Full opinion text
OPINION AND ORDER SCHILLER, District Judge. Four adult individuals institutionalized at Norristown State Hospital (“NSH”) bring this five-count action against the Department of Public Welfare of the Commonwealth of Pennsylvania (“DPW”), which operates NSH, a psychiatric hospital located in Norristown, Pennsylvania, and Feather 0. Houstoun, Secretary of Public Welfare for the Commonwealth of Pennsylvania. Plaintiffs allege violations of Title II of the Americans with Disabilities Act (“ADA” or “Title II”), 42 U.S.C. § 12131 (1994), et seq., the Rehabilitation Act of 1973 (“section 504”), 29 U.S.C. § 794(a) (1994 & Supp. IV 1998), and 42 U.S.C. § 1983 (1994) (“section 1983”). Plaintiffs are suing on behalf of themselves and other similarly situated individuals institutionalized at NSH, in order “to challenge their unnecessary segregation in NSH and Defendants’ failure to provide them with appropriate services in the community — the most integrated setting appropriate to their needs.” (First Am. Compl. at ¶ 1). In addition to disturbing factual allegations, this case presents complicated and unsettled questions of law, both constitutional and statutory. Several of these questions have been the subject of splits among the courts and debates among commentators. Presently before the Court is Defendants’ motion to dismiss (Document Nos. 4 and 18), attacking Plaintiffs’ claims on the grounds that they are barred by the Eleventh Amendment and that Plaintiffs have otherwise failed to state a claim upon which relief can be granted. For the reasons that follow, Defendants’ motion is granted in part and denied in part. Counts II and IV of the first amended complaint, consisting of claims brought under the ADA against the DPW are dismissed. Plaintiffs may proceed on their section 504 claims against both defendants, their ADA claims against Houstoun, and their section 1983 claim against Houstoun. I. BACKGROUND The four Plaintiffs, Frederick L., Nina S., Kevin C., and Steven F., are individuals with mental disabilities institutionalized at NSH. Frederick L. has been recommended for discharge to a community program since at least July of 1997. Nina S. has not been officially recommended for discharge. Kevin C. has been recommended for discharge to a community program since at least February of 1999. Steven F. has also been recommended for discharge to a community program. The pleadings do not reflect the date of this recommendation. A. Funding of Pennsylvania’s mental health services In Pennsylvania, mental health services are funded by the Commonwealth, its counties, and the federal government. Services to individuals with mental disabilities can be provided in many settings, ranging from independent living arrangements, where the individual may reside alone, to psychiatric institutions. There is a complex scheme for the allocation of financial responsibility among these governmental entities. At this stage, a brief rehearsal of the manner in which mental health services are funded is necessary. The Commonwealth is responsible for all of the treatment and care costs of residents at state psychiatric hospitals. See 50 Pa. Cons.Stat.ANN. § 4507(a)(1) (1969); 55 Pa.Code § 4300.23(a)(1) (Supp. 244 1995). Community-based mental health services are funded by the Commonwealth and its counties, each paying 90 percent and 10 percent, respectively. See 50 Pa. Cons.Stat.Ann. § 4509(1) (Supp.2001); 55 Pa.Code § 4300.23(b). Federal funding, through various programs, including the Medical Assistance Program and social services block grants is available to defray part of the Commonwealth’s costs for non-residential, community-based services provided by the counties. Additionally, over recent years, the DPW has intermittently provided funds to the counties through the Community Hospital Integrated Project Program (“CHIPP”). Funds distributed through this program are earmarked for use in developing the resources necessary to discharge institutionalized individuals from state psychiatric hospitals. As counties receive CHIPP/SIPP funds, the number of beds in state psychiatric hospitals that can be used by individuals from recipient counties without cost to those counties is reduced. The DPW has the authority to shift funds used, for institutionalized care to community care. The counties make annual requests to the DPW for funds needed to provide appropriate community-based services. The DPW, however, has consistently failed to satisfy the requests of those counties whose residents are institutionalized at NSH (Bucks, Chester, Delaware, Montgomery, and Philadelphia). As a result, all of the individuals with mental disabilities who could be appropriately served in the community cannot be accommodated and remain unnecessarily institutionalized where they are either not recommended for discharge or placed on waiting lists for community care indefinitely. B. Averments Plaintiffs allege that with the appropriate services, they could live successfully in the community, which is the most integrated setting appropriate to their needs. Defendants are ultimately responsible for assuring that mental health services are provided to all Pennsylvania residents who need them. The Defendants have failed to properly assess the Plaintiffs’ community service needs and fund sufficient appropriate community-based programs to serve them. NSH residents are not evaluated in order to determine whether their needs could be served in the community if appropriate programs were established. Instead, residents are recommended for discharge “based on the capacity of the individual to fit — however awkwardly — into existing programs.” (First Am. Compl. at ¶ 62). Compounding this problem is the fact that some NSH professionals do not know what services are available in the community. As a result, residents who could be served in the community are not recommended for discharge. This occurred in the case of Plaintiff Nina S. Plaintiffs further allege that in the 2001-02 fiscal year, NSH plans to discharge 60 elderly and medically fragile non-forensic residents of NSH and provide them with community-based services due to structural problems requiring that the medical/elderly unit be closed, not individualized assessments of the residents to determine their needs. As a result of this discharge plan, Plaintiffs will be “institutionalized indefinitely at NSH,” as the DPW has no plan to discharge them. (First Am. Compl. at ¶ 2). In Counts I and II of the first amended complaint, Plaintiffs claim that Defendants DPW and Houstoun violate section 504 and Title II of the ADA, respectively, “by failing to provide services to Plaintiffs in the most integrated setting appropriate to their needs.” (“integration mandate claims”) (First Am. Compl. at ¶¶ 72, 77). In Counts III and IV, Plaintiffs charge that Defendants DPW and Houstoun violate section 504 and Title II of the ADA, respectively, by “using methods of administration that have the effect of subjecting Plaintiffs and the proposed class to discrimination on the basis of disability.” (“methods of administration claims”) (First Am. Compl. at ¶¶ 80, 83). Count V embodies the allegation that Defendant Houstoun violated the Plaintiffs’ rights