-449 (finding that "segregation for persons with disabilities 'may affect their hearts and minds in a way unlikely ever to be undone,'" quoting Brown v. Board of Education, 347 U.S. 483, 494 (1954)); H.R. Rep. No. 485 (III) at 49-50, reprinted in 1990 U.S.C.C.A.N. at 472-473 ("purpose of title II is to continue to break down barriers to the integrated participation of people with disabilities in all aspects of community life"). Unnecessary and unjustifiable institutionalization was also specifically identified in congressional testimony by a number of sponsors and supporters of the ADA as one of the forms of segregation and discrimination that the ADA was intended to eliminate. For example, former Senator Lowell Weicker, an original sponsor of the ADA, testified about the need for the ADA to eliminate the unnecessary isolation and segregation that institutionalization represents: For years, this country has maintained a public policy of protectionism toward people with disabilities. We have created monoliths of isolated care in institutions and in segregated educational settings. It is that isolation and segregation that has become the basis of the discrimination faced by many disabled people today. Separate is not equal. It was not for blacks; it is not for the disabled. ADA: Hearing Before the Senate Comm. on Labor and Human Resources and the Subcomm. on the Handicapped, 101st Cong., 1st 01-05705 - 12 - Sess. 215 (1989). See also 135 Cong. Rec. S4993 (daily ed. May 9, 1989) (Senator Kennedy testifying that the ADA "will roll back the unthinking and unacceptable practices by which disabled Americans today are segregated, excluded, and fenced off from fair participation in our society by mindless biased attitudes and senseless physical barriers."); 136 Cong. Rec. H2447 (daily ed. May 17, 1990) (Rep. Miller attesting that "[s]ociety has made them [people with disabilities] invisible by shutting them away in segregated facilities."). As summed up by then-Attorney General Richard Thornburgh, "many persons with disabilities in this Nation still lead their lives in an intolerable state of isolation and dependence." S. Rep. No. 116, 101st Cong., 1st Sess. 7 (1989); H.R. Rep. No. 485 (II) at 32 (1990), reprinted in 1990 U.S.C.C.A.N. at 313, Nowhere is the state of isolation and dependence more intolerable than when it occurs, as in this case, because of unnecessary and unjustified segregation in institutions. C. ADA regulations require states to provide services in the most integrated setting appropriate to the needs of people with disabilities. The regulations issued by the Attorney General to comply with Congress's mandate in 42 U.S.C. S 12134, promulgated pursuant to congressional delegation only after public comment, particularize Congress's broad language. Following Congress's explicit directions, the title II provision relevant here, known as the "integration regulation," adopts the precise language of the Section 504 coordination regulation on integration, requiring 01-05706 - 13 - states to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." Compare 28 C.F.R. S 35.130(d) (ADA title II integration provision) with 28 C.F.R. S 41.51(d) (Section 504 coordination regulation). It is established in federal court jurisprudence and administrative law theory that such "legislative regulations" have the mandatory force and effect of federal law. See, e.g., General Electric Co. v. Gilbert, 429 U.S. 125, 141 (1976); Chrysler Corp. v. Brown, 441 U.S. 281, 301-3 (1979); Helen L., 46 F.3d at 331-32 (because title II was enacted with broad language and directed the Attorney General to promulgate regulations, the Justice Department regulations are "entitled to substantial deference") (citing Blum v. Bacon, 457 U.S. 132, 141 (1982) and Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984)); Concerned Parents to Save Dreher Park Center v. West Palm Beach, 846 F. Supp. 986, 989, n.9 (S.D. Fla. 1994) (ADA regulations "'must be given legislative and hence controlling weight unless they are arbitrary, capricious, or clearly contrary to the statute.' United States v. Morton, 467 U.S. 822, 834 (1984)"); Messier v. Southbury Training School, 916 F. Supp. 133, 141 (D. Conn. 1996) (same). Moreover, substantial deference is owed the Justice Department's interpretation of this, its own regulation. See Thomas Jefferson University v. Shalala, U.S. , 114 S. Ct. 2381, 2386 (1994). It is not this Court's "task . . . to decide 01-05707 - 14 - which among several competing interpretations best serves the regulatory purpose. Rather, the agency's interpretation must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation." Id. (internal quotation marks omitted). The Department of Justice has taken the consistent position that title II's "integration regulation" means that where professionals (with appropriate input) have determined that community-based services are appropriate for disabled individuals, states must end unnecessary segregation in state- operated institutions and provide community-based services for those individuals. See United States' briefs filed in Helen L. (regarding a state-run nursing home) (attached to Plaintiffs' Motion), Wyatt v. Poundstone (regarding all Alabama institutions for people with mental illness and mental retardation) (attached as Attachment A), and United States v. Connecticut (regarding Southbury Training School, a state-run institution for people with mental retardation) (relevant pages attached as Attachment B). This position is consistent with -- indeed compelled by -- the purpose of the statute and the language of the regulation, and is accordingly entitled to substantial deference. With the "integration regulation," the Attorney General established that a state's provision of services in an unnecessarily segregated setting constitutes unlawful disability- based discrimination. See Helen L., 46 F.3d at 333. The Attorney General has explained that "the most integrated setting appropriate to the needs of qualified individuals with 01-05708 - 15 - disabilities" means "in a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible . . . ." 28 C.F.R. pt. 35, app. A at 452 (Preamble to Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services) (1994). People with disabilities who are segregated behind institutional walls are not integrated within society at large and are unable to interact with nondisabled persons to the fullest extent possible. In the preamble to the title II regulations outlining general prohibitions against disability-based discrimination, the Attorney General appreciates that integration is the antidote to segregation: "Integration is fundamental to the purposes of the Americans with Disabilities Act. Provision of segregated accommodations and services relegates persons with disabilities to second-class status." 28 C.F.R. pt. 35, app. A at 449-50; accord H.R. Rep. No. 485 (III) at 56, reprinted in 1990 U.S.C.C.A.N. at 479. Particularly where, as here, a state has admitted that an integrated, community setting is more appropriate than a segregated, institutional one, the ADA's mandate against unnecessary segregation should be given full effect. The Attorney General has underscored the fact that the overarching intent behind selecting the various forms of discrimination delineated in the regulations is to forbid practices that exclude and unnecessarily segregate. Moreover, 01-05709 - 16 - the Attorney General has emphasized that it is individual need that must drive the decisions of State agencies, not stereotypic and erroneous presumptions about classes of disabilities: Taken together, these provisions are intended to prohibit exclusion and segregation of individuals with disabilities and the denial of equal opportunities enjoyed by others, based on, among other things, presumptions, patronizing attitudes, fears, and stereotypes about individuals with disabilities. Consistent with these standards, public entities are required to ensure that their actions are based on facts applicable to individuals and not on presumptions as to what a class of individuals with disabilities can or cannot do. 28 C.F.R. pt. 35, app. A at 449. Accordingly, based on the record in this case that the individuals at issue in Plaintiffs' Motion require placement in integrated community programs, continued segregation is unjustifiable. Such continued segregation constitutes unlawful disability-based discrimination under the ADA and must be remedied. The title II integration regulation accords with the ADA's statutory framework, congressional findings, legislative history, and Congress's directives. It recognizes that in the case of individuals with disabilities, discrimination takes many different forms, including programs that perpetuate the false assumption that people with disabilities must be segregated from the rest of society in institutions. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). The Attorney General's integration regulation reflects Congress's determination that to achieve the Act's purposes, services must 01-05710 - 17 - be provided in the most integrated setting appropriate to each individual's needs. Surely where, as here, the State itself has determined that a segregated setting is inappropriate, an integrated setting is mandated. Moreover, Congress's (and the Attorney General's) specific attention to the issue of institutionalization renders inapposite Defendants' reliance on Torcasio v. Murray, 57 F.3d 1340, 1344-45 (4th Cir. 1995), cert. denied, U.S. , 116 S. Ct. 772 (1996), in which the court held that prison officials sued personally for damages were entitled to qualified immunity because neither Congress nor the applicable regulations clearly manifested an intent to apply the ADA to state prisons.12/ Here, there is no issue of qualified immunity and, as illustrated supra, Congress's intent to cover the types of institutions at issue in this case and to forbid unnecessary segregation of disabled persons, and the Attorney General's implementation of these guiding principles, are clear. II. The Developing Caselaw on the Integration Regulation Affirms that States Are Obligated to Provide Services in the Most Integrated Setting Appropriate to the Individual's Needs. Ruling specifically on the integration regulation of title II of the ADA, the Third Circuit has confirmed that "the ADA and its attendant regulations clearly define unnecessary 12/ Indeed, the Torcasio court found that the terms of the ADA were "ill-fitting" to the governing of prisons, primarily because prisons do not provide "services, programs, or activities." Torcasio, 57 F.3d at 1347. Although the United States disagrees with this interpretation, there is no such purported "ill-fit" here, where State "services" and "programs" are precisely at issue. 01-05711 - 18 - segregation as a form of illegal discrimination against the disabled." Helen L., 46 F.3d at 333. In Helen L., the Third Circuit found that the Pennsylvania Department of Public Welfare was violating the ADA when it required the appellant to remain in the segregated setting of a nursing home instead of providing her with needed home-based services.13/ Relying on title II's integration regulation, the unanimous three judge panel underscored that the "ADA is intended to insure that qualified individuals receive services in a manner consistent with basic human dignity rather than a manner which shunts them aside, hides, and ignores them." Id. at 335. The Third Circuit, finding no genuine issues of material fact in the case, reversed the district court and ordered it to enter summary judgment in favor of the appellant. Id. at 339.14/ The Third Circuit found that the district court in Helen L. had relied inappropriately on Williams v. Secretary of Executive 13/ Defendants in that case stipulated to the fact that "[t]he setting for the provision of attendant care services appropriate to the needs of Idell S. [the appellant] is in the community." Id. at 329, n.6. ____________________________ 14/ This is the only decision to date addressing the title II integration regulation where the court had the benefit of the United States Department of Justice's views on the regulation it promulgated. The Department did not participate in the proceedings before the district court in Helen L. However, on appeal, the Court of Appeals for the Third Circuit requested the views of the Justice Department. The United States submitted an amicus brief and participated in the oral argument, where it argued that the district court's interpretation of the integration regulation of title II of the ADA ignored the fundamental purpose of the ADA and its regulations -- to end the exclusion and unnecessary segregation of individuals with disabilities. 01-05712 - 19 - Office of Human Services, 609 N.E.2d 447 (Mass. 1993), which was flawed in its basic analysis of the title II integration regulation because it drew upon inapplicable Section 504 caselaw.15/ Helen L., 46 F.3d at 334. Williams held, incorrectly, that there can be no "discrimination" under title II if the service at issue is provided only to individuals with disabilities. The Third Circuit dismissed this interpretation as facially and structurally insupportable: The 504 coordination regulations, and the ADA "make clear that the unnecessary segregation of individuals with disabilities in the provision of public services is itself a form of discrimination within the meaning of these statutes, independent of the discrimination that arises when individuals with disabilities receive different services than those provided to individuals without disabilities." Helen L., 46 F.3d at 335, citing Brief of Amicus, the United States, at 7. The Third Circuit also noted that "[i]f Congress were only concerned about disparate treatment of the disabled as compared to their nondisabled counterparts," then the ADA's reference to the persistence of discrimination in institutionalization would constitute a "non sequitur." Id. at 336.16/ This Court, like the Helen L. court, should reject __________________________ 15/ Another case addressing the integration regulation of title II, Conner v. Branstad, 839 F. Supp. 1346 (S.D. Iowa 1993), relied upon by Defendants (Defendants' Mem. at 71), made the same mistake. 