1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-31-1995

Helen v DiDario

Precedential or Non-Precedential:

Docket 94-1243

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Recommended Citation

"Helen v DiDario" (1995). 1995 Decisions. Paper 27.

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 94-1243 

 

 HELEN L., BEVERLY D., FLORENCE H., 

 ILENE F., IDELL S., and AMERICAN DISABLED 

 FOR ATTENDANT PROGRAMS TODAY ("A.D.A.P.T.") 

 Idell S., Appellant 

v. 

 ALBERT L. DiDARIO, individually and in his 

 official capacity as Superintendent of Norristown 

 State Hospital, and KAREN F. SNIDER, in her capacity 

 as Secretary, Pennsylvania Department of Public Welfare 

 Karen F. Snider, Appellee 

 

 Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Civil Action No. 92-6054) 

 

 Argued September 13, 1994 

 Before: MANSMANN, COWEN and McKEE, Circuit Judges

 Opinion Filed: January 31, l995 

 

 ILENE SHANE, ESQ. 

 ROBIN RESNICK, ESQ. 

 Disabilities Law Project 

 801 Arch Street, Suite 610 

 Philadelphia, PA 19107 

 STEPHEN F. GOLD, ESQ. (Argued) 

 Suite 700 

 125 South 9th Street 

 Philadelphia, PA 19107 
 Attorneys for Appellant

 JOHN A. KANE, ESQ. 

 HOWARD ULAN, ESQ. (Argued) 

 Department of Public Welfare 

 Office of Legal Counsel 

 Room 305, Health & Welfare Building 

 Harrisburg, PA 17120 

 Attorneys for Appellee

 DEVAL L. PATRICK, ESQ. 

 DAVID K. FLYNN, ESQ. 

 REBECCA K. TROTH, ESQ. (Argued) 

 United States of America 

 Department of Justice 

 P.O. Box 66078 

 Washington, D.C. 20035 

 Attorneys for the United States

 as Amicus Curiae1

 

 OPINION OF THE COURT 

McKEE, Circuit Judge

 We are asked to decide if the Pennsylvania Department of 

Public Welfare (“DPW")2 is violating Title II of the Americans 

with Disabilities Act (the “ADA” or the “Act”), 42 U.S.C. § 

 

 1 The United States Department of Justice has filed an 

Amicus Brief. 42 U.S.C. §12133 charges the Department with 

enforcement of Title II of the ADA. Pursuant to 42 U.S.C. 

12134(a) and 42 U.S.C. 12206(c)(3), the Department has issued 

regulations and a Technical Assistance Manual interpreting Title 

II. See 28 C.F.R. part 35 (1993); The Americans with 

Disabilities Act Title II Technical Assistance Manual (1993). 

 

2Although Karen F. Snider is the named defendant in this 

lawsuit, she was sued in her capacity as the Secretary of the 

Pennsylvania Department of Public Welfare. We will, therefore, 

refer to the defendant as the Department of Public Welfare 

("DPW"), rather than Snider. 
12132, by the manner in which it operates its attendant care and 

nursing home programs. Idell S. alleges that DPW is violating 

the ADA by requiring that she receive required care services in 

the segregated setting of a nursing home rather than through 

DPW's attendant care program. That program would allow her to 

receive those services in her own home where she could reside 

with her children. The district court ruled that DPW is not 

violating the ADA because it is not discriminating against Idell 

S. For the reasons that follow we will reverse. 

I.

 In January of 1994, Idell S. filed an uncontested motion to 

join a lawsuit which had previously been filed by Beverly D., and 

Ilene F., who were also nursing home residents.3 The suit alleged 

 

 

3 Helen L., the original plaintiff in this law suit, was a 

patient at Norristown State Hospital when her suit was filed. 

She asserted a constitutional claim against Albert DiDario (the 

Superintendent of that facility) for alleged violations of her 

Fourteenth Amendment rights for failing to place her in an 

appropriate community setting and for unnecessarily maintaining 

her in Norristown State Hospital. Although she alleged a claim 

under the ADA, she has since been discharged from Norristown 

State Hospital and thereafter pursed only a claim for damages for 

the alleged violation of her constitutional rights. Memorandum 

Opinion, at 15-6. 

 In November of 1992, Beverly D. and Ilene F., joined Helen 

L.'s law suit and an Amended Complaint was filed asserting a 

claim on their behalf against Karen F. Snider, as the Secretary 

of the Pennsylvania Department of Public Welfare. In April of 

1993, they filed a motion for a preliminary injunction on their 

ADA claim. After the parties agreed to a Stipulation of Facts, 

the motion for preliminary injunction was converted to one for 
that DPW had violated Title II of the ADA by providing services 

in a nursing home rather than in the “most integrated setting 

appropriate" to the plaintiffs' needs, and sought declaratory and 

injunctive relief. 

 Thereafter, Beverly D. and Ilene F. filed for an uncontested 

voluntary dismissal of their claim because they had been 

discharged from the nursing home. At the same time, Idell S. 

moved for summary judgment based upon an Amended Stipulation of 

Facts. Prior to ruling on the joinder and voluntary dismissal 

motions, the district court issued a Memorandum and Order dated 

January 27, 1994, granting summary judgment against Beverly D. 

and Ilene F. and in favor of DPW. On February 2, 1994, the 

district court issued an Order dismissing Beverly D. and Eileen 

F. as plaintiffs and adding Idell S. as a plaintiff. The court 

also ruled that “[f]or the reasons stated in the Memorandum filed 

January 27, 1994, the motion for summary judgment of Idell S. is 

denied and judgment is entered in favor of defendants and against 

. . . Idell S. . . . ." 

 Idell S. then filed this appeal.4 

 

summary judgment, and DPW filed a cross-motion for summary 

judgment. 

 

4 In the same Memorandum and Order which denied Idell S.’s 

motion for summary judgment, the district court denied a motion 

for summary judgment filed by DiDario and DiDario appealed. 

DiDario’s appeal did not involve any questions of law or fact in 

common with Idell S.’s appeal. On May 13, 1994, we entered an 

Order dismissing DiDario’s appeal for lack of appellate 

jurisdiction because the district court Order appealed from was 

not a final order. 
II.