under section 504 and Title II of the ADA by establishing a DPW policy of refusing and failing to “provide mental health services to Plaintiffs and the class they represent in the most integrated setting appropriate to their individual needs,” as prohibited by section 1983. (First Am. Compl. at ¶ 88). C. Relief requested Plaintiffs seek a declaration that the Defendants have violated Plaintiffs’ rights and an injunction compelling the Defendants to remedy the ongoing violations of federal law. D. Motion to dismiss Defendants filed their motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that this Court lacks subject matter jurisdiction over this action because the DPW is immune from suit under the Eleventh Amendment. Moreover, Defendants contend that Plaintiffs fail to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6) because (1) Houstoun is not a proper Defendant under the ADA or section 504; (2) Section 1983 is not a proper mechanism to enforce rights conferred by section 504 and the ADA; (3) Section 504 does not obligate states to provide community care for the mentally ill; and (4) Plaintiffs’ section 504 and ADA claims are foreclosed by the Supreme Court’s decision in Alexander v. Sandoval, 531 U.S. 1049, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Finally, if Plaintiffs’ ADA claims are not completely barred on other grounds, Defendants argue that the Plaintiffs’ claims are limited by the Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999). II. LEGAL STANDARD In considering a Rule 12(b)(6) motion, the Court must accept as true all of the allegations set forth in the complaint and all reasonable inferences must be drawn in favor of the Plaintiffs. See Ford v. Schering-Plough Corp., 145 F.3d 601, 604 (3d Cir.1998). Dismissal of Plaintiffs’ claim is appropriate only if Plaintiffs “can prove no set of facts in support of [their] claim which would entitle [them] to relief.” Id. (quotation omitted). Defendants raise the issue of Eleventh Amendment immunity under Rule 12(b)(1) on subject matter jurisdiction grounds. In Blanciak v. Allegheny Ludlum Corporation, 77 F.3d 690 (3d Cir.1996), the Third Circuit recognized that “the Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject matter jurisdiction.” Id. at 694 n. 2 (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)). The Third Circuit went on to say that such a motion may be filed pursuant to Rule 12(b)(1). See id. One year before, however, our court of appeals stated that Eleventh Amendment immunity “does not implicate federal subject matter jurisdiction in the ordinary sense” because it “can be expressly waived by a party, or forfeited through non-assertion.” Christy v. Pa. Turnpike Comm’n, 54 F.3d 1140, 1144 (3d Cir.1995). As such, the Third Circuit determined in Christy that Eleventh Amendment immunity should be analyzed as an affirmative defense to be established by the party raising it. See id. Where Eleventh Amendment immunity was asserted in a motion to dismiss for lack of subject matter jurisdiction, this Court has evaluated the motion under the standard provided for by Rule 12(b)(6). See Elman v. United States, 1998 WL 195905, at *1 (E.D.Pa. Apr. 6, 1998). There are two types of Rule 12(b)(1) motions. With regard to the first type, a facial attack on the court’s subject matter jurisdiction, the court is required to assume that plaintiffs allegations are true. See Mortensen v. First Fed. Sav. and Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977). When confronted with the second type, a factual attack, the court is “free to weigh the evidence and satisfy itself as to the existence of its power to hear the case” because there is “no presumptive truthfulness attachefd] to plaintiffs allegations.” Id. Factual evaluations under Rule 12(b)(1) are appropriate at any stage in the proceedings after the filing of an answer. See id. at 891-92. Here, no answer has been filed. Thus, regardless of whether I treat Defendants’ assertion of the Eleventh Amendment bar as a motion under Rule 12(b)(1) or Rule 12(b)(6), I am required to take Plaintiffs’ facts as true. I am mindful that the Third Circuit has “cautioned against treating a Rule 12(b)(1) motion as a Rule 12(b)(6) motion and reaching the merits of the claims” because “the standard for surviving a Rule 12(b)(1) motion is lower than that for a 12(b)(6) motion.” Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir.2000) (citation omitted). In considering whether Defendants’ are protected from suit by the Eleventh Amendment, I will avoid evaluation of the merits of Plaintiffs’ claims. III. DISCUSSION A. Eleventh Amendment Defendants argue that Plaintiffs’ section 504 and ADA claims against the DPW are precluded by the Eleventh Amendment. While by its precise terms, the Eleventh Amendment bars federal court actions against the States brought by a citizen of other States, the Supreme Court has long recognized that its prohibition also applies to suits against the States by their own citizens. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 962, 148 L.Ed.2d 866 (2000) (citations omitted); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 669, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999). “The ultimate guarantee of the Eleventh Amendment is that nonconsent-ing States may not be sued by private individuals in federal court.” Garrett, 121 S.Ct. at 962 (citation omitted); see Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (observing that “as the Constitution’s structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution and which they retain today”). Thus, while the States are generally immune from suit brought by private individuals, there are three well-established exceptions to the bar. First, the States may consent to suit, waiving their immunity. See Alden, 527 U.S. at 755, 119 S.Ct. 2240. Second, “Congress may abrogate the States’ Eleventh Amendment immunity when it both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority.” Garrett, 121 S.Ct. at 962 (quotation omitted). Third, under the doctrine announced in Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and refined in subsequent decisions, an individual seeking only prospective injunctive relief for ongoing violations of federal law may bring suit against state officials in federal courts. See Alden, 527 U.S. at 757, 119 S.Ct. 2240; Seminole Tribe v. Florida, 517 U.S. 44, 73, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985); Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). 1. State Waiver under Section 504 Defendants argue that the Eleventh Amendment prohibits suit against the DPW brought under section 504 (Counts I and III). Plaintiffs assert that their claims can proceed under the first exception to the Eleventh Amendment bar. In interpreting the Eleventh Amendment, the Supreme Court has recognized two types of waiver: express and implied. The Supreme Court has repeatedly emphasized that a finding of express waiver is appropriate only where the State’s intention to subject itself to suit in federal court is stated “by the most express language” or by “overwhelming implications.” Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (quotation omitted); see Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305-06, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). The Court has “insist[ed] ... that the State’s consent be unequivocally expressed.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (“Pennhurst II ”) (citation omitted). Our reluctance to infer that a State’s immunity from suit in the federal courts has been negated stems from recognition of the vital role of the doctrine of sovereign immunity in our federal system. A State’s constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued. Id. Thus, the “test for determining whether a State has waived its immunity from federal court jurisdiction is a stringent one.” Coll. Sav. Bank, 527 U.S. at 675, 119 S.Ct. 2219 (quoting Atascadero, 473 U.S. at 241, 105 S.Ct. 3142). The instant Plaintiffs do not and cannot argue that Pennsylvania consented to suit by expressing a clear waiver via statute or constitutional amendment. Instead, Plaintiffs take the position that suit under section 504 is proper because Pennsylvania’s DPW implicitly consented to suit by accepting federal funds. (PI. Resp. to Mot. to Dismiss at 7). The Supreme Court examined the doctrine of implied waiver in Parden v. Terminal Ry. of Ala. State Docks Dept., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). In Parden, the Court concluded that by choosing to operate an interstate railroad approximately 20 years after the enactment of the Federal Employers’ Liability Act (FELA), Alabama implicitly consented to suit by injured railroad employees. Id. at 192, 84 S.Ct. 1207. The Court stated: By adopting and ratifying the Commerce Clause, the States empowered Congress to create such a right of action against interstate railroads; by enacting the FELA in the exercise of this power, Congress conditioned the right to operate a railroad in interstate commerce upon amenability to suit in federal court as provided by the Act; by thereafter operating a railroad in interstate commerce, Alabama must be taken to have accepted that condition and thus to have consented to suit. Id. Subsequently, the Court declined to find constructive waiver absent a statement from Congress “indicating in some way by clear language that the constitutional immunity was swept away.” Employees of Dept. of Pub. Health & Welfare v. Dept. of Pub. Health & Welfare, 411 U.S. 279, 284-85, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973) (concluding state health facility employees could not sue the state for failure to comply with the Fair Labor Standards Act after distinguishing Parden by noting that states can opt not to operate a railroad, but cannot choose not to provide basic public services like hospitals); cf. Coll. Sav. Bank, 527 U.S. at 677, 119 S.Ct. 2219 (“In Employees, we began to retreat from Parden”). Similarly, in Edelman, 415 U.S. at 673, 94 S.Ct. 1347, the Court ruled that Illinois had not impliedly waived its sovereign immunity by accepting federal monies under a welfare program. The Court noted that “[c]onstructive consent is not a doctrine commonly associated with the surrender of constitutional rights, and we see no place for it here.” Id. at 673, 94 S.Ct. 1347. The Court observed that the “mere fact that a State participates in a program through which the Federal Government provides assistance for the operation by the State of a system of public aid is not sufficient to establish consent on the part of the State to be sued in the federal courts.” Id.; see Atascadero, 473 U.S. at 246-47, 105 S.Ct. 3142. In 1987, the Supreme Court explicitly adopted the requirement of “an unequivocal expression that Congress intended to override Eleventh Amendment immunity.” Welch v. Texas Dept. of Highways and Pub. Trans., 483 U.S. 468, 478, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987) (citations omitted) (overruling Parden to the extent that it is “inconsistent with the requirement that an abrogation of Eleventh Amendment immunity by Congress must be expressed in unmistakably clear language”). Since 1987, legal scholars have debated the continued vitality of the constructive waiver doctrine in light of the development of Eleventh Amendment jurisprudence from Parden to Welch. Compare, ERWin ChemeRinsky, Federal Jurisdiction § 7.6 (3d ed. 1999) (stating “[i]n short, constructive waiver of the Eleventh Amendment immunity is virtually nonexistent”), with Kit Kinports, Implied Waiver After Seminole Tribe, 82 Minn.L.Rev. 793, 831 (Feb. 1998) (concluding that the “doctrine of implied waiver continues to be viable”). The Supreme Court’s 1999 decision in College Savings Bank, however, is instructive in determining the current availability of implied waiver. In College Savings Bank, the Court held that Florida did not constructively waive its immunity from suit under the Lanham Act. Id. at 691, 119 S.Ct. 2219. In so finding, the Court expressly overruled any surviving notions of Parden: “We think that the constructive-waiver experiment of Parden was ill conceived, and see no merit in attempting to salvage any remnant of it.” Id. at 680, 119 S.Ct. 2219. Despite this apparent extinguishment of the constructive waiver doctrine, College Savings Bank does not foreclose Plaintiffs’ section 504 claims here. The Court in College Savings Bank noted “fundamental” differences between the case before it and the type of case instantly at bar. Id. at 686, 119 S.Ct. 2219. The Court recognized: Congress may, in the exercise of its spending power, condition its grant of funds to the States upon their taking certain actions that Congress could not require them to take, and that acceptance of the funds entails agreement to the actions.... Congress has no obligation to use its Spending Clause power to disburse funds to the States; such funds are gifts. In the present case, however, what Congress threatens if the State refuses to agree to its condition is not the denial of a gift or gratuity, but a sanction: exclusion of the State from otherwise permissible activity. Id. (citing South Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987)). This distinction compels the finding that pursuant to its Spending Clause authority, Congress can legitimately invite the States to consent to suit in exchange for federal funds. As a threshold position, Defendants argue that section 504 was enacted pursuant to Congress’ power under § 5 of the Fourteenth Amendment, not under the Spending Clause. There exists some, ambiguity regarding the authority pursuant to which Congress enacted section 504. Congress itself was silent on the issue. See Armstrong v. Wilson, 942 F.Supp. 1252, 1262 (N.D.Cal.1996) (“the Rehabilitation Act is silent as to the constitutional authority under which it was enacted”), aff'd, 124 F.3d 1019 (9th Cir.1997), cert. denied, 524 U.S. 937, 118 S.Ct. 2340, 141 L.Ed.2d 711 (1998). The Supreme Court has not squarely addressed the issue. In Welch, 483 U.S. at 470, 472 n. 2, 107 S.Ct. 2941, the Court commented as follows: The question in [Atascadero v.] Scanlon was whether § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, makes state agencies subject to suits for retroactive monetary relief in federal court. The Rehabilitation Act was passed pursuant to § 5 of the Fourteenth Amendment. Atascadero v. Scanlon, 473 U.S. 234, 