Pennsylvania Protection and Advocacy, Inc. v. Pennsylvania Department of Public Welfare

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1461
PENNSYLVANIA PROTECTION
AND ADVOCACY, INC.,
Appellant
v.
PENNSYLVANIA DEPARTMENT OF PUBLIC
WELFARE;
FEATHER HOUSTOUN, in her official capacity
as Secretary of Public welfare for the
Commonwealth of Pennsylvania; CHARLES CURIE,
in his official capacity as Deputy Secretary
for Mental Health and Substance Abuse Services;
S. REEVES POWER, Ph.D., in his official capacity
as Superintendent of South Mountain Restoration
Center; MARK S. SCHWEIKER, in his official
capacity as Governor of the Commonwealth of
Pennsylvania; GERALD RADKE, in his official
capacity as Deputy Secretary for Mental Health
and Substance Abuse Services
Abuse Services

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2
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 00-cv-01582)
District Judge: Honorable William W. Caldwell
Argued October 26, 2004
Before: NYGAARD, AMBRO,
and VAN ANTWERPEN, Circuit Judges
(Opinion filed March 24, 2005)
Robert W. Meek, Esquire (Argued)
Mark J. Murphy, Esquire
Disabilities Law Project
1315 Walnut Street, Suite 400
Philadelphia, PA 19107
Attorneys for Appellant
Gerlad J. Pappert
Attorney General
Calvin R. Koons (Argued)
Senior Deputy Attorney General
John G. Knorr, III
Chief Deputy Attorney General
Office of Attorney General
Appellate Litigation Section
15th Fl., Strawberry Square

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See, e.g., Frederick L. v. Dep’t of Pub. Welfare, 364 F.3d1
487 (3d Cir. 2004) (vacating District Court’s order entering
summary judgment in favor of DPW and remanding for an
inquiry into whether DPW could demonstrate a commitment to
action to bring Norristown State Hospital into compliance with
the American with Disabilities Acts); Helen L. v. DiDario, 46
F.3d 325 (3d Cir. 1995) (holding that DPW violated the ADA by
requiring that plaintiff receive required care services in a
nursing home rather than in her own home through an attendant
care program); Kathleen S. v. Dep’t of Pub. Welfare, 10 F.
Supp. 2d 460 (E.D. Pa. 1998) (finding that DPW had violated
the ADA and the Rehabilitation Act in its treatment of residents
of Haverford State Hospital).
3
Harrisburg, PA 17120
Attorneys for Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge
This matter is the most recent in a line of cases involving
the Commonwealth of Pennsylvania’s Department of Public
Welfare (“DPW”) and various mental/nursing institutions
administered by that agency. At issue once again is the1
Commonwealth’s alleged failure to comply effectively and

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4
expediently with the integration mandate and non-discriminatory
administration provisions of Title II of the Americans With
Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134, and
Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794.
We hold that DPW’s asserted defense to the integration
mandate claim of Plaintiff-Appellant Pennsylvania Protection
and Advocacy, Inc. (“PP&A”) is legally insufficient and that the
District Court erred in its legal conclusion that the non-
discriminatory administration provisions were not violated. As
such, we remand for further proceedings consistent with this
opinion.
I. Factual Background and Procedural History
PP&A is a nonprofit Pennsylvania corporation designated
by the Commonwealth as the advocate and protector of the
rights of individuals with disabilities, including those who are
institutionalized. PP&A brought this action on behalf of
residents of South Mountain Restoration Center (“South
Mountain”), a “psychiatric transitional facility” run by DPW’s
Office of Mental Health and Substance Abuse Services
(“OMHSAS”). South Mountain is the only nursing-type facility
operated by the Commonwealth.
Under Pennsylvania’s Mental Health and Mental
Retardation Act of 1966 (“MH/MR Act”), 50 P.S. §§
4101-4704, DPW is charged with providing suitable services to
persons with mental illness and retardation. It endeavors to do

