PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

Nos. 13-4255 & 13-4405

___________

DISABILITY RIGHTS NEW JERSEY, INC.,

A New Jersey Nonprofit Corporation

v.

COMMISSIONER, NEW JERSEY DEPARTMENT OF

HUMAN SERVICES; COMMISSIONER, NEW JERSEY 

DEPARTMENT OF HEALTH AND SENIOR SERVICES;

STATE OF NEW JERSEY

Disability Rights New Jersey, Inc.,

Appellant in No. 13-4255

Commissioner, New Jersey Department 

of Human Services; State of New Jersey, 

Appellants in No. 13-4405

__________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 10-cv-03950)

District Judge: Honorable Dickinson R. Debevoise

___________
2

Argued November 18, 2014

Before: SMITH, HARDIMAN and BARRY, Circuit Judges.

(Filed:August 4, 2015)

Nathan S. Mammen (Argued)

John C. O’Quinn

Kirkland & Ellis

655 15th Street, N.W.

Suite 1200

Washington, DC 20005

William E. Dwyer

Disability Rights New Jersey

210 South Broad Street, 3rd Floor

Trenton, NJ 08608

David E. Myre

Samara L. Penn

Kirkland & Ellis

601 Lexington Avenue

New York, NY 10022

Attorneys for Appellant/Cross-Appellee Disability 

Rights New Jersey, Inc.

Stuart M. Feinblatt (Argued)

Gerard A. Hughes

Office of Attorney General of New Jersey

25 Market Street

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Attorneys for Appellees/Cross-Appellants State of New 

Jersey et al.
3

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

These cross-appeals require us to decide whether 

mentally ill residents of New Jersey who have been 

committed to state custody are entitled to judicial process 

before they may be forcibly medicated in nonemergency 

situations. At issue is Administrative Bulletin 5:04B, a 

procedure regulating the forcible administration of 

psychotropic drugs in New Jersey psychiatric hospitals, and 

its validity under the Americans with Disabilities Act and the 

United States Constitution. The District Court held that AB 

5:04B is valid, except as to patients who have been found by 

a court not to require continued commitment but who remain 

in custody pending transfer. Disability Rights N.J., Inc. v. 

Velez, 974 F. Supp. 2d 705 (D.N.J. 2013). We will affirm the 

result reached by the District Court, though not for all its 

stated reasons.

I

A

The New Jersey Department of Human Services 

operates four psychiatric hospitals that house civilly 

committed adults and those who have been found 

incompetent to stand trial or not guilty by reason of insanity.

See N.J. Stat. Ann. § 30:1-7. Temporary civil commitment 

may be ordered by a New Jersey court only upon a showing 

of probable cause to believe that the person is “in need of 

involuntary commitment to treatment,” id. § 30:4-27.10(g), 
4

which means that he is dangerous to himself, others, or 

property by reason of mental illness and is unwilling to accept 

treatment voluntarily, id. § 30:4-27.2(m). Within 20 days of 

the patient’s initial admission to a facility, the court must hold 

a final commitment hearing at which the State must make the 

same showing by clear and convincing evidence in order to 

prolong the commitment. Id. § 30:4-27.15(a); N.J. Ct. R. 

4:74-7(c)(1).

The final hearings occur at New Jersey’s psychiatric 

hospitals but have many of the trappings of conventional

judicial proceedings. Each patient has the right to be 

represented by counsel, to be present at the hearing, to present 

evidence, and to cross-examine witnesses. N.J. Stat. Ann. 

§ 30:4-27.14; N.J. Ct. R. 4:74-7(e). A psychiatrist on the 

patient’s treatment team who has examined the patient within 

five days of the hearing must testify. N.J. Ct. R. 4:74-7(e). 

Commitment hearings take place one or two days per week at 

each hospital, and most are uncontested and brief. 

If a patient is committed, his status is subject to 

judicial review three months after the final hearing and 

periodically thereafter. N.J. Stat. Ann. § 30:4-27.16(a). At 

every review hearing, the State is required to prove by clear 

and convincing evidence that the involuntary commitment 

standard remains satisfied. Id. If the court concludes that the 

patient no longer requires commitment, it can order him

discharged or enter a judgment of “conditional extension 

pending placement” (CEPP). N.J. Ct. R. 4:74-7(h)(1)–(2). 

Patients on CEPP status remain in the hospital only because

an appropriate alternative placement is unavailable; their 

status is reviewed within 60 days of the CEPP order’s 

issuance and then periodically at intervals no longer than six 

months. N.J. Ct. R. 4:74-7(h)(2).
5

B

The recent history of civil commitment of the mentally 

ill in this country is inextricably linked with the development 

of psychotropic drugs—antipsychotics, antidepressants, mood 

stabilizers, and the like. According to an expert report 

submitted to the District Court, effective psychotropic

medications emerged in the 1950s and “rapidly became a 

mainstay of treatment” in psychiatric hospitals “because of 

their effectiveness in reducing or eliminating psychotic 

symptoms, including delusions, hallucinations, disordered 

thinking and speech, and disruptive and aggressive behavior.” 

App. 468 (report of Dr. Paul S. Appelbaum). Witnesses 

testified that the proper use of psychotropic drugs is “an 

almost essential component of treatment for a patient who is 

severely enough disturbed to require involuntary 

hospitalization,” App. 765, and agreed that “psychotropic 

medications are almost universally a part of successful 

treatment for patients in psychiatric hospitals,” App. 781.

For all their benefits, psychotropic drugs can cause 

serious side effects, including muscle cramps, dizziness, 

metabolic syndrome, parkinsonism, akathesia (motor 

restlessness), dystonia (involuntary muscle contractions), and

tardive dyskinesia (involuntary movement of the limbs or

facial muscles). Disability Rights alleges that side effects that 

have been observed in New Jersey’s psychiatric hospitals 

include fatigue, difficulty walking, confusion, anxiety, sexual 

dysfunction, and allergic or toxic reactions to the drugs. For 

these reasons (and perhaps others), significant numbers of 

civilly committed psychiatric patients refuse to take 

psychotropic medication voluntarily, however beneficial it 

might be from a clinical perspective. In 2011 and 2012, 
6

between 29 and 48 patients were on “refusing status” and 

subject to forcible medication at each of the State’s four 

psychiatric hospitals. App. 1144.

