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Black v. Department of Mental Health9/11/2000
t when building they occupied had to be shut down, alleging this interfered with their eventual chances for release; preliminary injunction denied because plaintiffs failed to show discrimination by reason of their disability and because the integration mandate did not apply].)
The other primary basis for appellant's position comes from Cable, supra, 973 F.Supp. 937. The plaintiff in Cable was the medical chief of staff at Fairview Developmental Center. He sued California's Department of Developmental Services, alleging he suffered unlawful retaliation because he protested certain actions which violated the ADA. (42 U.S.C. ยง 12203(a).)
In order to prove his claim, the plaintiff in Cable had to show that the actions he protested were in fact ADA violations. He alleged that the State's legislative policy called for "mainstreaming" the developmentally disabled from hospitals to "natural community settings." Under the terms of a class action settlement, the State was obliged to reduce by one-third the population of its developmental centers within five years. In doing so, plaintiff alleged, the State chose the most severely developmentally disabled persons for community placement because they were either unable to object to the placement or did not have parents or guardians to object on their behalf. Pointing to studies which showed a higher death rate among disabled persons placed in community settings, plaintiff also alleged that many of the community facilities where those patients were placed were unable to adequately care for the patients.
The court denied the State's motion to dismiss, finding that plaintiff alleged discrimination based on the transferred patients' severity of disability. We have no quarrel with this portion of the Cable decision. As that court noted, the plaintiff alleged active discrimination against persons based on the severity of their disabilities in order to foist upon them an inadequate level of care. Discrimination among groups of disabled persons is actionable under the ADA. (Helen L., supra, 46 F.3d at pp. 335-336.)
We part company with the Cable court in regard to a separate holding-that the inadequate provision of services by itself also violated the integration mandate. The plaintiff alleged he opposed the State's community placement program because it failed to adequately account for the individual needs of patients in making community placement decisions. Rejecting the State's contention that the ADA applied only to discriminatory conduct, the court held, "Title II [of the ADA] requires public entities to administer services in the `most integrated setting appropriate' regardless of whether that setting is an institution or a community home." The failure to appropriately place the patients therefore violated the integration mandate. (Cable, supra, 973 F.Supp. at p. 941.)
Not only was this holding dicta, it was reached without discussion, analysis or consideration of the Attorney General's explanatory preamble to the integration mandate or of Congress' findings and expressed purposes in enacting the ADA. If the mere failure to provide an appropriate treatment setting is enough to violate the integration mandate, that would effectively delete the phrase "most integrated setting" from section 35.130(d), changing it to state that public entities "shall administer services, programs, and activities in the . . . setting appropriate to the needs of qualified [disabled persons]." This renders the phrase "most integrated setting" in section 35.130(d) surplusage while creating the absurd result of converting an incorrect treatment decision into discriminatory conduct which is actionable under the ADA. The rules of statutory interp
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