Delivering on the Promise:
U.S. Department of Justice
Self-Evaluation
to Promote
Community Living for People with Disabilities
Report to the President
On Executive Order 13217
DEPARTMENT OF JUSTICE
Executive Summary
As an enforcement agency, the focus of the Department of Justice (the Departmen
or DOJ) in the review mandated by Executive Order No. 13217, is on how most
effectively and meaningfully to fulfill the President=s mandate of swift implementation
of the United States Supreme Courts decision in Olmstead v. L.C., 527 U.S.
581 (1999). The Departments work in this area is largely centralized within
the Civil Rights Division, which is responsible for the laws relevant to promoting
the rights of individuals with disabilities. These laws include the Americans
with Disabilities Act of 1990 (ADA), 42 U.S.C. '' 12101 et seq., the law interpreted
by the United States Supreme Court in Olmstead, which is enforced in part
by the Divisions Disability Rights Section; the Civil Rights of Institutionalized
Persons Act (CRIPA), 42 U.S.C. ' 1997, which is enforced by the Departments
Special Litigation Section; and the Fair Housing Act (FHA), 42 U.S.C. '' 3601
et seq., which is enforced by the Divisions Housing and Civil Enforcement
Section. Other Department components may facilitate the smooth transition
of individuals with disabilities moving from institutions to community settings.
The Office of Community Oriented Policing Services (COPS) and the Community
Relations Service (CRS) will work to find ways to reduce the extent to which
individuals with mental illness become involved with the criminal justice
system as they move from institutional to community settings. The Departments
goal is to continue vigorous enforcement within the Civil Rights Division
in cooperation with and with the support of other components of the Department.
Americans with Disabilities Act
The Department played an important role in developing the position adopted
by the United States Supreme Court in Olmstead, where the Court interpreted
the ADAs requirement to provide State and local government services in the
most integrated setting appropriate to the needs of the individual with a
disability, and to require that States place individuals with disabilities
in community settings, rather than institutions, whenever appropriate. The
Department has advanced and will continue to further the ADAs integration
requirement in the aftermath of the Olmstead decision.
Additionally, the Departments work in enforcing titles II and III of the ADA
broadly protects the rights of people with disabilities to live and work as
fully integrated members of society, by ensuring the accessibility of government
services, housing and social services, transportation, health care, child
care, insurance, employment by public entities, and a host of consumer goods
and services provided by private businesses. The Departments technical assistance
programs, which educate the public about the requirements of the ADA and the
rights of individuals with disabilities, and its commitment to alternative
dispute resolution through a substantial mediation program, further enhance
the Departments enforcement efforts.
Despite over a decade of strong ADA enforcement, technical assistance, and
significant advancement of the rights of individuals with disabilities, barriers
remain. Barriers include unnecessary institutionalization, such as that at
issue in Olmstead; impediments involving laws and enforcement; and a lack
of accessible housing (discussed in conjunction with the Fair Housing Act,
below), transportation, and health care services.
To overcome these barriers, the Department plans to take the following concrete
steps:
Develop and issue 3 technical assistance documents: a AKnow Your Rights@ piece
for people currently living in institutions to address widespread lack of
understanding of the ADA and the rights protected in the Olmstead decision;
a similar document targeted for people who are on the verge of being institutionalized;
and a document designed to assist States in implementing their responsibilities
under Olmstead.
Ensure comprehensive enforcement of the ADA with respect to public programs
and public and private institutions by increasing coordination activities
between the DOJ and the Department of Health and Human Services (HHS).
Ensure the accessibility of inner city buses and paratransit services in conjunction
with the Department of Transportation (DOT) with whom DOJ shares ADA enforcement
responsibility, as well as through increased DOJ involvement in private suits
as amicus curiae. Working collaboratively with DOT, DOJ will develop a list
of criteria to guide DOT to refer appropriate paratransit complaints to DOJ
for enforcement purposes.
Work to ensure the accessibility of mental health services within communities
for people who are deaf, are hard-of-hearing, or have speech impairments by
investigating ways to
1. 1. expand the Departments nationwide campaign to improve communications
access by targeting, in particular, mental health services.
2. 2. Target enforcement efforts to end discrimination in the provision of
dental services to people with cognitive and developmental disabilities, in
order to overcome a barrier identified by many of the public commenters.
3. 3. Expand the Departments mediation program for Olmstead-related claims,
including training additional mediators, investigating ways to train lay advocates
to assist individuals with certain kinds of disabilities that may affect the
equality of bargaining power, and investigating and working toward the possibility
of implementing a formal arrangement under which HHS could refer unresolved
individual Olmstead complaints to this program.
4. 4. Hold a meeting between disability rights advocates and the Assistant
Attorney General for the Civil Rights Division to open lines of communication
regarding Olmstead-related issues.
5. 5. Engage in additional outreach and research to determine how the Department
should address the need to provide community services for children with significant
disabilities so that such children may remain with their families and within
the community.
Civil Rights of Institutionalized Persons Act
The Civil Rights of Institutionalized Persons Act, 42 U.S.C. ' 1997 (CRIPA),
addresses the rights of individuals who reside in institutions run by or on
behalf of a government. Under CRIPA, the Department may initiate a civil action
where there is reasonable cause to believe that a State or political subdivision
of a State is engaged in a pattern or practice of subjecting institutionalized
individuals to conditions that deprive them of the rights secured by the United
States Constitution or Federal laws. The Civil Rights Divisions Special Litigation
Section enforces CRIPA and handles the majority of the Departments work under
Olmstead. See Appendix A for a list of Special Litigations Olmstead-related
efforts. In its investigations of health care institutions, the Department
collects evidence to determine whether there are violations of Federal statutes
and regulations, including the ADA, Section 504 of the Rehabilitation Act,
title XIX of the Social Security Act, and various Medicaid programs.
Over the years, the Department has investigated ADA integration regulation
violations at 27 institutions for people with developmental disabilities,
6 psychiatric hospitals, 5 nursing homes, and 1 residential school for students
with visual disabilities. The Department continues to pursue and has completed
cases and investigations in 17 States, the District of Columbia, and the Commonwealth
of Puerto Rico. The Department has also filed briefs as amicus curiae addressing
the meaning of the ADA=s integration regulation in 4 cases involving the unnecessary
segregation of people in institutions.
Despite these efforts, some barriers remain. To overcome these barriers, the
Department plans to carry on its strong enforcement of CRIPA as well as its
ongoing technical assistance efforts. Additionally, the Department plans to
take the following specific steps to enhance its ability to enforce CRIPA
and help move people from institutions to community settings when appropriate:
Consider mechanisms that would give the Department greater investigative abilities
under CRIPA, address issues arising from community placements, and address
allegations of discrimination in purely private institutions.
Increase the Department=s staff training and information gathering efforts
to specifically address the Olmstead initiative.
Increase the Department=s outreach and education, especially directed to parents
and other family members of people currently residing in institutions, those
on the verge of institutionalization, and treating professionals. Such education
will assist family members in understanding the benefits of community placement.
It will also address some treating professionals' unfamiliarity with community
placement alternatives, reducing the likelihood that persons with disabilities
who can be placed in community settings will be unnecessarily institutionalized.
Explore ways to address the shortage of community services and supports, including
increasing the availability of direct care staff to work in community settings
and the number of mental health courts across the country.
Increase coordination with other Federal agencies, such as the Department
of Housing and Urban Development (HUD) and CMS to address available housing
in the community and other key issues.
Increase coordination between the Civil Rights Division=s Special Litigation
Section and other Department components that investigate Medicaid/Medicare
Fraud statutes to address the fraud committed by an institution that accepts
Federal money to care for an individual who is unnecessarily institutionalized.
The Fair Housing Act
Without the availability of accessible, affordable housing, many persons with
disabilities have no choice but to live in institutions, e.g., nursing homes
or hospitals, rather than community settings. Thus, ensuring an adequate supply
of both public and private housing that is accessible and affordable is a
vital step toward meeting the goals of President Bush=s Executive Order. Enforcement
of the Fair Housing Act=s (FHA) prohibitions against discrimination on the
basis of disability in all types of housing transactions is a key component
of ensuring that persons with disabilities are able to live in communities
of their choice across the country. The Department of Justice shares authority
for enforcing the FHA with HUD.
Since October 1, 1996, the Civil Rights Division has brought 38 lawsuits against
developers, builders, owners, architects, and/or site engineers to enforce
the FHA=s design and construction requirements for new multi-family housing
and an additional 25 cases to enforce the FHA=s requirements against disability-based
discrimination and for reasonable accommodations. During this time, the Civil
Rights Division has brought an additional 10 cases to ensure that zoning and
other regulations concerning land use are not employed to hinder the residential
choices of individuals with disabilities by unnecessarily restricting communal
or congregate-residential arrangements, such as group homes.
There has been a significant amount of litigation concerning the ability of
local governmental units to exercise control over group living arrangements,
particularly for persons with disabilities. To provide guidance on these issues,
DOJ and HUD have issued a Joint Statement on Group Homes, Local Land Use,
and the FHA. This joint statement is available at http://www.usdoj.gov/crt/housing/housing_special.htm.
Additionally, DOJ, HUD, and the Department of the Treasury have entered into
a Memorandum of Understanding (MOU) in a cooperative effort to promote enhanced
compliance with the FHA, including the prohibition of discrimination on the
basis of disability, for all properties that receive relief from Federal income
tax in the form of low income housing tax credits. The DOJ/HUD/IRS Memorandum
of Understanding is available on our web site at http://www.usdoj.gov/crt/housing/mou.htm.
Despite the progress that has been made in recent years, there remains a huge
unmet need for affordable housing that is accessible to persons with disabilities.
To continue to break down barriers that prevent persons with disabilities
from living in communities of their choice across the country, the Department
is committed to continuing and enhancing its fair housing program. Specifically,
DOJ will take the following steps:
1. 1. Continue to devote substantial resources to investigations and enforcement
actions against developers, builders, architects, and site engineers who design
and/or construct multi-family housing that does not comply with the requirements
of the FHA and rental offices and other places of public accommodation within
housing complexes that do not comply with the ADA.
2. 2. Conduct investigations, initiate enforcement actions, and participate
as amicus curiae in private lawsuits under the FHA with respect to discriminatory
land use and zoning decisions that prevent group homes from being operated
in community settings.
