# Amicus Curiae Brief — Olmstead v. LC

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 581

## Text

8 Supreme Court, U.S.
\ FILED

: MAR 15 1999
No. 98-536
—— — AN MN CLE ENR NEN ROR OC

In the Supreme Court of the Uni 8

OCTOBER TERM, 1998

TOMMY OLMSTEAD, COMMISSIONER,
GEORGIA DEPARTMENT OF HUMAN RESOURCES,
ET AL., PETITIONERS

v.

L.C., BY JONATHAN ZIMRING, GUARDIAN AD LITEM
AND NEXT FRIEND, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS

SETH P. WAXMAN
Solicitor General
Counsel of Record
BILL LANN LEE
Acting Assistant Attorney
General
BARBARA D. UNDERWOOD
Deputy Solicitor General

IRVING L. GORNSTEIN
Assistant to the Solicitor
General
JESSICA DUNSAY SILVER
GREGORY B. FRIEL
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

W

QUESTION PRESENTED

Title II-A of the Americans With Disabilities Act of 1990
(ADA), 42 U.S.C. 12132, provides that “no qualified in-
dividual with a disability shall, by reason of such disability,
* * * be subjected to discrimination by any [public] entity.”
The Attorney General’s “integration regulation,” 28 C.F.R.
35.130(d), provides that “a public entity shall administer
services, programs, and activities in the most integrated
setting appropriate to the needs of qualified individuals with
disabilities.” The Attorney General interprets that regula-
tion to require a State that offers treatment to persons with
disabilities to provide such treatment in a community setting
that offers opportunities for interaction with persons with-
out disabilities, rather than in an institution, when (1) the
State’s treatment professionals have determined, in the
exercise of reasonable professional judgment, that com-
munity placement of the individual is appropriate, and (2)
such a placement would not require an unreasonable change
in state policy or a fundamental alteration in the nature of
the State’s treatment program. The question presented is
whether the regulation as so interpreted validly implements
the ADA.

TABLE OF CONTENTS

Interest of the United States u
REESE ER oS Se 0 MES A SE ey a

Summary of argument 11
Argument:
The Attorney General reasonably interpreted the
integration regulation to prohibit the unjustified
segregation of persons in institutions, and the
regulation as so construed falls within the Attorney
General's authority to implement Title II .........ccccccoe. 7
A. The Attorney General has reasonably inter-
preted the integration regulation to prohibit
the unjustified segregation of persons in
% 9
B. The Attorney General was warranted in con-
cluding that the unjustified segregation of
persons in institutions constitutes a form of
discrimination based on disability prohibited by
„ 11
C. The integration regulation does not intrude on
the professional judgment of state treatment

professionals and does not impose undue costs
on the states = 18

D. Petitioners’ remaining arguments are

unpersuasive

Conclusion
Appendix

on =

7 & 8

TABLE OF AUTHORITIES
Cases:
Alexander v. Choate, 469 U.S. 287 (1985) occcccccccccccseoesoee 12, 25
Auer v. Robbins, 519 U.S. 452 (1997) ...ccccccccccessssesesveeevnee 10
Bragdon v. Abbott, 118 S. Ct. 2196 (1998) ..... 11, 23

Central Bank v. First Interstate Bank, 511 U.S.
164 (1994) . 26

(IID)

IV

Cases—Continued:
Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc, 467 U.S. 837 (1984)

City of Boerne v. Flores, 521 U.S. 507 (1997) cocccccccccsoee

City of Cleburne v. Cleburne Living Ctr., 478 US.
U.S. 482 (1985)

City of Edmonds v. Oxford House, Inc., 514 US.
725 (1995)

Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta,
458 U.S. 141 (1982)

Garrity v. Gallen, 522 F. Supp. 171 (D.N.H. 1081)

Gregory v. Ashcroft, 501 U.S. 452 (1991) ..ccccccccecee.
Guardians Ass'n v. Civil Serv. Comm n, 463 U.S.
582 (1983)

Halderman v. Pennhurst State Sch. & Hosp.,
446 F. Supp. 1295 (E. D. Pa. 1978), aff d in part and
rev'd in part, 612 F.2d 84 (3d Cir. 1979), rev'd, 451
U.S. 1 (1981)

Helen L. v. DiDario, 46 F. ad 325 (3d Cir.), cert.
denied, 516 U.S. 813 (1995)

10

Homeward Bound, Inc. v. Hissom Mem’! Ctr.
No. 85-C-437-E, 1987 WL 27104 (N.D. Okla. July 24,
1987)

Jackson v. Fort Stanton Hosp. & Training Sch.,
757 F. Supp. 1243 (D.N.M. 1990), rev'd on other
grounds, 964 F. 2d 980 (10th Cir. 1992)

Katzenbach v. Morgan, 384 U.S. 641 (1966)

82

Kentucky Ass'n for Retarded Citizens, Inc. v. Conn,
674 F 2d 582 (6th Cir.), cert. denied, 459 U.S.
1041 (1982)

Lynch v. Maher, 507 F. Supp. 1268 (D. Conn.
1981) ....:

F. C. v. McLaughlin, 913 F.2d 1033 (2d Cir. 1990) ...........

Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1 (1981)

Cases—Continued: Page

Pennsylvania Dep't of Corrections v. Yeskey, 118

S. Ct. 1952 (1998) 10
People First v. Arlington Dev. Ctr., 878 F. Supp. 97

(W.D. Tenn. 1992)
Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265

(1978) 12
S.H. v. Edwards, No. C81-877A (N.D. Ga. Apr. 10,

1987), aff'd, 860 F.2d 1045 (11th Cir. 1988), cert.

denied, 491 U.S. 905 (1989) 24
Salinas v. United States, 522 U.S. 52 (1997) 27, 29
School Bd. v. Arline, 480 U.S. 273 (1987 . 9, 19, 25, 29
Southeastern Community College v. Davis, 442 U.S.

397 (1979) 12, 25
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504

(1994) 9, 10
Traynor v. Turnage, 485 U.S. 535 (1988) 24, 25
Youngberg v. Romeo, 457 U.S. 307 (1982) 9,19

Constitution, statutes and regulations:
U.S. Const. Amend. XIV, § 5 29, 30
Age Discrimination in Employment Act of 1967,

29 U.S.C. 621 et seq. 26
Americans with Disabilities Act of 1990, 42 U.S.C.

12101 et seq.:

42 U.S.C. 12101(a\(2) 12, 13, 30, la
42 U.S.C. 12101(a)(3) 4, 6, 12, 13, 30, la
42 U.S.C. 12101(aX5) 4, 6, 12, 18, 30, la
42 U.S.C. 12101(aX7) 18, 30
42 U.S.C, 12101(aX8) 17-18, la
42 U.S.C. 12101(d) 26
Tit. I. 42 U.S.C, 12111 et seq. 7, 15
42 U.S.C. 121110600) la
42 U.S.C. 12111010B) 19, la
42 U.S.C. 12112 7
Tit. II. 42 U.S.C. 12131 et seq. passim
42 U.S.C, 12132 3, 7, 17, 28, 4a
42 U.S.C, 12133 5a

VI

Statutes and regulations Continued: Page
42 U.S.C. 12134 7-8, 27, 28, 5a

42 U.S.C. 12134(a) 5a

42 U.S.C. 12134(b) 14-15, 28, 5a

Tit. III. 42 U.S.C, 12181 et seg. 7,15

42 U.S.C. 12182(b) 7

42 U.S.C, 12182(b)\(1(B) 15, 6a

Developmental Disabilities Assistance and Bill of
Rights Act, 42 U.S.C. 6000 et seq.:

42 U.S.C, 6001(10)(A) (Supp. II 1984) : 16
42 U.S.C. 6001(10)B) (Supp. II 1984) 16
42 U.S.C. 6001(15)( A) 16
42 U.S.C. 6001015\(B) 16
42 U.S.C. 6001(15K(C) 16
42 U.S.C. 6010(2) (1976) 28
Fair Housing Act, 42 U.S.C. 3601 et seq. 27
Individuals with Disabilities Education Act,
20 U.S.C. 14125) 15-16
Medicare Act, 42 U.S.C. 1395 et seq.:
42 U.S.C. 1396d(b) 21
42 U.S.C. 1396n(c) 20
Rehabilitation Act of 1973, § 504, 29 U.S.C. 794 .......... „ 66
15, 23, 24, 25, 28, 29
Ga. Code Ann. § 37-4-121 (Mitchie 1995) 19
28 C. F. R.:

Pt. 35 8
Section 35. 130 7a
Section 35. 1300b 07) 5, 7, 8, 19, 22, 10a
Section 35. 1300d) 3, 4, 5, 8, 19, 28, 10a
Section 35.130(e)(1) 26, lla
App. A, § 35.130 8

