Forward to fundamental alteration: Addressing ADA Title II integration lawsuits after Olmstead v.

A. The L.C. Case and Title II of the ADA

In June 1999, the United States Supreme Court decided the landmark case of Olmstead v. L. C. by Zimring.1 The case has been lauded by disability advocates and described as the "Brown v. Board of Education for the law of disability discrimination."2 In L.C., the Court concluded that the Georgia Department of Human Resources ("DHR") had violated Title II of the Americans with Disabilities Act3 ("ADA") by confining two mentally disabled individuals, L.C. and E.W.,4 in a segregated institution despite concessions by the individuals' treating professionals that a community setting would be appropriate5

L.C. and E.W. are mentally retarded individuals who also have mental disorders.6 Before litigation, both were voluntary patients at the Georgia Regional Hospital at Atlanta ("GRHA"),7 where they were confined in a locked psychiatric unit.8 L.C.'s most recent institutionalization began in 1992.9 Her condition stabilized one year after her institutionalization, and the State's treating physician determined that she could appropriately be treated in a community setting.10 She was still institutionalized at GRH-A, however, when suit was filed two years later.11 E.W. was most recently admitted in 1995.12 In 1996, her condition stabilized, allowing her treating physician and a clinical psychologist at GRH-A to conclude that she could be cared for in a community setting.13 E.W. nonetheless remained institutionalized until the district court ordered the provision of community care.14

L.C. brought suit in May 1995, and E.W. intervened in the suit in January 1996.15 They alleged, inter alia, that the State had violated Title II of the ADA and its implementing regulations by failing to provide treatment in a community setting after such a setting was deemed appropriate. The district court granted them summary judgment.16 Title II of the ADA provides, in pertinent part, 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 such entity."17 Under Title II of the ADA, a public entity may avoid making changes to its programs if it can make out a fundamental alteration or unreasonable modification defense." Department of Justice ("DOJ") regulations provide, in consonance with ADA (and Rehabilitation Act) case law, that:

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.19

On appeal before the Eleventh Circuit, the State argued that the plaintiffs had not been discriminated against "by reason of such disability" because they had not been denied anything available to non-disabled people.20 The State asserted that the plaintiffs were denied community placements not because of their disability, but because of a lack of funding.21 Thus, it was argued, no violation of the ADA should be found.22

In other words, the State argue[d] that the ADA requires a comparison of the treatment of individuals with disabilities against that of healthy non-disabled persons .... Reduced to its essence, the State's argument is that Title II of the ADA affords no protection to individuals with disabilities who receive public services designed only for individuals with disabilities.23

The circuit court rejected the State's argument. The court relied on the "Integration Regulation" issued by the Department of Justice, which is entrusted with the task of promulgating regulations to give content to the general provisions of Title II. The court also gave deference to the DOJ's interpretation of the regulation and the ADA.24 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."25 To support such deference, the court cited legislative history suggesting that Title II of the ADA is intended in part to stamp out unnecessary segregation of disabled people.26 Further, the court determined that a malevolent motive was not necessary to constitute a violation; even if the denial of community care was motivated by a lack of funds, a violation could still result. Essentially, the court adopted the view that the regulation provides that unnecessary segregation is itself a type of discrimination redressable by

Title II.

The Eleventh Circuit, however, did not conclusively order the provision of community care. Instead, the court returned the case to the trial court for a determination of whether the plaintiffs' suggested relief would constitute a fundamental alteration, including a determination of whether the additional expenditures necessary to treat the plaintiffs in communitybased care would be unreasonable given the demands of the mental health budget.28

Few cases and little scholarship have discussed the boundaries of the fundamental alteration defense in the context of community-care cases or have even provided a framework on which arguments could hang. Indeed, the absence of clear limits is a trait that Title II community-care cases share to a degree with other ADA cases under all titles.29 This problem is worsened, however, by Title II's lack of specific regulatory guidance (which is available in the employment and public accommodations contexts) and the absence of well-developed Title II case law. Before the district court had a chance to consider the fundamental alteration issue on remand, the Supreme Court elected to review the Eleventh Circuit's opinion.30 The Supreme Court agreed that the Integration Regulation, when properly interpreted to require community care where appropriate, was in accord with the ADA's statutory language and congressional intent, and thus within the implementation powers of the DOJ.31 It confirmed that the unnecessary institutionalization of individuals amounted to segregation and discrimination prohibited by Title II. In an effort to afford states greater discretion, though, the Supreme Court recognized that the fundamental alteration test, as restrictively articulated by the Eleventh Circuit, may sometimes prove too difficult for states to satisfy.32 As the Court noted, it is unlikely that a state could ever prevail if courts simply compared (1) the expense entailed in placing a mentally disabled plaintiff in a community-based treatment program against (2) the state's entire mental health budget.33

The Court announced a new formulation of the fundamental alteration component of the reasonable modifications regulation that would allow the states some deference. The Court's formulation requires the defendant state to show that, in the allocation of available resources, providing immediate relief for the plaintiff would be inequitable given the State's overall obligation to a large and diverse population of mentally disabled individuals.34 The Court added that the ADA was not meant to compel states to phase out institutions and that states must have more leeway than the courts below understood the fundamental alteration defense to allow.35

Courts, advocates, states, and practitioners, however, still do not have precise guidance as to what would be considered an unreasonable modification or a fundamental alteration. Given the tremendous expense of large scale public interest litigation and the tendency of such cases to be resolved by way of settlement, the further development of these principles in the common law fashion will be slow. This Article explores some of the boundaries that the Supreme Court left undefined. Part LB details the arguments made in favor of community care for the mentally disabled and provides a history of efforts to improve treatment of the mentally disabled, including the creation and application of the ADA. Part LC argues that the Supreme Court was correct in rejecting the narrow view of ADA Title II proffered by the State in L.C. Part LD offers a partial explanation of why federal intervention in the community-care area was necessary and appropriate. Part LE highlites problems that could result from an overbroad implementation of the Integration Regulation and notes the need to cabin its application. Finally, Part II provides a guide to advocates and scholars for analyzing arguments attempting to create a narrow interpretation of the Integration Regulation, and discusses the various arguments in two classes. The first class, program integrity arguments, are discussed in Part ILB in the context of three general categories - or "ideal types" - of suits. The second class, magnitude arguments, are discussed in Part ILC generally-as they might apply to a large class action of any of the three ideal types.

B. Efforts Towards Community Care

1. A Brief Treatment of the Case for Community Care

Community-care advocates argue that such care is superior to institutional care in terms of quality, cost, and equity. In the 1980s, studies were conducted in which mentally disabled individuals were randomly placed in either institutional or residential settings. These studies led to a "general conclusion ... that alternative care is more effective and less costly than mental hospitalization."36 "In fact, regardless of the outpatient setting used, the outcome indices by which their effectiveness is measured, or the patient population using them, alternative care programs have universally provided more positive results more cheaply than institutionalization."37

By contrast, opponents of institutional care decry its conditions and its conditioning. Instances of abuse and neglect have been documented regarding institutional care.38 Residents and their families complain of unsanitary conditions, abuse by residents, and neglect by caregivers.39 Even for those who do not suffer egregious neglect, life in large institutions often leads to a degree of institutional dependence, which manifests in a loss of social and vocational competencies and atrophy of the ability to live outside the institution.40 Studies show that those in community-based treatment programs spend more time with friends and social groups, have a higher level of selfesteem, show fewer symptoms, and comply more consistently with medication and treatment plans.41

Proponents of community care also contend that communitybased programs can be provided and maintained at less cost than large institutions. Strong evidence shows that per-patient costs of community care are lower than per-patient costs in large institutions.42 One representative study of the costs of treating 321 formerly institutionalized individuals with psychiatric disorders found that community services cost roughly half as much as institutional care.43 Costly overhead is often cited as a reason for the high cost of institutional care. Advocates argue that institutions must recreate many of the services that exist as part of the background of daily life in the community-in effect, that institutions suffer from diseconomies of scale.44 Community programs, on the other hand, often need not be built from scratch, but can be created by making funding available to lease facilities. Further, individuals placed in community programs often need less assistance from state personnel because of family or friend support. Likewise, some individuals receiving community-care services can procure employment and be less dependent upon public financial support.

Community-care advocates argue that incompetence and ignorance on the part of institution staff and administrators, rather than cost or quality concerns, have led to the failure to provide community placements.45 Further, activists argue that administrative officials in institutions are slow to transfer patients out of institutions because of their desire to maintain a high occupancy rate. State officials are reluctant to downsize and thereby jeopardize the jobs of institution employees.46 Essentially, activists tell a story of regulatory "capture" and bureaucratic inertia by state employees and administrators.47

Most directly relevant to the issue of disability discrimination under the ADA is the activists' contention that community care provides a greater level of social equality for otherwise institutionalized individuals. Opponents of institutional care maintain that unnecessary segregation as a condition of receiving necessary care constitutes discrimination.48 Martha Minow has written that institutionalization results in the stigmatization of the institutionalized individuals, which only aggravates the discriminatory treatment of those that the powerful in society deem different.49 The U.S. Commission on Civil Rights issued a report prior to the enactment of the ADA that concurred generally with Minow's view and included institutionalization as a cause of discrimination against individuals with disabilities.50 Minow's and the Civil Rights Commission's view accords with the view of community-care activists that community care is not merely a medically and financially superior option, but a morally and legally superior one as well.

