1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-20-1994

Easley v. Snider, et al.

Precedential or Non-Precedential:

Docket 94-1199

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Recommended Citation

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http://digitalcommons.law.villanova.edu/thirdcircuit_1994/138
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ____________ 

 NO. 94-1199 

 ____________ 

 TRACY EASLEY, by her next friend, 

 LUCILLE EASLEY; FLORENCE H. 

v. 

 KAREN SNIDER, Secretary of the Department of 

 Public Welfare; KAY ARNOLD, Deputy Secretary 

 for Social Programs; HOMEMAKER SERVICES OF THE 

 METROPOLITAN AREA 

 Karen Snider and Kay Arnold, 

 Appellants 

 ____________ 

 Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 D.C. No. 93-cv-00221 

 ____________ 

 Argued July 18, 1994 

 Before: SCIRICA, LEWIS, and ROSENN, Circuit Judges

 Opinion Filed September 22, l994 

 ____________ 

ERNEST D. PREATE, JR., ATTORNEY GENERAL 

SUSAN J. FORNEY, SENIOR DEPUTY ATTORNEY GENERAL (Argued) 

KATE L. MERSHIMER, SENIOR DEPUTY ATTORNEY GENERAL 

JOHN G. KNORR, III, CHIEF DEPUTY ATTORNEY GENERAL 

Office of Attorney General 

15th Floor, Strawberry Square 

Harrisburg, PA 17120 

 Attorneys for Appellants 

ILENE SHANE, ESQUIRE 

ROBIN RESNICK, ESQUIRE 

Disabilities Law Project 

801 Arch Street, Suite 610 

Philadelphia, PA 19107 

STEPHEN F. GOLD, ESQUIRE (Argued) 

Suite 700 
125 South Nine Street 

Philadelphia, PA 19107 

 Attorneys for Appellees 

 ____________ 

 OPINION OF THE COURT 

ROSENN, Circuit Judge. 

 This appeal, involving important legal and societal 

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

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

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

in 1986 as a program designed to enable physically disabled 

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

possible, to become active and useful members of society. 

 The plaintiffs, Tracey Easley (Easley) and Florence 

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

brought suit in the United States District Court for the Eastern 

District of Pennsylvania, alleging that the Care Act conflicts 

with the more recently enacted Americans with Disabilities Act of 

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

because the Care Act requires that candidates for the program 

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

Pennsylvania from excluding them from the program. Following a 

bench trial, the district court concluded that the program 

developed under the Care Act violated the ADA and enjoined the 

 

1. These proceedings assert claims under Title II of the ADA. 

The district court exercised jurisdiction pursuant to 28 U.S.C. § 

1331. This court has jurisdiction as the appeal is from a final 

order within the meaning of 28 U.S.C. § 1291. 
State from excluding Easley and Howard from receiving attendant 

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

 The Care Act authorized the Pennsylvania Department of 

Public Welfare (PDPW) to provide attendant care services to 

eligible individuals. The General Assembly declared its purpose 

in enacting the law was to enable physically disabled but 

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

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

must: 

 1. experience a physical impairment 

expected to last a continuous 

period of at least 12 months; 

 2. be capable of selecting, 

supervising and, if needed, firing 

an attendant; 

 3. be capable of managing their own 

financial and legal affairs; and, 

 4. because of their physical 

impairment, require assistance to 

complete the functions of daily 

living, self-care, and mobility. 

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

mentally alert are excluded from the program. 

 A. Tracey Easley and Florence Howard 

 

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

woman tragically disabled by a catastrophic car accident in 1982, 

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

Easley suffered a closed head injury which left her with minimal 

mobility and without speech. She apparently can communicate with 

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

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

supervising, or firing an attendant, or managing her own 

financial and legal affairs. 

 In 1987, Easley resided in West Philadelphia, and 

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

for and received attendant care services from Resources for 

Living Independently (RLI) which was under contract with the 

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

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

under contract with PDPW. 