The Supreme Court has never decided whether civilly 

committed individuals have a constitutional right to refuse 

psychotropic drugs. It issued a writ of certiorari in 1981 in a 

case posing this question, but an intervening state court 

decision ultimately prevented the Court from reaching the 

merits. Mills v. Rogers, 457 U.S. 291 (1982). And although 

the Court has spoken time and again on the right to refuse 

unwanted treatment generally, it has not addressed this issue 

in the civil commitment context. See, e.g., Sell v. United 

States, 539 U.S. 166 (2003) (concerning the right of a 

criminal defendant to refuse antipsychotic medication 

intended to render him competent to stand trial); Washington 

v. Harper, 494 U.S. 210 (1990) (concerning the due process 

rights of prisoners subject to forcible medication for mental 

illness); Parham v. J. R., 442 U.S. 584 (1979) (concerning the 

due process rights of children institutionalized for mental 

health care). In Harper, the most relevant of these cases for 

our purposes, the Court held that the Due Process Clause 

permits a State to forcibly medicate a dangerous, mentally ill 

prisoner without providing a judicial hearing as long as 

certain “essential procedural protections” are provided. 494 

U.S. at 236.

Unlike the Supreme Court, we have squarely 

addressed the right of civilly committed psychiatric patients 

to refuse psychotropic drugs. In 1977, a man involuntarily 

committed to a psychiatric hospital in New Jersey filed suit in 

federal court challenging the State’s use of forcible 

medication in nonemergency situations. Rennie v. Klein, 462 

F. Supp. 1131, 1134 (D.N.J. 1978). Shortly thereafter, New 
7

Jersey adopted Administrative Bulletin 78-3, which became 

known as the “Rennie process” and generally consisted of 

three steps:

[1] At the first level, when a patient refuses to 

accept medication, the treating physician must 

explain to the patient the nature of his 

condition, the rationale for using the particular 

drug, and the risks or benefits of it as well as

those of alternative treatments. [2] If the patient 

still declines, the matter is discussed at a 

meeting of the patient’s treatment team, which 

is composed of the treating physician and other 

hospital personnel, such as psychologists, social 

workers, and nurses who have regular contact 

with the patient. The patient is to be present at 

this meeting if his condition permits.

[3] If, after the team meeting, the 

impasse remains, the medical director of the 

hospital or his designee must personally 

examine the patient and review the record. In 

the event the director agrees with the 

physician’s assessment of the need for 

involuntary treatment, medication may then be 

administered. The medical director is also 

authorized, but not required, to retain an 

independent psychiatrist to evaluate the 

patient’s need for medication. Finally, the 

director is required to make a weekly review of 

the treatment program of each patient who is 

being drugged against his will to determine 

whether the compulsory treatment is still 

necessary.
8

Rennie v. Klein (Rennie I), 653 F.2d 836, 848–49 (3d Cir. 

1981) (en banc) (citations omitted), judgment vacated and 

remanded, 458 U.S. 1119 (1982). We upheld this procedure 

in Rennie I, id. at 851–52, and then upheld it again in Rennie 

v. Klein (Rennie II), 720 F.2d 266 (3d Cir. 1983) (en banc),

after the Supreme Court vacated the judgment in Rennie I and 

remanded the matter for further consideration in light of 

Youngberg v. Romeo, 457 U.S. 307 (1982). We essentially 

held in the Rennie cases that civilly committed psychiatric 

patients “have a qualified constitutional right to refuse 

antipsychotic medication” in nonemergency situations and 

“the procedures set forth in Administrative Bulletin 78-3 

accommodate [that right] in a manner consistent with the Due 

Process Clause.” Rennie II, 720 F.2d at 272 (Seitz, C.J., 

concurring). Notably, we indicated in Rennie I that committed 

individuals are entitled to at least as much constitutional 

protection in this context as prisoners. See 653 F.2d at 845–

46. The Rennie process was incorporated into a consent order 

entered by the District Court in August 1984 that governed

the forcible medication of the mentally ill in New Jersey for 

almost 30 years.

C

Disability Rights New Jersey, a nonprofit organization 

that advocates for the disabled, filed a complaint in August 

2010 in the District Court against New Jersey and the 

Commissioner of the New Jersey Department of Human 

Services, alleging that the Rennie process violated various 

provisions of the United States Constitution, as well as the 

ADA and the Rehabilitation Act of 1973. The crux of the suit 

was that the Rennie process was nothing more than a “rubber 

stamp” for hospital staff members who wished to forcibly 

medicate their patients, App. 111 (Compl. ¶ 85), though
9

Disability Rights also alleged that New Jersey’s hospitals 

failed to properly comply with the procedure. As amended, 

the complaint requested declaratory and injunctive relief 

invalidating the Rennie process and ordering the State to 

provide judicial hearings before involuntarily committed 

psychiatric patients could be forcibly medicated in 

nonemergent situations. The complaint also demanded 

additional procedural protections accompanying a judicial 

hearing, including: a requirement that nonemergent forcible 

medication take place only after a finding that the patient is 

incompetent to make medical decisions; a right to counsel at 

the hearing; establishment of a system of “experienced and 

knowledgeable” counsel to advocate for patients’ interests; a 

right to have independent expert witnesses appointed; 

imposition of a “clear and convincing evidence” burden of 

proof in forcible medication proceedings; assurance that 

hospital staff would be properly trained in the administration 

of psychotropic drugs; and a requirement that the State report 

monthly to Disability Rights on its use of psychotropic 

medication in psychiatric hospitals. App. 321–22 (Am. 

Compl. ¶ 6). In sum, Disability Rights demanded that the 

State “provide patients who refuse the non-emergency 

administration of psychotropic medication with meaningful 

due process protections—including legal counsel, notice and 

a hearing before a judicial decision-maker—before such 

persons may be involuntarily medicated.” App. 248 (Am.

Compl. ¶ 11).

The State moved to dismiss and argued that Disability 

Rights’ claims were precluded by our decisions in the Rennie

cases, but the District Court disagreed. Disability Rights N.J., 

Inc. v. Velez, 2011 WL 2976849, at *6–11 (D.N.J. July 20, 

2011). The Court observed that Rennie I “specifically held 

that the involuntarily committed patients were to be accorded 
10

no fewer constitutional protections than prisoners,” id. at *9

(citing 653 F.2d at 846), and the Supreme Court held in 

Harper (several years after Rennie) that mentally ill prisoners 

facing forcible medication were entitled to procedural 

protections that “dwarf[ed]” what the Rennie process 

provided, id. at *10. After the District Court denied most of 

the motion to dismiss, the State moved to vacate the 1984 

Rennie consent order, and the Court obliged in March 2012.

In June 2012, while Disability Rights’ lawsuit 

remained pending, the State replaced the Rennie process with 

two separate policies for forcible treatment in emergencies 

(AB 5:04A) and nonemergent situations (AB 5:04B). Under 

the emergency procedure of AB 5:04A, which Disability 

Rights has not challenged, a patient who “presents a risk of 

imminent or reasonably impending harm or danger to self or 

others” can be forcibly medicated for up to 72 hours unless a

less restrictive alternative method is available. App. 1423, 

1425. The patient must be reassessed every 24 hours to 

determine whether the emergency persists. 