244-245, n. 4, 105 S.Ct. 3142, 3149 n. 4, 87 L.Ed.2d 171 (1985). Congress therefore had the power to subject un-consenting States to suit in federal court. See Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Without deciding which of its powers Congress exercised in enacting section 504, the Supreme Court in Atascadero, 473 U.S. at 240, 105 S.Ct. 3142, examined whether California could be sued in federal court for violations of section 504. The footnote in Atascadero referenced by the Court in Welch contains an explanation of how the Court would conduct its analysis. See Atascadero, 473 U.S. at 244 n. 4, 105 S.Ct. 3142. The Court in Atascadero considered whether Congress had validly abrogated the sovereign immunity of the States as if the statute had been enacted pursuant to § 5 and whether California had implicitly waived its immunity by accepting federal funds as if section 504 were Spending Clause legislation. See id. at 242-247, 105 S.Ct. 3142. Thus, the basis of the congressional authority used in enacting section 504 was not determined by the Supreme Court in Atascadero. While some courts have concluded that section 504 was enacted pursuant to Congress’ power under § 5 of the Fourteenth Amendment, see, e.g., Clark v. California, 123 F.3d 1267, 1270 (9th Cir.1997), cert. denied sub. nom., Wilson v. Armstrong, 524 U.S. 937, 118 S.Ct. 2340, 141 L.Ed.2d 711 (1998); Mayer v. Univ. of Minn., 940 F.Supp. 1474, 1476-80 (D.Minn.1996), I am persuaded by the reasoning employed by the court in Bowers v. Nat’l Collegiate Athletic Ass’n, 118 F.Supp.2d 494, 506 (D.N.J.2000), that section 504 is an exercise of Congress’ Spending Clause power. In the end, one need only look at the language of section 504, which conditions the application of its bar against discrimination on the receipt of federal funds, and the fact that section 504 is modeled after Title VI [of the Civil Rights Act of 1964], which was enacted in part under Congress’s Spending Clause power, to conclude that section 504 was enacted at least in some measure pursuant to Congress’s authority under the Spending Clause. Id. at 506-07 (internal citation and quotation omitted). Several other courts have acknowledged that section 504 is a Spending Clause enactment. See, e.g., Shinault v. Am. Airlines, Inc., 986 F.2d 796, 803 (5th Cir.1991); Armstrong, 942 F.Supp. at 1263; Moreno v. Consol. Rail Corp., 909 F.Supp. 480, 487 (E.D.Mich.1994), aff'd en banc, 99 F.3d 782 (6th Cir.1996); Rivera Flores v. Puerto Rico Tel. Co., 776 F.Supp. 61, 67 (D.P.R.1991); Turner v. First Hosp. Corp., 772 F.Supp. 284, 287 n. 2 (E.D.Va.1991). Having found that section 504 was enacted pursuant to the Spending Clause, I now survey the nature of Congress’ spending power. In Dole, 483 U.S. at 206-07, 107 S.Ct. 2793, the Supreme Court acknowledged that incident to its power under Article I, Section 8 of the Constitution, Congress may attach conditions to the receipt of federal funds, thereby allowing Congress to reach objectives not within “Article I’s enumerated legislative fields.” (citations and quotation omitted). This creates a relationship of a contractual nature between Congress and the States. See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) (“Pennhurst I ”). A valid exercise of Congress’ Spending Clause power is dependent upon a State’s knowing and voluntary acceptance of the “contractual” terms. See id. Thus, conditions on the grant of federal financial assistance must be stated unambiguously. See id. “By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation.” Id. The argument that Congress unequivocally stated its intention to solicit a waiver of the States’ sovereign immunity through section 504 was rejected in 1985 by the Supreme Court in Atascadero, 473 U.S. at 246-47, 105 S.Ct. 3142. In Atascadero, the Supreme Court concluded that Congress failed to “manifest! ] a clear intent to condition participation in the programs funded under [section 504] on a State’s consent to waive its constitutional immunity.” Id. at 245, 105 S.Ct. 3142. Thereafter, Congress enacted the following: A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Educational Amendments of 1972, and Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provision of any Federal statute prohibiting discrimination by recipients of Federal financial assistance. 42 U.S.C. § 2000d-7(a)(1) (1994) (“section 2000d-7(a)(1)”). In Lane v. Pena, 518 U.S. 187, 189, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996), the Supreme Court evaluated whether section 2000d-7(a)(l) unmistakably evidenced Congress’ intent to waive the federal government’s sovereign immunity to damages liability for violations of section 504. In examining this issue, the Court observed “the care with which Congress responded to our decision in Atas-cadero by crafting an unambiguous waiver of the States’ Eleventh Amendment immunity.” Id. at 200, 105 S.Ct. 3142. Several courts of appeals undertaking this inquiry following the enactment of section 2000d-7(a)(1) have reached similar results. See, e.g., Jim C. v. United States, 235 F.3d 1079, 1082 (8th Cir.2000) (holding that Arkansas’ Department of Education waived its sovereign immunity for suit brought under section 504); Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir.2000) (concluding that “the Rehabilitation Act is enforceable in federal court against recipients of federal largess”); Pederson v. Louisiana State Univ., 213 F.3d 858, 875-76 (5th Cir.2000); Clark, 123 F.3d at 1271 (finding that “the Rehabilitation Act includes an express waiver of Eleventh Amendment immunity which California accepted when it accepted Rehabilitation Act funds”). Therefore, I conclude that section 504 unambiguously expresses Congress’ intent to condition the grant of federal funds on a States’ consent to suit through section 2000d-7(a)(1). Although the Defendants challenge the cases that Plaintiffs offer to support their contention that Congress’ intent has been unambiguously manifested (Def. Reply at 9-12), they concede that Congress’ expression of its intent in section § 2000d-7(a)(l) is “clear” as required by the Supreme Court. (Mot. to Dismiss at 18). Defendants suggest that despite its clarity, section 2000d-7(a)(l) cannot serve as the basis for an effective waiver because it is not “program-specific,” as it extends to “any claim arising under any program under § 504 and title IX and the Age Discrimination Act of 1975 and title VI and ‘any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.’ ” (Mot. to Dismiss at 18) (emphasis in original) (quoting 42 U.S.C. § 2000d-7(a)(1)). Defendants provide the Court with no authority for the requirement that Congress state its intention to condition the receipt of federal funds on submission to suit on a program-by-program basis. As I have stated previously, and the Defendants concede, with regard to section 504, Congress’ intent has been expressed unambiguously. No more is required. Defendants argue that section 2000d-7(a)(1) cannot serve to effect a waiver in this particular case because there is an insufficient “connection between the granting of funds to a state for a certain purpose and the state’s agreement to waive its immunity if sued on a related claim.” (Def. Reply at 9). During oral argument, counsel for the defendants expounded on this argument: I think based on Atascadero there needs to be come (sic) kind of connection between the kinds of funds, the kind of case and the kind of waiver and the kind of lawsuit. (Oral Arg. Trans, at 17, Apr. 26, 2001). In support of this nexus requirement, Defendants rely on the Supreme Court’s instruction in Atascadero: Congress must “manifest[ ] a clear intent to condition participation in the programs funded under the Act on a State’s consent to waive its constitutional immunity,” (Def. Reply at 9, 11 n. 6) (emphasis in original) (quoting Atascadero, 473 U.S. at 247, 105 S.Ct. 3142). To the extent Defendants assert that the condition imposed by Congress “must be related to the purpose of the federal funds whose receipt is conditioned,” I agree with the reasoning of the District of Columbia Circuit, which rejected that argument, concluding that that “standard is not supported by the case law.” Oklahoma v. Schweiker, 655 F.2d 401, 406-07 (D.C.Cir.1981). After surveying the Supreme Court’s pronouncements in this area, the court of appeals observed: In each of these cases, the condition imposed by Congress, and the behavior of the grant recipient that the condition was designed to affect, were not exactly correlated to the purpose for which the conditioned federal funds were dispensed: the conditions and the general funding programs were aimed at serving different federal interests. Nevertheless, the courts recognized that in each instance Congress had legitimately exercised its power to insist that those receiving federal benefits agree, in exchange, to abide by the condition set by Congress. In none of the cases did the courts require that Congress identify the relationship between the terms imposed and the purposes of the funding programs conditioned. Id. at 407. Defendants also point to the Supreme Court’s observation in Dole, 483 U.S. at 207, 107 S.Ct. 2793, “that conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs.” (quotation omitted). This requirement centers around the relationship between the condition imposed and the federal initiative. Through section 2000d-7(a)(1), Congress linked the federal government’s legitimate interest in eliminating discrimination against disabled individuals in the programs it endows to State accountability for such discrimination. Similarly, the congressionally imposed condition in Dole requiring the States to raise their legal drinking ages to twenty-one was sufficiently related to the federal interest in safe interstate travel. See Dole, 483 U.S. at 208-09, 107 S.Ct. 2793. After considering this requirement for permissible Spending Clause conditions, a federal district court in Kansas rejected an argument that encompasses at least part of the nexus requirement proposed by Defendants here. See Robinson v. Kansas, 117 F.Supp.2d 1124, 1133 (D.Kan.2000). In Robinson, 117 F.Supp.2d at 1127-30, minority, non-U.S. origin, and disabled students sued the state of Kansas and three state officials under, inter alia, Title VI, 42 U.S.C. § 2000d (1994), and section 504, claiming that its statutory scheme for funding schools has a discriminatory disparate impact on them. The Defendants argued that Congress could not properly condition the receipt of federal funds on the state’s waiver of immunity under section 2000d-7(a)(l) because the funds alleged to be distributed in a discriminatory way were not the actual federal funds disbursed to the State under Title VI. Id. at 1133. The court in Robinson rejected this argument as to Title VI and section 504 ruling, “No dollar-for-dollar accounting need be made.” Id. at 1133, 1134. I reject Defendants’ assertion and find that any nexus requirements of Atascadero and Dole have been satisfied. Defendants also contend there can be no implied waiver because Congress’ offer to exchange federal funds for compliance with section 504 is unduly coercive. As the Supreme Court admonished in Dole, 483 U.S. at 211, 107 S.Ct. 2793, and reiterated in College Savings Bank, 527 U.S. at 687, 119 S.Ct. 2219, “the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns to compulsion.’ ” (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590, 57 S.Ct. 883, 81 L.Ed. 1279 (1937)). A divided Eighth Circuit rejected this argument in Jim C., 235 F.3d at 1081, concluding that with section 504, Congress has not crossed the line separating pressure and compulsion. Section 504 prohibits discrimination against a qualified individual with a disability by any program or activity receiving federal financial assistance. 29 U.S.C. § 794(a). “Program or activity” is defined as the department or agency that receives or distributes the federal funds. See 29 U.S.C. § 794(b). Such receipt, however, does not affect other state agencies or the State as a whole. See Jim C., 235 at 1081. “A State and its instrumentalities can avoid Section 504’s waiver requirement on a piecemeal basis, by simply accepting federal funds for some departments and declining them for others.” Id. At all times, the State has the option to accept federal funds, which it can choose to exercise or not. See id. at 1082 (recognizing that “[t]he State may take the money or leave it”). While the incentive at issue here may be a powerful and tempting one, it remains merely an offer. Lastly, Defendants assert that there cannot be an effective waiver of immunity in the instant matter because the DPW’s participation in federal programs such as the Medical Assistance Program predates the 1986 enactment of section 2000d-7(a)(1). This argument is unavailing for two reasons. First, Plaintiffs claims do not predate 1986. Second, the DPW accepts federal monies annually. Since the enactment of section 2000d-7(a)(l), the DPW has had the option to avoid being governed by the mandates of section 504. The DPW got what it bargained for. It cannot now avoid its obligation. Therefore, for the above-stated reasons, I find that in this case the Eleventh Amendment is not a bar to suit in federal court for violations of section 504. 2. Congressional Abrogation under the ADA Defendants argue that the DPW is immune from suit for violations of Title II of the ADA under the Eleventh Amendment. Plaintiffs argue that their integration mandate claim (Count II) survives Eleventh Amendment . scrutiny because Congress effectively abrogated the States’ sovereign immunity in enacting Title II of the ADA. The Supreme Court recently held that suits for damages brought by state employees against the State alleging failure to comply with Title I of the ADA, which deals with discrimination in employment, are barred by the Eleventh Amendment. See Garrett, 121 S.Ct. at 960. The Court explicitly declined to decide this issue with regard to Title II, noting that there are differences between the remedial provisions of Title I and Title II. See id. at 960 n. 1; see also Lavia v. Comm. of Pennsylvania, 224 F.3d 190, 195 n. 2 (3d Cir.2000) (declining to address whether Congress had validly abrogated the immunity of the States with regard to Title II). A two-pronged test governs the court’s analysis: First, I must consider whether Congress’ intent to nullify the States’ immunity was expressed unequivocally. See Garrett, 121 S.Ct. at 962; Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). Second, I must determine whether Congress acted pursuant to a valid grant of constitutional authority. See Garrett, 121 S.Ct. at 962. a. Unmistakably clear congressional intent With regard to the first prong, a legitimate abrogation requires that Congress make “its intention unmistakably clear in the language of the statute.” Id. (quotations omitted). Section 12202 of the ADA provides: A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter. 42 U.S.C. § 12202 (1994). The Third Circuit has recognized that Congress has “unequivocally fulfilled the first requirement by expressly stating its intent to abrogate the states’ Eleventh Amendment immunity.” Lavia, 224 F.3d at 196. The Defendants do not dispute that Congress has clearly expressed its intent. (Mot. to Dismiss at 12). b. Validity of Title II under § 5 of the Fourteenth Amendment I now turn to the second part of this “simple but stringent test.”