 Idell S. is 43 years old and the mother of two children ages 

22 and 14.5 In 1973 she contracted meningitis which left her 

paralyzed from the waist down and greatly reduced her ability to 

care for herself. As a result, she has been a patient at the 

Philadelphia Nursing Home since December 26, 1989. Idell S. uses 

a wheelchair for locomotion and requires assistance with certain 

activities of daily living including bathing, laundry, shopping, 

getting in and out of bed, and house cleaning. She is able to 

cook, dress herself (except for her shoes and socks), attend to 

her personal hygiene (using a transfer board to access the 

toilet) and to her grooming. The parties agree that, although 

Idell S. is not capable of fully independent living, she is not 

so incapacitated that she needs the custodial care of a nursing 

home. 

 

 Following the issuance of the February 2, 1994 Order 

granting summary judgment in favor of Snider and against Idell 

S., the district court issued a Rule 54(b) Certification and 

Order on February 8, 1994, directing the Clerk to enter final 

judgment in favor of defendant Snider against Idell S. Because 

Idell S.’s sole claim was disposed of, the certification creates 

a final judgment subject to appeal pursuant to 28 U.S.C. §1291. 

See, Tilden Financial Corp. v. Palo Tire Service, 596 F.2d 604, 

607 (3d Cir. 1979). 

 Plaintiffs Florence H. and ADAPT were not parties to the 

summary judgment motions in the district court. ADAPT’s motion 

for voluntary dismissal was granted by the district court on 

February 18, 1994. 

 

5The essential facts surrounding this controversy are not in 

dispute. They are contained in an Amended Stipulation of Facts 

submitted to the district court in January of 1994. 
 DPW operates two different programs that provide physically 

disabled persons with assistance in daily living. DPW funds 

nursing home residence through the Medical Assistance program 

(“Medicaid”), and it operates an “attendant care program” under 

62 Pa. Cons. Stat. Ann. §§ 3051-3055 (the “Care Act”). The 

attendant care program provides “[t]hose basic and ancillary 

services which enable an individual [with physical disabilities] 

to live in his[/her] home and community rather than in an 

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

and mobility.” 62 Pa. Cons. Stat. Ann. §§ 3052, 3054. DPW's 

average cost of caring for a person in a nursing home is $45,000 

per year. The Commonwealth pays 44% of this amount ($19,800) and 

the difference ($24,200) is paid by the federal government. 

DPW’s average cost of caring for a person in the attendant care 

program is $10,500 per year. That amount is totally borne by the 

Commonwealth. 

 Homemaker Service of the Metropolitan Area, Inc. (“HSMA") 

contracts with DPW to operate an attendant care program. “The 

[s]ervice [provided by HSMA] consists of those basic and 

ancillary services which enable eligible individuals to live in 

their own homes and communities rather than in institutions and 

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

Amended Stipulation of Facts, ¶ 35. The program thus allows 

eligible individuals: “1. [t]o live in the least restrictive 

environment as independently as possible; 2. [t]o remain in their 
homes and to prevent their inappropriate institutionalization. . 

. .” Id. at ¶36. 

 In 1993, HSMA evaluated Idell S. and determined that she was 

eligible for attendant care services. However, because of a lack 

of funding, she was placed on a waiting list for that program and 

continues living in a nursing home, separated from her children. 

The parties agree that if Idell S. were enrolled in the attendant 

care program, nursing home care would be inappropriate.6 Except 

for access to skilled nursing care which she neither needs nor 

wants, Idell S. receives the same kind of services in the nursing 

home that the attendant care program would provide. “DPW has not 

applied for reimbursement under the Medical Assistance statute 

for personal care/attendant care services in the community,” 

Amended Stipulation of Facts ¶41, nor has it “requested Medical 

Assistance dollars be available for Attendant Care Services in 

the Community.” Id. at ¶37. Consequently, the Commonwealth 

continues to spend approximately $45,000 a year to keep Idell S. 

confined in a nursing home rather then spend considerably less to 

provide her with appropriate care in her own home. 

 Because she is required to receive services in a nursing 

home, Idell S. has no contacts with non-disabled persons other 

 

 

6 The parties have stipulated that “[t]he setting for the 

provision of attendant care services appropriate to the needs of 

Idell S. is in the community.” Amended Stipulation of Facts ¶29. 

The parties further agree that “[w]ith attendant care services in 

the community, nursing home care would not be appropriate for 

Idell S.” Id., at ¶32. 
than the staff of the nursing home and visits from her two 

children. Idell S. claims that this violates Title II of the ADA. 

III. 

 The standard of review applicable to a grant of summary 

judgment is plenary. Bixler v. Central Pa. Teamsters Health & 

Welfare Fund, 12 F.3d 1292, 1297 (3d Cir. 1993). "On review, the 

appellate court is required to apply the same test the district 

court should have utilized initially." Goodman v. Mead Johnson & 

Co., 535 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 

1038 (1977). A motion for summary judgment shall be granted if 

the court determines "that there is no genuine issue as to any 

material fact and that the moving party is entitled to judgment 

as a matter of law." Fed. R. Civ. P. 56(c). The district court's 

interpretation of a federal regulation is a question of law 

subject to plenary review. ADAPT v. Skinner, 881 F.2d 1184, 1191 

n. 6 (3d Cir. 1989). 

 The district court ruled that Idell S. was 

 [d]enied attendant care services because of a 

lack of funds. [The record] does not 

demonstrate that [she has] been denied 

funding for attendant care services because 

[she] is disabled. [Her] failure to show 

that [she] has been excluded from the 

attendant care services program on the basis 

of [her] disability is fatal to [her] claim. 

Memorandum Opinion at 11. We disagree. 

 

A. 
 In order to appreciate the scope of the ADA and its 

attendant regulations, it is necessary to examine the 

circumstances leading to its enactment. Section 504 of the 

Rehabilitation Act of 1973, 29 U.S.C. § 794, was the first broad 

federal statute aimed at eradicating discrimination against 

individuals with disabilities.7 “Section 504 of the 

Rehabilitation Act of 1973, [is] commonly known as the civil 

rights bill of the disabled.” ADAPT v. Skinner, 881 F.2d at 1187. 

Section 504 now reads in relevant part: 

 No otherwise qualified individual with a 

disability...shall, solely by reason of her 

or his disability, be excluded from the 

participation in, be denied the benefits of, 

or be subjected to discrimination under any 

program or activity receiving Federal 

financial assistance.... 

