PAGE 1
Citation                                        Database        Mode
Not Reported in F.Supp.         FOUND DOCUMENT  DCT             Page
        USLW 2479, 2 A.D. Cases 1751, 4 A.D.D. 55, 4 NDLR P 366
(CITE AS: 1994 WL 22714 (E.D.PA.))
                               Helen L., et al.
                                      v.
                            Albert DIDARIO, et al.
                             No. CIV. A. 92-6054.
                        United States District Court
                              E.D. Pennsylvania.
                                Jan. 27, 1994.
                                 MEMORANDUM
O'NEILL.
I. Background
 *1 Plaintiff Helen L. is a 67-year old woman with a traumatic brain injury
who was institutionalized at Norristown State Hospital, an institution for
persons with mental illness ("Norristown"). Plaintiffs Beverly D. and Eileen
F. are women with disabilities who reside at a nursing home in Philadelphia.
 Defendant Albert DiDario is the Superintendent of Norristown. Defendant Karen
Snider is Secretary of the Pennsylvania Department of Public Welfare ("DPW"),
which is responsible for administering the State's Attendant Care Services Act.
See 62 Pa.Cons.Stat.Ann. s 3051 et. seq.
 Plaintiffs Beverly D. and Eileen F. have filed a motion for a preliminary
injunction [FN1] requesting that the Court order defendant Snider to provide
them with community-based attendant care services. [FN2] Both plaintiffs
receive Medical Assistance from defendants which pays for their nursing home
care and treatment.
 Plaintiffs assert that defendant's refusal to provide them with community-
based attendant care services violates their rights under the Americans With
Disabilities Act ("ADA"), 42 U.S.C. s 12101. See Count One, Plaintiffs'
amended complaint. On June 25, 1993, the parties agreed to a stipulation of
facts in order to allow the Court to rule on plaintiffs' motion for summary
judgment, which was filed the same day. Defendants filed a cross-motion for
summary judgment. Thereafter, I issued an Order staying discovery pending
ruling on the motions for summary judgment.
 On June 28, 1993, plaintiff Helen L. was discharged from Norristown to an
apartment in the area. Nevertheless, she continues to assert her
constitutional claim that defendant DiDario violated her substantive due
process rights as a result of her confinement at the Hospital from 1952 until
1993. [FN3] See Count II, Plaintiffs' amended complaint.
 For the following reasons, I will grant defendants' motion for summary
judgment as to Count One of plaintiffs' amended complaint and deny defendants'
motion as to Count Two. If appropriate, defendants may renew their motion for
summary judgment as to Count Two at the close of discovery.
 II. Discussion
 A. Plaintiffs' ADA Claim
                        1. Summary Judgment Standard
        Under Fed.R.Civ.P. Rule 56(c), summary judgment is appropriate "if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to
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Not Reported in F.Supp.                                      PAGE 2
(CITE AS: 1994 WL 22714, *1 (E.D.PA.))
any material fact and that the moving party is entitled to a judgment as a
matter of law." See Hines v. Conrail, 926 F.2d 262, 267 (3d Cir.1991).
 Under Rule 56, summary judgment will be granted "against a party who fails to
make a showing sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden of proof at
trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party
moving for summary judgment bears the initial responsibility of informing the
court of the basis for its motion and identifying those portions of "the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any," which it believes demonstrate the
absence of a genuine issue of material fact. Id. at 322-323. The moving
party is not required to support its motion with affidavits or other similar
materials negating the opponent's claim. Id.
 *2 If the moving party sustains this burden, the nonmoving party must set
forth facts demonstrating the existence of a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Rule 56(e)
provides that when a properly supported motion for summary judgment is made,
"an adverse party may not rest upon the mere allegations or denials of the
adverse party's pleading, but the adverse party's response, by affidavits or as
otherwise provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial. An issue of material fact is genuine if
"the evidence is such that a reasonable jury could return a verdict for the
nonmoving party." Anderson, 477 U.S. at 255; Brenner v. United
Brotherhood of Carpenters & Joiners, 927 F.2d 1283, 1287-88 (3d Cir.1991).
 In addition, "the existence of disputed issues of material fact should be
ascertained by resolving 'all inferences, doubts and issues of credibility
against the moving party.'" Ely v. Hall's Motor Transit Co., 590 F.2d 62,
66 (3rd Cir.1978), quoting Smith v. Pittsburgh Gage & Supply Co., 464 F.2d
870, 874 (3rd Cir.1972).
                        2. Factual Background
 This summary of relevant facts is based on the stipulation submitted by the
parties.
 Beverly D., a 46-year old woman, has resided at a nursing home in Philadelphia
since September 29, 1988. She is the mother of two daughters and a student at
Philadelphia Community College. Before she was admitted to the nursing home,
Beverly D. injured herself escaping from a fire in her home. As a result, she
has no vision in her right eye and uses a wheelchair. Because of her physical
handicaps, Beverly D. requires and receives at the nursing home assistance with
daily living activities, such as bathing, preparing meals, doing laundry and
shopping. However, she does not require nursing supervision or care.
 DPW pays for these services under its Medical Assistance Program. Beverly D.
wants to live outside the nursing home and in the community. On January 13,
1993, Homemaker Service of the Metropolitan Area, Inc. ("Homemaker"),
determined that she is eligible for attendant care services in the community.
[FN4] Homemaker also informed Beverly D. that "funding limitations" prevent it
from providing such services to her. [FN5] Eileen F., a 46-year old woman,
resides at the same nursing home. She was admitted in 1991 after suffering a
stroke which requires her to use a wheelchair. [FN6] She has family in
Philadelphia and, like Beverly D., wants to live in the community. Similarly,
although she requires assistance with daily living activities, Eileen F. would
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Not Reported in F.Supp.                                      PAGE 3
(CITE AS: 1994 WL 22714, *2 (E.D.PA.))
not require nursing home care if she received attendant care services. On
January 13, 1993, Homemaker informed her that she is eligible for attendant
care services in the community but that it lacks funds to provide the services.
 At the nursing home, plaintiffs live only with other persons who have
disabilities. They do not live with their families and friends and "are not
visited by non-disabled persons." See Stipulation of Facts at PP .38-39.
Defendants concede that the "setting for the provision of attendant care
services appropriate to the needs of Beverly D. and Eileen F. is in the
community" and that a "nursing home is not the setting in which plaintiffs
could be provided attendant care services and have maximum contact with
nondisabled persons." See Stipulation of Facts at PP .43, 44. Plaintiffs
therefore "must remain in a nursing home in order to receive the attendant care
services which they require." Id. at P .45.
 *3 The parties agree that the average cost to DPW of nursing home care is
$45,000 a year, of which 56 percent is derived from federal reimbursement and
44 percent from state funds. The average cost to DPW of attendant care in the
community is $10,500, for which it receives federal reimbursement. Defendant
DPW has not requested that the federal funds be used to pay for attendant care
services for the women in the community.
                                3. Discussion
 Congress passed the ADA to provide protection for persons with disabilities
against discrimination. The Act specifically prohibits discrimination in
employment (Title I), in public services (Title II), in public accommodations
(Title III) and in telecommunications (Title IV). See Kinney v. Yerusalim,
812 F.Supp. 547, 548 (E.D.Pa.1993), aff'd, 1993 U.S.App. LEXIS 30167 (3d
Cir.1993).
 Title II of the ADA prohibits state and local governments from discriminating
on the basis of disability. Title 42 U.S.C. s 12132 provides:
Subject to the provisions of this subchapter, no qualified individual with a
disability shall, by reason of such disability, be excluded from participation
in or be denied the benefits of the services, programs or activities of a
public entity, or be subjected to discrimination by any such entity.
 42 U.S.C.A s 12132 (Supp.1993). [FN7]
 Prior to the ADA, the prohibition against discrimination covered only those
programs and services of government entities that received financial
assistance. See 29 U.S.C. s 794.
 The ADA's Findings and purposes state:
* * * *
 (2) 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;
 (3) discrimination against individuals with disabilities persists in such
critical areas as employment, housing public accommodations education,
transportation, communication, recreation, institutionalization, health
services, voting and access to public services;
* * * *
 (5) individuals with disabilities continually encounter various forms of
discrimination, including outright intentional exclusion, the discriminatory
effects of architectural, transportation, and communication barriers,
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01-07007
Not Reported in F.Supp.                                                 PAGE 4
(CITE AS: 1994 WL 22714, *3 (E.D.PA.))
overprotective rules and policies, failure to make modifications to existing
facilities and practices, exclusionary qualification standards and criteria,
Segregation, and relegation to lesser services, programs, activities, benefits,
jobs, or other opportunities;
* * * *
  (8) the Nation's proper goals regarding individuals with disabilities are to
assure equality of opportunity, full participation, independent living, and
economic self-sufficiency for such individuals;....
 42 U.S.C.A. 12101 (Supp.1993).
 This case turns on the interpretation of what plaintiffs call the "integration
mandate" of the ADA. Plaintiffs focus on the setting in which they receive
services; they allege that even though defendants provide services under two
different programs defendants are required to furnish those services in the
setting that best integrates plaintiffs into their community.
 *4 Plaintiffs insist that defendant's refusal to provide attendant care
services violates the integration mandate, which they derive from Titles II
[FN8] and III [FN9] of the ADA. In their memorandum, Plaintiffs review the
regulations detailing and implementing the Act's integration mandate. See,
e.g., 28 C.F.R. Section 35.130(d) (regulation intended to effectuate Title II
of the ADA stating that a "public entity shall administer services, programs,
and activities in the most integrated setting appropriate to the needs of
qualified individuals with disabilities").
 Plaintiffs also assert that cases construing section 504 of the Rehabilitation
Act, 29 U.S.C. Section 794, are instructive in determining the meaning of the
ADA but that the ADA does more than extend the Rehabilitation Act. See, e.g.,
28 C.F.R. Section 35.103(a) ("Except as otherwise provided in this part, this
part shall not be construed to apply a lesser standard than the standards
applied under title V of the Rehabilitation Act of 1973.").
 Defendants respond that they are in compliance with the law so long as
plaintiffs receive services for which they are eligible and that the Court
cannot otherwise dictate how defendants provide those services. Stated another
way, defendants maintain that they are required only to ensure that plaintiffs
are not discriminated against in comparison with other individuals who are
chosen to receive attendant care services.
 I conclude that defendants' position is legally correct. My ruling is guided
by the reasoning of the Massachusetts Supreme Court in Williams v. Secretary
of the Executive Office of Human Services, 414 Mass. 551, 609 N.E.2d 447
(1993).
 In Williams, plaintiffs, a group of homeless and mentally ill individuals,
sued the State's Department of Mental Health with respect to the methods by
which it served patients. Plaintiffs pursued a number of statutory and
constitutional claims, including a claim that the Department did not provide "a
sufficient amount of integrated supported housing to satisfy the requirements
of the ADA." Id. at 556.
 In a unanimous decision, the Court rejected plaintiffs' ADA claim. The Court
held that the ADA does not require a state to provide services in an integrated
setting. The Court explained:
  nothing in the ADA requires that a specific proportion of housing placements
provided by a public mental health service be in 'integrated' housing. Nor
does anything in the ADA or its 'integration regulations' address the absence
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01-07008
Not Reported in F.Supp.                                                 PAGE 5
(CITE AS: 1994 WL 22714, *4 (E.D.PA.))
of sufficient integrated residential placements to satisfy the entire demand
for such services.
Id. at 556-557. The Court continued:
  [t]he focus of Federal disability discrimination statutes is to address
discrimination in relation to nondisabled persons, rather than to eliminate all
differences in levels or proportions of resources allocated and services
provided to individuals with differing types of disabilities.... Courts do not
determine whether an agency's allocation of resources or provision of services
is efficient or in proportion to the obvious and pressing need of the disabled
within the Commonwealth.
 *5 Id. at 559-560. [FN10]
 The record developed by the parties establishes that plaintiffs are denied
attendant care services because of lack of funds. It does not demonstrate that
they have been denied funding for attendant care services because they are
disabled. Plaintiffs' failure to show that they have been excluded from the
attendant care services program on the basis of their disability is fatal to
their claim. Cf. Martin v. Voinovich, 1993 U.S.Dist. LEXIS 18468 at *44
(E.D.Ohio Dec. 14, 1993).
 Even though defendant Snider concedes that it is more expensive and less
salutary for plaintiffs to remain in a nursing home rather than receive
attendant care services, this admission does not authorize the Court to adjust
the Department's allocation of resources or provision of services. Plaintiffs
assert that the fact that they would be served better by attendant care
services distinguishes their case from Williams. Given the separation of
powers reasoning in Williams that requires courts to avoid involving
themselves in administrative agency policy decisions, I am unable to agree.
[FN11]
 Plaintiffs also contend that a judgment in favor of defendants will render
the "integration mandate" of 28 C.F.R. s 5.130(d) meaningless. However,
this integration mandate may not be invoked unless there is first a finding of
discrimination. See, e.g., Williams at 558. See also Pinnock v.
International House of Pancakes, 1993 U.S. Dist. LEXIS 16399 at *18-20
(S.D.Cal. Nov. 8, 1993) (discussing "most integrated setting" language of
regulations implementing Title III of the ADA). [FN12]
 I will deny plaintiffs' request for a preliminary injunction and enter
judgment in favor of defendants on Count One.
 B. Helen L.'s Constitutional Claim
                        1. Factual Background
 Helen L. was admitted to Philadelphia Hospital sometime in the early 1950s and
remained there until 1971, when she was taken to Norristown. She was admitted
to Norristown as an involuntary patient pursuant to a court order for interim
commitment, which noted that she was "Mentally Ill." See Attachment 2 to
Defendant's Motion for Summary Judgment, dated July 22, 1993.