3. 3. Investigate and take enforcement action to eliminate discriminatory
housing practices that deny reasonable structural modifications to housing
units, disqualify persons with disabilities from living in certain types of
housing, impose discriminatory conditions of residence/use on persons with
disabilities, or deny reasonable accommodations that may be necessary for
persons with disabilities to have an equal opportunity to enjoy and use housing.
4. 4. Encourage advocacy groups and private counsel representing persons with
disabilities to alert the Department to private lawsuits where amicus participation
by the Department would assist the court in interpreting and applying the
provisions of the FHA and Section 504 of the Rehabilitation Act.
5. 5. Use the Department=s Fair Housing Testing program to identify patterns
or practices of discrimination against persons with disabilities by individuals
and entities engaged in the sale or rental of housing.
6. 6. Continue to work with HUD to increase the accessibility of public housing
by improving enforcement of the nondiscrimination requirements (including
accessibility and reasonable accommodation requirements) of Section 504 of
the Rehabilitation Act and the FHA against public housing authorities and
other recipients of Federal funds.
7. 7. Develop guidelines to assist HUD in identifying Section 504 accessibility
cases that should be referred to the Department for enforcement action. The
Department will meet with HUD on a quarterly basis to discuss Section 504
accessibility cases that meet the guidelines for referral to the Department
for enforcement action.
8. 8. Continue working with HUD and the Internal Revenue Service (IRS) to
implement the provisions of the Memorandum of Understanding among the agencies
so that housing providers that discriminate against persons with disabilities
do not benefit from low income housing tax credits.
9. 9. Continue to work with HUD to provide training and technical assistance
on compliance with the accessibility requirements of the FHA and Section 504
of the Rehabilitation Act, as applicable, to increase knowledge of, and compliance
with, these requirements among architects, developers, site engineers, and
public housing officials.
10. 10. Encourage universities offering courses of study in architecture and
engineering to provide courses in accessible design.
11. 11. Work with private entities, such as the National Association of Home
Builders, the American Institute of Architects, and other groups representing
design professionals and builders, to increase their members= knowledge and
understanding of the accessibility requirements of the FHA and Section 504
of the Rehabilitation Act.
12. 12. Increase efforts to work with other government agencies to improve
compliance with the nondiscrimination provisions of the FHA and Section 504
of the Rehabilitation Act as it relates to housing. For example, the Department
will continue to work with HUD on technical assistance to improve housing
providers= understanding of the FHA and Section 504 of the Rehabilitation
Act, as well as to improve enforcement of both Acts.
13. 13. Provide training on FHA and Section 504 of the Rehabilitation Act
accessibility requirements to officials who enforce State and local building
codes and encourage State and local governments to make accessibility requirements
for multi-family housing equivalent to, or greater than, the accessibility
requirements of the FHA.
14. 14. Encourage State and local officials to review plans for multi-family
housing and public housing for compliance with Federal accessibility requirements
or, alternatively, to provide developers, builders, architects, engineers,
and others involved in the design and construction of housing with literature
outlining Federal accessibility requirements and notice that plans have not
been reviewed for compliance with these requirements.
15. 15. Continue to underscore the legal obligations of all agencies that
provide or administer Federal financial assistance for housing programs to
require compliance with the FHA and Section 504 of the Rehabilitation Act
as a condition of the receipt and retention of funding and to refer noncompliant
programs to the Department for enforcement action.
FINAL REPORT OF THE ATTORNEY GENERAL
Pursuant to Executive Order No. 13217, Community-Based Alternatives for Individuals
with Disabilities, the Department of Justice (the Department or DOJ) has engaged
in an ongoing review of its practices, policies, and procedures to determine
whether any should be modified to improve the availability of community-based
services for individuals with disabilities. To ensure the effective implementation
of this Executive Order, the Attorney General has designated the Associate
Attorney General to represent him on the Inter-Agency Coordination Council,
which is chaired by the Deputy Secretary of the Department of Health and Human
Services (HHS) and to direct the Department=s compliance efforts. This Final
Report contains the findings of the Department=s review to date.
As an enforcement agency, the Department=s focus is on how most effectively
and meaningfully to fulfill the President=s mandate of swift implementation
of the United States Supreme Court decision in Olmstead v. L.C., 527 U.S.
581 (1999), where the Court construed title II of the Americans with Disabilities
Act (ADA) to require States to place individuals with disabilities in community
settings, rather than institutions, whenever appropriate. The Department is
committed to the community placement of individuals with disabilities. In
Helen L. v. Didario, 46 F.3d 325 (3rd Cir.), cert. denied, 516 U.S. 813 (1995),
the Department successfully argued as amicus curiae that the Pennsylvania
Department of Public Welfare=s refusal to provide attendant care in the home
for an individual with a mobility impairment who was qualified for attendant
care, and who needed services to live with her children in her home, violated
the requirement of the ADA that services be provided in the most integrated
setting appropriate to the needs of people with disabilities. The Department
of Public Welfare had required the woman to enter a nursing home to obtain
the assistance she needed. The Department subsequently made similar arguments
regarding the integration requirement of title II in Williams v. Wasserman,
937 F. Supp. 524 (D. Md. 1996). [1] Additionally, the Department of Justice
worked closely with HHS in developing the government=s position in Olmstead,
where again, as amicus curiae, the Department asked the Supreme Court to rule
that unnecessary institutionalization may be a violation of title II. The
Court agreed and ruled that a community placement is required where the State=s
treatment professionals have determined that it is appropriate, the individual
does not object to it, and where it can be reasonably accommodated considering
the resources available to the State and the needs of other persons with disabilities
served by the program at issue.
The ADA, 42 U.S.C. '' 12101 et seq., broadly protects the rights of individuals
with disabilities. The Civil Rights Division=s Disability Rights Section is
responsible for implementation of regulations and enforcement of titles II
and III of the ADA and for litigation of employment claims under title I involving
State governments. Title II applies to State and local government entities,
and, in subtitle A, protects qualified individuals with disabilities from
discrimination on the basis of disability in services, programs, and activities.
Title III covers, among others, private businesses known as places of public
accommodation, including, among others, the offices of health care providers,
child care centers, and a variety of community-based service providers. The
Disability Rights Section is also responsible for coordination of Federal
agencies= implementation of Section 504 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. ' 794 (Section 504 or Rehabilitation Act of 1973), which
prohibits discrimination on the basis of disability in federally funded and
federally conducted programs.
The Civil Rights of Institutionalized Persons Act, 42 U.S.C. ' 1997 (CRIPA),
concerns the rights of individuals who reside in institutions operated by
or on behalf of a government. Under CRIPA, the Department may initiate a civil
action where there is reasonable cause to believe that a State or political
subdivision of a State is engaged in a pattern or practice of subjecting institutionalized
individuals to conditions that deprive them of the rights secured by the United
States Constitution or Federal laws. The Civil Rights Division=s Special Litigation
Section enforces CRIPA and handles the majority of the Department=s work under
Olmstead. See Appendix A for a list of Special Litigation=s Olmstead-related
efforts. In its investigations of health care institutions, the Department
collects evidence to determine whether there are violations of Federal statutes
and regulations, including the ADA, Section 504 of the Rehabilitation Act,
title XIX of the Social Security Act, and various Medicaid programs.
The Fair Housing Act, 42 U.S.C. '' 3601 et seq. (FHA), prohibits discrimination
on the basis of disability in all types of housing transactions. The Civil
Rights Division=s Housing and Civil Enforcement Section shares responsibility
for enforcing the FHA with the Department of Housing and Urban Development.
Under the FHA=s accessibility requirements, newly constructed, multi-family
housing must be accessible to and adaptable for use by individuals with disabilities.
The FHA=s accessibility requirements are more modest than those of the ADA,
most notably with respect to spaces inside individual units where the FHA
typically requires only that a space can be made usable by individuals with
disabilities, including persons who use wheelchairs. The Department also works
to ensure that zoning and other regulations concerning land-use are not employed
to hinder the residential choices of individuals with disabilities; such hindrances
include unnecessarily restricting communal or congregate-residential arrangements,
such as group homes. These sorts of residential arrangements are frequently
used for community placement of individuals with disabilities.
The breadth of the Department=s enforcement authority regarding the rights
of individuals with disabilities, therefore, reaches both institutional settings
and a great variety of the government services and private businesses that
are necessary to implement and sustain effective community-based care. In
addition to enforcement of these statutes within the Civil Rights Division,
the Department has, in undertaking the review required by the Executive Order,
identified other components, such as the Office of Community Oriented Policing
Services (COPS) and the Community Relations Service (CRS) that may help facilitate
the goals of the Executive Order. The Civil Rights Division is leading the
Department-wide review and has formed an Olmstead committee comprised of members
of the Disability Rights Section, the Housing and Civil Enforcement Section,
and the Special Litigation Section. The Department=s goal is to continue vigorous
enforcement within the Civil Rights Division in cooperation and with the support
of other components of the Department.
This Final Report provides a list of the Department=s accomplishments to date
that is relevant to the community placement of individuals with disabilities,
a discussion of recognized barriers, and a blueprint for solutions and the
future implementation of the Olmstead decision.
I. The Americans with Disabilities Act of 1990 (ADA)
A. ADA Accomplishments to Date.
The Department has broad authority under the ADA to ensure that individuals
with disabilities have access to community life. For individuals with disabilities
to live freely within community settings, a great variety of community-based
facilities and services must be made accessible. People with disabilities
must have access to grocery stores and other retail establishments that provide
consumer goods. Individuals who use wheelchairs need curb ramps on sidewalks
to be able to move freely through the community. Individuals moving from institutions
into community settings must have access to basic transportation services.
Employment and vocational services are also important to a self-sufficient
and sustained life in the community. Access to affordable, accessible housing
and to health care services, including basic psychiatric care and counseling,
must be readily available to such individuals. In nearly a decade of ADA enforcement,
the Department has made great strides in ensuring accessibility to these sorts
of services and establishments in communities nationwide.
The Department enforces the ADA in a variety of contexts, including public
employment, State and local government services, private businesses known
as public accommodations and commercial facilities, and licensing and testing
entities. The Department implements the ADA by developing regulations, providing
technical assistance to enable the public to understand the regulations, and,
when necessary, conducting investigations and pursuing litigation to enforce
the ADA. The kinds of discrimination the Department seeks to resolve vary
from policies prohibiting individuals with certain disabilities from receiving
services, to architectural barriers to access for individuals who use wheelchairs,
to communication barriers that prevent individuals with hearing or speech
disabilities from effectively communicating in the receipt of services, among
others B all of which aim to fulfill the ADA=s mandate of integrating individuals
with disabilities into the mainstream of American life.