29 U.S.C. § 794 (Supp. 1994).8 Section 504's sponsors described 

it as a response to "’previous societal neglect’" and introduced 

 

 

7 The law developed under section 504 of the Rehabilitation 

Act is applicable to Title II of the ADA. See, Easley v. Snider, 

36 F.3d 297 (3d. Cir. 1994). See also, 28 C.F.R. § 35.103 

("[T]his part [applying to the ADA] shall not be construed to 

apply a lesser standard than the standards applied under title V 

of the Rehabilitation Act of 1973 (29 U.S.C. 791)"). 

 

8 The general prohibition against disability-based 

discrimination contained in §504 was first proposed in the 92nd 

Congress as an amendment to Title VI of the Civil Rights Act of 

1964, 42 U.S.C. § 2000d et seq. Although it was ultimately 

enacted by the 93rd Congress as part of a pending Vocational 

Rehabilitation Act, its language was patterned after other civil 

rights statutes. Alexander v. Choate, 469 U.S. 287, 296 n. 13 

(1985). The language of section 504 is virtually identical to 

that of section 601 of Title VI of the Civil Rights Act of 1964 

that bars discrimination based upon race, color or national 

origin in federally-assisted programs. Consolidated Rail Corp. 

v. Darrone, 465 U.S. 624, 626 (1984). 
it to rectify “the country’s ‘shameful oversights’ which caused 

the handicapped to live among society ‘shunted aside, hidden and 

ignored.’" Alexander v. Choate, 469 U.S. 287, 296 (1985). 

 On April 26, 1976 then-President Gerald Ford signed 

Executive Order No. 11914, 3 C.F.R. 117 (1977), which authorized 

the Department of Health, Education and Welfare to coordinate 

enforcement of section 504 and which required the Secretary of 

HEW to promulgate regulations for enforcement.9 Subsequently, 

HEW's section 504 rulemaking and enforcement authority was 

transferred to the Department of Health and Human Services 

(“HHS”). See 20 U.S.C. § 3508. 

 On November 2, 1980, President Carter signed Executive Order 

No. 12250, 45 Fed. Reg. 72995, entitled "Leadership and 

Coordination of Nondiscrimination Laws". That Executive Order 

transferred HHS’s coordination and enforcement authority to the 

Attorney General. Section 1-105 of that Executive Order provided 

 

 As originally enacted, section 504 referred to a 

"handicapped" individual being discriminated against solely by 

reason of a "handicap". The change in nomenclature from 

“handicap” to “disability” reflects Congress’ awareness that 

individuals with disabilities find the term “handicapped" 

objectionable. Burgdorf, The Americans with Disabilities Act: 

Analysis and Implication of a Second-Generation Civil Rights 

Statute, 26 Harv. C.R. - C.L. L.Rev. 413, 522 n. 7 (1991). 

 

 

9 The Rehabilitation Act did not mandate that any 

regulations be promulgated. Accordingly the Department of Health, 

Education and Welfare (now the Department of Health and Human 

Services), did not promulgate any regulations to implement that 

Act. Southeastern Community College v. Davis, 442 U.S. 397, 404 

n. 4 (1979). 
that the HHS guidelines "shall be deemed to have been issued by 

the Attorney General pursuant to this Order and shall continue in 

effect until revoked or modified by the Attorney General." 

Thereafter, the Department of Justice adopted the HHS 

coordination and enforcement regulations and transferred them 

from 45 C.F.R. part 84 to 28 C.F.R. part 41, 46 Fed. Reg. 40686. 

(the “coordination regulations.") The section 504 coordination 

regulations begin by stating that the purpose of 28 C.F.R. part 

41 is to “implement Executive Order 12250, which requires the 

Department of Justice to coordinate the implementation of section 

504 of the Rehabilitation Act of 1973." 28 C.F.R. § 41.1. A 

subsequent section requires all federal agencies to issue 

regulations “to implement section 504 with respect to programs 

and activities to which it provides assistance." 28 C.F.R. § 

41.4. The coordination regulations contain a separate section 

which lists a number of general prohibitions against disabilitybased discrimination. 28 C.F.R. § 41.51. That section mandates 

that all recipients of federal financial assistance “shall 

administer programs and activities in the most integrated setting 

appropriate to the needs of qualified handicapped persons." 28 

C.F.R. § 41.51(d). 

 Although Section 504 has been called “the cornerstone of the 

civil rights movement of the mobility-impaired", ADAPT v. 

Skinner, 881 F.2d at 1205 (3d Cir. 1989) (concurring opinion), 

its shortcomings and deficiencies quickly became apparent. See, 
e.g., Cook, The Americans with Disabilities Act: The Move to 

Integration, 64 Temp. L. Rev. 393, 394-408 (1991) (The 

Rehabilitation Act and its regulations have been practically a 

dead letter as a remedy for segregated public services). One 

commentator has written that the weaknesses of section 504 arise 

from its statutory language,10 the limited extent of its 

coverage, inadequate enforcement mechanisms and erratic judicial 

interpretations. Burgdorf, The Americans with Disabilities Act: 

Analysis and Implications of a Second-Generation Civil Rights 

Statute, 26 Harv. C.R. - C.L. L. Rev. 413, 431 (1991). 

 Toward the end of the 1980's the United States Senate and 

the House of Representatives both recognized that then current 

laws were "inadequate" to combat "the pervasive problems of 

discrimination that people with disabilities are facing." S. 

Rep. No. 116, 101st Cong., 1st Sess. 18 (1989); H.R. Rep. No. 485 

(II), 101st Cong., 2d Sess. 47 (1990). The Senate recognized the 

need for "omnibus civil rights legislation" for the disabled. S. 