2. A Brief History of Efforts To Increase the Use of Community Care

The history of discriminatory treatment towards the mentally disabled has deep roots. John Locke wanted full citizenship to be denied them: "Lunatics and Id[i]ots ... [and] Madmen" are not born into the "full state of Equality" because they rely on others to "seek and procure their good for them."51 According to John Stuart Mill, the principle of freedom from interference does not apply to those "still in a state to require being taken care of by others."52 For these people, according to Mill, despotism was a legitimate form of government.53

Before the proliferation of institutions in the mid-1800s, the care of mentally disabled individuals was left to families, jails, poorhouses, and ad hoc community arrangements.54 Population growth and reaction to reformers such as Dorothea Dix spurred the building of hospitals,55 but overcrowding resulted in physical restraint, seclusion, brutality, and neglect.56 Community-care activists have argued that prejudice, as much as altruism, motivated the proliferation of these segregated hospitals,57 with government officials concluding that people with disabilities were "not much above the animal"58 and "not far removed from the brute."59

The efforts to supplant the large institutions with community care began in earnest in the mid-1950s and continued in force in the 1960s and 1970s. Political and legal activism led to the deinstitutionalization of large numbers of the mentally illparticularly of the civilly committed. In response to the clamor for reform, Congress enacted several laws, including the Rehabilitation Act of 1973,60 to protect various interests of disabled individuals. Advances in psychotropic medications, the development of the community-health-center movement, and litigation brought by mental health advocates and civil rights lawyers contributed to a dramatic reduction in the number of individuals housed by the public mental health system.61 Since the 1960s, nearly 1.5 million people have been released into community settings.62 The movement, however, did not eliminate institutional care, nor did it accomplish comparable deinstitutionalization of the voluntarily committed-such as the developmentally disabled individuals in L.C.

Advocates have, without great success, pursued several avenues for establishing a right to treatment in the least restrictive environment. Courts held that there was no such right under the Due Process Clause of the Constitution because, given the voluntary nature of the care, it could not be said that the State was denying liberty.63 In 1981 in Pennhurst State School v. Halderman,64 the Supreme Court refused to find an articulated right to treatment in the least restrictive environment under the Developmental Disabilities Assistance and Bill of Rights Act ("DDA").65 Four years later, in City of Cleburne v. Cleburne Living Center,' the Supreme Court determined that mentally retarded persons do not constitute a suspect class subject to heightened protection under the Equal Protection Clause.67

Courts also refused to find a right to the least restrictive treatment in Section 504 of the Rehabilitation Act of 1973, the precursor to Title II of the ADA. Section 504 possesses substantially similar language to Title II but is limited in its application to entities receiving federal funds.68 U.S. Courts of Appeals consistently held that the Rehabilitation Act did not require that states place handicapped persons in the least restrictive setting appropriate to their needs.69 In fact, the Rehabilitation Act and its regulations have practically become a dead letter as a remedy for segregated public treatment.70

Even early efforts under the ADA and the Integration Regulation met checkered results.71 In 1993 in Williams v. Secretary of the Executive Office of Human Services,72 the Supreme Judicial Court of Massachusetts refused to find that the ADA required states to provide specific levels of community care and refused to impose the provision of such care to a small class of mentally ill patients. In the same year, two federal district courts split on the question of whether the ADA applied to unnecessarily institutionalized individuals.73

The courts' treatment of the applicability of the Integration Regulation solidified somewhat after the 1995 landmark case of Helen L. v. DiDario.74 In Helen L., the Third Circuit held that the regulation required the provision of community care to one physically handicapped individual who qualified for the State's community treatment program and, in general, held that the Integration Regulation does indeed apply to unnecessarily institutionalized individuals.75 Research discovered that, since Helen L., eleven additional federal court cases have issued opinions respecting the question of whether the Integration Regulation applies to make unnecessary institutionalization a type of discrimination under the ADA, and ten courts have followed the reasoning of Helen L. for individuals qualified for outpatient treatment.76 In L. C., the Supreme Court determined that the latter ten were right. The Court explicitly held that "[u]njustified isolation . . . is properly regarded as discrimination based on disability" prohibited by the ADA.77

C. Application of the Integration Regulation

The Petitioners in L. C. argued that the application of the Integration Regulation to unnecessarily institutionalized individuals exceeded the scope of that regulation and the scope of the DOJ's authority to define the forms of discrimination that are prohibited by Title II. The State argued that the ADA requires merely evenhanded treatment as between disabled and non-disabled individuals in the provision of state benefits.78 Although a full treatment of the arguments that the Supreme Court addressed in L.C. is beyond the scope of this discussion, legislative intent, traditional deference to implementing agencies, and the weight of current case law counseled in favor of the Supreme Court's adoption of the DOJ's interpretation of the Integration Regulation, which applied the regulation to unnecessarily institutionalized individuals.

The Supreme Court was right to follow the DOJ's interpretation. The DOJ is entrusted with the responsibility of implementing ADA Title II and issuing regulations to define prohibited forms of discrimination. Title II does not spell out the forms of discrimination it prohibits. Instead, Congress instructed that "the Attorney General shall promulgate regulations in an accessible format that implement this part."79 That section directed the Attorney General (the head of the DOJ), "to issue regulations setting forth the forms of discrimination prohibited."8" In this way the ADA resembles other vague statutes enacted by Congress, such as the Sherman Act in antitrust law, whereby executive agencies take the lead in defining the boundaries of the statute. Pursuant to this congressional command, the DOJ promulgated the Integration Regulation. 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,"81 and described "the most integrated setting appropriate" as "a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible."82

In L.C. and Helen L., the Supreme Court and Third Circuit, respectively, relied upon and embraced the DOJ interpretation of the Integration Regulation as articulated in briefs submitted by the Government as amicus curiae. The DOJ described "the most integrated setting appropriate" as "a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible."83 The DOJ therefore interpreted the Integration Regulation 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 without disabilities, rather, than in an institution, when (1) the State's treatment professionals have determined, in the exercise of reasonable professional judgment, that community 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. 84

Thus, according to the DOJ and now the Supreme Court,85 where (as in L. C.) the plaintiff is segregated unnecessarily, the Integration Regulation applies and the remaining question is whether the imposition of community placement-a "setting that offers opportunities for interaction with persons without disabilities"- would effect an unreasonable modification or a fundamental alteration.

The Supreme Court soundly decided to afford the DOJ interpretation of the Integration Regulation the deference normally granted to an agency's interpretation of its own regulations. Under settled Supreme Court precedent, an agency's interpretation of its own regulations is "controlling" unless it is "plainly erroneous,"86 "inconsistent with the regulation,"87 or a mere "post hoc rationalizatio[n]' of ... past agency conduct."88 The State argued that the regulation should apply only to services provided to both disabled and nondisabled persons, but there is no such limitation in the regulation. The regulation on its face applies to all services administered by a public entity, thereby apparently including those that are offered only to persons with disabilities. Thus, the DOJ's interpretation accords with the regulation's plain language and is neither "plainly erroneous" nor "inconsistent." Further, the interpretation has been a matter of public record since 1995 and is not a "post hoc rationalization" of past agency conduct.89 Therefore, under the traditional deferential standard, the Supreme Court accorded the DOJ its due discretion.

Moreover, statutory intent and traditional deference to agencies assigned the responsibility of promulgating regulations to implement a statute suggest that the DOJ and the Supreme Court were justified in concluding that unnecessary institutionalization constitutes a form of ADA discrimination and that therefore their interpretation of the Integration Regulation was within the bounds of Title II. A basic principle of administrative law provides that where a governmental agency is granted authority to give content to a general statutory provision, the agency is entitled to deference.90 This general principle was recently applied to the ADA by the Supreme Court, and the Court held that the DOJ's views regarding the application of the statute warranted such deference.91 The Court acknowledged that the DOJ was directed by Congress to issue implementing regulations and was the agency principally responsible for the ADA's enforcement.92 Thus, the DOJ interpretation of the statute was entitled to controlling weight unless it was "arbitrary, capricious, or manifestly contrary to the statute." Following this principle, the Court properly afforded controlling weight to the DOJ interpretation that unnecessary institutionalization constitutes a form of discrimination prohibited by Title II.