16/ In addition, the structure of the rest of the title II regulations supports this reading. If 28 C.F.R. S 35.130 (d) applied only to programs and services offered to both disabled and nondisabled people, then 28 C.F.R. S 35.130 (b) (1) (iv), which prohibits a public entity from providing services to people with disabilities separate from those provided to others, would be (continued...) 01-05713 - 20 - Defendants' misinterpretation that the ADA only applies to discrimination "towards the disabled vis-a-vis the non-disabled." Defendants' Mem. at 63-64.17/ The Helen L. court also noted that the Massachusetts state case was factually distinguishable in significant aspects, as it is here. In particular, unlike the Plaintiffs in this case and the plaintiff in Helen L., the plaintiffs in Williams presented absolutely no evidence that "any particular client's placement was inappropriate, or that they themselves were inappropriately placed in a segregated setting after the ADA's effective date." Helen L., 46 F.3d at 334, citing Williams, 609 N.E.2d at 453. Instead, the Massachusetts plaintiffs offered global statistical information about the percentage of people with disabilities in publicly operated residential programs who live with other people with disabilities. Helen L., 46 F.3d at 334. Absent any proof that individuals with disabilities were not already being served in the most integrated settings appropriate to their needs, the Massachusetts court held that the ADA does not require a specific proportion of the mental health service's housing placements to __________________________ 16 (...continued) redundant. Courts are to avoid such a result. See, e.g., Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 837 (1988); Cammarano v. United States, 358 U.S. 498, 505 (1959) (rejecting a reading of regulations that rendered part "pure surplusage"). 17 Helen L. specifically distinguished Traynor v. Turnage, 485 U.S. 535 (1988), relied upon by Defendants (Defendants' Mem. at 64), stating that "the [Traynor] court was not concerned with the application of the integration mandate or anything analogous to it, and the holding is not germane to our analysis." Helen L., 46 F.3d at 336. 01-05714 - 21 - be in integrated housing. Williams, 609 N.E.2d at 452. The evidentiary record in the Massachusetts case stands in sharp distinction to this case, where Plaintiffs have presented Defendants' admissions that the individuals at issue in Plaintiffs' Motion are unnecessarily segregated in institutions operated by the State. Accordingly, this Court should grant summary judgment in favor of Plaintiffs. III. Section 504 Cases Decided Prior to Enactment of the ADA Are Not Relevant To Interpreting Title II's Integration Requirement. Defendants urge this Court to repeat the mistake made in Williams but corrected in Helen L. They argue that the integration mandate of the ADA is "nothing new" and tell the Court to rely on Section 504 cases to find that Plaintiffs have no right to be free from unnecessary segregation in institutions. Defendants' Mem. at 69-70. But the Section 504 caselaw on which Defendants rely is simply inapposite, because it never considered the stand-alone integration requirement of the Section 504 coordination regulations or of title II's regulations. For example, in Clark v. Cohen, 794 F.2d 79, 84 n.3 (3d Cir.), cert. denied, 479 U.S. 962 (1986), cited by Defendants (Defendants' Mem. at 70), the court held that the Department of Health and Human Services' [HHS] Section 504 regulations, 45 C.F.R. S 84.4(b) (2), do not require a public entity to provide services in an integrated setting without proof of unequal treatment. But unlike the Section 504 coordination regulations to which Congress directed 01-05715 - 22 - the Attorney General to conform title II's regulations, see supra at 10, the HHS Section 504 regulations do not contain a stand- alone integration requirement. They mandate integration only in the context of providing opportunities for people with disabilities that are equal to those available to individuals without disabilities. 45 C.F.R. Section 84.4(b) (2) (1994). 18/ Another case cited by Defendants (Defendants' Mem. at 70), Phillips v. Thompson, 715 F.2d 365, 368 (7th Cir. 1983), similarly did not address a stand-alone integration regulation like that at issue here. And the remaining two cases on which Defendants rely acknowledge that the Rehabilitation Act may require public entities to provide services to individuals with disabilities in integrated settings. In Kentucky Ass'n for Retarded Citizens, Inc. v. Conn, 674 F.2d 582, 585 (6th Cir.), cert. denied, 459 U.S. 1041 (1982), the court did not dispute that Section 504 required services in the least restrictive setting. Rather, it found that the district court had not clearly erred as a factual matter in concluding that institutionalization of some individuals may be appropriate under Section 504. Similarly, in Plummer v. Branstad, 731 F.2d 574, 579 (8th Cir. 1984), the court assumed that Section 504 requires states to provide services to individuals in "integrated settings appropriate to their particular needs" -- a determination that ___________________________ 18/ The district court in Clark did find, however, that the plaintiff's continued confinement in an institution violated the Due Process Clause of the Fourteenth Amendment, Clark, 613 F. Supp. at 696-705, a finding affirmed on appeal. Clark, 794 F.2d at 87. 01-05716 - 23 - must be made by the trier of fact. In short, none of the Section 504 cases cited by Defendants support their interpretation of the ADA and its implementing regulations. IV. Defendants' Failure To Provide Community Services To Individuals Identified as Unnecessarily Institutionalized Is Unjustified. Defendants also argue that even if title II and its implementing regulations require public entities to provide services to individuals with disabilities in the most integrated setting appropriate to their needs, Maryland is excused from that obligation because compliance would impose an undue burden by requiring it to make a fundamental change in its program. Defendants' Mem. at 61-62, 71-72. Defendants state that "[i] f [Plaintiffs] have been "denied" services in the community at all, it is either because of clinical treatment decisions, or because the community placements do not exist." Defendants' Mem. at 62. But the Plaintiffs have shown that they are not being denied services in the community due to "clinical treatment decisions." The individuals at issue in Plaintiffs' Motion remain unnecessarily segregated in institutions in spite of the unanimous decisions of their respective treating professionals that services in the community would be more appropriate.19/ Defendants' entire argument thus boils down to the claim that, at present, services in the community are a "scarce resource." ___________________________ 19/ See pp. 1-2 & nn. 3-4, supra. 01-05717 - 24 - Defendants' Mem. at 63.20/ The State's position simply cannot be squared with its admission that it can and will fund the recommended community-based services for each of the individuals at issue in Plaintiffs' Motion. Williams Facts at P 22; Cullen Facts at P 22; Lentz Facts at P 12; Trail Facts at P 27. Similarly, Defendants' suggestion that ending the unnecessary segregation of the individuals at issue in Plaintiffs' Motion will "alter traditional federal/state relations and allow federal courts to supervise a State's mental health delivery system" (Defendants' Mem. at 66-67) is also without merit. Unlike the plaintiffs in Kentucky Ass'n for Retarded Citizens, Inc., 674 F.2d at 582, for example, Plaintiffs have not claimed that institutionalization is improper as a matter of law under the ADA. Rather, Plaintiffs claim that the ADA accords an individual the right to treatment in an integrated setting appropriate to the individual's needs. And the record shows that in this case, Defendants already operate the type of community programs appropriate for the individuals at issue in Plaintiffs' Motion. ________________________ 20/ Under similar circumstances, the Third Circuit in Helen L. found no justification for continued segregation which violates the ADA, as should the Court here. The Third Circuit stressed: The fact that it is more convenient, either administratively or fiscally, to provide services in a segregated manner, does not constitute a valid justification for separate or different services under Section 504 of the Rehabilitation Act, or under this title [title II of the ADA]. Helen L., 46 F.3d at 338, quoting H.R. Rep. No. 485 (III), 101st Cong.2d Sess. 50, reprinted in 1990 U.S.C.C.A.N. at 473 (emphasis omitted). 01-05718 - 25 - V. Defendants Seek to Evade Their Constitutional Responsibilities Under Youngberg v. Romeo. Defendants have also moved for summary judgment on Plaintiffs' substantive due process claims in all three cases consolidated before this Court. Defendants' motion on these claims should be denied as well. In the view of the United States, the record before the Court in each case contains evidence more than sufficient to create a genuine issue of material fact regarding the State's violation of Plaintiffs' due process rights. Moreover, Defendants have not demonstrated that they are entitled to judgment as a matter of law. They have made arguments that are contrary to Supreme Court precedent and controlling law in the Fourth Circuit. Overall, Defendants' arguments expose the extent to which the State is attempting to absolve itself of responsibility for the care it provides to individuals in its institutions and to escape the accountability of judicial scrutiny as to whether it is violating such individuals' rights. Defendants concede that Youngberg v. Romeo, 457 U.S. 307 (1982), defines the constitutional rights at issue in these cases Defendants' Mem. at 28. In Youngberg, the Supreme Court addressed the substantive due process rights of individuals with mental disabilities institutionalized in state facilities, and held that such individuals retain a number of constitutional rights. The Court found that the Due Process Clause guarantees individuals entrusted to a state's care in an institution adequate food, shelter, clothing, medical care, reasonably safe 01-05719 - 26 - conditions of confinement, freedom from unreasonable restraints, and a right to such training and skill development as is necessary to protect these constitutional guarantees. Youngberg, 457 U.S. at 315-19, 324. The Court noted that while, "[a]s a general matter, a State is under no constitutional duty to provide substantive services for those within its border," 457 U.S. at 317, the situation is different for those in state institutions. Because institutionalized persons are "wholly dependent on the State," the state owes them "a duty to provide certain services and care." Ibid. According to Youngberg, courts must judge whether states have carried out this duty by applying the "professional judgment" standard. Youngberg, 457 U.S. at 321. The standard has two interlocking components -- both of which must be met for a state to avoid liability. First, institutionalized persons have a right to decisions about their care and services made by "qualified professionals" and to have such decisions implemented. Id. at 322, 323; see also Thomas S. v. Morrow, 781 F.2d 367, 374-6 (4th Cir. 1986); Thomas S. v. Flaherty, 902 F.2d 250, 252 (4th Cir.), cert. denied, 498 U.S. 951 (1990). Second, institutionalized persons have a right to substantively adequate treatment. States violate the Due Process Clause when "the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to 01-05720 -27- demonstrate that the person responsible actually did not base the decision on such a judgment." Youngberg, 457 U.S. at 323.21/ Youngberg itself recognized that its holding was necessarily limited to the facts presented. Youngberg, 457 U.S. at 319 and n.25. For instance, in Youngberg, Nicholas Romeo did not challenge his continued institutionalization, id. at 317, so that the Court had no occasion to address the substantive due process rights of an institutionalized individual for whom institutionalization is no longer appropriate. But since Youngberg, courts grappling with differing facts have interpreted the rights and the professional judgment standard enunciated there by the Court. In particular, the Fourth Circuit has applied the Youngberg professional judgment standard to constitutional claims based on state failure to provide community placement to institutionalized persons for whom institutionalization is no longer appropriate. Faced with facts and circumstances similar to those in the instant cases, in Thomas S. v. Morrow, 781 F.2d at 375, the Fourth Circuit affirmed the district court's finding that Thomas's treating professionals had recommended discharge to community placement and that a state's failure to implement these recommendations, resulting in Thomas's continued institutionalization, violated Thomas's liberty interests under Youngberg. See also Messier v. Southbury ______________________ 21/ Thus, courts owe deference to professional decisions but may reject these decisions where they constitute such a substantial departure. Youngberg, 457 U.S. at 322-3; see also Thomas S. v. Morrow, 781 F.2d at 375. 