 According to her verified complaint, Helen L. is not and never was mentally
ill. [FN13] Defendant admits that her "organic brain injury ... is not a
mental illness." See Defendant's Answer to Amended Complaint at P .22, filed
December 23, 1992. [FN14]
 Plaintiff alleges and DiDario [FN15] admits that at the time Helen L. was
admitted to Norristown the hospital staff recommended "the starting of
discharge planning probably to a better supervised, all female, boarding
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01-07009
Not Reported in F.Supp.                                                 PAGE 6
(CITE AS: 1994 WL 22714, *5 (E.D.PA.))
home." See Defendant's Answer to Amended Complaint at P .23.
 In February 1977, Helen L. apparently signed a form consenting to receive
inpatient treatment at Norristown. See Attachment 3 to Defendant's Motion for
Summary Judgment. She also apparently checked a box on the form stating that
she could leave the hospital upon written request with up to 72 hours notice.
Id. [FN16] Despite defendant's efforts to discharge plaintiff over the years,
she did not leave Norristown until June 1993.
 *6 In her verified complaint, plaintiff states that she received Mellaril,
a psychotropic medicine, while at the hospital. In addition, Helen L. has
submitted an affidavit stating:
  1. Since I moved to Norristown State Hospital, I believed I was not permitted
to leave, but had to stay there.
  2. For many years I lived in a locked ward with many other women. I could
not leave the ward without permission of the staff.... Often, other women at
Norristown State Hospital would bother me but I could not leave the locked ward
to get away from them.
  3. Frequently over the years, I was denied permission to leave the ward. I
do not know why I had to live in this locked ward or why I was not permitted to
leave it.
  * * * *
  5. I do not remember signing any papers about staying at Norristown State
Hospital. No one ever explained my rights or why I was there. I have always
believed that I could not leave Norristown State Hospital and had no option
about leaving and no option about living somewhere else. No staff at
Norristown State Hospital ever told me I could leave if and whenever I wanted.
  6. I did not ask to be placed at Norristown State Hospital and did not stay
there on my own.
  7. I told the staff over and over that I wanted to live in Northeast
Philadelphia near my sisters but they never told me how I could do this.
  8. The staff made me take medicine and have shock treatment even though I did
not want it, and my memory is worse.
 See Affidavit of Helen L., dated August 3, 1993.
                                2. Discussion
 Plaintiff asserts that defendant DiDario violated her substantive due process
rights under the Fourteenth Amendment by failing to place her in an appropriate
community setting and unnecessarily maintaining her in an institution. Because
she has been discharged from Norristown, she now has only a claim for damages
against defendant for his alleged violation of her constitutional rights.
 Defendant responds that plaintiff's claim should fail because his conduct did
not violate the Constitution. Alternatively, he maintains that the Eleventh
Amendment and the doctrine of qualified immunity prevent plaintiff from
collecting damages for any constitutional violation that may have occurred.
Defendant also contends that because Helen L. voluntarily committed herself to
Norristown in 1977 he is not liable for any injury she may have suffered while
she was there. See generally DeShaney v. Winnebago County Department of
Social Services, 489 U.S. 189 (1989) (establishing limits of State's
affirmative duty to protect individuals).
 I am unable to agree with defendant that the record developed by the parties
thus far demonstrates that defendant is entitled to judgment as a matter of
law. Because plaintiff may not have been voluntarily committed to Norristown
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Not Reported in F.Supp.                                                 PAGE 7
(CITE AS: 1994 WL 22714, *6 (E.D.PA.))
even after 1977, she may have a claim under Youngberg v. Romeo, 457 U.S.
307 (1982) (involuntarily committed person has constitutional right to safe
conditions, to freedom from bodily restraint and to training). See also
DeShaney at 199-201 (discussing Youngberg ); Clark v. Cohen, 794 F.2d
79, 87 (3d Cir.), cert. denied, 479 U.S. 962 (1986) (upholding trial court
findings that plaintiff's "substantive liberty right to appropriate treatment
under Romeo was violated"). There is also a factual question whether she
was free to leave the institution. The Order accompanying this Memorandum will
lift my July Order staying discovery in the case. If appropriate, defendant
may renew his motion for summary judgment after discovery has concluded.
  *7 The Eleventh Amendment does not bar Helen L. from suing defendant
DiDario in his individual capacity as Superintendent of Norristown State
Hospital. See Hafer v. Melo, 112 S.Ct. 358 (1991). In my view the present
record is not sufficient to enable me to rule on defendant's defense of
qualified immunity. Defendant may renew this defense by motion after the close
of discovery. room of a restaurant or to refuse to allow a person with a
disability to full use of a health spa because of stereotypes about the
person's ability to participate." Pinnock at *19.
                                ORDER
 AND NOW, this day of January, 1994, upon consideration of plaintiffs' motion
for a preliminary injunction, the parties' cross-motions for summary judgment
as to Count One, defendant's motion for summary judgment as to Count Two and
the supporting and opposing memoranda and correspondence thereto, it is hereby
ORDERED that:
 1. Plaintiffs' motions for a preliminary injunction and for summary judgement
as to Count One are DENIED.
 2. Defendants' motion for summary judgment as to Count One is GRANTED.
Judgment is entered in favor of defendants and against plaintiffs on Count One
of plaintiffs' amended complaint.
 3. Defendant's motion for summary judgment as to Count Two is DENIED without
prejudice to its renewal at the conclusion of discovery. This Order vacates
the stay of discovery previously ordered by the Court.
         FN1. Plaintiff Florence H. is not a party to the pending motion.
        Plaintiff Disabled In Action of Pennsylvania ("DIA") is a Pennsylvania
        nonprofit corporation whose members are persons with disabilities and
        also is not a party to the pending motion. Defendants do not challenge
        this plaintiff's standing.
         FN2. For a description of the attendant care program, see Easley v.
        Snider, 1993 U.S. Dist. LEXIS 18021 (E.D.Pa. Dec. 20, 1993) (Brody, J.).
         FN3. As a result of her discharge from Norristown State Hospital, Helen L.
        is relinquishing her claim under the ADA. See Letter of Plaintiffs'
        Counsel, dated June 25, 1993.
         FN4. Homemaker is a subcontractor of DPW that has been chosen to provide
        attendant care services for eligible persons.
         FN5. See Letter from Homemaker Service of the Metropolitan Area, Inc., to
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01-07011
Not Reported in F.Supp.                                                PAGE 8
(CITE AS: 1994 WL 22714, *7 (E.D.PA.))
        Beverly D., dated January 13, 1993, attached to Stipulation of Facts.
    FN6. "Eileen F, has no use of her left upper extremity, a mild vision and
    hearing deficit and some difficulty with speech." See Stipulation of Facts
    at P .26, dated June 25, 1993.
    FN7. The term public entity is defined in s 12131 and includes "any State
    or local government." Id. at s (1)(A).
    FN8. See 42 U.S.C.A. 12134(a), which authorizes 28 C.F.R. s 35.101
    et seq.
    FN9. See 42 U.S.C.A. 12182(b)(1)(B), which states: "Goods, services,
    facilities, privileges, advantages, and accommodations shall be afforded to
    an individual with a disability in the most integrated setting appropriate
    to the needs of the individual."
    FN10. The Court's decision addressed claims under Title II and Title III
    of the ADA.
    FN11. In a letter to the Court dated January 13, 1994, counsel for
    plaintiffs provided the following information about a pending case in
    Pennsylvania Commonwealth Court that is relevant to this dispute. The
    letter explains that Williams v. Snider, No. 0013 M.D.1993 (Commw. Ct.)
    "is a mandamus action that seeks to require DPW to apply for available
    federal funding for personal assistance care services for disabled people.
    As a result of the Williams litigation, DPW has commissioned a study to
    determine the feasibility of receipt of federal funds by successfully
    applying for a waiver under the Medicaid Program for a Personal Assistance
    Services Program for persons with physical disabilities modeled after
    Pennsylvania's Act 150 Attendant Care Program.... DPW is still in the
    process of making a decision whether or not to apply for those federal
    funds." Even if DPW decided to apply for federal funds, the Federal Health
    Care Financing Administration must approve the application. The letter
    concludes that the Commonwealth Court has stayed proceedings in Williams
    pending the agencies' decision-making process. See Letter of Stephen F.
    Gold, plaintiffs' counsel, dated January 13, 1994.
    FN12. In Pinnock, the court noted that the "preamble to the [T]itle III
    regulation provides two pages of examples and explanations illustrating the
    meaning of this provision. One example provides that it would be a
    violation of this provision to require persons with mental disabilities to
    eat in the back
    FN13. Plaintiff suffered traumatic brain trauma when she was hit by a
    trolley car at the age of three. She is able to read and write. See
    Plaintiffs' Amended Complaint at PP .17, 18.
    FN14. Defendant DiDario maintains that "Helen L's diagnosis at Norristown
    State Hospital most typically was organic brain syndrome with mild mental
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01-07012
Not Reported in F.Supp.                                                 PAGE 9
(CITE AS: 1994 WL 22714, *7 (E.D.PA.))
    retardation, sometimes with psychosis, sometimes without." See Affidavit
    of Albert DiDario at P .11, dated July 20, 1993.
    FN15. In her memorandum of law, plaintiff states that she does not seek
    damages against defendant Snider. See Plaintiff's Memorandum of Law at 32,
    filed August 5, 1993. My discussion of her constitutional claim therefore
    only concerns defendant DiDario.
    FN16. The form included another box stating that she could leave "at any
    time" she expressed her "desire to leave in writing." See Attachment 3 to
    Defendant's Motion for Summary Judgment, dated July 22, 1993.
END OF DOCUMENT
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01-07013
                                                                    PAGE 1
Citation                                        Database                     Mode
46 F.3d 325             FOUND DOCUMENT          CTA                          Page
USLW 2501, 3 A.D. Cases 1775, 6 NDLR P 92
(CITE AS: 46 F.3D 325)
 HELEN L., Beverly D., Florence H., Ilene F., Idell S., and American Disabled
     for Attendant Programs Today ("A.D.A.P.T."), Idell S., Appellant,
                                        v.
Albert L. DiDARIO, individually and in his official capacity as Superintendent
     of Norristown State Hospital, and Karen F. Snider, in her capacity as
     Secretary, Pennsylvania Department of Public Welfare, Karen F. Snider,
                               Appellee.
                              No. 94-1243.
                    United States Court of Appeals,
                             Third Circuit.
                         Argued Sept. 13, 1994.
                         Decided Jan. 31, 1995.
                        As Amended Feb. 2, 1995.
                  Sur Petition for Rehearing Feb. 24, 1995.
 Nursing home resident joined action against Secretary of Pennsylvania
Department of Public Welfare (DPW), alleging that Department violated Americans
with Disabilities Act (ADA) by requiring that resident receive required care
services in nursing home rather than through Department's attendant care
program in her own home. Resident moved for summary judgment. The United
States District Court for the Eastern District of Pennsylvania, Thomas N.
O'Neill, Jr., J., denied motion and entered judgment for Secretary. Resident
appealed. The Court of Appeals, McKee, Circuit Judge, held that
Department violated Act by requiring that resident, who had contracted
meningitis and was paralyzed, receive required care services in nursing home
rather than through attendant care program, for which she was qualified, in her
own home.
 Vacated and remanded.
 [1] FEDERAL COURTS k660.25
170Bk660.25
District court's order, directing clerk to enter final judgment for defendant
against plaintiff, after district court had granted summary judgment for
defendant, created final judgment subject to appeal, because plaintiff's sole
claim was disposed of. Fed.Rules Civ.Proc.Rule 54(b), 28 U.S.C.A.; 28
U.S.C.A. s 1291.
 [2] FEDERAL COURTS k766
170Bk766
Standard of review applicable to grant of summary judgment is plenary.
Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A.
 [3] FEDERAL COURTS k754.1
170Bk754.1
District court's interpretation of federal regulation is question of law
subject to plenary review.
 [4] CIVIL RIGHTS k107(1)
78k107(1)
                        Copr. (C) West 1995 No claim to orig. U.S. govt. works
01-07014
46 F.3d 325                                                             PAGE 2
(CITE AS: 46 F.3D 325)
 Law developed under Rehabilitation Act section mandating nondiscrimination
under federal grants and programs is applicable to Title II of Americans with
Disabilities Act (ADA). Rehabilitation Act of 1973, s 504, 29 U.S.C.A. s
794; Americans with Disabilities Act of 1990, ss 201-204, 42 U.S.C.A. ss
12131-12134; 28 C.F.R. s 35.103.
 [5] ADMINISTRATIVE LAW AND PROCEDURE k412.1
15Ak412.1
Regulations promulgated by Department of Justice under Title II of Americans
with Disabilities Act (ADA) are entitled to substantial deference. Americans
with Disabilities Act of 1990, ss 201-204, 42 U.S.C.A. ss 12131-12134.
 [5] CIVIL RIGHTS k107(1)
78k107(1)
Regulations promulgated by Department of Justice under Title II of Americans
with Disabilities Act (ADA) are entitled to substantial deference. Americans
with Disabilities Act of 1990, ss 201-204, 42 U.S.C.A. ss 12131-12134.
 [6] STATUTES k219(4)
361k219(4)
Unless they are arbitrary, capricious, or manifestly contrary to statute,
agency's regulations are given controlling weight respecting construction of
statutory scheme executive department is entrusted to administer.
 [7] STATUTES k223.5(1)
361k223.5(1)
When Congress reenacts statute and voices its approval of administrative
interpretation of that statute, that interpretation acquires force of law, and
courts are bound by the regulation.
 [8] STATUTES k223.5(1)
361k223.5(1)
When Congress agrees with administrative interpretation of statute which
Congress is reenacting, that interpretation acquires force of law and courts
are bound by the regulation.
