Transcript

IN THE SUPREME COURT OF THE UNITED STATES

TOMMY OLMSTEAD, COMMISSIONER, GEORGIA DEPARTMENT OF HUMAN RESOURCES, ET AL., Petitioners v. L.C., BY JONATHAN ZIMRING, GUARDIAN AD LITEM AND NEXT FRIEND, ET AL.

No. 98-536

April 21, 1999

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:07 a.m.

APPEARANCES:

BEVERLY P. DOWNING, ESQ., Senior Assistant Attorney General, Atlanta, Georgia; on behalf of the Petitioners.

MICHAEL GOTTESMAN, ESQ., Washington, D.C.; on behalf of the Respondents.

IRVING L. GORNSTEIN, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; for the United States, as amicus curiae, supporting the Respondents.

PROCEEDINGS

10:07 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument now in No. 98-536, Tommy Olmstead v. L.C., by Jonathan Zimring.

Ms. Downing.

ORAL ARGUMENT OF BEVERLY P. DOWNING ON BEHALF OF THE PETITIONERS

MS. DOWNING: Mr. Chief Justice, and may it please the Court:

Title II-A of the Americans with Disabilities Act, that general language prohibiting discrimination by reason of disability, cannot impose a least restrictive treatment requirement on the State's provision of hospital services to its disabled citizens.

By reenacting essentially the same language of section 504 of the Rehabilitation Act of 1973, Congress did not suddenly impose or allow the Department of Justice to impose de-institutionalization on the States. Georgia believes that this expansive new interpretation of the ADA is precluded by the language of the statute, is precluded by the Court's prior interpretations of section 504, would require a plain statement in the statute which is undeniably missing, and that the Federal Government's inconsistent interpretation of its integration regulation is not entitled to deference.

Here, the general language of the statute prohibiting discrimination by reason of disability is being used to bar the provision of hospital services offered on a voluntary basis unless Georgia, at the same time, fully funds all demand for another service, a community bed. But by providing a person with a hospital bed and by asking the person to wait a short time until a community bed is available, Georgia does not exclude a person by reason of disability, neither does Georgia discriminate against her by reason of disability.

What Georgia did here was simply to provide hospital services to two mentally disabled patients. There appears to be little debate as to the involuntary treatment that was provided to these patients when they were eminently dangerous to themselves or others and did not consent to that treatment. It would be illegal under Georgia law, the Constitution, and presumably the ADA to confine them involuntarily without a medical and dangerousness justification. And Georgia did not do that, and there appears to be little contention that they did.

QUESTION: Ms. Downing, just to clarify the dimensions of this case, do I understand correctly that you are saying these two women are appropriately placed as far as medical needs are concerned in a community-based facility? So, it's not that they need to institution. You're not challenging that on the facts, but you're saying they must wait their turn on line. Is that -- is that your position? Or are you saying they may not qualify for community-based facilities?

MS. DOWNING: Your Honor, at the point that the patients were placed, they did -- they were appropriate for placement in the community and they did have to wait a short time in order to make their way up the waiting list. There were times prior to the time that they were placed when the parties would dispute whether they were appropriate for community treatment or not, but at the time that they were placed and for a short time before, we would agree that they were appropriate.

QUESTION: Your position is -- is as I -- if I understand it correctly, is -- is much further than that. I -- I understood it to be that it's up to the State to decide what voluntary facilities it will make available for the -- for the mentally ill, that if the State chooses to have only institutional facilities, it may do that. And if it chooses to have, in addition, community-based facilities, it may have them in addition, but it will be up to the State how many people it will put in those -- allow to go into those community-based facilities, because we're talking here about voluntary admissions. Right?

MS. DOWNING: Your Honor, it's our understanding that -- that it's actually the Government's position that the State would not be required to have community placements. In -- in Georgia, there are community placements.

QUESTION: I'm not saying whether there are. Do you think Georgia is required to have community placements by this statute?

MS. DOWNING: We think that if Georgia is required to -- to expand their community placements by this statute --

QUESTION: That's not the question I asked. Is Georgia required to have community placements?

MS. DOWNING: We don't think -- no. We don't think that the statute requires Georgia to have community placements.

QUESTION: I didn't think you said that. Okay.

MS. DOWNING: That's correct.

QUESTION: Now, could -- as I understand it, the act provides that the Attorney General will promulgate regulations, and it goes on to say that those regulations will be consistent with the Disabilities Act and with regulations promulgated under section 504 of the Rehabilitation Act. Is that right?

MS. DOWNING: That's correct.

QUESTION: And there was a regulation adopted under section 504 saying that no otherwise qualified handicapped individual would be excluded from participation and/or denied the benefits of or subjected to discrimination, and that services had to be provided in the most integrated setting appropriate to the needs. Is that true under the Rehab Act?

MS. DOWNING: That's correct. Under the --

QUESTION: And the same regulation was then adopted by the Attorney General under the Disabilities Act.

MS. DOWNING: That -- that's correct.

QUESTION: Is there any definition of integrated setting? Do we know what that is?

MS. DOWNING: Well, what we know is that the original integration regulation was promulgated by HEW in 1977, and that the rule -- the notice at that point described it as providing access to treatment. The examples that it gave were that a Medicaid provider would need to make its services available to the handicapped. For instance, a doctor would need to have a ramp, a wheelchair ramp, to get into the facility. That was in 1977.

In 1978, the -- a similar version was repromulgated as the coordination regulation. And again, the examples that were given there did not ever mention least restrictive treatment or anything like it.

QUESTION: Well, this -- do you challenge the regulation that was adopted by the Attorney General, or do you challenge the interpretation of that regulation? Do you say that the Attorney General lacked authority to adopt that regulation?

MS. DOWNING: We don't say that the Attorney General lacked authority to promulgate it in the way that it was interpreted at the time. What we say is that the interpretation that it's being given today, as of 1994 in the Helen L. case for the first time, is a reversal of the prior interpretation.

QUESTION: Well, so what this case actually turns on, when you sort all other things around it, is the meaning of the regulation saying it must be in the most integrated setting appropriate. Is that right?

MS. DOWNING: Yes.

QUESTION: Is that what it boils down to?

MS. DOWNING: That's what it boils down to, Your Honor, and that the new interpretation of the regulation actually would be precluded by the language of the statute, which requires discrimination by reason of disability. It's our position that discrimination by reason of disability applies to -- requires even-handed treatment of the handicapped relative to the non-handicapped. That was the primary focus of the act.

