IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ) RICKY WYATT, by and through ) his aunt and legal guardian, ) MRS. W.C. RAWLINS, JR., et al., ) Plaintiffs, ) DIANE MARTIN, et al., ) Plaintiff-Intervenors, ) UNITED STATES OF AMERICA, ) Amicus Curiae, ) Civil Action No. 3195-N v. ) RICHARD E. HANAN, as ) Commissioner of Mental Health ) and Mental Retardation and the ) State of Alabama Mental Health ) Officer, et al., ) Defendants. ) ) UNITED STATES' RESPONSE TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS' CLAIMS UNDER THE AMERICANS WITH DISABILITIES ACT OF 1990 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . i PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. Judgment on the Pleadings Against Plaintiffs' ADA Claim is Inappropriate . . . . . . . . . . . . . 3 II. The Unnecessary Segregation of Individuals With Disabilities in Institutions is a Form of Discrimination Prohibited By the ADA and Its Implementing Regulations . . . . . . . . . . . . . . 3 A. Ending the discrimination of segregation and isolation through unnecessary institutionalization is a specific purpose of the ADA . . . . . . . . . . . . . . . 5 B. ADA regulations require states to provide services in the most integrated setting appropriate to the needs of people with disabilities . . . . . . . . . . . . . . . . . . 8 C. ADA's legislative history affirms that one of its major purposes is to remove the barriers of unnecessary segregation . . . . . 12 III. The Developing Caselaw on the Integration Regulation Affirms That States Are Obligated to Provide Services in the Most Integrated Setting . . . . . . . . . . . . . . . . . . . . . 14 IV. Prior Section 504 Cases Are Not Relevant to Interpreting Title II's Integration Requirement . . 18 V. Defendants' Failure to Provide Community Services to Individuals Identified as Unnecessarily Institutionalized is Unjustified . . . . . . . . 21 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 23 TABLE OF AUTHORITIES CASES: PAGE Alexander v. Choate, 469 U.S. 287 (1985) . . . . . . . . . 18 American Trucking Ass'n v. United States, 688 F.2d 1337 (11th Cir. 1982), rev'd on other grounds, 467 U.S. 454 (1984) . . . . . . . . . . . . . . . . . . 11 Blum v. Bacon, 457 U.S. 132 (1982) . . . . . . . . . . . . 7 Brown v. Board of Education, 347 U.S. 483 (1954) . . . . . 13 Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) . . . . . . . . . . . . . . . 7 Chrysler Corp. v. Brown, 441 U.S. 281 (1979) . . . . . . . 11 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) . . . . . . . . . . . . . . . . . . 11 Clark v. Cohen, 794 F.2d 79 (3d Cir.), cert. denied, 479 U.S. 962 (1986) . . . . . . . . . . . . . . . . . . 20 Clark v. Cohen, 613 F. Supp. 684 (E.D. Pa. 1985) . . . . . 20 Conley v. Gibson, 355 U.S. 41 (1957) . . . . . . . . . . . 3 Conner v. Branstad, 839 F. Supp. 1346 (S.D. Iowa 1993) . . 16 General Electric Co. v. Gilbert, 429 U.S. 125 (1976) . . . 11 Helen L. v. Didario, F.3d, 1995 WL 34200 (3d Cir. Jan. 31, 1995) . . . . . . . . . . . . . . passim Kentucky Ass'n for Retarded Citizens, Inc. v. Conn, 674 F.2d 582 (6th Cir.), cert. denied, 459 U.S. 1041 (1982) . . . . . . . . . . . . . . . . . . . . . . 21 Kinney v. Yerusalim, 812 F. Supp. 647 (E.D. Pa.), aff'd 9 F.3d 1067 (3d Cir. 1993), cert. denied, 114 S. Ct. 1545 (1994) . . . . . . . . . . . . . . . 18, 22 Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990) . . . . . . . . . . . . . . . . . . . . . . 19 P.C. v. McLaughlin, 913 F.2d 1033 (2d Cir. 1990) . . . . . 20 - i - CASES (cont'd): PAGE Plummer v. Branstad, 731 F.2d 574 (8th Cir. 1984) . . . . 21 Phillips v. Thompson, 715 F.2d 365 (7th Cir. 1983) . . . . 20 SEC v. ESM Group, Inc., 835 F.2d 270 (11th Cir.), cert. denied, 486 U.S. 1055 (1988) . . . . . . . . . . . . . 3 Tcherepin v. Knight, 389 U.S. 332 (1967) . . . . . . . . . 18 Williams v. Secretary of Executive Office of Human Services, 609 N.E.2d 447 (Mass. 1993) . . . . 15, 17 Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972) aff'd in relevant part, 503 F. 2d 1305 (5th Cir. 1974) . . . . . . . . . . . . . . . . . 4, 5, 22 Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972) aff'd in relevant part, 503 F. 2d 1305 (5th Cir. 1974) . . . . . . . . . . . . . . . 4, 5, 22 Wyatt v. King, 773 F. Supp. 1508 (M.D. Ala. 1991) . . . . . . 2 STATUTES: Americans With Disabilities Act (ADA): 42 U.S.C. 12101(a)(2) (Title I) . . . . . . . . . . . . . 5 42 U.S.C. 12101(a)(3) . . . . . . . . . . . . . . . . . . . 5 42 U.S.C. 12101(a)(5) . . . . . . . . . . . . . . . . . . . 5 42 U.S.C. 12131 et seq. (Title II) . . . . . . . . passim 42 U.S.C. 12131(2) . . . . . . . . . . . . . . . . . 7 42 U.S.C. 12132 . . . . . . . . . . . . . . . . . 6, 7 42 U.S.C. 12134 . . . . . . . . . . . . . . . . . . . 7 42 U.S.C. 12134(b) . . . . . . . . . . . . . . . . 10 Rehabilitation Act of 1973, Section 504, 29 U.S.C. 794 . . . . . . . . . . . . . . . . . . . passim REGULATIONS AND RULES: 28 C.F.R. pt. 35 (1994) . . . . . . . . . . . . . . . 8, 9, 10 Section 35.130(b)(1)(iv) . . . . . . . . . . . . 17 Section 35.130(d) . . . . . . . . . . . . . . . . passim App. A . . . . . . . . . . . . . . . . . . . . . . 8, 9 28 C.F.R. pt. 41 (1994) . . . . . . . . . . . . . . . . 10, 20 Section 41.51(d) . . . . . . . . . . . . . . . . . . . . 10 - ii - REGULATIONS AND RULES: PAGE 45 C.F.R. 84.4(b)(2) (1994) . . . . . . . . . . . . . . . . 