 [9] CIVIL RIGHTS k107(1)
78k107(1)
Americans with Disabilities Act (ADA) regulation, stating that public entity
shall administer services, programs, and activities in most integrated setting
appropriate to needs of qualified individuals with disabilities, had force of
law, as Congress had voiced its approval of Rehabilitation Act coordination
regulation to which it was almost identical. Rehabilitation Act of 1973, s
504, 29 U.S.C.A. s 794; Americans with Disabilities Act of 1990, s 202,
42 U.S.C.A. s 12132; 28 C.F.R. ss 35.130(d), 41.51(d).
 [10] CIVIL RIGHTS k107(1)
78k107(1)
Protection of Americans with Disabilities Act (ADA) is not conditioned upon
finding of "discrimination." Americans with Disabilities Act of 1990, s 202,
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(CITE AS: 46 F.3D 325)
42 U.S.C.A. s 12132.
 [1] CIVIL RIGHTS k107(1)
78k107(1)
Unnecessary segregation of individuals with disabilities in provision of public
services is itself form of "discrimination" within meaning of Americans with
Disabilities Act (ADA) and Rehabilitation Act, independent of discrimination
that arises when individuals with disabilities receive different services from
those provided to individuals without disabilities. Rehabilitation Act of
1973, s 504, 29 U.S.C.A. s 794; Americans with Disabilities Act of 1990, s
202, 42 U.S.C.A. s 12132; 28 C.F.R. ss 35.130(d), 41.51(d).
See publication Words and Phrases for other judicial constructions and
definitions.
 [12] CIVIL RIGHTS k107(1)
78k107(1)
Americans with Disabilities Act (ADA) is intended to insure that qualified
individuals receive services in manner consistent with basic human dignity
rather than manner which shunts them aside, hides, and ignores them. Americans
with Disabilities Act of 1990, ss 201-204, 42 U.S.C.A. ss 12131-12134.
 [13] CIVIL RIGHTS k107(1)
78k107(1)
Pennsylvania Department of Public Welfare (DPW) violated Americans with
Disabilities Act (ADA) by requiring that nursing home resident, who had
contracted meningitis and was paralyzed, receive required care services in
nursing home rather than through Department's attendant care program, for which
she was qualified, in her own home, despite contention that resident's present
placement was required under state legislature's appropriations respecting such
programs; providing attendant care services to resident in her home would not
be fundamental alteration in attendant care program or nursing home program.
Rehabilitation Act of 1973, s 504, 29 U.S.C.A. s 794; Americans with
Disabilities Act of 1990, s 202, 42 U.S.C.A. s 12132; 28 C.F.R. s
35.130(d), 41.51(d).
 [14] FEDERAL COURTS k935.1
170Bk935.1
Generally, appellate court reversing grant of summary judgment will not direct
district court to enter summary judgment in favor of appellant because genuine
issue of material fact will remain. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A.
 [15] FEDERAL COURTS k935.1
170Bk935.1
On appeal from grant of summary judgment, when appeal concerns only issues of
law, Court of Appeals is free to enter order directing district court to enter
summary judgment in favor of appellant. Fed.Rules Civ.Proc.Rule 56(c), 28
U.S.C.A.
 *327 Ilene Shane, Robin Resnick, Disabilities Law Project, Stephen F. Gold
(Argued), Philadelphia, PA, for appellant.
 John A. Kane, Howard Ulan (Argued), Dept. of Public Welfare, Office of Legal
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 Counsel, Harrisburg, PA, for appellee.
  Deval L. Patrick, David K. Flynn, Rebecca K. Troth (Argued), U.S. Dept. of
  Justice, Washington, DC, for the U.S. as amicus curiae [FN1].
        FN1. The United States Department of Justice has filed an Amicus Brief.
        42 U.S.C. s 12133 charges the Department with enforcement of Title II of
        the ADA. Pursuant to 42 U.S.C. 12134(a) and 42 U.S.C. 12206(c)(3),
        the Department has issued regulations and a Technical Assistance Manual
        interpreting Title II. See 28 C.F.R. part 35 (1993); The Americans with
        Disabilities Act Title II Technical Assistance Manual (1993).
 Before: MANSMANN, COWEN and McKEE, Circuit Judges.
                         OPINION OF THE COURT
 McKEE, Circuit Judge:
We are asked to decide if the Pennsylvania Department of Public Welfare
("DPW") [FN2] is violating Title II of the Americans with Disabilities Act
(the "ADA" or the "Act"), 42 U.S.C. s 12132, by the manner in which it
operates its attendant care and nursing home programs. Idell S. alleges that
DPW is violating the ADA by requiring that she receive required care services
in the segregated setting of a nursing home rather than through DPW's attendant
care program. That program would allow her to receive those services in her
own home where she could reside with her children. The district court ruled
that DPW is not violating the ADA because it is not discriminating against
Idell S. For the reasons that follow we will reverse.
    FN2. Although Karen F. Snider is the named defendant in this lawsuit, she
    was sued in her capacity as the Secretary of the Pennsylvania Department of
    Public Welfare. We will, therefore, refer to the defendant as the
    Department of Public Welfare ("DPW"), rather than Snider.
                                        I.
 In January of 1994, Idell S. filed an uncontested motion to join a lawsuit
which had *328 previously been filed by Beverly D., and Ilene F., who were
also nursing home residents. [FN3] The suit alleged that DPW had violated
Title II of the ADA by providing services in a nursing home rather than in the
"most integrated setting appropriate" to the plaintiffs' needs, and sought
declaratory and injunctive relief.
    FN3. Helen L., the original plaintiff in this law suit, was a patient at
    Norristown State Hospital when her suit was filed. She asserted a
    constitutional claim against Albert DiDario (the Superintendent of that
    facility) for alleged violations of her Fourteenth Amendment rights for
    failing to place her in an appropriate community setting and for
    unnecessarily maintaining her in Norristown State Hospital. Although she
    alleged a claim under the ADA, she has since been discharged from
    Norristown State Hospital and thereafter pursued only a claim for damages
    for the alleged violation of her constitutional rights. Memorandum
    Opinion, at 15-6.
    In November of 1992, Beverly D. and Ilene F., joined Helen L.'s law suit
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(CITE AS: 46 F.3D 325, *328)
      and an Amended Complaint was filed asserting a claim on their behalf
      against Karen F. Snider, as the Secretary of the Pennsylvania Department of
      Public Welfare. In April of 1993, they filed a motion for a preliminary
      injunction on their ADA claim. After the parties agreed to a Stipulation
      of Facts, the motion for preliminary injunction was converted to one for
      summary judgment, and DPW filed a cross-motion for summary judgment.
 Thereafter, Beverly D. and Ilene F. filed for an uncontested voluntary
dismissal of their claim because they had been discharged from the nursing
home. At the same time, Idell S. moved for summary judgment based upon an
Amended Stipulation of Facts. Prior to ruling on the joinder and voluntary
dismissal motions, the district court issued a Memorandum and Order dated
January 27, 1994, granting summary judgment against Beverly D. and Ilene F. and
in favor of DPW. On February 2, 1994, the district court issued an Order
dismissing Beverly D. and Ilene F. as plaintiffs and adding Idell S. as a
plaintiff. The court also ruled that "[f]or the reasons stated in the
Memorandum filed January 27, 1994, the motion for summary judgment of Idell S.
is denied and judgment is entered in favor of defendants and against ... Idell
S....."
 [1] Idell S. then filed this appeal. [FN4]
        FN4. In the same Memorandum and Order which denied Idell S.'s motion for
      summary judgment, the district court denied a motion for summary judgment
      filed by DiDario and DiDario appealed. DiDario's appeal did not involve
      any questions of law or fact in common with Idell S.'s appeal. On May 13,
      1994, we entered an Order dismissing DiDario's appeal for lack of appellate
      jurisdiction because the district court Order appealed from was not a final
      order.
      Following the issuance of the February 2, 1994 Order granting summary
      judgment in favor of Snider and against Idell S., the district court issued
      a Rule 54(b) Certification and Order on February 8, 1994, directing the
      Clerk to enter final judgment in favor of defendant Snider against Idell
      S. Because Idell S.'s sole claim was disposed of, the certification
      creates a final judgment subject to appeal pursuant to 28 U.S.C. s
      1291. See, Tilden Financial Corp. v. Palo Tire Service, 596 F.2d 604,
      607 (3d Cir.1979).
      Plaintiffs Florence H. and ADAPT were not parties to the summary judgment
      motions in the district court. ADAPT's motion for voluntary dismissal was
      granted by the district court on February 18, 1994.
                                        II.
 Idell S. is 43 years old and the mother of two children ages 22 and 14. [FN5]
In 1973 she contracted meningitis which left her paralyzed from the waist down
and greatly reduced her ability to care for herself. As a result, she has been
a patient at the Philadelphia Nursing Home since December 26, 1989. Idell S.
uses a wheelchair for locomotion and requires assistance with certain
activities of daily living including bathing, laundry, shopping, getting in and
out of bed, and house cleaning. She is able to cook, dress herself (except for
her shoes and socks), attend to her personal hygiene (using a transfer board to
access the toilet) and to her grooming. The parties agree that, although Idell
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S. is not capable of fully independent living, she is not so incapacitated that
she needs the custodial care of a nursing home.
        FN5. The essential facts surrounding this controversy are not in dispute.
       They are contained in an Amended Stipulation of Facts submitted to the
       district court in January of 1994.
 DPW operates two different programs that provide physically disabled persons
with assistance in daily living. DPW funds nursing home residence through the
Medical Assistance program ("Medicaid"), and it operates an "attendant care
program" under 62 Pa.Cons.Stat.Ann. ss 3051-3055 (the "Care *329 Act"). The
attendant care program provides "[t]hose basic and ancillary services which
enable an individual [with physical disabilities] to live in his [/her] home and
community rather than in an institution and to carry out functions of daily
living, self care and mobility." 62 Pa.Cons.Stat.Ann. ss 3052, 3054. DPW's
average cost of caring for a person in a nursing home is $45,000 per year. The
Commonwealth pays 44% of this amount ($19,800) and the difference ($24,200) is
paid by the federal government. DPW's average cost of caring for a person in
the attendant care program is $10,500 per year. That amount is totally borne
by the Commonwealth.
 Homemaker Service of the Metropolitan Area, Inc. ("HSMA") contracts with
DPW to operate an attendant care program. "The [s]ervice [provided by HSMA]
consists of those basic and ancillary services which enable eligible
individuals to live in their own homes and communities rather than in
institutions and to carry out functions of daily living, self-care and
mobility." Amended Stipulation of Facts, p 35. The program thus allows
eligible individuals: "1. [t]o live in the least restrictive environment as
independently as possible; 2. [t]o remain in their homes and to prevent their
inappropriate institutionalization...." Id. at P 36.
 In 1993, HSMA evaluated Idell S. and determined that she was eligible for
attendant care services. However, because of a lack of funding, she was placed
on a waiting list for that program and continues living in a nursing home,
separated from her children. The parties agree that if Idell S. were enrolled
in the attendant care program, nursing home care would be inappropriate. [FN6]
Except for access to skilled nursing care which she neither needs nor wants,
Idell S. receives the same kind of services in the nursing home that the
attendant care program would provide. "DPW has not applied for reimbursement
under the Medical Assistance statute for personal care/attendant care services
in the community," Amended Stipulation of Facts P 41, nor has it "requested
Medical Assistance dollars be available for Attendant Care Services in the
Community." Id. at P 37. Consequently, the Commonwealth continues to spend
approximately $45,000 a year to keep Idell S. confined in a nursing home rather
then spend considerably less to provide her with appropriate care in her own
home.
        FN6. The parties have stipulated that "[t]he setting for the provision of
       attendant care services appropriate to the needs of Idell S. is in the
       community." Amended Stipulation of Facts P 29. The parties further agree
       that "[w]ith attendant care services in the community, nursing home care
       would not be appropriate for Idell S." Id., at P 32.
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(CITE AS: 46 F.3D 325, *329)
 Because she is required to receive services in a nursing home, Idell S. has no
contacts with non-disabled persons other than the staff of the nursing home and
visits from her two children. Idell S. claims that this violates Title II of
the ADA.
                                        III.
 [2][3] The standard of review applicable to a grant of summary judgment is
plenary. Bixler v. Central Pa. Teamsters Health & Welfare Fund, 12 F.3d
1292, 1297 (3d Cir.1993). "On review, the appellate court is required to apply
the same test the district court should have utilized initially." Goodman
v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429
U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). A motion for summary judgment
shall be granted if the court determines "that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter
of law." Fed.R.Civ.P. 56(c). The district court's interpretation of a federal
regulation is a question of law subject to plenary review. ADAPT v.
Skinner, 881 F.2d 1184, 1191 n. 6 (3d Cir.1989).
 The district court ruled that Idell S. was
  [d]enied attendant care services because of a lack of funds. [The record]
does not demonstrate that [she has] been denied funding for attendant care
services because [she] is disabled. [Her] failure to show that [she] has been
excluded from the attendant care services program on the basis of [her]
disability is fatal to [her] claim.
 Memorandum Opinion at 11. We disagree.
                                        A.
 [4] In order to appreciate the scope of the ADA and its attendant
regulations, it is *330 necessary to examine the circumstances leading to
its enactment. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. s
794, was the first broad federal statute aimed at eradicating discrimination
against individuals with disabilities. [FN7] "Section 504 of the
Rehabilitation Act of 1973, [is] commonly known as the civil rights bill of the
disabled." ADAPT v. Skinner, 881 F.2d at 1187. Section 504 now reads in
relevant part:
        FN7. The law developed under section 504 of the Rehabilitation Act is
       applicable to Title II of the ADA. See, Easley v. Snider, 36 F.3d 297
       (3d Cir.1994). See also, 28 C.F.R. s 35.103 ("[T]his part [applying to
       the ADA] shall not be construed to apply a lesser standard than the
       standards applied under title V of the Rehabilitation Act of 1973 (29
       U.S.C. 791)").
 No otherwise qualified individual with a disability ... shall, solely by
reason of her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance....