1. 1. The Department has played a leading role in the movement toward community
living.
The Department of Justice has played an important role in enforcing the integration
requirement of the title II regulation, which requires that government services
be provided to individuals with disabilities in the most integrated setting
appropriate to the needs of the individual. It is this requirement that the
United States Supreme Court interpreted in the Olmstead decision. Most of
the Department=s work in this area is discussed with respect to the Civil
Rights of Institutionalized Persons Act (CRIPA), below.
When I was young, I was placed in an institution because my mother was unable
to look after me. I have Cerebral Palsy. . . . They told me what to do and
what not to do. And for me, that wasn=t living a good lifestyle. Now I live
in the community. I=m learning to be independent and live my own life. B Testimony
at Sept. 5, 2001, National Listening Session.
The Department of Justice successfully argued to the Supreme Court in Olmstead,
and to lower courts in previous cases, that unnecessary institutionalization
of individuals with disabilities is a form of disability-based discrimination
prohibited by title II. See Helen L. v. Didario, 46 F.3d 325 (3rd Cir.), cert.
denied, 516 U.S. 813 (1995); Williams v. Wasserman, 937 F. Supp. 524 (D. Md.
1996).
The Department has continued to further the ADA=s goal of integration in the
aftermath of the Olmstead decision. The Department filed an amicus curiae
brief in Newberry v. Menke (M.D. Tenn.), arguing that individuals who reside
in the community, but who are at risk of institutionalization, have standing
to challenge aspects of a Tennessee Medicaid program that allegedly create
incentives for institutionalization in violation of title II=s integration
requirement.
2. 2. Housing and social services are more accessible due to the Department=s
efforts.
Access to housing is critical to furthering the goals of Olmstead. Most of
the Department=s enforcement regarding accessible housing falls under the
Fair Housing Act, discussed below. Some housing-related issues are also covered
by the ADA. The Department has enforced titles II and III of the ADA with
respect to discriminatory zoning, leasing, and permitting practices that affect
facilities serving or housing individuals with disabilities.
The Department successfully argued that zoning is covered by title II of the
ADA. In Innovative Health Systems, Inc. (IHS) v. City of White Plains, 117
F.3d 37 (2nd Cir. 1997), for example, the Department filed an amicus curiae
brief supporting the plaintiffs= efforts to stop the City of White Plains,
New York, from preventing them from operating an alcohol and drug dependency
treatment program in the downtown area. The United States Court of Appeals
for the Second Circuit ruled that the ADA covers all of the activities of
State and local government, including zoning practices.
In other cases in which municipalities have attempted, through zoning or permitting
practices, to prevent services or accessibility renovations by entities, the
Department has supported challenges to the discriminatory practices. In Kennedy
v. Fitzgerald (N.D.N.Y. 2000), for example, the Department filed an amicus
curiae brief alleging that the city was violating title II by maintaining
and implementing a policy of refusing to permit businesses to encroach on
city sidewalks for the purpose of installing wheelchair ramps. In another
matter, the Department successfully argued that an organization intending
to operate a rehabilitation center for people with mental disabilities in
the downtown area could challenge the town=s opposition to its plans under
the ADA. Pathways Psychological Support Center had been refused permission
by the town to purchase a building and was later denied an occupancy permit
by the town. See Pathways Psychological Support Center v. Town of Leonardtown,
1999 WL 1068488 (D. Md. 1999), 15 NDLR P 221 (1999).
One of the greatest barriers to community treatment is the Anot in my back
yard@ NIMBY syndrome. B E-mail testimony of Aug. 23, 2001.
The Department has also worked to prevent discriminatory leasing practices
in circumstances affecting disability service providers. Under an agreement
with the Department, a commercial real estate corporation that refused to
lease office space in Northern Virginia to a nonprofit organization that serves
persons with disabilities will no longer discriminate against people with
disabilities and will take corrective action to ensure that it does not happen
in the future. The leasing corporation owns, manages, and develops retail
and office properties throughout the United States.
3. 3. The Department enforces the ADA with respect to a wide variety of public
and private transportation service providers.
People with disabilities often must rely on public transportation systems
to move about in the community. The ADA requires basic transportation services
such as public transit services (including paratransit services), over-the-road
buses, demand-response systems, rental cars, and taxi cabs to be accessible.
The Department shares the enforcement responsibilities for public transportation
with the Department of Transportation, which is responsible for investigating
complaints and, where deemed necessary, referring unresolved complaints to
the Department for litigation.
The Department has brought enforcement actions dealing with public transit
services. In Richardson v. City of Steamboat Springs (D. Colo. 2000), the
Department intervened and alleged that the City violated the ADA by purchasing
inaccessible used buses without first making the required good faith effort
to purchase accessible buses, by neglecting to repair inoperable wheelchair
lifts and to provide alternative transportation when wheelchair lifts were
inoperable, and by not adequately training bus drivers in the operation of
wheelchair lifts. The Department resolved the case by consent decree. In another
case, James v. Peter Pan Transit Management, Inc., 14 NDLR P 254 (E.D.N.C.1999),
the Department filed an amicus curiae brief to challenge the inaccessibility
of the Raleigh, North Carolina bus system to people who use wheelchairs. The
Department successfully argued that the public transit authority may be held
liable under title II for discrimination by a private company that provides
bus service to the public under a contract with the transit authority. The
Department has been involved in similar actions in Chicago and Philadelphia.
Some individuals who are moving from institutions to community settings may
also use taxi services. The Department has resolved a number of complaints
regarding taxi drivers who were unwilling to serve individuals who use wheelchairs,
as well as individuals who use service animals. In addition, some individuals
with disabilities will also experience difficulty traveling in private cars
when they are unable to refuel because many gas stations are inaccessible.
To address this problem, the Department has issued technical assistance documents
that make it clear that the ADA requires gas stations to ensure equal access
to their customers with disabilities by providing refueling assistance to
individuals with disabilities, on request, without any charge beyond the self-service
price.
4. 4. Health care and related social services remain a special focus of the
Department=s enforcement efforts.
Having full access to all necessary health care and social support services
is essential for individuals moving from institutions into communities. The
Department has worked vigorously to ensure the accessibility of a variety
of health care services to individuals with disabilities. Some of the public
input solicited in execution of the Executive Order indicated that some individuals
with disabilities, especially those with mental retardation and mental illness,
may have difficulty obtaining dental services. The Department has prevailed
in a number of cases dealing with dentistry and discriminatory policies that
prevented treatment of individuals with certain types of disabilities, most
notably individuals with HIV and AIDS. In another Supreme Court case, Bragdon
v. Abbott, 524 U.S. 624 (1998), the United States prevailed as amicus curiae
in ensuring that dental services are accessible to individuals with HIV and
AIDS. The Department has taken this position in a variety of lawsuits, as
well as having negotiated consent decrees with dental providers. See also
United States v. Morvant, 898 F. Supp. 1163 (E.D. La. 1995); United States
v. Castle Dental, Civ. No. H-93-3140 (S.D. Tex. 1993).
The Department has embarked upon an ambitious, nationwide campaign to improve
communications access in our nation=s hospitals for people who are deaf, are
hard of hearing, or have speech disabilities. This initiative started with
the Department=s intervention in Connecticut Association of the Deaf v. Middlesex
Memorial Hospital, a lawsuit brought by the Office of Protection and Advocacy
in Connecticut against 10 acute-care hospitals for failing to provide sign
language and oral interpreters for persons who are deaf or hard of hearing.
In a consent decree joined by all acute- care hospitals in the State of Connecticut,
the hospitals agreed to set up a State-wide, on-call system to provide interpreters
24 hours a day, seven days a week, for persons who are deaf or hard of hearing.
The Department has used this model for enforcement in other States and communities
across the nation. See, e.g., DOJ=s April 2001 settlement agreement with Advocate
Ravenswood Hospital Medical Center in Illinois (to be posted soon at www.usdoj.gov/crt/ada/adahom1.htm).
The Department has also been involved in ensuring accessibility of counseling
services for individuals with disabilities, perhaps the single most critical
component of the health care services for the population of individuals implicated
by Olmstead. In one example, again involving communications barriers, the
Department resolved a complaint with a private social services agency when
the agency agreed to adopt written policies and procedures ensuring that consumers
who are deaf will receive sign language interpreters without cost when participating
in the agency=s counseling programs. This agreement originated from a complaint
in which the provider had required an individual who is deaf to pay the costs
of sign language interpreter services at court-ordered counseling sessions.
5. 5. The Department has made serious efforts to combat discrimination in
child care.
Many children with disabilities may be at risk of being placed in segregated
settings while parents are at work, if adequate and affordable mainstream
child care is not available. Children may be institutionalized because of
a lack of access to child care services. The right of individuals with disabilities
to be provided care in the most appropriate setting for their needs was raised
in Orr v. KinderCare (N.D. Calif.), a lawsuit challenging the exclusion of
a nine-year-old boy because of his developmental disabilities, low vision,
and mild seizure disorder, from its after-school program. After six months
of serving Jeremy Orr in its two-year-old room, KinderCare argued that it
could not meet his individualized needs in Aa group care setting@ largely
because he would not initiate his own activities. The Department participated
in the suit as amicus curiae. Under a consent decree resolving the lawsuit,
KinderCare agreed to retain Jeremy Orr in its after-school program and allow
him to be accompanied by an aide funded by the State. KinderCare also agreed
to allow Jeremy Orr to attend the program in an age-appropriate classroom
when the aide was present, and in the two-year-old room when the aide was
not present.
The Department has been involved in other child care cases involving discrimination
against children on the basis of disability. For example, the Department has
vigorously enforced title III with respect to child care providers who exclude
children based on their HIV-positive status. In one such case, the Department
entered into a consent decree resolving a lawsuit filed against ABC Nursery,
Inc. in Beloit, Wisconsin, for allegedly refusing to admit a three year old
boy because he had tested positive for HIV.
In some situations, the problem of discrimination in child care settings results
from the refusal of providers to assist in basic services or with medical
needs that arise because of the child=s disability. The Department reached
an agreement resolving a complaint filed by the mother of a child with cerebral
palsy against a child care center that had refused to put on and remove leg
braces that the child needed to walk. In addition, the center attempted to
keep the child with a younger age group because, due to her disability, she
required diaper changing at a later age than other children at the center.
