Braddock

Opinion by Judge KOZINSKI; Concurrence by Judge FERNANDEZ.

ORDER

The petition for rehearing is GRANTED. The petition for rehearing en banc is DENIED as moot. The opinion filed March 29, 2005, and reported at 403 F.3d 641 , is withdrawn, and is replaced by the Opinion and concurrence, 03-35605. Further petitions for rehearing and rehearing *617 en banc will be accepted. See Fed. R.App. P.35; Fed. R.App. P. 40.

OPINION

We navigate once again the murky waters between two statutory bodies: Medicaid and the Americans with Disabilities Act (ADA). Specifically, we examine whether a state violates the ADA when it limits the number of people that can participate in a Medicaid waiver program providing disabled persons with alternatives to institutionalization.

Facts

Medicaid is a program under which the federal government provides financial assistance to participating states to help them furnish care to low-income persons. If a state chooses to participate—which all fifty do—it must submit a plan for approval by the federal regulators. See Children’s Hosp. & Health Ctr. v. Belshe, 188 F.3d 1090, 1093 (9th Cir.1999).

Washington State Department of Social and Health Services (the…

concurring:

I do not generally disagree with the majority opinion, but I continue to be of the opinion that the ADA must yield to the specific cap provision discussed in the opinion. For that reason, I incorporate here the opinion in The Arc of Washington State Inc. v. Braddock, 403 F.3d 641 (9th Cir.2005), which is now mine alone. I believe that it says quite enough to properly resolve this case without placing a higher burden upon the states than the law requires and without being unduly obscu-rant.

Thus, I concur.

Facts

Medicaid is a program under which the federal government provides financial assistance to participating states to help them furnish care to low-income persons. If a state chooses to ARC OF WASHINGTON v. BRADDOCK 14117 participate—which all fifty do—it must submit a plan for approval by the federal regulators. See Children’s Hosp. & Health Ctr. v. Belshe, 188 F.3d 1090, 1093 (9th Cir. 1999).

Washington State Department of Social and Health Ser- vices (the Department) devised a plan which provided for two types of services to certain Medicaid-eligible developmentally disabled individuals. First, it funded Intermediate Care Facili- ties for the Mentally Retarded (ICF/MR), which are generally large public institutions made available to any person who meets the eligibility requirements for admission. See 42 U.S.C. § 1396d(a)(15), (d). In addition, the plan used some ICF/MR funds to support smaller, privately operated resi- dences that serve between six and forty individuals each. Sec- ond, in an effort to offer alternatives to institutionalization, the Department sought and received a waiver of certain ICF/ MR rules. See id. § 1396n(c)(1); 42 C.F.R. § 441.300.…