Rep. No. 116, 101st Cong., 1st Sess. 19 (1989). Similarly, the 

House addressed the need for legislation that “will finally set 

in place the necessary civil rights protections for people with 

disabilities." H. R. Rep. No. 485 (II), 101st Cong., 2d Sess. 40 

(1990). Both branches of Congress concluded: 

 [T]here is a compelling need to provide a 

clear and comprehensive national mandate for 

 

 

10 We have also noted that section 504 "is both ambiguous 

and lacking in specifics." Disabled in Action of Pennsylvania 

v.Sykes, 833 F.2d 1113, 1117 (3d Cir. 1987), cert. denied, ___ 

U.S. ___, 108 S.Ct. 1293 (1988). 
the elimination of discrimination against 

individuals with disabilities and for the 

integration of persons with disabilities into 

the economic and social mainstream of 

American life. Further, there is a need to 

provide clear, strong, consistent, 

enforceable standards addressing 

discrimination against individuals with 

disabilities. 

S. Rep. No. 116, 20; H. R. Rep. No. 485 (II), 50 (emphasis 

added). It was against this backdrop that the ADA was enacted.11 

B. 

 Title II of the ADA, 42 U.S.C. §§ 12131-12134, incorporates 

the "non-discrimination principles" of section 504 of the 

Rehabilitation Act12 and extends them to state and local 

governments. Easley v. Snider, 36 F.3d 297, 300 (3d Cir. 1994). 

Section 202 of Title II provides: 

 [N]o qualified individual with a disability 

shall, by reason of such disability, be 

excluded from participation in or be denied 

the benefits of the services, programs, or 

activities of a public entity, or be 

subjected to discrimination by any such 

entity. 

42 U.S.C. § 12132. The Act directs the Attorney General to 

promulgate regulations necessary to implement Title II. See 42 

U.S.C. § 12134(a). The Act further commands that those 

regulations “be consistent with this chapter and with the 

coordination regulations under part 41 of title 28, Code of 

 

 

11 For a concise history of the ADA’s “tortuous legislative 

journey", see Jones, Overview and Essential Requirements of the 

Americans with Disabilities Act, 64 Temp. L. Rev. 471, 472-475 

(1991). 

 

12 See 28 C.F.R. § 28.103. 
Federal Regulations . . . applicable . . . [under §504 of the 

Rehabilitation Act of 1973].” 42 U.S.C. § 12134(b). Accordingly, 

the regulations that the Department of Justice promulgated under 

Title II are patterned after the section 504 coordination 

regulations. 

 Because Title II was enacted with broad language and 

directed the Department of Justice to promulgate regulations as 

set forth above, the regulations which the Department promulgated 

are entitled to substantial deference. Blum v. Bacon, 457 U.S. 

132, 141 (1982). ("[T]he interpretation of [the] agency charged 

with the administration of [this] statute is entitled to 

substantial deference.") "[C]onsiderable weight should be 

accorded to an executive department's construction of a statutory 

scheme it is entrusted to administer." Chevron, U.S.A., Inc. v. 

Natural Resources Defense Council, Inc., 467 U.S. 837, 844 

(1984). Unless the regulations are “arbitrary, capricious or 

manifestly contrary to the statute", the agency's regulations are 

“given controlling weight". Chevron, U.S.A., Inc., 467 U.S. at 

844. 

 Moreover, because Congress mandated that the ADA regulations 

be patterned after the section 504 coordination regulations, the 

former regulations have the force of law. When Congress reenacts a statute and voices its approval of an administrative 

interpretation of that statute, that interpretation acquires the 

force of law and courts are bound by the regulation. United 
States v. Board of Comm'rs of Sheffield, Alabama, 435 U.S. 110, 

134 (1978). The same is true when Congress agrees with an 

administrative interpretation of a statute which Congress is reenacting. See Don E. Williams Co. v. Commissioner, 429 U.S. 569, 

574-577 (1977). Although Title II of the ADA is not a reenactment of section 504, it does extend section 504's antidiscrimination principles to public entities. Furthermore, the 

legislative history of the ADA shows that Congress agreed with 

the coordination regulations promulgated under section 504. See, 

e.g., S. Rep. No. 116, 101st Cong., 1st Sess. 44 (1989) ("The 

first purpose of [Title II] is to make applicable the prohibition 

against discrimination on the basis of disability, currently set 

out in regulations implementing section 504 of the Rehabilitation 

Act of 1973, to. . . state and local governments. . . . "); H.R. 

Rep. No. 485 (III), 101st Cong., 2d. Sess. 50. ("The general 

prohibitions set forth in the section 504 regulations are 

applicable to all programs and activities in Title II"). 

 Idell S.’s challenge to DPW’s treatment of her is based 

upon 28 C.F.R. § 35.130(d). That ADA regulation states that: “A 

public entity shall administer services, programs, and activities 

in the most integrated setting appropriate to the needs of 

qualified individuals with disabilities.” This regulation is 

almost identical to the section 504 integration regulation which 

has been in effect since 1981. See 28 C.F.R. § 41.51(d) 
(1981).13 As Congress has voiced its approval of that 

coordination regulation, 28 C.F.R. § 130.35(d) has the force of 

law. 

C.

 In enacting the ADA, Congress found that "[h]istorically, 

society has tended to isolate and segregate individuals with 

disabilities, and...such forms of discrimination...continue to be 

a serious and pervasive social problem." 42 U.S.C. § 12101(a)(2) 

(emphasis added). Congress also concluded that “[i]ndividuals 

with disabilities continually encounter various forms of 

discrimination, including. . . segregation. . . .", 42 U.S.C. 

§12101(a)(5) (emphasis added). The House Report on the ADA noted 

that: "Unlike the other titles in this Act, title II does not 

list all of the forms of discrimination that the title is 

intended to prohibit. Therefore, the purpose of [section 204] is 

to direct the Attorney General to issue regulations setting forth 

the forms of discrimination prohibited." H.R. Rep. No. 485 

(III), 101st Cong., 2d Sess., 52 (1990) (emphasis added). 

 In furtherance of the objective of eliminating 

discrimination against the disabled, Congress stated that “the 

Nation’s proper goals regarding individuals with disabilities are 

 

 

13 The section 504 integration regulation had been in effect 

for 8 years when, in 1989, the 101st Congress began holding 

hearings on the proposed ADA. 
to assure equality of opportunity, full participation, 

independent living, and economic self-sufficiency for such 

individuals[.]” 42 U.S.C. §12101(a)(8) (emphasis added). 

Similarly, in response to its mandate, the Department of Justice 

stated “[i]ntegration is fundamental to the purposes of the 

Americans with Disabilities Act.” 28 C.F.R. Part 35, App. A. § 

35.130.14 Accordingly, the integration mandate of § 35.130(d) is 

contained under 28 C.F.R. § 35.130 which is entitled “[g]eneral 

prohibitions against discrimination.” 

