conclusions reached by NSH treatment professionals. Plaintiffs,
however, have not shown that NSH treatment professionals have
rendered unreasonable opinions. Accordingly, and in deference to
the reasonable opinions of NSH's staff, I conclude that
approximately one third of Plaintiffs have satisfied the first
Olmstead requirement. To be entitled to relief, these
Plantiffs must also meet the other two Olmstead requirements.
B. Opposition to Discharge
The integration mandate does not require the state to transfer
from institutional to community-based services individuals who
are opposed to such a transfer, see Olmstead, 527 U.S. at 587,
119 S.Ct. 2176; there is no federal requirement that
"community-based treatment be imposed on patients who do not
desire it." Id. at 602, 119 S.Ct. 2176. It is undisputed that
there are many NSH residents who are appropriate for placement
who do not oppose discharge. Such individuals may be entitled to
relief if their placement in the community can be reasonably
C. Reasonable Accommodation and Defendants' Fundamental
As a plurality of the Olmstead Court concluded, states may
defend against integration mandate claims if they can prove that
the provision of community-based services would result in a
fundamental alteration of their programs and activities. See
id. at 603, 119 S.Ct. 2176. The Olmstead Court rejected a
construction of the fundamental alteration defense that required
only a comparison of the cost of the community services for the
plaintiffs with the state's budget, and declined to hold that
relief that results in increased costs constitutes a fundamental
alteration per se. See id. Instead, as the Court directed, I
must consider whether such individuals "can be reasonably
accommodated, taking into account the resources available to the
State and the needs of others with mental disabilities." Id.
at 587, 607, 119 S.Ct. 2176. To avoid liability, Defendants must
succeed on this defense.*fn12
"Sensibly construed, the fundamental-alteration component of
the reasonable-modification regulation [allows] the State to
show that, in the allocation of available resources, immediate
relief for the plaintiffs would be inequitable, given the
responsibility the State has undertaken for the care and
treatment of a large and diverse population of persons with
mental disabilities." Olmstead, 527 U.S. at 604, 119 S.Ct.
2176.*fn13 The "resources available to the State" refers to
the state's mental health budget and nothing beyond that budget.
Id. at 607, 119 S.Ct. 2176; see also Williams v. Wasserman,
164 F. Supp.2d 591, 636-37 (Md. 2001) (finding that
deinstitutionalization does not result in immediate cost savings
to mental health budget).
Here, DPW's mental health budget consists of its mental health
services appropriation and that portion of the Medical
Assistance appropriation which covers the
HealthChoices-Behavioral Health program. (Tr. at 2:122.) The
process by which DPW's mental health budget is enacted by the
legislature, including the
process whereby executive officials within DPW and the
Governor's office develop proposed budgets, is beyond judicial
scrutiny. See Bogan v. Scott-Harris, 523 U.S. 44, 54-55, 118
S.Ct. 966, 140 L.Ed.2d 79 (1998) ("exercise of legislative
discretion should not be inhibited by judicial interference").
This principle applies when only declarative or injunctive
relief is sought. See Supreme Court of Virginia v. Consumers
Union, 446 U.S. 719, 732, 100 S.Ct. 1967, 64 L.Ed.2d 641
In this case, the record as a whole convincingly demonstrates
that, over time, DPW has used its mental health budget to
establish more and more community-based programs, and DPW will
continue to do so, to the extent possible given fiscal
realities. However, it is also apparent that DPW's existing
mental health budget is, and will continue to be, insufficient
to enable all eligible individuals to receive community-based
services as soon as their eligibility is confirmed. At issue,
then, is how DPW utilizes those funds made available to it by
the Legislature at the end of the budget-enactment process.
Consequently, I must consider whether DPW is utilizing its
mental health budget in a reasonable, responsible manner to
provide community-based services, or, in the alternative,
whether DPW may somehow redirect its available resources to
accelerate the rate of community placements without
fundamentally altering its programs.
I recognize that matters involving deinstitutionalization
raise "complex medical, social and fiscal issues not easily
addressed by litigation." Williams, 164 F. Supp.2d at 595. More
particularly, "[t]he pace of `downsizing' a State's institutions
reflects both fiscal and policy choices that are difficult to
make." Id. at 637. Furthermore, "[t]he State is entitled to
wide discretion in adopting its own systems of cost analysis,
and, if it chooses, to allocate health care resources based on
fixed and overhead costs for whole institutions and programs."
Olmstead, 527 U.S. at 615, 119 S.Ct. 2176 (Kennedy, J.,
concurring in judgment). Even if cost savings may eventually be
achieved through deinstitutionalization, the immediate extra
cost, and the concomitant lack of immediate aggregate cost
saving, is sufficient to establish that a "fundamental
alteration" would be required if the relief sought by plaintiffs
— accelerated community placements — were granted in this case.
See Williams, 164 F. Supp.2d at 636-37.
I conclude that Defendants are doing what they can with the
resources that are in fact available. See Olmstead, 527 U.S.
at 597, 604, 607, 119 S.Ct. 2176. This conclusion is buttressed
by the fact that Plaintiffs have not identified any viable
source of funding for the relief they have requested. Simply,
absent an increase in funding, there is no way for Defendants to
provide the relief sought by Plaintiffs without depriving others
of mental health care. Although NSH patients do have to wait for
community placements, procedures are in place whereby patients
who are ready for discharge are identified, and appropriate
individualized discharge plans are developed for them by
hospital staff and county representatives, who have no choice
but to work within the limits of available, finite resources.
Moreover, the evidence reveals that granting Plaintiffs the
requested relief would cause scarce resources to be directed to
services for Plaintiffs at the expense of services for other
individuals with mental illness. Thus, taking into account the
resources available to the Commonwealth and the needs of others
with mental disabilities, Defendants have established their
fundamental alteration defense, barring Plaintiffs from
receiving the requested relief.
Throughout the trial, I was impressed with the sincerity and
concern of all the lawyers and participants in this litigation.
Plaintiffs are fortunate insofar as the public servants who have
chosen to work in OMHSAS did so not because they were merely
seeking a job, but because of vital concern for persons with
While the first two Olmstead requirements have been met for
some, though not all, class members, Defendants have made the
necessary showing that the requested modification would cause a
fundamental alteration of the Commonwealth's services and
programs. Defendants are painfully frustrated by their inability
to carry out their mandate as quickly as they, or Plaintiffs,
would prefer. This is frustrating to the Court as well.
An appropriate Order follows.
AND NOW, this 5th day of September, 2002, upon
consideration of the parties' proposed findings of fact and
conclusions of law, revised proposed findings of fact and
conclusions of law, the responses thereto, and the evidence
presented at trial, and for the foregoing reasons, it is hereby
1. Judgment is entered in favor of Defendants and
against Plaintiffs and the Plaintiff class.
2. The Clerk of Court is directed to close this