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5
so as a matter of official policy “in the most integrated setting
appropriate to the needs of qualified individuals with
disabilities.” 28 C.F.R. § 35.130(d). Consistent with this policy
and the MH/MR Act, county mental health and retardation
offices plan for and develop community-based mental health and
retardation services, including residential services, for
individuals who have serious and persistent mental illness
and/or retardation.
DPW also provides services in the community for
Pennsylvanians who are elderly and/or medically fragile,
including programs that feature on-site nursing staff and
extensive assistance with daily living activities. Some of the
participants in these programs suffer from serious and persistent
mental illness and also receive psychotherapeutic services.
DPW employs state and federal funds to implement its
programs.
The services and support offered by DPW enable many
persons with mental disabilities who are also elderly and/or have
serious medical needs, including those who might require
nursing-facility level care, to live productively in their
communities or other integrated settings. PP&A argues that
residents of South Mountain are systematically denied
participation in these varied and successful programs, depriving
them of integrated treatment in violation of the ADA and the
RA.

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6
As of August 31, 2001, South Mountain had 175
residents (down from 1,091 in 1969 and 800 in 1985). The
median age of the residents was 75, and over 90% of the
residents were admitted from state psychiatric facilities. Many
South Mountain residents have been institutionalized for
decades in state-operated facilities (approximately 40 residents
of whom have been institutionalized for more than 50 years).
In June 2000, in response to an inquiry from the
Statewide Community Hospital Integration Planning Committee
concerning the need for community-based services for residents
of OMHSAS facilities, professional staff of South Mountain
determined that 80% of its residents “could function in the
community now if the necessary community support services
were in place and operational” and that none of its residents
were precluded from leaving “due to serious medical problems
that cannot be met in the community.” DPW concedes this
report was submitted, but “dispute[s] that the statements are
material” because the figures were computed on the assumption
that “resources were unlimited, and resources are not
unlimited.”
PP&A filed its initial complaint in September 2000 and
its second amended complaint, which is before us here,
approximately one year later. The second amended complaint
alleged that DPW was operating South Mountain in violation of

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PP&A also asserted claims based on Title XIX of the Social2
Security Act, 42 U.S.C. §§ 1396a–96v, which are not before us.
7
the ADA and RA because its failure to include South Mountain2
residents in integrated treatment programs (instead limiting them
to institutionalized treatment at South Mountain) ran afoul of the
laws’ (i) mandate to integrate patients, where appropriate, in the
community, and (ii) prohibiting against discriminatory
administration. DPW vigorously disputed these allegations.
In January and February 2002, the parties filed cross-
motions for summary judgment. In January 2003, after
extensive discovery and briefing in connection with these
motions, the District Court issued a Memorandum and Order
granting DPW summary judgment and denying PP&A the same.
The Court held as a matter of law that granting PP&A relief
would require a fundamental alteration of DPW’s programs, and
thus it was shielded from liability by the “fundamental
alteration” exception to the integration mandate described in
Olmstead v. L.C., 527 U.S. 581 (1999). The District Court’s
decision rested solely on this fundamental alteration ground. On
the basis of its disposition of the integration mandate claim, the
District Court also granted summary judgment to DPW on
PP&A’s discriminatory administration claim.
We review the District Court’s grant of summary
judgment here and, for the reasons described below, vacate the
District Court’s order and remand the case for further

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8
proceedings consistent with this opinion.
II. Jurisdiction and Standard of Review
PP&A filed its lawsuit pursuant to 42 U.S.C. § 1983,
Title II of the ADA, 42 U.S.C. §§ 12131-12134, § 504 of the
RA, 29 U.S.C. § 794, and Title XIX of the Social Security Act,
42 U.S.C. § 1396 et seq. The District Court had subject matter
jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We have
appellate jurisdiction under 28 U.S.C. § 1291.
“We exercise plenary review over a district court’s grant
of summary judgment and apply the same standard as the district
court; i.e., whether there are any genuine issues of material fact
such that a reasonable jury could return a verdict for the
plaintiffs.” Debiec v. Cabot Corp., 352 F.3d 117, 128 n.3 (3d
Cir. 2003) (citing Fed. R. Civ. P. 56(c)). We are required to
review the record and draw inferences in a light most favorable
to the non-moving party, id., yet the non-moving party must
provide admissible evidence containing “specific facts showing
that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); see
Pamintuan v. Nanticoke Mem’l Hosp., 192 F.3d 378, 387 n.13
(3d Cir. 1999); Wetzel v. Tucker, 139 F.3d 380, 383 n.2 (3d Cir.
1998).