. Lavia, 224 F.3d at 196 (quoting Dellmuth v. Muth, 491 U.S. 223, 228, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989)). It is well established that Congress can properly abrogate the sovereign immunity of the States only when acting pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment. See Garrett, 121 S.Ct. at 962. Pursuant to § 5, Congress is vested with the authority to enact legislation to enforce § 1 of the Fourteenth Amendment, which, inter alia, guarantees individual freedom from State deprivation of life, liberty, or property without due process of law and State denial of equal protection of the laws. See id. at 963 (citation omitted); U.S. Const., amend XIV, § 1. Congress’ enforcement power encompasses “the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text.” Id. While Congress holds enforcement authority, it is within the purview of the courts to identify the substantive scope of constitutional guarantees. See id.; Kimel v, Fla. Bd. of Regents, 528 U.S. 62, 81, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). i. Defining the constitutional right I begin here, as the Supreme Court did in Garrett, by identifying the scope of the constitutional right at issue. See id. Plaintiffs posit that the Due Process Clause of the Fourteenth Amendment confers a substantive right to community-based services for disabled individuals when recommended by qualified professionals. According to the Plaintiffs, this right grew out of the Supreme Court’s decision in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) and the Third Circuit’s decision in Clark v. Cohen, 794 F.2d 79 (3d Cir.), cert. denied, 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 404 (1986). In Youngberg, 457 U.S. at 316, 102 S.Ct. 2452, the Supreme Court recognized that an individual who is involuntarily committed to a psychiatric institution retains a liberty interest in freedom from bodily restraint. But this constitutional right is not absolute. It is limited “to the extent professional judgment deems [bodily restraint] necessary to assure [] safety or provide needed training.” Id. at 324, 107 S.Ct. 708. The Court also concluded that those committed to institutions are entitled to minimally adequate training, defined as training that is “reasonable in light of the individual’s liberty interests in safety and freedom from unreasonable restraints.” Id. at 322, 107 S.Ct. 708. Courts are to be guided by the judgment of a qualified professional in determining what is reasonable. Id.; see Thomas S. v. Flaherty, 699 F.Supp. 1178, 1199 (W.D.N.C.1988) (noting that the “constitutional right of class members to treatment comporting with the judgment of qualified professionals is established” in analyzing the substantive due process rights of mentally retarded adults in public psychiatric institutions under Youngberg), aff'd, 902 F.2d 250 (4th Cir.), cert. denied, 498 U.S. 951, 111 S.Ct. 373, 112 L.Ed.2d 335 (1990). In Clark, 794 F.2d at 87, the Third Circuit affirmed the trial court’s holding that Ms. Clark’s involuntary confinement in a psychiatric institution “in the face of unanimous professional opinion that she be placed in a far less restrictive environment violated her substantive liberty right to appropriate treatment^]” in that case, placement in a community living arrangement. (citation omitted). The court of appeals agreed with the trial court that Ms. Clark was constitutionally entitled to the training required for community living. See id. Some courts have ruled that this substantive liberty interest encompasses the right to treatment consistent with the judgment of qualified professionals whose' recommendations are not affected by funding issues. See Thomas S., 699 F.Supp. at 1200 (quotation omitted) (finding that the constitutional rights of those confined in mental institutions include entitlement to “treatment recommended by qualified professionals whose judgment is unsullied by consideration of the fact that the state does not provide appropriate treatment or funding for appropriate treatment”); Clark, 613 F.Supp. at 704 n. 13 (“I do not believe that the Youngberg court meant to include decisions motivated out of budgetary constraints in the category of ‘professional judgment’ ”). Defendants correctly observe that eases decided after Youngberg and Clark limit Plaintiffs’ argument by clarifying that the substantive due process rights that Plaintiffs seek to assert here are not held by individuals whose institutionalization is voluntary. The Court’s holding in Youngberg applies to individuals who are committed against their will. See DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 199, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). “In the substantive due process analysis, it is the States’s affirmative act of restraining the individual’s freedom to act on his own behalf — through incarceration, institutionalization, or other similar restraint of personal liberty — which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause.” Id. at 200, 109 S.Ct. 998. The imposition of constitutional obligations arose in Youngberg because of the “patient’s involuntary commitment and total dependence on his custodians.” County of Sacramento v. Lewis, 523 U.S. 833, 852 n. 12, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). In Fialkowski v. Greenwich Home for Children, Inc., 921 F.2d 459, 464 (3d Cir.1990), the Third Circuit concluded that no Fourteenth Amendment violation occurred when a mentally retarded individual choked to death at a community living arrangement in which he was voluntarily placed because he was not deprived of his freedom under DeShaney. Here, Plaintiffs Frederick L. and Steven F. are committed to NSH on a voluntary basis. (First Am. Compl. at ¶¶ 20, 41). Consequently, they have no substantive due process right to community-based services. Accordingly, Count II against the DPW is dismissed with regard to Frederick L. and Steven F. With regard to Plaintiffs Nina S. and Kevin C., who I will infer remain involuntarily committed (as I must at this stage), Defendants argue that involuntarily committed individuals with mental disabilities do not have a substantive due process right to community placement