The second is program purpose, which affects whether a particular program modification would be reasonable or a fundamental alteration or undue burden. The third is defining the group with whom people with disabilities will be compared for the purpose of determining whether discrimination has occurred. The outcome of ADA claims therefore often turns on the question of what constitutes a discrete program. Consequently, it is difficult to make sweeping recommendations about which program formulations are advisable for advocates to use in ADA claims. There is no rule that will cover every situation.
Some general considerations follow.
In disparate treatment cases, it is more advantageous if programs are defined broadly enough to include a comparison group. If a program is defined too narrowly, the services for people with disabilities will be regarded as a separate program and there will be no group in the same program receiving better treatment. At the same time, in disparate treatment cases there is a danger that if a program or service is defined too broadly it will dilute the evidence of disparate treatment. The Court then noted that the Medicaid program has the general aim assuring that individuals will receive necessary medical care. If the Court had defined the relevant program or service as Medicaid inpatient care, the difference in hospital use between Medicaid recipients with and without disabilities may have had a greater impact on the Court.