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In light of the similarities between the integration provisions3
of the ADA and RA and their implementing regulations, we
construe and apply them in a consistent manner. Frederick L.,
364 F.3d at 491; Helen L., 46 F.3d at 325, 330–32.
9
III. Applicable Law
A. ADA and RA Integration Mandate
Primarily at issue in this case is the integration mandate
embodied in the regulations that implement the ADA and RA.3
This mandate requires states to “administer services, programs,
and activities in the most integrated setting appropriate to the
needs of qualified individuals with disabilities.” 28 C.F.R. §
35.130(d) (implementing the ADA’s integration requirement);
see also 28 C.F.R. § 41.51(d) (implementing the RA’s
integration requirement). “[T]he most integrated setting
appropriate to the needs of qualified individuals with
disabilities” is a setting that “enables individuals with
disabilities to interact with nondisabled persons to the fullest
extent possible.” 28 C.F.R. pt. 35 app. A. “In short, where
appropriate for the patient, both the ADA and the RA favor
i n t e g r a t e d , c o m m u n i t y - b a s e d t r e a t m e n t o v e r
institutionalization.” Frederick L., 364 F.3d at 491–92.
The integration mandate is qualified by the “fundamental
alteration” exception, which provides that

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Our Court first interpreted § 35.130(d) as mandating the4
integration of unnecessarily segregated disabled persons in
Helen L. in 1995. Helen L., 46 F.3d at 332.
10
[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.
28 C.F.R. § 35.130(b)(7) (1998) (emphasis added).
This case requires us to construe the “fundamental
alteration” defense to the integration mandate in light of the
Supreme Court’s opinion in Olmstead and our subsequent
decision in Frederick L. In Olmstead, a plurality of the4
Supreme Court held that a violation of the integration mandate
should be found when:
[1] the State’s treatment professionals have
determined that community placement is
appropriate,
[2] the transfer from institutional care to a less
restrictive setting is not opposed by the affected
individual, and

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11
[3] the placement can be reasonably
accommodated, taking into account [a] the
resources available to the State and [b] the needs
of others with mental disabilities.
Olmstead, 527 U.S. at 587. The third prong of this Olmstead
test embodies the fundamental alteration defense and thus is the
object of our focus.
In Frederick L. we considered this third prong. We
explained that the Olmstead plurality “characterized the state’s
available resources and responsibility to other institutionalized
mental health patients as primary considerations in evaluating a
fundamental-alteration defense.” Frederick L., 364 F.3d at 493.
In assessing these primary considerations, we noted:
[F]actors that are relevant to the
fundamental-alteration defense . . . includ[e] but
[are] not limited to the state’s ability to continue
meeting the needs of other institutionalized
mental health patients for whom community
placement is not appropriate, whether the state
has a waiting list for community placements, and
whether the state has developed a comprehensive
plan to move eligible patients into community
care settings.
Id. at 495 (citing Olmstead, 527 U.S. at 605–06).

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This principle should not be construed to limit a district5
court’s broad discretion in crafting an appropriate remedy when
liability is established. At issue is the sufficiency of budgetary
constraints to establish a fundamental alteration defense to
liability, not the effect of budgetary constraints on a district
court’s analysis of the appropriate remedy. See Frederick L.,
364 F.3d at 500–01 (recognizing that, in light of budgetary
constraints, it would be “inappropriate for us to direct DPW to
develop 60 community residential slots per year as Appellants
request[ed],” but nonetheless remanding to the District Court to
determine if a more appropriate remedy was required).
12
1. Scope of Budgetary Constraint
Analysis
Though clearly relevant, budgetary constraints alone are
insufficient to establish a fundamental alteration defense. Id.5
at 495 (explaining that “a singular focus upon a state’s
short-term fiscal constraints will not suffice to establish a
fundamental-alteration defense”); see also Townsend v. Quasim,
328 F.3d 511, 520 (9th Cir. 2003) (explaining that budgetary
considerations are insufficient to establish a fundamental
alteration defense and focusing on “whether [the asserted] extra
costs would, in fact, compel cutbacks in services to other
[benefits] recipients”); Fisher v. Oklahoma Health Care Auth.,
335 F.3d 1175, 1182–83 (10th Cir. 2003) (“the fact that [a state]
has a fiscal problem, by itself, does not lead to an automatic
conclusion that [the provision of integrated treatment] will result