The legislative history behind the enactment of the ADA provides further support for the DOJ's and the Supreme Court's view that unnecessary institutionalization constitutes a form of prohibited discrimination.93 Although an exhaustive legislative history is beyond the scope of this discussion, a thumbnail sketch provides support for the Court's holding. In findings accompanying the ADA, Congress determined 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."94 It also held that discrimination occurs in various contexts including "institutionalization,"95 and that "individuals with disabilities continually encounter various forms of discrimination, including . . . segregation."96 Legislative debates and hearings bear out that those findings reflect an understanding that unjustified segregation constitutes a form of discrimination.97 Former Attorney General Edwin Meese, who oversaw passage of the ADA and participated in its hearings, has joined in the opinion that the DOJ (and now Supreme Court) view accords with the statutory authority granted the Department under Title II.98 Aside from statutory intent and agency discretion, the Supreme Court held that unnecessary institutionalization can properly be viewed as "discrimination" under traditional definitions of the term.99 First, as mentioned above, unjustified segregation can stigmatize those segregated, and this can lead to further inferior treatment. Second, unjustified segregation imposes a burden on the disabled not placed on the nondisabled. Whereas the institutionalized disabled person must sacrifice involvement in community life to get the services they need, non-disabled persons need not sacrifice community living to get needed services. Third, unnecessary segregation denies disabled persons public benefits offered to the nondisabled. This argument responds to the Petitioners' argument that the ADA should not apply unless disabled individuals fail to receive the same services received by non-disabled individuals. Disabled people must indeed give up such benefits: Where individuals must by reason of their disability obtain needed services in a segregated setting, they are deprived of equal access to the benefits of community living public commons, parks, museums, and most other public services.

This definition of discrimination is arguable, because it may be contended that unnecessary institutionalization is not "by reason of disability" but by reasons of poverty, administrative inefficiency, or lack of public funds. Still, in the face of this indeterminacy, Supreme Court deference to the DOJ under Chevron was justified. Indeed, nearly every court that has considered the question has concluded likewise: The DOJ acted well within its regulatory and statutory authority to apply the Integration Regulation to unnecessary institutionalization.100 Given the foregoing legislative history and the deferential standard applied to agency interpretations of their own regulations, not to mention the policy benefits of community care discussed above, the Supreme Court took the proper position that the Integration Regulation does in fact apply to unnecessarily institutionalized people. Thus, we now move beyond the question of whether or not the Integration

Regulation applies, and forward to the reasons behind the Court's intervention in this arena.

D. The Need for Federal Intervention

While the above discussion highlights the reasons supporting the Supreme Court's conclusion in L.C., another concern weighed in favor of the Court's holding-the need for federal legislative and judicial intervention. In ruling that the ADA and the Integration Regulation applied to bar discrimination against unnecessarily institutionalized individuals, the Supreme Court implicitly recognized the need for federal involvement when major state power centers (here, state legislatures and the corresponding state mental hospitals that they funded) are not well suited to correct the problem at hand.101 It is well chronicled that mentally disabled individuals are limited in their capacity to represent their interests in majoritarian power centers; mentally handicapped people vote less frequently, donate less money, and lobby less loudly. The Supreme Court acknowledged this explicitly in Cleburnethough mentally handicapped residents were able to "attract the attention of the lawmakers," they could not "mandate the desired legislative responses" to deal with the prejudice they faced.102 One commentator has argued that such relative disenfranchisement and vulnerability justifies intervention by courts and legislatures.103

Ample evidence indicated that state institutions were providing poor care to the mentally disabled, and that institutions continued to do so despite the data demonstrating that community care was both less expensive and more effective at improving patients' lives.104 This reality provides a measure of empirical evidence that states were not sufficiently equipped, or perhaps not sufficiently motivated, to resolve the problems facing the unnecessarily institutionalized mentally disabled population.

Why have states demonstrated such inability, or at least such a lack of success, in fixing the problem? A number of explanations are possible, including the institutional inertia, regulatory capture, and ratcheting effects that can burden state power centers. Too commonly,

[political goals to save money, bureaucratic pressures to allocate mental health funds primarily to state institutions, and neighborhood resistance to the establishment of alternative community facilities have brought about the failure of deinstitutionalization. These forces have created a "revolving door" for persons with mental disabilities .... Unfortunately, the legislative response at the state level, shaped by political and fiscal pressures, does not adequately weigh the interests of this population.105

Moreover, legislatures can fall victim to "ratcheting" effects. Once state legislatures have granted the funding to build and run state mental hospitals, eliminating them becomes hard even if they are not performing as desired. Once the funding is ratcheted up, it becomes difficult to ratchet back. The cries of politically powerful groups who support the status quo can drown out the voices of less powerful mentally disabled individuals.106 As Jonathan Zasloff has argued, "[o]fficials will focus on satisfying their political masters because they can do little else: political pressure becomes a means of rationing scarce resources."107

In some instances, this inertia might affect state power centers while not handcuffing federal ones. Given the smaller number of people that run state governing bodies and mental hospitals, it is understandable that there would be anomalies and problems in some of the results. Thus, we witness a wide range in state treatment of the mentally disabled; some states have been quite good while others have been quite poor, showing little sign of improvement.108 In the context of a smaller system, there is arguably more potential for that system to be a closed one, and certainly more potential for legislative capture.109 Viewed through a public choice optic, a state legislature is easier to capture than the federal Congress. State legislatures typically have fewer members than Congress, and successful campaigns for seats on state legislatures typically require far smaller war chests.110 Thus, organizations with funds and voters can strongly influence the composition and conduct of state legislatures.

This reality relates to James Madison's notion, presented in The Federalist Papers and counseling in favor of a strong federal government, that tyranny of the majority is more likely to occur in a small group than in a large one:

The smaller the society, the fewer probably will be the distinct parties, . . . the more frequently will a majority be found of the same party; and ... the more easily will [that majority] concert and execute [its] plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens .... 111

When relatively fewer people control decisions (i.e., as in state legislatures), chances are greater that we will see more extreme results than those which we would see on a national scale where far more voices may be heard -and more publicly. In this context-one of institutional inertia, capture, and ratcheting-a more powerful, more comprehensive federal force may be required to come in, break down barriers, and make state institutions change their course, where state institutions are not so able.112 This phenomenon is analogous to what our country experienced during the Civil Rights Movement of the 1960s.113 States were the bodies causing the discrimination problem and showed little capacity to resolve it, due to a combination of political, social, and institutional inertia.114 Accordingly, it was the federal government, along with its courts, that instigated change, just as we have witnessed with the ADA and in L. C. The Supreme Court's holding in L.C. thus exemplifies federal intervention as a route to solve problems that trouble states. The states' demonstrated incapacity counsels in favor of such intervention. All three branches of the government came together in an attempt to remedy the problem of discrimination against the mentally disabled in state institutions. An Article I legislative body (Congress) passed a federal law (the ADA), an Article II executive arm (the DOJ) promulgated a regulation interpreting that legislation, and Article III federal courts stepped in to affirm the law's validity and force.

This is not to suggest that the federal legislative and executive branches are unconstrained by institutional inertia and regulatory capture-merely that there are some occasions in which states will be fettered and the federal government will be less so.115 Federal courts likewise do not act with complete freedom-with traditional reliance on stare decisis, no institution may be subject to institutional inertia to as large a degree as our court system.116 Still, in public choice terms, the life tenure afforded federal judges by Article III(117) allows federal courts to be relatively free from capture. Thus, again, there are some occasions in which states will be fettered and federal courts will be less so. In L.C., the Supreme Court confronted just such an occasion.

E. Problems of Broad Application of Title II and the Integration Regulation: The Need for a Discussion of Fundamental Alteration and Unreasonable Modification

Notwithstanding the Supreme Court's opinion in L.C., if no meaningful boundaries are placed on the sweep of the Integration Regulation, it could expand beyond intended practicable limits, For example, two recent district court opinions issued before the Supreme Court's L.C. decision stretched the limits of states' duties. In Cramer v. Chiles,118 a federal district court within the Eleventh Circuit (the Circuit that issued the opinion in L.C.) relied in part on the ADA to bar the implementation of a Florida statute that would have eliminated funding for private Intermediate Care Facilities for the Developmentally Disabled ("ICF/DDs").119 The court held that the statute would have impermissibly denied meaningful choice and resulted in unnecessary institutionalization.120 Notably, the court failed to address the fundamental alteration issue, or even to acknowledge its existence, and in a fashion harking back to the judicial activism of the school desegregation era, maintained jurisdiction to appoint a panel of experts to develop a transitional plan.121

In Kathleen S. v. Department of Public Welfare,122 a district court within the Third Circuit (the same Circuit that decided Helen L.) held a violation of the ADA when Pennsylvania closed a hospital and failed to create sufficient community-care facilities for the released persons. Whereas Helen L. and L.C. involved few plaintiffs and did not purport to alter the design of the state programs, Cramer openly wrested control from the state of the decisions as to what programs to provide and fund, and Kathleen S. required the state to create substantial new programs. In addition to these cases, in several jurisdictions community-care activists have brought pending litigation seeking sweeping consequences, including claims to force the closure of institutions and the creation of vast new communitycare systems.

Five rules of action illustrate the need for limits. First, individuals have different conditions and needs.123 Where failing to provide care in the "most integrated setting appropriate" constitutes a prima facie case of discrimination, the wide range of individual needs poses problems. Presumably a state should not be required to create infinite types of community-care programs in order to provide the most integrated setting appropriate for each person of infinite human variation. Second, conditions change. At times certain types of care will suffice for a particular person when at other times such care will not suffice for that person, and when conditions change placements must be found and services must be adjusted. Thus, barring the creation of unused excess capacity, there will always be some number of individuals who could be cared for in more appropriate facilities, even if only temporarily.