 29 U.S.C. s 794 (Supp.1994). [FN8] Section 504's sponsors described it as
a response to " 'previous societal neglect' " and introduced it to rectify "the
country's 'shameful oversights' which caused the handicapped to live among
society 'shunted aside, hidden and ignored.' " Alexander v. Choate, 469
U.S. 287, 296, 105 S.Ct. 712, 717, 83 L.Ed.2d 661 (1985).
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        FN8. The general prohibition against disability-based discrimination
      contained in s 504 was first proposed in the 92nd Congress as an amendment
      to Title VI of the Civil Rights Act of 1964, 42 U.S.C. s 2000d et seq.
      Although it was ultimately enacted by the 93rd Congress as part of a
      pending Vocational Rehabilitation Act, its language was patterned after
      other civil rights statutes. Alexander v. Choate, 469 U.S. 287, 296 n.
      13, 105 S.Ct. 712, 717 n. 13, 83 L.Ed.2d 661 (1985). The language of
      section 504 is virtually identical to that of section 601 of Title VI of
      the Civil Rights Act of 1964 that bars discrimination based upon race,
      color or national origin in federally-assisted programs. Consolidated
      Rail Corp. v. Darrone, 465 U.S. 624, 626, 104 S.Ct. 1248, 1250, 79 L.Ed.2d
      568 (1984).
      As originally enacted, section 504 referred to a "handicapped" individual
      being discriminated against solely by reason of a "handicap". The change
      in nomenclature from "handicap" to "disability" reflects Congress'
      awareness that individuals with disabilities find the term "handicapped"
      objectionable. Burgdorf, The Americans with Disabilities Act: Analysis
      and Implication of a Second-Generation Civil Rights Statute, 26 Harv.C.R. --
      C.L.Rev. 413, 522 n. 7 (1991).
 On April 26, 1976 then-President Gerald Ford signed Executive Order No.
11914, 3 C.F.R. 117 (1977), which authorized the Department of Health,
Education and Welfare to coordinate enforcement of section 504 and which
required the Secretary of HEW to promulgate regulations for enforcement. [FN9]
Subsequently, HEW's section 504 rulemaking and enforcement authority was
transferred to the Department of Health and Human Services ("HHS"). See 20
U.S.C. s 3508.
        FN9. The Rehabilitation Act did not mandate that any regulations be
      promulgated. Accordingly the Department of Health, Education and Welfare
      (now the Department of Health and Human Services), did not promulgate any
      regulations to implement that Act. Southeastern Community College v.
      Davis, 442 U.S. 397, 404 n. 4, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979).
 On November 2, 1980, President Carter signed Executive Order No. 12250, 45
Fed.Reg. 72995, entitled "Leadership and Coordination of Nondiscrimination
Laws". That Executive Order transferred HHS's coordination and enforcement
authority to the Attorney General. Section 1-105 of that Executive Order
provided that the HHS guidelines "shall be deemed to have been issued by the
Attorney General pursuant to this Order and shall continue in effect until
revoked or modified by the Attorney General." Thereafter, the Department of
Justice adopted the HHS coordination and enforcement regulations and
transferred them from 45 C.F.R. part 84 to 28 C.F.R. part 41, 46 Fed.Reg.
40686 (the "coordination regulations.") The section 504 coordination
regulations begin by stating that the purpose of 28 C.F.R. part 41 is to
"implement Executive Order 12250, which requires the Department of Justice to
coordinate the implementation of section 504 of the Rehabilitation Act of
1973." 28 C.F.R. s 41.1. A subsequent section requires all federal
agencies to issue regulations "to implement section 504 with respect to
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programs and activities to which it provides assistance." 28 C.F.R. s
41.4. The coordination regulations contain a separate section which lists a
number of general prohibitions *331 against disability-based
discrimination. 28 C.F.R. s 41.51. That section mandates that all
recipients of federal financial assistance "shall administer programs and
activities in the most integrated setting appropriate to the needs of qualified
handicapped persons." 28 C.F.R. s 41. 51(d).
 Although Section 504 has been called "the cornerstone of the civil
rights movement of the mobility-impaired", ADAPT v. Skinner, 881 F.2d at
1205 (3d Cir.1989) (concurring opinion), its shortcomings and deficiencies
quickly became apparent. See, e.g., Cook, The Americans with Disabilities
Act: The Move to Integration, 64 Temp.L.Rev. 393, 394-408 (1991) (The
Rehabilitation Act and its regulations have been practically a dead letter as a
remedy for segregated public services). One commentator has written that the
weaknesses of section 504 arise from its statutory language, [FN10] the limited
extent of its coverage, inadequate enforcement mechanisms and erratic judicial
interpretations. Burgdorf, The Americans with Disabilities Act: Analysis and
Implications of a Second-Generation Civil Rights Statute, 26 Harv.C.R. --
C.L.L.Rev. 413, 431 (1991).
        FN10. We have also noted that section 504 "is both ambiguous and lacking
      in specifics." Disabled in Action of Pennsylvania v. Sykes, 833 F.2d
      1113, 1117 (3d Cir.1987), cert. denied, 485 U.S. 989, 108 S.Ct. 1293, 99
      L.Ed.2d 503 (1988).
 Toward the end of the 1980's the United States Senate and the House of
Representatives both recognized that then current laws were "inadequate" to
combat "the pervasive problems of discrimination that people with disabilities
are facing." S.Rep. No. 116, 101st Cong., 1st Sess. 18 (1989); H.R.Rep. No.
485 (II), 101st Cong., 2d Sess. 47 (1990). The Senate recognized the need for
"omnibus civil rights legislation" for the disabled. S.Rep. No. 116, 101st
Cong., 1st Sess. 19 (1989). Similarly, the House addressed the need for
legislation that "will finally set in place the necessary civil rights
protections for people with disabilities." H.R.Rep. No. 485(II), 101st Cong.,
2d Sess. 40 (1990). Both branches of Congress concluded:
 [T]here is a compelling need to provide a clear and comprehensive national
mandate for the elimination of discrimination against individuals with
disabilities and for the integration of persons with disabilities into the
economic and social mainstream of American life. Further, there is a need to
provide clear, strong, consistent, enforceable standards addressing
discrimination against individuals with disabilities.
S.Rep. No. 116, 20; H.R.Rep. No. 485(II), 50 (emphasis added). It was
against this backdrop that the ADA was enacted. [FN11]
       FN11. For a concise history of the ADA's "tortuous legislative journey",
      see Jones, Overview and Essential Requirements of the Americans with
      Disabilities Act, 64 Temp.L.Rev. 471, 472-475 (1991).
                                B.
Title II of the ADA, 42 U.S.C. ss 12131-12134, incorporates the "non-
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(CITE AS: 46 F.3D 325, *331)
discrimination principles" of section 504 of the Rehabilitation Act [FN12] and
extends them to state and local governments. Easley v. Snider, 36 F.3d 297,
ILLEGIBLE (3d Cir. 1994). Section 202 of Title II provides:
        FN12. See 28 C.F.R. s 35.103.
   [N]o qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.
 42 U.S.C. s 12132. The Act directs the Attorney General to promulgate
regulations necessary to implement Title II. See 42 U.S.C. s 12134(a). The
Act further commands that those regulations "be consistent with this chapter
and with the coordination regulations under part 41 of title 28, Code of
Federal Regulations ... applicable ... [under s 504 of the Rehabilitation Act
of 1973]." 42 U.S.C. s 12134(b). Accordingly, the regulations that the
Department of Justice promulgated under Title II are patterned after the
section 504 coordination regulations.
 [5] [6] Because Title II was enacted with broad language and directed
the Department of Justice to promulgate regulations as set forth above, the
regulations which the Department promulgated are entitled to substantial
deference. Blum v. Bacon, 457 U.S. *332 132, 141, 102 S.Ct. 2355, 2361,
72 L.Ed.2d 728 (1982). ("[T]he interpretation of [the] agency charged with the
administration of [this] statute is entitled to substantial deference.")
"[C]onsiderable weight should be accorded to an executive department's
construction of a statutory scheme it is entrusted to administer." Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104
S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). Unless the regulations are
"arbitrary, capricious or manifestly contrary to the statute", the agency's
regulations are "given controlling weight". Chevron, U.S.A., Inc., 467 U.S.
at 844, 104 S.Ct. at 2782.
 [7] [8] Moreover, because Congress mandated that the ADA regulations be
patterned after the section 504 coordination regulations, the former
regulations have the force of law. When Congress re-enacts a statute and
voices its approval of an administrative interpretation of that statute, that
interpretation acquires the force of law and courts are bound by the
regulation. United States v. Board of Comm'rs of Sheffield, Alabama, 435
U.S. 110, 134, 98 S.Ct. 965, 980, 55 L.Ed.2d 148 (1978). The same is true when
Congress agrees with an administrative interpretation of a statute which
Congress is re-enacting. See Don E. Williams Co. v. Commissioner, 429 U.S.
569, 574-577, 97 S.Ct. 850, 854-55, 51 L.Ed.2d 48 (1977). Although Title II of
the ADA is not a re-enactment of section 504, it does extend section 504's
anti-discrimination principles to public entities. Furthermore, the
legislative history of the ADA shows that Congress agreed with the coordination
regulations promulgated under section 504. See, e.g., S.Rep. No. 116, 101st
Cong., 1st Sess. 44 (1989) ("The first purpose of [Title II] is to make
applicable the prohibition against discrimination on the basis of disability,
currently set out in regulations implementing section 504 of the Rehabilitation
Act of 1973, to ... state and local governments ...."); H.R.Rep. No. 485(III),
101st Cong., 2d. Sess. 50. ("The general prohibitions set forth in the section
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(CITE AS: 46 F.3D 325, *332)
504 regulations are applicable to all programs and activities in Title II").
[9] Idell S.'s challenge to DPW's treatment of her is based upon 28
C.F.R. s 35.130(d). That ADA regulation states that: "A public entity shall
administer services, programs, and activities in the most integrated setting
appropriate to the needs of qualified individuals with disabilities." This
regulation is almost identical to the section 504 integration regulation which
has been in effect since 1981. See 28 C.F.R. s 41.51(d) (1981). [FN13] As
Congress has voiced its approval of that coordination regulation, 28
C.F.R. s 35.130(d) has the force of law.
        FN13. The section 504 integration regulation had been in effect for 8
        years when, in 1989, the 101st Congress began holding hearings on the
        proposed ADA.
                                C.
 In enacting the ADA, Congress found that "[h]istorically, society has tended
to isolate and segregate individuals with disabilities, and ... such forms of
discrimination ... continue to be a serious and pervasive social problem."
42 U.S.C. s 12101(a)(2) (emphasis added). Congress also concluded that
"[i]ndividuals with disabilities continually encounter various forms of
discrimination, including ... segregation....", 42 U.S.C. s
12101(a)(5) (emphasis added). The House Report on the ADA noted that: "Unlike
the other titles in this Act, title II does not list all of the forms of
discrimination that the title is intended to prohibit. Therefore, the purpose
of [section 204] is to direct the Attorney General to issue regulations setting
forth the forms of discrimination prohibited." H.R.Rep. No. 485(III), 101st
Cong., 2d Sess., 52 (1990) (emphasis added).
 In furtherance of the objective of eliminating discrimination against
the disabled, Congress stated that "the Nation's proper goals regarding
individuals with disabilities are to assure equality of opportunity, full
participation, independent living, and economic self-sufficiency for such
individuals[.]" 42 U.S.C. s 12101(a)(8) (emphasis added). Similarly, in
response to its mandate, the Department of Justice stated "[i]ntegration is
fundamental to the purposes of the Americans with Disabilities Act." 28 C.F.R.
Part *333 35, App. A. s 35.130. [FN14] Accordingly, the integration mandate
of s 35.130(d) is contained under 28 C.F.R. s 35.130 which is entitled
"[g]eneral prohibitions against discrimination."
        FN14. We note that this is consistent with the Fair Housing Act of 1988,
        52 U.S.C. s 3604(f), another predecessor of the ADA. In enacting that
        act, the House Judiciary Committee stated "[t]he Fair Housing Amendments
        Act, like Section 504 of the Rehabilitation Act of 1973, as amended, is a
        clear pronouncement of a national commitment to end the unnecessary
        exclusion of persons with handicaps from the American mainstream." H.Rep.
        No. 711, 100th Cong., 2d Sess., 18 (1988), reprinted in 1988 U.S.C.C.A.N.
        2173, 2179 (emphasis added; footnote omitted).
 Thus, the ADA and its attendant regulations clearly define unnecessary
segregation as a form of illegal discrimination against the disabled. [FN15]
Accordingly, the district court erred in holding that the applicable provisions
                        Copr. (C) West 1995 No claim to orig. U.S. govt. works
01-07024
46 F.3d 325                                                             PAGE  12
(CITE AS: 46 F.3D 325, *333)
of the ADA "may not be invoked unless there is first a finding of
discrimination." Memorandum Opinion at 12.
      FN15. Even if it could be argued that the Act and its regulations are
     ambiguous on this point, the heading of the regulation at issue here, and
     the legislative history of the ADA confirm that Congress intended to define
     unnecessary segregation of the disabled as a form of illegal
     discrimination. See Crandon v. United States, 494 U.S. 152, 158, 110
     S.Ct. 997, 1001, 108 L.Ed.2d 132 (1990) (Where there is ambiguity "[i]n
     determining the meaning of [a] statute, we look not only to the particular
     statutory language, but to the design of the statute as a whole and to its
     object and policy."); See also INS v. Center for Immigrants' Rights,
     502 U.S. 183, 189-91, 112 S.Ct. 551, 556, 116 L.Ed.2d 546 (1991) (the title
     of a regulation or section is relevant to its interpretation).
                                        D.
 In reaching its conclusion, the district court relied in large part upon
Williams v. Secretary of the Executive Office of Human Services, 414 Mass.