QUESTION: May -- may I ask you about that? Because it seems to me that your argument in this respect assumes that there is some kind of uniform and unvarying class of persons who are handicapped. And it seems to me that that is not so. There are all sorts of handicaps. There are handicaps of all sorts of degrees, and -- and recognizing the degree that is involved, let -- let me put this question to you and ask you to -- to explain your position in relation to it.

Let's assume that there is a class of handicapped persons who, because of their handicaps, are simply unsuited to live outside of an institution. Assume secondly that there are a group of handicapped individuals who can perfectly well live outside the institution despite the handicap. And, of course, assume, three, there's a general population of people who don't live in institutions.

If the Government treats the second group, those whose handicaps are irrelevant to institutionalization, the same way it treats the first group, those who have to live in institutions because of the handicap, isn't that -- and they do so on the grounds that there is a handicap, even though it does not require institutionalization, in that case isn't the Government engaging in the discrimination on the basis of handicap to the -- in -- in relation to the second group?

MS. DOWNING: We would say no, that the --

QUESTION: Why not?

MS. DOWNING: -- the second group which you posited needs a certain level of treatment, that this level of treatment can be provided appropriately in the hospital and that the person can benefit from that treatment provided in the hospital.

QUESTION: So, you're saying that if hospitalization would provide some appropriate treatment, that in effect renders irrelevant the fact that an individual can live outside the institution and presumably get the treatment on a -- on a day care basis or something of that sort. That's basically your argument.

MS. DOWNING: We wouldn't say that it renders irrelevant. However, we would say that the mere fact that the person could also be treated in the community would not make hospital treatment discriminatory. In fact, the very structure of the Medicaid Act presumed that this was the case, and under the Medicaid Act, Congress has always favored institutional treatment over community treatment.

QUESTION: Well, do you accept the position, just as a matter of statutory interpretation, that -- I'll assume for -- for my question that your -- your answer gives one version of -- of what might be regarded as discrimination. I'll -- I'll accept your answer as a -- as a possible interpretation.

Do you also take the position that your interpretation is the only possible way of construing discrimination within the statute? In other words, do you say that -- although your answer is a legitimate one, do you also say that in my hypothesis it -- it simply would not be a legitimate interpretation of the statute to say on my hypothesis that there was discrimination because the middle group was treated like the first, not the third? Is -- is my interpretation impossible?

MS. DOWNING: Well, I believe that --

QUESTION: Or unreasonable?

MS. DOWNING: Respectfully I believe that it is, that --

QUESTION: Why is it unreasonable?

MS. DOWNING: It presumes that the person's disability is irrelevant to their hospitalization.

QUESTION: Well, that's right. That's the hypothesis of -- of the very question.

MS. DOWNING: Respectfully we would say that -- that the person's disability is -- is directly relevant to their hospital treatment and the --

QUESTION: Well, in other words, you're changing my question. But my -- let's -- let's just stick to my question for a minute. Assuming there is this middle group of individuals who have handicaps in some respect but whose handicaps do not require hospitalization any more than I require hospitalization or you do, assuming there is such a middle group, would it be a possible reading of the statute, a reasonable reading of the statute to say that the Government discriminates against them when it says we're going to put you in the hospital anyway, even though you don't have to be there? Is that a possible -- possibly reasonable reading of the statute?

MS. DOWNING: In -- in an involuntary setting, that would be a reasonable reading of the statute, where there's involuntary treatment being provided or where the person is being confined against their will involuntarily and there were no medical reason for it and the person were not dangerous to themselves or others, yes, that would certainly violate the ADA.

QUESTION: But --

QUESTION: It would violate the Constitution. You wouldn't need the ADA to prevent that from --

(Laughter.)

MS. DOWNING: That's right.

QUESTION: But the -- the voluntary character of the hospitalization then is what -- what takes us out of -- of the situation that you and I have just been describing?

MS. DOWNING: Well, it's the voluntary -- the voluntariness of it is certainly a very key part of it.

QUESTION: But is -- is that -- does the -- does the voluntariness, in effect, negate the possibility of discrimination on the argument that, look, if they're doing this voluntarily, you can't say that the Government is discriminating against them because they themselves are responsible for the -- for the treatment that they're receiving. Is -- is that the nub of the argument?

MS. DOWNING: That -- that's one -- one aspect of the argument. There -- another aspect of the argument is that the person in the hospital can leave the hospital. This person was not confined in the hospital, and in fact she did leave the hospital during the day and received community treatment.

QUESTION: Well, but their point was that if they left the hospital, then they -- under your scheme, they couldn't get any treatment at all.

MS. DOWNING: No.

QUESTION: Wasn't that their --

MS. DOWNING: No.

QUESTION: Wasn't that their point?

MS. DOWNING: No. Excuse me. Actually in fact she did leave -- one of these patients left the hospital during the day and then returned at night.

QUESTION: No. I meant if she left the hospital permanently. If she said, I don't want to stay in the hospital at all.

MS. DOWNING: It's also -- that's also untrue under the facts of this case. Under the facts of this case --

QUESTION: What we're trying to do is to test what your legal theory is, and it's still not quite clear to me.

Suppose you have a classification of disabled people who are partially paralyzed and need catheterization during the day. They need some fairly constant care, but it is provided and can be provided in an integrated setting. Assume that. Then assume that the State says, any blind person is ineligible for this integrated treatment and must remain in a hospital. Is -- is that a permissible judgment?

It seems to me that you are saying that it is.

MS. DOWNING: No. We would not be saying that. If that would actually reach what we say would be covered by the ADA, which is that -- that services that are available to one class of disabled cannot be excluded from -- by another class based on the disability itself. We would --

QUESTION: I thought that's what the respondents were saying.

MS. DOWNING: No.

QUESTION: And if you say, well --

MS. DOWNING: No.

QUESTION: -- there are -- there are reasons why they should be in the hospital because it's involuntary medication sometimes in some context, then that's quite different.

I thought that you were saying that the State has the capacity to decide what kind of treatment it will grant to discrete kinds of disabilities, and if hospital treatment is in -- in a sense excessive treatment, so be it. The State can make that distinction disability by disability. That's the way I read your brief.

MS. DOWNING: The State's position is that if a person were excluded from hospital treatment or community treatment by reason of a disability, for example, if the person had AIDS and were prohibited from going into the hospital or if were prohibited going into community treatment because of that disability, that would violate the ADA, and that would violate it under the terms of the statute which require that a person not be excluded by reason of disability.