Third, determining ex ante the popularity of newly developed programs is difficult. Under a sweeping application of Title II, states would be deterred from creating experimental programs with limited enrollment, because such creation provides one more option for plaintiffs to demand, claiming that states violated the ADA by not offering the benefit to everyone who could qualify for it.124

Fourth, we live in a world of limited resources. Unlimited funds, staff, and facilities are not available to care for the country's sick. Whereas per patient costs of community care may be lower than those of institutional care, overhead costs, and the possibility of changing conditions suggest the conclusion that a shift to community care might not save money, and might in fact be quite costly.125

Fifth and finally, deinstitutionalization is not without risks, nor is it a panacea for the ills of the mentally disabled. For some mentally disabled individuals, institutional care can in fact be superior to many types of community care.126 Indeed the experience of deinstitutionalization of the mentally ill illustrates the need for caution. Deinstitutionalization of the mentally ill is responsible for much of the current homeless population and is widely regarded as a far reaching failure.127 Samuel Brakel has written:

The deinstitutionalization movement has not lived up to its promises and ... the ideal of community treatment has resulted in the abandonment of many mentally disabled persons to virtually unsupervised, unprotected lives in flophouses located in dangerous or dilapidated areas or even in "psychiatric ghettoes" that have sprung up in some of our larger cities 128

Unchecked deinstitutionalization today could have the same effect. Closing hospitals risks putting people into communities where they are unable to cope, and where they lack the structured environment and monitoring of an institution.129

This lack of coping ability can lead to homelessness, which can worsen the conditions of the mentally disabled person in addition to presenting a discrete social problem.130 In Alexander v. Choate,131 a Rehabilitation Act case, the Supreme Court recognized the importance of "keep[ing] (sec) 504 within manageable bounds." The same applies to Title II. In light of this need for limits, the fundamental alteration and unreasonable modification limitations become the indispensable siblings of the Integration Regulation. While the application of the Integration Regulation is grounded on the supportable premise that there can be a better system, the fundamental alteration defense is grounded on the reality that in a world of finite resources, there can be no perfect system. A quixotic quest for one could compound the crisis.

Given how recently the Supreme Court decided L. C. and the relative youth of Title II jurisprudence, it is not clear what limits the fundamental alteration principle provides. Title II fails to provide clear guidance, and courts have yet to explore deeply the question.132 Moreover, the scholarship gives the fundamental alteration question only cursory treatment. The possibility of an unchecked Title II raises several questions. In response to litigation, would a state be required to deinstitutionalize involuntarily committed and dangerous, mentally ill individuals? Would a state be required to eliminate its current eligibility requirements for existing treatment programs so that more individuals would qualify? Would a state be required to fashion entirely new programs? Would a state be required to undertake unlimited cost to provide integrated programs? Would a state be required to shut down all or a substantial portion of its state hospitals? The Supreme Court's opinion in L.C. directly answers some of these questions, but the more difficult ones are left for future cases and controversies.

With these questions in mind, the remainder of this Article explores the fundamental alteration defense (and the conceptually related unreasonable modification limitation to Title II) and attempts to do two things to promote and facilitate discussion of the issue. First, looking back to instruct the future (in common law fashion), Part II uses Rehabilitation Act and ADA case law to provide advocates a practical guide to the current arguments available. Second, using those arguments and cases, Part II provides a theoretical framework for the fundamental alteration and unreasonable modification question.

II. FORWARD TO FUNDAMENTAL ALTERATION

Title II does not require that fundamental alterations or unreasonable modifications be made to state programs. There is no clear test to determine whether or not a proposed modification is unreasonable or constitutes a fundamental alteration, and courts will look to a variety of factors to make this largely factual determination. The issue traditionally arises as an affirmative defense, although the issue can also arise in the context of the plaintiff's prima facie case. Rather than focusing on advocacy of particular positions (with frequent exceptions), this section attempts to explain, categorize, and place into an intellectual framework the arguments and issues extant in community-care cases, as well as to do some casual predicting of courts' possible resolutions of some of those issues.

The first theoretical category of arguments presented regards program integrity. These arguments rest on differences in kind between the benefit offered by the public entity and the benefit requested by the plaintiff. Where a defendant shows that a proposed modification would alter the essential nature of a program, by, for example, precluding the realization of essential purposes or by eliminating essential eligibility requirements, that modification may be deemed a fundamental alteration. These arguments are raised in the context of three general types of cases. First, if plaintiffs are not medically fit for community-based treatment of any form, then requiring community treatment would constitute a fundamental alteration of the state program's essential purpose of patient protection assuming deference to professional discretion.133 Second, if future plaintiffs are medically fit for some form of community treatment, but fail to meet some criteria for the particular community treatment program requested, then requiring release might constitute a fundamental alteration in light of the elimination of an essential eligibility requirement, to the extent a court does not deem the exercise of regulatory discretion to be discriminatory. Third, if future plaintiffs satisfy eligibility criteria for an existing community treatment plan, but have not been transferred due to error, administrative convenience, or a lack of available slots, then a court is less likely to deem a required transfer to be a fundamental alteration based on administrative discretion as an essential feature.

The second theoretical category of arguments presented regards magnitude. These arguments rest on changes in degree of the public entity's system. In a large class action suit of any of the three general types, a court may find a fundamental alteration if the transfer of the plaintiffs would significantly harm the fiscal well being of the state program. Further, a fundamental alteration may be found if the requested transfer would force broad deinstitutionalization.

A. Fundamental Alteration and Unreasonable Modification Generally

1. Title II of the ADA Does Not Require Unreasonable Modifications or Fundamental Alterations

The unreasonable modification/fundamental alteration limitation to the ADA has its roots in Supreme Court precedent under the Rehabilitation Act. The Supreme Court held in Southeastern Community College v. Davis134 that Section 504 of the Rehabilitation Act does not require "affirmative action" on the part of a public entity. The Davis Court held that requiring a nursing school to accommodate a deaf student, including providing individualized assistance, would amount to a "fundamental alteration in the nature of [the] program ... far more than the 'modification' [Section 504] requires."135 Subsequently, in Alexander v. Choate,136 the Court interpreted the "affirmative action" discussed in Davis to mean those modifications that would be "substantial" or those that "would constitute fundamental alteration[s] in the nature of a program." Under this newly formulated fundamental alteration defense, the Choate Court held that a state was not precluded from reducing the number of hospital days that Medicaid would reimburse hospitals on behalf of Medicaid recipients, even though this funding decision dispro-portionately affected disabled individuals.137

The fundamental alteration defense, as an extension of the principle that the ADA requires only reasonable modifications, has been expressly recognized by DOJ regulation. Furthermore, the regulation has been applied in the context of Integration Regulation cases under Title II.138 The regulation does not clearly define what sorts of changes would be deemed fundamental, nor do the regulations provide further guidance on the elements of the fundamental alteration defense. Likewise, in neither Davis nor Choate did the Supreme Court clarify the bounds of what constituted a fundamental alteration, except to say that "substantial" changes were not required.139 Herein lies the problem. Defining "fundamental" alterations as those changes that are "substantial" brings to mind the proverbial Push and Shove Dictionary, under which the definition of "Push" is "shove," and the definition of "Shove" is "push."140 The discussion below uses ADA case law to posit possible principles to define the term and break the circularity.

2. Factual Inquiry Without a Clear Test

Law under Title II of the ADA is still developing,141 and before Olmstead v. L. C. no clear test had emerged for whether or not a modification would be held unreasonable or a fundamental alteration.142 Courts have looked to a wide variety of factors. Factors that courts have considered are discussed below as they might apply to a defendant in a suit claiming community care.143

Whether a proposed modification constitutes a fundamental alteration is a fact-intensive determination.144 The necessity for a factual context to determine the reasonableness of a modification under Title II parallels Rehabilitation Act principles.145 The factual nature of the fundamental alteration inquiry suggests two conclusions germane to advocates. First, specific cases might produce widely varying results, given the potential for different factual records and the possible leeway accorded fact finders. Second, the fact intensive nature of the inquiry may increase the expense of litigation. Not only will investigation and analysis of facts require resources, but courts may also be reluctant to resolve cases quickly in the defendant's favor by means of summary judgment.146

3. Arises as Affirmative Defense or Within Plaintiffs Prima Facie Case

The issue of fundamental alteration typically arises as an affirmative defense whereby the public entity defendant attempts to resist modification of an existing program despite plaintiffs showing that the program was discriminatory.147 For example, before L. C. reached the Supreme Court, the Eleventh Circuit noted that the plaintiff had made a prima facie showing of unlawful discrimination, including a general showing that requiring community care was a reasonable modification "in the run of cases."148 The appellate court then remanded to the trial court to make a specific determination of whether the defendant fulfilled its burden of proving that the provision of community care would "fundamentally alter" the service it provides.149 Treating the fundamental alteration issue as an affirmative defense comports with the traditional treatment of other provisions of the ADA.150

However, some courts have raised the issue of fundamental alteration in the context of determining whether the plaintiff has made a prima facie showing that a proposed modification is generally reasonable in the run of cases.151 While potentially confusing, the divergent treatment of the burden issue can be reconciled and need not be interpreted as a split among courts. Title II requires the plaintiff to demonstrate the possibility of a reasonable accommodation or modification, and courts have defined "reasonableness" to exclude that which would require a fundamental alteration.152 Thus, the issue of fundamental alteration might arise in two contexts. First, the issue might arise in the course of arguing that the proposed modification or accommodation is generally unreasonable "in the run of the cases" and thus that the defendant's failure to make them did not constitute discrimination. Indeed, for the most part the arguments raised below could just as well serve a claim that proposed modifications were "unreasonable."153 Second, even if the plaintiff makes such a prima facie showing of discrimination, the defendant may still argue as an affirmative defense that the modification constitutes a fundamental alteration in light of specific facts.