 Thus, the ADA and its attendant regulations clearly define 

unnecessary segregation as a form of illegal discrimination 

against the disabled.15 Accordingly, the district court erred in 

holding that the applicable provisions of the ADA “may not be 

 

 

14We note that this is consistent with the Fair Housing Act 

of 1988, 52 U.S.C. §3604(f), another predecessor of the ADA. In 

enacting that act, the House Judiciary Committee stated "[t]he 

Fair Housing Amendments Act, like Section 504 of the 

Rehabilitation Act of 1973, as amended, is a clear pronouncement 

of a national commitment to end the unnecessary exclusion of 

persons with handicaps from the American mainstream." H. Rep. No. 

711, 100th Cong., 2d Sess., 18 (1988), reprinted in 1988 

U.S.C.C.A.N. 2173, 2179 (emphasis added; footnote omitted). 

 

15Even if it could be argued that the Act and its 

regulations are ambiguous on this point, the heading of the 

regulation at issue here, and the legislative history of the ADA 

confirm that Congress intended to define unnecessary segregation 

of the disabled as a form of illegal discrimination. See Crandon 

v. United States, 494 U.S. 152, 158 (1990) (Where there is 

ambiguity "[i]n determining the meaning of [a] statute, we look 

not only to the particular statutory language, but to the design 

of the statute as a whole and to its object and policy."); See

also INS v. Center for Immigrants' Rights, U.S. . 

112 S. Ct. 551, 556 (1991) (the title of a regulation or section 

is relevant to its interpretation). 
invoked unless there is first a finding of discrimination." 

Memorandum Opinion at 12. 

D. 

 In reaching its conclusion, the district court relied in 

large part upon Williams v. Secretary of the Executive Office of 

Human Services, 609 N.E.2d 447 (Ma. 1993).16 In Williams, the 

Massachusetts Supreme Court held, inter alia, that the ADA does 

not require a specific proportion of that state’s mental health 

service placements to be in integrated housing. The court 

stated: 

 The focus of Federal disability 

discrimination statutes is to address 

discrimination in relation to nondisabled 

persons, rather than to eliminate all 

differences in levels or proportions of 

resources allocated and services provided to 

individuals with differing types of 

disabilities. In other words, the purpose of 

the ADA is to provide an equal opportunity 

for disabled citizens. 

Williams, 609 N.E.2d at 559. (citations omitted). 

 We are not persuaded by the analysis in Williams. That 

court based its decision in part upon our own decision in Clark 

v. Cohen 794 F.2d 79 (3rd Cir. 1986), cert denied, 479 U.S. 962 

 

 

16 The district court also cited Pinnock v. 

International House of Pancakes, 844 F.Supp. 574, 582-3 (S.D. Ca. 

1993), to support its ruling that 28 C.F.R. § 130(d) is not 

applicable unless there is a specific finding of discrimination. 

Id. at 12. However, Pinnock concerned an action under Title III 

of the ADA (public accommodations) and the discussion cited in 

the district court's opinion dealt with the Title III integration 

regulation which the Pinnock court held is "intended to prevent 

segregation based on fears and stereotypes about persons with 

disabilities." Id. Idell S.'s suit does not implicate Title III. 
(1986) and the Supreme Court’s decision in Alexander v. Choate, 

supra. Our holding in Clark is not based upon the ADA nor 

section 504, but upon the Due Process Clause of the Fourteenth 

Amendment. There, a forty-five year old, mentally retarded woman 

had been committed to a state-run mental institution since she 

was fifteen years old. She filed a complaint against the 

Commonwealth of Pennsylvania and the County of Philadelphia 

alleging various Constitutional violations as well as a violation 

of section 504 of the Rehabilitation Act. She alleged that her 

confinement was illegal and sought placement in a communityliving arrangement supervised by the County of Philadelphia. 

Clark based her Rehabilitation Act claim upon the fact that the 

Commonwealth was providing community living arrangements to 

persons with disabilities similar to hers while requiring her to 

remain in an institution. 

 The district court ruled that Clark had not established 

disability-based discrimination, but ruled that her confinement 

was unconstitutional.17 619 F. Supp. at 696-705. In affirming 

the district court’s judgment we stated “[s]ection 504 prohibits 

discrimination against the handicapped in federally funded 

programs[,] [i]t imposes no affirmative obligations on the states 

to furnish services." Clark v. Cohen, 794 F. 2d at 85, n.3. 

However, we were not there concerned with the integration mandate 

 

 

17 Clark had been continuously confined even though the 

responsible professionals at the institution admitted that her 

condition did not warrant confinement, and her case had never 

been reviewed by anyone with authority to release her. 
of the ADA or the Rehabilitation Act. Plaintiff in Clark relied 

primarily upon section 504 and 45 C.F.R. §§ 84.4(b)(1)(i)-(iv). 

The prohibitions contained in the later regulations are under a 

regulation which states "Discriminatory actions prohibited." 45 

U.S.C. § 84.4(b). That regulation does not state that the 

actions set forth are prohibited per se. Rather, it states that 

recipients of federal funds may not engage in the enumerated acts 

"on the basis of handicap." 45 U.S.C §84.4(b)(1). Thus, the 

section 504 inquiry in Clark had to include a determination of 

the basis for the allegedly discriminatory actions. The language 

of 28 C.F.R. § 35.130(d) is very different. 

 In addition, we note that the court in Williams was troubled 

by difficulties of proof that are not present here. The 

plaintiffs in Williams had attempted to use a statistical 

analysis to establish that disabled persons were more likely to 

be adversely affected by the state’s policy than non-disabled 

persons. The court rejected that proof stating: 

 The plaintiffs’ use of a system-wide 

percentage of DMH clients . . . ignores the 

fact that the ADA does not mandate particular 

system-wide percentages for allocations of 

community placements. Further, the 

plaintiffs’ figures did not show that any 

particular client’s placement was 

inappropriate, or that they themselves were 

inappropriately placed in a segregated 

setting. . . A mere percentage, standing 

alone, does not establish a presumption of 

inappropriate placement. 
Id., at 414 Mass. 551, 557-8, 609 N.E.2d. 447, 453. We encounter 

no such problem as the parties have stipulated that Idell S.’s 

placement would be inappropriate if there was an opening in the 

attendant care program.18

 The court in Williams was also troubled by pragmatic 

concerns of granting relief. The court stated that "any 

interpretation of the ADA must consider the same practicalities 

that the United States Supreme Court acknowledged in its 

examination of the Federal Rehabilitation Act. See, e.g. 

