Dissenting.
While deinstitutionalization has caused problems both for patients and society, I respectfully dissent to the majority decision because Stephen Dvorchak, the guardian of Ruth Easly (Easly), did not have the right to determine whether Easly should be transferred to another facility.
Easly is a mentally retarded 72-year old woman. At age 14, her parents committed her to Polk Center, an intermediate care facility for the mentally retarded. She has resided at Polk Center since that time. In 1988, Easly’s nephew, Stephen Dvorchak (Guardian), was appointed her guardian. In 1998, the Department of Welfare (DPW) determined that Easly could function in a community setting and began planning for her removal to the group home known as Cambrian Hills Center. This was done pursuant to Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12165, which prohibits the discrimination of disabled persons and precludes their exclusion from participation in or the denial of the benefits of a public entity’s services, programs or activities. Under instruction from Congress, the Attorney General issued regulations implementing Title II as it applied to institutional placement after concluding that unjustified placement or retention of disabled persons that limited their exposure to the outside community constituted a form of discrimination that was prohibited by Title II.
Easly visited the group home several times and was transferred there on February 9, 1999. Guardian opposed Easly’s placement at Cambrian Hills Center and she was returned to Polk Center, and DPW then filed a petition with this court to have Easly committed to the group home. Guardian filed preliminary objections and we transferred the matter to the Court of Common Pleas of Venango County (trial court). The trial court determined that Easly’s Guardian should have been allowed to participate in the decision regarding her transfer, that Guardian should have been afforded a hearing prior to her transfer, and that based upon the *864evidence presented, Easly was better provided for at Polk Center and having her remain there was in her best interests. The trial court further found that transferring Easly from Polk Center to Cambrian Hills Center, despite the objections of Guardian, was tantamount to moving her to the group home over her objections.
DPW filed an appeal and the majority affirms the trial court’s decision. The majority agrees with the trial court that Guardian had the right to participate on Easly’s behalf in the decision making process regarding her transfer pursuant to Section 5502 of the Incapacitated Persons Act, 20 Pa.C.S. § 5502, and reject her placement at Cambrian Hills Center, and that she had a right to a pre-discharge hearing because she was being transferred to a “waiver facility.” I disagree with the majority because although Guardian had a right to participate in deciding whether Easly should be transferred to another facility, he did not have the right to make that ultimate decision.
Section 5502 of the Incapacitated Persons Act provides, in relevant part, the following:
Recognizing that every individual has unique needs and differing abilities, it is the purpose of this chapter to promote the general welfare of all citizens by establishing a system which permits incapacitated persons to participate as fully as possible in all decisions which affect them, which assists these persons in meeting the essential requirements for their physical health and safety, protecting their rights, managing then* financial resources and developing or regaining their abilities to the maximum extent possible and which accomplishes these objectives through the use of the least restrictive alternative... (Emphasis added.)
20 Pa.C.S. § 5502. As can be seen, this Act only allows incapacitated persons or their guardians to participate in decisions that affect them, not to decide the outcome of those issues. While “participation” is not defined under the Act, clearly it limits the incapacitated person to providing input on issues affecting them and certainly does not provide that the incapacitated person or their guardian can decide what is best for that individual.
Relying on Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), interpreting the ADA, the majority equates participation with veto power over placement and holds that Easly had the right to reject any movement to a facility without his approval. It states in its decision that Guardian “is now only attempting to protect Ms. Easly’s right to participate in a decision affecting her care and exercise Ms. Easly’s right to reject placement at Cambrian Hills, a community based facility, and remain at Polk Center.” (Majority decision at p. 853.) Olmstead, however, is factually distinguishable from this case.
Olmstead dealt with unwarranted institutionalization, i.e., a more restrictive setting, of two mentally retarded women confined to a hospital psychiatric unit who were refused appropriate placement in a community-based program, i.e., a less restrictive setting. The United States Supreme Court interpreted Title II of the ADA, 42 U.S.C. § 12132,1 finding that the proscription of discrimination might require the placement of persons with mental disabilities in community settings rather than in institutions, and unjustified *865institutional isolation of persons with disabilities was a form of discrimination. It held that states were required to provide community based treatment for persons with mental disabilities when (1) the state’s treatment professionals determined that community placement was appropriate; (2) the affected persons did not oppose the transfer from institutional care to a less restrictive setting; and (3) the placement could be reasonably accommodated, taking into account the resources available to the state and the needs of others with mental disabilities.
While Olmstead, held that a transfer to a community based treatment facility was required because it was a less restricted setting, here, the exact opposite is true. Having the right to be transferred to a less restrictive setting pursuant to the ADA to prevent discrimination does not conversely translate into having the right to oppose the transfer from a more restrictive setting. Athough the majority determines that Easly opposed the transfer via her Guardian, under the Act, all that is required is that the affected person be permitted to participate in the decision, i.e., provide input; they are not given veto power.
Any objection made by a guardian is tantamount to a preference and cannot be the basis for determining that the transfer should not take place. Because the government is paying for Easly’s care, aside from participating in the decision, her Guardian does not have the right to challenge any state decision absent a showing that the care would be inadequate. Because a pre-discharge hearing would not be required, I dissent.
Judge FLAHERTY joins.. 42 U.S.C. § 12132 provides:
Subject to the provisions of this title, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.