B. Analysis of Program Integrity Arguments in the Context of Three Ideal Types

This section has a Janus-like mission; it attempts not only to describe the past but also to use the past with a view to the future -much like the progression of the common law itself."

Addressing future potential legal controversies is inherently difficult, which might partly account for the dearth of scholarship that explicitly intends to inform advocates and judges of how to deal with future cases.

This paper attempts to negotiate the difficulty by referring to "ideal types," as described by German scholar Max Weber.155 An "ideal type" creates a model of thought by abstracting and summarizing the core features of complex, empirical phenomena, and it combines, clarifies, and emphasizes the most important of these. The ideal type itself need not necessarily exist anywhere in reality, but thinking in and communicating by way of such ideal types can assist understanding and coping with complex reality. Essentially, the tool allows this paper to explore future cases-and thereby help legal practitioners-while still maintaining academic rigor and avoiding undue speculation. Nonetheless, it is important to bear in mind that no ideal type can substitute for an analysis of the meaning and the approximate actual significance of each element. Put simply, the foregoing is intended to be helpful rather than definitive -a compass, not a map.

1. Plaintiffs Who Are Medically Unfit for Community Treatment

In a case brought by plaintiffs who seek community-based care but who are not medically fit for it, requiring community care would constitute a fundamental alteration of the state program and would not be required by ADA Title II. One of the essential purposes of institutional care is protecting the institutionalized individual, and requiring release to that individual's own detriment would make the essential purpose impossible to accomplish, thus constituting a fundamental alteration that is not required by Title 11.156 But one issue remains: the extent to which the judgments of the institution's or the state's professionals must be granted deference.

a. Essential Nature and Program Integrity Generally

The ADA does not require alteration of the essential nature of a program, and changing the essential nature of a program can constitute a fundamental alteration.157 The essential nature concept originated in the Supreme Court's opinion in Southeastern Community College v. Davis.158 The Court held that the ability to hear a patient's speech was "necessary" and "indispensable" to a nurse's functioning.159 The Court determined that the hearing impaired plaintiff would not receive even a "rough equivalent of the training a nursing program normally gives."160 The Court went on to announce that such a "fundamental alteration" was not required.161

Arguing that a proposed modification is an unreasonable modification or a fundamental alteration because it would alter the essential nature of a program or eliminate an essential feature is admittedly circular, but it highlights the presence of a class of arguments that this discussion dubs "program integrity" arguments.162 These program integrity arguments can be seen as Testing on differences of kind, as distinct from differences of degree.163 For example, a police department may not be required to hire a police officer who cannot effect a forcible arrest, because effecting a forcible arrest is an essential function of police work.164 Likewise, a museum is not required to accommodate blind patrons by eliminating or waiving a policy against touching the artwork, because protecting artwork is an essential feature of a museum.165 Viewed another way, the benefit provided by the museum is the viewing of artwork, not the touching of it, and requiring touching is a fundamental alteration of this intended benefit. The defense in these contexts rests not on the cost or level of burden to the entity, but simply on the nature of the benefit granted by the entity and its difference with the nature of the requested accommodation.

b. Essential Purposes

Concerning the ideal-type case in which the patient is not deemed to be medically fit for community treatment, a defendant can apply a program integrity argument and maintain that protection of institutionalized individuals is an essential purpose the elimination of which would constitute a fundamental alteration, thus precluding Title II from requiring the provision of community care. Precluding the realization of an essential purpose can constitute a fundamental alteration. For example, in Davis, "the purpose of [the nursing] program" was to train nurses in many skills, and allowing hearing impaired students would frustrate that purpose.166

Greist v. Norristown State Hospital167 provides an example of a case in which a fundamental alteration was found because the individual was unfit for community care. In Greist, a federal district court held that Title II did not require the release into the community of a particular mental patient.168 After a brutal incident in 1978, Richard Greist had been involuntarily committed to Norristown State Hospital after being found not guilty of murder by reason of insanity.169 In 1996, the staff psychiatrist at Norristown determined that Greist still posed a danger to others and required further inpatient treatment, and Greist brought suit under Title II of the ADA to demand a transfer to community facilities.170 However, the court held that "[flo require state courts to release such individuals into the community would fundamentally alter the nature of Pennsylvania's involuntary commitment program by making an essential purpose of the program-protecting the community-impossible to accomplish."171 Thus, the court granted the defendant's motion to dismiss for failure to state an ADA claim.172

The Greist case can be distinguished on its facts from the bulk of other cases; many developmentally disabled or mentally ill individuals will not be dangerous to the community, and many patients are not involuntarily committed. Still, prospective plaintiffs under Title II may be dangerous to themselves, and an institution may provide such individuals with necessary care. Under the broader principle illustrated by Greist-that eliminating essential purposes is a fundamental alterationreleasing individuals who require institutional care would thwart the essential purpose of patient protection.

Commentators have suggested that effective institutions are better suited than community programs for treating the severely disabled, because institutions provide a more supervised and structured environment.173 People who enter institutions are often dangerous to themselves or are gravely disabled.174 Institutions provide monitoring, structure, and support, and this function of institutions-"total responsibility for patient care" -is missing in typical community programs.175 Institutionalization advocates argue that "an effective institution is more able to meet the needs of those who are seriously ill."176 For seriously disabled people, "without the coercive structure of the hospital, there is no way to assure that basic human services will be provided through either formal or informal means."177

Indeed, efforts have been made on behalf of some severely disabled individuals to resist deinstitutionalization. In a California case, a staff physician was fired after allegedly criticizing the manner in which community care was being offered.178 That physician, Dr. William Cable, contended that severely disabled people were being transferred into the community, resulting in high morbidity and mortality rates.179 In Messier v. Southbury Training School,180 an ongoing community-care class action suit in Connecticut, 618 residents of Southbury moved to intervene on the side of the defendants because they feared that community placements would be imposed. Where individuals are not suited for community care, imposing such care would eliminate an essential purpose of the state's program, and thus constitute a fundamental alteration.

This view, later embraced by the Supreme Court,181 was foreshadowed by principles announced by pre-L. C. opinions in the Third Circuit. In Easley v. Snider,182 the Third Circuit held that plaintiffs had no Title II claim for community care where plaintiffs were not mentally alert, because requiring such care would change the "essential nature" of the program. Moreover, the Third Circuit's decision in Helen L. required the deinstitutionalization only in light of the stipulation by both sides that community care was medically appropriate.183 The Helen L. court held that the provision of community care would not constitute a fundamental alteration because such a modification would not alter the program's "requirements" or its "substance." Requiring release of individuals who were not medically fit for community care, however, would manifestly change the substance of the state program. Thus, public entity defendants supporting continued institutional care would almost certainly prevail in a suit against plaintiffs who required institutionalization for reasons of treatment.

The Supreme Court's opinion in L.C. reflects this notion that the ADA does not mandate releasing patients who require institutional care. In L. C., the Supreme Court held "that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings."184 Although there is still substantial room to argue which persons are "unable to handle or benefit from community settings,"185 and the L.C. opinion still begs the question of what states must do if they have been lax in creating programs that potential plaintiffs would be able to "handle" and "benefit" from,186 the Supreme Court's opinion squarely preserves and emphasizes the essential purpose arguments that were earlier announced and exemplified by Greist, Easley, and Helen L.

c. The Limitation of Reasonable Professional Discretion

Potential remaining problems with the foregoing rule warrants mention. Where a professional judgment is not reasonable with regard to a determination of a disabled individual's fitness for community treatment, a court might not defer to that judgment. For example, in Kathleen S., a subclass consisting of sixty-eight individuals had been evaluated and deemed unfit for community treatment.187 However, the State in judgment from other professionals - such as independent doctors hired by families or advocates of mentally handicapped people -and to the extent courts defer to the State's treatment professionals, issues like those raised by Kathleen S. retain their relevance.

2. Plaintiffs Who May be Medically Fit for Some Type of Community Treatment, but Who Fail To Meet Requirements for the State Community-Care Program

a. Eliminating Essential Eligibility Requirements Can Constitute a Fundamental Alteration

In a case brought by plaintiffs who seek some type of community care for which they are medically fit, but who do not fulfill the state program's eligibility requirements, a court might find that requiring a shift to community care would constitute an unreasonable modification or a fundamental alteration. The success or failure of this argument may depend on the extent to which a court deems the criteria essential, traditionally non-waivable, and non-discriminatory. Of the three ideal types addressed, this type presents the most potential for controversy.