Pt. 41:

Section 41.51(d) (1997) 4

Section 41.51(d) 15

Vil

Miscellaneous:
134 Cong. Rec. 85116 (daily ed. Apr. 28, 1988)
135 Cong. Rec. 84986 (daily ed. May 9, 1989)
136 Cong. Rec. H2447 (daily ed. May 17, 1990)

136 Cong. Rec. H2608 (daily ed. May 22, 1990) ccc. |

Americans with Disabilities Act of 1989: Hearings
on S. 933 Before the Senate Comm. on Labor and
Human Resources and the Subcomm. on the

Handicapped, lolst Cong., Ist Sess. (1989)

H.R. Rep. No. 485, 101st Cong., 2d Sess., Pt. 3 (1990)
Rosalie A. Kane et al., The Heart of Long-Term Care
(1998)

Oversight Hearing on H.R. 4498, Americans with
Disabilities Act of 1988: Hearing Before the Subcomm.
on Select Educ. of the House Comm. on Educ. and
Labor, 100th Cong., 2d Sess. (1988)

S. Rep. No. 139, 97th Cong., Ist Sess. (1981)

S. Rep. No. 273, 101st Cong., 2d Sess. (1990)

U.S. Comm'n on Civil Rights, Accommodating the
Spectrum of Individual Abilities (Clearinghouse
Pub. No. 81, 1983)

William G. Weissert et al., Cost Savings From
Home And Community-Based Services: Arizona's
Capitated Medicaid Long-Term Care Program,

22 J. of Health Pol., Poly & L. 1829 (1997)

13, 20

21, 22

In the Supreme Court of the United States
OCTOBER TERM, 1998

No. 98-536

TOMMY OLMSTEAD, COMMISSIONER,
GEORGIA DEPARTMENT OF HUMAN RESOURCES,
ET AL., PETITIONERS

*.

L. C., BY JONATHAN ZIMRING, GUARDIAN AD LITEM
AND NEXT FRIEND, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

The Attorney General has authority to enforce Tide II of
the Americans With Disabilities Act of 1990, 42 U.S.C. 12131
et seq. See 42 U.S.C. 12133. In addition to that enforcement
responsibility, Congress has directed the Attorney General
to issue regulations to set forth the forms of discrimination
prohibited by Title II. 42 U.S.C, 12134(a). Pursuant to that
mandate, the Attorney General has issued such regulations.
See 28 C. F. R. Pt. 35. One of those regulations requires a
public entity to “administer services, programs, and activi-
ties in the most integrated setting appropriate to the needs
of qualified individuals with disabilities.” 28 C. F. R.
35.130(d). The Attorney General has interpreted that regu-
lation to require the State, in some circumstances, to treat

(1)

2

persons with disabilities in a community setting rather than
an institution. The validity of that interpretation is at issue
here. The United States participated as an amicus curiae in
this case in the court of appeals.

STATEMENT

1. Respondents L.C. and E.W. are mentally retarded
individuals who also have mental disorders. Pet. App. 32a-
33a. Before the present litigation began, L.C. and E.W.
were voluntary patient at the Georgia Regional Hospital at
Atlanta (GRH-A) and were confined in a locked psychiatric
unit. J. A. 2, 5, 45, 48, 62-63, 78-79. GRH-A is a large, state-
run psychiatric institution whose programs are designed
primarily to stabilize individuals during the acute phase of a
mental illness so that treatment can be continued in the
community on an outpatient basis. J. A. 13, 48-49.

L.C. was most recently admitted to GRH-A in May 1992.
J. A. 14, 51. By May 1993, L.C.’s psychiatrie condition had
stabilized, and petitioners and L.C.’s treating physician
agreed that she could appropriately be treated in a
community setting. J.A. 5, 46, 120, 205-207. I. C.
nonetheless remained at GRH-A until after the present
litigation began in May 1995. In July 1995, petitioners
discharged L.C. to a state-run institution for treatment of
persons with mental retardation, and in February 1996,
petitioners released L.C. to a community-based program.
Pet. App. 33a.

E. W. was most recently admitted to GRH-A in February
1995. J. A. 64, 80. In March 1996, E.W.’s treating physician
concluded that she could be appropriately treated in the
community. J. A. 88-89, 210-212. In that same year, a clinical
psychologist at GRH-A reached the same conclusion. J.A.
213-214; see also J.A. 101. E.W. nonetheless remained insti-
tutionalized until a few months after the district court issued

3

its judgment in 1997, at which point she was placed in a
community-based program. Pet. App. 2a-3a n.2.

2. In 1995, L.C. filed suit against petitioners, alleging,
inter alia, that petitioners had violated Title II of the ADA
and its implementing regulations by failing to offer her treat-
ment in a community-based residential program after treat-
ment professionals determined that such a placement was
appropriate. J. A. 26, 28; Pet. App. 3la. E W. intervened,
raising the same claim. J. A. 61-73. The district court
granted summary judgment in part in favor of respondents.
Pet. App. 3la-42a. The court held that petitioners’ refusal to
place vespondents in a community-based program violated
Title II of the ADA, which prohibits a public entity from
subjecting any qualified individual with a disability to
discrimination by reason of such disability, 42 U.S.C. 12132,
as well as the Title II integration regulation, 28 C.F.R.
35.130(d), which requires a public entity to “administer
services, programs, and activities in the most integrated
setting appropriate to the needs of qualified individuals with
disabilities.” Pet. App. 37a-39a. The court rejected peti-
tioners’ defense that they lacked funds to provide such
placements to L. C. and E. W. Id. at 38a-39a.

3. The court of appeals affirmed the distriet court's
judgment, but remanded for a reassessment of the State's
cost- based defense. Pet. App. la-30a. The court held that
when “a disabled individual’s treating professionals find that
a community-based placement is appropriate for that
individual, the ADA imposes a duty to provide treatment in
a community setting,” unless such a placement would require
a “fundamental alteration” in the State’s treatment program.
Id. at 21a-25a.

In reaching that conclusion, the court relied on the
Attorney General’s Title II integration regulation. The
court concluded that “the plain language of § 35.130(d) pro-
hibits a state from providing services to individuals with

4

disabilities in an unnecessarily segregated setting” and that
a State violates that mandate when “the State confines an
individual with a disability in an institutionalized setting
when a community placement is appropriate.” Pet. App. 7a,
Sa.

The court rejected petitioners’ contention that the inte-
gration regulation conflicts with the requirement in Title II
that an individual must prove discrimination by reason of a
disability. The court noted that Congress had instructed the
Department of Justice to issue regulations that are con-
sistent with the coordination regulations issued under
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794,
and that one of those regulations requires integration in
terms that are substantially the same as those in Section
35.130(d). Pet. App. 9a (citing 28 C.F.R. 41.51(d) (1997)).
The court further concluded that the integration regulation
was consistent with Congress’s specific findings that Title II
was intended to overcome discrimination in “institutionaliza-
tion,” and discrimination that takes the form of “segrega-
tion.” Id. at 10a-1la (quoting 42 U.S.C. 12101(a)(3) and (5)).
The court also determined that “the legislative history
makes clear that Congress considered the provision of
segregated services to individuals with disabilities a form of
discrimination prohibited by the ADA.” Id. at lla. The
court of appeals concluded that “because § 35.130(d) finds
direct support in the plain language of the ADA, its
congressional findings, and the Act’s legislative history, we
must apply it here.” Id. at 12a.

The court held that, under Title II and its implementing
regulations, a State’s duty to provide integrated services
when a patient’s care warrants such services is not absolute.
Pet. App. 25a. In reaching that conclusion, the court relied
on the Attorney General’s “reasonable-modification” regula-
tion, which provides that Ha] public entity shall make rea-
sonable modifications in policies, practices, or procedures

5

when the modifications are necessary to avoid discrimination
on the basis of disability, unless the public entity can
demonstrate that making the modifications would funda-
mentally alter the nature of the service, program, or
activity.” Pet. App. 25a-26a (quoting 28 C. F. R. 35.130(b)(7)).

The court concluded that the key question was whether
petitioners had shown that treating respondents in the
community would cause a fundamental alteration in their
program. Pet. App. 26a. Resolving that question, the court
concluded, involves an assessment of several factors,
including “whether treating [respondents} would require
additional expenditures and if so, whether the State had met
its burden of proving that those expenditures were unrea-
sonable in light of the State’s mental health budget.” Id. at
28a. Because the district court had not addressed those
questions, the court of appeals remanded for further pro-
ceedings. Id. at 29a-30a.'