even when it is professionally recommended. (Def. Reply at 17). Defendants rely primarily on the Third Circuit’s ruling in Philadelphia Police and Fire Association for Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156 (3d Cir.1989). In Philadelphia Police and Fire, the court of appeals determined that the substantive due process rights of mentally retarded persons living at home were not violated when the city of Philadelphia reduced the services it would provide to them because of budgetary shortages. See id. at 158, 160. Philadelphia Police and Fire did not involve institutionalized individuals. In contrast, Nina S. and Kevin C. are being institutionalized involuntarily. The instant situation appears to be governed by Clark. Defendants attempt to distinguish Clark by noting that Ms. Clark may not have needed government services at all. Here, as the Defendants correctly observe, Nina S. and Kevin C. need mental health services. This distinction ignores the critical similarity: Ms. Clark was and Nina S. and Kevin C. are institutionalized against their will. The courts in Young-berg and Clark have recognized, as this Court recognizes today, that a State that involuntarily institutionalizes an individual is saddled with certain constitutional obligations, in this context, the right to appropriate treatment as determined by qualified professionals (perhaps professionals who are not influenced by budgetary concerns). The Defendants cite no cases, nor am I aware of any cases, that abridge the scope of the constitutional rights asserted here with regard to Nina S. and Kevin C. Not all forays by the States into areas of important human rights rise to the level of constitutional violations. There must be a balance between the interest of the States in regulating certain areas of human life and the interest of individuals in remaining free from governmental interference. State conduct with regard to the mentally disabled is constitutional if the State’s actions “bear[] any rational relationship to any interest the state may legitimately promote.” Stern v. Halligan, 158 F.3d 729, 731 (3d Cir.1998); see Garrett, 121 S.Ct. at 964; City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). In this context, the DPW may deny community-based services to Plaintiffs who are deemed appropriate for such services if the DPW’s actions are rational. The State is not obligated to articulate the reasons for its policy decisions at the time that they are made. See id. at 964. The challenging party must bear the heavy burden of negating any reasonably conceivable rational basis for the DPW’s actions. See id. For example, the Court in Garrett noted in the context of Title I that the conservation of scarce financial resources is an entirely rational, and thereby constitutional, reason for a state employer to hire individuals who do not have disabilities that prevent them from using existing facilities over disabled individuals who could perform the job with accommodations. See Garrett, 121 S.Ct. at 966. ii. Congruence and proportionality As rehearsed above, Congress is empowered to enact legislation reaching conduct that is not prohibited by § 1 of the Fourteenth Amendment in order to deter violations of the rights guaranteed by § 1. In so doing, Congress cannot dissolve the sovereign immunity of the States for suits involving alleged violations of its legislation unless the “congruence and proportionality” test is satisfied. Id. at 963. Valid § 5 legislation requires the congressional identification of a “history and pattern” of conduct on the part of the States that transgresses the Fourteenth Amendment’s substantive provisions and a legislative scheme tailored to remedying such conduct. Id. at 964; see Lavia, 224 at 197 (quotation omitted). If Title II is an effort to substantively redefine the constitutional right at issue here, it is not appropriate prophylactic legislation. See Kimel, 528 U.S. at 81, 120 S.Ct. 631. In enacting the ADA, Congress specifically found that individuals with mental disabilities are isolated and segregated. See 42 U.S.C. § 12101(a)(2), (5). Congress observed that “discrimination against individuals with disabilities persists in such critical areas as ... institutionalization.” 42 U.S.C. § 12101(a)(3). Congress set forth “the Nation’s proper goals regarding individuals with disabilities,” including “full participation, independent living, and economic self-sufficiency.” 42 U.S.C. § 12101(a)(8). While it is clear that Congress sought to remedy the segregation of individuals with disabilities, Congress did not specifically note, in statutory text, discriminatory conduct on the part of the States. In determining whether a particular statutory enactment is appropriate legislation under § 5, the Supreme Court has examined the legislative record. See Kimel, 528 U.S. at 88, 120 S.Ct. 631. In crafting the ADA, Congress had before it a report issued by the United States Commission on Civil Rights entitled Accommodating the Spectrum of Individual Abili ties. In a chapter describing “ongoing and historical handicap discrimination” under a section devoted to institutionalization, the Commission specifically referenced “public institutions,” writing: There has been increasing acceptance in recent years of the fact that most training, treatment, and habilitation services can be better provided to handicapped people in small, community-based facilities rather than in large, isolated institutions. Professionals, courts, Congress and more than one President have called for “deinstitutionalization” and the development of appropriate community programs. Because of such official reorientation toward community alternatives and a variety of other factors (such as the emergence of new service philosophies among human service professionals and the development of drug therapies and other novel treatment approaches), the number of handicapped persons in residential facilities has dwindled in the past two decades. Despite such initiatives, a great many handicapped persons remain in segre-gative facilities. The Comptroller General has estimated that about 215,500 persons were residing in public mental hospitals in 1974 and that some 181,100 persons were in public institutions for mentally retarded people as of 1971. In 1976 one study estimated that 1,550,120 persons were in long term residential care facilities. United States Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities, 34-35 (1983) (footnotes omitted). The Commission recognized that institutions continue to be “instruments of segregation.” Id. at 33. Additionally, in urging the passage of the ADA, Congressman Miller observed that “[s]ociety has made [people with disabilities] invisible by shutting them away in segregated facilities.” 