The Supreme Court's opinion in Davis supports the proposition that eliminating essential standards for eligibility constitutes a fundamental alteration. In the course of determining that a fundamental alteration of a nursing program was not required, the Court wrote that Section 504 imposes no requirement "to lower or to effect substantial modifications of standards to accommodate a handicapped person."193 Moreover, the ADA provides that "[q]ualified individuals" under the statute are those that fulfill "essential eligibility requirements."194 Citing that provision, the Supreme Court in L.C. acknowledged that the provision of community care was limited to those individuals who fulfilled "essential eligibility requirements," but did not elucidate what may constitute such a requirement.195

Courts outside the community-care context have respected program integrity and held that elimination of essential eligibility requirements for a public program constitutes a fundamental alteration. The Sixth Circuit in McPherson v. Michigan High School Athletic Association196 held that maximum age and semester requirements for participation in high school sports need not be waived for learning disabled students under Title II. The court held that forcing a waiver of an eight semester rule for a learning disabled child would "work a fundamental alteration in the Michigan high school sports programs." The McPherson court reasoned that the rule was a necessary eligibility requirement that contributed to maintaining safety and competitiveness.?98 Additionally, a federal district court in the State of Washington held that waiver of an "essential" Medicaid plan eligibility requirement was not required where waiver would impose an undue financial burden or would "fundamentally alter the nature of the program."" The plaintiffs argued that waiving the graduation-by-age-nineteen requirement would be a reasonable modification, but the court disagreed. Rather, the court held that the requirement was an "essential" one that need not be waived.200 By deferring to the eligibility requirements, these courts can be viewed as effectively deferring to the regulatory discretion of the programs' framers allowing the creators of the programs to define the benefit offered, and respecting the limits of that benefit.201

This manner of program integrity argument can be applied to the community-care context. If a defendant state program has specific standards for admission into its attendant care program, then plaintiffs who do not fulfill those requirements may fail in an attempt to modify those requirements. For instance, if a public entity required that applicants to its community-care program meet certain self-sufficiency criteria then, in response to a challenge by non-self-sufficient applicants the public entity might argue that those requirements were at least as essential as an age requirement in sports or a graduation requirement for receipt of federal benefits. Thus, requiring waiver would be an unreasonable modification or a fundamental alteration of the communitycare program. The Third Circuit's holding in Helen L. would not cut against an essential eligibility requirements argument.202 In Helen L., the plaintiff fulfilled all eligibility requirements for the state community-care program, and the failure to place her in the appropriate program was based simply on a budgetary mechanism.203 The paradigmatic community-care case respecting eligibility requirements is the Third Circuit's opinion in Easley v. Snider.204 In Easley, two severely disabled institutionalized persons brought a Title 11 challenge to the state requirement that that they be mentally alert in order to participate in the State's attendant care program.205 The court rejected the claim. The first plantiff, Tracey Easley, was paralyzed in a car accident and could not speak. The Second plaintiff, Florence Howard, suffered from multiple sclerosis and undifferentiated schizophrenia.206 The State's attendant care program required that applicants be sufficiently mentally alert (1) to select, supervise, and fire an attendant; and (2) to manage their own financial affairs.207 Both Easley and Howard failed these criteria, both were rejected, and both sued.

At issue in the case was whether the ADA mental alertness eligibility requirement was part of the essential nature of the program, such that the ADA would not require its elimination.208 The court relied on the State's definition of the benefit, and held that the program endeavored to provide independence and to enable the disabled to procure employment.209' The court determined that personal control of the attendant, and therefore the mental alertness sufficient to exercise that control, was an essential dimension of the state program without which its objectives could not be realized. Easley and Howard argued that they could receive the benefits of the attendant care program with the assistance of surrogate decisionmakers, and that the ADA demanded this accommodation.210 However, the court rejected their argument: "[Tlhe use of surrogates, would, at the very least, change the entire focus of the program .... The proposed alteration would create a program that the State never envisioned . . ."211 Thus, the court deferred to regulatory discretion and did not impose the requested accommodation.

b. Determining Whether or Not an Eligibility Requirement Is "Essential" May Turn on the Agency's History of Granting Waivers

If a state agency is accustomed to making waivers of its eligibility requirements for release into community care for people situated similarly to the prospective plaintiffs, then requiring such waivers for the prospective plaintiffs might not constitute a fundamental alteration. Previous waivers may suggest that the eligibility requirement in question is not in fact "essential." The district court in Williams v. Wasserman 212 expressed the view that a history of providing care for similarly situated individuals weakened a claim of fundamental alteration. In Wasserman, twelve institutionalized, developmentally disabled, and traumatically brain injured plaintiffs sought community-care placements that had allegedly been recommended by their treating physicians.213 In response to the defendants` arguments that community transfers would be unreasonable, the court noted that the State had recently approved community-treatment slots for several of the plaintiffs. The court wrote that "[t]hese placements indicate that what the plaintiffs seek is not a `fundamental alteration.'"214

Similarly, in Tatum v. NCAA,215 a district court indicated that an accommodation does not constitute a fundamental alteration under Title III of the ADA where there is a history of such accommodations. The Tatum court held that the NCAA's failure to allow the plaintiff to take the college entrance examination under untimed conditions did not constitute discrimination under Title III, because the disability itself was not sufficiently substantiated. The court noted, however, that in the case of a properly substantiated disability, "the acceptance of untimed tests would not fundamentally alter the nature of the NCAA eligibility criteria in the case of a confirmed disability with a history of accommodations."216

There are two reasons Wasserman and Tatum may fail to be influential precedent. First, in Wasserman, the court found no eligibility requirements that the plaintiff failed to fulfill. Second, the Tatum dictum arose under Title III outside the context of a community-care case, and a given eligibility requirement may be more essential for a community-care program than a test-taking protocol is for athletics. Still, the principle survives and may be persuasive. A history of granting waivers would appear to cut against the assertion that an eligibility requirement is "essential," so requiring further waivers may not effect a fundamental alteration.

The matter does not end there. To counter the contention that a history of waivers indicates that an eligibility requirement is not essential, defendants first might argue that while occasional waivers have been allowed, requiring waivers would open the floodgates to further waivers, thus effecting a fundamental alteration of the state program. The cost of considering large numbers of waiver applications and the magnitude of the change presented by the increased number of granted waivers might constitute an unreasonable modification or a fundamental alteration even where a few waivers might not. This very argument motivated the McPherson court decision not to require waivers for participation in high school athletics.217 Moreover, defendants might argue that the current system of granting waivers is itself an essential feature, because the system allows the agency experts to make decisions in a manner that best serves the disabled community as well as the particular disabled individuals. In essence, defendants would rely not on regulatory discretion (the power to define the program) but on administrative discretion (the power to implement the program). As discussed below at Part II.A.2.c, a court should not allow discretion qua discretion to constitute an essential feature, because this could grant a license to discriminate.

c. Discriminatory Requirements Or Purposes Should Not Be Deemed Essential

Where a court deems a program eligibility requirement or purpose to be discriminatory, it should extend Wasserman and Tatum by requiring that states eliminate policies that intentionally discriminate among equally functional people, and by refusing to find that the elimination of that feature constitutes a fundamental alteration. At least two courts have done so. In Helen L., the Third Circuit held that elimination of a discriminatory funding mechanism did not constitute a fundamental alteration.218 The court noted that the state agency "cannot rely upon a funding mechanism of the General Assembly to justify administering its attendant care program in a manner that discriminates and then argue that it can not comply with the ADA without fundamentally altering its program."219 In Doe v. Stincer,220 a district court refused to allow the fundamental alteration defense to save a statutory scheme whereby patients with mental or emotional conditions could not access their medical records. The court held that the scheme was not saved by the fundamental alteration defense, given that the entire scheme discriminated against all patients receiving treatment for a mental condition.221 Bolstering that argument is a regulation issued by the DOJ pursuant to ADA Title II: "A public entity may not ... utilize criteria or methods of administration... that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability.. .222

When examining the most discriminatory rules, the argument that eliminating a discriminatory feature does not constitute a fundamental alteration is particularly convincing. A court would presumably not preserve a state program that locked developmentally disabled individuals in underground bunkers for the express purpose of shielding them from view. Likewise, a court would be unlikely to preserve a program that allowed the release of institutionalized individuals into integrated settings only on the condition that those individuals appear to the untrained eye to be non-disabled. Even though destroying the bunkers would eliminate the stated purpose of segregation, and even though modifying the "untrained eye" program would eliminate the eligibility requirement of physical appearance, a court would seem unlikely to deem those features "essential" or their elimination "fundamental" alterations.223 In short, a court likely would prohibit discriminatory criteria when the stated criteria is a obvious sham used to justify discriminatory treatment. The interesting question is, how obvious does the discriminatory intent have to be before the courts will prohibit the use of the stated criteria?