In another example, the United States District Court for the Northern District
of California in Alvarez v. Fountainhead, Inc., 55 F. Supp.2d 1048 (N.D. Cal.
1999), ordered a California child care center to modify its Ano medications@
policy and enroll a child who has asthma and uses an inhaler. Fountainhead
Child Care Center prohibited teachers from assisting in the administration
of any medication to children enrolled in its program. The Department argued
as amicus curiae that the minimal monitoring and supervision required when
Jeremy Alvarez used the inhaler would be reasonable and not fundamentally
different from the responsibilities that all child care operators have for
the safety and well being of their students. The Department has also addressed
child care setting medication issues for children with diabetes and children
with severe allergies.
6. 6. The Department has strived to address discriminatory insurance practices.
The ADA=s requirements regarding insurance are limited. Nevertheless, the
Department has made strides in protecting individuals with disabilities from
discriminatory insurance practices that often implicate the very population
of individuals who will be moving into community settings as a result of the
Olmstead initiative.
The Department has conducted a vigorous enforcement campaign to ensure that
insurance policies themselves, and not just the physical office of insurance
providers, are covered by title III of the ADA. Adopting the position articulated
by the Department in an amicus curiae brief, the court in Wai v. Allstate
Insurance, 75 F. Supp.2d 1 (D.D.C. 1999), held that title III prohibits discrimination
in the terms and conditions of insurance policies and not just physical access
to facilities. The Department=s brief in Wai supported the position of a landlord
who wanted to rent a single family house to an organization that would operate
it as a group home for persons with mental retardation, but who was refused
standard landlord property and casualty insurance. The landlord was told by
the insurance companies that she must obtain more expensive commercial insurance
for the house. While other courts similarly have held that ADA coverage reaches
beyond physical offices spaces, see Carparts Distribution Center, Inc., v.
Automotive Wholesaler=s Association of New England, Inc., 37 F.3d 12 (1st
Cir. 1994), some jurisdictions have not adopted the Department=s position.
See, e.g., Ford v. Schering Plough Corp., 145 F.3d 601 (3rd Cir. 1998); Parker
v. Metropolitan Life Ins. Co., 121 F.3d 1006 (6th Cir.1997).
In another case involving insurance for nursing home services, the Department
resolved through settlement a complaint by an individual who is deaf who alleged
that she was denied nursing home insurance solely because of her disability.
The company agreed to reconsider her application for insurance and to develop
a company policy for its employees and agents to ensure effective communication
with customers who are deaf or hard of hearing. Finally, the Department intervened
in a lawsuit alleging that an insurance company had terminated the auto insurance
coverage of an individual because of his mild mental retardation. Under the
consent decree resolving the suit, the insurance company agreed to pay substantial
damages and civil penalties and to revise its policies so that it no longer
considered the mental disability of an insured or applicant for insurance
in deciding to grant or continue insurance coverage if a doctor has reported
that the individual is able to drive safely.
7. Employment and professional opportunities are increased as a result of
the Department=s efforts.
Employment and access to training and vocational services is another important
area affecting the Olmstead population. The Department has enforced the ADA
against State and local government employers who have discriminated on the
basis of disability. The Department=s enforcement actions have involved laborers,
clerks, nurses, police officers, fire fighters, dispatchers, and other public
servants. Enforcement actions against private entities are handled by the
Equal Employment Opportunity Commission, with no involvement by the Department.
Perhaps most critical to the population of individuals moving from institutions
into the community was the United States Supreme Court=s unanimous holding
in Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999), that
courts should not give any special weight to the fact that an individual has
applied for Social Security disability benefits in determining whether a plaintiff
is a qualified individual with a disability in a title I employment suit.
Applications for Social Security disability benefits generally require the
individual to be unable to work. The Court agreed with the Department that
because the qualification standards for Social Security and those under the
ADA are different, application for or receipt of Social Security benefits
is not by itself inconsistent with being a qualified individual with a disability.
8. The Department has undertaken specific initiatives to increase access to
government programs by people with disabilities.
Access to civic life is a fundamental part of American society. The Department=s
AProject Civic Access@ is a wide-ranging effort to ensure that States, cities,
towns, and villages comply with the ADA. As part of this ongoing initiative,
the Department has reached comprehensive settlement agreements with 40 cities,
towns, and counties.
Issues typically addressed in these settlement agreements include physical
modifications of facilities to improve accessibility in government facilities
such as city and town halls, police and fire stations, court houses, centers
for health care delivery, child care centers, centers for teen and senior
activities, libraries, and recreational centers. The agreements also address
the effective communication of government services, reasonable policy modifications,
and other key elements of title II.
Another of the Department=s major initiatives in the area of government services
was a nationwide effort to ensure that critical 9-1-1 services were accessible
to individuals who are deaf or hard of hearing or who have speech disabilities.
The Department undertook to ensure that 9-1-1 emergency services provide direct,
equally effective access to TTY, or text telephone, users. Compliance reviews
B investigations that are not triggered by specific allegations of discrimination
B were conducted in over 500 locations in all 50 States by United States Attorneys=
Offices in consultation with the Civil Rights Division. Where problems were
found, the United States Attorneys offered technical assistance and negotiated
agreements to bring those 9-1-1 systems into compliance. The Department has
published AAmericans with Disabilities Act Access for 9-1-1 and Telephone
Emergency Services,@ outlining ADA requirements for providing direct access
to emergency services for persons using TTYs.
The Department continues to ensure the accessibility of public accommodations=
and commercial entities= facilities.
Access to the facilities of merchants and a host of other private businesses
is another important part of effective community placement of individuals
with disabilities. Title III requires public accommodations to remove barriers
to access for people with disabilities in existing facilities when doing so
is readily achievable. The Department has vigorously enforced this provision
with respect to a host of categories of businesses that must be accessible
to people with disabilities if they are to integrate successfully into mainstream
society. Resolutions have been reached with health care facilities, grocery
stores, restaurants, senior centers, and others. For example, Safeway Stores,
Inc. entered an agreement with the Department to modify security bollards
or cart corrals used at the entrances to many of its stores nationwide so
that customers who use wheelchairs can have greater access.
Making buildings correct from the start is much more cost efficient than is
retrofitting existing facilities. To ensure that the future-built environment
is accessible to people with disabilities, the ADA requires all new construction
and alterations to meet specific architectural design standards. The Department
has enforced these provisions with respect to all types of new construction
and alterations through the investigation of individual complaints and through
compliance reviews that enable the Department to review architectural plans
to determine if new construction projects will comply with the ADA's standards.
16. 10. The Department has established a highly successful ADA mediation program.
Mediation is an informal process in which a neutral third party assists opposing
parties to reach a voluntary, negotiated resolution of a dispute and, in this
context, a charge of discrimination. Mediation gives the parties the opportunity
to discuss the issues raised in a dispute, to clear up misunderstandings,
to determine the underlying interests or concerns, to find areas of agreement,
and, ultimately, to incorporate those areas of agreements into resolutions.
The Department=s ADA mediation program, which operates under a contract with
the Key Bridge Foundation, receives title II and III complaints for mediation.
Successful instances of mediation have resolved complaints that dentists and
other health care providers failed to provide effective communication to patients
who were deaf or hard of hearing; that town halls, grocery stores, pharmacies,
and health care facilities were inaccessible to people who use wheelchairs;
that places of public accommodation, such as retail stores, prohibited people
from entering with their service animals; that child care centers excluded
children with autism; and complaints alleging a wide variety of other issues
and circumstances.
The mediation program currently receives referrals of complaints under titles
II and III for mediation by professional mediators who have been trained in
the legal requirements of the ADA. An increasing number of people with disabilities
and disability rights organizations are specifically requesting the Department
to refer their complaints to mediation. More than 450 professional mediators
are available nationwide to mediate ADA cases. Over 80 percent of the cases
in which mediation has been completed have been successfully resolved.
The Department develops and distributes a wide range of ADA technical assistance
in many different ways.
The Department also has a variety of ongoing technical assistance endeavors
to explain the requirements of the ADA to the general population and to specific,
targeted populations.
Chief among the ongoing ADA efforts is the toll-free ADA Information Line,
which provides information to the public about the requirements of the ADA
and distributes technical assistance publications. Automated service is available
24 hours a day, seven days a week. During regularly scheduled hours, disability
rights specialists respond to questions and concerns from people with disabilities,
State and local government officials, and the business and nonprofit communities.
During the past year, the ADA Information Line responded to 110,000 callers.
The Department also operates an ADA Information Line Fax Delivery Service
that allows the public to select from among 32 different ADA technical assistance
publications and receive the information directly on their fax machines or
computer fax/modems. The Department=s ADA Home Page provides information about
ADA activities, and is now a nationally recognized source of information on
the ADA. In the past year, the ADA Home Page (http://www.usdoj.gov/crt/ada/adahom1.htm)
has received over 11 million visits B making it one of the top web sites at
the Department.
The second key component of the technical assistance effort is the extensive
written and video materials that the Department has developed to explain rights
and responsibilities under the ADA, including ATechnical Assistance Manuals@
for titles II and III, a series of AQuestion and Answer@ booklets, and numerous
other publications. All of the publications are available free of charge.
The Department provides millions of pieces of information and publications
annually to people with disabilities and covered entities.
In addition to these general pieces, the Department has developed technical
assistance pieces that have specific relevance to access to community life.
For example, the Department developed a variety of brochures, training guides,
and roll-call videotapes to educate police and courts about how to ensure
equitable treatment to people with a variety of disabilities. Through the
ADA Technical Assistance Grant Program, the Department has worked with trade
associations and others to develop ADA materials tailored to meet the needs
of specific audiences, including hotels and motels, restaurants, grocery stores,
small businesses, builders, mayors and town officials, law enforcement, people
with disabilities, and others. The Department has also worked with State-based
organizations to help State and local government officials and local business
owners become aware of the ADA and the resources that are available to assist
them in complying.
B. Barriers to the Full Implementation of Olmstead.
Despite nearly a decade of ADA enforcement, technical assistance, and considerable
progress in advancing the rights of individuals with disabilities, barriers
remain in many sectors of American society. The Department has identified
a number of barriers to the community placement of individuals who are currently
residing in institutions. These barriers are discussed below.