QUESTION: I guess the person who's not admitted to the hospital because the State determines that the condition is not serious enough to be treated in the hospital is not being discriminated against because of his disability. He's being discriminated against because of his lack of disability, isn't he?

MS. DOWNING: Well, Your Honor, I believe that whenever you get into decisions about treatment of the disabled, every -- every decision is going to be made by reason of the person's disability. Now, that does not mean that every -- every treatment decision is discriminatory, and nor does it mean that the ADA applies.

QUESTION: No, but he's not -- he's being excluded from -- from institutional treatment in the hypothetical I gave you not because of the disability he has, but because he does not have an additional disability. Right?

MS. DOWNING: The -- the person must be qualified to receive the services. The person must meet the requirements for qualification --

QUESTION: Does the State have to treat all disabilities?

MS. DOWNING: No, the State does not. The State does not have to treat all disabilities under the ADA.

QUESTION: Now, does it therefore discriminate against people on the basis of their disability if it offers no treatment for -- I don't know -- dyslexia?

MS. DOWNING: No. That would not constitute discrimination.

QUESTION: If it says half the people who have dyslexia have to sit at a special table, I guess that would be discrimination, wouldn't it? We have the special dyslexic table or we have the special table where all the people who want to eat in the State cafeteria who are in wheelchairs have to sit. Is that discrimination?

MS. DOWNING: That would -- that would discriminate, yes.

QUESTION: All right. Now, if that's so, then suppose you said all the people who have broken legs or whatever, if they want library books, they have to go to a special room where we lock them up overnight. I mean, that's clearly wrong.

MS. DOWNING: Certainly.

QUESTION: All right. Now, what's -- what they're saying I think is that a person who clearly shouldn't receive treatment for a mental disability in that special room, it's just as much discrimination to lock them up in the special room as if they went there to get library books because, after all, there's no relation to being in that special room and their mental disability.

MS. DOWNING: Well --

QUESTION: It's -- there's no medical reason for putting them there. There's no more medical reason for putting them there than there is a medical reason for putting a person with a broken leg there. And if there's no medical reason for putting them there, why is it any different to say you get mental treatment in that room than to say you get library books in that room? There's no relationship between the nature of the room and the treatment that's being handed out.

At least, that's how I understood it. I may not understand it fully, but that was my understanding. Where there's no relation between the treatment and being in the special room, you can no more keep the mentally ill person there than you could a person who wanted any other kind of service.

MS. DOWNING: Your Honor, in response to an earlier point that you made in your -- in what -- in your hypothetical, again you referred to locked, that they're locked in the room. In this case --

QUESTION: I'll assume they're not.

MS. DOWNING: That they're not locked.

QUESTION: Let's just call -- just call it a special room, and by that we'll mean an institutionalized room.

MS. DOWNING: I believe where the State would disagree and the State's position is different than that is that it cannot be assumed that because one option is appropriate -- and that's community care -- that another option, which is hospital care is not appropriate.

Now, Congress has spoken quite clearly on this in the Medicaid Act. Congress has highly regulated and pumped billions of dollars into the institutional care of individuals and has only allowed community care as a pilot project, as a let's try it out and see how it works project. The State has to get special permission under the Medicaid Act in order to provide those waiver beds.

QUESTION: Ms. Downing, do you have a special room for broken legged people? I mean, is -- is that the proper analogy? I thought you had one room for everybody, and that what's going on here is that this person is saying, I don't really want this one room. I can be treated better somewhere else. You haven't established one room for broken legged people or for people with a certain type of disability, have you? You've said, if you want to get library books, this is where library books are given out.

MS. DOWNING: That's -- that's correct.

QUESTION: And here you have plaintiffs who say, I don't want to come into this one room. I can get library books, given my -- the nature of my disability, in a -- in a bigger room with more windows or something. And you're just saying, I'm sorry, we -- we don't have a bigger room with more windows. Everybody who needs library books has to come to this room.

QUESTION: But I thought in this case you had two rooms. You have the room without windows and the room with windows. And the person is saying, I'm entitled to go to the one with windows.

QUESTION: And you are saying there not only because they have a mental illness. That's -- that's how I understand your case.

MS. DOWNING: I --

QUESTION: Now, tell us if the case is --

MS. DOWNING: I would disagree with the last point. The previous points from Justice Scalia and Justice O'Connor I think fairly state the position, but that we are excluding the person from going to the second room because they have a mental disability is -- is not the case. In fact, what Georgia does is once the person is stabilized, is they do attempt to get them into a community placement.

QUESTION: Well, are you putting some extra barriers? Are you making it more difficult to get to that --

MS. DOWNING: No. No, not in any way. Georgia does not make it more difficult for them to get into the -- the second room. In fact, Georgia is providing more and more of these rooms.

QUESTION: What if there's no space? You're saying they have to wait in line. Right?

MS. DOWNING: Yes, we do.

QUESTION: But you -- you assert you could eliminate the second room entirely if you wanted to, if -- if you decide that the way the State wants to provide treatment is -- is institutionally, you're -- you're authorized to do that.

MS. DOWNING: Your Honor, that --

QUESTION: I thought you said that. Is -- is this a new question? I thought we answered that earlier.

MS. DOWNING: Your Honor, Georgia -- Georgia thinks it would be inconsistent to say that Georgia must provide as many beds in the community, once they have a program, as -- as there's demand for, and yet at the same time to say that Georgia is not required to provide those beds in the first place.

QUESTION: Which is your position, that you're not required to provide community service at all.

MS. DOWNING: Well, Georgia -- not under the ADA. We don't believe that Georgia is required to under the ADA.

QUESTION: May I ask you a question about the meaning of the word discrimination? It seems to me that the argument -- your position is discrimination means disparate treatment, treated differently. It seems to me your opponents say discrimination means unjustified disparate treatment. Am I correct in describing the -- the positions of the parties?

MS. DOWNING: Well, Georgia -- Georgia believes that unjustified disparate treatment based on disability --

QUESTION: Do you think discrimination just means unjustified disparate treatment, or do you say every disparate treatment is discrimination? What is -- what is your view of --

MS. DOWNING: Well, we don't believe that every disparate treatment is discrimination. I think this was -- this was --

QUESTION: Well, if it's unjustified disparate treatment that constitute discrimination and if there's no justification for keeping a person in the second room instead of the first, why doesn't the statute apply?