551, 609 N.E.2d 447 (1993). [FN16] In Williams, the Massachusetts Supreme
Court held, inter alia, that the ADA does not require a specific proportion of
that state's mental health service placements to be in integrated housing. The
court stated:
      FN16. The district court also cited Pinnock v. International House of
     Pancakes, 844 F.Supp. 574, 582-3 (S.D.Ca.1993), to support its ruling that
     28 C.F.R. s 35.130(d) is not applicable unless there is a specific
     finding of discrimination. Id. at 12. However, Pinnock concerned an
     action under Title III of the ADA (public accommodations) and the
     discussion cited in the district court's opinion dealt with the Title III
     integration regulation which the Pinnock court held is "intended to
     prevent segregation based on fears and stereotypes about persons with
     disabilities." Id. Idell S.'s suit does not implicate Title III.
 The focus of Federal disability discrimination statutes is to address
discrimination in relation to nondisabled persons, rather than to eliminate all
differences in levels or proportions of resources allocated and services
provided to individuals with differing types of disabilities. In other words,
the purpose of the ADA is to provide an equal opportunity for disabled
citizens.
 Williams, 609 N.E.2d at 559. (citations omitted).
 We are not persuaded by the analysis in Williams. That court based its
decision in part upon our own decision in Clark v. Cohen 794 F.2d 79 (3rd
Cir. 1986), cert. denied, 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 404 (1986)
and the Supreme Court's decision in Alexander v. Choate, supra. Our holding
in Clark is not based upon the ADA nor section 504, but upon the Due Process
Clause of the Fourteenth Amendment. There, a forty-five year old, mentally
retarded woman had been committed to a state-run mental institution since she
was fifteen years old. She filed a complaint against the Commonwealth of
Pennsylvania and the County of Philadelphia alleging various Constitutional
violations as well as a violation of section 504 of the Rehabilitation Act.
                        Copr. (C) West 1995 No claim to orig. U.S. govt. works
01-0702546 F.3d 325                                                             PAGE 13
(CITE AS: 46 F.3D 325, *333)
 She alleged that her confinement was illegal and sought placement in a
community-living arrangement supervised by the County of Philadelphia. Clark
based her Rehabilitation Act claim upon the fact that the Commonwealth was
providing community living arrangements to persons with disabilities similar to
hers while requiring her to remain in an institution.
 The district court ruled that Clark had not established disability-based
discrimination, but ruled that her confinement was unconstitutional. *334
[FN17] Clark v. Cohen, 613 F.Supp. 684, 696-705 (E.D.Pa.1985). In
affirming the district court's judgment we stated "[s]ection 504 prohibits
discrimination against the handicapped in federally funded programs [,] [i]t
imposes no affirmative obligations on the states to furnish services."
Clark v. Cohen, 794 F.2d at 85, n. 3. However, we were not there concerned
with the integration mandate of the ADA or the Rehabilitation Act. Plaintiff
in Clark relied primarily upon section 504 and 45 C.F.R. ss
84.4(b)(1)(i)-(iv). The prohibitions contained in the later regulations are
under a regulation which states "Discriminatory actions prohibited." 45
C.F.R. s 84.4(b)(1). That regulation does not state that the actions set forth
are prohibited per se. Rather, it states that recipients of federal funds may
not engage in the enumerated acts "on the basis of handicap." 45 C.F.R. s
84.4(b)(1). Thus, the section 504 inquiry in Clark had to include a
determination of the basis for the allegedly discriminatory actions. The
language of 28 C.F.R. s 35.130(d) is very different.
         FN17. Clark had been continuously confined even though the responsible
        professionals at the institution admitted that her condition did not
        warrant confinement, and her case had never been reviewed by anyone with
        authority to release her.
 In addition, we note that the court in Williams was troubled by
difficulties of proof that are not present here. The plaintiffs in Williams
had attempted to use a statistical analysis to establish that disabled persons
were more likely to be adversely affected by the state's policy than non-
disabled persons. The court rejected that proof stating:
 The plaintiffs' use of a system-wide percentage of DMH clients ... ignores
the fact that the ADA does not mandate particular system-wide percentages for
allocations of community placements. Further, the plaintiffs' figures did not
show that any particular client's placement was inappropriate, or that they
themselves were inappropriately placed in a segregated setting ... A mere
percentage, standing alone, does not establish a presumption of inappropriate
placement.
 Id., at 414 Mass. 551, 557-58, 609 N.E.2d 447, 453. We encounter no such
problem as the parties have stipulated that Idell S.'s placement would be
inappropriate if there was an opening in the attendant care program. [FN18]
         FN18. The precise question raised by Idell S. has not previously been
        decided by an appellate court. Similarly, the cases from other circuits
        that DPW relies upon to support its assertion that neither s 504 nor Title
        II of the ADA require community care were not decided on the basis of 28
        C.F.R. s 35.130(d). Brief of Appellee, at 10-11.
                        Copr. (C) West 1995 No claim to orig. U.S. govt. works
01-0702646 F.3d 325                                                             PAGE  14
(CITE AS: 46 F.3D 325, *334)
 [10] The court in Williams was also troubled by pragmatic concerns of
granting relief. The court stated that "any interpretation of the ADA must
consider the same practicalities that the United States Supreme Court
acknowledged in its examination of the Federal Rehabilitation Act. See, e.g.,
Alexander v. Choate, ... ". Id. at 557, 609 N.E.2d at 453 (citations
omitted). Choate did not involve 28 C.F.R. s 35.130(d). The claim there
was based upon plaintiffs' assertion that Tennessee's planned cutbacks in
Medicaid reimbursement for in-patient hospital stays would disproportionately
disadvantage handicapped persons in violation of section 504. However, to the
extent that Choate is relevant to our analysis, it supports our holding that
Congress did not intend to condition the protection of the ADA upon a finding
of "discrimination."
 In Choate, the Supreme Court emphasized the factors which led to
enactment of section 504.
 Discrimination against the handicapped was perceived by Congress to be most
often the product, not of invidious animus, but rather of thoughtlessness and
indifference--of benign neglect. Thus, Representative Vanik, introducing the
predecessor to s 504 in the House described the treatment of the handicapped as
one of the country's 'shameful oversights' which caused the handicapped to live
among society 'shunted aside, hidden, and ignored.' Similarly, Senator
Humphrey ... asserted that, 'we can no longer tolerate the invisibility of the
handicapped in America....' And Senator Cranston ... described the Act as a
response to 'previous societal neglect' ... Federal agencies and commentators
on the plight of the handicapped *335 similarly have found that
discrimination against the handicapped is primarily the result of apathetic
attitudes rather than affirmative animus.
 469 U.S. at 295, 105 S.Ct. at 717-18 (emphasis added) (citations and
footnotes omitted). [FN19]
         FN19. The court ruled that the challenged cutbacks were neutral on their
        face and that, therefore, plaintiffs could not recover. However, the court
        noted that a plaintiff need not establish that there has been an intent to
        discriminate in order to prevail under section 504. 469 U.S. at 295-
        297, 105 S.Ct. at 717-18.
 [11] Because the ADA evolved from an attempt to remedy the effects of
"benign neglect" resulting from the "invisibility" of the disabled, Congress
could not have intended to limit the Act's protections and prohibitions to
circumstances involving deliberate discrimination. Such discrimination arises
from "affirmative animus" which was not the focus of the ADA or section 504.
The Supreme Court elaborates upon this distinction noting that, although
discrimination against the disabled normally results from "thoughtlessness"
and "indifference," not "invidious animus", such "animus" did exist. 469
U.S. at 295 n. 12, 105 S.Ct. at 717 n. 12. ("To be sure, well-cataloged
instances of invidious discrimination against the handicapped do exist").
However, that was not the focus of section 504, or the ADA. Rather, the ADA
attempts to eliminate the effects of that "benign neglect," "apathy," and
"indifference." The 504 coordination regulations, and the ADA "make clear that
the unnecessary segregation of individuals with disabilities in the provision
of public services is itself a form of discrimination within the meaning of
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01-0702746 F.3d 325                                                             PAGE  15
(CITE AS: 46 F.3D 325, *335)
those statutes, independent of the discrimination that arises when individuals
with disabilities receive different services than those provided to individuals
without disabilities." Brief of Amicus at 7.
 [12] 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. [FN20] "[M]uch of the
conduct that Congress sought to alter in passing the Rehabilitation Act [and
the ADA] would be difficult if not impossible to reach were the Act[s]
construed to proscribe only conduct fueled by a discriminatory intent."
Alexander v. Choate, 469 U.S. at 296-97, 105 S.Ct. at 718. Thus, we will
not eviscerate the ADA by conditioning its protections upon a finding of
intentional or overt "discrimination."
         FN20. However, as discussed infra, the Act does not require fundamental
        changes in the nature of a service or program.
                                IV.
 [13] DPW quotes Traynor v. Turnage, 485 U.S. 535, 548, 108 S.Ct.
1372, 1382, 99 L.Ed.2d 618 (1988) to argue that there can be no improper
discrimination here because the services at issue are only provided to persons
with disabilities. See Brief of Appellee at 25-6. However, Traynor is
easily distinguished. Traynor concerned the legality of 38 U.S.C.A. s
1662 which allowed for an extension of time to use veteran's benefits if a
disability precluded the veteran from using the benefits within the time frame
established by law. However, the veteran only qualified if he/she could
establish "a physical or mental disorder which was not the result of [his/her]
own willful misconduct." Id. at 535, 108 S.Ct. at 1372. Traynor was an
honorably discharged veteran who suffered from alcoholism unrelated to any
psychiatric disorder. Under applicable V.A. regulations, such alcoholism was
defined as "willful misconduct" thus precluding him from relying upon his
"disorder" to enlarge the period of time that he could use his benefits.
Traynor challenged this limitation on behalf of himself, and other similarly
situated veterans.
 In denying the claim, the court noted that section 504 had been part of the
amendments to the Rehabilitation Act which were passed in 1978 and which
extended the scope of that legislation to "any program or activity conducted by
any Executive Agency." Id. at 547, 108 S.Ct. at 1381. The court noted that
 petitioners can prevail under the Rehabilitation Act claim only if the 1978
legislation can be deemed to have implicitly repealed the willful misconduct
provision of the 1977 *336 legislation or forbade the Veterans'
Administration to classify primary alcoholism as willful misconduct. They must
thereby overcome the cardinal rule ... that repeals by implication are not
favored.
 Id. (citations and internal quotes omitted). The court reasoned that it
was not at liberty to assume that the subsequent enactment of the
Rehabilitation Act implicitly repealed the prior act unless "such a
construction is absolutely necessary ... in order that [the] words [of the
latter statute] shall have any meaning at all." Id. (brackets in
original). These two enactments were "capable of co-existence" as the "willful
misconduct" provision did not undermine the central purpose of section 504.
                        Copr. (C) West 1995 No claim to orig. U.S. govt. works
01-0702846 F.3d 325                                                             PAGE  16
(CITE AS: 46 F.3D 325, *336)
 That purpose was to "assure that handicapped individuals receive 'evenhanded
treatment' in relation to nonhandicapped individuals." Id. at 548, 108
ILLEGIBLE Ct. at 1382 (citing Alexander v. Choate).
The court then noted that the program at issue did not treat handicapped
persons less favorably than nonhandicapped persons as only handicapped persons
could apply for an extension of time. "In other words s 1662(a)(1) merely
provides a special benefit to disabled veterans who bear no responsibility for
their disabilities that is not provided to other disabled veterans or to any
able-bodied veterans." Id. The court then stated "[t]here is nothing in
the Rehabilitation Act that requires that any benefit extended to one category
of handicapped persons also be extended to all other categories of handicapped
persons." Id. However, the court was not concerned with the application of
the integration mandate, or anything analogous to it, and the holding is not
germane to our analysis. As noted above, Congress has stated that
"discrimination against individuals with disabilities persists in such critical
areas as ... institutionalization." 42 U.S.C. s 12101(3). If Congress were
only concerned about disparate treatment of the disabled as compared to their
nondisabled counterparts, this statement would be a non sequitur as only
disabled persons are institutionalized.
DPW also relies upon Johnson v. Thompson, 971 F.2d 1487, 1494 (10th
Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1255, 122 L.Ed.2d 654
(1993). ("[W]here the handicapping condition is related to the condition(s)
being treated, it will rarely, if ever, be possible to say ... that a
particular decision was 'discriminatory'") (citation omitted). See Brief of
Appellee at 7. Johnson is also inapposite. There, the court was asked to
hold that different levels of medical treatment given to differently classified
infants affected with spina bifida violated section 504. The case did not
involve any claim that the integration mandate of 504 or the ADA had been
violated. [FN21]
         FN21. See Martin v. Voinovich, 840 F.Supp. 1175, 1191-92 (S.D.Ohio
        1993) (Under s 504 and the ADA, discrimination between people with
        different disabilities may be actionable).
  DPW also attempts to defeat Idell S.'s claim by labelling it a claim for
 "community care" or "deinstitutionalization"--something which the ADA does not
require. [FN22] See Brief of Appellee at 10. Idell S. is not asserting a
right to community care or deinstitutionalization per se. She properly
concedes that DPW is under no obligation to provide her with any care at all.
She is merely claiming that, since she qualifies for DPW's attendant care
program, DPW's failure to provide those services in the "most integrated
setting appropriate" to her needs (without a proper justification) violates the
ADA.
        FN22. See Pennhurst State School and Hospital v. Halderman, 451 U.S. 1,
       24, 101 S.Ct. 1531, 1543, 67 L.Ed.2d 694 (1981) (deinstitutionalization
       involves "massive" changes in a state's programs and is not required absent
       a clear statutory command).
                                        V.
                        Copr. (C) West 1995 No claim to orig. U.S. govt. works
01-07029
46 F.3d 325                                                             PAGE 17
(CITE AS: 46 F.3D 325, *336)
 DPW's obligation to provide appropriately integrated services is not absolute
as the ADA does not require that DPW make fundamental alterations in its
program.
 A public entity shall make reasonable modifications in policies, practices,
or procedures when the modifications are necessary to avoid discrimination on
the basis of disability, unless the public entity can demonstrate that making
the modifications would fundamentally alter the nature of the service, program,
or activity.