SUMMARY OF ARGUMENT

A. The Attorney General’s Title II “integration regula-
tion,” 28 C. F. R. 35.130(d), provides that a] public entity
shall administer services * * * in the most integrated
setting appropriate to the needs of qualified individuals with
disabilities.” By its terms, the integration regulation applies
to all services administered by a public entity, including
those that are offered exclusively to persons with dis-
abilities. The Attorney General therefore interprets the
regulation to require a State to provide services to persons

Following this Court’s grant of the petition for a writ of certiorari,
the district court issued a decision on remand, rejecting petitioners’
fundamental alteration defense. 1/29/99 Order at 1. The court found that
the annual cost to the State of providing community-based treatment to
L. C. and E.W.—about $20,000 each—was not unreasonable in relation to
the State’s overall mental health budget, which was $706.8 million in fiscal
year 1998. Id. at 5.

6

with disabilities in a community setting, rather than in an
institution, when a State’s treatment professionals have
determined, in the exercise of reasoned professional judg-
ment, that community placement of the individual is
appropriate. Because that interpretation accords with the
text of the regulation, it is entitled to controlling weight.

B. The Attorney General was warranted in concluding
that the unjustified segregation of persons in institutions,
when community placement is appropriate, constitutes a
form of discrimination prohibited by Title II. In the text of
the ADA, Congress found that persons with disabilities
suffer from various forms of discrimination, including “segre-
gation,” and that discrimination persists in several contexts,
including “institutionalization,” 42 U.S.C. 12101(a)(3) and (5).
Those findings demonstrate that Congress understood the
concept of discrimination under the ADA to include the
unjustified segregation of disabled persons in institutions.
Equally important, Congress instructed the Attorney
General to adopt regulations that are consistent with
coordination regulations that had been issued by the
Department of Health, Education, and Welfare (HEW) to
implement Section 504 of the Rehabilitation Act, 29 U.S.C.
794. One of HEW’s coordination regulations required
integration in substantially the same terms as the Attorney
General’s integration regulation. Congress therefore virtu-
ally mandated the integration regulation at issue here.

Congress had ample basis to conclude that the unjustified
segregation of persons in institutions constitutes a form of
discrimination based on disability. First, such segregation
can stigmatize persons with disabilities as incapable or
inworthy of participating in community life. Second, such
segregation can result in a form of dissimilar treatment:
Persons with disabilities must give up participation in com-
munity life in order to receive the services they need, while
persons without disabilities can receive the services they

7

need without sacrificing that important interest. Finally,
when persons with disabilities must obtain the services they
need in an institution, they are effectively deprived of their
right under the ADA to equal access to other public services.

C. The integration regulation does not impose undue
costs on the State. By virtue of the Attorney General’s
“reasonable-modification” regulation, 28 C. F. R. 35.130(b)(7),
the integration obligation does not apply when compliance
would require an unreasonable change in state policy or a
fundamental alteration in the nature of the State’s treatment
program. Costs have a bearing on those inquiries. Congress
anticipated that the placement of persons in the community,
rather than in an institution, would not impose undue costs.
If a State can show that any additional costs of providing
placement in a community setting are unreasonably high in
comparison to a State’s overall mental health budget, how-
ever, a State would not be required to provide placement in
a community setting.

ARGUMENT

THE ATTORNEY GENERAL REASONABLY INTER-
PRETED THE INTEGRATION REGULATION TO PRO-
Har THE UNJUSTIFIED SEGREGATION OF PERSONS
In INSTITUTIONS, AND THE REGULATION AS SO CON-
STRUED FALLS WITHIN THE ATTORNEY GENERAL’S
AUTHORITY TO IMPLEMENT TITLE Il

Title II, Part A of the ADA provides that “no qualified
individual with a disability shall, by 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.
12132. Unlike Titles I and III of the Act, Title II-A does not
spell out the forms of discrimination that are prohibited.
Compare 42 U.S.C. 12112 and 42 U.S.C. 12182(b). Instead,
Congress directed that “the Attorney General shall pro-

8

mulgate regulations in an accessible format that implement
this part.“ 42 U.S.C. 12134. That Section required the
Attorney General “to issue regulations setting forth the
forms of discrimination prohibited.” H.R. Rep. No. 485,
101st Cong., 2d Sess., Pt. 3, at 52 (1990).

The Attorney General issued regulations in 1991. 28
C. F. R. Pt. 35. One of those regulations, the integration
regulation, provides that Ha] public entity shall administer
services, programs, and activities in the most integrated
setting appropriate to the needs of qualified individuals with
disabilities.” 28 C. F. R. 35.130(d). In the preamble to the
regulations, the Attorney General explained that “the most
integrated setting” is “a setting that enables individuals with
disabilities to interact with non-disabled persons to the
fullest extent possible.” 28 C.F.R. Pt. 35 App. A § 35.130, at
469 (1996).

The obligation set forth in the integration regulation is not
absolute. When compliance would require a change in state
policy, the integration obligation is subject to the reasonable-
modification standard set forth in 28 C. F. R. 35.130(b)(7).
That regulation provides that “[aj public entity shall make
reasonable modifications in policies, practices, or procedures
when the modifications are necessary to avoid discrimination
on the basis of disability, unless the public entity can demon-
strate that making the modifications would fundamentally
alter the nature of the service, program, or activity.” Thus, a
State must provide services to a person with a disability in
an integrated setting when appropriate to that person's
needs, unless it would require an unreasonable change in
state policy or fundamentally alter the program.

Consistent with its text, the Attorney General interprets
the integration regulation to require States, in certain cir-
cumstances, to place persons with disabilities in a community
setting that offers opportunities for interaction with persons
without disabilities, rather than in an institution, where such

9

opportunities are far more limited, if they exist at all. In
particular, when state treatment professionals determine, in
the exercise of reasoned professional judgment, that place-
ment in a community setting is appropriate (Youngberg v.
Romeo, 457 U.S. 307, 323 (1982); see also School Bd. v.
Arline, 480 U.S. 273, 288 (1987)), and such a placement would
not require an unreasonable change in state policy or a
fundamental change in the State’s treatment program, a
State must offer the individual an opportunity for placement
in a community setting.

Petitioners challenge the Attorney General’s interpreta-
tion of the integration regulation on two grounds. First,
they argue that it reflects an impermissible reading of the
regulation itself. Second, they argue that it exceeds the
Attorney General’s authority to define the forms of dis-
crimination that are prohibited by Title II. As we demon-
strate below, both arguments are without merit.

A. The Attorney General Has Reasonably Interpreted
The Integration Regulation To Prohibit The Un-

justified Segregation Of Persons In Institutions

Petitioners contend (Br. 41-42) that the integration
regulation applies only to services that a State provides to
non-disabled persons. That limitation, however, cannot be
found in the text of the regulation. The regulation facially
appli to all services administered by a public entity,
including those that are offered only to persons with dis-
abilities. Under this Court’s decisions, an agency’s inter-
pretation of its own regulations is “controlling,” unless it is
“plainly erroneous” or “inconsistent with the regulation.”
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994).
Because the Attorney General's interpretation accords with
the plain language of the regulation, that deferential stan-
dard is satisfied.

10

Petitioners incorrectly assert (Br. 41-42) that the
Attorney General originally interpreted the integration
regulation to apply only to those services that are offered to
non-disabled persons. As netitioners note (Br. 41), the
Attorney General has state that requiring a disabled
person to eat in the back of a government cafeteria, or re-
quiring a blind person to go on a special museum tour rather
than on the tour that is offered to the general public would
violate the integration regulation. See also Pet. Br. App.
18a-20a. But the Attorney General never intimated that
those are the only contexts in which the integration regu-
lation applies. When an agency adopts a regulation, it has no
obligation to list all conceivable examples of the contexts in
which the rule will apply. Indeed, such a requirement would
be completely unworkable. See Pennsylvania Dep't of
Corrections v. Yeskey, 118 S. Ct. 1952, 1955-1956 (1998).
Petitioners therefore err in treating the particular examples
discussed by the Attorney General as a limitation on the
terms of the regulation. See Thomas Jefferson Univ., 512
U.S. at 516.

Nor is there any merit to petitioners’ suggestion (Br. 41-
42) that the Attorney General's interpretation of the regulat-
ion is not entitled to deference because it was publicly
articulated for the first time in a brief filed in Helen L. v.
DiDario, 46 F.3d 325 (3d Cir.), cert. denied, 516 U.S. 813
(1995). This Court rejected a similar contention in Auer v.
Robbins, 519 U.S. 452 (1997). There, the Court deferred to
an agency’s interpretation of its own regulation that
appeared for the first time in a brief submitted to the Court.
Id. at 462-463. The Court explained that the Secretary's
position was not “a post-hoc rationalization advanced by an
agency seeking to defend past agency action against attack,”
and that there was “simply no reason to suspect that the
interpretation does not reflect the agency's fair and con-
sidered judgment on the matter in question.” Id. at 462.