MS. DOWNING: Well, we believe that there is justification for -- for treating the person in the hospital. There has been justification for centralized treatment for policy reasons and for medical reasons.

QUESTION: But then --

QUESTION: And I thought financial reasons. I thought you said you don't have enough money to have too many community --

MS. DOWNING: And -- and financial reasons. That's -- that's correct. There have been --

QUESTION: But -- but -- if -- if you factor in the fact that it's medically reasonable and preferable to -- which is what the implication of your suggestion is, to treat in a hospital, then this whole case goes away. I -- I think we have to take the case on the assumption that the treatment can be just as effective in the integrated setting as it in -- as it is in the hospital. If you say it's more effective and -- and you can only provide the most effective treatment there, then it's a different case.

MS. DOWNING: Well --

QUESTION: What we're trying to do is to find out what is the issue you're asking us to decide, and it seems the parties are -- the briefs are not meeting the way you're -- you're presenting the case.

MS. DOWNING: It's Georgia's position that what the ADA is primarily focused on is evenhanded treatment between the handicapped and -- and the non-handicapped, that to -- it does have some application in disability services, but it does not apply with equal force in the provision of disability services. The primary purpose of the ADA is to provide in an evenhanded way the services that are available without discrimination according to disability. The primary purpose is not to require the Georgia to totally expand its community services to meet all demand, which is what the plaintiffs are suggesting.

QUESTION: Yes. Ms. Downing, let me remind you and my colleagues the -- the question presented in the petition for certiorari, whether the public services portion of the Federal ADA compels the State to provide treatment and habilitation for mentally disabled persons in a community placement when appropriate treatment and habilitation can also be provided to them in a State mental institution.

MS. DOWNING: That's -- that's correct. That's correct.

QUESTION: Well, it's correct because that's the question you presented.

(Laughter. )

MS. DOWNING: It's Georgia's position that it is reasonable for the State to ask someone to wait until a community placement is available, that that does not constitute discrimination. It is a fundamental alteration of the State's services to require the State to close down institutions and to fully fund --

QUESTION: Well, that issue is open on remand I assume.

MS. DOWNING: But we -- we think that goes to --

QUESTION: Whether it's a fundamental alteration of the State's program.

MS. DOWNING: But we think that also goes to the issue of whether there's been discrimination in the first instance.

QUESTION: Can you make that wait longer for the mentally ill than for other disabilities?

MS. DOWNING: No. No. If the person has -- meets the qualifications for the services, that they can certainly access the services when they're available.

And I would like --

QUESTION: Ms. Downing, I thought this case had gone back on remand to decide the financial, whatever it was, question --

MS. DOWNING: Well, what the Eleventh Circuit did, however, is limit the question on remand to a comparison between the cost of serving two persons in the community relative to the entire mental health budget of the State. Now, this is -- this is not a fair comparison when you have 2 persons on the numerator and 160,000 on the denominator as to cost. And in fact, the district court has already ruled on -- on that issue exactly the way the Eleventh Circuit defined --

QUESTION: You say the Eleventh Circuit sent back the wrong question.

MS. DOWNING: Absolutely. Absolutely. The Eleventh Circuit sent back the question that was always -- will always preclude the State from a meaningful defense.

And I would --

QUESTION: Why -- I opened with this question and -- and if I'm wrong about it, do tell me. I thought the State's current position is, yes, we think there ought to be two rooms. We have two rooms, but people have to stand on line because we don't -- the second room isn't large enough. I thought that was the position you were taking now and that that's compatible with the act.

MS. DOWNING: The -- the act by its terms -- the act by its terms -- there's more than one argument, obviously, we have. The -- the act by its terms we believe does preclude that interpretation. However, if you believe that it does not preclude that interpretation, then -- then we believe that the Justice Department's interpretation is not entitled to deference because it's been a total reversal.

And I would like to point out --

QUESTION: A total reversal of -- of what?

MS. DOWNING: The Justice Department -- I would like to point out that the Justice Department's position has -- has reversed in this case. In -- in the Bowen case --

QUESTION: Reversed from what? Because I'm looking at their brief and -- what was it? The Helen L. case?

MS. DOWNING: Yes. The Helen L. --

QUESTION: And they say the unnecessary segregation of individuals with disabilities is a form of discrimination prohibited by the ADA and its implementing regulations.

MS. DOWNING: Yes, and that's the first time, as conceded by the Attorney General, that they ever took that position. Prior to the time the ADA was passed, the -- the Attorney General took the position that section 504 essentially is concerned only with discrimination in the relative treatment of handicapped to non-handicapped persons and does not confer any absolute right to receive particular services or benefits under federally assisted programs.

QUESTION: Where is that from?

MS. DOWNING: That is from the Bowen case. The Court cited the Solicitor General's position, the exact language of their brief in that case. That's the position we take. That's the position that the Solicitor took in that case.

And also, in their regulatory impact statement, which was issued after the ADA was passed, they took the exact position which we're taking today, which is that title II-A essentially operates to extend the program accessibility standards of the Rehabilitation Act of 1973 to the last small, remaining portion of the public sector not covered by this standard. We agree with that. We think that the program accessibility of the community services is covered by the ADA and was covered by section 504.

The -- in the -- that analysis, the Department also said that the litigation expenses attributed to title II-A are likely to be minimal given that it imposes only the now familiar standards of the Rehabilitation Act. This is certainly not a now familiar standard to the State. This -- this application to least restrictive treatment never appeared until 1994 in an amicus brief.

And I'd like to reserve my remaining time for rebuttal, if there are no further questions.

QUESTION: There's no time left and no further questions.

(Laughter.)

QUESTION: Mr. Gottesman.

ORAL ARGUMENT OF MICHAEL GOTTESMAN ON BEHALF OF THE RESPONDENTS

MR. GOTTESMAN: Mr. Chief Justice, and may it please the Court:

In enacting the ADA, Congress declared that its overriding goal was to remove barriers that were preventing persons with disabilities from gaining access to the economic and social mainstream of American life. To that end, Congress catalogued on the face of the statute a number of practices that it thought was impeding that access, and it called these -- and this is a quote from the statute -- forms of discrimination.

First on the list was the isolation and segregation of persons with disability from the social mainstream of American life. And the legislative history is clear that what Congress had in mind in putting that first on the list and referring to institutionalization as one of the places where there are serious and pervasive problems to be addressed was the unnecessary confinement of persons with mental disabilities.