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The District Judge erroneously wrote: “ Even if cost savings6
may eventually be achieved through deinstitutionalization, the
immediate extra cost, and the concomitant lack of immediate
aggregate cost saving, [are] sufficient to establish that a
‘fundamental alteration’ would be required if the relief sought
by plaintiffs–accelerated community placements–were granted
in this case.” Frederick L. v. Dep’t of Pub. Welfare, 217 F.
Supp. 2d 581, 593 (E.D. Pa. 2002) (internal citations omitted)
(emphasis added).
13
in a fundamental alteration”). The appellants in Frederick L.
argued that the District Court erred in focusing exclusively on
budgetary constraints. Frederick L., 364 F.3d at 491. Despite
an erroneous statement by the District Judge implying that
budgetary constraints alone would support a fundamental
alteration defense, we upheld his ultimate conclusion, finding6
that he had properly analyzed a host of relevant factors,
including: i) “unsuccessful attempts at fund procurement”; ii)
“evidence that [the defendant] had responsibly spent its
budgetary allocation, re-allocated overtime savings to increase
funding for community-based mental health services, and had a
favorable bed closure rate”; iii) the fact that defendant’s “ability
to increase the number of community care placements was
hampered by community opposition to further expansion”; and
iv) “that increasing the number of community placements
would eventually lead to a diminution of services for
institutionalized persons.” Id. at 496. We agreed with the
Frederick L. appellants, however, that it would have been legal

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14
error for the District Court to find a fundamental alteration
solely on the basis of budgetary constraints. Id. at 495.
2. “Commitment to Action”
In Frederick L., stressing that “what is at issue is
compliance with two federal statutes enacted to protect disabled
persons,” we read Olmstead’s third prong to require that a state
agency asserting a fundamental alteration defense “be prepared
to make a commitment to action in a manner for which it can be
held accountable by the courts.” Id. at 500. That is, the
fundamental alteration defense cannot be read to exempt in toto
noncomplying agencies. A state cannot meet an allegation of
noncompliance simply by replying that compliance would be too
costly or would otherwise fundamentally alter its noncomplying
programs. Any program that runs afoul of the integration
mandate would be fundamentally altered if brought into
compliance. Read this broadly, the fundamental alteration
defense would swallow the integration mandate whole. See
Townsend, 328 F.3d at 518–19 (“[P]olicy choices that isolate
the disabled cannot be upheld solely because offering integrated
services would change the segregated way in which existing
services are provided. . . . [S]uch a broad reading of
fundamental alteration regulation would render the protection
against isolation of the disabled substanceless.”).
Instead, the only sensible reading of the integration
mandate consistent with the Court’s Olmstead opinion allows

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15
for a fundamental alteration defense only if the accused agency
has developed and implemented a plan to come into compliance
with the ADA and RA. Frederick L., 364 F.3d at 500. When
such a plan exists, a remedy that would force the agency to
abandon or alter its long-term compliance efforts could sacrifice
widespread compliance for immediate, individualized relief.
Imposing such a remedy might be penny-wise and pound-
foolish. Thus, as the Supreme Court explained, the larger plan
must be taken into account in assessing the immediate need:
“[s]ensibly construed, the fundamental-alteration [defense]
would allow 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.
The states have undertaken this responsibility in part because
they are obliged to do so under applicable federal law, including
the ADA and RA. It would make no sense to exempt a state
from liability under the ADA and RA in a particular case on the
basis of its need to fulfill its larger obligation to the mentally
disabled as a whole while at the same time relieving the state of
its larger obligation. Any interpretation of the fundamental
alteration defense that would shield a state from liability in a
particular case without requiring a commitment generally to
comply with the integration mandate would lead to this bizarre
result.
When an agency has implemented a sufficient