11

Those requirements for deference are satisfied here. The
Department of Justice brief in Helen L. was not a post-hoc
effort to defend a previous agency action, but was instead a
fair and considered judgment on the issue.

Thus, as the court of appeals concluded (Pet. App. 8a), the
“express terms of § 35.130(d), supported by the Attorney
General’s consistent interpretation, plainly prohibit a state
from treating individuals with disabilities in a segregated en-
vironment, where a more integrated setting would be
appropriate.”

B. The Attorney General Was Warranted In Concluding

That The Unjustified Segregation Of Persons In Insti-
tutions Constitutes A Form Of Discrimination Based

On Disability Prohibited By Title II

Because the Attorney General issued the integration
regulation pursuant to an express grant of authority to give
content to the general statutory prohibition against dis-
crimination, it is entitled to “controlling weight,” unless it is
“arbitrary, capricious, or manifestly contrary to the statute.”
Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 844 (1984). This Court has also held that,
Aal the agency directed by Congress to issue implementing
regulations, * * * to render technical assistance explaining
the responsibilities of covered individuals and institutions,
* * * and to enforce [the ADA] in court, * * the
Department’s views are entitled to deference.” Bragdon v.
Abbott, 118 S. Ct. 2196, 2209 (1998).

Petitioners contend that the Attorney General acted
outside the permissible limits of her authority to implement
Title II. In particular, they argue (Br. 21) that Title II's
prohibition on “discrimination” based on disability requires
proof that similarly situated persons have been treated
differently, and that, when a State offers a service only to
persons with disabilities, such a showing of dissimilar

12

treatment cannot be made. The term “discrimination,” how-
ever, does not have a single meaning; its meaning therefore
must be derived from the statutory context in which it
appears. See Alexander v. Choate, 469 U.S. 287 (1985)
(Section 504 ban on discrimination reaches practices that
have the effect of denying meaningful access to persons with
disabilities); Southeastern Community College v. Davis, 442
U.S. 397, 413 (1979) (refusal to make a reasonable modifica-
tion to accommodate persons with disabilities constitutes
discrimination under Section 504); Guardiays Ass'n v. Civil
Serv. Comm in, 463 U.S. 582, 592 (1983) (Wh. ce, J.) (the term
“discrimination” is “inherently” ambiguous); Regents of the
Univ. of Cal. v. Bakke, 438 U.S. 265, 284 (1978) (Powell, J.)
(the concept of discrimination “is susceptible of varying
interpretations”). The Attorney General was warranted in
concluding that, in the context of the ADA, “discrimination”
based on disability includes the unjustified segregation of a
disabled person in an institution.

I. a. That statutory context includes the specific find-
ings that Congress enacted as part of the ADA. Among
other things, Congress found that “historically, society has
tended to isolate and segregate individuals with disabilities,
and * * * such forms of discrimination * * * continue to
be a serious and pervasive social problem.” 42 U.S.C.
12101(a\(2). It found that “individuals with disabilities
continually encounter various forms of discrimination, in-
cluding * * * segregation.” 42 U.S.C. 12101(a)(5). And
it found that such discrimination persists in a variety of
contexts, including “institutionalization.” 42 U.S.C.
12101(a)(3). Those findings make clear that Congress under-
stood the concept of discrimination under the ADA to
include the unjustified segregation of disabled persons in
institutions.

b. The genesis of Congress's findings supports that con-
clusion. The relevant findings were drawn from the almost-

13

identical findings made by the U.S. Commission on Civil
Rights in a report entitled Accommodating the Spectrum of
Individual Abilities (Clearing House Pub. No. 81, 1983).
Compare id. at 159 with 42 U.S.C. 12101(a)(2) and (3)). One
section of the report includes “institutionalization” among
the areas in which discrimination against persons with dis-
abilities occurs. Accommodating the Spectrum of Individual
Abilities, supra, at 32-34. The report observed that
Ainstitutionalization almost by definition entails segre-
gation and isolation.” Ibid. The report further noted that,
while “there has been increasing acceptance in recent years
of the fact that most training, treatment, and habilitation
services can be better provided to handicapped people in
small, community-based facilities rather than in large,
isolated institutions, * * * a great many handicapped
persons remain in segregative facilities.” Jd. at 34-35.

Another section of the report identifies “segregation” as a
form of discrimination based on disability, explaining that
“(slegregation singles out handicapped people and separates
them from the rest of society, frequently as a condition for
receiving some service or benefit.” Accommodating the
Spectrum of Individual Abilities, supra, at 41. The report
further states that “[mJental health and mental retardation
institutions that house residents in almost complete isolation
from the non-handicapped community are perhaps arche-
typal examples of segregation.” Ibid.

c. The legislative debates and hearings confirm that
Congress’s findings concerning “segregation” and “insti-
tutionalization” reflect an understanding that the unjustified
segregation of persons with disabilities in institutions con-
stitutes a form of disability-based discrimination. Numerous
statements attest to that understanding. E.., 136 Cong.
Rec. H2447 (daily ed. May 17, 1990) (statement of Rep.
Miller) (It has been our unwillingness to see all people
with disabilities that has been the greatest barrier to full and

14

meaningful equality. Society has made them invisible by
shutting them away in segregated facilities.”); 134 Cong.
Rec. 85116 (daily ed. Apr. 28, 1988) (statement of Sen.
Simon) (persons with disabilities “remain{] substantially
hidden. They are hidden in institutions. They are hidden in
nursing homes. * * * Because they are hidden, we too
easily ignore the problem and the need for change.”); 135
Cong. Rec. 84986 (daily ed. May 9, 1989) (statement of Sen.
Harkin) (a purpose of the ADA is get disabled persons “out
of institutions”); Americans with Disabilities Act of 1989:
Hearings on S. 933 Before the Senate Comm. on Labor and
Human Resources and the Subcomm. on the Handicapped,
101st Cong., Ist Sess. 215 (1989) (statement of former
Senator Weicker) (“For years, this country has maintained a
public policy of protectionism toward people with dis-
abilities. 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.”); Oversight Hearing on H.R. 4498,
Americans with Disabilities Act of 1988 Before the Sub-
comm. on Select Educ. of the House Comm. on Educ. and
Labor, 100th Cong., 2d Sess. 193 (1988) (statement of Phillip
Campbell, Ass’n for Retarded Citizens of Mass.) (“Persons
with mental retardation have experienced some of the
grossest examples of discrimination during the last 100
years. They have been relegated to segregated congregate
facilities across the Nation.”).

2. Congress’s understanding that Title II would prohibit
the unjustified segregation of persons in institutions is also
reflected in its express instruction to the Attorney General
to promulgate regulations consistent with (1) existing
regulations under a related statute, and (2) the definitions of
discrimination that appear in other titles of the ADA.
Congress specified, 42 U.S.C. 12134(b), that, except for

15

‘program accessibility, existing facilities’, and communica-
tions’, regulations under subsection (a) of this section shall
be consistent with this chapter and with the coordination
regulations under part 41 of title 28, Code of Federal
Regulations (as promulgated by the Department of Health,
Education, and Welfare [HEWI on January 13, 1978),
applicable to recipients of Federal financial assistance under
section 794 of title 29 [Section 504 of the Rehabilitation
Act].“ That language requires the Attorney General, in
issuing regulations to enforce Title II, to make the
regulations consistent with other parts of “this chapter“, I. e.,
Titles I (employment) and III (public accommodations) of the
ADA, and with the coordination regulations that had been
issued by HEW to enforce Section 504 of the Rehabilitation
Act.

In adopting the integration regulation, the Attorney
General adhered to that mandate. The integration regula-
tion tracks a Section 504 coordination regulation that pro-
vides that Arlecipients shall administer programs and
activities in the most integrated setting appropriate to the
needs of qualified handicapped persons.” 28 C.F.R. 41.51(d).
The integration regulation also parallels a requirement in
Title III of the ADA, which provides that Ig joods, services,
facilities, privileges, advantages, and accommodations shall
be afforded to an individual with a disability in the most
integrated setting appropriate to the needs of the in-
dividual.” 42 U.S.C. 12182(b)(1)(B). By requiring the
Attorney General to adopt regulations “consistent” with the
HEW coordination regulations and with the ADA, Congress
virtually mandated the integration regulation at issue here.”