The nonemergency policy challenged here, AB 5:04B

(the Policy), imposes more stringent requirements because it 

permits longer-term forcible medication. The Policy provides 

that a psychiatric patient can be forcibly medicated only if he 

has been involuntarily committed, “has been diagnosed with a 

mental illness, and, as a result of mental illness, poses a 

likelihood of serious harm to self, others, or property if 

psychotropic medication is not administered[.]” App. 1393. 

This means that there must be a “substantial risk” that the 

patient will do physical harm to himself, another person, or 

property “within the reasonably foreseeable future.” App. 

1396. A risk of harm to self must be indicated by “threats or 

attempts to commit suicide, or to inflict physical harm on 
11

one’s self, or by such severe self-neglect as evidenced by a 

dangerous deterioration in essential functioning and repeated 

and escalating loss of cognitive and volitional control as is 

essential for the individual’s health and safety”; a risk of 

harm to others must be indicated by “behavior which has 

caused [physical] harm or which places another person or 

persons in reasonable fear of sustaining such harm”; and a 

risk of harm to property must be indicated by “behavior 

which has caused substantial loss or damage to property.” Id.

Patients thought to satisfy the substantive requirements 

of the Policy may be forcibly medicated only pursuant to 

procedures that, though extensive, stop short of prior judicial 

review. First, the patient’s treating physician must complete 

an involuntary medication administration report, which

documents the patient’s diagnosis, the medication and dosage 

contemplated, the rationale for concluding that the patient 

satisfies the substantive standard outlined above, the less 

restrictive alternatives considered and rejected, the efforts 

made to explain to the patient the need for medication, and 

any objections expressed by the patient. Next, the hospital’s 

medical director appoints a three-person panel chaired by a 

psychiatrist who may be a hospital employee but who may 

not be currently involved in the patient’s treatment. The other 

members of the panel must be a hospital administrator and a 

clinician, neither of whom may be currently involved in the 

patient’s treatment.

At a medication review hearing held on the patient’s 

ward within five days of the involuntary medication 

administration report being submitted to the medical director, 

the panel hears evidence to determine whether to approve 

involuntary medication. The patient has the right to be 

notified of the hearing, attend the hearing, testify, present 
12

evidence and witnesses, cross-examine witnesses, and have a

mental health professional or legal counsel present (at the 

patient’s expense). The patient is also afforded the assistance 

of the hospital’s client services advocate, a psychiatric nurse 

who consults with the patient and assists him in presenting 

evidence and making objections at the hearing. After the 

hearing, involuntary medication will be authorized only if the 

chair and at least one other member of the panel agree that the 

substantive standard is satisfied. The patient has 24 hours to 

appeal the panel’s decision to the medical director, and 

administration of the medication can begin immediately if the 

panel’s decision is affirmed. Any further appeal must be 

made to the Appellate Division of the New Jersey Superior 

Court. See N.J. Ct. R. 2:2-3(a)(2).

The initial approval of forcible medication is valid for 

14 days. Within 12 days of that approval, the treating 

psychiatrist must report on “the patient’s positive and 

negative responses to the medication, what less restrictive 

interventions have been attempted or ruled out, and whether 

the patient is continuing to withhold consent.” App. 1400. A 

panel—which need not comprise the same people as before—

may then authorize forcible medication lasting up to 90 days.

Throughout that period, the treating prescriber must submit 

biweekly reports to the medical director detailing the patient’s 

progress. If, at the end of 90 days, the patient still does not 

consent to medication, the hospital must start the entire 

process over again in order to continue the forcible 

medication.

The Policy applies to all involuntarily committed 

psychiatric patients in New Jersey—including CEPP patients, 

though the State says it has been invoked against them “very 

rarely.” N.J. Br. 69 n.14. In 255 total medication review 
13

hearings held during the six months following the Policy’s 

implementation, panels approved medication in all but six 

cases, and medical directors affirmed in 55 out of 56 appeals.

App. 2658. In the District Court, Disability Rights attributed

this near-uniformity at least in part to the hospitals’ 

noncompliance with various components of the Policy and 

reliance on weak and stale evidence of dangerousness. 

II

New Jersey’s replacement of the Rennie process with 

the Policy did not resolve the litigation because the Policy did 

not go as far as Disability Rights requested in its complaint.

For example, the Policy did not require premedication judicial 

process, a “clear and convincing” showing of incompetence, a

right to counsel in medication review proceedings, or a right 

to appointed experts. See supra Section I-C. In November 

2012, the parties filed cross-motions for summary judgment.

At that point, the District Court had before it Disability 

Rights’ claims that the Policy on its face1 violated the ADA, 

the Rehabilitation Act, and the Due Process Clause of the 

Fourteenth Amendment (encompassing due process 

 

1 Although Disability Rights has repeatedly asserted 

during this litigation that the State has failed to consistently 

comply with its nonemergency forcible medication policies, it 

has done this to point up the policies’ shortcomings rather 

than to raise any as-applied claims. See, e.g., App. 459–60 

(“DRNJ admits that it challenges the [c]onstitutionality of 

[AB 5:04B] . . . . In pursuing this claim, however, DRNJ does 

not foreclose itself . . . from asserting that Defendants are 

failing to follow the New Policy. DRNJ admits that it is not 

challenging medical treatment decisions for any individual 

patients.”).
14

generally, the right of access to the courts, the right to 

counsel, and the incorporated First Amendment right to freely 

think and communicate).2 See Disability Rights, 974 F. Supp. 

2d at 711.

The District Court held that the Policy withstood 

Disability Rights’ statutory and constitutional challenges, 

except with respect to CEPP patients. As to non-CEPP 

patients, the Court rejected Disability Rights’ ADA and 

Rehabilitation Act claims on two grounds: first, that the 

Policy is a “legitimate safety requirement” permitted by 

federal regulation, id. at 739 (citing 28 C.F.R. § 35.130(h)); 

and second, that “‘adequate justification’ exists for 

differential treatment of the relevant class because the 

treatment is not based on disability, but based on a finding of 

dangerousness,” id. (quoting Olmstead v. L.C. ex rel. Zimring, 

527 U.S. 581, 612 (1999) (Kennedy, J., concurring in 

judgment)). As to CEPP patients, however, the Court granted 

summary judgment to Disability Rights on the statutory 

claims because those patients have already been found by a 

court of law not to be dangerous, and any “volatility” or 

relapse into dangerousness could be addressed using the 

emergency provisions of AB 5:04A or the recommitment 

process. Id. at 738.