QUESTION: How dependent is your argument, Mr. Gottesman, on what you describe as the legislative history?

MR. GOTTESMAN: It's I think not dependent at all. The legislative history confirms what appears in the text of the statute, and to show that, Your Honor, I would propose to look solely at the text first. The text recites isolate and segregate as a pervasive form of discrimination.

QUESTION: This isn't -- I mean, this doesn't -- this isn't isolation or segregation. It is the State offering certain treatment services. It says this is the treatment service that we have. That's quite different from saying, you know, people in wheelchairs have to be in a separate part of the room. It just happens that this is the only service we provide.

MR. GOTTESMAN: Well, Your Honor, the argument that this is voluntary, we provide the service, we happen to provide it in the locked ward of a mental institution --

QUESTION: Right.

MR. GOTTESMAN: You don't have to take the service, but if you would like the service, the only place you can have it is here.

QUESTION: Well, now, in this case we do not have a locked ward.

MR. GOTTESMAN: Yes, we do, Your Honor.

QUESTION: Well, according to counsel for the petitioner, these particular individuals were permitted to leave, or at least one of them, during the day and return at night.

MR. GOTTESMAN: No, that's not accurate, Your Honor, and let me be clear about what the record shows. One of these petitioners did try from time to time to leave, to go out into the community. She was taken by the police and brought back. Under Georgia law, even if you are a voluntary, that is, not a statutorily committed person, but a voluntary entrant into this institution, you are not free to leave at will to come and go. You can apply for release and the State will be obliged to release you after 72 hours, but you are --

QUESTION: So, you disagree with the description given by counsel for the petitioner of the --

MR. GOTTESMAN: Totally, Your Honor.

QUESTION: -- conditions.

MR. GOTTESMAN: Totally. These were locked wards. There's --

QUESTION: They were locked, but to say it's locked is not to say that it's involuntary. She could get out at any time that she wanted.

MR. GOTTESMAN: She could --

QUESTION: It took 72 hours.

MR. GOTTESMAN: Yes.

QUESTION: She had to give them 72 hours' notice that I no longer want to be here --

MR. GOTTESMAN: That's right.

QUESTION: -- whereupon she was free to leave.

MR. GOTTESMAN: She was free to leave and would not receive any of the services that she needed.

QUESTION: And one -- one of these -- one of these -- respondents was -- was in -- in a community location for some time, wasn't she?

MR. GOTTESMAN: Immediately before suit was filed, for a period of a few weeks. That's correct.

QUESTION: Paid for by the State.

MR. GOTTESMAN: That's correct.

QUESTION: And -- and it took -- it took a full-time person living with her to make that treatment effective. Wasn't one of them living with a full-time attendant?

MR. GOTTESMAN: One of them was living in a place with several full-time attendants for a very brief time, but then that was withdrawn.

But let me talk --

QUESTION: I mean, that's pretty expensive. I --

MR. GOTTESMAN: No. It's actually cheaper.

QUESTION: I guess that's community treatment, but it's pretty expensive.

MR. GOTTESMAN: Well, it's cheaper, Your Honor, and I -- I do want to spend a minute on why it's cheaper.

Actually it may be important to define what the service here. The service is not housing, and the -- the housing, whether in the institution or in a community facility is paid for by the patient out of Social Security disability checks. That's not the service.

The service that's being provided here is what is generally called habilitation. It is a form of training and supervision. People with developmental disabilities need to learn how to do a variety of things in order to function independently in society. That's an educational function. While they are learning that and until they have achieved the capacity to perform on their own in society, they need a certain modicum of supervision as well. And so, the service is a people-provided service.

There is no dispute -- and Georgia concedes that it is cheaper to provide that service to people in community --

QUESTION: In a way that's what's bothering me --

MR. GOTTESMAN: Pardon?

QUESTION: -- is if I say what is -- maybe you can say something to reassure me. What bothers me is this, that in the APA brief, they say without deinstitutionalization there would be 800,000 people in institutions, but there are only about 76,000. Well, many of those 76,000 must really need to be in institutions.

MR. GOTTESMAN: Yes.

QUESTION: And so, what worries me about your position is writing something that, as it really works out in the world, leads a lot of the people who need to be in institutions to be out, abandoned in the streets. Now, the reason that that is possible in my mind is because once you say the law requires you to put people in halfway houses, if you say that's appropriate, but appropriate is a term that we want medical people to decide, not judges.

MR. GOTTESMAN: Correct.

QUESTION: And so, I'm suddenly worried in areas of uncertainty, like your clients here who have been in and out because they had threats to kill themselves or others from time to time, and then sometimes -- that's the real world. Sometimes they're in, sometimes they're out. It's serious, complicated, technical and fluctuates.

And on your side, can you say something to assure me that -- that if you won, that wouldn't suddenly lead to a lot of people being thrown out of institutions who ought to be there?

MR. GOTTESMAN: Well, the first reassurance is that in this case the State's own professionals said that these people could appropriately be served in the community.

QUESTION: It's the rule of law that I fear --

MR. GOTTESMAN: And the question is, to what extent would deference be owed to the State medical professionals in cases where, unlike this one, they said, we don't think this person can be appropriately served in the community?

QUESTION: Can we go back one step to have this clear, this basic question clear?

In your view, under the statute, is the State required to have any community-based facilities? Suppose the State says, some people we know are going to need institutionalization. We're going to provide just the one room. Is there any obligation under the ADA for the State to do more than have institutional care?

MR. GOTTESMAN: We would say yes, Your Honor. We're not clear whether the Solicitor General would say yes. And let me explain why.

The applicable regulation, which Congress virtually dictated that the Attorney General adopt says, a public entity shall administer services in the most integrated setting appropriate to the needs of qualified individuals.

Now, we would concede the State doesn't have to provide services at all. Nothing in the ADA says you have to provide mental disability services. But what the statute and what this regulation that Congress dictates says is if you choose to provide the services, you must provide them to individuals in the most integrated setting appropriate to their needs.

QUESTION: May I --

QUESTION: But --

QUESTION: -- services are. I think if the State would say, here are the services -- is -- is an institution for people who want -- and -- and that institution has to be as integrated as possible. You can't make people in wheelchairs sit at one -- at one end of the room. But the service is an institution for treatment of these people.