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See, e.g., Olmstead, 527 U.S. at 600 (Kennedy, J.,7
concurring) (noting the “federalism costs inherent in referring
state decisions regarding the administration of treatment
programs and the allocation of resources to the reviewing
authority of the federal courts” and stressing that “courts [must]
apply [the Olmstead] decision . . . with appropriate deference to
the program funding decisions of state policymakers”).
16
compliance plan (i.e., when it has demonstrated a commitment
to comply with the ADA and RA), we must be wary of judicial
mandates that could thwart or undermine the agency’s authority
to carry out that plan as it sees fit. Yet when a person with7
standing brings suit alleging violation of the ADA and RA in a
particular case, we discharge our responsibility by confirming
that a general plan does exist and by imposing upon the agency,
as a condition to the assertion of a fundamental alteration
defense, the minimal burden of demonstrating “that there will be
ongoing progress toward community placement” under the
general plan. Frederick L., 364 F.3d at 500. Without such a
preliminary showing, an agency cannot establish a fundamental
alteration defense.
B. P r o h ib itio n A g a in s t D i s c r i m i n a t o r y
Administration
The implementing regulations of the ADA provide, inter
alia, that

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[a] public entity may not, directly or through
contractual or other arrangements, utilize criteria
or methods of administration: (i) [t]hat have the
effect of subjecting qualified individuals with
disabilities to discrimination on the basis of
disability; [or] (ii) [t]hat have the effect of
d e f e a t i n g o r s u b s t a n t i a l l y i m p a i r i n g
accomplishment of the objectives of the public
entity’s program with respect to individuals with
disabilities[.]
28 C.F.R. § 35.130(b)(3)(i)-(ii). The RA contains virtually
identical provisions. 28 C.F.R. § 41.51(b)(3)(i)-(ii). Having
laid out the regulatory framework and governing precedent, we
now apply them to this case.
IV. Analysis of This Case
A. ADA and RA Integration Mandate
The District Court concluded that it “need not determine”
if the first two prongs of the Olmstead test were satisfied
because summary judgment in favor of DPW on the basis of its
fundamental alteration defense was warranted under Olmstead
prong three. Pa. Prot., 243 F. Supp. 2d at 193. We thus turn to
the third prong first.

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The District Court’s conclusion about the insufficiency of8
DPW’s resources was based entirely on its thorough review of
the budgetary evidence presented by both parties and their
competing interpretations of that budgetary evidence. Pa. Prot.,
243 F. Supp. 2d at 192–95.
18
1. Olmstead Prong Three
a. Scope of Budgetary Constraint
Analysis
PP&A argues that the District Court erred as a matter of
law in endorsing DPW’s fundamental alteration defense solely
on the basis of its analysis of budgetary constraints. We agree.
Writing before the publication of our Frederick L.
opinion, the District Court understandably could not divine the
dictates of that decision. It concluded that “Defendant[] is
entitled to summary judgment on the ADA and RA claims on
the basis of that part of its fundamental-alteration defense
asserting that it does not have sufficient resources to move
South Mountain residents into the community and provide
services for others with mental-health needs.” Id. (emphasis8
added). As discussed at Section III.A.1, supra, this basis is
insufficient as a matter of law under Frederick L.
Unlike the Frederick L. decision, the District Court’s
opinion here does not disclose additional relevant factors such

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19
as unsuccessful attempts at fund procurement, evidence that
DPW responsibly spent its budgetary allocations, evidence of a
favorable bed closure rate, defendants’ ability to increase the
number of community care placements in light of community
opposition to further expansion, or the potential diminution of
services for institutionalized persons. The presence of these
additional factors (or other similar factors) is required in order
to credit an agency’s fundamental alteration defense. Without
consideration of these factors, the District Court’s grant of
summary judgment on the basis of the fundamental alteration
defense lacks sufficient underpinning.
b. “Commitment to Action” – DPW’s
Fatal Flaw
The District Court also failed to require DPW to
demonstrate a reviewable commitment to action. On the basis
of our independent review of the record, we conclude as a
matter of law that DPW cannot show that such a commitment
exists in this case and thus DPW’s fundamental alteration
defense must fail.
Admissions made by DPW during the course of this
litigation foreclose the genuine contention that it has made a
commitment to bring South Mountain into compliance with the
ADA and RA. To begin, DPW admits that “OMHSAS does not
consider [South Mountain] residents—even those transferred
from its state psychiatric hospitals—to be part of the mental