 *337 28 C.F.R. s 35.130(b)(7). In Southeastern Community College v.
Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), and Alexander v.
Choate, supra, the Supreme Court attempted to define the limits of the
requirements under the ADA.
 In Southeastern, Southeastern Community College refused to admit an
applicant to its nursing school program because of her hearing impairment. The
college argued that a registered nurse had to meet certain physical
requirements, and asserted that Davis' disability compromised her ability to
effectively participate in critical training programs and safely care for
patients. Davis countered that section 504 required that the school take
certain measures to allow her to enjoy the benefits of the nursing program.
The Court disagreed and held that section 504 imposes no obligation to engage
in "affirmative action." Id. at 411, 99 S.Ct. at 2369. In Choate, the
Court explained that "affirmative action" as used in Davis "[r]eferred to
those 'changes,' 'adjustments,' or 'modifications' to existing programs that
would be 'substantial' or that would constitute 'fundamental alteration[s]' in
the nature of a program ...,' rather than to those changes that would be
reasonable accommodations." (citations omitted). Id., 469 U.S. at 300 n.
20, 105 S.Ct. at 720 n. 20.
 In attempting to discern what is required by the language of section
ILLEGIBLE04, we must view it in light of two countervailing legislative concerns:
(1) effectuation of the statute's objectives of assisting the handicapped; and (2)
the need to impose reasonable boundaries in accomplishing this legislative
purpose. See Alexander v. Choate.
 ADAPT v. Skinner, 881 F.2d at 1191. "The test to determine the
reasonableness of a modification is whether it alters the essential nature of
the program or imposes an undue burden or hardship in light of the overall
program." Easley v. Snider, 36 F.3d at 305.
 Here, DPW agrees that "the most integrated setting appropriate to [Idell S.]"
is her home but argues that it cannot comply with Idell S.'s request for the
"most integrated services appropriate" absent a fundamental alteration of its
program. Brief of Appellee, at 13-17. The only explanation DPW has offered
for this position is its assertion that funding for nursing home and attendant
care for fiscal year 1993-1994 has already been appropriated by the General
Assembly of Pennsylvania and that it cannot, under state constitutional law,
shift funds from the nursing care appropriation to attendant care. Brief of
Appellee, at 14-15. However, Idell S. is not asking that DPW alter its
requirements for admission to the program, nor is she requesting that the
substance of the program be altered to accommodate her. [FN23] Even if we
assume that DPW cannot (or will not) cause the necessary shift of funds under
its current procedures and practices, it is clear from this record that
providing attendant care services to Idell S. in her home would not be a
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01-0703046 F.3d 325                                                             PAGE  18
(CITE AS: 46 F.3D 325, *337)
fundamental alteration of the attendant care program or the nursing home
program.
         FN23. See Easley v. Snider, supra (The ADA does not require that the
        Commonwealth extend its attendant care services to physically disabled
        individuals who were not mentally alert as doing so would result in an
        unreasonable modification of the program).
 As previously noted, DPW administers its attendant care program under the Care
Act, 62 Pa.Stat.Ann. s 3052 et seq. (1994). That Act states:
  The General Assembly declares it is the policy of this Commonwealth that:
  (1) The increased availability of attendant care services for adults will
enable them to live in their own homes and communities.
  (2) Priority recipients of attendant care services under this act shall be
those mentally alert but severely physically disabled who are in the greatest
risk of being in an institutional setting.
 We have previously noted that the attendant care program
  enables physically disabled persons to "better control their lives and reach
maximum independence when they are able to direct their own personal care and
manage their home, business, and social lives. Attendant [c]are in
Pennsylvania continues to be seen as part of the wider independent living
movement whose fundamental goals are to enable the physically disabled to: a)
maintain a less restrictive and/or independent *338 living arrangement; b)
maintain employment; and/or c) remain in their homes."
 Easley, 36 F.3d at 304. This is remarkably similar to the policy and
purpose of the ADA in general, and 28 C.F.R. s 35.130(d) in particular. We
fail to see how compliance with 28 C.F.R. s 35.130(d) requires DPW to
fundamentally alter its attendant care program. Nor do we perceive how the
requested moderation would place an undue burden on DPW. On the contrary, the
relief that Idell S. is requesting merely requires DPW to fulfill its own
obligations under state law. This is not "unreasonable."
 As with Section 504 of the Rehabilitation Act, integrated services are
essential to accomplishing the purposes of title II [of the ADA]. As stated by
Judge Mansmann in Adapt [ADAPT] v. Skinner, the goal [is to] eradicate the
"invisibility of the handicapped" ... [s]eparate-but-equal services do not
accomplish this central goal and should be rejected.
 The fact that it is more convenient, either administratively or fiscally, to
provide services in a segregated manner, does not constitute a valid
justification for separate or different services under Section 504 of the
Rehabilitation Act, or under [title II of the ADA].
H.R.Rep. 485(III), 101st Cong.2d Sess. 50. reprinted in 1990 U.S.C.C.A.N. at
473, (emphasis added).
 Ironically, DPW asserts a justification of administrative convenience to
resist an accommodation which would save an average of $34,500 per year, would
allow Idell S. to live at home with her children, and which would not require a
single substantive change in its attendant care or nursing home programs.
DPW's resistance to such an accommodation is totally inconsistent with
Congress' pronouncement that "[t]he Nation's proper goals regarding individuals
with disabilities are to assure equality of opportunity, full participation,
[and] independent living...." 42 U.S.C. s 12101(a)(8).
                        Copr. (C) West 1995 No claim to orig. U.S. govt. works
01-0703146 F.3d 325                                                             PAGE  19
(CITE AS: 46 F.3D 325, *338)
 DPW asserts that it cannot change Idell S.'s care because the nursing home and
attendant care programs are currently funded on two separate lines of its
budget. [FN24] The General Appropriations Act. Act 1-A of 1993, at 104, 115.
DPW asserts that "[u]nder state constitutional law, Secretary Snider cannot
move funds from one line to another." See Brief of Appellee at 14-15 (citing
Ashbourne School v. Commonwealth, Department of Education, 43 Pa.Cmwlth.
593, 403 A.2d 161 (1979). It is not now up to us to invent a funding mechanism
whereby the Commonwealth can properly finance its nursing home and attendant
care programs. However, the ADA applies to the General Assembly of
Pennsylvania, and not just to DPW. DPW can not rely upon a funding mechanism
of the General Assembly to justify administering its attendant care program in
a manner that discriminates and then argue that it can not comply with the ADA
without fundamentally altering its program. We dismissed a similar contention
in Delaware Valley Citizen's Council for Clean Air v. Commonwealth of
Pennsylvania, 678 F.2d 470 (3rd Cir.1982). There, plaintiff sought to hold
certain members of the executive branch of state government in contempt for
failing to comply with a consent decree in which the officials had agreed to
establish an admissions inspection program. After the consent decree had been
executed, the General Assembly enacted legislation which specifically
"prohibited the expenditure of state funds by the executive branch for the
implementation of [that program]. Although the Governor vetoed the bill, the
legislature overrode the veto and enacted [the legislation] into law." Id.
at 473-74. Thereafter, the Department of Transportation "ceased all efforts
toward implementing the [program]." Id. There, as here, the defendants
relied upon Ashbourne, to argue that their hands were tied by the power of
appropriations vested in the General Assembly. We rejected that position.
"These arguments disregard the fact that the Commonwealth itself was and
remains bound by the consent decree." Delaware Valley Citizens' Council,
ILLEGIBLE78 F.2d at 475. We stated:
        FN24. This, of course, does not explain why DPW has not changed her status
       in a new budget year.
 Because the Commonwealth, including all its branches, is bound by the
decree, the argument of inability to comply rings hollow. Even if the
executive branch defendants were physically or legally incapable *339 of
complying with the decree, those Commonwealth officials sitting in the General
Assembly certainly are not incapable of insuring the Commonwealth's compliance.
678 F.2d at 475-76. The same applies here: since the Commonwealth has
chosen to provide services to Idell S. under the ADA, it must do so in a manner
which comports with the requirements of that statute.
                                VI.
 [14] [15] Generally, an appellate court reversing a grant of summary judgment
will not direct the district court to enter summary judgment in favor of
appellant because a genuine issue of material fact will remain. First
National Bank v. Lincoln National Life Insurance Co., 824 F.2d 277, 281 (3d
Cir.1987). However, when an appeal concerns only issues of law, we are free to
enter an order directing the district court to enter summary judgment in favor
of the appellant. Kreimer v. Bureau of Police for the Town of Morristown,
958 F.2d 1242, 1250 (3d Cir.1992).
                        Copr. (C) West 1995 No claim to orig. U.S. govt. works
01-0703246 F.3d 325                                                             PAGE 20
(CITE AS: 46 F.3D 325, *339)
 Here, there are no genuine issues of material fact because of the Amended
Stipulation entered into by the parties. The only issue that remains is the
interpretation and application of the ADA and 28 C.F.R. s 130.35(d).
Accordingly, we will vacate the order granting summary judgment in favor of
defendant and remand this case to the district court for entry of an order
granting summary judgment to Idell S. and against DPW.
 Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG,
HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE and SAROKIN,
Circuit Judges.
                        SUR PETITION FOR REHEARING
                                Feb. 24, 1995
 The petition for rehearing filed by appellee in the above entitled case having
been submitted to the judges who participated in the decision of this court and
to all other available circuit judges of the circuit in regular active service,
and no judge who concurred in the decision having asked for rehearing, and a
majority of the circuit judges of the circuit in regular active service not
having voted for rehearing by the court in banc, the petition for rehearing is
denied. Judges Becker, Stapleton, Hutchinson, Alito and Roth would grant
rehearing.
END OF DOCUMENT
                        Copr. (C) West 1995 No claim to orig. U.S. govt. works
01-07033                            No. 94-1243
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                         HELEN L., et al.,
                                IDELL S., Plaintiff-Appellant
                                v.
                     ALBERT L. DIDARIO, et al.,
                                Defendants-Appellees.
             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
            BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
                                                DEVAL L. PATRICK
                                                  Assistant Attorney General
                                                DAVID K. FLYNN
                                                REBECCA K. TROTH
                                                  Attorneys
                                                  Department of Justice
                                                  P.O. Box 66078
                                                  Washington, D.C. 20035-6078
                                                  (202) 514-4541
01-07034                        TABLE OF CONTENTS
                                                               PAGE
STATEMENT OF JURISDICTION . . . . . . . . .. . . . . . . . . . . . . . . . . 1
STATEMENT OF THE ISSUE AND STANDARD OF REVIEW . . . . . . . . . . . . . . . . 1
INTEREST OF THE UNITED STATES . . . . . . . . .. . . . . . . . . . . . . . . 2
STATEMENT OF RELATED CASES AND PROCEEDINGS  . . . . . . . . . . . . . . .  . 2
STATEMENT OF THE CASE   . . . . . . . .. . . . . . . . . . . . . . . . . . . 2
        A. Procedural History   . . . . . . .. . . . . . . . . . . . . . . . 2
        B. Facts . . . . . . . .  . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF ARGUMENT . . . . . . . . .. . . . . . . . . . . . . . . . . . . . 6
ARGUMENT:
        PENNSYLVANIA'S DEPARTMENT OF PUBLIC WELFARE VIOLATED
        TITLE II OF THE ADA BY REFUSING TO PROVIDE SERVICES TO
        IDELL S. IN THE MOST INTEGRATED SETTING APPROPRIATE TO
        HER NEEDS   . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 8
             A. The Unnecessary Segregation Of Individuals With
                Disabilities Is A Form Of Discrimination
                Prohibited By The ADA And Its Implementing
                Regulations   . . . . . . .. . . . . . . . . . . . . . . . . 8
             B. Prior Rehabilitation Act Cases Are
                Not Relevant To Interpreting Title
                II's Integration Requirement   . . . . . . . . . . . . . . . 16
             C. DPW's Failure To Provide Services
                To Idell S. In An Integrated
                Setting Is Unjustified   . . . . . . .. . . . . . . . . . . 19
CONCLUSION   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
                                - i -
01-07035                        TABLE OF AUTHORITIES
CASES:                                                         PAGE
ADAPT v. Skinner, 881 F.2d 1184 (3d Cir. 1989)  . . . . . . . . .  . . . . . . 6
Alexander v. Choate, 469 U.S. 287 (1985)    . . . . . . . . . . . . . . . . . 6
Brown v. Board of Educ., 347 U.S. 483 (1954)   . . . . . . . . . . . . . . . 14
Chevron U.S.A., Inc. v. Natural Resources Defense
     Council, 467 U.S. 837 (1984)   . . . . . . . . . . . . . . . . . . . . . . . 16
City of Cleburne v. Cleburne Living Center,
     473 U.S. 432 (1985)    . . . . . . . . .. . . . . . . . . . . . . . . . . . 16
Clark v. Cohen, 613 F. Supp. 684 (E.D. Pa. 1985)   . . . . . . . .. . . . . 17
Clark v. Cohen, 794 F.2d 79 (3d Cir.), cert. denied,
     479 U.S. 962 (1986)    . . . . . . . . .  . . . . . . . . . . . . . . . . . . 17
Kentucky Ass'n for Retarded Citizens, Inc. v. Conn,
     674 F.2d 582 (6th Cir.), cert. denied, 459 U.S.
     1041 (1982)    . . . . . . . . .   . . . . . . . . . . . . . . . . . . . . 18, 20
Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993),
     cert. denied, 114 S. Ct. 1545 (1994)      . . . . . . . . . 19
Metro Broadcasting, Inc. v. FCC, 497 U.S.