The due process inquiry yielded the same results. With 

respect to non-CEPP patients, the District Court concluded 

that the Supreme Court’s analysis of the due process rights of 

prisoners in Harper required a decision in New Jersey’s 

 

2 The District Court dismissed a claim arising under 

the Equal Protection Clause of the Fourteenth Amendment in 

2011. Disability Rights, 2011 WL 2976849, at *15–16. 

Disability Rights did not appeal that decision.
15

favor. The Court concluded that the Policy and the procedure 

upheld in Harper are “strikingly similar” and applied the 

logic of that decision to the civil commitment context. Id. at 

724, 728. Again, the Court declined to extend this ruling to 

CEPP patients, holding that the State had “no interest in 

continuing to forcibly medicate” such people after they have 

been adjudicated not to be dangerous. Id. at 729. As for

Disability Rights’ claims based on the right to counsel, the 

right of access to the courts, and the right to think and 

communicate freely, the Court held that these claims were 

either duplicative of the general due process claim or could be 

resolved on the same grounds. See id. at 728, 729 n.9.

Having found the Policy valid except as to CEPP 

patients, the District Court enjoined New Jersey’s hospitals 

from using it to forcibly medicate CEPP patients but 

otherwise let it stand. See id. at 740. Disability Rights filed a 

timely notice of appeal, and the State followed with a timely 

cross-appeal.

III

The District Court had jurisdiction under 28 U.S.C. 

§§ 1331 and 1343(a). We have jurisdiction to review the 

District Court’s summary judgments under 28 U.S.C. § 1291.

We review summary judgments de novo, applying the 

same test as the District Court. MBIA Ins. Corp. v. Royal 

Indem. Co., 426 F.3d 204, 209 (3d Cir. 2005). Summary 

judgment is appropriate when “the movant shows that there is 

no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

“We may affirm a district court for any reason supported by 

the record.” Brightwell v. Lehman, 637 F.3d 187, 191 (3d Cir. 

2011).
16

IV

Title II of the ADA prohibits discrimination against 

the disabled in public services, programs, and activities. 

Tennessee v. Lane, 541 U.S. 509, 517 (2004). Its core 

provision states: “no qualified individual with a disability 

shall, by reason of such disability, be excluded from 

participation in or be denied the benefits of the services, 

programs, or activities of a public entity, or be subjected to 

discrimination by any such entity.”

3 42 U.S.C. § 12132. To 

state a prima facie case, a plaintiff must show that he is a 

“qualified individual with a disability”; that he was excluded 

from a service, program, or activity of a public entity; and 

that he was excluded because of his disability. Id. Public 

entities include States and their subdivisions, id. § 12131(1), 

and mental illness qualifies as a disability under the statute, 

id. § 12102(1)(A).

The antidiscrimination mandate of Title II is not 

absolute. Federal regulations excuse States from complying

with the ADA with respect to disabled people who pose a 

“direct threat” to others, as long as the States make these 

determinations using comprehensive “individualized 

 

3 Title II and its implementing regulations 

“incorporate[] the ‘non-discrimination principles’” of the 

Rehabilitation Act, Helen L. v. DiDario, 46 F.3d 325, 331 (3d 

Cir. 1995), and the statutes’ core provisions are substantively 

identical, see 29 U.S.C. § 794(a) (“No otherwise qualified 

individual with a disability . . . shall, solely by reason of her 

or his disability, be excluded from the participation in, be 

denied the benefits of, or be subjected to discrimination under 

any program or activity receiving Federal financial 

assistance[.]”). Hereafter we refer to the ADA alone.
17

assessment[s].” 28 C.F.R. § 35.139. States may also “impose 

legitimate safety requirements necessary for the safe 

operation of [their] services, programs, or activities” so long 

as such requirements “are based on actual risks, not on mere 

speculation, stereotypes, or generalizations about individuals 

with disabilities.” id. § 35.130(h). Finally, the regulations 

permit States to avoid Title II’s requirements when the 

modifications needed to ensure compliance would 

“fundamentally alter the nature of the service, program, or 

activity” at issue. id. § 35.130(b)(7).

Consistent with the District Court’s opinion, New 

Jersey’s defense of the Policy rests largely on these 

exceptions to Title II’s antidiscrimination mandate. In our 

view, however, there is a dispositive threshold question: does

the Policy exclude civilly committed psychiatric patients from 

a service, program, or activity of the State? In other words, is 

it actually discriminatory within the meaning of the ADA?

A

First we must determine the nature of the service, 

program, or activity posited by Disability Rights. At oral 

argument, Disability Rights limited the “service, program, or 

activity” from which psychiatric patients in New Jersey are 

allegedly excluded under the Policy to the right to judicial 

process before being administered medication in nonemergent 

situations. Yet in its briefing to the Court, Disability Rights 

inconsistently referred to the “service, program, or activity” 

as the right to refuse medical treatment. Our Court has made 

clear that the phrase “service, program, or activity” is 

extremely broad in scope and includes “anything a public 

entity does.” Yeskey v. Pa. Dep’t of Corr., 118 F.3d 168, 171 

(3d Cir. 1997); 28 C.F.R. § 35.130(b)(1)(vii) (Title II 

regulations provide that “[a] public entity, in providing any 
18

aid, benefit, or service, may not, directly or through 

contractual, licensing, or other arrangements, . . . limit a 

qualified individual with a disability in the enjoyment of any 

right, privilege, advantage, or opportunity enjoyed by others 

receiving the aid, benefit, or service.” (emphasis added)). 

Although we assume that the right to refuse medical treatment

(or another such right, whether it be common-law or 

statutory) could be a service, program, or activity within the 

meaning of Title II, this is not the service, program, or 

activity posited by Disability Rights. 

Disability Rights’ briefs betray considerable confusion 

over the nature of the service, program, or activity in 

question. At two pages of its opening brief, for example, 

Disability Rights indicates that the relevant service, program, 

or activity is the right to refuse treatment. See, e.g., Disability 

Rights Br. 22, 26. In between those statements, it contends 

that the service, program, or activity is New Jersey’s 

“provision of a wide range of medical services for persons 

with and without disabilities.” Id. at 23. Still other parts 

suggest that the service, program, or activity is actually the 

use of judicial process prior to forcible medication. See, e.g., 

id. at 1 (“[AB 5:04B] permits the State to override the most 

fundamental right of a person to be free of unwanted medical 

treatment . . . without any court authorization or supervision.”

(emphasis added)); Disability Rights Reply Br. 13–14 (“The 

issue here is whether the State can subject involuntarily 

committed persons with mental illness to special non-judicial 

procedures, taking away on ‘dangerousness’ grounds their 

right to refuse treatment for mental illness when no other 

person and no other type of illness (even if it is a dangerous 

illness) is subjected to this type of restriction.” (emphasis 

added)); id. at 23 (“The discrimination is evident from the 

face of AB 5:04B, because it only takes away the right of 
19

persons with mental illness to refuse medical treatment, while 

all other persons—regardless of their disease—retain the right 

to refuse treatment absent a court order requiring otherwise.” 