Many reasons, including a lack of awareness of the ADA=s requirements, contribute
to the problem of unnecessary institutionalization.
Many people are unnecessarily institutionalized because of a general lack
of awareness and understanding of the requirements of Olmstead and the ADA.
Individuals who reside in institutions are often unaware of their rights or
how to pursue them. Under Olmstead, individuals with disabilities have the
right to be given a choice as to whether they wish to be placed in community
settings when such a placement is deemed appropriate by their treating professionals.
In some cases, especially in nursing homes, the problem of individuals with
disabilities not knowing their rights results from a failure to reach and
educate the affected population. In other cases, educational materials or
efforts that currently exist may be inadequate for individuals with certain
kinds of disabilities, such as cognitive, learning, or developmental disabilities.
This lack of awareness also reaches professionals and others who work with
individuals with disabilities. The Olmstead decision places a great deal of
responsibility on treating professionals. Professionals working with the institutions
may be unaware of the availability of viable alternatives within the community.
Individuals with certain kinds of disabilities often have legal guardians
who make decisions about their care. Guardians, in addition to the individuals
with disabilities, need educational outreach regarding both the ADA and the
availability of viable services within local communities. An intensive educational
effort, including technical guidance to individuals, professionals, and the
States, is necessary to ameliorate these problems.
The lack of accessible services or facilities is also responsible for the
placement of qualified individuals with disabilities in institutional settings
that are inappropriate for their needs. For example, a person who is deaf
may have to find a nursing home far away from his family and friends because
none of the nursing homes in his State provide qualified sign language interpreters
or other appropriate auxiliary aids or services that are necessary for him
to communicate effectively. As part of the public input required by the Executive
Order, commenters speaking on behalf of an advocacy organization noted that
there are still large numbers of persons who are deaf in institutions across
the country, many of whom were misdiagnosed as having mental illness or mental
retardation because of their inability to communicate effectively. See, e.g.,
teleconference testimony. [2] They testified that such individuals have languished
in institutions because of communication barriers that affect diagnosis, consent
for treatment, and treatment, itself. Effective communication services must
be provided within communities - especially in health care services - if individuals
who are deaf are to receive meaningful access to community life.
. . . [Our State] institutionalizes many individuals simply because they face
multiple disabilities or disabilities for which there are no community-based
State programs. Our agency filed a Federal lawsuit nearly two years ago on
behalf of a woman who is deaf and mentally ill. Her doctors felt she could
live in the community, but the State delayed her discharge repeatedly because
it had not arranged to accommodate her deafness. After two years of litigation,
we expect that the [psychiatric facility] will discharge her in September
and she will finally begin treatment, with accommodations, in an appropriate
community-based program. B E-mail testimony of Aug. 27, 2001.
Children with disabilities may be improperly placed in institutions, rather
than in foster care or remaining with their families, because of the lack
of accessibility within the community. Some children may be placed in inappropriate
institutions because of the lack of access to appropriate and accessible child
care facilities. Such facilities may have architectural barriers to access
by children who use wheelchairs. More often, the problem resides in discriminatory
policies and practices of such facilities. One example from the Department=s
enforcement efforts, detailed above, is the case of a child with mental retardation
whose child care center refused to keep him enrolled simply because he was
unable to initiate his own activities. The child=s presence in no way altered
the basic services provided by the child care center; he was simply different
and fell victim to discriminatory policies that resulted from ignorance or
fear.
Some barriers to community placement result from Federal laws and the fragmentation
of Federal agency enforcement practices.
One of the requirements of the Executive Order is that Federal agencies come
together to assess their policies and practices as well as the laws each agency
enforces. In the public input solicited in execution of the Executive Order,
the Department received general comments expressing the concern of fragmentation
of Federal programs and Federal enforcement efforts. See, e.g., testimony
given during the Aug. 15, 2001, teleconference. [3]
The Department has reviewed its internal practices to ascertain any limitations
in the laws it enforces and the Department=s means of enforcement. This review
identified a potential gap in the Department=s enforcement efforts. The issue
arises when States contract with private institutions to perform services.
Placing people in private facilities does not alter the State=s obligation
under the Olmstead decision. The placement may, however, affect the remedies
available to an institutionalized person because the Civil Rights of Institutionalized
Persons Act (CRIPA) does not reach these institutions. Much of the Department=s
litigation concerning institutions has relied upon CRIPA coverage and the
section within the Civil Rights Division that enforces it. (See discussion
of CRIPA, below).
To address these limitations, the Department needs to work closely with HHS,
which receives all ADA-related health care complaints under title II and investigates
such complaints to determine whether to refer them for litigation by the Department.
HHS receives a significant number of complaints from individuals within institutions.
Although HHS has worked successfully with States to resolve such cases and
establish comprehensive plans for community placement, there may be individuals
who remain unassisted. The Department and HHS should work together to devise
a strategy within the dictates of each agency=s jurisdiction.
3. Other barriers result from circumstances within society.
As noted above, the barriers that keep individuals in institutional settings
often reside in the community. The lack of accessible housing, accessible
transportation, and access to health care services, especially psychiatric
care, remain formidable problems.
The chief barrier identified in our solicitation of public input is the lack
of physically accessible housing in communities; this includes both private
and public, multi-family housing as well as accessible group homes or similar
communal-living arrangements. Although the ADA covers zoning and permitting,
processes that may impede housing opportunities for individuals with disabilities,
the barrier of affordable, accessible housing is most appropriately addressed
by the Department=s enforcement of the Fair Housing Act. (See discussion under
Fair Housing Act, below).
The most commonly used mode of transportation by individuals moving from institutions
into the community is likely to be public transportation. Public transportation
includes paratransit services and inner city buses, both of which may remain
inaccessible in some communities. Public transportation may be inaccessible
for a number of reasons, including the lack of accessibility of some public
buses to individuals who use wheelchairs. Public transportation may also present
problems to individuals who are blind, because routine Astops@ may not be
indicated audibly. The Department shares responsibility for enforcing the
ADA with the Department of Transportation, which is chiefly responsible for
investigation of public transportation barriers. Taxi services may also be
used by the population of individuals moving from institutions into the community.
As discussed above, the Department of Justice has worked to make taxi services
accessible and, specifically, to prohibit discriminatory policies and practices
that result when taxi drivers refuse to serve people who use wheelchairs or
who have service animals. Despite these efforts, taxi services in some communities
may remain inaccessible to individuals with disabilities. Other factors within
a community B such as a lack of curb cuts B may present barriers to the free
movement of individuals with disabilities, even if basic transportation services
are accessible.
I am totally blind and my biggest problem in functioning in society is transportation.
I have adequate financial resources in my life right now but I still don't
have my medical needs met because I can't get transportation to medical services.
Even if education is available, how do I get there? I have intelligence and
the ability to work; but, again how do I get there? B E-mail testimony of
Aug. 27, 2001.
The third essential part of the successful implementation of Olmstead, and
a primary barrier in many communities, is access to appropriate health care
services. Health care services may include general medical care, or more specialized
treatment of physical health problems. Most critical in meeting the needs
of this population is access to psychiatric and psychological care and counseling,
and other similar treatment options that serve individuals who have resided
in institutions. Communication barriers, mentioned above, are one way in which
such services are inaccessible to individuals with disabilities. Other barriers,
both architectural and policy or practice-based, remain. One area of public
comment addressed the need within the population of individuals implicated
by Olmstead for access to dental services. See, e.g., e-mail testimony of
Aug. 14, 2001. [4] In some comments, the accessibility problem had less to
do with architectural barriers, and more to do with a refusal by dentists
to treat individuals with developmental or mental illnesses. Discriminatory
practices and policies that arise from fear are an important barrier in health
care services.
If an individual is to successfully adapt to community placement, a host of
other entities and services that are covered by the ADA must be available,
such as grocery stores and clothing stores.
Employment is another barrier that must be addressed. A lack of accessibility
in educational or training and vocational services was a common subject of
public comment. Full participation of individuals with disabilities in education
programs is often a prerequisite for meaningful competitive employment. There
is often a lack of employment opportunity for people moving from institutions
to community settings, especially for individuals with little or no work history.
Many people with disabilities are underemployed, earning comparatively lower
salaries than their nondisabled counterparts.
Other services within the community may impose barriers to successful community
placement and retention of people with disabilities. Police officers may react
inappropriately when observing people with disabilities. Sometimes the responses
of such officers exacerbate a delicate situation. Police may also treat deviant
but non-threatening behaviors as criminal.
In short, a variety of barriers to the community placement of individuals
with disabilities remain. Many such barriers are covered by the ADA and other
Federal laws. After almost ten years of ADA enforcement, pockets of the economic
sector are accessible; other pockets remain inaccessible. Time and coordinated
education and enforcement should assist in addressing these barriers. The
Department=s specific ideas for how to begin to address the barriers identified
by this review and to implement Olmstead are provided below.
C. Blueprint for Future Action.
To address the barriers identified in this report, the Department recommends
the following specific and narrowly-tailored approaches to meet the essential
needs of individuals who are moving from institutions into the community.
1. The Department will develop specific technical assistance documents to
assist with Olmstead implementation.
Executive Order 13217 specifically requires the provision of technical guidance
by Federal agencies. To address the lack of awareness regarding the requirements
of the ADA and, specifically, of the Olmstead decision, the Department will
develop and issue 3 technical assistance pieces. The first piece will be designed
to reach individuals with disabilities who are currently living within institutions
and will inform such individuals of their rights under the ADA and Olmstead.
The second document will be designed for people who are on the verge of institutionalization,
such as the elderly. The third piece will assist States in their responsibilities
for the implementation of Olmstead, building upon the work HHS and other agencies
have done with the States in developing comprehensive plans for the community
placement of individuals with disabilities. For example, the Department of
Education (ED) is also working with HHS and the Department of Labor (DOL)
to train a core group of cross-disability leaders to work with States to develop
their five-year plans. These disability advocates are helping States to plan,
implement, and evaluate their community-based services for persons with disabilities.
Therefore, the Department will work cooperatively with HHS, ED, and DOL in
developing a technical guidance piece for the States. The technical assistance
piece for the States may be issued either by the Department, or by HHS, ED,
DOL, and the Department, jointly. This intensive educational effort should
assist in improving the understanding of all parties necessary to the community-placement
initiative.
