filed: January 31, 1995; As Amended February 2, 1995.
Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil Action No. 92-6054).
Before: Mansmann, Cowen and McKEE, Circuit Judges
We are asked to decide if the Pennsylvania Department of Public Welfare ("DPW")*fn2 is violating Title II of the Americans with Disabilities Act (the "ADA or the "Act"), 42 U.S.C. § 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.
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.*fn3
The suit alleged 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 "for 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.*fn4
Idell S. is 43 years old and the mother of two children ages 22 and 14.*fn5 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.
DPW operates two different programs that provide physically disabled persons with assistance in daily living. DPW hinds 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 "those 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 service [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, P 35. The program thus allows 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. . . ." Id. at P 36.
In 1993, HSMA evaluated Idell S. and determined that she was eligible for attendant care services. However, because of a lack of finding, 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.*fn6 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 P 41, nor has it "requested Medical Assistance dollars be available for Attendant Care Services in the Community." Id. at P 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 than the staff of the nursing home and visits from her two children. Idell S. claims that this violates Title II of the ADA.
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., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (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
denied 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.
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.*fn7 "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).*fn8 Section 504's sponsors described it as a response to "'previous societal neglect'" and introduced 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, 83 L. Ed. 2d 661, 105 S. Ct. 712 (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.*fn9 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 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 adopt 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 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 ...