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

year old woman with multiple sclerosis and undifferentiated 

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

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

daughter until September 1991, but entered the Philadelphia 

Nursing Home when her daughter could not obtain attendant care 

services for her. 

 Howard has expressed dissatisfaction with her present 

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

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

services. PDPW, however, determined Howard ineligible under the 

Act because she was not mentally alert. Without using a 

surrogate, Howard is incapable of selecting, supervising or 

discharging an attendant and is not capable of managing her own 

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

plaintiffs to be ineligible for its services because they were 

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

attendant and because they are not capable of personally 

controlling their own legal and financial affairs. Both 

plaintiffs alleged that defendant Karen Snider, Secretary of the 

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

Office of Social Programs (OSP) which administers the Attendant 

Care program, violated the ADA by denying them attendant care 

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

Howard challenge the provision of the Care Act that requires the 

participants to be mentally alert. 

 B. THE ATTENDANT CARE PROGRAM 

 The General Assembly stated the policies in pertinent 

part underlying the Care Act were as follows: 

 1. The increased availability of 

attendant care services for adults 

will enable them to live in their 

own homes and communities. 

 2. Priority recipients of attendant 

care services under this Act shall 

be those mentally alert but 

severely physically disabled who 

are in the greatest risk of being 

in an institutional setting. 

 3. Recipients of attendant care have 

the right to make decisions about, 

direct the provision of and control 

their attendant care services. 

This includes but is not limited to 

hiring, training, managing, paying 

and firing of an attendant. 

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

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

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

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

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

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

include assistance with routine bodily functions such as health 

maintenance activities, bathing and personal hygiene, dressing, 

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

provided which include homemaker services such as shopping, 

cleaning and laundry, companion-type services such as 

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

assistance with cognitive tasks such as managing finances, 

planning activities, and making decisions. Id.

 The PDPW contracts with various agencies to provide 

attendant care services pursuant to the Act and Department 

guidelines. The Department requires that the agencies offer 

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

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

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

The consumer submits invoices to the respective agencies and 

receives money so that the consumer is responsible for the task 

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

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

retains the right to reject an attendant that the consumer 

considers unsuitable. The consumer provides direction in 

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

model, the consumer selects certain tasks to be performed and 

certain tasks the agency will perform. The consumer has the 

responsibility to choose the service delivery model that he/she 

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

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

tasks the agency will do." 

 II. 

 We must determine if the targeting of the programmatic 

services to physically disabled but mentally alert individuals is 

permissible or whether the State improperly excluded Easley and 

Howard from receiving attendant care services. We make this 

determination by examining the essential nature of the program to 

discover whether mental alertness is a necessary eligibility 

requirement and whether Easley and Howard can satisfy this 

requirement with a reasonable modification, here by using a 

surrogate. In reviewing this appeal, the court exercises a 

plenary standard of review when applying legal precepts to 

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

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

(1992). 

A. "Mental Alertness" Under The Care Act. 

 We begin our analysis with the passage of the ADA. 

Congress enacted the ADA to eliminate discrimination against 

handicapped individuals by extending the non-discrimination 

principles required at institutions receiving federal funds by 

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

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

12101 et seq. Title II of the ADA provides: 

 Subject to the provisions of this subchapter, 

no qualified individual with a disability 

shall by reason of such disability be 

excluded from participation in or be denied 

the benefits of the services, programs, or 

activities of a public entity, or be 

subjected to discrimination by any such 

entity. 

Id. at § 12132. 

 The State's reading of the ADA and its supporting 

regulations is one which enables a state to provide a particular 

class of disabled persons with benefits and services without 

obligating itself to extend the same services and benefits to 

other classes of persons with disabilities. The regulations 

implementing the ADA define a "qualified individual with a 

disability" as: 

 An individual with a disability who, with or 

without reasonable modifications to rules, 

policies, or practices, . . . meets the 

essential eligibility requirements for the 

receipt of services or the participation in 

programs or activities provided by a public 

entity. 