01-05721 - 28 - Training School, 916 F. Supp. 133, 140 (D. Conn. 1996). Relying on Youngberg, the Fourth Circuit held that there is a "presumption of validity accorded the professionals' decision about appropriate treatment," and that the state had failed to rebut that presumption. Thomas S. v. Morrow, 781 F.2d at 375. Under these circumstances, the court found that "the district court was required to accept the recommendations of the qualified professionals." Ibid. Applying the law set out in Youngberg and Thomas S. v. Morrow, this Court should deny Defendants' motion for summary judgment in all three cases here before it. In Williams and Hunt, the professional judgment of the State's own treating teams is that community placements are appropriate.22/ This clearly ________________________ 22/ For Williams, see Williams Facts at PP 6-9, 13, 23-24, 27, 29, 40-41; Lentz Facts at PP 10-13, 19-20, 23, 53; Cullen Facts at PP 14-20, 23, 41; Trail Facts at PP 8, 16-17, 20-23, 25-26, 28, 38-44. For Hunt, see Defendants' Mem. at 57, 59. In an astonishing attempt to distance themselves from the clinical recommendations of their employees, Defendants suggest that the decisions made by the treating professionals charged with the responsibility of determining the services necessary to meet the needs of individuals the State has undertaken to serve are merely "goals to strive for," Defendants' Mem. at 38, or, alternatively, "wish lists." Id. at 55. However, the actual determinations by State treatment teams and State administrators -- including State psychiatrists, psychologists, social workers, unit directors, occupational therapists, and, in two cases, Defendant Silver, a State administrator -- of the need for community-based services rather than continuing confinement in institutions reveal concrete determinations, based upon individual needs and abilities and intended for implementation. Courts have found that the failure to implement such recommendations of treating professionals violates due process. Thomas S. v. Morrow, 781 F.2d at 375; Clark v. Cohen, 794 F.2d 79, 85 (3d Cir.), cert. denied, 479 U.S. 962 (1986). Moreover, Defendants do not contest the validity of their treating professionals' recommendations. In fact, they state (continued...) 01-05722 - 29 - raises an issue of material fact as to application of the professional judgment standard. In Hattie J., the evidence that Plaintiff's placement in a nursing home subverts her right to care that comports with professional judgment, see, e.g., Defendants' App. at 12, 25, similarly raises an issue of material fact. Moreover, the Complaints and supporting evidence show that there is a genuine issue of material fact as to whether the State has violated Plaintiffs' constitutional right to reasonable safety. See Youngberg, 457 U.S. at 315. In the Williams case, for example, there is evidence that the Plaintiffs have suffered great harm while being unnecessarily segregated in Defendants' institutions. To point to just a few examples: Ms. Lentz has been repeatedly assaulted and injured at Spring Grove, on various occasions being banged in the head several times with a metal chair, suffering lacerations requiring sutures, and being pushed down, causing a hip fracture requiring surgery and leaving her unable to walk without a walker and needing to be transported in a wheelchair for distances longer than a hallway.23/ Mr. Cullen faces such serious threats from other patients to his personal safety that he is assigned a full-time staff person to accompany him at all times. This severe restriction on Mr. Cullen's privacy was prompted by the repeated assaults endured by Mr. ______________________________ 22/ (...continued) that they intend to implement those recommendations. Defendants' Mem. at 57-59. 23/ Lentz Facts at PP 26-44. 01-05723 - 30 - Cullen, such as the time that he was discovered in the bathroom at one o'clock in the morning, blood dripping down his face due to an assault by another patient. Staff protection is not necessary when Mr. Cullen is at home or in the community. In the words of Mr. Cullen's psychiatrist, Mr. Cullen only needs staff protection at the institution due "to the risks of the hospital environment."24/ Summary judgment on Plaintiffs' Fourteenth Amendment claims is inappropriate where facts such as these concerning the adequacy of Defendants' provision of reasonable safety are in dispute. To get around the genuine issues of material fact raised by Plaintiffs, Defendants offer four legal arguments that fly in the face of the principles established in Youngberg and discussed in this circuit's Thomas S. cases. See Thomas S. v. Morrow, 601 F. Supp. 1055 (W.D.N.C. 1984), aff'd, 781 F.2d 367 (4th Cir. 1986); Thomas S. v. Flaherty, 699 F. Supp. 1178 (W.D.N.C. 1988), aff'd, 902 F.2d 250 (4th Cir.), cert. denied, 498 U.S. 951 (1990). First, Defendants argue that only brutal and inhumane abuses of power that shock the conscience are actionable under the Fourteenth Amendment. Defendants' Mem. at 21-22. It is clear however (and Defendants appear later in their brief to recognize) that Youngberg defines the standard for determining liability: an institutionalized person's substantive due process rights are violated when a court finds that a state fails to "make certain _________________________ 24/ Cullen Facts at PP 30-39. 01-05724 - 31 - that professional judgment in fact was exercised." Youngberg, 457 U.S. at 321. Second, Defendants suggest that because Plaintiffs in the three cases were unable to care for themselves at the time they were institutionalized and because their families were and are unable to provide necessary care, institutionalization has made Plaintiffs no worse off. Accordingly, Defendants argue, the State has no affirmative constitutional duties. Defendants' Mem. at 22-23. But the Fourth Circuit has held that it is the "fact of state custody," and not the reasons for that custody, that imposes affirmative duties on the State. Buffington v. Baltimore County, 913 F.2d 113, 119 (4th Cir. 1990); see also Thomas S. v. Flaherty, 902 F.2d at 254 (Youngberg duties apply to legally incompetent adult who is ward of state with no choice regarding his living arrangements.) Indeed, Youngberg itself involved an individual who could not care for himself outside the institution.25/ Third, Defendants suggest that their duties to plaintiffs are limited to providing the "basic necessities of life." Defendants' Mem. at 24. Again, Youngberg authoritatively __________________________ 25/ Contra Defendants' Mem. at 22, nothing in DeShaney v. Winnebago County DSS, 489 U.S. 189 (1989), alters this Youngberg holding. In fact, DeShaney affirms Youngberg's principle that the state's affirmative act of institutionalizing a person triggers the protections of the Constitution. DeShaney, 489 U.S. at 199 ("In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf - through incarceration, institutionalization, or other similar restraint of personal liberty - which is the 'deprivation of liberty' triggering the protections of the Due Process Clause . . . . ") (emphasis added). 01-05725 - 32 - rejected the position that a state's duties to people in state custody are so limited. To the contrary, the Court held that Pennsylvania owed Romeo a wide range of affirmative duties, including the duty to provide reasonable training consistent with professional judgment. Maryland is similarly bound. Fourth, Defendants take the extraordinary position that merely because the State has found experts willing to testify that the care provided to Plaintiffs was substantively within the range of professionally acceptable treatment, Maryland has satisfied the professional judgment standard set forth in Youngberg.26/ Defendants' bizarre legal theory confounds the Youngberg holding, which avoids judicial second-guessing of the merits of professional decisionmaking by according a presumption of constitutionality only to treatment decisions actually made by treating professionals and implemented by the state. See Youngberg, 457 U.S. at 323; Thomas S. v. Morrow, 781 F.2d at 375. In this way, Youngberg respected state prerogatives while still providing meaningful protection for the rights of institutionalized persons. Thus, expert opinion is relevant only to inform the court about the professional standards it should apply; experts cannot determine whether professional judgment was actually exercised, the ultimate conclusion is for the Court. ________________________ 26/ Defendants sum up their position that this Court has no discretion but to grant their summary judgment motion as follows: "the mere existence of the defendants' expert opinions demonstrates conclusively that the State is exercising professional judgment . . . ." Defendants' Mem. at 43-45 (emphasis in original). 01-05726 - 33 - Youngberg, 457 U.S. at 321; see also Thomas S. v. Morrow, 781 F.2d at 375. Defendants' recommendation that this Court grant authoritative status to its experts' post hoc rationalizations of treatment decisions made by others is particularly inappropriate where, as in Williams, the State has declined to implement the considered judgments of the professionals it hired to make the relevant decisions. Moreover, the Court should not allow Defendants to undermine the trier of fact's credibility-assessing function. The triers of fact in these cases may find the defendants' experts wholly incredible. Because Plaintiffs have satisfied their burden on this summary judgment motion by pointing to experts of their own and (in most cases) to the decisions actually made by the State's own treating professionals, the Court should allow credibility issues to be adjudicated at trial, with the aid of cross-examination and demonstrations of possible bias or lack of qualification. Finally, Defendants argue that the facts put in issue by Plaintiffs at most reflect merely negligent conduct, not a failure to satisfy the professional judgment standard. Defendants' Mem. at 30-32, 34. Defendants cite United States v. Pennsylvania, 902 F. Supp. 565, 585 (W.D. Pa. 1995), appeal pending, for its finding that proof of mere negligence is insufficient to establish the absence of professional judgment. But the facts Plaintiffs have placed at issue in the three cases before the Court involve more than mere negligence. Taking the 01-05727 - 34 - record in the light most favorable to the Plaintiffs, and as discussed supra, the State's failure to implement the decisions of its own professionals regarding community placement is a direct violation of the professional judgment requirement. Moreover, with regard to the State's obligation to ensure the Plaintiffs' reasonable safety, even if a particular instance of negligence does not establish a violation of the professional judgment standard, a pattern of negligent care is a different matter. Where negligence is widespread throughout an institution, its frequency and severity provide strong evidence that the institution as a whole substantially departs from accepted professional standards. The logic of this position has frequently been acknowledged in the context of prison-related institutional reform cases, in which courts have found that a pattern of negligent conduct bespeaks deliberate indifference to the constitutional rights of those affected and therefore violates the Eighth Amendment's Cruel and Unusual Punishment Clause. See, e.g., DeGidio v. Pung, 920 F.2d 525, 532-33 (8th Cir. 1990); White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990); Rogers v. Evans, 792 F.2d 1052, 1058-59 (11th Cir. 1986); Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983), cert. denied, 468 U.S. 1217 (1984); Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981); Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977). If a pattern of negligent acts is sufficient to establish Eighth Amendment deliberate indifference, surely it is more than sufficient to surmount the lesser burden 01-05728 - 35 - under the Due Process Clause of demonstrating an institutional failure to satisfy the professional judgment standard.27/ Nothing in Pennsylvania says otherwise. CONCLUSION For the reasons stated above, this Court should grant Plaintiffs' Motion for Partial Summary Judgment on their ADA claim and deny Defendants' Motion for Summary Judgment on Plaintiffs' claims under the Fourteenth Amendment and the ADA. Defendants' unjustifiable and unnecessary segregation of individuals with disabilities constitutes discrimination under title II of the ADA. Moreover, Plaintiffs have raised a genuine 27/ As the Youngberg Court recognized, people with mental disabilities who are institutionalized through no fault of their own are due more considerate treatment and conditions of confinement than prisoners. Youngberg, 457 U.S. at 322. 01-05729 - 36 - issue of material fact regarding their due process rights, and Defendants' attempt to circumvent the State's constitutional responsibilities after Youngberg should be rebuffed. Respectfully submitted, DEVAL L. PATRICK Assistant Attorney General Civil Rights Division ARTHUR E. PEABODY Chief Special Litigation Section ROBINSUE FROHBOESE Deputy Chief Special Litigation Section JUDITH C. PRESTON (Bar #04992) MARGO J. SCHLANGER Trial Attorneys U.S. Department of Justice Civil Rights Division P.O. Box 66400 Washington, D.C. 20035-6400 (202) 514-6258 01-05730 CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of April, 1996, a copy of the Memorandum of the United States' in Support of Plaintiffs' Motion for Partial Summary Judgment on ADA Claim and in Opposition to Defendants' Motion for Summary Judgment was mailed by first-class mail, postage prepaid, to: Attorneys for Plaintiffs: Andrew S. Penn Maryland Disability Law Center 1400 Mercantile Lane Suite 242 Largo, MD 20774 Nathaniel Fick Fick & Petty 1426 East Joppa Road Towson, MD 21286-5982 Gilbert Abramson Hogan & Hartson Legg Mason Tower 111 S. Calvert St. Baltimore, MD 21202 Attorneys for Defendants: Maureen M. Dove Assistant Attorney General Office of the Attorney General Department of Health and Mental Hygiene Suite 302 300 West Preston Street Baltimore, MD 21201 Judith C. Preston Trial Attorney Special Litigation Section Civil Rights Division Department of Justice 01-05731 ATTACHMENT A IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION RICKY WYATT, by and through ) his aunt and legal guardian, ) MRS. W.C. RAWLINS, JR., et al., ) Plaintiffs, ) ) DIANE MARTIN, et al., ) ) Plaintiff-Intervenors, ) ) UNITED STATES OF AMERICA, ) ) Amicus Curiae, ) Civil Action No. 3195-N v. ) ) RICHARD E. HANAN, as ) Commissioner of Mental Health ) and Mental Retardation and the ) State of Alabama Mental Health ) Officer, et al., ) ) Defendants. ) ) UNITED STATES' RESPONSE TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS' CLAIMS UNDER THE AMERICANS WITH DISABILITIES ACT OF 1990 01-05732 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . i PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . .1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. Judgment on the Pleadings Against Plaintiffs' ADA Claim is Inappropriate . . . . . . . . . . . . 