(emphasis added)). The same confusion is evident in 

Disability Rights’ memorandum in opposition to the State’s 

motion for summary judgment. Compare App. 2375–76 

(describing the service, program, or activity as either the right 

to refuse treatment or the provision of medical services) with

App. 2378 (“DRNJ does not dispute that psychotropic 

medication may be an important—even necessary—part of 

any individual patient’s treatment plan. However, this issue is 

factually and legally distinct from the necessity of a 

disparately applied policy permitting the forcible medication 

without a hearing and without representation.” (emphasis in 

original)).

This ambiguity prompted the Court to inquire about 

the identity of the relevant service, program, or activity at oral 

argument. Disability Rights cabined the service, program, or 

activity in question as a premedication judicial process:

The Court: What is the service[,] 

program or activity of the 

state from which your 

clients are excluded?

Disability Rights: The service[,] program or 

activity would be the right

to refuse treatment that will 

not be overcome by a 

judicial hearing, only by a 

judicial hearing.

. . . .
20

The Court: Please define as succinctly 

and slowly as you can—

because I think this is critical 

for the ADA claim—what is 

the service[,] program or 

activity[?] You started by 

saying it’s a process. . . . 

What process?

Disability Rights: A judicial hearing.

The Court: Okay. . . . All right. Then 

it’s not about forcible 

medication. You agree that 

people can be forcibly 

medicated, but you say 

[they] can’t be forcibly 

medicated unless they have 

a judicial hearing.

Disability Rights: Correct.

Tr. of Oral Arg. at 17–18. Other representations by Disability 

Rights during oral argument demonstrate that the relevant 

service, program, or activity is not the right to refuse 

treatment in general, but instead premedication judicial 

process. See, e.g., id. at 3 (“This case is about whether the 

state of New Jersey can, in the absence of an emergency, 

forcibly medicate competent persons in the state mental 

hospitals without a judicial hearing when no other group, no 

other illness can be forcibly treated without a judicial 

hearing.”); id. at 16 (“And the process is key to providing 

these individuals the same rights that every other person 

enjoys, which goes to our ADA argument, that every other 

person in New Jersey will not have the right to refuse 

treatment overridden absent a court order.”); id. at 45 (“[T]he 
21

issue is not that no other person is being forcibly medicated. 

It’s that if the state wants to forcibly medicate those 

individuals with those illnesses, they have to follow the 

process with a judicial hearing.”). These representations are 

consistent with the relief requested in Disability Rights’ 

amended complaint. See App. 321–22 (requesting as relief, 

inter alia, a “plan and schedule” to ensure that patients 

refusing to consent to the administration of psychotropic 

drugs receive a “judicial hearing,” “representation by counsel 

at said hearing,” a system for “appointing experienced and 

knowledgeable counsel,” appointing “independent expert 

witnesses” for patients, and requiring a “clear and convincing 

evidence” standard of proof for involuntary medication).

Courts routinely invite litigants to clarify their 

positions and legal theories at oral argument, and when 

litigants accept such invitations, courts routinely hold them to 

their representations. See, e.g., Wilkinson v. Austin, 545 U.S. 

209, 221 (2005) (recognizing a party’s withdrawal of a 

concession at argument); Frisby v. Schultz, 487 U.S. 474, 483 

(1988) (construing a municipal ordinance narrowly in 

accordance with the view expressed by the municipality 

during argument); Coar v. Kazimir, 990 F.2d 1413, 1415 n.2 

(3d Cir. 1993) (narrowing the scope of the dispute at issue 

based on a party’s representations at argument). We accept at 

face value Disability Rights’ assertions during oral argument 

that the relevant service, program, or activity is the right to 

premedication judicial process.

And it is proper to hold Disability Rights to its word 

because there is significant evidence that the service, 

program, or activity at issue in this case is, in fact, procedural 

in nature. As a general matter, the scope of a remedy for a 

violation of law is necessarily limited by the scope of the law 
22

itself. See, e.g., Missouri v. Jenkins, 515 U.S. 70, 88 (1995) 

(“The nature of the . . . remedy is to be determined by the 

nature and scope of the constitutional violation.” (internal 

quotation marks omitted)). In the context of a Title II case, 

the equitable remedy sought is generally an injunction 

requiring the defendant public entity to give the disabled 

plaintiff “meaningful access” to the service, program, or 

activity from which he has unlawfully been excluded on the 

basis of his disability. See, e.g., Lonberg v. City of Riverside, 

571 F.3d 846, 851 (9th Cir. 2009) (“[Title II’s] prohibition 

against discrimination is universally understood as a 

requirement to provide ‘meaningful access.’”); Henrietta D. 

v. Bloomberg, 331 F.3d 261, 282 (2d Cir. 2003) (noting that a 

“reasonable accommodation” is one that gives an otherwise 

qualified plaintiff with a disability “meaningful access” to the 

program or service sought). In other words, there is a nexus 

between the remedy sought and the service, program, or 

activity.

Here, there is no debate that the remedy demanded by 

Disability Rights is an order requiring New Jersey to provide 

judicial hearings (and associated procedural protections) prior 

to nonemergent forcible medication. Where, as here, a party 

clearly articulates the remedy sought but offers shifting or 

perhaps ambiguous indications as to the corresponding 

service, program, or activity, we can (and should) infer from 

that remedy the true identity of the service, program, or 

activity. See, e.g., Yeskey, 118 F.3d at 169–72 (holding that a 

prison “boot camp” program qualified as an service, program, 

or activity after a disabled prisoner sued to be allowed to 

participate), aff’d, 524 U.S. 206 (1998). The undisputed fact 

that Disability Rights seeks only a procedural remedy is thus 

compelling evidence that the service, program, or activity is 

procedural too.
23

We have determined—by looking to the briefs, the 

record, and oral argument—the nature of the claim Disability 

Rights itself chose to pursue. A party’s confusion over the 

contours of its own claim (whether inadvertent or strategic) 

does not excuse a court from construing it. And there is surely 

a difference between “constru[ing] ambiguous filings to make 

sense out of them,” as we do here, and “recharacterizing” a 

claim in order to give it a better chance of success. Mata v. 

Lynch, 135 S. Ct. 2150, 2157 (Thomas, J., dissenting). We 

therefore proceed on the understanding that the relevant 

service, program, or activity for purposes of the ADA claim is 

the right to judicial process before medication is forcibly 

administered in nonemergent situations.

B

The fatal defect in Disability Rights’ ADA claim is 

that this right does not exist in New Jersey for nondisabled 

people, which means the denial of that right to psychiatric 

patients is not discriminatory. All New Jersey citizens are 

entitled to the judicial processes attendant to civil 

commitment. After that point, however, and once an 

individual’s care is entrusted to the State, there are no 

additional premedication judicial processes available to 

anyone. In fact, Disability Rights repeatedly states in its 

opening brief that no one in the State but civilly committed 

psychiatric patients is subject to forcible medication at all. 