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

ADA specifically endorses a state's authority to offer benefits 

to specific classes of persons with disabilities: 

 Nothing in this part prohibits a public 

entity from providing benefits, services, or 

advantages to individuals with disabilities, 

or to a particular class of individuals with 

disabilities beyond those required by this 

part. 
Id. at § 35.130(c). Further, the preamble also authorizes a 

state to design programs for particular groups of disabilities. 

The preamble reads in part: 

 State and local governments may provide 

special benefits, beyond those required by 

non-discrimination requirements of this part 

that are limited to individuals with 

disabilities or a particular class of 

individuals with disabilities, without 

incurring additional obligations to other 

classes of persons with disabilities. 

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

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

consistency with the regulations implementing the ADA, the Care 

Act is consistent with the regulations implementing the 

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

These regulations state in part: 

 The exclusion of non-handicapped persons from 

the benefits of a program limited by Federal 

statute or executive order to handicapped 

persons or the exclusion of a specific class 

of handicapped persons from a program limited 

by Federal statute or executive order to a 

different class of handicapped persons is not 

prohibited by this part. 

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

 The district court rejected the State's position and 

accepted the contentions of Easley and Howard that the 

prerequisite of mental alertness is just the sort of 

discrimination that the ADA intended to prevent and concluded 

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

relevant part: 

 A public entity shall not impose or apply 

eligibility criteria that screen out or tend 

to screen out an individual with a disability 

or any class of individuals with a disability 

from fully and equally enjoying any service 

program or activity, unless such criteria can 

be shown to be necessary for the provision of 

the service, program, or activity being 

offered. 

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

 The district court refused to accept the State's 

characterization of the program and, in its own examination of 

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

is not necessary to be mentally alert to receive attendant care 

services. The court did not view consumer control and 

independence as essential elements of the program, but rather 

merely two of the many opportunities the program provides. 

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

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

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

denied admission into a federally-funded nursing program, the 

Court was asked to decide whether § 504 prohibited physical 

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

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

Court held that the woman, who could not understand aural 

communication without reading lips, was not "otherwise qualified" 

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

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

the physical requirements to determine whether modifications had 

to be made so that no discrimination against handicapped 

individuals occurred, the Court concluded that no elimination of 

requirements was necessary because to do so would fundamentally 

alter the program, something not required under the 

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

 Interpreting the Court's decision in Southeastern 

Community College, we stated in Strathie v. Department of 

Transportation, 716 F.2d 277, 231 (3d Cir. 1983): 

 A handicapped individual who cannot meet all 

of a program's requirements is not otherwise 

qualified if there is a factual basis in the 

record reasonably demonstrating that 

accommodating that individual would require 

either a modification of the essential nature 

of the program, or impose an undue burden on 

the recipient of federal funds. 

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

record demonstrating that accommodating the individual would 

require a fundamental modification or an undue burden, then the 

handicapped person is otherwise qualified and refusal to waive 

the requirement is discriminatory. Therefore, when determining 

whether a program discriminates, a court must determine two 

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

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

reasonable accommodation could allow the handicapped person to 

receive the program's essential benefits. Further, when 

determining an accommodation would allow the applicant to receive 

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

"effectively denies otherwise handicapped individuals the 

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

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

 The district court reviewed this case law and concluded 

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

are qualified to receive the service despite their lack of mental 

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

be interpreted to mean that unless removing the mental alertness 

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

require either a modification of the essential nature of the 

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

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

Consequently, the dominant issue presented here is whether mental 

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

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

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

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

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

the accommodation is, by definition, reasonable. 

 The PDPW Manual asserts that the purpose of the program 

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

restrictive environment as independently as possible, to remain 

in their homes and prevent inappropriate institutionalization, 

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

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

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

instead relied merely on the foregoing excerpt of the program 

manual. Consequently, it determined that providing these stated 

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

any physically disabled person whose disability did not prevent 

them from receiving these benefits was qualified. 

