On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 93-cv-02911)
Before: SLOVITER, Chief Judge, SCIRICA and McKEE, Circuit Judges
(Filed: October 10, 1995)
In this case we must decide whether the policy of Pennsylvania's Department of Public Welfare requiring intent to establish domicile discriminates under section 504 of the Rehabilitation Act, 29 U.S.C. Section(s) 794(a) (1988), against a profoundly retarded individual on the basis of his handicap. The district court found the policy discriminatory and required the Department of Public Welfare to fund retardation services for the plaintiff Nikitas Juvelis. We will affirm.
Nikitas Juvelis (Niki) is a profoundly retarded and physically handicapped 33 year old citizen of the United States. *fn1 Although Niki's parents are also United States citizens, they have lived in Venezuela since Niki's birth. When Niki was fifteen, his parents placed him, at their expense, in the Melmark Home, a residential home for the handicapped in Delaware County, Pennsylvania. He has lived there continuously for the past eighteen years. Prior to Niki's placement in Melmark, his parents had no connection to Pennsylvania. In recent years, Melmark's costs have gone up sharply, while Niki's parents have gotten older and their income has declined. The Juvelises anticipate that soon they will be unable to afford Niki's fees at Melmark. *fn2
Pennsylvania's Department of Public Welfare (DPW) provides benefits to retarded persons, which can include payment for placements in facilities like Melmark. The Juvelises applied for such coverage for Niki. DPW policy gives the counties primary responsibility for determining eligibility for mental retardation services. But the counties may not expend state funds to provide services for a person who is not a state resident. Niki was turned down for coverage because, for funding purposes, he was not considered a bona fide resident *fn3 of Delaware County or of Pennsylvania. This residency determination was made on the basis of DPW policy, but that policy is nowhere codified as a rule or regulation.
Generally, the policy on residency requires the county to determine the domicile of the individual prior to placement. In this case, because Niki was a minor before placement, he was a resident of his parents' domicile, Venezuela. When an individual reaches majority, DPW presumes he retains his parents' domicile unless and until he establishes a new one. Proof of change of domicile has two components: physical presence plus an intent to remain. Niki has physical presence in Delaware County, Pennsylvania. What he lacks is the mental capacity to form an intent to remain. The crux of this case is whether a residency requirement that depends on mental capacity is discriminatory in a way that violates Section(s) 504 of the Rehabilitation Act. To answer this question, we must determine whether residency is essential to DPW's program and whether Niki can satisfy the residency requirement under a reasonable modification to DPW's policy. Easley v. Snider, 36 F.3d 297, 300 (3d Cir. 1994). "The test to determine the reasonableness of a modification is whether it alters the essential nature of the program or imposes an undue burden or hardship in light of the overall program." Id. at 305. Accordingly, DPW must show that it cannot employ an exception to its residency policy that would accommodate profoundly retarded persons without incurring an undue burden or modifying the essential nature of its program.
Section 504 of the Rehabilitation Act provides:
"No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . ." 29 U.S.C. Section(s) 794(a) (1988 & Supp. IV 1992).
As a recipient of federal financial assistance, DPW is subject to the requirements of Section(s) 504. DPW maintains that Niki is not "otherwise qualified" for inclusion in Pennsylvania's mental retardation program because he is not a Pennsylvania resident. The Juvelises contend that Pennsylvania's policy for determining residency makes Niki's exclusion "solely by reason of" his retardation. DPW counters that it cannot modify implementation of its residency requirement in a way that would accommodate Niki's handicap without making fundamental changes to its program that would impose an undue burden on the Commonwealth.
The Juvelises sued the Secretary of DPW alleging the policy violated Section(s) 504 of the Rehabilitation Act, his constitutional right to travel, and his constitutional rights to procedural and substantive due process. Because there was no dispute as to any material fact, the district court referred the cross motions for summary judgment to the magistrate judge.
The magistrate judge issued a report and recommendation that plaintiff's motion for summary judgment be granted on the ground that DPW policy violated the Rehabilitation Act. *fn4 Both parties filed objections. The district court approved the magistrate judge's finding that DPW's policy violated Section(s) 504, and, without setting a timetable, ordered DPW to develop and implement a mechanism that would allow the Commonwealth to apply its residency requirement in a ...