136 Cong. Rec. H2447 (daily ed. May 17, 199Ó) (statement of Rep. Miller). The congressional record reveals that in enacting the ADA Congress was concerned about the segregation of individuals with disabilities in institutions. Moreover, while Congress did not specifically reference misconduct by the States, it did note discrimination associated with institutions, which are commonly state-operated facilities. While I think this case presents a close call, I cannot, against the backdrop of Kimel and Garrett, find that Congress sufficiently identified a “history and pattern” of unconstitutional discrimination by the States. In Kimel, 528 U.S. at 67, 120 S.Ct. 631, the Supreme Court concluded that Congress exceeded its authority under § 5 in abrogating the Eleventh Amendment with regard to the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621, et seq. In enacting the ADEA, Congress made findings comparable to those it made in enacting the ADA. Without identifying the State as a culprit, Congress found that older workers are disadvantaged in retaining and regaining employment. See 29 U.S.C. § 621(a)(1) (1994). After examining the legislative record, which included charges of discrimination by government employers, the Court determined that “evidence consisting] almost entirely of isolated sentences clipped from floor debates and legislative reports” is insufficient to establish a pattern of unconstitutional discrimination by the States. Kimel, 528 U.S. at 89, 120 S.Ct. 631. In concluding that the States’ immunity to suit was not properly abrogated through Title I, the Court in Garrett considered the finding of Congress contained in 42 U.S.C. § 12101(a)(2) and the record assembled by Congress which included descriptions of incidents to support Congress’ finding. See Garnett, 121 S.Ct. at 965. The Court determined that the misconduct identified by Congress was not sufficient because it did not reflect misconduct by the States and it was not clear that the misconduct identified was unconstitutional. See id. at 965. In reviewing the congressional record, the Court noted that “the great majority” of the incidents described therein did not involve State activities. See id. Given the number of individuals employed by the State, the Court emphasized the lack of attention paid to the States by Congress. See id. at 965-66. “[I]f Congress had truly understood [the] information [before it to reflect] a pattern of unconstitutional behavior by the States, one would expect some mention of that conclusion in the Act’s legislative findings.” Id. at 966. Moreover, because the incidents of State action that did exist were taken out of context, it was not clear that the conduct described was irrational. As summarized by the Third Circuit in finding that Congress’ attempted abrogation of Title I was ineffective, “[w]ithout more detailed findings concerning a nationwide pattern of arbitrary and illegitimate discrimination against the disabled by the states, the ADA cannot be viewed as a proportional and congruous response to the problem of state-perpetrated discrimination against the disabled. While the ADA’s goal of eliminating discrimination may be a laudable aim for federal legislation, it is not one which serves the purpose of enforcing the protections provided by the Fourteenth Amendment.” Lavia, 224 F.3d at 205. Similarly, while I have not been provided with a figure, the number of individuals with disabilities in state-operated institutions is certainly significant. Yet, absent from the ADA’s legislative findings with regard to institutionalization is any reference to transgressions on the part of the States. Furthermore, what is lacking here in Congress’ bald and generalized conclusions regarding the treatment of the disabled is enough context to determine whether the referenced conduct is irrational and therefore unconstitutional. Even if I were to find that Congress successfully documented a “history and pattern” of unconstitutional discrimination by the States, Plaintiffs would still have to overcome “congruence and proportionality” concerns regarding the rights and remedies created by Title II, which, with other statutes, have not easily been alleviated. See generally, Garrett, 121 S.Ct. at 966-68; Kimel, 528 U.S. at 82-83, 120 S.Ct. 631; City of Boerne v. Flores, 521 U.S. 507, 533, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (finding that Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb (1994), et seq., lacks congruence and proportionality). In considering the narrow issue of whether Title II represents a valid congressional abrogation of the States’ immunity to actions brought against a State child welfare agency based on its policy of separating HIV-positive newborns from their HIV-positive mothers when the mother refuses to consent to treatment, a district court in New Jersey concluded that Congress exceeded its authority under § 5 by placing on the States, inter alia, the affirmative duty to modify rules, policies and practices to accommodate the disabled, see 42 U.S.C. § 12131(2), a duty which is not constitutionally required. See Doe v. Div. of Youth and Family Servs., 148 F.Supp.2d 462, 489 (D.N.J.2001). As the implementing regulation explains, “[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.” 28 C.F.R. § 35.130(b)(7) (2000). This obligation far surpasses what is constitutionally mandated in the instant matter as well. State public welfare agencies are not constitutionally required to undergo a comprehensive modification of their rules, policies, and practices in order to accommodate all disabled individuals. While the Constitution does in some instances require that the State act rationally in providing appropriate care, this right is held by disabled individuals who are involuntarily institutionalized, not all disabled individuals. Even with regard to involuntarily institutionalized individuals, enforcement of the substantive due process right asserted here by the Plaintiffs may require modification of State policies that irrationally interfere with the provision of treatment recommended by professionals, but the Constitution does not require the State to make all modifications necessary to prevent discrimination. I am therefore compelled to dismiss Count II against the DPW as to Plaintiffs Nina S. and Kevin C. B. Defendant Houstoun’s amenability to suit under the ADA and section 504 Defendants argue that because Houstoun is not a proper defendant under Title II of the ADA (Counts II and IV) and section 504 (Counts I and III) she cannot be properly sued in her official capacity as Secretary of the DPW under the doctrine articulated by the Supreme Court in Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which generally allows private individuals to seek prospective injunctive relief in federal court against state officials for violations of federal law. See Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985). Defendants contend that because Title II of the ADA and section 504 direct their prohibitions to a “public entity” and “any program or activity receiving Federal financial assistance,” respectively, individuals cannot be proper defendants. Defendants urge me to adopt the reasoning of the district court in the District of New Mexico in Lewis v. New Mexico Dept. of Health, 94 F.Supp.2d 1217 (D.N.M.2000). In Lewis, individuals who were eligible to participate in Medicaid and an agency that advocates for the rights of people with disabilities sued two state officials in their official capacities, asserting several claims, including one brought under the ADA. Id. at 1221-22. The court concluded that the Plaintiffs could not properly invoke section