2 Congress expressed the same integration mandate in the Individuals
with Disabilities Education Act (IDEA), 20 U.S.C. 1412(5\B), requiring
States that receive federal funds under that statute to “assure that, to the

16

Moreover, like the Attorney General's integration regula-
tion, HEW’s comparable coordination regulation and the
requirement in Title III are not, by their terms, limited to
those services that are offered to persons without dis-
abilities; instead, they apply to all services that are offered.
Nor is there any reason to believe that Congress understood
the regulation or the statutory provision to contain an
implicit limitation not found in the text. To the contrary, in a
1984 statute Congress had previously used the term “inte-
gration” in regard to individuals with developmental dis-
abilities, and defined it to include not only the opportunity
for persons with disabilities to use the same services and
participate in the same activities as non-disabled persons, 42
U.S.C. 6001(10)(A) (Supp. IT 1984), now codified at 42 U.S.C.
6001(15)(A) and (C), but also “the residence by persons with
developmental disabilities in homes or home-like settings
which are in proximity to community resources, together
with regular contact with nonhandicapped citizens in their
communities.” 42 U.S.C. 6001(10)(B) (Supp. II 1984), now
codified at 42 U.S.C. 6001(15)(B). In light of Congress’s
mandate to formulate an integration regulation, and Con-
gress’s understanding of that term, the Attorney General
was warranted in concluding that Congress viewed a State’s
unjustified decision to place a disabled person in an insti-
tution, rather than in a community setting, as a form of
discrimination based on disability.

3. Congress had ample basis to conclude that such a de-
cision constitutes discrimination based on disability. Segre-
gating persons with disabilities into institutions when they
can be appropriately placed in community settings can have
several distinct discriminatory effects. First, the unjustified
segregation of persons with disabilities can stigmatize them

maximum extent appropriate, children with disabilities * * * are
educa.ed with children who are not disabled.”

17

as incapable or unworthy of participating in community life.
See 136 Cong. Rec. H2603 (daily ed. May 22, 1990) (state-
ment of Rep. Collins) (“To be segregated is to be mis-
understood, even feared,” and “only by breaking down bar-
riers between people can we dispel the negative attitudes
and myths that are the main currency of oppression.”).
Segregation always has the potential to engender or per-
petuate negative attitudes, and when the segregation is
unnecessary for treatment purposes, it is especially likely to
result from and reinforce negative attitudes.

Second, the unjustified segregation of persons with dis-
abilities into institutions imposes a substantial burden on
persons with disabilities that the State does not impose on
persons without disabilities: In order to obtain the medical
or therapeutic services that they need, persons with dis-
abilities must sacrifice their interest in community life, while
persons without disabilities can obtain the services from the
State that they need without sacrificing that important
interest.

Finally, the unjustified segregation of persons with
disabilities into institutions can defeat the statutory
requirement—not disputed by petitioners—that the State
make available to persons with disabilities the same services
that they provide to non-disabled persons. 42 U.S.C. 12132.
When persons with disabilities must obtain the services they
need in an institution, rather than in a community setting,
they are effectively deprived of equal access to parks,
beaches, museums, and other similar public services.

4. The integration regulation’s prohibition against un-
justified segregation of persons in institutions is well-
designed to serve the important goals that Congress sought
to further through enactment of the ADA. In the text of the
Act, Congress stated that its goals “regarding individuals
with disabilities” were to “assure” not only “equality of
opportunity,” but also “full participation, independent living,

18

and economic self-sufficiency for such individuals.” 42 U.S.C.
12101(a)(8). The Attorney General’s integration regulation
serves all those purposes, while petitioners’ interpretation of
Title II does not.

Indeed, as Congress knew, the isolation of persons with
disabilities can breed fear and stereotypes about persons
with disabilities, which in turn can generate additional
discrimination that spills over into other areas, such as
employment, public accommodations, and transportation.
See 42 U.S.C. 12101(a)(5) (finding persistent discrimination
in those areas); 42 U.S.C. 12101(a)(7) (finding that persons
with disabilities face discrimination as a result of “stereo-
typie assumptions”). The Attorney General properly recog-
nized, as did Congress, that this cycle of discrimination could
perpetuate itself indefinitely unless efforts were taken to
increase interaction between persons with disabilities and
non-disabled persons. The integration regulation promotes
such interaction and thereby helps to erode the negative
stereotypes that continue to impede equality of opportunity.
Prohibiting unjustified segregation of persons in institutions
thus goes hand-in-hand with all the other portions of
the ADA, including the barrier-removal obligations, the
reasonable-accommodation requirements, and the prohibi-
tions on denial of equal benefits and services. All those
provisions promote the common objective of integrating
persons with disabilities into the mainstream of society.

C. The Integration Regulation Does Not Intrude On The
Professional Judgment Of State Treatment Pro-
fessionals And Does Not Impose Undue Costs On
The States

1. Petitioners mistakenly assert (Br. 38) that the integra-
tion regulation intrudes on the treatment decisions of the
State’s health professionals. The integration regulation does
not require a State to provide a community placement when

19

the State’s treatment professionals determine that such a
placement is not “appropriate,” and that determination is
based on a reasonable professional judgment that is not
affected by extraneous considerations such as administrative
convenience and costs. 28 C.F.R. 35.130(d); see Youngberg,
457 U.S. at 323; Arline, 480 U.S. at 288. Petitioners’ com-
plaint that the integration regulation interferes with state
treatment policy has a particularly hollow ring in this case,
since the State’s own treatment professionals determined.
that the placement of respondents in a community setting
would be appropriate. See p. 2, supra. And Georgia law
expresses a preference for treatment in the most integrated
environment appropriate. Ga. Code Ann. § 37-4-121 (Mitchie
1995) (“It is the policy of the state that the least restrictive
alternative placement be secured for every client at every
stage of his habilitation. It shall be the duty of the facility to
assist the client in securing placement in noninstitutional
community facilities and programs.”).

2. Petitioners are similarly mistaken in their assertion
(Br. 13) that the integration regulation imposes “massive”
costs on the States. As we have noted, the integration
mandate does not apply when compliance would require an
unreasonable change in state policy or a fundamental altera-
tion in the nature of the State’s treatment program. 28
C. F. R. 35.130(b)(7). Costs have a bearing on those inquiries.
As the court of appeals concluded (Pet. App. 28a), if any
additional costs of providing treatment in a community
setting, rather than an institution, were shown to be unrea-
sonable in comparison to a State’s overall mental health
budget, a State would not be required to provide the
treatment in a community setting. Cf. 42 U.S.C. 12111(10)
(B) (factors for determining undue hardship under Title I

20

include cost and overall financial resources of the covered
entity).

Unsubstantiated claims of such costs, however, are no
substitute for proof. Congress has found that community
placements are less expensive, on average, than institutional
care, S. Rep. No. 139, 97th Cong., Ist Sess. 481 (1981); 8.
Rep. No. 273, 101st Cong., 2d Sess. 7, 25-26 (1990), and
numerous studies have reached the same conclusion.
Accommodating the Spectrum of Individual Abilities,
supra, at 78 (“Virtually all the relevant literature documents
that segregating handicapped people in large, impersonal
institutions is the most expensive means of care.”). Peti-
tioners also acknowledge (J.A. 84-85, 171) that community-
based care of mentally retarded persons is generally less
expensive, on a per-patient basis, than institutional care.
For example, Georgia has estimated (J.A. 171) that it would
cost $30,000 to $60,000 more per person per year to keep
mentally retarded individuals in an institution than it would
cost to move them to a community program and provide
necessary support services.

Moreover, in 1981, Congress enacted a Medicaid “waiver”
program that permits States to apply to the Department of
Health and Human Services (HHS) for a waiver of certain
Medicaid rules in order to offer community-based services.
See 42 U.S.C. 1396n(c). Under the program, the federal
government provides between 50% and 83% of the total
Medicaid costs for community-based care, the same federal

3 It would also be a fundamental alteration to require a State to create
an entirely new community-based program. For example, a State that has
a community-based program that serves persons with mental retardation
would not be required to create a program to serve mentally ill individuals
who are not mentally retarded. A State, however, could be required to
expand existing community-based programs to serve additional eligible
individuals to the extent that such an expansion did not require an unrea-
sonable change in state policy or a fundamental alteration.

21

contribution that is available for institutional care. 42 U.S.C.
1396d(b). By 1996, HHS had authorized (at Georgia’s re-
quest) matching funds for up to 2109 community placements.
Georgia, however, used only 700 of its “waiver slots.” J.A. 93.
When petitioners ultimately moved respondents to
community placements, they used federal money from the
waiver program to offset a significant portion of the cost of
such care. J.A. 161-164.