3 II. The Unnecessary Segregation of Individuals With Disabilities in Institutions is a Form of Discrimination Prohibited By the ADA and Its Implementing Regulations . . . . . . . . . . . . . 3 A. Ending the discrimination of segregation and isolation through unnecessary institutionalization is a specific purpose of the ADA . . . . . . . . . . . . . . 5 B. ADA regulations require states to provide services in the most integrated setting appropriate to the needs of people with disabilities . . . . . . . . . . . . . . . . . 8 C. ADA's legislative history affirms that one of its major purposes is to remove the barriers of unnecessary segregation . . . . . 12 III. The Developing Caselaw on the Integration Regulation Affirms That States Are Obligated to Provide Services in the Most Integrated Setting . . . . . . . . . . . . . . . . . . . . . 14 IV. Prior Section 504 Cases Are Not Relevant to Interpreting Title II's Integration Requirement . 18 V. Defendants' Failure to Provide Community Services to Individuals Identified as Unnecessarily Institutionalized is Unjustified . . . . . . . . .21 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 23 01-05733 TABLE OF AUTHORITIES CASES: PAGE Alexander v. Choate, 469 U.S. 287 (1985) . . . . . . . . . . 18 American Trucking Ass'n v. United States, 688 F.2d 1337 (11th Cir. 1982), rev'd on other grounds, 467 U.S. 454 (1984) . . . . . . . . . . . . . . . . . .11 Blum v. Bacon, 457 U.S. 132 (1982) . . . . . . . . . . . . . .7 Brown v. Board of Education, 347 U.S. 483 (1954) . . . . . . 13 Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) . . . . . . . . . . . . . 7 Chrysler Corp. v. Brown, 441 U.S. 281 (1979) . . . . . . . . 11 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . 11 Clark v. Cohen, 794 F.2d 79 (3d Cir.), cert. denied, 479 U.S. 962 (1986) . . . . . . . . . . . . . . . . . . 20 Clark v. Cohen, 613 F. Supp. 684 (E.D. Pa. 1985) . . . . . . 20 Conley v. Gibson, 355 U.S. 41 (1957) . . . . . . . . . . . . . 3 Conner v. Branstad, 839 F. Supp. 1346 (S.D. Iowa 1993) . . . .16 General Electric Co. v. Gilbert, 429 U.S. 125 (1976) . . . . .11 Helen L. v. Didario, _ F.3d _, 1995 WL 34200 (3d Cir. Jan. 31, 1995) . . . . . . . . . . . . . . passim Kentucky Ass'n for Retarded Citizens, Inc. v. Conn, 674 F.2d 582 (6th Cir.), cert. denied, 459 U.S. 1041 (1982) . . . . . . . . . . . . . . . . . . . . . . 21 Kinney v. Yerusalim, 812 F. Supp. 647 (E.D. Pa.), aff'd 9 F.3d 1067 (3d Cir. 1993), cert. denied, 114 S. Ct. 1545 (1994) . . . . . . . . . . . . . . 18, 22 Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990) . . . . . . . . . . . . . . . . . . . . . . .19 P.C. v. McLaughlin, 913 F.2d 1033 (2d Cir. 1990) . . . . . . 20 - i - 01-05734 CASES (cont'd): PAGE Plummer v. Branstad, 731 F.2d 574 (8th Cir. 1984) . . . . . . 21 Phillips v. Thompson, 715 F.2d 365 (7th Cir. 1983) . . . . . 20 SEC v. ESM Group, Inc., 835 F.2d 270 (11th Cir.), cert. denied, 486 U.S. 1055 (1988) . . . . . . . . . . . 3 Tcherepin v. Knight, 389 U.S. 332 (1967) . . . . . . . . . . 18 Williams v. Secretary of Executive Office of Human Services, 609 N.E.2d 447 (Mass. 1993) . . . . 15, 17 Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972) aff'd in relevant part, 503 F. 2d 1305 (5th Cir. 1974) . . . . . . . . . . . . . . . . . 4, 5, 22 Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972) aff'd in relevant part, 503 F. 2d 1305 (5th Cir. 1974) . . . . . . . . . . . . . . . . . 4, 5, 22 Wyatt v. King, 773 F. Supp. 1508 (M.D. Ala. 1991) . . . . . . . 2 STATUTES: Americans With Disabilities Act (ADA): 42 U.S.C. 12101(a)(2) (Title I) . . . . . . . . . . . . . 5 42 U.S.C. 12101(a)(3) . . . . . . . . . . . . . . . . . . 5 42 U.S.C. 12101(a)(5) . . . . . . . . . . . . . . . . . . 5 42 U.S.C. 12131 et seq. (Title II) . . . . . . . . . passim 42 U.S.C. 12131(2) . . . . . . . . . . . . . . . . . . . .7 42 U.S.C. 12132 . . . . . . . . . . . . . . . . . . . 6, 7 42 U.S.C. 12134 . . . . . . . . . . . . . . . . . . . . . 7 42 U.S.C. 12134(b) . . . . . . . . . . . . . . . . . . . 10 Rehabilitation Act of 1973, Section 504, 29 U.S.C. 794 . . . . . . . . . . . . . . . . . . . passim REGULATIONS AND RULES: 28 C.F.R. pt. 35 (1994). . . . . . . . . . . . . . . . . 8, 9, 10 Section 35.130(b)(1)(iv) . . . . . . . . . . . . . . . . 17 Section 35.130(d) . . . . . . . . . . . . . . . . . passim App. A . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 28 C.F.R. pt. 41 (1994) .. . . . . . . . . . . . . . . . . 10, 20 Section 41.51(d) . . . . . . . . . . . . . . . . . . . . 10 - ii - 01-05735 REGULATIONS AND RULES: PAGE 45 C.F.R. 84.4(b)(2) (1994) . .. . . . . . . . . . . . . . . . 20 LEGISLATIVE MATERIALS: ADA: Hearing Before the Senate Comm. on Labor and Human Resources and the Subcomm. on the Handicapped, 101st Cong., 1st Sess. 215 (1989) . . . . . 13 H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. (1990), reprinted in 1990 U.S.C.C.A.N. 303 . . . . . . . . . . . . . . 6, 12, 14 H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. (1990), reprinted in 1990 U.S.C.C.A.N. 445 . . . . . . . . . . 7, 9, 13, 19, 22 S. Rep. No. 116, 101st Cong., lst Sess. (1989) . . . . . . . . . . . . . . 6, 12, 14, 19 135 Cong. Rec. 19801 (1989) . . . . . . . . . . . . . . . . . .12 135 Cong. Rec. S4993 (daily ed. May 9, 1989) . . . . . . . . . 13 136 Cong. Rec. H2447 (daily ed. May 17, 1990) . . . . . . . . .14 MISCELLANEOUS: 5A Wright & Miller, Federal Practice and Procedure S 1368 (1990) . . . . . . . . . . . . . . . . . . . . . . 3 - iii - 01-05736 PRELIMINARY STATEMENT Defendants' Motion for Judgment on the Pleadings on Plaintiffs' Claims under the Americans with Disabilities Act of 1990 [ADA] must be denied. Defendants have failed to meet their burden of proof to sustain a judgment on the pleadings; misinterpreted the prohibition in Title II of the ADA against unnecessary segregation; and relied on caselaw that is not relevant to interpreting this prohibition in Title II. Plaintiffs' Motion for Summary Judgment on their ADA claim should be granted. Defendants admit that hundreds of individuals with disabilities in Alabama's institutions are unnecessarily segregated from society and their care should be provided in the integrated setting of community programs. This unnecessary segregation is a form of discrimination prohibited by the ADA and its implementing regulations. Alabama presently operates a dual system for providing residential care, treatment, and training to its citizens with mental disabilities. The State operates five institutions for people with developmental disabilities and mental retardation and six psychiatric institutions for people with mental illness. In addition, the State contracts to provide what defendants claim to be an array of community-based programs for both people with developmental disabilities/mental retardation and mental illness across the State of Alabama.1 ______________________________ 1/ See, e.g., Defendants' Memorandum in Support of Motion for a Finding that Defendants Have Met Their Obligations Under the September 2, 1986 Consent Decree and for an Order Terminating This Lawsuit [Def. Mem. to Terminate] at 9-10 and attached affidavits of Brian McManus and J. Michael Horsley. 01-05737 Community-based programs represent integrated services both because they are physically located in the mainstream of society and because they provide opportunities for people with mental disabilities to interact with their non-disabled peers in all facets of life. Confinement in Alabama's institutions for people with mental disabilities constitutes segregation because individuals living in such facilities are separated from the community and walled off from the mainstream of society, isolated and apart from the natural community where all of us live, work, and engage in life's many activities. Wyatt v. King, 773 F. Supp. 1508, 1512 (M.D. Ala. 1991). In Alabama, State professionals charged with the responsibility of determining the services necessary to meet the needs of individuals the State has undertaken to serve, have determined that many individuals with mental disabilities currently institutionalized in Alabama's public facilities are improperly placed there and should instead be served in appropriate community programs throughout the State.2/ Given these undisputed facts, the Court is presented with a purely legal question: does defendants' unnecessary segregation of individuals with disabilities constitute discrimination under Title II of the ADA? This case is thus appropriate for summary judgment. _____________________________ 2/ See, e.g., Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Summary Judgment [Plaintiffs' Mem.] at 10-16, 24, 51-52. - 2 - 01-05738 ARGUMENT I. Judgment on the Pleadings Against Plaintiffs' ADA Claim Is Inappropriate. Defendants have not sustained their required burden to obtain a judgment on the pleadings. Federal district courts have applied a "fairly restrictive standard in ruling on motions for judgment on the pleadings." 5A Wright & Miller, Federal Practice and Procedure S 1368 (1990). This Court can issue a judgment on the pleadings in defendants' favor only if it is beyond doubt that plaintiffs have plead no facts that would support their claim for relief under the ADA. SEC v. ESM Group, Inc., 835 F.2d 270, 272 (11th Cir.), cert. denied, 486 U.S. 1055 (1988) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957), where the Supreme Court stated that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim which would entitle plaintiff to relief). As the discussion below makes clear, in this case, plaintiffs have alleged facts in support of their claim under the ADA and the ADA provides a legal basis entitling them to relief. Thus, defendants' motion should be denied. II. The Unnecessary Segregation of Individuals with Disabilities in Institutions Is a Form of Discrimination Prohibited by the ADA and Its Implementing Regulations. As the plaintiffs have demonstrated in pleadings in support of their summary judgment motion, this Court already has before it an accumulation of years of substantial admissions by defendants that hundreds of individuals with disabilities are - 3 - 01-05739 currently inappropriately institutionalized in Alabama's public institutions and would be better served in integrated community programs. Plaintiffs' Mem. at 10-16, 24, 51-52. Despite the fact that defendants claim to have a significant array of integrated, community-based services in place and a system to identify individuals who remain inappropriately institu- tionalized, defendants have failed to transfer them to community programs. Compare Defendants' Mem. to Terminate at 9-10 and accompanying affidavits with Plaintiffs' Mem. at 12-16, 24, 42, 54-55. By failing to serve qualified mentally disabled individuals in the most integrated setting appropriate to their needs, defendants are violating the ADA's prohibition of disability-based discrimination. Helen L. v. Didario, F.3d , 1995 WL 34200 at *6 (3d Cir. January 31, 1995). Here, defendants' own judgments indicate that community placement is the only professionally justifiable course of action. The relief that plaintiffs are seeking under the ADA merely requires the State of Alabama to fulfill its own goals to deliver services to people with disabilities in the most appropriate integrated setting and the obligations the State has had under this Court's orders for the past twenty-three years. Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972), aff'd in relevant part, 503 F.2d 1305 (5th Cir. 1974); ; Wyatt v. Stickney, 344 F. Supp. 387 (M.D. - 4 - 01-05740 Ala. 1972), aff'd in relevant part, 503 F.2d 1305 (5th Cir. 1974).3/ A. Ending the discrimination of segregation and isolation through unnecessary institutionalization is a specific purpose of the ADA. The ADA begins with congressional findings and purposes that detail the reasons for enacting this statute to end disability- based discrimination. Congress specifically found that "institutionalization" is one of the "critical areas" in which discrimination against individuals with disabilities persists. 42 U.S.C. S 12101(a) (3). The need to eradicate this type of discrimination is supported by congressional findings that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U.S.C. S 12101(a) (2). These discriminatory practices continue today through "outright intentional exclusion" and "segregation." 42 U.S.C. S 12101(a) (5). Congress therefore _____________________ 3/ For example, the Court found as far back as 1972 that people in mental retardation institutions "have a right to the least restrictive conditions necessary to achieve the purposes of habilitation." In order to effectuate this right, Alabama's institutions were required to make every effort to move residents from: "(1) more to less structured living; (2) larger to smaller facilities; (3) larger to smaller living units; (4) group to individual residence; (5) segregated from the community to integrated into the community living; (6) dependent to independent living." Wyatt, 344 F. Supp. at 396. Alabama has a similar obligation under the Wyatt standards to provide services in the "least restrictive conditions" for people who are mentally ill and to provide "adequate transitional treatment and care for all patients released after a period of involuntary commitment." Wyatt v. Stickney, 344 F. Supp. 373, 384, 386 (M.D. Ala. 1972). - 5 - 01-05741 recognized that the isolation, segregation, and exclusion represented by unjustifiable institutionalization constitute disability-based discrimination. The ADA is the congressional response to the compelling need to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and for the integration of persons with disabilities into the economic and social mainstream of American life. Further, there is a need to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities. S. Rep. No. 116, 101st Cong., 1st Sess. 20 (1989); H.R. Rep. No. 485 (II), 101st Cong. 2d Sess. at 50 (1990), reprinted in 1990 U.S.C.C.A.N. at 332. Consistent with the goal of integration, the ADA prohibits public entities from discriminating by reason of disability. 