20 LEGISLATIVE MATERIALS: ADA: Hearing Before the Senate Comm. on Labor and Human Resources and the Subcomm. on the Handicapped, 101st Cong., 1st Sess. 215 (1989) . . . . . 13 H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. (1990), reprinted in 1990 U.S.C.C.A.N. 303 . . . . . . . . . . . . . . 13 H.R. Rep. No. 485 (III), 101st Cong., 2d Sess. (1990), reprinted in 1990 U.S.C.C.A.N. 445 . . . . . . . . . . 7, 9, 13, 19, 22 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) . . . . . . . . . . . . . . 6, 12, 14, 19 135 Cong. Rec. 19801 (1989) . . . . . . . . . . . . . . . 12 135 Cong. Rec. S4993 (daily ed. May 9, 1989) . . . . . . . 13 136 Cong. Rec. H2447 (daily ed. May 17, 1990) . . . . . . . 14 MISCELLANEOUS: 5A Wright & Miller, Federal Practice and Procedure S 1368 (1990) . . . . . . . . . . . . . . . . . . . . . . . 3 - iii - PRELIMINARY STATEMENT Defendants' Motion for Judgment on the Pleadings on Plaintiffs' Claims under the Americans with Disabilities Act of 1990 [ADA] must be denied. Defendants have failed to meet their burden of proof to sustain a judgment on the pleadings; misinterpreted the prohibition in Title II of the ADA against unnecessary segregation; and relied on caselaw that is not relevant to interpreting this prohibition in Title II. Plaintiffs' Motion for Summary Judgment on their ADA claim should be granted. Defendants admit that hundreds of individuals with disabilities in Alabama's institutions are unnecessarily segrated from society and their care should be provided in the integrated setting of community programs. This unnecessary segregation is a form of discrimination prohibited by the ADA and its implementing regulations. Alabama presently operates a dual system for providing residential care, treatment, and training to its citizens with mental disabilities. The State operates five institutions for people with developmental disabilities and mental retardation and six psychiatric institutions for people with mental illness. In addition, the State contracts to provide what defendants claim to be an array of community-based programs for both people with developmental disabilities/mental retardation and mental illness across the State of Alabama.1/ ________________________ 1/ See, e.q., Defendants' Memorandum in Support of Motion for a Finding that Defendants Have Met Their Obligations Under the September 2, 1986 Consent Decree and for an Order Terminating This Lawsuit [Def Mem. to Terminate] at 9-10 and attached affidavits of Brian McManus and J. Michael Horsley. Community-based programs represent integrated services both because they are physically located in the mainstream of society and because they provide opportunities for people with mental disabilities to interact with their non-disabled peers in all facets of life. Confinement in Alabama's institutions for people with mental disabilities constitutes segregation because individuals living in such facilities are separated from the community and walled off from the mainstream of society, isolated and apart from the natural community where all of us live, work, and engage in life's many activities. Wyatt v. King, 773 F. Supp. 1508, 1512 (M.D. Ala. 1991). In Alabama, State professionals charged with the responsibility of determining the services necessary to meet the needs of individuals the State has undertaken to serve, have determined that many individuals with mental disabilities currently institutionalized in Alabama's public facilities are improperly placed there and should instead be served in appropriate community programs throughout the State.2/ Given these undisputed facts, the Court is presented with a purely legal question: does defendants' unnecessary segregation of individuals with disabilities constitute discrimination under Title II of the ADA? This case is thus appropriate for summary judgment. _________________ 2/ See, e.g., Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Summary Judgment [Plaintiffs' Mem.] at 10-16, 24, 51-52. - 2 - ARGUMENT I. Judgment on the Pleadings Against Plaintiffs' ADA Claim Is Inappropriate. Defendants have not sustained their required burden to obtain a judgment on the pleadings. Federal district courts have applied a "fairly restrictive standard in ruling on motions for judgment on the pleadings." 5A Wright & Miller, Federal Practice and Procedure S 1368 (1990). This Court can issue a judgment on the pleadings in defendants' favor only if it is beyond doubt that plaintiffs have plead no facts that would support their claim for relief under the ADA. SEC v. ESM Group, Inc., 835 F.2d 270, 272 (11th Cir.), cert. denied, 486 U.S. 1055 (1988) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957), where the Supreme Court stated that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim which would entitle plaintiff to relief). As the discussion below makes clear, in this case, plaintiffs have alleged facts in support of their claim under the ADA and the ADA provides a legal basis entitling them to relief. Thus, defendants' motion should be denied. II. The Unnecessary Segregation of Individuals with Disabilities in Institutions Is a Form of Discrimination Prohibited by the ADA and Its Implementing Regulations. As the plaintiffs have demonstrated in pleadings in support of their summary judgment motion, this Court already has before it an accumulation of years of substantial admissions