     547 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16
P.C. v. McLaughlin, 913 F.2d 1033 (2d Cir. 1990)   . . . . . . . .. . . . . 18
Plummer v. Branstad, 731 F.2d 574 (8th Cir. 1984)  . . . . . . . . . . . . . 18
Phillips v. Thompson, 715 F.2d 365 (7th Cir. 1983) . . . . . . . . . . . . . 17
United States v. Board of Comm'rs, 435
     U.S. 110 (1978)    . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Williams v. Secretary of Executive Office of
     Human Services, 414 Mass. 551, 609 N.E.2d
     447 (Mass. 1993)     . . . . . . . . . . . . . . . . . . . . . . . . . 5
STATUTES:
Americans With Disabilities Act (ADA):
        42 U.S.C. 12101(a)(3) (Title I) . . . . . . . . . . . . . . . . . . . 8
        42 U.S.C. 12101(a)(5)   . . . . . .. . . . . . . . . . . . . . . . . 8
        42 U.S.C. 12101(b)(3)   . . . . . .. . . . . . . . . . . . . . . . . 2
                                - ii -
01-07036STATUTES (cont'd):                                              PAGE
        42 U.S.C. 12112(b)(1)    . . . . . . . . . . . . . . . . . . . . 11, 13
        42 U.S.C. 12131 et seq. (Title II) . . . . . . . . . . . . . . . passim
        42 U.S.C. 12131(2)  . . . . . . .  . . . . . . . . . . . . . . . . . . 9
        42 U.S.C. 12131-12134 (Part A)    . . . . . . . . . . . . . . . . . . 8
        42 U.S.C. 12132    . . . . .   . . . . . . . . . . . . . . . . 1, 2, 4, 9
        42 U.S.C. 12133   . . . . . . . . . . . . . . . . . . . . . . . . . . 2
        42 U.S.C. 12134   . . . . . .  . . . . . . . . . . . . . . . . . . . . 9
        42 U.S.C. 12134(a)    . . . . . .   . . . . . . . . . . . . . . . . . . 2
        42 U.S.C. 12134(b)   . . . . . .   . . . . . . . . . . . . . . . . 10, 11
        42 U.S.C. 12182(b)(1)(A)(ii) (Title III)   . . . . . . . . . . . . . 13
        42 U.S.C. 12182(b)(1)(A)(iii)    . . . . . . . . . . . . . . . . . . 13
        42 U.S.C. 12182(b)(1)(B)   . . . . . . . . . . . . . . . . . . . 11, 13
        42 U.S.C. 12206(c)(3)   . . . . . . . . . . . . . . . . . . . . . . . 2
    Rehabilitation Act of 1973, Section 504,
        29 U.S.C. 794    . . . . .   . . . . . . . . . . . . . . . . . . . passim
     28 U.S.C. 1291   . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
     28 U.S.C. 1331   . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
     28 U.S.C. 1343(a)(3)   . . . . . . . . . . . . . . . . . . . . . . . . . 1
     28 U.S.C. 1343(a)(4)   . . . . . . . . . . . . . . . . . . . . . . . . . 1
     42 U.S.C. 1983   . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
     62 Pa. Cons. Stat. Ann. (1994)
         3053    . . . . . .   . . . . . . . . . . . . . . . . . . . . . . . . 4
REGULATIONS AND RULES:
     28 C.F.R. part. 35 (1993)    . . . . . .   . . . . . . . . . . . . . . . . 2
        Section 35.130(b)(1)(iv)   . . . . . . . . . . . . . . . . . . . . . 16
        Section 35.130(d)    . . . . .  . . . . . . . . . . . . . . . . . passim
     28 C.F.R. part. 41 (1993)    . . . . . .  . . . . . . . . . . . . 7, 10, 17
        Section 41.51(d)   . . . . . . . . . . . . . . . . . . . . . . . 10, 12
     45 C.F.R. 84.4(b)(2)  . . . . . .  . . . . . . . . . . . . . . . . . 12, 17
     Fed. R. Civ. P. 54(b)   . . . . . . . . . . . . . . . . . . . . . . . 1, 3
                                        - iii -
01-07037LEGISLATIVE MATERIALS:                                              PAGE
  H.R. Rep. No. 485 (II), 101st Cong.,
     2d Sess. (1990), reprinted in
     1990 U.S.C.C.A.N. 303   . . . . . . . . . . . . . . . . . . . . . . 14, 15
  H.R. Rep. No. 485 (III), 101st Cong.,
     2d Sess. (1990), reprinted in
     1990 U.S.C.C.A.N. 445    . . . . . . .  . . . . . . . . . . 6, 8, 9, 14, 15
  S. Rep. No. 116, 101st Cong., 1st Sess. (1989)   . . . . . . . . . . 6, 8, 13
     135 Cong. Rec. 19801 (1989)   . . . . . .. . . . . . . . . . . . . . . 13
     135 Cong. Rec. 19898 (1989)   . . . . .  . . . . . . . . . . . . . . . . 14
MISCELLANEOUS:
  The Americans With Disabilities Act Title II
     Technical Assistance Manual (1993)   . . . . . . . . . . . . . . . . . . 2
                                - iv -
01-07038                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             No. 94-1243
                          HELEN L., et al.,
                                IDELL S., Plaintiff-Appellant
                                v.
                     ALBERT L. DIDARIO, et al.,
                                Defendants-Appellees.
                APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
                         STATEMENT OF JURISDICTION
        The district court entered final judgment in this case
against Idell S. pursuant to Fed. R. Civ. P. 54(b) on February 8,
1994 (App. 7, 261).1/ Idell S. timely filed a notice of appeal
on February 14, 1994 (App. 7, 258). This Court has jurisdiction
over the appeal pursuant to 28 U.S.C. 1291. The district court's
jurisdiction was based on 28 U.S.C. 1331, 1343(a)(3), 1343(a)(4),
and 42 U.S.C. 1983.
                STATEMENT OF THE ISSUE AND STANDARD OF REVIEW
        Whether Pennsylvania's Department of Public Welfare violated
Title II of the Americans With Disabilities Act (ADA), 42 U.S.C.
12132, by refusing to provide services to a qualified individual
with a disability in the most integrated setting appropriate to
1/ "App." refers to the appendix filed by appellant.
01-07039                                - 2 -
her needs. The United States agrees with appellant that the
district court's grant of summary judgment is reviewed de novo.
                        INTEREST OF THE UNITED STATES
        The Department of Justice enforces Title II of the ADA. See
42 U.S.C. 12133. An express purpose of the ADA is "to ensure
that the Federal Government plays a central role in enforcing the
standards established in [the Act] on behalf of individuals with
disabilities." 42 U.S.C. 12101(b)(3). Pursuant to 42 U.S.C.
12134(a) and 42 U.S.C. 12206(c)(3), the Department has issued
regulations and a Technical Assistance Manual interpreting Title
II. See 28 C.F.R. part 35 (1993); The Americans with
Disabilities Act Title II Technical Assistance Manual (1993).
                    STATEMENT OF RELATED CASES AND PROCEEDINGS
        There are no related cases pending in this Court or any
other federal court. Another appeal, No. 94-1255, arose from the
same district court case but it did not involve any questions of
law or fact in common with this appeal and it was dismissed on
May 13, 1994.
                        STATEMENT OF THE CASE
A. Procedural History
        Appellant Idell S. and five other plaintiffs filed suit
against the Pennsylvania Department of Public Welfare (DPW),
alleging, inter alia, that DPW violated Title II of the ADA, 42
U.S.C. 12132, by failing to provide services to people with
disabilities in the community through its attendant care program
rather than in a nursing home (App. 9, 256). The district court
01-07040                                - 3 -
issued an order and memorandum opinion on January 27, 1994
(Mem.), dismissing the ADA claims of two of the plaintiffs (App.
6). On February 2, 1994, the district court denied Idell S.'s
motion for summary judgment and on February 8, entered final
judgment against Idell S. pursuant to Fed. R. Civ. P. 54(b) (App.
7, 261). She filed a notice of appeal on February 14, 1994 (App.
7, 258). The remaining plaintiffs, including Helen L.,
ultimately dismissed their claims because they are no longer in
nursing homes.
B. Facts
        Idell S. is a 43-year-old woman who is paralyzed from the
waist down as a result of meningitis (App. 243). Although Idell
S. can cook, dress herself, and care for her personal hygiene,
she needs assistance getting in and out of bed, bathing,
shopping, and doing some household chores (App. 243-244).
Because she was unable to remain home with her two children
without some assistance, Idell S. was forced to enter a DPW-
maintained nursing home in 1989 (App. 243-244). In the nursing
home, Idell S. lives only with people with disabilities, and has
little contact with her children or other people without
disabilities (App. 245).
        Defendant DPW provides services to individuals with physical
disabilities under two programs. In addition to running nursing
homes such as the one in which Idell S. now lives, DPW operates
an attendant care program for people living in homes in the
community (App. 245, 247). Through that program, DPW provides
01-07041                                - 4 -
"[t]hose basic and ancillary services which enable an eligible
individual to live in his home and community rather than in an
institution and to carry out functions of daily living, self-care
and mobility." 62 Pa. Cons. Stat. Ann.  3053 (1994). See also
App. 244-246.
        Idell S. alleges that DPW has violated Title II of the ADA,
42 U.S.C. 12132, which provides 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." Idell S.
specifically alleges that DPW has violated the Attorney General's
regulations implementing Title II, 28 C.F.R. 35.130(d), under
which
                [a] public entity shall administer services,
        programs, and activities in the most integrated
        setting appropriate to the needs of qualified
        individuals with disabilities.
Idell S. argues that she does not need nursing services such as
those provided in the nursing home, and that she could more
appropriately be served in DPW's attendant care program.
        DPW conceded that Idell S. does not need nursing care, is a
good candidate for the attendant care program, and that attendant
care for Idell S. in her home would cost the State of
Pennsylvania $9,300 less per year than nursing home care (App.
244-245; Mem. 3; Feb. 2, 1994 Order). DPW also admits that
"[w]ith attendant care services in the community, nursing home
care would not be appropriate for Idell S." (App. 245). DPW
01-07042                                - 5 -
nevertheless has failed to provide her attendant care in her home
because that particular program is underfunded (App. 244). Idell
S. thus is on a waiting list for the attendant care program (App.
249).
        On February 2, 1994, the district court dismissed Idell S.'s
claims, incorporating its January 27, 1994, memorandum opinion in
which it dismissed the claims of two of the other plaintiffs. In
granting judgment for DPW, the district court found that
plaintiffs were denied attendant care services not because they
were disabled, but because of a lack of funds for the particular
program (although the attendant care program would cost the State
$9,300 a year per person less). Mem. 3, 5; Feb. 2, 1994 Order.
The court relied on Williams v. Secretary of Executive Office of
Human Services, 414 Mass. 551, 609 N.E.2d 447 (Mass. 1993), in
which the Massachusetts Supreme Judicial Court held that the ADA
does not require a specific proportion of the mental health
service's housing placements to be in integrated housing.
According to the Massachusetts court, the ADA addresses
discrimination against individuals with disabilities in relation
to persons without disabilities, "rather than * * * eliminat[ing]
all differences in levels or proportions of resources allocated
and services provided to individuals with differing types of
disabilities." 414 Mass. at 559, 609 N.E.2d at 454. The
district court also found that the integration regulation, 28
C.F.R. 35.130(d), did not require DPW to provide Idell S.
attendant care in her home since "this integration mandate may
01-07043                                - 6 -
not be invoked unless there is first a finding of
discrimination." Mem.5.
                        SUMMARY OF ARGUMENT
        In enacting Section 504 of the Rehabilitation Act of 1973,
29 U.S.C. 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). See also ADAPT v. Skinner, 881
F.2d 1184, 1204 (3d Cir. 1989) (Mansmann, J., concurring in part
and dissenting in part) (goal of the Act was "mainstreaming"
people with disabilities). Almost twenty years later, Congress
recognized 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., 1st Sess. 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), 101st
Cong., 2d Sess. 49-50 (1990), reprinted in 1990 U.S.C.C.A.N. 445,
472-473.
01-07044                                - 7 -
        Title II of the ADA, 42 U.S.C. 12131 et seq., prohibits
public entities from discriminating against individuals with
disabilities. Congress directed the Attorney General to issue
regulations implementing this general mandate consistent with the
rest of the ADA, as well as the coordination regulations, 28
C.F.R. part 41, which implemented Section 504 of the
Rehabilitation Act. Both the Section 504 coordination
regulations and the rest of the ADA make clear that the
unnecessary segregation of individuals with disabilities in the
provision of public services is itself a form of discrimination
within the meaning of those statutes, independent of the
discrimination that arises when individuals with disabilities
receive different services than those provided to individuals
without disabilities. The Attorney General, in compliance with
the legislative mandate, thus issued 28 C.F.R. 35.130(d),
requiring public entities to "administer services, programs, and
activities in the most integrated setting appropriate to the
needs of qualified individuals with disabilities."
        There is no dispute here that Idell S. could most
appropriately be served in her home where she could live with her
two children, and that the only reason she has been forced to
live in a nursing home for five years is that the Pennsylvania
Department of Public Welfare has allocated more funds to nursing
home care than to its attendant care program. It also is
undisputed that the State could save $9,300 a year if it
reallocated nursing home funds to the underfunded attendant care
01-07045                                - 8 -
program for Idell S. DPW's refusal to reallocate funds in this
instance and provide at-home care to Idell S. has resulted in her
unnecessary segregation from her family and her community in
violation of Title II and its implementing regulations.
                                ARGUMENT
                PENNSYLVANIA'S DEPARTMENT OF PUBLIC WELFARE
                VIOLATED TITLE II OF THE ADA BY REFUSING TO
                 PROVIDE SERVICES TO IDELL S. IN THE MOST
                INTEGRATED SETTING APPROPRIATE TO HER NEEDS
A.      The Unnecessary Segregation Of Individuals With
        Disabilities Is A Form Of Discrimination Prohibited
        By The ADA And Its Implementing Regulations
        1. In enacting the ADA, Congress found that discrimination
against individuals with disabilities persists in a variety of
critical areas, including institutionalization, 42 U.S.C.
