The opinion of the court was delivered by: BRODY
In this action I must decide whether a state program that provides health maintenance and other ancillary services to physically disabled individuals can exclude from eligibility for those services physically disabled individuals who are not mentally alert as defined by the program. I find that this program violates the Americans with Disabilities Act by using an improper eligibility criterion to screen out disabled individuals who could benefit from the service.
I received evidence from both parties at a bench trial on October 12th to 13th, 1993. From that evidence I made the findings of fact that follow.
A. The Attendant Care Program
The Attendant Care Program (ACP) is administered by the Pennsylvania Department of Public Welfare (DPW) pursuant to the Attendant Care Services Act. 62 Pa. Cons. Stat. Ann. §§ 3051-55 (Supp. 1993). The act became effective on July 1, 1987. Id. The statute commands the DPW to "establish and develop . . . programs of attendant care services for eligible individuals." 62 Pa. Const. Stat. Ann. § 3054.
"Attendant care services" are defined by the Act as "those basic and ancillary services which enable an eligible individual to live in his home and community rather than in an institution and to carry out functions of daily living, self-care and mobility." 62 Pa. Const. Stat. Ann. § 3053. Included among the basic services are health maintenance activities, bathing and personal hygiene, dressing and grooming, and feeding. Id. Ancillary services include "homemaker-type" services, "companion-type" services, and "assistance with cognitive tasks, including, but not limited to, managing finances, planning activities and making decisions." Id.
(1) Experience any medically determinable physical impairment which can be expected to last for a continuous period of not less than 12 months.
(2) Is capable of selecting, supervising and, if needed, firing an attendant.
(3) Is capable of managing his own financial and legal affairs.
(4) Because of physical impairment, requires assistance to complete functions of daily living, self-care and mobility, including, but not limited to, those functions included in the definition of attendant care services.
The statute also contains five statements of policy, three of which are pertinent to the merits of this case.
(1) The increased availability of attendant care services for adults will enable them to live in their own homes and communities.
(2) Priority recipients of attendant care services under this act shall be those mentally alert but severely physically disabled who are in the greatest risk of being in an institutional setting.
(3) Recipients of attendant care have the right to make decisions about, direct the provision of and control their attendant care services. This includes, but is not limited to, hiring, training, managing, paying and firing of an attendant.
62 Pa. Const. Stat. Ann. 3052.
The DPW administers the ACP in accord with the objectives and commands of the statute. 62 Pa. Const. Stat. Ann. § 3054(a). Pursuant to the statutory guidelines, the DPW contracts with providers of attendant care services. Defendant's Direct Examination of Paula Jean Howley, Director of DPW Attendant Care Program, Transcript of Oct. 13, 1993 at 135-36. Those agencies chosen provide attendant care services in conformity with the statute and DPW regulations. Id.
The DPW has an ACP manual that largely adopts, and also fleshes out the terms of Attendant Care Act. Plaintiffs' Exhibit 1. The manual lists the following as Program Goals for eligible individuals:
1. To live in the least restrictive environment as independently as possible;
2. To remain in their homes and to prevent their inappropriate institutionalization; and,
3. To seek and/or maintain employment.
The manual also directs contractors to "design and provide a program which [ensures that] consumers have the right to make decisions about, direct the provision of, and control their Attendant Care Service [including] hiring, training, managing, paying, and firing an attendant." Id. at 5.
In practice, the DPW carries out this mandate by offering three models of attendant care service management -- the agency model, the consumer model and the combination model. See Plaintiffs' Direct Examination of Paula Jean Howley, DPW Attendant Care Program Manager, Trial Transcript of October 12, 1993 at 121. The method chosen is at the discretion of the consumer, and the level of mental alertness has no direct relationship to the method chosen. Id. at 125, 127-28.
In the consumer model, the consumer maintains complete control of the employment and management of the attendant. The consumer can advertise for an attendant, interview applicants, hire, train, supervise and, if necessary, fire the attendant. Defendants' Cross Examination of Paula Jean Howley, Tr. of October 12 ...