See, e.g., Disability Rights Br. 1 (“Notably, the State cannot 

forcibly treat persons with other illnesses without their 

consent, even if the State unequivocally believes those 

persons ‘need’ the treatment to get better.”); id. at 25 (“AB 

5:04B deprives persons with mental illness in state 

psychiatric hospitals of the right to refuse medical treatment 

even though persons without mental illness retain their right 
24

to refuse treatment[.]”). Our own review of New Jersey law 

persuades us that Disability Rights is basically correct. For 

example, mentally ill prisoners are subject to forcible 

medication, but they are entitled only to procedures that 

closely track the Policy. See N.J. Admin. Code § 10A:16-11.1 

et seq. Beyond prisoners and the civilly committed, New 

Jersey law broadly protects the right of hospital patients to 

refuse medication and treatment. See id. § 8:43G-4.1(a)(8).

The nonexistent provision of specific procedural protections 

before such forcible treatment occurs cannot be a service, 

program, or activity of the State.

In its reply brief, Disability Rights suggests that some 

other New Jerseyans are subject to court-ordered treatment 

without their consent. See, e.g., Disability Rights Reply Br. 6 

(“New Jersey courts consistently have held that legally 

competent adults have the right to refuse unwanted medical 

treatment, except in rare instances of an overriding court 

order.”). And, indeed, New Jersey law allows courts to order 

incompetent or incapacitated—i.e., disabled—people to 

undergo certain forms of medical treatment even though they 

are incapable of consenting. See, e.g., N.J. Stat. Ann. § 30:4-

24.2(d)(2) (allowing courts to order necessary “experimental 

research, shock treatment, psychosurgery or sterilization” of 

psychiatric patients adjudicated to be incapacitated); Matter 

of Jobes, 529 A.2d 434, 451 (N.J. 1987) (suggesting that 

judicial action can sometimes forestall the withdrawal of lifesustaining treatment from incompetent patients whose wishes 

are unknown).

But even if we set aside the critical distinctions 

between such scenarios and the treatment program at issue 

here, New Jersey’s provision of judicial process in those 

circumstances does not establish actionable discrimination 
25

under the ADA in this case. The fact that other disabled

people in the State may be entitled to judicial process before 

they are treated without their consent does not mean New 

Jersey violates the ADA by forcibly medicating psychiatric 

patients under the Policy. The ADA does not require

procedural uniformity in all public efforts to deal with the 

various challenges associated with caring for the disabled. In 

Traynor v. Turnage, the Supreme Court held that “nothing in 

the Rehabilitation Act”—which, as we have discussed, 

substantively parallels Title II—“requires that any benefit 

extended to one category of handicapped persons also be 

extended to all other categories of handicapped persons.” 485 

U.S. 535, 549 (1988); see also Ford v. Schering-Plough 

Corp., 145 F.3d 601, 608 (3d Cir. 1998) (“The ADA does not 

require equal coverage for every type of disability[.]”);

Nondiscrimination on the Basis of Disability in State and 

Local Government Services, 56 Fed. Reg. 35,694, 35,705

(July 26, 1991) (“State and local governments may provide 

special benefits . . . that are limited to individuals with 

disabilities or a particular class of individuals with 

disabilities[] without thereby incurring additional obligations 

to persons without disabilities or to other classes of 

individuals with disabilities.” (discussing 28 C.F.R. 

§ 35.130(c))). The mere fact that a State’s law provides for 

judicial process before certain disabled people can be 

medically treated without their informed consent does not 

mean the State must follow identical procedures when it 

permits other disabled people to be treated against their will. 

In short, Disability Rights has not cited and we are unaware 

of any case holding that a Title II violation can be stated in 

the absence of an allegation that a qualified person with a 
26

disability has been denied access to a public service, program, 

or activity to which nondisabled people have access.4

In support of its ADA claim, Disability Rights leans

heavily upon Hargrave v. Vermont, in which the Court of 

Appeals for the Second Circuit held that a Vermont statute 

violated Title II. 340 F.3d 27 (2d Cir. 2003). The statute at 

issue altered Vermont law relating to the durable power of 

attorney for health care (DPOA), a document that appoints a 

guardian to make health-care decisions in the event of the 

executor’s incapacity and “articulat[es] preferences for or 

limitations on treatment.” Hargrave, 340 F.3d at 31. Prior to 

the law, a DPOA could be revoked only by the executor 

himself or by a probate court in conjunction with the 

appointment of a guardian for the executor. Id. The law

 

4 The only apparent exception to this rule arises in the 

context of unnecessary institutionalization, which is not the 

conduct at issue here. See Olmstead, 527 U.S. at 598 (holding 

that unjustified institutionalization of disabled people who are 

qualified for noninstitutional care can violate Title II even 

when no nondisabled people are given preferential treatment); 

Helen L., 46 F.3d at 332–33. Significantly, these cases rely on 

the “integration mandate,” a regulation obligating States to 

administer services in the “most integrated setting appropriate 

to the needs of qualified individuals with disabilities” and 

effectively defining unnecessary institutionalization as a form 

of discrimination under Title II. 28 C.F.R. § 35.130(d). 

Disability Rights neither invokes the integration mandate nor 

identifies anything in the ADA or its implementing 

regulations providing that a State’s procedural inconsistency 

in confronting different disability-related issues was a 

problem Congress intended to eliminate.
27

authorized health care professionals at state psychiatric 

hospitals to petition a court to override a civilly committed 

person’s DPOA to permit forcible medication in 

nonemergency situations. See id. Nancy Hargrave, an 

involuntarily committed woman suffering from 

schizophrenia, sued to enjoin enforcement of the law after 

being forcibly medicated and executing a DPOA refusing

further treatment with “any and all anti-psychotic, 

neuroleptic, psychotropic or psychoactive medications.” Id. at 

32 (internal quotation marks omitted).

In holding that the law violated Title II, the Second 

Circuit concluded that it unlawfully discriminated against 

mentally ill people by enabling Vermont to override their 

refusal of medical treatment, a power the State could not exert 

over others. Id. at 38 (characterizing the relevant service, 

program, or activity as “the statutorily created opportunity to 

execute a DPOA for health care and the right to have it 

recognized and followed” (internal quotation marks omitted)). 

Hargrave identified a service, program, or activity that was 

made available to everyone (i.e., Vermont’s policy of 

recognizing DPOAs that could not be overridden on the 

motion of a doctor) and alleged that she had been excluded 

therefrom because of her disability. Conversely, here 

Disability Rights posits a service, program, or activity (the 

use of judicial hearings and attendant procedural protections 

prior to nonemergency forcible medication) that does not 

exist for any nondisabled people. Hargrave thus supports our 

view that a Title II claim must allege that a disabled person 

has been denied some benefit that a public entity has 

extended to nondisabled people—a burden Disability Rights 

does not carry here.
28

C

Excusing this defect in Disability Rights’ legal theory 

would be problematic. We note that Disability Rights would 

have us unravel a policy that may well be equal or superior to

the judicial model it demands.5 The State asserts that the 

Policy was developed at least in part with bona fide concerns 

for patient welfare in mind. See N.J. Br. 10–11. Disability 

Rights has not produced any evidence that judicial hearings 

would more effectively prevent unnecessary medication than 

the Policy—for example, it has not shown that psychiatric 

patients are medicated with appreciably less frequency in 

States that do provide judicial process.6 See App. 298 (Am. 