by defendants that hundreds of individuals with disabilities are - 3 - currently inappropriately institutionalized in Alabama's public institutions and would be better served in integrated community programs. Plaintiffs' Mem. at 10-16, 24, 51-52. Despite the fact that defendants claim to have a significant array of integrated, community-based services in place and a system to identify individuals who remain inappropriately institu- tionalized, defendants have failed to transfer them to community programs. Compare Defendants' Mem. to Terminate at 9-10 and accompanying affidavits with Plaintiffs' Mem. at 12-16, 24, 42, 54-55. By failing to serve qualified mentally disabled individuals in the most integrated setting appropriate to their needs, defendants are violating the ADA's prohibition of disability-based discrimination. Helen L. v. Didario, F.3d , 1995 WL 34200 at *6 (3d Cir. January 31, 1995). Here, defendants' own judgments indicate that community placement is the only professionally justifiable course of action. The relief that plaintiffs are seeking under the ADA merely requires the State of Alabama to fulfill its own goals to deliver services to people with disabilities in the most appropriate integrated setting and the obligations the State has had under this Court's orders for the past twenty-three years. Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972), aff'd in relevant part, 503 F.2d 1305 (5th Cir. 1974); ; Wyatt v. Stickney, 344 F. Supp. 387 (M.D. - 4 - Ala. 1972), aff'd in relevant part, 503 F.2d 1305 (5th Cir. 1974).3/ A. Ending the discrimination of segregation and isolation through unnecessary institutionalization is a specific purpose of the ADA. The ADA begins with congressional findings and purposes that detail the reasons for enacting this statute to end disability- based discrimination. Congress specifically found that "institutionalization" is one of the "critical areas" in which discrimination against individuals with disabilities persists. 42 U.S.C. S 12101(a)(3). The need to eradicate this type of discrimination is supported by congressional findings that "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U.S.C. S 12101(a)(2). These discriminatory practices continue today through "outright intentional exclusion" and "segregation." 42 U.S.C. S 12101(a)(5). Congress therefore ______________________ 3/For example, the Court found as far back as 1972 that people in mental retardation institutions "have a right to the least restrictive conditions necessary to achieve the purposes of habilitation." In order to effectuate this right, Alabama's institutions were required to make every effort to move residents from: "(1) more to less structured living; (2) larger to smaller facilities; (3) larger to smaller living units; (4) group to individual residence; (5) segregated from the community to integrated into the community living; (6) dependent to independent living." Wyatt, 344 F. Supp. at 396. Alabama has a similar obligation under the Wyatt standards to provide services in the "least restrictive conditions" for people who are mentally ill and to provide "adequate transitional treatment and care for all patients released after a period of involuntary commitment." Wyatt v. Stickney, 344 F. Supp. 373, 384, 386 (M.D. Ala. 1972). - 5 - recognized that the isolation, segregation, and exclusion represented by unjustifiable institutionalization constitute disability-based discrimination. The ADA is the congressional response to the compelling need to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and for the integration of persons with disabilities into the economic and social mainstream of American life. Further, there is a need to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities. S. Rep. No. 116, 101st Cong., 1st Sess. 20 (1989); H.R. Rep. No. 485 (II), 101st Cong. 2d Sess. at 50 (1990), reprinted in 1990 U.S.C.C.A.N. at 332. Consistent with the goal of integration, the ADA prohibits public entities from discriminating by reason of disability. 42 U.S.C. S 12132. Title II of the ADA prohibits discrimination against people with disabilities by state and local governments and is divided into two parts. Part A, 42 U.S.C. SS 12131-12134, contains the general prohibition against disability-based discrimination by public entities and other generally applicable provisions, while Part B applies to public transportation (and is, therefore, not applicable to this case). Part A mandates that "no qualified individual with a disability4/ shall, by _____________________ 4/A "qualified individual with a disability" is: an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and (continued...) - 6 - reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. S 12132. In 42 U.S.C. S 12134, Congress directed the Attorney General to promulgate regulations implementing this general mandate. It noted that "[u]nlike the other titles in this Act, title II does not list all of the forms of discrimination that the title is intended to prohibit. Thus, the purpose of this section is to direct the Attorney General to issue regulations setting forth the forms of discrimination prohibited." H.R. Rep. No. 485 (III), 101 Cong., 2d Sess. at 52 (1990), reprinted in 1990 U.S.C.C.A.N. at 475. As recently noted by the Third Circuit, because Title II was enacted with broad language and directed the Attorney General