MR. GOTTESMAN: Well, Your Honor, if one -- one can definitionally negate entirely this provision. If one does that --

QUESTION: I don't think that negates it entirely. You cannot segregate people in wheelchairs.

MR. GOTTESMAN: It is not, and the State has not argued that the service in this case is institutionalization. The service is the habilitation that the people need.

QUESTION: Mr. Gottesman --

MR. GOTTESMAN: The question is where it's going to be provided and that's what --

QUESTION: May I ask, if you've finished your answer to Justice Breyer's question, because I'm also concerned about the possibility that if we adopt the rule in its strongest form that you advocate, that the States, in order to avoid the risk of liability, would have a motive and an incentive to push people out into the community that should not go in that direction. So, would you finish your answer to that?

MR. GOTTESMAN: Yes, I would like to, Your Honor. There really are two separate questions I think.

One, will the courts override the judgments of the State's own professionals, which I understood to be Justice Breyer's first question. There, this case doesn't present the question, but there is a question of the degree of deference that this Court will accord to the judgment of the State's professionals. And this Court is in control of that when such a case is presented where the patient says, I can be appropriately served outside, but the institution says, no, we don't agree. Here they did agree.

QUESTION: Where do we get the deference to professionals out of the statute?

MR. GOTTESMAN: The statute does not say how the determination will be made. This Court has, in interpreting other statutes, said that in deciding a question like this, we accord such deference as we think is appropriate to them.

QUESTION: But it won't be the patient against the State's professionals. It will be the patient's professionals against the State's professionals. I don't know any other area where we say when there's a battle of experts, the State always wins.

MR. GOTTESMAN: Well, this Court --

QUESTION: We certainly wouldn't do that if the issue were involuntary confinement.

MR. GOTTESMAN: I hope not.

QUESTION: Somebody says -- I hope not too. And the patient brings in his experts who says, you know, he's perfectly able to function outside of an institution, and the State's experts say, no, no, no, he must be locked up. You want us to say, well, that's the State's experts. They win.

MR. GOTTESMAN: Well, Your Honor, on this issue I find it hard to be arguing. And in our case the State's professionals say not only can these people appropriately be served in the community, they can be better served in the community for obvious reasons. If habilitation is designed to train them to function in the community, it's easier to give that training if they're in the community.

QUESTION: Yes, but we have to worry about other cases, not your case.

MR. GOTTESMAN: Well --

QUESTION: This isn't even a class action.

MR. GOTTESMAN: That's correct.

QUESTION: So, the question is a very pressing one, and you haven't answered it yet.

MR. GOTTESMAN: Well, this Court has in other cases said, we will give very strong deference to the judgment of the -- the institution's professionals, said that in a different context, not the ADA, in Youngberg v. Romeo. It said in --

QUESTION: But what we don't know is, Mr. Gottesman -- is how many other people the experts in the -- in the institution have -- Justice O'Connor just made the point it's not a class action. We have two individuals. How do we know that there aren't a dozen individuals who would benefit at least as much --

MR. GOTTESMAN: True.

QUESTION: -- but they haven't come to court? What you're doing is saying the people who come to court go to the head of the line.

MR. GOTTESMAN: We are not saying that, Your Honor. That is addressed in the -- in the brief for the United States.

Georgia identified in 1992 that it had 532 such persons, persons in institutions who didn't need to be there, and Georgia was saying to them, you can have this service but only if you'll agree to stay in this locked institution. Now --

QUESTION: What if you get into a situation, Mr. Gottesman, where you have what you call the professionals, which I presume means M.D.'s and so forth in the hospital, but there's a hospital administrator who's perhaps a political appointee and he -- he may disagree with the professionals or if he doesn't like what the professionals are doing, maybe he'll hire professionals who say what he wants them to say?

MR. GOTTESMAN: Well, on the first score, Your Honor, this Court in both Youngberg and in an 8 -- 504 case Arline, which also talked about deference to the State's professionals, said it has to be professional judgment that we defer to, not administrative judgment. If a hospital administrator says, hey, I like being the administrator of a great, big hospital, so I'm going to overrule the judgment of the professionals, I want to keep these people in an institution, even though they don't need to be here, that would not be something that would warrant deference.

QUESTION: Of course not, but he would hire, as the Chief Justice suggests -- you know, as sure as God made little apples, he will hire professionals who agree with him, people -- professionals who like to keep everybody in institutions.

MR. GOTTESMAN: Well, Your Honor, I'd like to think States do better than that, and I think they do. That is, this State has identified lots of people who don't need to be in institutions.

Now, this business about --

QUESTION: What it boils down to -- let's assume -- I mean, just I -- I assume there's something in Justice Scalia's suggestion. Isn't that simply a problem with which the law cannot deal beyond this point? If it gets in front of a judge, a judge is going to have to decide which professional has the more deserving credibility. There's nothing beyond that that you can do to -- to respond to -- to that problem of sort of stacking the deck, is there?

MR. GOTTESMAN: Well, this Court in Arline, which was a 504 case, said that we give very strong deference to the views of the State's professionals.

QUESTION: So, your answer to Justice Breyer's question I think boils down to this. Number one, what is -- I guess in terms of the regulation, what is appropriate to the needs is number one, an -- an issue for medical and mental health professionals.

MR. GOTTESMAN: Yes.

QUESTION: Number two, there is no presumption in favor of release. In other words, one does not go into court as a plaintiff with the benefit of a presumption that one ought to get released rather than not released.

MR. GOTTESMAN: Unless -- there's no presumption unless the State's own professionals say --

QUESTION: Right, but that's not a -- I'm -- I'm talking about a presumption apart from the testimony of professionals.

MR. GOTTESMAN: That's right. That's correct.

QUESTION: And -- and number two, the burden -- number three I guess, the burden is on the person seeking release --

MR. GOTTESMAN: Correct.

QUESTION: -- to demonstrate entitlement to release. So, that's the source of -- of what I think you've described as the deference to the -- to the professionals representing the institution.

MR. GOTTESMAN: Well --

QUESTION: Are those the three components basically?

MR. GOTTESMAN: Well, certainly those three, that is to say, that even if all professionals' judgments are to be given equal deference by the court, the plaintiff, by virtue of having the burden of proof -- I can appropriately be served in the community -- would have to be more persuasive than the State.

QUESTION: Well, Mr. Gottesman, what do we mean by the most integrated setting?