2. The Department will ensure comprehensive enforcement of the ADA with respect
to public programs and public and private institutions by increasing coordination
activities between the Department, HHS, and ED.
As required by the Executive Order, the Department will continue to work closely
with the HHS Office for Civil Rights to ensure a coordinated Olmstead-enforcement
approach. To address the problem of States contracting with private institutions,
the Department will work with HHS to ensure that private institutions that
are acting on behalf of the States are providing services in a manner consistent
with States= obligations under Olmstead. Additionally, the Department will
work to ensure that private institutions do not themselves discriminate on
the basis of disability by, for instance, ensuring that such institutions
provide effective communication to people with communication-related disabilities
and make reasonable modifications to policies, practices, and procedures when
needed to fully integrate people with disabilities into their programs. The
Department will also confer with ED staff to identify ways to reduce barriers
in educational opportunities for individuals with disabilities to improve
access to meaningful competitive employment. The Department will collaborate
with ED to realize this important objective.
The Department will also intensify efforts to implement Olmstead in court
B as a plaintiff, intervenor, or amicus curiae B in situations where entities
refuse to comply voluntarily with the Olmstead decision. In addition to vigorous
enforcement of the ADA to promote greater overall accessibility within communities
nationwide, the Department will investigate ways to ensure that essential
services covered by the ADA, such as transportation and health care services,
are made accessible to individuals with disabilities who are moving from institutions
into communities.
To ensure the accessibility of inner-city buses and paratransit services,
DOJ will work with the Department of Transportation and will increase DOJ=s
amicus curiae involvement in private suits.
The Department will work with the Department of Transportation toward ensuring
the accessibility of inner-city buses and paratransit services. Working collaboratively
with DOT, the Department will develop a list of criteria to guide DOT to refer
appropriate paratransit complaints to the Department for enforcement purposes.
The Department will look for opportunities to participate in private lawsuits
as amicus curiae on issues involving paratransit services and accessible public
transportation and will continue its efforts to expand the available modes
of accessible transportation nationwide. In conjunction with the DOT, the
Department will also reach out to public transit organizations to encourage
voluntary compliance with the ADA.
The Department will work to ensure the accessibility of mental health services
for people with communication-related disabilities.
In response to the public input the Department received regarding communication
barriers, the Department will investigate ways of expanding its nationwide
campaign to improve communications access for people who are deaf or hard
of hearing, or who have speech disabilities, by targeting, in particular,
mental health services within the community.
The Department will target discrimination in the provision of dental services
to people with cognitive and developmental disabilities.
The Department also will look for ways to address the problem of dental services
being inaccessible to individuals moving from institutions into community
settings. The Department will work to combat discriminatory policies and practices
in which dental services are not provided to individuals with certain types
of disabilities, such as developmental disabilities and mental illnesses.
The Department will tailor its existing mediation program to address Olmstead-related
claims and will work toward the possibility of implementing a formal referral
arrangement with HHS.
In furtherance of the goals of Executive Order 13217, the Department will
also work with HHS in determining whether it would be possible to refer unresolved
individual complaints dealing with Olmstead from HHS to the Department=s ADA
Mediation Program. HHS currently has over 200 open Olmstead-related complaints.
Such an initiative will require the two agencies to develop a process through
which HHS may refer complaints to the Department=s mediation program. One
way to formalize such an initiative would be for HHS and the Department to
commit to a Memorandum of Understanding regarding the mediation of Olmstead-related
complaints.
Pursuant to the Olmstead initiative, the Department will offer training with
regard to the Olmstead decision and related issues to the mediators. In addition,
the Department will also identify advocacy groups who can train lay advocates
to assist individuals in the mediation process who, because of disabilities
ranging from mental retardation to cognitive and learning disabilities, might
desire or require additional assistance and advocacy on their behalf.
7. The Department will engage in targeted outreach to identify affected populations
and improve the flow of information.
The public input the Department received concerning the execution of Executive
Order 13217 has been helpful to the Department in determining how best to
implement Olmstead. The National Listening Session and other efforts undertaken
by HHS identified barriers to community placement generally within the Federal
system. The Department would like to solicit input regarding the issues affecting
the Department=s enforcement and technical assistance responsibilities. To
that end, the Department will initiate a more targeted, and smaller-scale
meeting with leaders and advocacy groups that deal with Department-specific
issues. The Assistant Attorney General for the Civil Rights Division will
chair this meeting with advocacy groups. This meeting will review issues pertaining
not only to the ADA, but also to enforcement of the Fair Housing Act, and
the Civil Rights of Institutionalized Persons Act, both of which are discussed
below.
In addition, the Department will consider outreach targeted at determining
what specific barriers keep children in institutions, and away from family
settings. The Department is especially interested in keeping children with
families and families together within communities and sees Olmstead implementation
as a first step in that process. Specifically, the Department would like to
meet with advocacy groups to assess whether the problem of children residing
within institutions lies chiefly in a lack of accessibility in child care
settings or other similar barriers that are covered by the ADA. The Department
also will work with child care organizations and educators to promote the
delivery of services to people with disabilities. The Department also will
collaborate with the Department of Education (ED) in undertaking this effort
since ED is responsible for administering the statutes applicable to educational
services for children with disabilities.
The Department will use the considerable network of advocacy groups and organizations
representing States that it has developed pursuant to its ADA and other enforcement
activity to distribute its Olmstead technical assistance pieces, and the Department
will coordinate with HHS and its component, CMS, to reach individuals in nursing
homes and other institutions. The Department will continue its ongoing outreach
efforts and send Department members to upcoming conventions and other speaking
opportunities dealing with Olmstead and the community placement of individuals
with disabilities.
II. The Civil Rights of Institutionalized Persons Act (CRIPA)
The Civil Rights of Institutionalized Persons Act, 42 U.S.C. ' 1997 (CRIPA),
protects the rights of institutionalized people. Under CRIPA, the Department
may initiate a civil action where there is reasonable cause to believe that
a State or political subdivision of a State is engaged in a pattern or practice
of subjecting institutionalized individuals to conditions that deprive them
of the rights secured by the United States Constitution or Federal laws. One
of the rights secured by Federal law and enforced under CRIPA is the right
that is directly addressed in Olmstead.
The right at issue in Olmstead is the right for an institutionalized person
to be served in the most integrated setting appropriate to the individual=s
needs. This right is found in the regulations issued by the Attorney General
to comply with Congress's mandate in title II of the ADA that no individual
with a disability should be subjected to discrimination by any State or governmental
agency. 42 U.S.C. ' 12134. Following Congress's explicit directions, the title
II provision relevant here, known as the "integration regulation,"
requires States to "administer services, programs, and activities in
the most integrated setting appropriate to the needs of qualified individuals
with disabilities." 28 C.F.R. ' 35.130(d) (ADA title II integration provision).
As part of its CRIPA enforcement efforts, the Department conducts investigations
of conditions of confinement in nursing homes, psychiatric hospitals, facilities
for persons with developmental disabilities, and other health care facilities
and, pursuant to the ADA, reviews the appropriateness of placement of individuals
in these institutions. The Department also reviews discharging procedures
by professionals at facilities and ensures that the care and treatment of
individuals discharged to the community is safe and appropriate to meet the
individuals= needs. As part of its CRIPA investigations of health care institutions,
the Department collects evidence to determine whether there are violations
of title II of the ADA, particularly the ADA integration regulation. The Department
also enforces other Federal statutes and regulations, such as Section 504
of the Rehabilitation Act, title XIX of the Social Security Act, and various
Medicaid programs.
Under CRIPA, the Department may initiate a civil action where there is reasonable
cause to believe that a State or political subdivision of a State is engaged
in a pattern or practice of subjecting institutionalized individuals to conditions
that deprive them of the rights secured by the United States Constitution
or Federal laws.
CRIPA Accomplishments to Date.
Over the years, the Department has investigated ADA integration regulation
violations at 31 institutions for people with developmental disabilities,
11 psychiatric hospitals, 6 nursing homes, and 1 residential school for students
with visual disabilities. The Department continues to pursue and has completed
cases and investigations in 17 States, the District of Columbia, and the Commonwealth
of Puerto Rico. The Department has also filed briefs as amicus curiae in 4
cases addressing the meaning of the ADA=s integration regulation in cases
involving the unnecessary segregation of people in institutions. See Appendix
A for a list of Olmstead work under CRIPA.
1. Hundreds of people have been moved from institutions to community settings
as a result of the Department=s efforts.
Hundreds of individuals who were being unnecessarily institutionalized are
now living safely in the community with adequate supports and services, as
a result of the Department=s enforcement of CRIPA and the ADA=s integration
regulation. For example, in United States v. Tennessee, CA 00-6120, 00-6265,
00-6476 (W.D. Tenn. 1992), the United States alleged that Tennessee maintained
unconstitutional conditions of confinement at Arlington Developmental Center
(ADC). Following a lengthy trial, the district court ordered the State to
develop a comprehensive plan for placing ADC residents into appropriate, quality
community placements. Since the time a plan was developed and approved, 63
ADC residents have been placed in the community. Based upon the Department=s
ongoing monitoring efforts in this case, the majority of the remaining ADC
residents will be discharged into the community in the next two years. In
another case, two Louisiana facilities for persons with developmental disabilities
housed over 1,700 people when the Department began its investigation. The
Department worked with the State to transition inappropriately confined people
into the community. Today, more than 700 formerly institutionalized persons
now live in the community. In Wisconsin, since the Department began its investigation
of two facilities for persons with developmental disabilities, more than 650
persons have moved into the community. Similar cases in other States have
resulted in the community placement of countless individuals.
The Department has also successfully argued as amicus curiae that Olmstead
and the ADA integration regulation require jurisdictions to serve unnecessarily
institutionalized people in the community and that jurisdictions may be required
to expand, modify, and revise existing services to do so. See, e.g., Davis
v. California Health and Human Services (N.D. Cal. 2000) (residents of a large
nursing home must be served in the community where appropriate).
The Department has ensured the appropriateness of placement in health care
settings.