to promulgate regulations, the Justice Department regulations are "entitled to substantial deference." Helen L., 1995 WL 34200 at *5, citing Blum v. Bacon, 457 U.S. 132, 141 (1982) and Chevron U.S.A., Inc. v. Natural Resources Defense Counsil, 467 U.S. 837, 842-848 (1984)(discussing deference to agency interpretation). ________________________ 4/(...continued) services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 42 U.S.C. S 12131(2). - 7 - B. ADA regulations require states to provide services in the most integrated setting appropriate to the needs of people with disabilities. In the regulations required by the ADA, the Attorney General determined that a state's provision of services in an unnecessarily segregated setting constitutes an unlawful disability-based discrimination. Helen L., 1995 WL 34200 at *6. This provision, known as the "integration regulation," requires states to "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. S 35.130(d). The Attorney General has explained that this means "in a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible . . . ." 28 C.F.R. pt. 35, app. A at 452 (Preamble to Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services)(1994). People with disabilities who are segregated behind institutional walls are not integrated within society at large and are unable to interact with nondisabled persons to the fullest extent possible. In the preamble to the Title II regulations outlining general prohibitions against disability-based discrimination, the Attorney General appreciates that integration is the antidote to segregation: "Integration is fundamental to the purposes of the Americans with Disabilities Act. Provision of segregated accommodations and services relegates persons with disabilities to second-class status." 28 C.F.R. pt. 35, app. A at 449-50; - 8 - accord H.R. Rep. No. 485 (III) at 56, reprinted in 1990 U.S.C.C.A.N. at 479. Particularly where, as here, the State has admitted that an integrated setting is a more appropriate setting than segregation, it can not argue that this intent of the ADA should be limited. The Attorney General has underscored the fact that the overarching intent behind selecting the various forms of discrimination delineated in the regulations is to forbid practices that exclude and unnecessarily segregate. Moreover, the Attorney General has emphasized that individual need must drive the decisions of state agencies, as opposed to stereotypic and erroneous presumptions about classes of disabilities: Taken together, these provisions are intended to prohibit exclusion and segregation of individuals with disabilities and the denial of equal opportunities enjoyed by others, based on, among other things, presumptions, patronizing attitudes, fears, and stereotypes about individuals with disabilities. Consistent with these standards, public entities are required to ensure that their actions are based on facts applicable to individuals and not on presumptions as to what a class of individuals with disabilities can or cannot do. 28 C.F.R. pt. 35, app. A at 449. Accordingly, based on the record in this case that individuals require placement in integrated community programs, continued segregation cannot be justified. Such continued segregation constitutes unlawful disability-based discrimination under the ADA and must be remedied. The Title II integration regulation is in accordance with the ADA's statutory framework, congressional findings, - 9 - legislative history, and Congress' directives. Congress specified that, except with regard to program accessibility and communications issues, the Attorney General's Title II ADA regulations "shall be consistent with [the ADA] and with the coordination regulations under part 41 of title 28, Code of Federal Regulations * * * applicable to recipients of Federal financial assistance under section 794 of Title 29 [Section 504 of the Rehabilitation Act of 1973]." 42 U.S.C. S 12134(b). This citation to Section 504 refers exclusively to the coordination regulations of the former Department of Health, Education, and Welfare (HEW).5/ The HEW coordination regulations implementing Section 504 of the Rehabilitation Act, 28 C.F.R. pt. 41 (1994), contain a specific integration requirement which mandates that "[r]ecipients [of federal financial assistance] shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons." ____________________ 5/HEW was originally the agency designated to coordinate Section 504 regulations promulgated by the various federal agencies. It promulgated such coordination regulations on January 13, 1978. Pursuant to an Executive Order on August 11, 1981, responsibility for these coordination regulations was transferred to the Department of Justice, which adopted the regulations in toto and transferred them to 28 C.F.R. pt. 41. The regulations remain there today, despite the fact that other Section 504 regulations, including regulations for the Department of Health and Human Services, are found in other parts of the Code of Federal Regulations. For a more detailed description and history of various Section 504 regulations, see Helen L., 1995 WL 34200 at *3-4. - 10 - 28 C.F.R. S 41.51(d). The Attorney General, following Congress' mandate, used this precise language in the integration requirement found in S 35.130(d) of the Title II ADA regulations. In sum, the Attorney General's Title II ADA regulations recognize, consistent with the statute, that in the case of individuals with disabilities, discrimination takes many different forms, including programs that perpetuate the false assumption that people with disabilities must be segregated from the rest of society in institutions. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). The Attorney General's regulations thus reflect Congress' determination that services must be provided in appropriate integrated settings to achieve the Act's purposes. Surely where, as here, the State itself has determined that a segregated setting is inappropriate, an integrated setting is mandated. Because Congress specifically required the Attorney General to promulgate Title II ADA regulations defining disability-based discrimination by public entities, these regulations, which are carefully tailored to conform to Congress' directives, constitute legal mandates. Helen L., 1995 WL 34200 at *5. It is deeply established in federal court-jurisprudence and in administrative law theory that regulations issued by an agency pursuant to statutory authority (legislative regulations) have the force and effect of law. See, e.g., General Electric Co. v. Gilbert, 429 U.S. 125, 141 (1976); Chrysler Corp. v. Brown, 441 U.S. 281, 301- 3 (1979); Helen L., 1995 WL 34200 at *5; American Trucking Ass'n - 11 - v. United States, 688 F.2d 1337, 1341 (11th Cir. 1982), rev'd on other grounds, 467 U.S. 454 (1984). C. ADA's legislative history affirms that one of its major purposes is to remove the barriers of unnecessary segregation. The ADA's legislative history confirms that Congress intended the ADA to end the unnecessary segregation of people with disabilities from the community because "[o]ne of the most debilitating forms of discrimination is segregation imposed by others." S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989). In introducing the legislation, Senator Harkin declared that "[f]or too long, individuals with disabilities have been excluded, segregated, and otherwise denied equal, effective, and meaningful opportunity to participate in the economic and social mainstream of American life. It is time we eliminate these injustices." 135 Cong. Rec. 19801 (1989). The House and Senate Reports emphasize that the purpose of the Act is to end the isolation, exclusion and segregation of individuals with disabilities, and the discrimination that "persists in such critical areas as * * * institutionalization." S. Rep. No. 116 at 8 (citing findings of the U.S. Commission on Civil Rights). See also id. at 20 ("compelling need" for the "integration of persons with disabilities into the economic and social mainstream of American life"); H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. at 22 (1990), reprinted in 1990 U.S.C.C.A.N. 304 (purpose of the ADA is to "bring persons with disabilities into the economic and social mainstream of American life"); id. at 28, reprinted in 1990 - 12 - U.S.C.C.A.N. at 310 (noting the historic "isolation" of individuals with disabilities); H.R. Rep. No. 485 (III) at 26, reprinted in 1990 U.S.C.C.A.N. at 448-449 (finding that "segregation for persons with disabilities 'may affect their hearts and minds in a way unlikely ever to be undone,'" quoting Brown v. Board of Education, 347 U.S. 483, 494 (1954)); H.R. Rep. No. 485 (III) at 49-50, reprinted in 1990 U.S.C.C.A.N. at 472-473 ("purpose of Title II is to continue to break down barriers to the integrated participation of people with disabilities in all aspects of community life"). Unnecessary and unjustifiable institutionalization is also specifically identified in congressional testimony by a number of sponsors and supporters of the ADA as one of the forms of segregation and discrimination that the ADA is intended to eliminate. For example, former Senator Lowell Weicker, an original sponsor of the ADA, testified as follows about the need for the ADA to eliminate the unnecessary isolation and segregation that institutionalization represents: For years, this country has maintained a public policy of protectionism toward people with disabilities. We have created monoliths of isolated care in institutions and in segregated educational settings. It is that isolation and segregation that has become the basis of the discrimination faced by many disabled people today. Separate is not equal. It was not for blacks; it is not for the disabled. ADA: Hearing Before the Senate Comm. on Labor and Human Resources and the Subcomm. on the Handicapped, 101st Cong., 1st Sess. 215 (1989). See also 135 Cong. Rec. S4993 (daily ed. May 9, 1989) (Senator Kennedy testifying that the ADA "will roll back - 13 - the unthinking and unacceptable practices by which disabled Americans today are segregated, excluded, and fenced off from fair participation in our society by mindless biased attitudes and senseless physical barriers."); 136 Cong. Rec. H2447 (daily ed. May 17, 1990)(Rep. Miller attesting that "[s]ociety has made them [people with disabilities] invisible by shutting them away in segregated facilities."). As summed up by then-Attorney General Richard Thornburgh, "many persons with disabilities in this Nation still lead their lives in an intolerable state of isolation and dependence." S. Rep. No. 116, 101st Cong., 1st Sess. 7 (1989); H.R. Rep. No. 485 (II) at 32 (1990), reprinted in 1990 U.S.C.C.A.N. at 313. Nowhere is