12101(a)(3), and that "individuals with disabilities continually
encounter various forms of discrimination, including outright
intentional exclusion * * * [and] segregation." 42 U.S.C.
12101(a)(5). The ADA is the congressional response to the
"compelling need to provide a clear and comprehensive national
mandate * * * for the integration of persons with disabilities
into the economic and social mainstream of American life." S.
Rep. No. 116, 101st Cong., 1st Sess. 20 (1989). In sum,
"[i]ntegration is fundamental to the purposes of the ADA." H.R.
Rep. No. 485 (III), 101st Cong., 2d Sess. 56 (1990), reprinted in
1990 U.S.C.C.A.N. 445, 479.
        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. 12131-12134, contains the
01-07046                                - 9 -
general prohibition against discrimination by public entities and
other generally applicable provisions, while Part B applies to
public transportation. Part A is short and general, and its
substantive provision mandates that "no qualified individual with
a disability2/ shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity." 42 U.S.C. 12132.
        In 42 U.S.C. 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)
at 52, reprinted in 1990 U.S.C.C.A.N. at 475. Congress specified
that, except with regard to program accessibility and
communications issues, the Attorney General's ADA regulations
"shall be consistent with [the ADA] and with the coordination
2/ 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. 12131(2).
01-07047                                - 10 -
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. 12134(b).
    The coordination regulations implementing Section 504 of the
Rehabilitation Act, 28 C.F.R. part 41 (1993), cover only five
pages and govern the Section 504 obligations of federal agencies.
The integration regulation, 28 C.F.R. 41.51(d), is a separate
subpart under the "[g]eneral prohibitions against discrimination"
and provides 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." The Attorney General, following Congress' mandate,
enacted Title II regulations patterned after the Section 504
coordination regulations. The ADA's integration regulation, 28
C.F.R. 35.130(d), thus provides that "[a] public entity shall
administer services, programs, and activities in the most
integrated setting appropriate to the needs of qualified
individuals with disabilities."
        The Attorney General's regulation also conforms to the
definition of discrimination in the rest of the ADA, as 42 U.S.C.
12134(b) requires. For example, the general prohibition on
discrimination by public accommodations in Title III of the ADA
contains language almost identical to the Section 504 and ADA
integration regulations: "Goods, services, facilities,
privileges, advantages, and accommodations shall be afforded to
01-07048                                - 11 -
an individual with a disability in the most integrated setting
appropriate to the needs of the individual." 42 U.S.C.
12182(b)(1)(B) (emphasis added). In Title I covering employment,
the definition of discrimination includes "limiting, segregating,
or classifying a job applicant or employee in a way that
adversely affects the opportunities or status of such applicant
or employee." 42 U.S.C. 12112(b)(1).
        2. The district court erred in finding that DPW did not
violate Title II of the ADA by choosing to provide services to
Idell S. in an unnecessarily segregated setting. Although the
court apparently assumed that the integration regulation, 28
C.F.R. 35.130(d) (1993), properly construes the statute,3/ it
found that the regulation's "integration mandate may not be
invoked unless there is first a finding of discrimination." Mem.
5. In the court's view, "[p]laintiffs' failure to show that they
have been excluded from the attendant care services program on
the basis of their disability is fatal to their claim." Ibid.
Another way to state the district court's holding is that there
3/   It would be difficult to find to the contrary in light of the
explicit statutory language directing the Attorney General to
issue ADA regulations consistent with the other parts of the ADA
and "the coordination regulations under part 41 of title 28, Code
of Federal Regulations." 42 U.S.C. 12134(b). See Metro
Broadcasting, Inc. v. FCC, 497 U.S. 547, 563 (1990) (attaching
"overriding significance" to explicit congressional approval of
administrative regulations); United States v. Board of Comm'rs,
435 U.S. 110, 134 (1978) (when Congress voices its approval of an
administrative interpretation, Congress is treated as having
adopted that interpretation and the agency interpretation has the
force and effect of law). Certainly, adopting the language of
the Rehabilitation Act's integration regulation maintains
consistency between the regulations under the two statutes.
01-07049                                - 12 -
can be no "discrimination" under Title II if the service at issue
is provided only to individuals with disabilities.
        The district court's interpretation ignores that the
fundamental purpose of the Act and the regulations is to end the
exclusion and segregation of individuals with disabilities. As
an initial matter, the district court (and DPW) failed to
recognize the importance of Congress' specific mandate regarding
the implementing regulations. First, Congress directed the
Attorney General to follow the Section 504 coordination
regulations, in which integration is a stand-alone requirement,
28 C.F.R. 41.51(d), rather than other Section 504 regulations in
which the integration requirement is linked to differences in
services provided to individuals with disabilities and those
without disabilities. The Department of Housing and Human
Services (HHS) Section 504 regulations, for example, 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. 84.4(b)(2) (1993).
Congress' choice of the coordination regulations, which impose a
duty to provide services to individuals with disabilities in an
integrated setting -- unrelated to any difference in services
provided to individuals with disabilities vis-a-vis individuals
without disabilities -- is a significant guide to the statute's
meaning.
        Congress also directed the Attorney General to issue Title
II regulations "consistent with" the rest of the ADA. Title I of
01-07050                                - 13 -
the ADA defines the term "discriminate" to include segregation of
employees with disabilities. 42 U.S.C. 12112(b)(1). Title III
prohibits various types of discrimination, including the failure
to provide services "in the most integrated setting appropriate
to the needs of the individual." 42 U.S.C. 12182(b)(1)(B). This
separate "integration" requirement is independent of Title III's
other provisions prohibiting the differential treatment of people
with disabilities in the provision of services that also are
available to individuals without disabilities. 42 U.S.C.
12182(b)(1)(A)(ii), (iii).
        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 id. at 20 ("compelling
01-07051                                - 14 -
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. 22 (1990), reprinted in 1990
U.S.C.C.A.N. 303 (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 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 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 Educ., 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"). While
Congress was concerned about the social cost of segregating
individuals with disabilities from society, Congress also was
aware of the economic cost of such exclusion, and that
"discrimination results in dependency on social welfare programs
that cost the taxpayers unnecessary billions of dollars each
year." H.R. Rep. No. 485 (II) at 43; reprinted in 1990
U.S.C.C.A.N. at 325. See also 135 Cong. Rec. 19898 (1989) (Sen.
Simon estimated that "[m]ore than $100 billion a year is being
spent by Government to sustain people with disabilities in
welfare situations").
01-07052                                - 15 -
        The reports of the House Judiciary Committee and the House
Committee on Education and Labor explain that although Title II
does not "list all the types of actions that are included within
the term 'discrimination' as was done in Titles I and III," the
forms of discrimination prohibited by Title II shall be identical
to those set out in Titles I and III of the legislation. H.R.
Rep. No. 485 (II) at 84, reprinted in 1990 U.S.C.C.A.N. at 367;
(1990); see also H.R. Rep. No. 485 (III) at 52 (1990), reprinted
in 1990 U.S.C.C.A.N. at 475. As noted above, Titles I and III
define discrimination to include the segregation of people with
disabilities. Congress clearly intended this form of
discrimination by public entities to be prohibited as well,
regardless of whether the segregation occurred as a result of the
differential provision of services. Certainly nothing conflicts
more with Congress' purpose of ending segregation than the
inappropriate confinement of individuals with disabilities.
        The Attorney General's Title II regulations reflect
Congress' determination that services must be provided in
appropriate integrated settings to achieve the Act's purposes.
The ADA's integration regulation, 28 C.F.R. 35.130(d) (1993), is
an independent subpart of the provision entitled "[g]eneral
prohibitions against discrimination" that defines discrimination.
The definition of discrimination thus includes the unnecessary
segregation of individuals with disabilities from the rest of the
community. No showing of differential treatment of people with
disabilities and individuals without disabilities is required,
01-07053                                - 16 -
since on its face, the regulation applies to all services
administered by a public entity. It is 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. 35.130(d) applied only to
programs and services offered to everyone, then 28 C.F.R.
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. The Attorney General's
regulations thus 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. See City of Cleburne v. Cleburne
Living Center, 473 U.S. 432 (1985).1/
        B. Prior Rehabilitation Act Cases Are Not Relevant To
           Interpreting Title II's Integration Requirement
        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 Section 504 coordination
1/  In this case, the Attorney General's regulations reflect the
clear statutory directive. Even if Title II's requirements were
ambiguous, the Attorney General's regulations are entitled to
significant deference because Congress authorized the Attorney
General to issue regulations enforcing the Act's general mandate.
Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467
U.S. 837, 842-848 (1984).
01-07054                                - 17 -
regulations (28 C.F.R. part 41) mandate are of little relevance
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 in the coordination regulations, rather
than the regulations issued by other agencies or any of the
decisions DPW cites. Thus, although some courts of appeals,
including the Third Circuit, considered whether Section 504 of
the Rehabilitation Act generally provides a right to community
treatment, none considered the integration regulation as a stand-
alone requirement, or whether the Department of Justice properly
interpreted the Rehabilitation Act and the ADA to prohibit
discrimination in the form of unnecessary segregation.
        In Clark v. Cohen, 794 F.2d 79, 84 n.3 (3d Cir.), cert.
denied, 479 U.S. 962 (1986), for example, this Court did not
consider whether unnecessary segregation was a form of
discrimination under the Rehabilitation Act. It simply affirmed
the lower court's finding that the Act and HHS's regulations, 45
C.F.R. 84.4(b)(2) (in which there is no stand-alone integration
requirement), do not require a public entity to provide services
in an integrated setting without proof of unequal treatment. See
Clark v. Cohen, 613 F. Supp. 684, 691 (E.D. Pa. 1985). Two other
appellate cases DPW cites (DPW Br. 11) also did not address the
stand-alone integration requirement at issue here,5/ and the
5/ In Phillips v. Thompson, 715 F.2d 365, 368 (7th Cir. 1983),
the court summarily concluded (without reference to regulations)
                                                (continued...)
01-07055                                - 18 -
remaining two appellate cases, while they did not involve the
stand-alone integration requirement, actually assumed 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" and found that
providing adult daytime services to disabled individuals in the
intermediate care facilities in which they lived rather than in
separate adult day care centers "does not run afoul" of that
principle. In short, none of the Rehabilitation Act cases DPW
cites supports the district court's interpretation of the ADA and
its implementing regulations.
5/ (... continued)
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
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.
01-07056                                - 19 -
        C. DPW's Failure To Provide Services To Idell S. In An
           Integrated Setting Is Unjustified
           DPW also argues (although the district court did not reach
the issue) that even if Title II and its implementing regulations
require a public entity to provide all services to individuals
with disabilities in an integrated setting, DPW is excused from
that obligation if it requires the public entity to make a
"fundamental alteration" of its program. This Court need not
reach this issue6/ because DPW's argument that compliance in
this case would require substantial modifications in its system
of providing services to people with disabilities is without
merit. DPW has in place a program -- the attendant care program
-- that it concedes is appropriate for Idell S. The only reason
it gives for not enrolling Idell S. in that program is that DPW
has allocated more funds to nursing home care than attendant care
(DPW Br. 14-15). As appellant notes (Idell S. Reply Br. 17),
however, DPW has not explained why it would be a "fundamental
alteration" for it simply to request a different mix of funding
from the General Assembly, or recommend that funding for services
for individuals with disabilities in the attendant care program
and nursing program be combined to allow flexibility to fund the
services most in demand.
6/ 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 defenses available to cases in which
plaintiffs were challenging a public entity's failure to alter
existing facilities or communications systems).
01-07057                                - 20 -
        DPW's suggestion (DPW Br. 19-20) that massive
"deinstitutionalization" will cause a fundamental alteration in
its program is also without merit. Unlike the plaintiffs in
Kentucky Ass'n for Retarded Citizens, Inc., 674 F.2d at 582, for
example, Idell S. has not claimed that institutionalization is
improper as a matter of law under the ADA. Rather, her claim is
an individual claim that the ADA accords her the right to
treatment in an integrated setting appropriate to her needs,
which in this case is a program DPW already has in place. DPW
has conceded as a factual matter that "[w]ith attendant care
services in the community, nursing home care would not be
appropriate for Idell S." (App. 245). There also is no dispute
that allowing her to remain in her home with her children and
receive attendant care services would save the State of
Pennsylvania $9,300 a year (App. 244-245; Mem. 3, Feb. 2, 1994
Order), consistent with Congress' finding that placing
individuals with disabilities in situations of unwanted
dependency needlessly costs taxpayers billions of dollars a year.
Providing care for Idell S. through the attendant care program is
compelled by the ADA and its regulations, and requires no
fundamental alteration in DPW's program.
01-07058                                - 21 -
                              CONCLUSION
                The District Court's judgment should be reversed.
                                        Respectfully submitted,
                                        DEVAL L. PATRICK
                                                Assistant Attorney General
                                  (Signature of Troth)
                                        DAVID K. FLYNN
                                        REBECCA K. TROTH
                                                Attorneys
                                                Department of Justice
                                                P.O. Box 66078
                                                Washington, D.C. 20035-6078
                                                (202) 514-4541
01-07059                        CERTIFICATE OF SERVICE
        I hereby certify that on September 6, 1994, I sent two
copies of the foregoing Brief of the United States as Amicus
Curiae by Federal Express to the following addresses:
                                Stephen F. Gold, Esq.
                                125 South Ninth Street, Suite 700
                                Philadelphia, PA 19107
                                Ilene W. Shane, Esq.
                                Robin Resnick, Esq.
                                Disabilities Law Project
                                801 Arch Street, Suite 610
                                Philadelphia, PA 19107
                                John A. Kane, Esq.
                                Howard Ulan, Esq.
                                Department of Public Welfare
                                Office of Legal Counsel
                                Room 305, Health and Public Welfare Building
                                Harrisburg, PA 17120
                                        (Signature of Troth)
                                               REBECCA K. TROTH
                                                      Attorney
01-07060