In Olmstead, the Supreme Court addressed this statutory and regulatory scheme and reached two conclusions. First, the Court held that "[u]njustified isolation" of disabled persons "is properly regarded as discrimination based on disability." 527 U.S. at 597; see also Sanchez, 416 F.3d at 1063 ("In Olmstead, the Supreme Court interpreted . . . the ADA as forbidding the arbitrary segregation of the disabled in large state institutions."). Second, however, the Court held that "[t]he State's responsibility, once it provides community-based treatment to qualified persons with disabilities, is not boundless. . . . Sensibly construed, the fundamental-alteration component of the reasonable-modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility [*44] the State has undertaken for the care and treatment of a large and diverse population of persons with . . . disabilities." 527 U.S. at 603-04; see also Arc of Wash. State, 427 F.3d at 619 ("[T]he Court recognized certain state justifications that would defeat an ADA-based challenge, for example 'the States' need to maintain a range of facilities for the care and treatment of persons with diverse . . . disabilities, and the States' obligation to administer services with an even hand.'" (quoting Olmstead, 527 U.S. at 597)). The Court held that under the ADA, "States are required to provide community-based treatment for persons with . . . disabilities when the State's treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with . . . disabilities." Olmstead, 527 U.S. at 607; accord id. at 587.
The district court rejected Plaintiffs' ADA claim on two grounds. The court concluded that to state a violation of the ADA's integration mandate, Plaintiffs were required to show "that the State's action [*45] leaves them no choice but to submit to institutional care to obtain services for which they are otherwise qualified." In the alternative, the court concluded that requiring Washington to maintain in-home personal care services hours at pre-regulation levels "would likely constitute a fundamental alteration of the state's Medicaid program." We take the court's two conclusions in turn.
First, the district court erred in stating the legal standard under the integration mandate of the ADA. An ADA plaintiff need not show that institutionalization is "inevitable" or that she has "no choice" but to submit to institutional care in order to state a violation of the integration mandate. Rather, a plaintiff need only show that the challenged state action creates a serious risk of institutionalization. The United States Department of Justice ("DOJ"), the agency that promulgated the regulation containing the integration mandate, 28 C.F.R. § 35.130(d), filed a statement of interest in the district court in which it argued in favor of a preliminary injunction. In its filing, DOJ wrote that "[t]he integration mandate prohibits public entities from pursuing policies that place individuals at risk of [*46] unnecessary institutionalization." "[I]mminent risk of institutionalization is not required." Rather, "[t]he elimination of services that have enabled Plaintiffs to remain in the community violates the ADA, regardless of whether it causes them to enter an institution immediately, or whether it causes them to decline in health over time and eventually enter an institution in order to seek necessary care."
We afford DOJ's view considerable respect. Olmstead, 527 U.S. at 597-98 ("Because the Department is the agency directed by Congress to issue regulations implementing Title II [of the ADA], its views warrant respect."). We also defer to an agency's reasonable interpretation of its own statutorily authorized regulation. Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197, 1214 (9th Cir. 2009) (citing Fed. Express Corp. v. Holowecki, 552 U.S. 389, 395, 397, 128 S. Ct. 1147, 170 L. Ed. 2d 10 (2008)). An agency's interpretation of its own regulation is "controlling unless plainly erroneous or inconsistent with the regulation." Auer v. Robbins, 519 U.S. 452, 461, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997) (internal quotation marks omitted); Barboza v. Cal. Ass'n of Prof'l Firefighters, 651 F.3d 1073, 1079 (9th Cir. 2011) ("[U]nless an alternative reading is compelled [*47] by the regulation's plain language or by other indications of [the agency's] intent at the time of the regulation's promulgation, deference is required." (internal quotation marks and citation omitted)).
The district court discounted DOJ's interpretation of the integration mandate as "a self-serving agency interpretation taken solely in the context of ongoing litigation." In Auer, the Supreme Court rejected the argument that an agency position taken in an amicus brief was unworthy of deference:
[T]hat the Secretary's interpretation comes to us in the form of a legal brief . . . does not, in the circumstances of this case, make it unworthy of deference. The Secretary's position is in no sense a post hoc rationalization advanced by an agency seeking to defend past agency action against attack. There is simply no reason to suspect that the interpretation does not reflect the agency's fair and considered judgment on the matter in question.