the state of isolation and dependence more intolerable than when it occurs as a result of unnecessary and unjustified segregation in institutions. III. The Developing Caselaw on the Integration Regulation Affirms that States Are Obligated to Provide Services in the Most Integrated Setting. The only appellate court to specifically address the integration regulation of Title II of the ADA has confirmed that "the ADA and its attendant regulations clearly define unnecessary segregation as a form of illegal discrimination against the disabled." Helen L., 1995 WL 34200 at *6. In its decision entered on January 31, 1995, the Third Circuit found that the Pennsylvania Department of Public Welfare was violating the ADA where it required the appellant to remain in the segregated setting of a nursing home instead of providing her with needed - 14 - home-based services.6/ Relying on the integration regulation, the unanimous three judge panel underscored that 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." Id. at *8. The Third Circuit therefore reversed the district court and ordered it to enter summary judgment in favor of the appellant. Id. at *12.7/ The Third Circuit found that the district court in Helen L. inappropriately relied on Williams v. Secretary of Executive Office of Human Services, 609 N.E.2d 447 (Mass. 1993), which was flawed in its basic analysis of the Title II integration regulation because it drew upon inapplicable Section 504 caselaw.8/ Helen L. 1995 WL 34200 at *6-7. Like the Williams ______________________ 6/ Defendants in that case stipulated to the fact that "[t]he setting for the provision of attendant care services appropriate to the needs of Idell S. [the appellant] is in the community." Id. at *13, n.6. 7/ This is the only decision to date addressing the Title II integration regulation where the court had the benefit of the United States Department of Justice's views on the regulation it promulgated. The Department did not participate in the proceedings before the district court in Helen L. However, on appeal, the Court of Appeals for the Third Circuit requested the views of the Justice Department. The United States submitted an amicus brief and participated in the oral argument, where it argued that the district court's interpretation of the integration regulation of Title II of the ADA ignored the fundamental purpose of the ADA and its regulations -- to end the exclusion and segregation of individuals with disabilities. 8/ In Williams, which was the first case to interpret the integration regulation of Title II, the Massachusetts Supreme Judicial Court overruled the lower court's denial of defendants' summary judgment motion on plaintiffs' claims that the Department (continued...) - 15 - court, the district court in Helen L. failed to recognize the importance of Congress' specific mandate to refer only to HEW's Section 504 coordination regulations in promulgating Title II regulations. Both courts thus incorrectly found that there can be no "discrimination" under Title II if the service at issue is provided only to individuals with disabilities. The Third Circuit dismissed this interpretation as facially and structurally insupportable: 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 these statutes, independent of the discrimination that arises when individuals with disabilities receive different services than those provided to individuals without disabilities." Helen L. 1995 WL 34200 at *8, citing Brief of Amicus, the United States, at 7.9/ ____________________ 8/(...continued) of Mental Health's policies and practices violated the ADA. 609 N.E.2d at 451. In the only other existing case to date that has specifically addressed and discussed the integration regulation of Title II, Conner v. Branstad, 839 F. Supp. 1346 (S.D. Iowa 1993), the court also misinterpreted the relationship between prior interpretations of Section 504 and the integration requirements of Title II of the ADA. In Conner, the court inappropriately concluded that all Section 504 caselaw is relevant to interpreting Title II ADA requirements, id. at 1357, and thus incorrectly relied on prior Section 504 cases having nothing to do with the HEW coordination regulations. 9/ As the United States further explained in its amicus brief, like the integration requirement in the HEW coordination regulations, the ADA's integration regulation does not require disparate treatment of persons with disabilities and those without disabilities in order to find discrimination since on its face, the regulation applies to all services administered by a (continued...) - 16 - The Helen L. court also noted that Williams was factually distinguishable in significant aspects, as it is here. In particular, unlike the plaintiffs in this case, the plaintiffs in Williams presented absolutely no evidence that "any particular client's placement was inappropriate, or that they themselves were inappropriately placed in a segregated setting after the ADA's effective date." Williams, 609 N.E.2d at 453. Instead, the Williams plaintiffs offered global statistical information about the percentage of people with disabilities in publicly operated residential programs who live with other people with disabilities. Id. Absent any proof that individuals with disabilities were not already being served in the most integrated setting, the court held that the ADA