42 U.S.C. S 12132. Title II of the ADA prohibits discrimination against people with disabilities by state and local governments and is divided into two parts. Part A, 42 U.S.C. SS 12131-12134, contains the general prohibition against disability-based discrimination by public entities and other generally applicable provisions, while Part B applies to public transportation (and is, therefore, not applicable to this case). Part A mandates that "no qualified individual with a disability4/ shall, by ________________________ 4/ A "qualified individual with a disability" is: an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and (continued...) - 6 - 01-05742 reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. S 12132. In 42 U.S.C. S 12134, Congress directed the Attorney General to promulgate regulations implementing this general mandate. It noted that "[u]nlike the other titles in this Act, title II does not list all of the forms of discrimination that the title is intended to prohibit. Thus, the purpose of this section is to direct the Attorney General to issue regulations setting forth the forms of discrimination prohibited." H.R. Rep. No. 485 (III), 101 Cong., 2d Sess. at 52 (1990), reprinted in 1990 U.S.C.C.A.N. at 475. As recently noted by the Third Circuit, because Title II was enacted with broad language and directed the Attorney General to promulgate regulations, the Justice Department regulations are "entitled to substantial deference." Helen L., 1995 WL 34200 at *5, citing Blum v. Bacon, 457 U.S. 132, 141 (1982) and Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-848 (1984) (discussing deference to agency interpretation). ____________________ 4/ (...continued) services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 42 U.S.C. S 12131(2). - 7 - 01-05743 B. ADA regulations require states to provide services in the most integrated setting appropriate to the needs of people with disabilities. In the regulations required by the ADA, the Attorney General determined that a state's provision of services in an unnecessarily segregated setting constitutes an unlawful disability-based discrimination. Helen L., 1995 WL 34200 at *6. This provision, known as the "integration regulation," requires states to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. S 35.130(d). The Attorney General has explained that this means "in a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible . . . ." 28 C.F.R. pt. 35, app. A at 452 (Preamble to Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services) (1994). People with disabilities who are segregated behind institutional walls are not integrated within society at large and are unable to interact with nondisabled persons to the fullest extent possible. In the preamble to the Title II regulations outlining general prohibitions against disability-based discrimination, the Attorney General appreciates that integration is the antidote to segregation: "Integration is fundamental to the purposes of the Americans with Disabilities Act. Provision of segregated accommodations and services relegates persons with disabilities to second-class status." 28 C.F.R. pt. 35, app. A at 449-50; - 8 - 01-05744 accord H.R. Rep. No. 485 (III) at 56, reprinted in 1990 U.S.C.C.A.N. at 479. Particularly where, as here, the State has admitted that an integrated setting is a more appropriate setting than segregation, it can not argue that this intent of the ADA should be limited. The Attorney General has underscored the fact that the overarching intent behind selecting the various forms of discrimination delineated in the regulations is to forbid practices that exclude and unnecessarily segregate. Moreover, the Attorney General has emphasized that individual need must drive the decisions of state agencies, as opposed to stereotypic and erroneous presumptions about classes of disabilities: Taken together, these provisions are intended to prohibit exclusion and segregation of individuals with disabilities and the denial of equal opportunities enjoyed by others, based on, among other things, presumptions, patronizing attitudes, fears, and stereotypes about individuals with disabilities. Consistent with these standards, public entities are required to ensure that their actions are based on facts applicable to individuals and not on presumptions as to what a class of individuals with disabilities can or cannot do. 28 C.F.R. pt. 35, app. A at 449. Accordingly, based on the record in this case that individuals require placement in integrated community programs, continued segregation cannot be justified. Such continued segregation constitutes unlawful disability-based discrimination under the ADA and must be remedied. The Title II integration regulation is in accordance with the ADA's statutory framework, congressional findings, - 9 - 01-05745 legislative history, and Congress' directives. Congress specified that, except with regard to program accessibility and communications issues, the Attorney General's Title II ADA regulations "shall be consistent with [the ADA] and with the coordination regulations under part 41 of title 28, Code of Federal Regulations * * * applicable to recipients of Federal financial assistance under section 794 of Title 29 [Section 504 of the Rehabilitation Act of 1973]." 42 U.S.C. S 12134(b). This citation to Section 504 refers exclusively to the coordination regulations of the former Department of Health, Education, and Welfare (HEW).5/ The HEW coordination regulations implementing Section 504 of the Rehabilitation Act, 28 C.F.R. pt. 41 (1994), contain a specific integration requirement which mandates that "[r]ecipients [of federal financial assistance] shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons." ___________________________ 5/ HEW was originally the agency designated to coordinate Section 504 regulations promulgated by the various federal agencies. It promulgated such coordination regulations on January 13, 1978. Pursuant to an Executive Order on August 11, 1981, responsibility for these coordination regulations was transferred to the Department of Justice, which adopted the regulations in toto and transferred them to 28 C.F.R. pt. 41. The regulations remain there today, despite the fact that other Section 504 regulations, including regulations for the Department of Health and Human Services, are found in other parts of the Code of Federal Regulations. For a more detailed description and history of various Section 504 regulations, see Helen L., 1995 WL 34200 at *3-4. - 10 - 01-05746 28 C.F.R. S 41.51(d). The Attorney General, following Congress' mandate, used this precise language in the integration requirement found in S 35.130(d) of the Title II ADA regulations. In sum, the Attorney General's Title II ADA regulations recognize, consistent with the statute, that in the case of individuals with disabilities, discrimination takes many different forms, including programs that perpetuate the false assumption that people with disabilities must be segregated from the rest of society in institutions. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). The Attorney General's regulations thus reflect Congress' determination that services must be provided in appropriate integrated settings to achieve the Act's purposes. Surely where, as here, the State itself has determined that a segregated setting is inappropriate, an integrated setting is mandated. Because Congress specifically required the Attorney General to promulgate Title II ADA regulations defining disability-based discrimination by public entities, these regulations, which are carefully tailored to conform to Congress' directives, constitute legal mandates. Helen L., 1995 WL 34200 at *5. It is deeply established in federal court jurisprudence and in administrative law theory that regulations issued by an agency pursuant to statutory authority (legislative regulations) have the force and effect of law. See, e.g., General Electric Co. v. Gilbert, 429 U.S. 125, 141 (1976); Chrysler Corp. v. Brown, 441 U.S. 281, 301- 3 (1979); Helen L., 1995 WL 34200 at *5; American Trucking Ass'n - 11 - 01-05747 v. United States, 688 F.2d 1337, 1341 (11th Cir. 1982), rev'd on other grounds, 467 U.S. 454 (1984). C. ADA's legislative history affirms that one of its major purposes is to remove the barriers of unnecessary segregation. The ADA's legislative history confirms that Congress intended the ADA to end the unnecessary segregation of people with disabilities from the community because "[o]ne of the most debilitating forms of discrimination is segregation imposed by others." S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989). In introducing the legislation, Senator Harkin declared that "[f]or too long, individuals with disabilities have been excluded, segregated, and otherwise denied equal, effective, and meaningful opportunity to participate in the economic and social mainstream of American life. It is time we eliminate these injustices." 135 Cong. Rec. 19801 (1989). The House and Senate Reports emphasize that the purpose of the Act is to end the isolation, exclusion and segregation of individuals with disabilities, and the discrimination that "persists in such critical areas as * * * institutionalization." S. Rep. No. 116 at 8 (citing findings of the U.S. Commission on Civil Rights). See also id. at 20 ("compelling need" for the "integration of persons with disabilities into the economic and social mainstream of American life"); H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. at 22 (1990), reprinted in 1990 U.S.C.C.A.N. 304 (purpose of the ADA is to "bring persons with disabilities into the economic and social mainstream of American life"); id. at 28, reprinted in 1990 - 12 - 01-05748 U.S.C.C.A.N. at 310 (noting the historic "isolation" of individuals with disabilities); H.R. Rep. No. 485 (III) at 26, reprinted in 1990 U.S.C.C.A.N. at 448-449 (finding that "segregation for persons with disabilities 'may affect their hearts and minds in a way unlikely ever to be undone,'" quoting Brown v. Board of Education, 347 U.S. 483, 494 (1954)); H.R. Rep. No. 485 (III) at 49-50, reprinted in 1990 U.S.C.C.A.N. at 472-473 ("purpose of Title II is to continue to break down barriers to the integrated participation of people with disabilities in all aspects of community life"). Unnecessary and unjustifiable institutionalization is also specifically identified in congressional testimony by a number of sponsors and supporters of the ADA as one of the forms of segregation and discrimination that the ADA is intended to eliminate. For example, former Senator Lowell Weicker, an original sponsor of the ADA, testified as follows about the need for the ADA to eliminate the unnecessary isolation and segregation that institutionalization represents: For years, this country has maintained a public policy of protectionism toward people with disabilities. We have created monoliths of isolated care in institutions and in segregated educational settings. It is that isolation and segregation that has become the basis of the discrimination faced by many disabled people today. Separate is not equal. It was not for blacks; it is not for the disabled. ADA: Hearing Before the Senate Comm. on Labor and Human Resources and the Subcomm. on the Handicapped, 101st Cong., 1st Sess. 215 (1989). See also 135 Cong. Rec. S4993 (daily ed. May 9, 1989) (Senator Kennedy testifying that the ADA "will roll back - 13 - 01-05749 the unthinking and unacceptable practices by which disabled Americans today are segregated, excluded, and fenced off from fair participation in our society by mindless biased attitudes and senseless physical barriers."); 136 Cong. Rec. H2447 (daily ed. May 17, 1990) (Rep. Miller attesting that "[s]ociety has made them [people with disabilities] invisible by shutting them away in segregated facilities."). As summed up by then-Attorney General Richard Thornburgh, "many persons with disabilities in this Nation still lead their lives in an intolerable state of isolation and dependence." S. Rep. No. 116, 101st Cong., 1st Sess. 7 (1989); H.R. Rep. No. 485 (II) at 32 (1990), reprinted in 1990 U.S.C.C.A.N. at 313. Nowhere is the state of isolation and dependence more intolerable than when it occurs as a result of unnecessary and unjustified segregation in institutions. III. The Developing Caselaw on the Integration Regulation Affirms that States Are Obligated to Provide Services in the Most Integrated Setting. The only appellate court to specifically address the integration regulation of Title II of the ADA has confirmed that "the ADA and its attendant regulations clearly define unnecessary segregation as a form of illegal discrimination against the disabled." Helen L., 1995 WL 34200 at *6. In its decision entered on January 31, 1995, the Third Circuit found that the Pennsylvania Department of Public Welfare was violating the ADA where it required the appellant to remain in the segregated setting of a nursing home instead of providing her with needed - 14 - 01-05750 home-based services.6/ Relying on the integration regulation, the unanimous three judge panel underscored that the "ADA is intended to insure that qualified individuals receive services in a manner consistent with basic human dignity rather than a manner which shunts them aside, hides, and ignores them." Id. at *8. The Third Circuit therefore reversed the district court and ordered it to enter summary judgment in favor of the appellant. Id. at *12.7/ The Third Circuit found that the district court in Helen L. inappropriately relied on Williams v. Secretary of Executive Office of Human Services, 609 N.E.2d 447 (Mass. 1993), which was flawed in its basic analysis of the Title II integration regulation because it drew upon inapplicable Section 504 caselaw.8/ Helen L. 1995 WL 34200 at *6-7. Like the Williams 6/ Defendants in that case stipulated to the fact that "[t]he setting for the provision of attendant care services appropriate to the needs of Idell S. [the appellant] is in the community." Id. at *13, n.6. __________________________ 7/ This is the only decision to date addressing the Title II integration regulation where the court had the benefit of the United States Department of Justice's views on the regulation it promulgated. The Department did not participate in the proceedings before the district court in Helen L. However, on appeal, the Court of Appeals for the Third Circuit requested the views of the Justice Department. The United States submitted an amicus brief and participated in the oral argument, where it argued that the district court's interpretation of the integration regulation of Title II of the ADA ignored the fundamental purpose of the ADA and its regulations -- to end the exclusion and segregation of individuals with disabilities. 