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

that consumer control was part of the essential nature of the 

program requiring mental alertness as an eligibility criterion. 

The court found that consumer control merely provided the State 

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

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

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

that consumer control is unnecessary to receive the essential 

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

in which "mentally alert individuals are fully empowered to 

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

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

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

mental alertness cannot be essential to participation in the 

program. 

 An examination of the actual services offered 

demonstrates that personal control is essential to the program, 

and that mental alertness is a necessary requirement for receipt 

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

to benefit recipients. The record indicates that contrary to the 

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

attendant care models. Paula Jean Howley, supervisor for PDPW 

Attendant Care Programs, testified at trial how the consumer 

retains personal control under the agency model. The purpose of 

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

personal control and independence for the physically disabled. 

To achieve the programmatic goal, the physically disabled 

obviously cannot function independently and exercise personal 

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

the joinder of this requirement cannot be attributable to 

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

. . . program or activity being offered." 

 The argument submitted by Easley and Howard and adopted 

by the district court mischaracterizes the Attendant Care 

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

physically disabled preserve their independence, recognizing that 

without their physical limitations, they would be running their 

own lives. The district court's definition of living 

independently as "the opportunity to remain in the community or 

family home rather than an institution" is drastically different 

than the definition of the creators of the program. The 

difference is obvious when one considers that the third purpose 

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

maintain employment. The State strives for a level of 

independence that allows an individual to become an active, 

contributing member of society, a level of independence obviously 

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

disabled who participate in the program is an essential dimension 

without which the objectives of the program cannot be realized. 

 The goals intended to elevate the lives of the 

physically disabled bear some resemblance to the State's earlier 

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

mentally disabled and retarded, when it enacted the comprehensive 

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

This legislation endeavored to deinstitutionalize, insofar as 

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

set up whenever possible County Mental Health and Retardation 

Boards with programs at the county and community levels. The 

Care Act is another progressive program by the State to improve 

the lot and lives of many physically disabled by providing 

opportunities for personal independence and employment. See

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

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

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

handicapped may carve a share from every federal benefit 

program"). 

 Final support for our view is an independent evaluation 

of the program conducted in 1985 and 1986 by The Conservation 

Company and The Human Organization Science Institute, Villanova 

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

demonstrates, Pennsylvania's Attendant Care legislation followed 

a number of similar programs adopted by other states. 

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

Handicapped) actively urged legislators to begin attendant care. 

A Final Report of an Evaluation of the Pennsylvania Attendant 

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

observes that the role of attendants differs from that of 

traditional aides or homemakers. Under this program, the 

attendant is directed by the handicapped individual and performs 

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

enables physically disabled persons to 

 better control their lives and reach maximum 

independence when they are able to direct 

their own personal care and manage their 

home, business, and social lives. Attendant 

Care in Pennsylvania continues to be seen as 

part of the wider independent living movement 

whose fundamental goals are to enable the 

physically disabled to: a) maintain a less 

restrictive and/or independent living 

arrangement; b) maintain employment; and/or 

c) remain in their homes. 

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

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

position. 62 P.S. § 3052(3), see page 5 supra. 

 An important part of Easley and Howard's argument that 

mental alertness is not a necessary prerequisite to receiving 

attendant care services is based on their analogy between the use 

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

"combination" models offered by the program. This comparison 

both overstates the control Easley and Howard exercise over their 

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

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

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

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

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

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

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

different from a surrogate making the decision for the consumer. 

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

program objectives. 

 Accordingly, we hold that mental alertness is a 

necessary prerequisite to participation in the attendant care 

program. Although we appreciate the contentions by the 

plaintiffs of the benefits Easley and Howard could derive from 

this program, this unfortunately is insufficient to carry out the 

purposes sought to be accomplished by the legislature. Again, 

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

PDPW explain that the essential nature of the program is to 

foster independence through consumer control for individuals who, 

but for their physical disabilities, could manage their own 

lives, achieve independence, and perhaps obtain employment. As 

such, mental alertness of the participants is a prerequisite. 