does not require a specific proportion of the mental health service's housing placements to be in integrated housing. Id. at 452. The evidentiary record in Williams stands in sharp distinction to this case, where plaintiffs have presented defendants' admissions that hundreds of citizens of Alabama are unnecessarily segregated in institutions operated by the State. Accordingly, this Court should grant summary judgment in favor of plaintiffs. ___________________ 9/(...continued) public entity. The ADA integration regulation is thus not restricted to services that also are provided to people without disabilities. The structure of the rest of the Title II regulations supports this reading. If 28 C.F.R. S 35.130(d) applied only to programs and services offered to everyone, then 28 C.F.R. S 35.130(b)(1)(iv), which prohibits a public entity from providing separate services to people with disabilities than are provided to others, would be redundant. - 17 - IV. Prior Section 504 Cases Are Not Relevant To Interpreting Title II's Integration Requirement. Defendants argue that Congress intended Title II "to act just as S 504 had acted: in a limited fashion." Defendants' Motion for Judgment on the Pleadings on Plaintiffs' Claims Under the Americans with Disabilities Act of 1990 [Defendants' Motion] at 5. Defendants' interpretation of the construction of the ADA -- a landmark piece of civil rights legislation -- is clearly contrary to the principles of construction of a remedial statute. As the court in Kinney v. Yerusalim, 812 F. Supp. 547 (E.D. Pa.), aff'd, 9 F.3d 1067 (3d Cir. 1993), cert. denied, U.S. , 114 S. Ct. 1545 (1994), pointed out, "[t]he ADA is a remedial statute, designed to eliminate discrimination in all facets of society. As a remedial statute, it must be broadly construed to effectuate its purposes." 812 F. Supp. at 551, citing Tcherepin v. Knight, 389 U.S. 332 (1967). In enacting Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. S 794, Congress recognized that society historically has discriminated against people with disabilities by unnecessarily segregating them from their family and community. The sponsors of that legislation condemned the "invisibility of the handicapped in America," and introduced bills responding to the country's "shameful oversights" that caused individuals with disabilities to live among society "shunted aside, hidden, and ignored." Alexander v. Choate, 469 U.S. 287, 296 (1985) (internal quotations omitted). Almost twenty years later, Congress recognized that the Rehabilitation Act had not fulfilled - 18 - the "compelling need * * * for the integration of persons with disabilities into the economic and social mainstream of American life," S. Rep. No. 116, 101st Cong. at 20 (1989), and enacted the ADA "to continue to break down barriers to the integrated participation of people with disabilities in all aspects of community life." H.R. Rep. No. 485 (III) at 49-50 (1990), reprinted in 1990 U.S.C.C.A.N. at 472-473. As discussed in Part II, above, Congress instructed the Attorney General to promulgate Title II regulations consistent with other sections of the ADA and a very specific set of regulations under Section 504 -- the HEW coordination regulations. Because "overriding significance" must be attached to the congressional ratification of administrative regulations, see Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 563 (1990), prior Rehabilitation Act cases that did not consider the type of integration requirement that the HEW Section 504 coordination regulations mandate are not relevant in interpreting the requirements of Title II of the ADA. While Congress may have envisioned Title II as incorporating Section 504 standards, Congress specifically endorsed the interpretation of Section 504 reflected only in the HEW coordination regulations, rather than the regulations issued by other agencies or any of the decisions cited by defendants. Thus, although some courts of appeals have considered whether Section 504 of the Rehabilitation Act generally provides a right to community treatment, none have - 19 - specifically considered the integration mandate in the HEW coordination regulations. For example, in Clark v. Cohen, 794 F.2d 79, 84 n.3 (3d Cir.), cert. denied, 479 U.S. 962 (1986), the court did not consider the integration mandates in either the HEW coordination regulations or the ADA Title II regulations. Helen L., 1995 WL 34200 at *7. It simply affirmed the lower court's finding that the Rehabilitation Act and the Department of Health and Human Services' [HHS] Section 504 regulations, 45 C.F.R. S 84.4(b)(2), do not require a public entity to provide services in an integrated setting without proof of unequal treatment.10/ See Clark v. Cohen, 613 F. Supp. 684, 691 (E.D. Pa. 1985).11/ Two other appellate cases cited by defendants (Defendants' Motion at 6-7) additionally did not address the integration requirement in the HEW coordination regulations that is at issue here,12/ ____________________ 10/ The HHS Section 504 regulations are different than the HEW coordination regulations in 28 C.F.R. pt. 41 with which the Congress required the ADA to conform. Unlike the HEW Section 504 coordination regulations, there is no independent integration requirement in the HHS regulations. Instead, the HHS Section 504 regulations require integration only in the context of providing opportunities for people with disabilities that are equal to those available to individuals without disabilities. 