8/ In Williams, which was the first case to interpret the integration regulation of Title II, the Massachusetts Supreme Judicial Court overruled the lower court's denial of defendants' summary judgment motion on plaintiffs' claims that the Department (continued...) - 15 - 01-05751 court, the district court in Helen L. failed to recognize the importance of Congress' specific mandate to refer only to HEW's Section 504 coordination regulations in promulgating Title II regulations. Both courts thus incorrectly found that there can be no "discrimination" under Title II if the service at issue is provided only to individuals with disabilities. The Third Circuit dismissed this interpretation as facially and structurally insupportable: The 504 coordination regulations, and the ADA "make clear that the unnecessary segregation of individuals with disabilities in the provision of public services is itself a form of discrimination within the meaning of these statutes, independent of the discrimination that arises when individuals with disabilities receive different services than those provided to individuals without disabilities." Helen L. 1995 WL 34200 at *8, citing Brief of Amicus, the United States, at 7.9/ ______________________________ 8/ (...continued) of Mental Health's policies and practices violated the ADA. 609 N.E.2d at 451. In the only other existing case to date that has specifically addressed and discussed the integration regulation of Title II, Conner v. Branstad, 839 F. Supp. 1346 (S.D. Iowa 1993), the court also misinterpreted the relationship between prior interpretations of Section 504 and the integration requirements of Title II of the ADA. In Conner, the court inappropriately concluded that all Section 504 caselaw is relevant to interpreting Title II ADA requirements, id. at 1357, and thus incorrectly relied on prior Section 504 cases having nothing to do with the HEW coordination regulations. 9/ As the United States further explained in its amicus brief, like the integration requirement in the HEW coordination regulations, the ADA's integration regulation does not require disparate treatment of persons with disabilities and those without disabilities in order to find discrimination since on its face, the regulation applies to all services administered by a (continued...) - 16 - 01-05752 The Helen L. court also noted that Williams was factually distinguishable in significant aspects, as it is here. In particular, unlike the plaintiffs in this case, the plaintiffs in Williams presented absolutely no evidence that "any particular client's placement was inappropriate, or that they themselves were inappropriately placed in a segregated setting after the ADA's effective date." Williams, 609 N.E.2d at 453. Instead, the Williams plaintiffs offered global statistical information about the percentage of people with disabilities in publicly operated residential programs who live with other people with disabilities. Id. Absent any proof that individuals with disabilities were not already being served in the most integrated setting, the court held that the ADA does not require a specific proportion of the mental health service's housing placements to be in integrated housing. Id. at 452. The evidentiary record in Williams stands in sharp distinction to this case, where plaintiffs have presented defendants' admissions that hundreds of citizens of Alabama are unnecessarily segregated in institutions operated by the State. Accordingly, this Court should grant summary judgment in favor of plaintiffs. _____________________________ 9/ (...continued) public entity. The ADA integration regulation is thus not restricted to services that also are provided to people without disabilities. The structure of the rest of the Title II regulations supports this reading. If 28 C.F.R. S 35.130(d) applied only to programs and services offered to everyone, then 28 C.F.R. S 35.130(b)(1)(iv), which prohibits a public entity from providing separate services to people with disabilities than are provided to others, would be redundant. - 17 - 01-05753 IV. Prior Section 504 Cases Are Not Relevant To Interpreting Title II's Integration Requirement. Defendants argue that Congress intended Title II "to act just as S 504 had acted: in a limited fashion." Defendants' Motion for Judgment on the Pleadings on Plaintiffs' Claims Under the Americans with Disabilities Act of 1990 [Defendants' Motion] at 5. Defendants' interpretation of the construction of the ADA -- a landmark piece of civil rights legislation -- is clearly contrary to the principles of construction of a remedial statute. As the court in Kinney v. Yerusalim, 812 F. Supp. 547 (E.D. Pa.), aff'd, 9 F.3d 1067 (3d Cir. 1993), cert. denied, U.S., 114 S. Ct. 1545 (1994), pointed out, "[t]he ADA is a remedial statute, designed to eliminate discrimination in all facets of society. As a remedial statute, it must be broadly construed to effectuate its purposes." 812 F. Supp. at 551, citing Tcherepin v. Knight, 389 U.S. 332 (1967). In enacting Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. S 794, Congress recognized that society historically has discriminated against people with disabilities by unnecessarily segregating them from their family and community. The sponsors of that legislation condemned the "invisibility of the handicapped in America," and introduced bills responding to the country's "shameful oversights" that caused individuals with disabilities to live among society "shunted aside, hidden, and ignored." Alexander v. Choate, 469 U.S. 287, 296 (1985) (internal quotations omitted). Almost twenty years later, Congress recognized that the Rehabilitation Act had not fulfilled - 18 - 01-05754 the "compelling need * * * for the integration of persons with disabilities into the economic and social mainstream of American life," S. Rep. No. 116, 101st Cong. at 20 (1989), and enacted the ADA "to continue to break down barriers to the integrated participation of people with disabilities in all aspects of community life." H.R. Rep. No. 485 (III) at 49-50 (1990), reprinted in 1990 U.S.C.C.A.N. at 472-473. As discussed in Part II, above, Congress instructed the Attorney General to promulgate Title II regulations consistent with other sections of the ADA and a very specific set of regulations under Section 504 -- the HEW coordination regulations. Because "overriding significance" must be attached to the congressional ratification of administrative regulations, see Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 563 (1990), prior Rehabilitation Act cases that did not consider the type of integration requirement that the HEW Section 504 coordination regulations mandate are not relevant in interpreting the requirements of Title II of the ADA. While Congress may have envisioned Title II as incorporating Section 504 standards, Congress specifically endorsed the interpretation of Section 504 reflected only in the HEW coordination regulations, rather than the regulations issued by other agencies or any of the decisions cited by defendants. Thus, although some courts of appeals have considered whether Section 504 of the Rehabilitation Act generally provides a right to community treatment, none have - 19 - 01-05755 specifically considered the integration mandate in the HEW coordination regulations. For example, in Clark v. Cohen, 794 F.2d 79, 84 n.3 (3d Cir.), cert. denied, 479 U.S. 962 (1986), the court did not consider the integration mandates in either the HEW coordination regulations or the ADA Title II regulations. Helen L., 1995 WL 34200 at *7. It simply affirmed the lower court's finding that the Rehabilitation Act and the Department of Health and Human Services' [HHS] Section 504 regulations, 45 C.F.R. S 84.4(b)(2), do not require a public entity to provide services in an integrated setting without proof of unequal treatment.10/ See Clark v. Cohen, 613 F. Supp. 684, 691 (E.D. Pa. 1985).11/ Two other appellate cases cited by defendants (Defendants' Motion at 6-7) additionally did not address the integration requirement in the HEW coordination regulations that is at issue here,12/ ________________________ 10/ The HHS Section 504 regulations are different than the HEW coordination regulations in 28 C.F.R. pt. 41 with which the Congress required the ADA to conform. Unlike the HEW Section 504 coordination regulations, there is no independent integration requirement in the HHS regulations. Instead, the HHS Section 504 regulations require integration only in the context of providing opportunities for people with disabilities that are equal to those available to individuals without disabilities. 45 C.F.R. S 84.4(b)(2)(1994). 11/ The district court did find, however, that the plaintiff's continued confinement in an institution violated the Due Process Clause of the Fourteenth Amendment. Clark v. Cohen, 613 F. Supp. at 696-705. 12/ In Phillips v. Thompson, 715 F.2d 365, 368 (7th Cir. 1983), the court summarily concluded (without reference to regulations) that the Rehabilitation Act creates no affirmative duty "to create less restrictive community residential settings." The Second Circuit in P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d (continued...) - 20 - 01-05756 and the remaining two cases, while also not involving the HEW coordination regulations, actually acknowledge that the Rehabilitation Act may require public entities to provide services to individuals with disabilities in integrated settings. Thus, in Kentucky Ass'n for Retarded Citizens, Inc. v. Conn, 674 F.2d 582, 585 (6th Cir.), cert. denied, 459 U.S. 1041 (1982), the court did not dispute that Section 504 required services in the least restrictive setting. Rather, it found that the district court had not clearly erred as a factual matter in concluding that institutionalization of some individuals may be appropriate under Section 504. Similarly, in Plummer v. Branstad, 731 F.2d 574, 579 (8th Cir. 1984), the court assumed that Section 504 requires states to provide services to individuals in "integrated settings appropriate to their particular needs" -- a determination that must be made by the trier of fact. In short, none of the Rehabilitation Act cases defendants cite are Section 504 cases addressing the integration requirement of the HEW coordination regulations of Section 504. V. Defendants' Failure To Provide Community Services To Individuals Identified as Unnecessarily Institutionalized Is Unjustified. Defendants also argue that even if Title II and its implementing regulations require a public entity to provide _____________________________ 12/(... continued) Cir. 1990), addressed Section 504 claims only in the context of deciding defendants' claims of qualified immunity, finding that the plaintiff had not shown discriminatory animus and that Section 504 does not clearly establish an obligation to treat all individuals with disabilities the same. - 21 - 01-05757 services to individuals with disabilities in an integrated setting, the state is excused from that obligation if it requires the public entity to make a "fundamental" or "substantial" change in its program. Defendants' Motion at 6. This Court need not consider this argument 13/ because the State of Alabama is already required to provide services in the least restrictive or most integrated setting and claims to have an array of community- based services already in place. Indeed, that obligation arises from orders of this very Court entered some twenty-three years ago. Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972), 344 F. Supp. 387 (M.D. Ala. 1972), both aff'd in relevant part, 503 F.2d 1305 (5th Cir. 1974). Moreover, defendants admit that community-based services are generally less costly than institutional services. Plaintiffs' Mem. at 21. Under similar circumstances, the Third Circuit in Helen L. found no justification for continued segregation which violates the ADA, as should the Court here. As the Third Circuit stressed: The fact that it is more convenient, either administratively or fiscally, to provide services in a segregated manner, does not constitute a valid justification for separate or different services under Section 504 of the Rehabilitation Act, or under this title [Title II of the ADA]. Helen L. 1995 WL 34200 at *12, quoting H.R. Rep. No. 485 (III), at 50 (1990), reprinted in 1990 U.S.C.C.A.N. at 63 (emphasis ___________________________ 13/ Cf. Kinney v. Yerusalim, 9 F.3d 1067, 1074 (3d Cir. 1993), cert. denied, 114 S. Ct. 1545 (1994) (finding that in Title II, Congress limited the available defenses to those cases in which plaintiffs are challenging a public entity's failure to alter existing facilities or communications systems). - 22 - 01-05758 omitted). Defendants have no valid justification for failing to integrate individuals whom they admit are inappropriately institutionalized. CONCLUSION For the reasons stated above, this Court should deny Defendants' Motion for Judgment on the Pleadings and grant Plaintiffs' Motion for Summary Judgment on Plaintiffs' Claims under the Americans with Disabilities Act of 1990. Defendants' unjustifiable segregation of individuals with disabilities constitutes discrimination under Title II of the ADA. ] Respectfully submitted, For the United States Attorney, DEVAL L. PATRICK REDDING PITT Assistant Attorney General Civil Rights Division ARTHUR E. PEABODY Chief Special Litigation Section By: KENNETH E. VINES, First ROBINSUE FROHBOESE Assistant United States Attorney Deputy Chief Middle District of Alabama Special Litigation Section P.O. Box. 197 Montgomery, AL 36101 (205) 223-7280 JUDITH C. PRESTON TAWANA E. DAVIS Trial Attorneys U.S. Department of Justice Civil Rights Division P.O. Box 66400 Washington, D.C. 20035-6400 (202) 514-6258 - 23 - 01-05759 CERTIFICATE OF SERVICE I hereby certify that a copy of the United States' Response to Defendants' Motion for Judgment on the Pleadings and Plaintiffs' Motion for Summary Judgment on Plaintiffs' Claims under the Americans with Disabilities Act of 1990 was sent this 6th day of February 1995 to the following counsel of record by first class mail: Counsel for Defendants: G.R. "Rick" Trawick Alabama Department of Mental Health and Mental Retardation 200 Interstate Park Drive P.O. Box 3710 Montgomery, AL 36193-5001 Greg D. Crosslin Clifton E. Slaten Sasser & Littleton P.O. Box 388 1 Commerce Street Montgomery, AL 36101 Counsel for Plaintiffs: Ira A. Burnim Claudia Schlosberg Shelley R. Jackson Andrew Bridge Judge David L. Bazelon Center for Mental Health Law 1101 15th Street, N.W., #1212 Washington, D.C. 20005 James Tucker American Civil Liberties Union of Alabama P.O. Box 447 Montgomery, AL 36101 Fern Singer American Civil Liberties Union of Alabama 2007 Lancaster Road Birmingham, AL 35209 Kathryn Sumrall 2420 Arlington Avenue Birmingham, AL 35205 01-05760 Counsel for Plaintiff-Intervenors: Drew P. Baker Alabama Disabilities Advocacy Program University of Alabama School of Law P.O. Box 870395 Tuscaloosa, AL 35487-0395 David Ferleger 37 S. 20th Street, #601 Philadelphia, PA 19103 Robinsue Frohboese U.S. Department of Justice Civil Rights Division Special Litigation Section P.O. Box 66400 Washington, D.C. 20035-6400 (202) 514-6258 01-05761 ATTACHMENT B UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA, ) ) Plaintiff, ) v. ) ) Civil Action No. ) N-86-252 (EBB) STATE OF CONNECTICUT, et al., ) ) Defendants. ) ) UNITED STATES' MEMORANDUM OF LAW IN SUPPORT OF ITS APPLICATION FOR AN ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE HELD IN CIVIL CONTEMPT Christopher F. Droney Deval Patrick United States Attorney Assistant Attorney General Civil Rights Division John B. Hughes Mark Masling Assistant United Iris Goldschmidt States Attorney Trial Attorneys District of Connecticut Special Litigation Section 157 Church Street Civil Rights Division New Haven, CT 06510 U.S. Department of Justice P.O. Box 66400 Washington, D.C. 20035 (202) 514-6252 01-05762 depopulations of institutional settings and expansion of family and community care. R. Helms (Chairperson), Report to the Secretary from the Working Group on Policies Affecting Persons with Mental Retardation and Other Developmental Disabilities. Washington, D.C.: Department of Health and Human Services (1988). b. An order requiring community placement would be consistent with the Americans with Disabilities Act of 1990. The United States suggests that in fashioning an appropriate remedy to redress violations of the Remedial Orders, the Court may look to relevant federal law and policy regarding the rights of developmentally disabled persons. Although the Consent Decree and Plan pre-dated the Americans with Disabilities Act of 1990, 42 U.S.C. SS 12101 et. seq. ("ADA"), that comprehensive legislation speaks directly to the issues facing the Court and is fully consistent with the United States' request for an order requiring that each Southbury resident be evaluated by independent professionals to assess whether it would be beneficial to place the resident in a normal community environment. The ADA's essential aim is the integration of persons with disabilities into the mainstream of American life. Unnecessary, harmful segregation of persons with mental retardation in isolated, removed institutions violates the ADA. Therefore, an order by this Court requiring integration into the community for some Southbury residents would be consistent with, if not required by, federal law. -41- 01-05763 The ADA begins with statements of congressional findings which animated the ADA's enactment to end disability-based discrimination. Congress specifically found that "institutionalization" is one of the "critical areas" in which discrimination against individuals with disabilities persists. 42 U.S.C. S 12101(a)(3). Ending such discrimination is supported by additional congressional findings that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U.S.C. S 12101(a)(2). These discriminatory practices continue today through "outright intentional exclusion" and "segregation." 42 U.S.C. S 12101(a)(5). The ADA, therefore, prohibits isolation, segregation, and exclusion represented by unjustifiable institutionalization constituting disability-based discrimination. Consistent with the goal of integrating disabled persons into the American mainstream, the ADA prohibits public entities from discriminating by reason of disability, and mandates that "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." 42 U.S.C. S 12132. -42- 01-05764 In regulations promulgated pursuant to the ADA, the Attorney General determined that a state's provision of services in an unnecessarily segregated setting constitutes an unlawful disability-based discrimination. This regulation, known as the "integration regulation," requires states to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. S 35.130(d). The Attorney General has explained that this requires integration "in a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible . . . ." 28 C.F.R. pt. 35, app. A at 452 (Preamble to Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services) (1994). Southbury residents, who are segregated behind institutional walls, are not integrated in society and are unable to interact with nondisabled persons to the fullest extent possible. The only appellate court to specifically address the integration regulation has confirmed that, "the ADA and its attendant regulations clearly define unnecessary segregation as a form of illegal discrimination against the disabled." Helen L. v. Didario, 46 F.3d 325, 333 (3d Cir. 1995). In Helen L. the Third Circuit found that Pennsylvania violated the ADA by forcing the plaintiff to remain in the segregated setting of a nursing home instead of providing her with needed home-based services. Relying on the integration regulation, the court underscored that -43- 01-05765 the "ADA is intended to insure that qualified individuals receive services in a manner consistent with basic human dignity rather than a manner which shunts them aside, hides, and ignores them." Id. at _. The Third Circuit therefore reversed the district court and ordered it to enter summary judgment in favor of Helen L., and ordered that she be removed from the nursing home and provided services in a more integrated, less segregated setting. The Third Circuit rejected Pennsylvania's fiscal arguments for continued segregation, stressing: The fact that it is more convenient, either administratively or fiscally, to provide services in a segregated manner, does not constitute a valid justification for separate or different services under Section 504 of the Rehabilitation Act, or under this title [Title II of the ADA]. Helen L. at 338, quoting H.R. Rep. No. 485 (III), at 50 (1990), reprinted in 1990 U.S.C.C.A.N. at 63 (emphasis omitted). By failing to serve some Southbury residents in the most integrated setting appropriate to their needs, defendants are violating the ADA's prohibition of disability-based discrimination. The United States suggests that the Court may take that fact into consideration when deciding on appropriate sanctions for defendants' contempt of the Remedial Orders, including placing Southbury residents into the community who in the opinion of Southbury professionals would benefit from relocation. -44- 01-05766 c. The Court has the power to order community placement, even though that issue was not addressed in the Remedial Orders. Defendants will no doubt argue that because the Remedial Orders do not address community placement, this Court lacks power to order such a remedy. It is clear, however, under Second Circuit case law, that civil contempt remedies may exceed the requirements of the court orders at issue, if those remedies are required to alleviate the effects of the contempt of those orders. In EEOC v. Local 580, 925 F.2d 588 (2d Cir. 1991), the Second Circuit held that in the face of consent decree violations, a federal district court has the power to remedy those violations with relief which goes beyond that contained in the original decree: [B]ecause a district court has a significant administrative interest in securing compliance with its orders, it 'may take such [remedial] steps as are appropriate given the resistance of the noncompliant party' .... judicial discretion in flexing [a court's] supervisory and enforcement muscles is broad. Where equitable remedies which exceed the confines of the consent judgement are reasonably imposed in order to secure compliance of the parties, the court has not overstepped its bounds, and its orders must be obeyed .... the court has inherent power to enforce consent judgments beyond the remedial 'contractual' terms agreed upon by the parties. Id. at 592-93, quoting Berger v. Heckler, 771 F.2d 1556, 1569 (2d Cir. 1985). Thus, even though the Remedial Orders do not require community placement of Southbury residents who would benefit from integration in the community, the Court has the power to order that relief to remedy persistent violations of the Remedial Orders. -45- 01-05767 Moreover, while remedies for constitutional violations are generally restricted in scope to those which are required to correct the specific violation, a court may exceed that restriction when "there is a record of past constitutional violations and violations of past court orders." Hoptowit v. Ray, 682 F.2d 1237, 1247 (9th Cir. 1982), citing Hutto v. Finney, 437 U.S. 678, 687 (1978). See also Kendrick v. Bland, 740 F.2d 432, 438 (6th Cir. 1984) (same). Thus, defendants' abysmal record of failure to abide by the Remedial Orders allows this Court to order relief which might arguably exceed that which is required to remedy the underlying constitutional violations. d. This Court has the power to order community placement notwithstanding the Second Circuits's pronouncements on this issue. The United States is aware that in several decisions arising from litigation over conditions of confinement of persons with mental retardation in the Long Island Developmental Center, the Second Circuit commented that institutionalized persons with mental retardation have no constitutional right to placement in the community. Society for Goodwill to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239 (2d Cir. 1984); Society for Goodwill to Retarded Children, Inc. v. Cuomo, 902 F.2d 1085 (2d Cir. 1990). The relief the United States seeks to remedy defendants' continuing violations of the Remedial Orders, however, is not inconsistent with the Second Circuit's pronouncements in the Society for Goodwill cases for several reasons. First, those cases do not address the issue of community placement as a remedy -46- 01-05768 for ongoing violations of extant court orders. The Society for Goodwill cases said that ordering community placement as an initial remedy for underlying constitutional deficiencies was generally -- but not always -- inappropriate. The Second Circuit has never held that district courts were barred from ordering community placement as a remedy for ongoing violations of previous orders. Second, the Second Circuit has explicitly said that under certain circumstances district courts may in fact order community placement even in the absence of a pattern of violating past orders, "We further instruct the district court that community placement may be ordered only as a remedy of last resort and only when intra-institutional remedies are inadequate to cure the 'substantial departures' required by Youngberg." Society for Goodwill to Retarded Children, Inc. v. Cuomo, 902 F.2d 1085, 1091 (2d Cir. 1990). Third, a line of cases directly supports the United States' request for a remedy ordering community placement for some Southbury residents. In Thomas S. v. Flaherty, 699 F. Supp. 1178 (W.D.N.C. 1988), aff'd 902 F.2d 250 (4th Cir. 1990), cert. denied, 498 U.S. 951 (1990), and Clark v. Cohen, 794 F.2d 79 (3rd Cir. 1986), cert. denied 479 U.S. 962 (1986), the courts ordered community placement for the plaintiff in those cases, because in the judgment of the professionals treating those plaintiffs, the failure to place them in the community was a substantial -47- 01-05769 departure from current accepted professional standards.12/ In ordering community placement, the Fourth Circuit explicitly distinguished Society for Goodwill, commenting, "[Society for Goodwill does] not apply to the facts in Thomas's case, in which