The Department conducts regular investigations of health care facilities and
reviews the appropriateness of placement of individuals in institutions. It
has worked successfully with a number of institutions to identify individuals
who would be more appropriately served in the community. The Department then
works with jurisdictions to identify required residences, day programs, vocational
opportunities, specialized services, medical care, and related services and
other supports needed to serve individuals in the community. For example,
in United States v. Puerto Rico, Civ. No. 99-1435 (D.P.R.), in late September
2001, the Department will submit a plan to the Federal district court, seeking
approval for a person-centered community services plan that creates from scratch
a comprehensive community services system for persons with developmental disabilities
who currently live in segregated institutions. The Commonwealth has committed
to provide individualized assessments for all of the over 200 institutionalized
persons and place in the community those who are determined to require placement
in a more integrated setting. The plan will provide for assessments, appropriate
transition planning and implementation, and creation of the infrastructure
of supports and services for that community system that will include housing,
transportation, supported employment and/or integrated training opportunities,
recreation, case management services, and respite care funds and supports
for families who choose to care for such persons at home. As in Puerto Rico,
the Department has worked with institutions all over the country to help those
facilities identify persons who should be moved to homes in the community.
The Department has ensured adequate institutional discharge planning and transition.
The Department regularly evaluates the discharge-planning processes and policies
of the institutions it investigates and ensures that the process of transition
from an institution to the community is safe and adequate. In many cases,
the Department has found that inadequate discharge planning and transitional
services have resulted in placements in inappropriate settings and high rates
of readmission to institutions, in violation of Olmstead. For instance, in
a case involving a psychiatric hospital in Virginia, the Department ensured
that discharge planning began when a person was admitted to the hospital.
The hospital strengthened its treatment services to ensure integration of
discharge planning into the patient=s care plan. Representatives of local
community providers participated in patients= treatment in the hospital to
ensure smooth transition to a community setting upon discharge. As a result
of the Department=s work, the facility improved coordination between the hospital
and community providers and decreased patient placements to homeless shelters.
In a case involving a nursing home in Philadelphia, as a result of the Department=s
work, the facility now prepares discharge plans upon admission to the nursing
home. The plans specify the individualized needs of the residents and how
those needs will be met in the community setting. Where appropriate, residents
are now transferred to much less restrictive settings such as independent
apartments, the homes of family or friends, or other community-based homes.
In a case involving D.C. Village, a nursing home in the District of Columbia,
when the District of Columbia decided to close the nursing home following
litigation with the Department, the Department secured court orders to ensure
that transitions to the community would occur safely for residents. Similar
cases in many States have resulted in the improvement in the discharge-planning
processes in scores of nursing homes, psychiatric hospitals, and facilities
for persons with developmental disabilities.
4. The Department has ensured that people discharged into the community are
afforded safe treatment.
The Department also tours the homes of people who are moved from institutions
into the community to ensure that placements are safe and appropriate to meet
individual needs. For instance, in United States v. Williams, Civ. No. 76-293
(D.D.C.), the Department visits the homes of former residents of Forest Haven,
the District of Columbia=s now-closed institution for persons with developmental
disabilities, to ensure the adequacy of the services being provided. The Department
has directed its energies to ensuring that individuals receive adequate protections,
services, and supports in the community. Earlier this year, the Department
negotiated and filed an extensive and comprehensive remedial plan to help
redress deficient conditions and practices within the District=s community-based
system. An independent court monitor oversees the defendants= compliance.
Moreover, the District of Columbia created an independent, nonprofit organization
to provide independent monitoring, lay advocacy, and legal representation
to all persons with developmental disabilities served in the District=s system.
The District of Columbia is funding this independent organization with over
$31 million over the course of the next 11 years. In similar cases throughout
the country, the Department ensures that people moved from institutions to
community settings as a result of Olmstead are safe and provided with adequate,
appropriate services.
The Department has participated as amicus curiae in ADA integration regulation
cases involving unnecessary segregation in institutions.
The Department has also participated as amicus curiae in several cases involving
the unnecessary segregation of people in institutions and the meaning of the
ADA integration regulation, as described above.
Barriers to the Full Implementation of Olmstead.
Through the Department=s CRIPA work, hundreds of individuals who were unnecessarily
institutionalized are now living safely in the community with adequate supports
and services. The Department=s work under CRIPA, however, can be hampered
in several important respects.
The Department=s authority under CRIPA is limited.
First, CRIPA only authorizes investigation of institutions where there are
patterns or practices of violations of rights. Thus, the Department has no
jurisdiction to investigate individual Olmstead complaints under CRIPA.
Second, the Department=s ability to conduct CRIPA investigations is dependent
on the cooperation of the jurisdiction being investigated. In the 20-year
experience of enforcing CRIPA, the Department has successfully settled the
vast majority of cases in which the jurisdiction has given it access to documents
and the institution. In cases where access is denied, the Department may have
no alternative but to initiate costly and time-consuming litigation.
Third, CRIPA authorizes the Department to investigate institutions that are
operated by, or on behalf of, a governmental authority. Thus, the Department
has no CRIPA jurisdiction to investigate purely privately-run facilities.
Fourth, some States and other political subdivisions of States have resisted
the Department=s efforts to investigate the services provided to individuals
who are moved from an institution into the community. The public entities
argue that the Department=s ability to enforce CRIPA ends at the brick walls
of the institution. Some States and political subdivisions of States in an
effort to swiftly implement Olmstead or because of lack of adequate oversight,
have placed individuals in the community without adequate supports. These
individuals have been subjected to unnecessarily difficult conditions. In
some cases, individuals are quickly re-institutionalized or incarcerated because
the services appropriate to their needs have not been provided in the community.
The Department must have the ability to ensure that the individuals who are
moved from the institutions to the community as a result of its law enforcement
efforts are safe and getting services appropriate to their needs.
Oversight of community support services is not always adequate.
Some parents and other family members resist the Department=s efforts to enforce
the integration regulation. They are afraid for the safety of their loved
ones if their relatives are moved to the community. These fears are not unfounded,
given that some States have not lived up to their responsibilities to inspect
conditions of care in the community and the adequacy of services provided
to individuals moved from institutions to the community.
For the Home and Community-Based Program, the largest and most popular program
providing [community] services, we must devise reasonable services to ensure
that the States fulfill their oversight responsibilities. . . . Otherwise,
we risk the possibility of serious health and safety problems in community-based
programs. B Testimony given during the Sept. 5, 2001, National Listening Session.
Also, laws requiring quality of care oversight are geared towards institutions,
not community-based settings. Although current statutes and regulations do
require states to assure CMS that safeguards are in place to protect the health
and welfare of home and community-based waiver enrollees, expectations about
specific state responsibilities are unclear. For this reason, DOJ strongly
endorses HHS= commitment to develop a multi-pronged strategy to address quality
of care issues in home and community-based services. See Preliminary Report
of Federal Agencies= Actions to Eliminate Barriers and Promote Community Integration.
3. Current federal laws and regulations impose barriers to community living.
As HHS recognizes in its Report, there are institutional biases in the Medicaid
statute itself. For a discussion on this point, see Report of the Department
of Health and Human Services on Community-Based Alternatives for Individuals
with Disabilities. For example, the Medicaid statute does not provide for
reimbursement of family members for in-home care of relatives with disabilities.
Families without adequate resources to pay for supports may be faced with
institutionalizing individuals who could otherwise be cared for in family
homes. DOJ strongly endorses HHS= commitment to establish a Medicaid Community
Services Reform Task Force to advise HHS on this and other issues.
I am a young mother to a child with a disability. . . . I have been fighting
almost non stop with social services in my area to get in home help with my
daughter for going on seven months now. Samantha's seizures are sometimes
so severe that she quits breathing. She requires about one-sixth the amount
of sleep that a typical healthy child does at this age. I spend most of my
days and nights so sleep deprived I'm not sure if I'm coming or going. There
were two occasions that I passed out from exhaustion and awoke several hours
later to a crying baby. That is when I started asking for help. I have yet
to receive it. I am not asking for social services to supply someone, I am
asking for the funds so I can hire someone who already knows my child's needs
and quirks. B E-mail testimony of Aug. 27, 2001.
Another barrier to community integration is the shortage of direct care workers
to provide services to individuals moved from institutions into the community.
These shortages result from a host of complex social and economic factors,
including the characteristics of the local job market, local wage rates, differing
job requirements and working conditions in community versus institutional
settings. Another factor, however, is that there are disparities in compensation
between direct care workers in institutional settings versus those in community
settings. DOJ strongly endorses HHS= commitment to undertake a national demonstration
designed to address shortages of community service direct care workers. See
Preliminary Report of Federal Agencies= Actions to Eliminate Barriers and
Promote Community Integration.
This morning, like every other morning, there were thousands of people with
disabilities who woke up and wanted to get out of bed but couldn=t because
there was no one there to help them. . . .While many factors contribute to
this, the main one is simple economics. Because, regardless of the State or
region, most community-based service workers are expected to do their jobs
at poverty level wages often without health coverage or other employee benefits
or with little or no opportunity for career advancement. Not surprisingly,
there=s an ever increasing shortage of these workers. . . . This results in
turn over rates of 100% among many provider agencies, increased incidences
of abuse and neglect and countless instances when people are left, often in
their own waste, because their attendants showed up late that day or not at
all. The future of community-based services and the very lives of millions
of people with significant disabilities, therefore, hinges on our ability
to begin to remedy this national crisis immediately. . . . If we truly value
people with disabilities being in the American community, we must value and
compensate those who make it possible. Testimony given at the Sept. 5, 2001,
National Listening Session.
Some treating professionals are unfamiliar with community- placement alternatives.
Olmstead places a lot of responsibility on treating professionals in institutions
to assess whether an individual would be more appropriately served in the
community. Oftentimes, professionals in institutions are not aware of alternatives
available in the community and make recommendations accordingly. This presents
a significant barrier for an individual who would like to move from the institution
into the community.
States are unwilling to risk closure of institutions and loss of jobs.
A final barrier to fulfilling the goals of the President=s Executive Order
is that sometimes States or other jurisdictions are reluctant to discharge
individuals who qualify for community placement under Olmstead into the community
because, eventually, institutional populations will diminish and may result
in the closure of the facility. In that case, staff at institutions lose their
jobs.
Blueprint for Future Action.
To continue to break down the barriers to persons with disabilities living
in institutions to move into the community, the Department is committed to
enhancing its enforcement of CRIPA. The Department will continue to devote
resources to investigations and litigation, where appropriate, with respect
to institutions where individuals are unnecessarily institutionalized. The
Department will continue to provide substantial technical assistance to jurisdictions
about how to comply with Olmstead. The Department will also continue to participate
as amicus curiae in impact institutional litigation where the ADA integration
regulation is at issue. Additionally, the Department will take the following
specific steps to enhance its ability to enforce Olmstead and help move people
from institutions to community settings when appropriate.