Alexander v. Choate, . . . ". Id. at 557, 453 (citations 

omitted). Choate did not involve 28 C.F.R. § 35.130(d). The 

claim there was based upon plaintiffs’ assertion that Tennessee’s 

planned cutbacks in Medicaid reimbursement for in-patient 

hospital stays would disproportionately disadvantage handicapped 

persons in violation of section 504. However, to the extent that 

Choate is relevant to our analysis, it supports our holding that 

Congress did not intend to condition the protection of the ADA 

upon a finding of “discrimination”. 

 In Choate, the Supreme Court emphasized the factors which 

led to enactment of section 504. 

Discrimination against the handicapped was 

perceived by Congress to be most often the 

product, not of invidious animus, but rather 

of thoughtfulness and indifference -- of 

 

 

18 The precise question raised by Idell S. has not 

previously been decided by an appellate court. Similarly, the 

cases from other circuits that DPW relies upon to support its 

assertion that neither §504 nor Title II of the ADA require 

community care were not decided on the basis of 28 C.F.R. § 

35.130(d). Brief of Appellee, at 10-11. 
benign neglect. Thus, Representative Vanik, 

introducing the predecessor to § 504 in the 

House described the treatment of the 

handicapped as one of the country’s ‘shameful 

oversights’ which caused the handicapped to 

live among society ‘shunted aside, hidden, 

and ignored.’ Similarly, Senator Humphrey . . 

. asserted that, ‘we can no longer tolerate 

the invisibility of the handicapped in 

America. . . .’ And Senator Cranston . . . 

described the Act as a response to ‘previous 

societal neglect’ . . . Federal agencies and 

commentators on the plight of the handicapped 

similarly have found that discrimination 

against the handicapped is primarily the 

result of apathetic attitudes rather than 

affirmative animus. 

469 U.S. at 295 (emphasis added) (citations and footnotes 

omitted).19 

 Because the ADA evolved from an attempt to remedy the 

effects of “benign neglect” resulting from the “invisibility” of 

the disabled, Congress could not have intended to limit the Act’s 

protections and prohibitions to circumstances involving 

deliberate discrimination. Such discrimination arises from 

“affirmative animus” which was not the focus of the ADA or 

section 504. The Supreme court elaborates upon this distinction 

noting that, although discrimination against the disabled 

normally results from “thoughtfulness” and “indifference”, not 

“invidious animus”, such “animus” did exist. 469 U.S. at 295 at 

n.12. (“To be sure, well-cataloged instances of invidious 

 

 

19 The court ruled that the challenged cutbacks were neutral 

on their face and that, therefore, plaintiffs could not recover. 

However, the court noted that a plaintiff need not establish that 

there has been an intent to discriminate in order to prevail 

under section 504. 469 U.S. at 295-297. 
discrimination against the handicapped do exist”). However, 

that was not the focus of section 504, or the ADA. Rather, the 

ADA attempts to eliminate the effects of that “benign neglect," 

“apathy," and “indifference." The 504 coordination regulations, 

and the ADA “make clear that the unnecessary segregation of 

individuals with disabilities in the provision of public services 

is itself a form of discrimination within the meaning of those 

statutes, independent of the discrimination that arises when 

individuals with disabilities receive different services than 

those provided to individuals without disabilities.” Brief of 

Amicus at 7. 

 The ADA is intended to insure that qualified individuals 

receive services in a manner consistent with basic human dignity 

rather than a manner which shunts them aside, hides, and ignores 

them.20 “[M]uch of the conduct that Congress sought to alter in 

passing the Rehabilitation Act [and the ADA] would be difficult 

if not impossible to reach were the Act[s] construed to proscribe 

only conduct fueled by a discriminatory intent.” Alexander v. 

Choate, 469 U.S. at 296-7. Thus, we will not eviscerate the ADA 

by conditioning its protections upon a finding of intentional or 

overt “discrimination.” 

 

 

20However, as discussed infra, the Act does not require 

fundamental changes in the nature of a service or program. 
IV.

 DPW quotes Traynor v. Turnage, 485 U.S. 535, 548 (1988) to 

argue that there can be no improper discrimination here because 

the services at issue are only provided to persons with 

disabilities. See Brief of Appellee at 25-6. However, Traynor

is easily distinguished. Traynor concerned the legality of 38 

U.S.C.A. § 1662 which allowed for an extension of time to use 

veteran’s benefits if a disability precluded the veteran from 

using the benefits within the time frame established by law. 

However, the veteran only qualified if he/she could establish “a 

physical or mental disorder which was not the result of [his/her] 

own willful misconduct.” Id. at 535. Traynor was an honorably 

discharged veteran who suffered from alcoholism unrelated to any 

psychiatric disorder. Under applicable V.A. regulations, such 

alcoholism was defined as “willful misconduct” thus precluding 

him from relying upon his “disorder” to enlarge the period of 

time that he could use his benefits. Traynor challenged this 

limitation on behalf of himself, and other similarly situated 

veterans. 

 In denying the claim, the court noted that section 504 had 

been part of the amendments to the Rehabilitation Act which were 

passed in 1978 and which extended the scope of that legislation 

to “any program or activity conducted by any Executive Agency.” 

Id. at 547. The court noted that 

petitioners can prevail under the Rehabilitation Act claim only if the 1978 

legislation can be deemed to have implicitly 
repealed the willful misconduct provision of 

the 1977 legislation or forbade the Veterans’ 

Administration to classify primary alcoholism 

as willful misconduct. They must thereby 

overcome the cardinal rule. . . that repeals 

by implication are not favored. 