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20
health system.” App. at 224, 245. “DPW does not require the
County MH/MR Offices to plan for or develop community-
based services . . . for [South Mountain] residents,” and
“OMHSAS does not expect the counties to request funding to
provide community-based services to residents of [South
Mountain].” Id. at 225. DPW further admits that, consistent
with this policy, “[South Mountain] social workers no longer
consider at all [county-run] community-based residential
[mental health/mental retardation] programs for [South
Mountain] residents because such programs are not available
for [South Mountain] residents.” Id. at 224 (emphasis added).
This exclusion of South Mountain residents from the
county-run mental health/mental retardation programs is the
result of an explicit omission of those residents from
OMHSAS’s Olmstead-compliance planning process. OMHSAS
is in “the final stages of developing a statewide plan to address”
Olmstead problems in its mental health system. App. at 228.
This planning process resulted in the June 2000 inquiry that led
the staff of South Mountain to conclude that 80% of its residents
could function in the community if the necessary community
support services were available to them. Despite this report,
DPW concedes “OMHSAS subsequently determined that the
statewide plan [would] not include any provisions concerning
the development of alternative community mental health
services for [South Mountain] residents.” Id. at 228, 246–47.
DPW, through OMHSAS, decided to exclude South Mountain
residents from the programs it was implementing that benefit

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DPW begins by offering a host of general information about9
its myriad programs for community-based treatment. Crucially,
it fails to discuss the extent to which it has included South
Mountain residents in (or excluded them from) these programs,
which is our only concern.
DPW also presents several arguments that are irrelevant
to our analysis of its commitment to action. First, it argues that
community placement is inappropriate for most of South
Mountain’s residents. If true, this fact would justify the grant of
summary judgment for DPW on the basis of Olmstead prong
one, which requires PP&A to show that community placement
would be appropriate. See Section IV.A.2, infra (remanding for
consideration of Olmstead prongs one and two). But for prong
three this inquiry is irrelevant.
Similarly, DPW argues that, to the extent community
placement is possible for certain South Mountain residents, it is
too costly. But, as we have explained, a commitment to action
is a precondition to the assertion of a fundamental alteration
defense. See Section III.A.2, supra. Only when DPW can
demonstrate this does its budgetary argument become a relevant
21
similarly situated Pennsylvanians.
Despite this seemingly incontrovertible evidence, DPW
urges us to find as a matter of law that it has a sufficient plan in
the form of “policies and procedures that demonstrate DPW’s
commitment to deinstitutionalization, and a history of
progressive deinstitutionalization that shows that the policy is in
effect.” Appellees’ Br. at 20. At the core of this argument,9

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factor in the consideration of its fundamental alteration defense.
22
DPW contends:
First, DPW has continually placed, and continues
to place, [South Mountain] residents in alternative
community programs whenever and wherever
appropriate for the resident, as determined by the
resident’s interdisciplinary team of treatment
professionals. Second, . . . the treatment
professionals at [South Mountain] are required to
re-assess each resident of [South Mountain] every
sixty (60) days to determine whether they
continue to require a nursing home level of care.
Id. at 22–23.
South Mountain’s routine, individualized review of
patients does not amount to a sufficient deinstitutionalization
plan, notwithstanding any past success it has had in discharging
patients. In Frederick L. we explained that “it [is] unrealistic (or
unduly optimistic) [to] assum[e] past progress is a reliable
prediction of future programs.” Frederick L., 364 F.3d at 500.
We also stressed that “policies and procedures . . . utilized for
ongoing review of patients from the minute they come in and for
discharge planning for each patient individually . . . fall[] far
short of the type of plan . . . the Court referred to in Olmstead.”
Id. Thus DPW’s first two contentions are legally insufficient to