At the same time, the federal government’s experience in
operating the Medicaid waiver program has revealed costs
that States may incur in the aggregate in moving persons
from institutions to more integrated settings. If a State is
unable to close or consolidate facilities, it may experience in-
creased overall expenses by funding community placements
without being able to take advantage of the savings
associated with the closure of institutions. If a State is able
to consolidate or close facilities in response to community
placements, the State may still incur the transitional cost of
operating institutions that are only partially full until the
closure or consolidation can be completed. The fixed over-
head costs involved in operating those facilities may negate
the cost savings that States could otherwise achieve by
treating persons in the community rather than in insti-
tutions. See Pet. App. 28a-29a; J.A. 171-172. The availability
of community placements may also increase the aggregate
demand for community services among those not currently
in institutions. For example, persons eligible for treatment
may not have sought it in the past because they were unwill-
ing to receive it in an institution. The increased availability
of community services may prompt such persons to seek
treatment for the first time. See William G. Weissert et al.,
Cost Savings From Home And Community-Based Services:
Arizona's Capitated Medicaid Long-Term Care Program,
22 J. of Health Pol., Pol'y & L. 1329, 1337-1339, 1344 (1997);
Rosalie A. Kane et al., The Heart Of Long-Term Care (1998).

22

Nonetheless, studies dealing with the elderly suggest that
those concerns can be anticipated and that it appears
possible to design a community placement program that
manages costs and need not produce unreasonable increases
in the overall cost to the State of providing long-term care.
Weissert, supra, 22 J. of Health Pol., Pol'y & L. at 1343,
1345-1347; Kane, supra, at 70-71.

In addition, nothing in the ADA suggests that courts must
ignore the States’ legitimate administrative concerns in
accomplishing the transition of eligible individuals from
institutional to community-based care. The transfer of
eligible persons from institutions to the community is a
multifaceted process that sometimes cannot be accomplished
all at once. Even when treating professionals have evalu-
ated eligible individuals and determined that a community
setting is appropriate, States will need to locate proper
community placements and determine which eligible in-
dividuals should receive priority for available slots. In order
to ensure that this occurs in an orderly fashion, States may
appropriately adopt a plan that addresses various admini-
strative issues, including the order in which eligible persons
will be placed in the community, so as to proceed in a
systematic and prompt way. In determining whether a
public entity has a defense under 28 C.F.R. 35.130(b)(7), a
court may appropriately take into account whether the
publie entity has adopted such a plan to achieve compliance
with the ADA. Ifa State establishes that it has such a plan,
that plan woald serve as a valid defense in situations where a
particular request for a community placement was incon-
sistent with the plan and responding to such a request and
similar requests would so disrupt the orderly implementa-
tion of the plan as to create an unreasonable change in state
policy or a fundamental alteration not required by the ADA.

Petitioners conceded below (J.A. 159) that the costs of
providing services to respondents in the community “are, by

23

definition, not unreasonable, nor could they ‘fundamentally
alter’ the services provided by the State.” Petitioners con-
tend, however, that the relevant inquiry is the cost of pro-
viding services to all persons who desire it and that the court
of appeals erred in limiting the inquiry to the costs of
providing treatment to respondents. Br. 37-38. In their
question presented to this Court, petitioners did not chal-
lenge the court of appeals’ ruling on that ground. In any
event, the court of appeals did not preclude petitioners from
introducing evidence that they had devised a comprehensive
plan that takes into account the aggregate costs of moving
persons from institutions to community settings, and that
placement of respondents would fundamentally alter that
plan. While the court of appeals instructed the district court
to consider the costs of providing services to the respon-
dents, it also stated that At he district court may also
consider any other factors it believes are relevant to the
fundamental alteration inquiry.” Pet. App. 30a.

D. Petitioners’ Remaining Arguments Are Unpersuasive

Petitioners offer a series of additional arguments intended
to show that the Attorney General’s integration regulation
exceeds the authority conferred by Congress to implement
the Title II mandate against discrimination based on dis-
ability. None is persuasive.

1. Petitioners first contend (Br. 22-29) that, prior to
enactment of the ADA, courts uniformly rejected claims that
Section 504 required placement of persons with disabilities
in the community. Petitioners further contend that Con-
gress intended to incorporate that settled interpretation
when it enacted the ADA. See Bragdon, 118 S. Ct. at 2208.
The premise of petitioners’ argument is incorrect: prior to
enactment of the ADA, there was no settled judicial under-
standing concerning whether Section 504 prohibited the

24

unjustified segregation of persons with disabilities in insti-
tutions.

Petitioners rely (Br. 26) on several lower-court decisions
to support their view that there was a judicial consensus
rejecting any right to community placement under Section
504. But of the decisions cited by petitioners, three were
decided after Congress enacted the ADA, P.C. v. Me-
Laughlin, 913 F.2d 1033 (2d Cir. 1990); Jackson v. Fort
Stanton Hosp. & Training Sch., 757 F. Supp. 1243 (D. N. M.
1990), rev’d on other grounds, 964 F.2d 980 (10th Cir. 1992);
People First v. Arlington Dev. Ctr., 878 F. Supp. 97 (W.D.
Tenn. 1992)), and one of the cases did not decide the issue,
S. H. v. Edwards, No. C81-877A N. D. Ga. Apr. 10, 1987),
aff'd, 860 F.2d 1045 (11th Cir. 1988), cert. denied, 491 U.S.
905 (1989). More important, petitioners ignore the decisions
that held or assumed that Section 504 requires community
placement in certain circumstances. Kentucky Ass’n for
Retarded Citizens, Inc. v. Conn, 674 F.2d 582, 585 (6th Cir.),
cert. denied, 459 U.S. 1041 (1982); Homeward Bound, Inc. v.
Hissom Mem ! Ctr., No. 85-C-437-E, 1987 WL 27104, at *20-
21 (N.D. Okla. July 24, 1987); Garrity v. Gallen, 522 F. Supp.
171, 213-215 (D.N.H. 1981); Lynch v. Maher, 507 F. Supp.
1268, 1278-1280 (D. Conn. 1981); Halderman v. Pennhurst
State Sch. & Hosp., 446 F. Supp. 1295 (E. D. Pa. 1978), aff'd in
part and rev'd in part, 612 F.2d 84 (3d Cir. 1979), rev'd, 451
U.S. 1 (1981). Thus, before enactment of the ADA, the
question whether Section 504 prohibited unjustified segrega-
tion of persons in institutions was an open one.

Traynor v. Turnage, 485 U.S. 535 (1988), relied upon by
petitioners (Br. 23), does not hold otherwise. That case held
that Section 504 did not repeal a statute that prevented
persons with a disability resulting from their own willful
misconduct (in this case alcoholism) from using educational
benefits provided by the GI bill after the statutory deadline.
The Court found “nothing in the Rehabilitation Act that

requires that any benefit extended to one category of
handicapped persons, also must be extended to other cate-
gories of handicapped persons.” 485 U.S. at 549. Traynor
does not remotely suggest that Section 504 permits the un-
justified segregation of persons in institutions.

Petitioners are also incorrect in their assertion (Br. 28)
that, prior to enactment of the ADA, no federal administra-
tive agency had interpreted Section 504 to prohibit segre-
gation of persons in institutions. The Department of Justice .
argued in the Pennhurst litigation that, in certain circum-
stances, Section 504 prohibits unnecessary institutionaliza-
tion of persons with disabilities. See U.S. Br. at 36-45,
Halderman v. Pennhurst State Sch. & Hosp., No. 78-1490
(filed Oct. 2, 1978). Following Southeastern Community
College v. Davis, 442 U.S. 397 (1979), the Department again
argued that Section 504 prohibits unnecessary institutionali-
zation, but indicated that, in light of Davis, a State could not
be required to create a new system of community facilities
where none existed before. See U.S. Br. at 29, Halderman
v. Pennhurst State Sch. & Hosp., No. 78-1490 (filed Oct. 14,
1981). The Department did not address the question after
Alexander, 469 U.S. at 300-301, and Arline, 489 U.S. at 287
n.17, clarified the meaning of Davis. Because there was no
settled judicial or administrative construction of Section 504
on the question presented in this case prior to enactment of
the ADA in 1990, the fact that Congress generally patterned
Title II of the ADA on Section 504 has no significance here.

2. Petitioners contend (Br. 30-32) that the Attorney
General’s interpretation of Title II conflicts with the Medi-
caid Act, because that Act establishes a preference for care
in institutions rather than the community. As we have
noted, however, the Medicaid Act provides a mechanism by
which States may obtain waivers to treat persons in the
community. Moreover, HHS has a policy of encouraging
States to take advantage of the waiver program, and often

26

approves more waiver slots than a State ultimately uses.
For example, as we have noted, HHS approved up to 2109
waiver slots for Georgia, but Georgia used only 700. In any
event, nothing in the Medicaid Act prevents the State from
fulfilling its obligations under Title II. To the extent that
the State is unable to utilize funding obtained under the
Medicaid Act to serve all those who are eligible for treat-
ment in the community, it may use its own resources for that
purpose.