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

determine whether the use of surrogates as decision-makers for 

non-mentally alert consumers is a reasonable modification under 

the Care Act. 

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

regulations implementing the ADA requires: 

 A public entity shall make reasonable 

modifications in policies, practices, or 

procedures when the modifications are 

necessary to avoid discrimination on the 

basis of disability, unless the public entity 

can demonstrate that making the modifications 

would fundamentally alter the nature of the 

services, program, or activity. 

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

mental alertness is an essential prerequisite to receiving 

attendant care services, they could satisfy this prerequisite by 

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

reasonable modification violates the ADA and the regulations 

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

position that the modification requested by the plaintiffs is 

unreasonable, and is not required under the regulations 

implementing the ADA. 

 The test to determine the reasonableness of a 

modification is whether it alters the essential nature of the 

program or imposes an undue burden or hardship in light of the 

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

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

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

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

modification leads us to conclude that Easley and Howard's 

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

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

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

personal care services to the many thousands of physically 

disabled who are often served by other specially designed state 

programs. The proposed alteration would create a program that 

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

modification would create an undue and perhaps impossible burden 

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

it to provide attendant care services to all physically disabled 

individuals, whether or not mentally alert. We therefore hold 

that the use of surrogates would be an unreasonable modification 

of the attendant care program under the Act. 

 C. The Care Act and the ADA. 

 The district court agreed with Easley and Howard's 

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

handicapped persons cannot be rendered ineligible for the program 

because they also are afflicted with a mental disability that 

leaves them mentally unalert. To support its analysis the 

district court cited the regulations implementing Title III of 

the ADA which distinguish between offering services to one class 

of persons with disabilities and barring a person with the same 

needs because the individual has another disability. The 

regulation states in part: 

 A health care provider may refer an 

individual with a disability to another 

provider, if that individual is seeking . . . 

services outside of the referring provider's 

area of specialization, and if the referring 

provider would make a similar referral for an 

individual without a disability who seeks or 

requires the same treatment or services. 
28 C.F.R. § 36.302(b)(2). 

 The plaintiffs acknowledge that the State may lawfully 

provide an attendant care program serving individuals with a 

certain handicap, but assert that the State discriminated against 

them because they have an additional handicap. As discussed 

earlier in this opinion, the Care Act does not discriminate 

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

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

the Independent Report to the PDPW, and the regulations 

implementing the acts contemplate and point to specific classes 

of disabled. The State emphasizes the power of government to 

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

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

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

There are other programs offered by the Commonwealth of 

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

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

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

for the care and treatment of persons suffering from chronic 

renal diseases, 35 Pa. C.S.A. § 6201 et seq.

 Our reading of the Care Act is not inconsistent with 

the ADA and the Rehabilitation Act. The regulations implementing 

these acts contemplate reaching groups of disabled without 

incurring obligations to other groups of handicapped. Cases 

interpreting the Rehabilitation Act have stated that their main 

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

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

in the Rehabilitation Act that requires any benefit extended to 

one category of handicapped persons also be extended to all other 

categories of handicapped persons." 

 The State has not rejected Easley and Howard from the 

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

State merely distinguishes this program established by the Care 

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

physically disabled. This is not a case of State discrimination 

against a subgroup of the group of people who are physically 

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

handicap, a severe degree of mental disability, renders 

participation in the program ineffectual. 

 III. CONCLUSION 

 We therefore hold that the Pennsylvania Attendant Care 

Services Act which requires that qualified persons be not only 

physically handicapped but also mentally alert does not violate 

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

use of surrogates by the non-mentally alert physically disabled 

is not a reasonable modification of the Pennsylvania Attendant 

Care Services Act. 

 Accordingly, the judgment of the district court will be 

reversed. Each side to bear its own costs.