45 C.F.R. S 84.4(b)(2) (1994). 11/ The district court did find, however, that the plaintiff's continued confinement in an institution violated the Due Process Clause of the Fourteenth Amendment. Clark v. Cohen, 613 F. Supp. at 696-705. 12/ In Phillips v. Thompson, 715 F.2d 365, 368 (7th Cir. 1983), the court summarily concluded (without reference to regulations) that the Rehabilitation Act creates no affirmative duty "to create less restrictive community residential settings." The Second Circuit in P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d (continued...) - 20 - and the remaining two cases, while also not involving the HEW coordination regulations, actually acknowledge that the Rehabilitation Act may require public entities to provide services to individuals with disabilities in integrated settings. Thus, in Kentucky Ass'n for Retarded Citizens, Inc. v. Conn, 674 F.2d 582, 585 (6th Cir.), cert. denied, 459 U.S. 1041 (1982), the court did not dispute that Section 504 required services in the least restrictive setting. Rather, it found that the district court had not clearly erred as a factual matter in concluding that institutionalization of some individuals may be appropriate under Section 504. Similarly, in Plummer v. Branstad, 731 F.2d 574, 579 (8th Cir. 1984), the court assumed that Section 504 requires states to provide services to individuals in "integrated settings appropriate to their particular needs" -- a determination that must be made by the trier of fact. In short, none of the Rehabilitation Act cases defendants cite are Section 504 cases addressing the integration requirement of the HEW coordination regulations of Section 504. V. Defendants' Failure To Provide Community Services To Individuals Identified as Unnecessarily Institutionalized Is Unjustified. Defendants also argue that even if Title II and its implementing regulations require a public entity to provide _______________________ 12/(...continued) Cir. 1990), addressed Section 504 claims only in the context of deciding defendants' claims of qualified immunity, finding that the plaintiff had not shown discriminatory animus and that Section 504 does not clearly establish an obligation to treat all individuals with disabilities the same. - 21 - services to individuals with disabilities in an integrated setting, the state is excused from that obligation if it requires the public entity to make a "fundamental" or "substantial" change in its program. Defendants' Motion at 6. This Court need not consider this argument13/ because the State of Alabama is already required to provide services in the least restrictive or most integrated setting and claims to have an array of community- based services already in place. Indeed, that obligation arises from orders of this very Court entered some twenty-three years ago. Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972), 344 F. Supp. 387 (M.D. Ala. 1972), both aff'd in relevant part, 503 F.2d 1305 (5th Cir. 1974). Moreover, defendants admit that community-based services are generally less costly than institutional services. Plaintiffs' Mem. at 21. Under similar circumstances, the Third Circuit in Helen L. found no justification for continued segregation which violates the ADA, as should the Court here. As the Third Circuit stressed: 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 this title [Title II of the ADA]. Helen L. 1995 WL 34200 at *12, quoting H.R. Rep. No. 485 (III), at 50 (1990), reprinted in 1990 U.S.C.C.A.N. at 63 (emphasis ________________ 13/ Cf. Kinney v. Yerusalim, 9 F.3d 1067, 1074 (3d Cir. 1993), cert. denied, 114 S. Ct. 1545 (1994) (finding that in Title II, Congress limited the available defenses to those cases in which plaintiffs are challenging a public entity's failure to alter existing facilities or communications systems). - 22 - CERTIFICATE OF SERVICE I hereby certify that a copy of the United States' Response to Defendants' Motion for Judgment on the Pleadings and Plaintiffs, Motion for Summary Judgment on Plaintiffs' Claims under the Americans with Disabilities Act of 1990 was sent this 6th day of February 1995 to the following counsel of record by first class mail: Counsel for Defendants: G.R. "Rick" Trawick Alabama Department of Mental Health and Mental Retardation 200 Interstate Park Drive P.O. Box 3710 Montgomery, AL 36193-5001 Greg D. Crosslin Clifton E. Slaten Sasser & Littleton P.O. Box 388 1 Commerce Street Montgomery, AL 36101 Counsel for Plaintiffs: Ira A. Burnim Claudia Schlosberg Shelley R. Jackson Andrew Bridge Judge David L. Bazelon Center for Mental Health Law 1101 15th Street, N.W., #1212 Washington, D.C. 20005 James Tucker American Civil Liberties Union of Alabama P.O. Box 447 Montgomery, AL 36101 Fern Singer American Civil Liberties Union of Alabama 2007 Lancaster Road Birmingham, AL 35209 Kathryn Sumrall 2420 Arlington Avenue Birmingham, AL 35205 Counsel for Plaintiff-Intervenors: Drew P. Baker Alabama Disabilities Advocacy Program University of Alabama School of Law P.O. Box 870395 Tuscaloosa, AL 35487-0395 David Ferleger 37 S. 20th Street, #601 Philadelphia, PA 19103 (Signature) Robinsue Frohboese U.S. Department of Justice Civil Rights Division Special Litigation Section P.O. Box 66400 Washington, D.C. 20035-6400 (202) 514-6258