Petitioners also contend (Br. 30-32) that the Attorney
General's interpretation of Title II conflicts with the Medi-
caid Act because the Medicaid Act does not provide funding
for the community placement of persons who prefer insti-
tutional care. Neither Title II nor the Attorney General’s
regulations, however, require a State to treat an individual
in the community if that individual prefers treatment in an
institution. See 42 U.S.C. 12201(d); 28 C. F. R. 35.130(e)(1).

Petitioners also err (Br. 32) in attributing “great weight”
to Congress’s failure to pass legislation that would have
made the treatment of persons in the community a require-
ment for receiving Medicaid funds. That legislation would
have gone significantly beyond the requirements in Title II
and the integration regulation. More fundamentally, failed
legislative proposals do not provide a sound basis for deter-
mining the meaning of another statute. Central Bank v.
First Interstate Bank, 511 U.S. 164, 187 (1994).

3. Petitioners contend (Br. 32-33) that the Attorney
General’s interpretation of the integration regulation is
inconsistent with the “clear statement” rule set forth in
Gregory v. Ashcroft, 501 U.S. 452 (1991). In that case, the
Court refused to construe ambiguous language in the Age
Discrimination in Employment Act of 1967, 29 U.S.C. 621
et seq., to require States to alter their practices concerning
when state judges must retire. The Court relied on a canon
of statutory construction that, absent an “unmistakably

27

clear” expression of intent to “alter the usual constitutional
balance between the States and the Federal Government,” a
court should interpret a statute to preserve rather than
destroy the States’ “substantial sovereign powers.” 501 U.S.
at 460-461. Gregory is inapplicable here for three reasons.

First, contrary to petitioners’ understanding (Br. 33), the
Gregory clear statement rule does not apply simply because
a proposed interpretation of a federal statute would affect
“an area traditionally regulated by the States.” City of
Edmonds v. Oxford House, Inc., 514 U.S. 725, 732 n.5 (1995)
(refusing to apply a clear statement rule to decide whether
the Fair Housing Act, 42 U.S.C. 3601 et seg., applies to
zoning restrictions that limit the number of unrelated
persons that can occupy a home in a residential community).
The clear statement rule applies only when the proposed
interpretation would implicate “a decision of the most
fundamental sort for a sovereign entity.” Ibid. The present
case does not implicate the type of core sovereignty concerns
that were at issue in Gregory. Instead, it is much more akin
to the kind of imposition on traditional state functions at
issue in City of Edmonds.

Second, Gregory's clear statement rule is merely “a rule of
statutory construction to be applied where statutory intent
is ambiguous.” 501 U.S. at 470; Salinas v. United States, 522
U.S. 52, 59-61 (1997). As explained above, Congress’s find-
ings concerning “segregation” and “institutionalization” re-
flect Congress’s clear understanding that the unjustified
segregation of persons in institutions constitutes a form of
discrimination based on disability. And Congress’s instruc-
tion to the Attorney General in 42 U.S.C. 12134, in essence,
required the Attorney General to adopt an integration
regulation covering all services provided by public entities,
including the type of treatment services offered by peti-
tioners in this case. Because there is no ambiguity with

28

respect to Congress’s intent on the question presented in

this case, the Gregory clear statement rule does not apply.

Finally, even assuming that Congress’s intent is am-
biguous, Congress directed the Attorney General to issue
regulations that would resolve any ambiguities on the scope
of Title II’s nondiscrimination prohibition. 42 U.S.C. 12134.
Since the clear statement rule is nothing more than an aid to
resolving Congress's intent on an issue, that rule is inappli-
cable when Congress expressly delegates authority to an
administrative agency to give content to a general statutory
prohibition. Cf. Fidelity Fed. Sav. & Loan Ass'n v. de la
Cuesta, 458 U.S. 141, 154 (1982) (agency acting within the
scope of its delegated authority may preempt state law, even
though a court acting on its own would not conclude that
Congress preempted state law unless Congress clearly mani-
fested such an intent).

4. Petitioners’ reliance (Br. 33-35) on Pennhurst State
School & Hospital v. Halderman, 451 U.S. 1 (1981), is also
misplaced. The statutory provision at issue there stated that
treatment “should be provided in the setting that is least
restrictive of the person’s personal liberty.“ 42 U.S.C.
6010(2) (1976) (emphasis added). In the absence of any clear
indication that Congress intended through that language to
impese a mandatory obligation on the States, the Court held
that the provision was merely precatory. 451 U.S. at 19. By
contrast, Title II of the ADA, 42 U.S.C. 12132, provides that
“no qualified individual with a disability shall, by reason of
such disability * * * be subjected to discrimination by any
[public] entity” (emphasis added). And the integration
regulation provides that “[a] public entity shall administer
services, programs, and activities in the most integrated
setting appropriate to the needs of qualified individuals with
disabilities.” 28 C.F.R. 35.130(d) (emphasis added). “The
contrast between the congressional preference at issue in
Pennhurst and the antidiscrimination mandate of [Title II

and the integration regulation] could not be more stark.”
Arline, 480 U.S. at 286 n. 15. Pennhurst is therefore inappli-
cable here. See Arline, 480 U.S. at 286 n.15 (holding that
Pennhurst is not applicable to statutes, like Section 504, that
clearly mandate action).

5. Finally, petitioners assert (Br. 44) that the Attorney
General’s interpretation should be rejected in order to avoid
the constitutional question whether Title II as so construed
would exceed congressional authority under Section 5 of the
Fourteenth Amendment. The principle that a statute should
be construed to avoid constitutional doubt is only implicated,
however, when the statute is genuinely ambiguous. Salinas,
522 U.S. at 59-61. For the reasons we have given, there is no
such ambiguity here.

In any event, the prohibition against unjustified segrega-
tion of persons in institutions readily satisfies constitutional
standards. Legislation will be upheld as a valid exercise of
Congress’s power under Section 5 of the Fourteenth Amend-
ment if there is a “congruence and proportionality between
the injury to be prevented or remedied and the means
adopted to that end.” City of Boerne v. Flores, 521 U.S. 507,
520 (1997). The integration mandate of Title II readily
satisfies that test.

Irrational and invidious discrimination on the basis of
disability violates the Equal Protection Clause. City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985). More-
over, this Court in Cleburne recognized that “irrational pre-
judice,” 473 U.S. at 450, “irrational fears,” id. at 455
(Stevens, J., concurring), and “impermissible assumptions or
outmoded and perhaps invidious stereotypes,” id. at 465
(Marshall, J., concurring in part and dissenting in part),
existed against persons with disabilities and, at times,
infected governmental decisionmaking. Congress similarly
found that discrimination against persons with disabilities
persists in many contexts and that such discrimination is

30

often the product of impermissible stereotypes and miscon-
ceptions. 42 U.S.C. 12101(a)(2), (3), (5) and (7).

The integration regulation is a measured response to the
discrimination identified by Congress. It is designed to
increase the interaction between persons with disabilities
and their non-disabled counterparts, thus hastening the
breakdown of the stereotypes that have impeded full
equality. The regulation also serves as a prophylactic safe-
guard against intentionally discriminatory efforts to exclude
persons with disabilities from residential communities. Cf.
Katzenbach v. Morgan, 384 U.S. 641, 654 (1966). At the
same time, the regulation is carefully crafted to avoid undue
burdens on the States. The Title II integration mandate is
therefore well within Congress’s power under Section 5 of
the Fourteenth Amendment.

CONCLUSION
The judgment of the court of appeals should be affirmed.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General
BILL LANN LEE
Acting Assistant Attorney
General

BARBARA D. UNDERWOOD
Deputy Solicitor General

IRVING L. GORNSTEIN
Assistant to the Solicitor

General

JESSICA DUNSAY SILVER

GREGORY B. FRIEL
Attorneys

MARCH 1999

APPENDIX

1. Section 12101 of Title 42 of the United States
Code provides in pertinent part:

§ 12101. Findings and purpose

(a) Findings

* * * * *

(2) historically, society has tended to isolate
and segregate individuals with disabilities, and,
despite some improvements, such forms of dis-
crimination against individuals with disabilities
continue to be a serious and pervasive social pro-
blem;

(3) discrimination against individuals with
disabilities persists in such critical areas as em-
ployment, housing, public accommodations, educa-
tion, transportation, communication, recreation,
institutionalization, health services, voting, and
access to public services;

* ** * * *

(5) individuals with disabilities continually
encounter various forms of discrimination, includ-
ing outright intentional exclusion, the discrimina-
tory effects of architectural, transportation, and
communication barriers, overprotective rules and
policies, failure to make modifications to existing
facilities and practices, exclusionary qualification

(la)

2a 3a

standards and eriteria, segregation, and relegation covered entity, factors to be considered
to lesser services, programs, activities, benefits, include

jobs, or other opportunities;

* * * * *

(8) the Nation’s proper goals regarding
individuals with disabilities are to assure equality
of opportunity, full participation, independent
living, and economic self-sufficiency for such in-
dividuals; and

(i) the nature and cost of the accom-
modation needed under this chapter;

(ii) the overall financial resources of
the facility or facilities involved in the
provision of the reasonable accommoda-
tion; the number of persons employed at
such facility; the effect on expenses and
resources, or the impact otherwise of such
accommodation upon the operation of the

facility;

(iii) the overall financial resources of
the covered entity; the overall size of the
business of a covered entity with respect

* * * * *

2. Section 12111 of Title 42 U.S.C. provides in

relevant part as follows: to the number of its employees; the
number, type, and location of its facilities;

§ 12111. Definitions and
8 (iv) the type of operation or opera-
As used in this subchapter: tions of the covered entity, including the

composition, structure, and functions of
the workforce of such entity; the geo-
graphic separateness, administrative, or
(10) Undue hardship fiscal relationship of the facility or

(a) © tudinal facilities in question to the covered entity.