Id. (citations and internal quotes omitted). The court reasoned 

that it was not at liberty to assume that the subsequent 

enactment of the Rehabilitation Act implicitly repealed the prior 

act unless “such a construction is absolutely necessary . . . in 

order that [the] words [of the latter statute] shall have any 

meaning at all.” Id. (brackets in original). These two 

enactments were “capable of co-existence” as the “willful 

misconduct” provision did not undermine the central purpose of 

section 504. That purpose was to “assure that handicapped 

individuals receive ‘evenhanded treatment’ in relation to 

nonhandicapped individuals.” Id. at 548 (citing Alexander v. 

Choate). 

 The court then noted that the program at issue did not treat 

handicapped persons less favorably than nonhandicapped persons as 

only handicapped persons could apply for an extension of time. 

“In other words § 1662(a)(1) merely provides a special benefit to 

disabled veterans who bear no responsibility for their 

disabilities that is not provided to other disabled veterans or 

to any able-bodied veterans.” Id. The court then stated 

“[t]here is nothing in the Rehabilitation Act that requires that 

any benefit extended to one category of handicapped persons also 

be extended to all other categories of handicapped persons.” Id. 
However, the court was not concerned with the application of the 

integration mandate, or anything analogous to it, and the holding 

is not germane to our analysis. As noted above, Congress has 

stated that “discrimination against individuals with disabilities 

persists in such critical areas as . . . institutionalization.” 

42 U.S.C. §12101 (3). If Congress were only concerned about 

disparate treatment of the disabled as compared to their 

nondisabled counterparts, this statement would be a non sequitur 

as only disabled persons are institutionalized. 

 DPW also relies upon Johnson v. Thompson, 971 F.2d 1487, 

1494 (10th Cir. 1992), cert. denied, 113 S.Ct. 1255 (1993). 

("[W]here the handicapping condition is related to the 

condition(s) being treated, it will rarely, if ever, be possible 

to say. . . that a particular decision was ‘discriminatory’") 

(citation omitted)). See Brief of Appellee at 7. Johnson is 

also inapposite. There, the court was asked to hold that 

different levels of medical treatment given to differently 

classified infants affected with spina bifida violated section 

504. The case did not involve any claim that the integration 

mandate of 504 or the ADA had been violated.21 

 DPW also attempts to defeat Idell S.’s claim by labelling it 

a claim for “community care” or “deinstitutionalization” -- 

 

 

21 See Martin v. Voinovich, 840 F. Supp. 1175, 1191-92 (S.D. 

Ohio 1993) (Under §504 and the ADA, discrimination between people 

with different disabilities may be actionable). 
something which the ADA does not require.22 See Brief of Appellee 

at 10. Idell S. is not asserting a right to community care or 

deinstitutionalization per se. She properly concedes that DPW is 

under no obligation to provide her with any care at all. She is 

merely claiming that, since she qualifies for DPW’s attendant 

care program, DPW’s failure to provide those services in the 

“most integrated setting appropriate” to her needs (without a 

proper justification) violates the ADA. 

V.

 DPW’s obligation to provide appropriately integrated 

services is not absolute as the ADA does not require that DPW 

make fundamental alterations in its program. 

 A public entity shall make reasonable 

modifications in policies, practices, or 

procedures when the modifications are 

necessary to avoid discrimination on the 

basis of disability, unless the public entity 

can demonstrate that making the modifications 

would fundamentally alter the nature of the 

service, program, or activity 

28 C.F.R. § 35.130(b)(7). In Southeastern Community College v. 

Davis, 442 U.S. 397 (1979), and Alexander v. Choate, supra, the 

Supreme Court attempted to define the limits of the requirements 

under the ADA. 

 In Southeastern, Southeastern Community College refused to 

admit an applicant to its nursing school program because of her 

 

 

22 See Pennhurst State School and Hospital v. Halderman, 451 

U.S. 1, 24 (1981) (deinstitutionalization involves "massive" 

changes in a state's programs and is not required absent a clear 

statutory command). 
hearing impairment. The college argued that a registered nurse 

had to meet certain physical requirements, and asserted that 

Davis’ disability compromised her ability to effectively 

participate in critical training programs and safely care for 

patients. Davis countered that section 504 required that the 

school take certain measures to allow her to enjoy the benefits 

of the nursing program. The Court disagreed and held that 

section 504 imposes no obligation to engage in “affirmative 

action.” Id. at 411. In Choate, the Court explained that 

“affirmative action” as used in Davis "[r]eferred to those 

‘changes,' ‘adjustments,' or ‘modifications' to existing programs 

that would be ‘substantial' or that would constitute ‘fundamental 

alteration[s]' in the nature of a program . . .,' rather than to 

those changes that would be reasonable accommodations." 

(citations omitted). Id. at 300 n. 20. 

 In attempting to discern what is required 

by the language of section 504, we must view 

it in light of two countervailing legislative 

concerns: (1) effectuation of the statute’s 

objectives of assisting the handicapped; and 

(2) the need to impose reasonable boundaries 

in accomplishing this legislative purpose. 

See Alexander v. Choate. 

ADAPT v. Skinner, 881 F.2d at 1191. “The test to determine the 

reasonableness of a modification is whether it alters the 

essential nature of the program or imposes an undue burden or 

hardship in light of the overall program.” Easely v. Snider, 36 

F.3d at 305. 
 Here, DPW agrees that “the most integrated setting 

appropriate to [Idell S.]” is her home but argues that it cannot 

comply with Idell S.'s request for the “most integrated services 

appropriate" absent a fundamental alteration of its program. 

Brief of Appellee, at 13-17. The only explanation DPW has 

offered for this position is its assertion that funding for 

nursing home and attendant care for fiscal year 1993-1994 has 

already been appropriated by the General Assembly of Pennsylvania 

and that it cannot, under state constitutional law, shift funds 

from the nursing care appropriation to attendant care. Brief of 

Appellee, at 14-15. However, Idell S. is not asking that DPW 

alter its requirements for admission to the program, nor is she 

requesting that the substance of the program be altered to 

accommodate her.23 Even if we assume that DPW cannot (or will 

not) cause the necessary shift of funds under its current 

procedures and practices, it is clear from this record that 

providing attendant care services to Idell S. in her home would 

not be a fundamental alteration of the attendant care program or 

the nursing home program. 

 As previously noted, DPW administers its attendant care 

program under the Care Act, 62 Pa. Stat. Ann. § 3052 et seq. 