 

5

In addition, allowing such a challenge could 

improperly transform the ADA from an antidiscrimination 

statute into a law regulating the quality of care the States 

provide to the disabled. See Olmstead, 527 U.S. at 603 n.14 

(“We do not in this opinion hold that the ADA imposes on the 

States a ‘standard of care’ for whatever medical services they 

render, or that the ADA requires States to ‘provide a certain 

level of benefits to individuals with disabilities.’”). To do so 

would impose “significant federalism costs” by subverting 

“the States’ historical role as the dominant authority 

responsible for providing services to individuals with 

disabilities.” Id. at 624–25 (Thomas, J., dissenting).

6 At least as to non-CEPP patients, it would be 

surprising if judicial hearings had a significant impact on the 

frequency of forcible medication in New Jersey. When a New 

Jersey judge commits a mentally ill person to state custody, 

he orders “involuntary commitment to treatment.” N.J. Stat. 

Ann. § 30:4-27.10 (emphasis added). In addition, the 

substantive standards for involuntary commitment and 
29

Compl. ¶ 147) (listing 29 States in which psychiatric patients 

are entitled to judicial hearings before being forcibly 

medicated). While it urges us to extend the coverage of Title 

II beyond what the statute will bear, Disability Rights also 

fails to show that invalidating the Policy would actually serve 

the interests of psychiatric patients in New Jersey.

For the reasons stated, we hold that Disability Rights

has failed to allege a prima facie violation of Title II of the 

ADA because the provision of judicial process before the 

nonemergent administration of psychotropic drugs is not a 

“service, program, or activity” of New Jersey from which the 

civilly committed are excluded. Since this flaw in Disability 

Rights’ ADA claim applies equally to CEPP and non-CEPP 

patients, we will affirm the District Court’s summary 

judgment for New Jersey as to the non-CEPP patients and 

reverse the summary judgment for Disability Rights as to the 

CEPP patients on the ADA claim.

V

Having rejected Disability Rights’ statutory claims, we 

turn now to its constitutional claims. The District Court split 

its analysis of the due process claim into substantive and 

 

forcible medication are so strikingly similar that different 

results at the same patient’s commitment and medication 

hearings are unlikely. Civil commitment requires a substantial 

likelihood that the person will harm himself, others, or 

property “within the reasonably foreseeable future.” Id. § 

30:4-27.2(h)–(i). For a person to be forcibly medicated under 

the Policy, there must be a “substantial risk” that, “within the 

reasonably foreseeable future,” the patient will do “serious 

harm to self, others, or property if psychotropic medication is 

not administered[.]” App. 1393, 1396.
30

procedural components, but we focus on procedural due 

process. Because the due process analysis is different for nonCEPP and CEPP patients, we evaluate them separately.

A

As the Policy relates to non-CEPP patients, our 

analysis is guided by Harper, in which the Supreme Court 

held that a prison procedure virtually identical to the Policy

satisfied due process. In that case, Washington State confined 

Harper, a convicted felon, to its Special Offender Center, a 

facility housing prisoners with serious mental illnesses. 494 

U.S. at 214. After the State treated Harper with antipsychotic 

drugs against his will, Harper filed a § 1983 suit “claiming 

that the failure to provide a judicial hearing before the 

involuntary administration of antipsychotic medication” 

violated the Due Process Clause. Id. at 217. As Disability 

Rights admits, New Jersey’s Policy is essentially identical to 

the Washington policy at issue in Harper, which required 

approval of forcible medication by a three-person committee 

accompanied by various other procedural protections. See

Disability Rights Reply Br. 33 n.6 (resisting New Jersey’s

argument that the Policy is more protective by claiming that 

the only two differences are illusory).

The Supreme Court began its review of the 

Washington policy by holding that, in light of the side effects 

and mind-altering nature of psychotropic drugs, Harper had

“a significant liberty interest in avoiding the unwanted 

administration of antipsychotic drugs under the Due Process 

Clause,” Harper, 494 U.S. at 221, but that this interest could 

be outweighed in appropriate circumstances by “the State’s 

interests in prison safety and security,” id. at 223. It rejected 

the notion that the Due Process Clause forbids a State from 

forcibly medicating a prisoner unless he has been found to be 
31

incompetent. Id. at 222. The Court then proceeded to consider 

the procedural sufficiency of the Washington policy using the 

balancing test of Mathews v. Eldridge, 424 U.S. 319 (1976). 

Although the Court acknowledged Harper’s strong interest in 

refusing unwanted treatment, it rejected the notion that 

forcible medication decisions had to be made by judges rather 

than medical professionals. See Harper, 494 U.S. at 229–31. 

“The risks associated with antipsychotic drugs are for the 

most part medical ones, best assessed by medical 

professionals,” the Court said. Id. at 233. “A State may 

conclude with good reason that a judicial hearing will not be 

as effective, as continuous, or as probing as administrative 

review using medical decisionmakers.” Id. The Court also 

specifically dismissed Harper’s complaints that the 

Washington policy did not require a “clear and convincing” 

standard of proof or the right to counsel. Id. at 235–36.

Attempting to distinguish Harper, Disability Rights 

insists repeatedly: “New Jersey psychiatric hospitals are not 

prisons and their patients are not prisoners.” Disability Rights 

Reply Br. 30 (emphasis in original); see also Disability Rights 

Br. 2, 46, 53, 55–57. For support, it quotes caselaw holding 

that involuntarily committed people “are entitled to more 

considerate treatment and conditions of confinement than 

criminals.” Disability Rights Br. 53 (quoting Youngberg, 457 

U.S. at 321–22). But Disability Rights omits a critical part of 

the quotation from Youngberg: “Persons who have been 

involuntarily committed are entitled to more considerate 

treatment and conditions of confinement than criminals whose 

conditions of confinement are designed to punish,” the Court 

wrote. 457 U.S. at 321–22 (emphasis added). It is indisputable 

that the Due Process Clause permits harsher treatment of 

prisoners than civilly committed people insofar as the harsher 

treatment relates to the punitive nature of incarceration. But the 
32

Supreme Court has repeatedly stated that forcible treatment of 

mentally ill prisoners cannot be a component of a State’s 

program of punishment. See Harper, 494 U.S. at 241 (“Forced 

administration of antipsychotic medication may not be used as 

a form of punishment.”); Vitek v. Jones, 445 U.S. 480, 493 

(1980) (“[I]nvoluntary commitment to a mental hospital is not 

within the range of conditions of confinement to which a 

prison sentence subjects an individual.”). This principle is 

borne out by the Supreme Court’s indication that the logic of 

Harper applies to the forcible medication of pretrial detainees. 