3. Section 12131 of Title 42 of the United States

* * * * *

The term “undue hardship" means an Code provides as follows:
action requiring significant difficulty or expense,
when considered in light of the factors set forth $ 12131. Definitions
in subparagraph (B).
As used in this subchapter:

(B) Factors to be considered
(1) Public entity
In determining whether an accommoda- 2
tion would 'mpose an undue hardship on a The term “public entity” means—

4a 5a

(A) any State or local government;

(B) any department, agency, special
purpose district, or other instrumentality of
a State or States or local government; and

(C) the National Railroad Passenger
Corporation, and any commuter authority
(as defined in section 24102(4) of title 49).

5. Section 12133 of Title 42 of the United States
Code provides as follows:

§ 12133. Enforcement

. The remedies, procedures, and rights set forth
in section 794a of title 29 shall be the remedies,
procedures, and rights this subchapter provides to
any person alleging discrimination on the basis of

(2) Qualified individual with a disability disability in violation of section 12132 of this title.

The term “qualified individual with a
disability” means an individual with a disability
who, with or without reasonable modifications
to rules, policies, or practices, the removal of

6. Section 12134 of Title 42 of the United States
Code provides as follows:

architectural, communication, or transportation § 12134. Regulations
barriers, or the provision of auxiliary aids and
services, meets the essential eligibility require- (a) In general

ments for the receipt of services or the partici-
pation in programs or activities provided by a
public entity.

Not later than 1 year after July 26, 1990, the
Attorney General shall promulgate regulations in
an accessible format that implement this part. Such
regulations shall not include any matter within the
scope of the authority of the Secretary of Trans-
portation under section 12143, 12149, or 12164 of
this title.

4. Section 12132 of Title 42 of the United States
Code provides as follows:

§ 12132. Discrimination

Subject to the provisions of this subchapter, no
qualified individual with a disability shall, by
reason of such disability, be excluded from partici-
pation 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.

(b) Relationship to other regulations

Except for “program accessibility, existing
facilities”, and “communications”, regulations under
subsection (a) of this section shall be consistent
with this chapter and with the coordination regu-
lations under part 41 of title 28, Code of Federal
Regulations (as promulgated by the Department of
Health, Education, and Welfare on January 13,

6a

1978), applicable to recipients of Federal financial
assistance under section 794 of title 29. With
respect to “program accessibility, existing faci-
lities”, and “communications”, such regulations
shall be consistent with regulations and analysis as
in part 39 of title 28 of the Code of Federal Regu-
lations, applicable to federally conducted activities
under section 794 of title 29.

7. Section 12182 of Title 42 of the United States
Code provides in pertinent part:

§ 12182. Prohibition of discrimination by public
accommodations

* * * * *

(b) Construction

(1) General prohibition

* * * * *

(B) Integrated settings

Goods, services, facilities, privileges, advant-
ages, and accommodations shall be afforded to an
individual with a disability in the most integrated
setting appropriate to the needs of the individual.

8. Section 35.130 of Title 28 of the Code of
Federal Regulations provides as follows:

7a

§ 35.130 General prohibitions against discrimina-
tion.

(a) No qualified individual with a disability
shall, on the basis of 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 public
entity.

(b\1) A publie entity, in providing any aid,
benefit, or service, may not, directly or through
contractual, licensing, or other arrangements, on
the basis of disability—

(i) Deny a qualified individual with a dis-
ability the opportunity to participate in or benefit
from the aid, benefit, or service;

(ii) Afford a qualified individual with a dis-
ability an opportunity to participate in or benefit
from the aid, benefit, or service that is not equal to
that afforded others;

(iii) Provide a qualified individual with a dis-
ability with an aid, benefit, or service that is not as
effective in affording equal opportunity to obtain
the same result, to gain the same benefit, or to

reach the same level of achievement as that
provided to others;

(iv) Provide different or separate aids, bene-
fits, or services to individuals with disabilities or to
any class of individuals with disabilities than is
provided te others unless such action is necessary

8a

to provide qualified individuals with disabilities
with aids, benefits, or services that are as effective
as those provided to others;

(v) Aid or perpetuate discrimination against a
qualified individual with a disability by providing
significant assistance to an agency, organization, or
person that discriminates on the basis of disability
in providing any aid, benefit, or service to bene-
ficiaries of the public entity’s program;

(vi) Deny a qualified individual with a dis-
ability the opportunity to participate as a member
of planning or advisory boards;

(vii) Otherwise limit a qualified individual with
a disability in the enjoyment of any right, privilege,
advantage, or opportunity enjoyed by others re-
ceiving the aid, benefit, or service.

(2) A public entity may not deny a qualified
individual with a disability the opportunity to parti-
cipate in services, programs, or activities that are
not separate or different, despite the existence of
permissibly separate or different programs or
activities.

(3) A public entity may not, directly or
through contractual or other arrangements, utilize
criteria or methods of administration:

(i) That have the effect of subjecting quali-
fied individuals with disabilities to discrimination
on the basis of disability;

9a

(ii) That have the purpose or effect of defeat-
ing or substantially impairing accomplishment of
the objectives of the public entity’s program with
respect to individuals with disabilities; or

(iii) That perpetuate the discrimination of
another public entity if both public entities are
subject to common administrative control or are
agencies of the same State.

(4) A public entity may not, in determining
the site or location of a facility, make selections—

(i) That have the effect of excluding in-
dividuals with disabilities from, denying them the
benefits of, or otherwise subjecting them to discri-

mination; or

(ii) That have the purpose or effect of
defeating or substantially impairing the accomp-
lishment of the objectives of the service, program,
or activity with respect to individuals with dis-
abilities.

(5) A public entity, in the selection of pro-
curement contractors, may not use criteria that
subject qualified individuals with disabilities to
discrimination on the basis of disability.

(6) A public entity may not administer a
licensing or certification program in a manner that
subjects qualified individuals with disabilities to
discrimination on the basis of disability, nor may a
public entity establish requirements for the pro-
grams or activities of licensees or certified entities

10a

that subject qualified individuals with disabilities to
discrimination on the basis of disability. The
programs or activities of entities that are licensed
or certified by a public entity are not, themselves,
covered by this part.

(7) A public entity shall make reasonable
modifications in policies, practices, or procedures
when the modifications are necessary to avoid
discrimination on the basis of disability, unless the
public entity can demonstrate that making the
modifications would fundamentally alter the nature
of the service, program, or activity.

(8) A public entity shall not impose or apply
eligibility criteria that screen out or tend to screen
out an individual with a disability or any class of
individuals with disabilities from fully and equally
enjoying any service, program, or activity, unless
such criteria can be shown to be necessary for the
provision of the service, program, or activity being
offered.

(c) Nothing in this part prohibits a public
entity from providing benefits, services, or advant-
ages to individuals with disabilities, or to a parti-
cular class of individuals with disabilities beyond
those required by this part.

(d) A public entity shall administer services,
programs, and activities in the most integrated
setting appropriate to the needs of qualified
individuals with disabilities.

lla

(e)(1) Nothing in this part shall be construed
to require an individual with a disability to accept
an accommodation, aid, service, opportunity, or
benefit provided under the ADA or this part which
such individual chooses not to accept.

(2) Nothing in the Act or this part authorizes
the representative or guardian of an individual
with a disability to decline food, water, medical.
treatment, or medical services for that individual.

(f) A public entity may not place a surcharge
on a particular individual with a disability or any
group of individuals with disabilities to cover the
costs of measures, such as the provision of auxiliary
aids or program accessibility, that are required to
provide that individual or group with the nondis-
criminatory treatment required by the Act or this

part.

(g) A public entity shall not exclude or other-
wise deny equal services, programs, or activities to
an individual or entity because of the known
disability of an individual with whom the individual
or entity is known to have a relationship or associa-
tion.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0236%3A10. Public record. Not legal advice.