To the extent that a court may embrace the notion that discriminatory features are not "essential," defendants should frame their fundamental alteration defenses in terms of features that are less likely to be deemed discriminatory. A segregative purpose whose essential nature is the advancement of segregation itself is likely to be deemed discriminatory. Further, an arbitrary funding mechanism (as in Helen L.) or an arbitrary organizational mechanism (such as unnecessary institutionalization) may be deemed discriminatory. On the other hand, preserving patient safety, protecting facility viability, or facilitating patient care may be less likely to be deemed discriminatory, and thus the elimination of those features may more likely constitute a fundamental alteration. At the very least, this suggests advocacy advice: Presumably a court would be more likely to deem "essential" a feature that seemed to aid the disabled than a feature that seemed intentionally discriminatory or an arbitrary vestige of traditional discriminatory practices.

d. A Creative Court Could Shrink the Fundamental Alteration Defense

A creative court could wield two arguments to shrink the ambit of the reasonable modification limitation to Title II, thereby enlarging Title II's application. First, a creative court might broaden the foregoing "discriminatory requirement" exception and hold that any requirement that prevented medically qualified individuals from receiving the most integrated care appropriate would constitute a discriminatory or nonessential eligibility requirement. The argument would proceed as follows: If (1) the elimination of discriminatory eligibility requirements does not constitute a fundamental alteration; and if (2) the Integration Regulation indicates that unnecessary segregation constitutes discrimination; then (3) any eligibility requirement that caused medically unnecessary segregation would be discriminatory; and thus (4) waiver or elimination of such an eligibility requirement would not constitute a fundamental alteration. Second, essentially the same argument can be framed another way: Rather than asserting that the community-care program unlawfully discriminated (the position rejected by Easley), a court could find that the entire care program unlawfully discriminated -by creating criteria that kept individuals in institutions unnecessarily.

For these propositions, a court could loosely cite L.C., which holds that unnecessary segregation violates Title II. Interestingly, the Eleventh Circuit's opinion in L.C. did not expressly rely on the plaintiff's eligibility under the State's own requirements (as the Third Circuit did in Helen L.) but merely held broadly that Title II requires care in the most integrated manner medically appropriate.224 The "discriminatory requirement" arguments above would both suggest an opposite result in Easley. Arguably the most integrated setting appropriate for the plaintiffs in Easley was attendant care, either with or without the added assistance of surrogates.225 If the mental alertness requirement could be satisfied by the most integrated care appropriate to their medical needs, then that requirement could not be deemed essential, and thus its elimination or waiver would not constitute an unreasonable accommodation or fundamental alteration. Viewed in the second frame, the entire state program would have committed unlawful discrimination by creating an overall system that caused unnecessary segregation. In these ways, a court could shrink the fundamental alteration defense and thereby enlarge the application of Title II.

Three arguments could counter the broadening of the "discriminatory requirement" exception. First and foremost, the language of the Supreme Court's L. C. opinion gives states significant leeway and specifically provides that the integration mandate be limited to situations that "can be reasonably accommodated."226 Moreover, nothing in the L.C. case indicates that the plaintiffs failed to meet state eligibility requirements; indeed, L.C. herself was put in a community placement before judgment was ever entered.227 Thus, nothing in the opinion requires that a court disregard eligibility requirements.

Second, if a court were to accept the aforementioned "shrinking" arguments to their extreme, the fundamental alteration defense would essentially be swallowed whole, because any feature (other than medical fitness) that thwarted integration would be deemed discriminatory and thus its elimination would not rise to the level of a fundamental alteration. A court might eschew such a drastic result.

Third, such a result would appear to require substantial affirmative action on the part of the public entity. Assume, for sake of illustration, that a state offered a community-care program for which an institutionalized individual was ineligible, such as in the case of an individual who could survive community care with extra assistance but who did not fulfill certain eligibility requirements. If the State were required to provide community care in such a context, then it would be required to create a substantially new program. Defendants could argue that such "affirmative action" is not required under Alexander v. Choate.228

In the end, the success of program integrity arguments in this context will turn on particular facts and a particular court's deference to regulatory discretion, i.e., the entity's power to define the benefits it offers. Nonetheless, even if a creative court were to refuse to respect the state-created eligibility requirements, and thereby reject the program integrity argument, a public entity could still argue that the modification effects a fundamental alteration on other grounds discussed below.229

3. Plaintiffs Who Are Medically Fit for Community Treatment, Meet State Requirements for Release, but Nonetheless Still Have Not Been Transferred

a. Finding of Fundamental Alteration Less Likely

The third general type of case concerns plaintiffs seeking community treatment who are both medically fit and satisfy state eligibility criteria for such care, but who still have not been transferred due to error, administrative convenience, or a lack of available community slots. In this context, a court is less likely to deem a court ordered transfer to be a fundamental alteration or an unreasonable modification. Although a public entity may argue that requiring transfer would impede agency discretion, such discretion might not be deemed an essential non-discriminatory feature.

Four courts have held that requiring community care of eligible plaintiffs is not a fundamental alteration or an unreasonable modification. First, in Helen L.,230 the Third Circuit held that releasing a single eligible physically handicapped patient into community care did not constitute a fundamental alteration under Title II, even though no community-care slots were available within the State's budget. One of the plaintiffs, Idell S., had been deemed eligible for the attendant care program, but she was placed on a waiting list due to a lack of funding.231 The Third Circuit held that Title II and the Integration Regulation required that she be transferred to the State's attendant care program.232

After concluding that the Integration Regulation applies to unnecessarily institutionalized individuals, the Third Circuit held that the requested accommodation was neither unreasonable nor a fundamental alteration, because the transfer would not change the "requirements" or "substance" of the state programs.233 Further, the court emphasized that the attendant care placement would be cheaper than institutionalized care: "Ironically, DPW asserts a justification of administrative convenience to resist an accommodation that would save an average of $34,500 per year, would allow Idell S. to live at home with her children, and which would not require a single change in attendant care or nursing home programs.234 The court further held that the failure of the state legislature to apportion funds appropriately between the nursing care program and the attendant care program provided no defense, because Title II applied to the legislature as well.235

Second, in Wasserman, the district court held that where developmentally disabled individuals had been placed in community care, providing such care for similarly situated individuals did not constitute a fundamental alteration.236 The court noted that the placements of some of the class action plaintiffs indicated that "what the plaintiffs seek is not a `fundamental alteration' in programs already offered by the state."237 Thus, the court rejected the defendants program integrity arguments and deferred the determination of cost issues for further fact finding.

Third, in Kathleen S., one of the most sweeping applications of Title II and the Integration Regulation to date, a Pennsylvania federal district court recently held that the state program had violated the ADA by failing to initiate plans for community placements of institutionalized individuals.238 Haverford State Hospital was scheduled to close on June 30, 1998, and plaintiffs brought a class action suit consisting of three sub-classes: (A) eighty-eight individuals deemed ready for a community placement but who had not yet been placed due to a scheduled delay; (B) ninety-five individuals deemed ready for a community placement but who would be placed into a different state hospital because community services were not presently available; and (C) sixty-eight individuals deemed unsuited for a community placement who would be transferred to another state hospital.239

With regards to subclasses A and B, the court relied on Helen L. and L. C. to conclude that the DPW had violated ADA Title II, and the court ordered that both groups be placed in community-care services.240 The court also held, with slender rationale, that the planning and creation of the community services did not constitute a fundamental alteration.241 The court noted that DPW had failed to present evidence to support a finding of fundamental alteration. The court also noted that DPW had an obligation under state law to provide mental health care in the least restrictive means available-implying, although the court did not explicitly make the connection, that an order requiring fulfillment of an existing obligation did not interfere with an essential feature or otherwise constitute a fundamental alteration.

Fourth, although the Eleventh Circuit in L. C. did not squarely resolve the question of fundamental alteration, the court did hold that providing community care to medically eligible plaintiffs did not constitute an unreasonable modification "in the run of cases."242 Further, on remand, the district court held that an imposed community transfer would not constitute a fundamental alteration.243 The district court held that the $20,000 additional expenditure to provide community care to both L.C. and E.W. was not substantial in light of the State's overall mental health budget.244

The Supreme Court, however, did not fully embrace the Eleventh Circuit's view on that score. Indeed, a broad reading of the Supreme Court's opinion in L. C. would counsel in favor of a fundamental alteration defense where the reason for the failure to transfer is a lack of available community slots. The Court announced the following:

To maintain a range of facilities and to administer services with an even hand, the State must have more leeway than the courts below understood the fundamental-alteration defense to allow. If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met.... In such circumstances, a court would have no warrant effectively to order displacement of persons at the top of the communitybased treatment waiting list by individuals lower down who commenced civil actions.245

Under the circumstances addressed by that language, then, refusing to transfer a given individual due to the lack of available slots in the community program would apparently not violate Title II.