MR. GOTTESMAN: Well, the -- in the -- in adopting the regulations, the Attorney General gave us a definition of what that means, and it's printed on page 21 of our brief. An integrated setting, within the meaning of this provision, is a setting that enables individuals with disabilities to interact with nondisable persons to the fullest extent possible.

QUESTION: Well, let me ask you this. Suppose that the State had just a mental institution and no community-based facilities, but the plaintiff comes in and says, look, if the State had three attendants to be with me day and night so that I wouldn't hurt myself or anybody else, I could be outside this institution and still be getting care. And that would be the most integrated setting under your definition. Must the State do that?

MR. GOTTESMAN: Probably not. I think the answer is almost surely not, Your Honor, because it would be able to satisfy the fundamental alteration defense; that is, it would not be a reasonable accommodation to serve that person in the community. The cost would be too great.

QUESTION: It certainly would -- would be the most integrated setting, though --

MR. GOTTESMAN: It would, indeed, but --

QUESTION: -- under your definition of it.

MR. GOTTESMAN: That's correct, but there is a limit in the statute on the --

QUESTION: Isn't there also a limit in the reg? I had assumed -- maybe I'm wrong. I had assumed that the question of appropriateness under the reg would take into consideration cost.

MR. GOTTESMAN: Well, it could well because it is -- before you get to whether it's a fundamental alteration, you have to ask is this a reasonable accommodation because b(7) of the reg says, a public entity shall make reasonable modifications in policies and practices to avoid --

QUESTION: Suppose --

MR. GOTTESMAN: -- discrimination.

QUESTION: Suppose the State said we have 500 spaces in the -- in the community-based facility. There are 532 people who qualify. What -- is the State then required to create another community-based facility to take care of the 32 who don't fit into the space available?

MR. GOTTESMAN: Well, the State's obligation here is to -- if it is going to provide these services, is to provide integrated settings. That is, what Georgia is doing is it's treating this as though the availability of community services is out of their control. We can't help it. There are only this many community services, so people will have to wait in line.

QUESTION: Well, they can help it, but it would cost money. And that -- see, one of the arguments that was made, you can't just say it's cheaper to maintain a person on the outside. Here's this huge institution and it costs the State money. The State is going to lose money unless it can get everybody out of the institution.

MR. GOTTESMAN: Well, it doesn't have to get everybody out, Your Honor. If it gets a few people out, it can reduce the number of personnel. The fact is that it is much, much cheaper to provide these services in the community. Georgia repeatedly acknowledges that.

Now, it does say -- but it has not yet proved -- and we don't believe that it can prove -- that, yes, it is much cheaper to serve them in the community, but we still have to bear the same costs of the institution even if the bed is empty.

QUESTION: Do they have an opportunity to make that proof?

MR. GOTTESMAN: Of course.

QUESTION: But, as I understood, Georgia to take the position that what was sent back to Judge Shoob was a much less -- much narrower question than that.

MR. GOTTESMAN: Well, they were allowed to demonstrate that it would be a burden, an undue burden, and therefore a fundamental alteration to serve these two people in the community, and they said, we concede that we cannot make that showing.

QUESTION: But in any case, we don't have any question before us --

MR. GOTTESMAN: That is correct.

QUESTION: -- about how, in effects, the balance should be struck on -- on what is reasonably -- what is reasonable financially.

MR. GOTTESMAN: That's correct. The State --

QUESTION: And the -- the only question we've got, I guess, is whether there is a -- kind of a -- just a -- a stone wall against your position erected by a -- a view of discrimination that says that as long as you treat all handicapped persons, regardless of the handicapped -- their handicap, in the same way, as a matter of law, there can't be discrimination under the statute. That's the only question we've got.

MR. GOTTESMAN: That's right. It's even easier than that, and even when we agree, when our professionals agree that they can be appropriately served outside. So, they're saying, even if it's true, that there would be no burden whatsoever on us.

QUESTION: Thank you, Mr. Gottesman.

Mr. Gornstein, we'll hear from you.

ORAL ARGUMENT OF IRVING L. GORNSTEIN ON BEHALF OF THE RESPONDENT

MR. GORNSTEIN: Mr. Chief Justice, and may it please the Court:

Under the Attorney General's integration regulation, a State that offers treatment to persons with disabilities must offer treatment in an integrated community setting rather than a segregated institution when treatment in the community would be appropriate to the individual's needs and when it would not require an unreasonable change in State policy or a fundamental alteration in the State's treatment program.

QUESTION: Suppose you have people who are uncertain on that point, I mean, and they say, it's also appropriate at the hospital. I'm still worried. I have the same problem. 76,000 people left. Many of those 76,000 need the institutionalized care, and if you tell me it's cheaper, that's part of -- you know, it's cheaper to put them out in a halfway house, maybe they'll all be pushed out there. That's what I'm worried about, and I would just like to be reassured that the decision that we'll make in this case will be balanced and not somehow get it wrong.

MR. GORNSTEIN: The statutory obligation only is triggered when it is appropriate to treat the person in the community.

QUESTION: Now, what do you do when people disagree, when psychiatrists are not certain when, as here, one says I think it's appropriate to treat her in the facility, not outside?

MR. GORNSTEIN: In -- in this Court's decision in Arline I believe, which was under section 504 of the Rehabilitation Act, provides the nearest analogy, and there the Court said that courts should generally defer to reasonable judgments made by the State's treatment professionals.

QUESTION: Mr. Gornstein, can I ask, what administration -- what -- what responsibilities for administering this act does the Attorney General have?

MR. GORNSTEIN: The Attorney General has authority or was compelled to issue regulations --

QUESTION: Anything else?

MR. GORNSTEIN: Yes.

QUESTION: Does he administer the act? What does he --

MR. GORNSTEIN: He administers the act by following -- filing lawsuits when there are violations of the act.

QUESTION: That -- that's not in administration of the act. The Attorney General sues in criminal law as well.

MR. GORNSTEIN: Well --

QUESTION: And we don't give him deference as to the meaning of criminal laws.

MR. GORNSTEIN: You're raising the question of deference.

QUESTION: I'm raising the question of -- do you know any other case in which we have given deference? I know several where we have denied deference to regulations issued by an agency that did not have responsibility for administering the act. Do you know of any where we have given deference?

MR. GORNSTEIN: In -- this Court's decision in Bragdon said that the Attorney General was entitled to deference in his interpretation of title III in the -- of the ADA based on the very factors that are present here, that the Attorney General was directed to issue regulations to --

QUESTION: Suppose Congress tells the Attorney General to issue regulations concerning the meaning of section 1983. Would we be bound by his -- by his interpretation of it?