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23
establish a compliance plan.
DPW’s third and last contention in support of its claim
that it has a plan is that “each resident’s team of treatment
professionals reassesses the resident at least every ninety (90)
days to determine if he or she can live in a more integrated
setting, based on how well the resident is, and has been,
functioning in each treatment team member’s area of specialty
. . . .” Appellees’ Br. at 23. This argument misleads. DPW
makes this claim after i) describing its various treatment
programs and the different settings in which DPW provides its
services, including its county-run community-based programs,
and ii) asserting that “individuals who are medically frail and
elderly liv[e] in all of [the] settings” in which DPW provides
services for “over 320,000 mentally disabled individuals.”
Appellees’ Br. at 20. A natural implication of its assertion in
this context is that South Mountain treatment professionals
regularly determine whether each resident can be placed in
DPW’s community programs and that they do so even if a
patient requires nursing facility-level care. Yet, as PP&A
persuasively argues, South Mountain staff evaluations consider
only the patients’ potential for discharge to a nursing facility or
generic home care. No plan exists for the integration of South
Mountain residents into community treatment programs.
In short, we find no evidence of a commitment to bring
South Mountain into compliance with the integration mandate
of the ADA and RA. To the contrary, DPW has chosen not to

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24
make integration provisions for the residents of South Mountain
by excluding them from participation in its varied, successful
community treatment programs. We thus hold that PP&A is
entitled to summary judgment with respect to the insufficiency
of DPW’s fundamental alteration defense. Because we do not
agree with the District Court that DPW is entitled to summary
judgment based on Olmstead prong three, we turn to the first
two Olmstead prongs.
2. Remaining Olmstead Prongs
The parties vigorously dispute whether “the State’s
treatment professionals have determined that community
placement is appropriate.” Olmstead, 527 U.S. at 587. The
June 2000 report by South M ountain treatment
professionals—concluding that 80% of South Mountain
residents “could function in the community now if the necessary
community support services were in place and operational” and
that none of SMRC’s residents were precluded from leaving
“due to serious medical problems that cannot be met in the
community”—seemingly “leave[s] no doubt that a rational jury
would find” that such a determination was made. Glanzman v.
Metro. Mgmt. Corp., 391 F.3d 506, 514 (3d Cir. 2004).
The evidence presented on this issue was voluminous,
however, and because this is “a factual issue, subject to
substantial eviden[tiary] review,” we conclude that the analysis
should be “performed by the District Court in the first instance.”

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Because the District Court merely stated that its10
“[j]udgment [would] also include the claim that Defendants
violated the ADA and RA by using discriminatory methods of
25
MCI Telecomm. Corp. v. Bell Atlantic, 271 F.3d 491, 522 (3d
Cir. 2001). We thus leave the prong one analysis for the District
Court on remand. Cf. Townsend, 328 F.3d at 520 (remanding
an ADA integration claim for consideration of an Olmstead
prong not reached by the trial court).
We similarly conclude that the District Court should first
consider on remand whether “the transfer from institutional care
to a less restrictive setting is . . . opposed by the affected
individual[s].” Olmstead, 527 U.S. at 587.
B. P r o h i b i t io n A g a i n s t D isc r im in a to r y
Administration.
The District Court did not reach the merits of PP&A’s
discriminatory administration claim. Instead, it held that its
award of summary judgment to defendants on the integration
claim foreclosed PP&A’s discriminatory administration claim.
Pa. Prot., 243 F. Supp. 2d at 195. Because the District Court’s
disposition of the integration claim was based solely on its
conclusion that DPW successfully asserted a fundamental
alteration defense, the Court must have concluded that DPW’s
fundamental alteration defense also defeated PP&A’s
discriminatory administration claim. Thus, our rejection of10

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administration,” Pa. Prot., 243 F. Supp. 2d at 195, we do not
know its reasoning.
26
DPW’s fundamental alteration defense undermines the District
Court’s grant of summary judgment to DPW on PP&A’s
discriminatory administration claim. For this reason, we vacate
that judgment and remand the discriminatory administration
claim for reconsideration.
V. Conclusion
We vacate the District Court’s grant of summary
judgement. The Court should i) enter summary judgment in
favor of PP&A with respect to the legal insufficiency of
defendants’ fundamental alteration defense and ii) conduct
further proceedings consistent with this opinion.

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