Nonetheless, the lack-of-slots defense would appear to be effective only where the state has a "comprehensive, effectively working plan.. . and a waiting list that moved at a reasonable pace."246 Thus, a prospective plaintiff who is denied community care on the grounds that the required program lacked space would still be able to attack the entire system on the grounds that the system unnecessarily segregates, and that it is not one that is "comprehensive" and "effectively working." At this point, the program integrity arguments dovetail with the magnitude arguments discussed below at Part II.C.

b. Administrative Discretion Offers a Possible but Controversial Essential Feature

A defendant state program might also argue that allowing state hospital experts and officials to have ultimate control over who is released is an essential purpose, given that they are best situated to understand the needs of the patients as well as the requirements for smoothly running the institution. Thus, requiring community care would effect a fundamental alteration, because the experts would be less able to use their fiscal and medical expertise to ensure the hospital's viability and effectiveness. Petitioners in L.C. made essentially this contention, in a moderate form, in the course of their argument before the Eleventh Circuit:

[The L.C. opinion] fails to give deference to medical and administrative judgment, by restricting state officials from considering the legitimate and traditional factors they would normally weigh in making these decisions (including the patients' and family members' preferences, quality of care, cost, and availability), and substituting therefore an overreaching commitment to least restrictive environment.247 The success of this argument will rest on a court's willingness to grant deference to administrative discretion, as distinct from professional discretion 248 and regulatory discretion.249 Two arguments might persuade a court to reject such deference. First, where individuals medically qualify for community care and satisfy the state requirements for such care, a court might conclude that such decisions are merely a matter of administrative convenience, not an alteration of the "requirements" or "substance" of the program.250 The House Judiciary Report accompanying ADA Title II explains that "[t]he fact that it is more convenient, either administratively or fiscally, to provide services in a segregated manner, does not constitute a valid justification for separate or different services under Section 504 of the Rehabilitation Act, or under this title.251

Second, courts might view such administrative discretion as a license to violate Title II and the Integration Regulation and thus refuse to deem such discretion an essential feature. As with other forms of discretion as potential essential features, extreme deference to entity discretion would all but eliminate the application of Title II and the Integration Regulation. Any refusal to provide community care could be defended by the sanctity of the judgment of the administrators of a public program. That conclusion accords with the extreme view offered in the Petitioners' Brief in L. C. shortly after asserting the essential nature of administrative discretion: "[The L.C. opinion] fails to recognize that a decision requiring the `least restrictive' treatment will always 'fundamentally alter' Georgia's provision of mental health services.252 If the application of the Integration Regulation would always result in an uncalled-for fundamental alteration, then the Integration Regulation would be reduced to empty verbiage. To the extent that courts embrace the application of the Integration Regulation, they may be unwilling to destroy it through the back door of an overbroad fundamental alteration defense. Indeed, the pre-L.C. opinions discussed above-Helen L., Wasserman, and Kathleen S., in addition to the Eleventh Circuit's L.C opinion-scream with their silence by declining to recognize administrative discretion as an essential feature.

An argument similar to the one a public entity defendant might pursue failed in the recent and highly publicized Martin v. PGA Tour,253 in which the Ninth Circuit determined (and the Supreme Court subsequently affirmed) that fettering the discretion of those who implemented Professional Golf Association ("PGA") rules did not constitute a fundamental alteration, because allowing the PGA unfettered authority would effectively exempt the PGA from Title III. Casey Martin, a physically handicapped professional golfer, sued the PGA in order to force the organization to allow him to use a golf cart during tournament play.254 The PGA argued that any modification of the PGA's power to make and enforce the rules of golf would be a fundamental alteration.255 However, if a fundamental alteration were found, the Ninth Circuit determined that PGA rule makers would be permitted to defend wanton discrimination on the grounds that their discretion was an essential feature. Of course, Martin is distinguishable on its facts. A hospital's control over its patients is perhaps more central to the hospital's essential functions than the PGA's control over arguably minor rules. Still, the underlying principle may be persuasive, and a court might hold that allowing state employees complete discretion over the release of individuals would be the same as exempting the state agency from Title II and the Integration Regulation. As in Martin, a court might eschew such a result.

The Supreme Court's opinion in L. C. provides a hook for these arguments. The Court's opinion indicates that failure to provide community care to an eligible individual is not justified "by the State's endeavors to keep its institutions fully populated." 256 There still lies a risk that the wolf of untamed administrative discretion will cloak itself in the sheep's clothing of professional discretion.257 For this reason, some level of independent inquiry into the reasonableness of the state program's determinations is probably appropriate, notwithstanding the Supreme Court's stated deference to the "State's treatment professionals."258

On the other hand, as the Supreme Court's L. C. opinion notes, purely administrative discretion must be respected at some level.259 Given the fact that an individual's conditions change, absent frictionless transfer between programs, there will often be individuals waiting for transfers. Further, difficult judgments of whether and how much to deinstitutionalize can bind administrators. The Integration Regulation has been cited for the proposition that a state may not keep people in institutions when community care is appropriate,260 and for the proposition that a state may not release an individual into community care when they require institutional care.261 Thus, states may be caught between the Scylla of not shifting to community care enough and the Charybdis of shifting too much. This strait would counsel towards some deference to administrative discretion. However, the weight of the case law suggests that such discretion will be tightly fettered. Unfettered administrative discretion could operate as a shield for neglect, the very thing disability legislation intends to remedy.262 But even if a court rejects administrative discretion as an essential feature, thus leaving a public entity defendant without an institutional integrity argument, that defendant could still assert fundamental alteration defenses in terms of magnitude.

C. Magnitude Arguments

Arguments respecting the kind of change may give way to, or at least be strengthened by, arguments respecting the degree of a change. If courts fail to grant relevant deference to professional, regulatory, and administrative discretion, and thus reject a finding of fundamental alteration based on program integrity arguments, defendants may still pursue arguments of magnitude. A large class action suit presents these magnitude arguments most strongly, and thus presents a greater likelihood that a court will find a fundamental alteration. First, accommodating the plaintiffs in a large class would presumably result in a greater financial burden.263 Second, accommodating a large class would present a greater risk of broad deinstitutionalization.264 The intermediate appellate court in L. C. highlighted the distinction of the class action suit context:

We note that this case is not a class action, but a challenge brought on behalf of two individual plaintiffs. Our holding is not meant to resolve the more difficult questions of fundamental alteration that might be present in a class action suit seeking deinstitutionalization of a state hospital.265

Notably, the courts in L. C. and Helen L. required community care for a combined total of three individuals. Thus, in those cases defendants' arguments relating to the magnitude of a change rang quietly.266

The small numbers involved in the L. C. and Helen L. cases are not shared in all cases, however. The first reported class action suit in the ADA Title II community-care context was Conner v. Branstad.267 In Conner, a district court held in the context of a class action suit that Title II did not require community care for disabled individuals.268 The court held with limited reasoning that Iowa was not required to create alternative communitybased services because Title II does not require "fundamental" or "substantial" modifications.269 Since Conner, recent, large class actions such as Kathleen S. and Cramer v. Chiles have gone the way of the plaintiffs. The forthcoming discussion uses existing precedent to articulate potentially successful magnitude arguments.

1. Financial Burden

First among the magnitude related arguments is cost. According to the following analysis, a financial burden may contribute to a finding of fundamental alteration under Title II, provided that (1) the burden is significant (i.e., it changes the substance of the program); (2) the alteration requires more than merely a shift of funds from one item to another within an agency's budget; and (3) facts support the claim. Each of these would be more likely in a large class action suit.

a. A Cost Defense Accompanies Title II Through the Backdoor

The regulations and legislative history do not clarify the availability of a cost defense in the context of community-care cases, but the weight of judicial authority counsels towards the recognition of such a defense. The Supreme Court's opinion in Olmstead v. L.C. removed any doubt about the existence of a cost defense; courts are explicitly instructed to "tak[e] into account the resources available to the State."270 Whereas the existence of a cost defense is clear, its origin is less so.

Regulations under the Rehabilitation Act and the portions of Title II-B regarding communication and architectural barriers have led courts to recognize two primary defenses to claims under those sections. In addition to the "fundamental alteration" defense, which typically operates to limit required changes to those that would not compromise a program's integrity,271 the "undue burden" defense allows defendants to argue that the accommodation sought by the plaintiff is simply too costly to bear. However, the DOJ, following congressional instruction, included only the fundamental alteration defense in the regulations specifying the scope of the Integration Regulation.272 At least one commentator has thus argued that a cost defense should not constrain the operation of the Integration Regulation.273 On the other hand, the DOJ itself has applied the undue burden defense to the integration context in providing examples of the limits of the Integration Regulation.274 The apparent contradiction breeds confusion.275 Still, the weight of authority even before L.C. embraced at least a limited cost defense. Despite the unclear legislative history (or perhaps because of it), the cost defense has entered the community-care discussion through the backdoor of fundamental alteration; a financial burden is not required where it would fundamentally alter the program. This treatment has some support from opinions outside the community-care context.276 The exercise of defining the cost defense by reference to fundamental alteration is inherently circular-the very task at hand is to define the fundamental alteration defense by reference to costs. The recognition of the undue burden defense as a subset of the fundamental alteration inquiry was set forth explicitly in Messier: "To establish [the fundamental alteration defense], the defendants must prove that plaintiffs' requested relief would: (1) alter the essential nature of its program; or (2) impose an undue burden or hardship in light of the overall program."277 In Wasserman, the district court noted that that "undue financial burden must be considered in analyzing the reasonableness of a requested modification accommodation" and determined that issues of material fact existed as to the relative cost of institutionalization as compared to community-based treatment.278 The Supreme Court shared the express recognition of cost as an element of the fundamental alteration defense. The L.C. opinion expressly instructs district courts to consider both "the cost of providing community-based care to the litigants" and also "the range of services the state provides others with mental disabilities, and the state's obligation to mete out those services equitably."279 This formulation of the cost defense accords with the Department of Justice view, which was set forth in its amicus brief in L. C.280

The Third Circuit's treatment of the cost defense was less clear. In Easley, the court apparently embraced the undue burden defense when determining that the use of surrogates would be unreasonable because it