(1994). That Act states: 

 

 

23 See Easley v. Snider, supra (The ADA does not require 

that the Commonwealth extend its attendant care services to 

physically disabled individuals who were not mentally alert as 

doing so would result in an unreasonable modification of the 

program). 
The General Assembly declares it is the 

policy of this Commonwealth that: 

 (1) The increased availability of 

attendant care services for adults will 

enable them to live in their own homes and 

communities. 

 (2) Priority recipients of attendant care 

services under this act shall be those 

mentally alert but severely physically 

disabled who are in the greatest risk of 

being in an institutional setting. 

 We have previously noted that the attendant care program 

enables physically disabled persons to 

"better control their lives and reach maximum 

independence when they are able to direct 

their own personal care and manage their 

home, business, and social lives. Attendant 

[c]are in Pennsylvania continues to be seen 

as part of the wider independent living 

movement whose fundamental goals are to 

enable the physically disabled to: a) 

maintain a less restrictive and/or 

independent living arrangement; b) maintain 

employment; and/or c) remain in their homes." 

Easley, 36 F.3d at 304. This is remarkably similar to the policy 

and purpose of the ADA in general, and 28 C.F.R. § 35.130(d) in 

particular. We fail to see how compliance with 28 C.F.R. § 

35.130(d) requires DPW to fundamentally alter its attendant care 

program. Nor do we perceive how the requested moderation would 

place an undue burden on DPW. On the contrary, the relief that 

Idell S. is requesting merely requires DPW to fulfill its own 

obligations under state law. This is not “unreasonable." 

As with Section 504 of the Rehabilitation 

Act, integrated services are essential to 

accomplishing the purposes of title II [of 

the ADA]. As stated by Judge Mansmann in 

Adapt v. Skinner, the goal [is to] eradicate 
the ‘invisibility of the handicapped'" . . . 

[s]eparate-but-equal services do not 

accomplish this central goal and should be 

rejected. 

 The fact that it is more convenient, either

administratively or fiscally, to provide 

services in a segregated manner, does not 

constitute a valid justification for separate 

or different services under Section 504 of 

the Rehabilitation Act, or under [title II of 

the ADA]. 

H. R. Rep. 485 (III), 101st Cong. 2d Sess. 50. reprinted in 1990 

U.S.C.C.A.N. at 73, (emphasis added). 

 Ironically, DPW asserts a justification of administrative 

convenience to resist an accommodation which would save an 

average of $34,500 per year, would allow Idell S. to live at home 

with her children, and which would not require a single 

substantive change in its attendant care or nursing home 

programs. DPW’s resistance to such an accommodation is totally 

inconsistent with Congress’ pronouncement that “[t]he Nation's 

proper goals regarding individuals with disabilities are to 

assure equality of opportunity, full participation, [and] 

independent living. . . .” 42 U.S.C. § 12101(a)(8). 

 DPW asserts that it cannot change Idell S.'s care because 

the nursing home and attendant care programs are currently funded 

on two separate lines of its budget.24 The General 

Appropriations Act. Act 1-A of 1993, at 104, 115. DPW asserts 

that “[u]nder state constitutional law, Secretary Snider cannot 

 

 

24This, of course, does not explain why DPW has not changed 

her status in a new budget year. 
move funds from one line to another.” See Brief of Appellee at 

14-15 (citing Ashbourne School v. Commonwealth, Department of 

Education, 43 Pa. Com. 593, 403 A.2d 161 (1979). It is not now 

up to us to invent a funding mechanism whereby the Commonwealth 

can properly finance its nursing home and attendant care 

programs. However, the ADA applies to the General Assembly of 

Pennsylvania, and not just to DPW. DPW can not rely upon a 

funding mechanism of the General Assembly to justify 

administering its attendant care program in a manner that 

discriminates and then argue that it can not comply with the ADA 

without fundamentally altering its program. We dismissed a 

similar contention in Delaware Valley Citizen’s Council for Clean 

Air v. Commonwealth of Pennsylvania, 678 F.2d 470 (3rd Cir. 

1982). There, plaintiff sought to hold certain members of the 

executive branch of state government in contempt for failing to 

comply with a consent decree in which the officials had agreed to 

establish an admissions inspection program. After the consent 

decree had been executed, the General Assembly enacted 

legislation which specifically “prohibited the expenditure of 

state funds by the executive branch for the implementation of 

[that program]. Although the Governor vetoed the bill, the 

legislature overrode the veto and enacted [the legislation] into 

law.” Id. at 473-4. Thereafter, the Department of Transportation 

“ceased all efforts toward implementing the [program].” Id. 

There, as here, the defendants relied upon Ashbourne, to argue 
that their hands were tied by the power of appropriations vested 

in the General Assembly. We rejected that position. “These 

arguments disregard the fact that the Commonwealth itself was and 

remains bound by the consent decree.” Delaware Valley Citizen’s 

Council, 678 F.2d at 475. We stated: 

Because the Commonwealth, including all its 

branches, is bound by the decree, the 

argument of inability to comply rings hollow. 

Even if the executive branch defendants were 

physically or legally incapable of complying 

with the decree, those Commonwealth officials 

sitting in the General Assembly certainly are 

not incapable of insuring the Commonwealth’s 

compliance. 

678 F.2d at 476-6. The same applies here: since the 

Commonwealth has chosen to provide services to Idell S. under the 

ADA, it must do so in a manner which comports with the 

requirements of that statute. 

 VI.

 Generally, an appellate court reversing a grant of summary 

judgment will not direct the district court to enter summary 

judgment in favor of appellant because a genuine issue of 

material fact will remain. First National Bank v. Lincoln 

National Life Insurance Co., 824 F.2d 277, 281 (3d Cir. 1987). 

However, when an appeal concerns only issues of law, we are free 

to enter an order directing the district court to enter summary 

judgment in favor of the appellant. Kreimer v. Bureau of Police 

for the Town of Morristown, 958 F.2d 1242, 1250 (3d Cir. 1992). 
 Here, there are no genuine issues of material fact because 

of the Amended Stipulation entered into by the parties. The only 

issue that remains is the interpretation and application of the 

ADA and 28 C.F.R. § 130.35(d). Accordingly, we will vacate the 

order granting summary judgment in favor of defendant and remand 

this case to the district court for entry of an order granting 

summary judgment to Idell S. and against DPW.