The Department may recommend expansion of its authority.
The Department may consider additional mechanisms that would give it greater
investigative abilities to address issues arising from community placements
and to address allegations of discrimination in purely private institutions.
The Department will increase staff training and information gathering efforts.
The Department will train its staff on the benefits of community placement
over institutionalization.
Department staff will attend national conferences on topics relevant to serving
people with disabilities in the most integrated settings appropriate to their
needs and collect information on the speakers and attendees to solicit information
on leaders in the field. In addition, staff will solicit input from advocacy
groups in the field to gather suggested consultants= and experts= names and
to alert the Department to private lawsuits where amicus curiae participation
by the Department would assist the court in interpreting and applying the
ADA integration regulation.
The Department will increase its outreach and education.
To overcome the resistence of some parents and other relatives to the community
placements of their institutionalized loved ones, Department staff will increase
its efforts to educate parents and other family members concerning the benefits
of community placement over institutionalization in large, congregate settings.
The Department also will increase efforts to educate individuals at risk of
institutionalization on alternatives to placement in facilities. Field trips
to successful community placements may help aid the educational process.
The Department will explore ways to increase training for treating professionals
in institutions so that they understand the possibilities of treatment in
the community and the alternatives available.
The Department will explore ways to address the shortage of community services
and supports.
To address the shortage of direct-care staff available to work in community
settings and States= resistence to shrinkage of institutions and the resulting
loss of staff positions, the Department will explore ways to transition competent
former institutional staff to work in community-placement settings.
To address the increasing numbers of persons with mental disabilities in the
nation=s jails and prisons, the Department will explore ways to increase the
number of mental health courts across the country. Mental health courts would
increase the diversion of persons with mental disabilities from correctional
settings to appropriate treatment settings in the community.
Five times as many people [with mental illness] are incarcerated than are
in State mental health treatment facilities. B Testimony given at the Sept.
5, 2001 National Listening Session.
5. The Department will coordinate its efforts with other Federal agencies.
The Department of Justice is committed to working with HHS and HUD on the
following issues:
C C Aiding HHS in developing its multi-pronged strategy to address quality
of care issues in home and community-based services. This strategy includes
establishing defined expectations for home and community-based services; assisting
states in using the results of CMS quality reviews of community placements;
providing technical assistance to states and HHS regional staff in effective
systems design or quality improvement strategies; and implementing new quality
assurance and improvement systems uniquely suited for services in one=s own
home.
C C Coordinating with CMS and HUD to take advantage of Federal money available
for the costs of housing in the community. The Department will work with HUD
to explore ways in which HUD representatives could be included in institutional
meetings at which the transition of an individual from an institution to a
community is discussed, so that HUD representatives can counsel individuals
regarding housing options and assist with obtaining vouchers.
C C Through the Interagency Council on Community Living and the Medicaid Community
Services Reform Task Force, working with HHS to reduce barriers to community
living and reduce institutional biases in the Medicaid program.
C C Through the Interagency Council on Community Living and the Medicaid Community
Services Reform Task Force, exploring the issue of providing support for family
care givers.
C C To identify those institutions where the greatest number of qualified
individuals are unnecessarily institutionalized, exploring a DOJ database
that analyzes the utilization reviews from institutions and ranks those with
the highest percentage of reviews that show that individuals do not need the
level of care the institution provides.
The Department will increase coordination among various enforcement components.
The Department will explore increasing enforcement coordination among its
various components. For instance, Department components can undertake joint
investigations that focus on the fraud committed by an institution that accepts
Federal money to care for an individual who is unnecessarily institutionalized.
The Department=s Civil Rights Division and two United States Attorneys Offices
have successfully conducted two such joint investigations under CRIPA and
Medicaid/Medicare Fraud statutes.
The Department will also explore enforcement coordination to ensure that States
that provide services through contracts with private institutions continue
to meet their obligations under Olmstead. At this time, CRIPA only gives the
Department jurisdiction to enforce title II of the ADA, which covers institutions
run by State and other governmental agencies. The Civil Rights Division will
also ensure private institutions meet their obligations under title III of
the ADA.
III. The Fair Housing Act (FHA)
A A FHA Accomplishments to Date.
Enforcement of the Fair Housing Act=s prohibitions against discrimination
on the basis of disability in all types of housing transactions is a key component
of ensuring that persons with disabilities are able to live in communities
of their choice across the country. The Department shares authority for enforcing
the FHA with the Department of Housing and Urban Development (HUD). HUD investigates,
conciliates, and adjudicates administrative complaints alleging violations
of the FHA. DOJ investigates and litigates claims involving a pattern or practice
of discrimination in violation of the FHA in addition to filing enforcement
actions arising from individual administrative complaints where HUD has found
reasonable cause to believe the FHA has been violated and the complainant
or respondent elects to have the matter resolved in Federal court. DOJ=s enforcement
of the FHA=s protections for persons with disabilities has concentrated on
two major areas. The first is ensuring that newly constructed multi-family
housing is built in accordance with the FHA=s accessibility and adaptability
requirements so that it is accessible to or adaptable for use by persons with
disabilities. The second is ensuring that zoning and other regulations concerning
land-use are not employed to hinder the residential choices of individuals
with disabilities by unnecessarily restricting communal or congregate-residential
arrangements, such as group homes.
The Olmstead case is not about plans, but about real choice, getting and staying
out of nursing homes and other institutions. Focus on addressing the shortage
of accessible, affordable integrative housing for folks coming out of nursing
homes and other institutions and those at imminent risk of going in. B Testimony
given at the Sept. 5, 2001, National Listening Session.
1. 1. The Department has worked diligently to improve the availability of
accessible housing.
The Fair Housing Act defines discrimination in housing against persons with
disabilities to include, among other things, a failure Ato design and construct@
certain new multi family dwellings so they are accessible to or adaptable
for use by persons with disabilities, and particularly individuals who use
wheelchairs. The FHA's design and construction requirements apply to multi
family dwellings of four or more units built for first occupancy after March
13, 1991. All ground floor units in buildings without elevators and all units
in elevator buildings must have the following features: an accessible entrance
on an accessible route; accessible common and public use areas; doors sufficiently
wide to accommodate wheelchairs; accessible routes into and through each dwelling;
light switches, electrical outlets, and thermostats in accessible locations;
reinforcements in bathroom walls to accommodate the installation of grab bars;
and usable kitchens and bathrooms configured so that a person using a wheelchair
can enter the space and access the appliances and fixtures within.
In addition, Section 504 of the Rehabilitation Act of 1973 requires, among
other things, that recipients of Federal funds, e.g., public housing authorities,
make at least 5% of their newly constructed or substantially rehabilitated
housing accessible to persons with mobility disabilities, including persons
who use wheelchairs, and at least 2% accessible to persons with hearing or
vision disabilities. [5]
Without the availability of accessible, affordable housing, many persons with
disabilities have no choice but to live in institutions, such as nursing homes
or hospitals, rather than living in community settings. Thus, ensuring an
adequate supply of both public and private housing that is accessible and
affordable is a vital step toward meeting the goals of President Bush=s Executive
Order.
Since October 1, 1996, the Civil Rights Division has brought 38 lawsuits against
developers, builders, owners, architects, and/or site engineers to enforce
the FHA=s design and construction requirements for new, multi-family housing.
Most of the cases have been resolved by consent decrees providing a variety
of types of relief, including: retrofitting to bring inaccessible features
into compliance where feasible and, where it is not, alternatives that will
provide for making other housing units accessible; training on accessibility
requirements for those involved in the design and construction process; a
mandate that all new housing projects comply with the accessibility requirements;
monetary relief for those injured by the violations; and civil penalties to
deter future violations of the FHA.
In a recent case, the United States sued a developer and an architect who
failed to design and construct a large apartment complex in Greenville, North
Carolina, in compliance with the accessible and adaptable-design requirements
of the FHA. The violations included steps leading into the individual units,
an insufficient number of curb cuts, doors too narrow to allow passage by
persons using wheelchairs, bathroom walls without reinforcements to permit
the installation of grab bars, and an inaccessible rental office. The lawsuit
was resolved through a consent decree, which required the builder and developer
to: (1) retrofit the common-use areas of the apartment complex; (2) ensure
that at least one fully retrofitted one bedroom unit and two bedroom unit
remain vacant and available at all times for viewing and rental by a prospective
tenant who requests such a unit; (3) give notice to every prospective tenant
of the availability of the fully accessible units; (4) pay aggrieved persons
up to $5,000 each for any out-of-pocket costs incurred because of the accessibility
violations; and (5) include enhanced accessibility features in a portion of
the units in the next two multi family projects that they construct. The architectural
firm that designed the complex was required to: (1) pay a $5,000 civil penalty;
(2) donate 100 hours of technical assistance to non profit organizations that
serve the housing needs of persons with disabilities in the Greenville community;
and (3) contribute to any amount paid by the other defendants to compensate
aggrieved persons.
In another recent case, the United States sued a developer and builder for
failing to design and construct five condominium developments located in Las
Vegas and Mesquite, Nevada to be accessible to persons with disabilities.
Design and construction violations in the common areas of the condominium
developments included steps in the pathways and leading into the individual
units, pathways that were too steep for individuals using wheelchairs to negotiate,
inadequate curb cuts, and inadequate accessible parking spaces. Design and
construction violations in individual condominium units included doors that
were too narrow to accommodate wheelchairs, bathrooms that were too small
to be used by individuals who use wheelchairs, and thermostats and electrical
outlets in inaccessible locations. Under the terms of the consent decree that
resolved the case, the defendants will spend over $1 million to make interior
and exterior modifications to bring the properties into compliance with FHA
requirements and establish a fund that will be used to retrofit the units
of those owners who have not yet come forward to request them and pay compensatory
damages to those persons who were victims of the defendants= discriminatory
actions. Under the consent decree, defendants must also certify to the Department
that any future construction complies with the FHA.
The Department has also actively enforced the FHA=s other nondiscrimination
requirements relating to persons with disabilities, including requirements
for reasonable accommodation to housing providers' rules, policies, practices,
and services and reasonable physical modifications to housing. Since October
1, 1996, the Civil Rights Division has brought 25 cases to enforce the FHA=s
prohibitions against disability-based discrimination and its reasonable accommodatio
