WHEREAS, the official policy of the Commonwealth of Pennsylvania is to provide services to individuals with disabilities in the most integrated setting appropriate to their needs pursuant to state and federal law, specifically the Americans with Disabilities Act (ADA), 42 U.S.C. ยง 12101, et seq.  Pennsylvania Protection & Advocacy v. Dep't. of Public Welfare, 2005 WL 674500 (3rd Cir. (Pa.) at *1;
WHEREAS, the Commonwealth, through its Department of Public Welfare, announced that it plans to close Harrisburg State Hospital and Altoona Center, two state-run institutions, over the next 18 months consistent with this policy;
WHEREAS, the Department of Public Welfare has engaged in a lengthy planning process to ascertain both the need to serve individuals with disabilities in the community rather than in institutions and the resources necessary to effectuate that need which culminated in the decision to close Harrisburg State Hospital and Altoona Center and to transfer most of the residents to community-based mental health or mental retardation living arrangements;
WHEREAS, two bills, S.B. 229 and H.B. 201 (The Moratorium Act), have been introduced in the General Assembly which have the effect of impeding progress in moving people with disabilities from institutions and into the community because, if adopted by the General Assembly, a moratorium on any institutional closure would be imposed while the Legislative Budget and Finance Committee conducts a study of the closure of these institutions which could take a minimum of one year to complete;
WHEREAS, advocates for persons with disabilities, including the Mental Health Association in Pennsylvania, the Pennsylvania Mental Health Consumers Association, and Pennsylvania Protection & Advocacy as well as the Association of Mental Health and Mental Retardation Administrators are opposed to the two bills;
WHEREAS, in Olmstead v. L.C., 527 U.S. 581 (1999), the U.S. Supreme Court unequivocally held that the ADA's integration mandate prohibits the unnecessary segregation of individuals with disabilities wishing to leave facilities and requires states to provide community alternatives for those individuals if: (1) the individuals have been determined by their treatment professionals to be appropriate for community placement, and (2) it would not be a fundamental alteration for the state to provide community services.  The Court of Appeals for the Third Circuit has recently interpreted Olmstead in two important decisions-- Frederick L. v. Dep't of Public Welfare, 364 F.3d 487 (3d Cir. 2004), and Pennsylvania Protection and Advocacy, Inc. v. Pennsylvania Dep't of Public Welfare, __ F.3d __, 2005 WL 674500 (3d Cir. Mar. 24, 2005).  Together, these decisions establish that Pennsylvania can only avoid liability for its failure to implement the ADA's integration mandate if it has and is actually implementing a plan to develop community services for people who are unnecessarily institutionalized;
WHEREAS, the Moratorium Act conflicts with, and therefore would be preempted by, the ADA;
WHEREAS, the Moratorium Act also conflicts with the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution since a State is (1) prohibited from restraining institutionalized individuals "except when and to the extent professional judgment deems this necessary to assure safety or to provide needed training" and (2) required to provide these individuals with professionally recommended training to ensure safety and freedom from undue restraint.  Youngberg v. Romeo, 457 U.S. 307, 322-24 (1982).  These rights have been construed to require states to implement the professional judgment that institutionalized persons be discharged to appropriate community-based placements.  See Clark v. Cohen, 794 F.2d 79, 87 (3d Cir.), cert. den'd, 479 U.S. 962 (1986).  Since the Moratorium Act will prevent the implementation of professional judgment of treatment professionals that residents of Pennsylvania's institutions should be discharged to the community when appropriate, it violates the Fourteenth Amendment.
NOW THEREFORE, BE IT RESOLVED, that the Board of Governors of the Philadelphia Bar Association opposes S.B. 229 and H.B. 201.
AND BE IT FURTHER RESOLVED that the Board of Governors authorizes the Chancellor or his designee to communicate the opposition to S.B. 229 and H.B. 201 to the Philadelphia delegation to the General Assembly as soon as practicable.