a discrete recommendation for treatment was made by qualified professionals to meet the needs of an individual, as contemplated by Youngberg." Thomas S. v. Morrow, 781 F.2d at 376. Thus, the United States' proposal to have each Southbury resident evaluated by a team of professionals to determine whether the resident would benefit from integration in the community is consistent both with cases in the Third and Fourth Circuits, and with the Society for Goodwill cases. _____________________________ 12/ 'Substantial departure from current accepted professional standards' was the standard used in Youngberg v. Romeo, 457 U.S. 307 (1982) to decide whether the constitutional rights of Romeo, an institutionalized person with mental retardation, had been violated. -48- 01-05770 CONCLUSION For all of the foregoing reasons, the United States respectfully requests that this Court find that defendants are in contempt of the Remedial Orders, and that this Court sanction defendants for their contempt as set forth above. Respectfully submitted, Christopher F. Droney Deval Patrick United States Attorney Assistant Attorney General Civil Rights Division John B. Hughes Mark Masling Assistant United Iris Goldschmidt States Attorney Trial Attorneys District of Connecticut Special Litigation Section 157 Church Street Civil Rights Division New Haven, CT 06510 U.S. Department of Justice P.O. Box 66400 Washington, D.C. 20035 (202) 514-6252 -49- 01-05771 ATTACHMENT B UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) Civil Action No. ) N-86-252 (EBB) STATE OF CONNECTICUT, et al., ) ) Defendants. ) ) UNITED STATES' MEMORANDUM OF LAW IN SUPPORT OF ITS APPLICATION FOR AN ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE HELD IN CIVIL CONTEMPT Christopher F. Droney Deval Patrick United States Attorney Assistant Attorney General Civil Rights Division John B. Hughes Mark Masling Assistant United Iris Goldschmidt States Attorney Trial Attorneys District of Connecticut Special Litigation Section 157 Church Street Civil Rights Division New Haven, CT 06510 U.S. Department of Justice P.O. Box 66400 Washington, D.C. 20035 (202) 514-6252 01-05772 depopulations of institutional settings and expansion of family and community care. R. Helms (Chairperson), Report to the Secretary from the Working Group on Policies Affecting Persons with Mental Retardation and other Developmental Disabilities. Washington, D.C.: Department of Health and Human Services (1988). b. An order requiring community placement would be consistent with the Americans with Disabilities Act of 1990. The United States suggests that in fashioning an appropriate remedy to redress violations of the Remedial Orders, the Court may look to relevant federal law and policy regarding the rights of developmentally disabled persons. Although the Consent Decree and Plan pre-dated the Americans with Disabilities Act of 1990, 42 U.S.C. SS 12101 et. seq. ("ADA"), that comprehensive legislation speaks directly to the issues facing the Court and is fully consistent with the United States' request for an order requiring that each Southbury resident be evaluated by independent professionals to assess whether it would be beneficial to place the resident in a normal community environment. The ADA's essential aim is the integration of persons with disabilities into the mainstream of American life. Unnecessary, harmful segregation of persons with mental retardation in isolated, removed institutions violates the ADA. Therefore, an order by this Court requiring integration into the community for some Southbury residents would be consistent with, if not required by, federal law. -41- 01-05773 The ADA begins with statements of congressional findings which animated the ADA's enactment to end disability-based discrimination. Congress specifically found that "institutionalization" is one of the "critical areas" in which discrimination against individuals with disabilities persists. 42 U.S.C. S 12101(a) (3). Ending such discrimination is supported by additional congressional findings that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U.S.C. S 12101(a) (2). These discriminatory practices continue today through "outright intentional exclusion" and "segregation." 42 U.S.C. S 12101 (a) (5). The ADA, therefore, prohibits isolation, segregation, and exclusion represented by unjustifiable institutionalization constituting disability-based discrimination. Consistent with the goal of integrating disabled persons into the American mainstream, the ADA prohibits public entities from discriminating by reason of disability, and mandates that "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." 42 U.S.C. S 12132. -42- 01-05774 In regulations promulgated pursuant to the ADA, the Attorney General determined that a state's provision of services in an unnecessarily segregated setting constitutes an unlawful disability-based discrimination. This regulation, known as the "integration regulation," requires states to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. S 35.130(d). The Attorney General has explained that this requires integration "in a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible . . . ." 28 C.F.R. pt. 35, app. A at 452 (Preamble to Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services) (1994). Southbury residents, who are segregated behind institutional walls, are not integrated in society and are unable to interact with nondisabled persons to the fullest extent possible. The only appellate court to specifically address the integration regulation has confirmed that, "the ADA and its attendant regulations clearly define unnecessary segregation as a form of illegal discrimination against the disabled." Helen L. v. Didario, 46 F.3d 325, 333 (3d Cir. 1995). In Helen L. the Third Circuit found that Pennsylvania violated the ADA by forcing the plaintiff to remain in the segregated setting of a nursing home instead of providing her with needed home-based services. Relying on the integration regulation, the court underscored that -43- 01-05775 the "ADA is intended to insure that qualified individuals receive services in a manner consistent with basic human dignity rather than a manner which shunts them aside, hides, and ignores them." Id. at -. The Third Circuit therefore reversed the district court and ordered it to enter summary judgment in favor of Helen L., and ordered that she be removed from the nursing home and provided services in a more integrated, less segregated setting. The Third Circuit rejected Pennsylvania's fiscal arguments for continued segregation, stressing: The fact that it is more convenient, either administratively or fiscally, to provide services in a segregated manner, does not constitute a valid justification for separate or different services under Section 504 of the Rehabilitation Act, or under this title (Title II of the ADA). Helen L. at 338, quoting H.R. Rep. No. 485 (III), at 50 (1990), reprinted in 1990 U.S.C.C.A.N. at 63 (emphasis omitted). By failing to serve some Southbury residents in the most integrated setting appropriate to their needs, defendants are violating the ADA's prohibition of disability-based discrimination. The United States suggests that the Court may take that fact into consideration when deciding on appropriate sanctions for defendants' contempt of the Remedial Orders, including placing Southbury residents into the community who in the opinion of Southbury professionals would benefit from relocation. -44- 01-05776 c. The Court has the power to order community placement, even though that issue was not addressed in the Remedial Orders. Defendants will no doubt argue that because the Remedial Orders do not address community placement, this Court lacks power to order such a remedy. It is clear, however, under Second Circuit case law, that civil contempt remedies may exceed the requirements of the court orders at issue, if those remedies are required to alleviate the effects of the contempt of those orders. In EEOC v. Local 580, 925 F.2d 588 (2d Cir. 1991), the Second Circuit held that in the face of consent decree violations, a federal district court has the power to remedy those violations with relief which goes beyond that contained in the original decree: (B)ecause a district court has a significant administrative interest in securing compliance with its orders, it 'may take such (remedial) steps as are appropriate given the resistance of the noncompliant party' .... judicial discretion in flexing (a court's) supervisory and enforcement muscles is broad. Where equitable remedies which exceed the confines of the consent judgement are reasonably imposed in order to secure compliance of the parties, the court has not overstepped its bounds, and its orders must be obeyed .... the court has inherent power to enforce consent judgments beyond the remedial 'contractual' terms agreed upon by the parties. Id. at 592-93, quoting Berger v. Heckler, 771 F.2d 1556, 1569 (2d Cir. 1985). Thus, even though the Remedial Orders do not require community placement of Southbury residents who would benefit from integration in the community, the Court has the power to order that relief to remedy persistent violations of the Remedial Orders. -45- 01-05777 Moreover, while remedies for constitutional violations are generally restricted in scope to those which are required to correct the specific violation, a court may exceed that restriction when "there is a record of past constitutional violations and violations of past court orders." Hoptowit v. Ray, 682 F.2d 1237, 1247 (9th Cir. 1982), citing Hutto v. Finney, 437 U.S. 678, 687 (1978). See also Kendrick v. Bland, 740 F.2d 432, 438 (6th Cir. 1984) (same). Thus, defendants' abysmal record of failure to abide by the Remedial Orders allows this Court to order relief which might arguably exceed that which is required to remedy the underlying constitutional violations. d. This Court has the power to order community placement notwithstanding the Second Circuits's pronouncements on this issue. The United States is aware that in several decisions arising from litigation over conditions of confinement of persons with mental retardation in the Long Island Developmental Center, the Second Circuit commented that institutionalized persons with mental retardation have no constitutional right to placement in the community. Society for Goodwill to Retarded Children, Inc. v. Cuomo, 737 F.2d 1239 (2d Cir. 1984); Society for Goodwill to Retarded Children, Inc. v. Cuomo, 902 F.2d 1085 (2d Cir. 1990). The relief the United States seeks to remedy defendants' continuing violations of the Remedial Orders, however, is not inconsistent with the Second Circuit's pronouncements in the Society for Goodwill cases for several reasons. First, those cases do not address the issue of community placement as a remedy -46- 01-05778 for ongoing violations of extant court orders. The Society for Goodwill cases said that ordering community placement as an initial remedy for underlying constitutional deficiencies was generally -- but not always -- inappropriate. The Second Circuit has never held that district courts were barred from ordering community placement as a remedy for ongoing violations of previous orders. Second, the Second Circuit has explicitly said that under certain circumstances district courts may in fact order community placement even in the absence of a pattern of violating past orders, "We further instruct the district court that community placement may be ordered only as a remedy of last resort and only when intra-institutional remedies are inadequate to cure the 'substantial departures' required by Youngberg." Society for Goodwill to Retarded Children, Inc. v. Cuomo, 902 F.2d 1085, 1091 (2d Cir. 1990). Third, a line of cases directly supports the United States' request for a remedy ordering community placement for some Southbury residents. In Thomas S. v. Flaherty, 699 F. Supp. 1178 (W.D.N.C. 1988), aff'd 902 F.2d 250 (4th Cir. 1990), cert. denied, 498 U.S. 951 (1990), and Clark v. Cohen, 794 F.2d 79 (3rd Cir. 1986), cert. denied 479 U.S. 962 (1986), the courts ordered community placement for the plaintiff in those cases, because in the judgment of the professionals treating those plaintiffs, the failure to place them in the community was a substantial -47- 01-05779 departure from current accepted professional standards. 12/ In ordering community placement, the Fourth Circuit explicitly distinguished Society for Goodwill, commenting, "[Society for Goodwill does] not apply to the facts in Thomas's case, in which a discrete recommendation for treatment was made by qualified professionals to meet the needs of an individual, as contemplated by Youngberg." Thomas S. v. Morrow, 781 F.2d at 376. Thus, the United States' proposal to have each Southbury resident evaluated by a team of professionals to determine whether the resident would benefit from integration in the community is consistent both with cases in the Third and Fourth Circuits, and with the Society for Goodwill cases. ___________________________ 12/ 'Substantial departure from current accepted professional standards' was the standard used in Youngberg v. Romeo, 457 U.S. 307 (1982) to decide whether the constitutional rights of Romeo, an institutionalized person with mental retardation, had been violated. -48- 01-05780 CONCLUSION For all of the foregoing reasons, the United States respectfully requests that this Court find that defendants are in contempt of the Remedial Orders, and that this Court sanction defendants for their contempt as set forth above. Respectfully submitted, Christopher F. Droney Deval Patrick United States Attorney Assistant Attorney General Civil Rights Division John B. Hughes Mark Masling Assistant United Iris Goldschmidt States Attorney Trial Attorneys District of Connecticut Special Litigation Section 157 Church Street Civil Rights Division New Haven, CT 06510 U.S. Department of Justice P.O. Box 66400 Washington, D.C. 20035 (202) 514-6252 -49- 01-05781