MR. GORNSTEIN: Justice Scalia, I think you would not be bound by it, but I think you would be entitled --

QUESTION: Can Congress --

MR. GORNSTEIN: -- you would be -- you would be required to give it Chevron deference. Now --

QUESTION: You see, I thought Chevron deference was -- came about because when Congress passes a statute that requires administration by an executive agency, the executive is necessarily the first person to take a cut at giving meaning to it, and we give deference to that person's cut because it's part of his necessary function.

But you have here a statute in which Congress simply said, we don't want the courts to interpret this legislation, we want the Attorney General to, and gave -- gave power to the Attorney General to simply make rules, not because he's responsible for administering the act, but because Congress just likes the Attorney General's view of the statute better than it likes ours. I don't know of any other instance where we've done that.

MR. GORNSTEIN: Justice Scalia, I think Bragdon does settle that issue, but I also -- it's also the case that Chevron itself --

QUESTION: Right and what's the cite for Bragdon?

MR. GORNSTEIN: That is -- that is in our brief. 118 S. Ct. 2196, and -- and let me just refer you to the pages in our --

QUESTION: Well, it's pretty scary if we decided that way.

MR. GORNSTEIN: 11 -- I just want to give you the --

QUESTION: It was the dentist case.

MR. GORNSTEIN: -- the jump cite if I can.

QUESTION: Tell me -- tell me I didn't join that opinion.

QUESTION: It's 118 --

MR. GORNSTEIN: No. I -- I don't --

(Laughter.)

MR. GORNSTEIN: Justice Scalia, I -- you did not join that -- that --

(Laughter.)

QUESTION: I feel much better.

(Laughter.)

MR. GORNSTEIN: But -- but it -- just to --

QUESTION: But that -- that --

MR. GORNSTEIN: -- to respond to your -- to your question, Chevron really has two sources for deference. One is when you delegate authority to administer the act, and the other is when you delegate authority specifically to issue regulations. And that's what we have here.

QUESTION: Well, what if Congress delegated to the criminal division the authority to construe criminal statutes?

MR. GORNSTEIN: Well, actually the -- the Justice Department has authority, for example, to decide what drugs are classified and what are not -- not classified.

QUESTION: Well, but no --

MR. GORNSTEIN: Which seems -- I'm sorry.

QUESTION: A statute that defines, say, the Dyer Act, transportation and interstate commerce. Justice Department, you construe this. You know, what does interstate commerce mean? What's an automobile?

MR. GORNSTEIN: If Congress specifically delegated authority to the Attorney General to do that, you would -- you would resolve that under Chevron deference.

Let me just -- I don't want to --

QUESTION: Mr. -- I know you're anxious to do something. We did not reach the Chevron point in deference -- Chevron deference point in Bragdon. We did not decide that you were entitled to the Chevron deference. We say you're entitled to deference because it's a well reasoned view of --

MR. GORNSTEIN: Well, there were actually two different parts of --

QUESTION: -- much like many sources.

MR. GORNSTEIN: There are two different parts to that decision, Justice Kennedy. In the first part, you talked about Skidmore deference, but in the latter part of the opinion, you talked about Chevron deference. So, I -- I would respectfully disagree. I think you did resolve it.

But in this case, you do not have to get into the issue of deference because in the text of the act, Congress made specific findings that segregation and isolation are forms of discrimination, and that discrimination persists in such areas as institutionalization. Those findings demonstrate that Congress understood that unjustified segregation of persons with disabilities to be a form of discrimination prohibited by the ADA.

Congress also specifically directed the Attorney General to issue regulations that are consistent with section 504 of the Rehabilitation Act, the coordination regulations, and one of those regulations specifically requires all services to be provided in the most integrated --

QUESTION: Yes, but at that time, of course, courts were divided on the meaning of those regulations, and that brings us back to how do we interpret those regulations of the AG. And it certainly wasn't clear at the time that the regs under 504 demanded the least restrictive care.

MR. GORNSTEIN: The principle that is at issue here is that you must afford treatment in the most integrated setting, but that is qualified by the treatment has to be appropriate and it does not have to -- it cannot require an unreasonable change in State policy or a fundamental --

QUESTION: Well, the regulation doesn't really say that, does it?

MR. GORNSTEIN: The regulation has --

QUESTION: The fundamental change business?

MR. GORNSTEIN: In -- in -- at -- it does in -- in 10a of our appendix. You have to read two regulations together. D is the basic integration obligation which says that a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals. But then look above on number 7. It is subject to that regulation, which says that a public entity shall make reasonable modifications in policies and so on unless it's a fundamental alteration.

And what that regulation reflects is that it has never been the case under section 504 or the ADA that in order to comply with them, a State would have to make fundamental alterations or unreasonable changes in policy. That was clear under this Court's decision in Southeastern Community College v. Davis and in Alexander v. Choate, and this regulation carries that principle over.

QUESTION: So, is it your position that if the State had no community-based facilities, it would not have to create them, although many people would be better served --

MR. GORNSTEIN: We regard that as a fundamental change in the way services would be delivered, and therefore a State would not have an obligation to do that --

QUESTION: How about release under the -- under the circumstances that one-on-one care with round-the-clock aides would be less restrictive?

MR. GORNSTEIN: That would depend on whether that imposed unreasonable costs on the States or whether it reflected a fundamental change in the way that the State was providing services.

QUESTION: Well, how would you answer the question if the State hadn't been doing that? They don't have one-on-one care. They may have community-based housing, but with limited staff to serve a number of residents.

MR. GORNSTEIN: One-on-one care strikes us as an issue that ought to be resolved in light of whether it is an unreasonable additional expense. And the benchmark for looking at that is in the -- title I on page 2a of our brief says in general, undue hardship means requiring significant expense. And then it goes on to give a number of factors that a court should consider in deciding whether it is a significant expense. Now, you cannot develop a bright line rule, but that shows the guidance that should be followed in deciding whether one-on-one care reflects an unreasonable expense. You look at the nature of the cost, the overall financial resources of the facilities involved, the --

QUESTION: Is this statute or the regulation?

MR. GORNSTEIN: This is the statute, Mr. Chief Justice.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Gornstein.

The case is submitted.

(Whereupon, at 11:07 a.m., the case in the above-entitled matter was submitted.)