See Riggins v. Nevada, 504 U.S. 127, 135 (1992).

Because forced administration of psychotropic drugs 

can be used only for safety and treatment reasons in both the 

prison and civil commitment contexts, there is no relevant 

distinction between Harper and this case for due process 

purposes, at least with respect to non-CEPP patients. See 

Jurasek v. Utah State Hosp., 158 F.3d 506, 511 (10th Cir. 

1998) (rejecting a similar due process challenge to forcible 

medication on the ground that Harper applies in the civil 

commitment context as long as similar procedural protections 

are afforded). It would be passing strange if due process were 

to permit the State to forcibly medicate a criminal whose 

conviction bears no suggestion of physical dangerousness 

without a judicial hearing, while mandating judicial hearings 

for mentally ill people who have already been adjudicated to 

be so dangerous as to require civil commitment. Therefore, 

we will affirm the District Court’s summary judgment in 

favor of New Jersey on the due process claim with respect to 

non-CEPP patients.

B

As for CEPP patients—individuals who have been 

found by a court to no longer be sufficiently dangerous to 
33

need involuntary confinement, but who remain in custody 

pending transfer to an appropriate community-based 

placement—we agree with the District Court that the due 

process claim has merit. Disability Rights is correct that 

Harper, which did not address situations in which a State 

wishes to forcibly medicate a person who has already been 

adjudicated by a court to be nondangerous, does not control 

with respect to CEPP patients. Accordingly, we turn to the 

familiar Mathews v. Eldridge balancing test. See Harper, 494 

U.S. at 229 (using Mathews to analyze procedural due process 

rights in the forcible medication context).

Mathews requires us to weigh three factors: (1) “the 

private interest that will be affected by the official action”; (2) 

“the risk of an erroneous deprivation of such interest through 

the procedures used, and the probable value, if any, of 

additional or substitute procedural safeguards”; and (3) “the 

Government’s interest, including the function involved and 

the fiscal and administrative burdens that the additional or 

substitute procedural requirement would entail.” 424 U.S. at 

335. Application of these factors persuades us to agree with 

the District Court that the Policy violates the Due Process 

Clause with respect to CEPP patients.

First, as the Supreme Court held in Harper, an 

individual’s interest in avoiding the unwarranted 

administration of psychotropic drugs is, to say the least, “not 

insubstantial.” 494 U.S. at 229. Psychotropic medication 

alters and regulates the patient’s cognitive processes and can 

trigger serious side effects. Id. at 229–30. A patient’s interest 

in avoiding such an invasion of his bodily integrity can only 

be greater when a court of law has already declared him fit to 

return to life in the community.
34

Meanwhile, the risk of erroneous results in the absence 

of a judicial hearing is considerably higher than in the nonCEPP context. When New Jersey applies the Policy to a 

CEPP patient, it effectively vacates a court’s prior 

determination that the patient is not dangerous. Such a 

decision may be appropriate in some circumstances—CEPP 

patients are only entitled to judicial review hearings every six 

months after their first 60 days on CEPP status, so they have 

plenty of time in State custody in which to relapse into 

dangerousness. See N.J. Ct. R. 4:74-7(h)(2). But allowing the 

Policy to be applied to CEPP patients would permit the State 

to forcibly medicate a patient just a few days after a judge has 

deemed the patient no longer dangerous. In such 

circumstances, due process may require the hospital and the 

commitment court to agree that the basis for a previous 

judicial finding of nondangerousness no longer exists.

Finally, the State’s interest in denying judicial process 

to CEPP patients seems slight. Although we disagree with the 

District Court’s statement that the State “has no interest in 

continuing to forcibly medicate” CEPP patients, Disability 

Rights N.J., 974 F. Supp. 2d at 729, New Jersey admits that it 

has “very rarely” sought to forcibly medicate CEPP patients 

pursuant to the Policy, N.J. Br. 69 n.14. For those CEPP 

patients who do relapse while in custody, the State may 

invoke AB 5:04A to address any emergency until a judicial 

hearing can be held. And if providing judicial process for all

psychiatric patients would result in just a five-percent 

increase in hearings, as Disability Rights asserts and the State 

does not contest, see Disability Rights Br. 37, then the “fiscal 

or administrative burden[]” imposed on New Jersey by a 

judicial hearing requirement for CEPP patients would be light 

indeed, Mathews, 424 U.S. at 335.
35

The balance among these three factors convinces us 

that, as the District Court held, the State cannot apply the 

Policy to CEPP patients consistent with due process of law. 

To hold otherwise would permit psychiatric hospitals to 

forcibly treat patients with mind-altering drugs even after a 

judge has ruled that the factual basis for their continued civil 

commitment has disappeared. If a patient actually remains so 

dangerous as to require long-term, nonemergent forcible 

medication, the appropriate course for the State is to 

recommit the patient through normal judicial channels, not to 

leave the patient on CEPP status. We will therefore affirm the 

District Court’s summary judgment for Disability Rights on 

the due process claim with respect to CEPP patients.

Our analysis effectively disposes of the constitutional 

claims arising under the right of access to the courts, the right

to counsel, and the right to freely think and communicate. 

Harper, as discussed above, squarely rejects the first two of 

those claims. See 494 U.S. at 231 (“[W]e conclude that an 

inmate’s interests are adequately protected, and perhaps better 

served, by allowing the decision to medicate to be made by 

medical professionals rather than a judge.”); id. at 236 (“[I]t 

is less than crystal clear why lawyers must be available to 

identify possible errors in medical judgment.” (quoting

Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 

330 (1985))). The claim based on the right to freely think and 

communicate is duplicative of the general due process claim 

and can be resolved on the same grounds. We have long held 

that a civilly committed person’s right to be free from 

unwanted treatment with mind-altering drugs is a qualified 

one, see Rennie II, 720 F.2d at 272 (Seitz, C.J., concurring), 

and there is no reason to think that the Harper hearings 

provided under the Policy impermissibly infringe upon that 

right.
36

* * *

In implementing the Policy, the State of New Jersey 

discharged one of its most important and daunting

responsibilities: the care and custody of people too mentally 

ill to live in freedom. New Jersey determined that, while 

judges have an important role to play in the civil commitment 

process, matters of medical treatment are more appropriately 

handled by medical professionals. We conclude that the 

State’s approach comports with the demands of the 

Constitution and the Americans with Disabilities Act, except 

as to CEPP patients, whose constitutional rights entitle them 

to judicial process before psychotropic medication may be 

forcibly administered. An appropriate order follows.