DOJ: Self Evaluation -- Final Report: Part I

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Self-Evaluation to Promote
Community Living for People with Disabilities

Report to the President
on Executive Order 13217

Final Report of the Attorney General

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 -- all of which aim to fulfill the ADA's mandate of integrating individuals with disabilities into the mainstream of American life.

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. -- 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 (3^rd 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.

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 (2^nd 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 "not in my back yard" NIMBY syndrome. -- 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.
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.
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.
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 "a 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 "no 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.
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 (1^st 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.
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.
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 "Project 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 "Americans 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.
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 (www.usdoj.gov/crt/ada/adahom1.htm) has received over 11 million visits -- 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 "Technical Assistance Manuals" for titles II and III, a series of "Question 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. -- 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.

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 "stops" 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 -- such as a lack of curb cuts -- 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? -- 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.

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.
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 -- as a plaintiff, intervenor, or amicus curiae -- 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.
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.

____________________

One person testified as follows during the Aug. 15, 2001 teleconference:

... There are very large numbers of deaf people in institutions around the country, many of whom were misdiagnosed as mentally retarded or mentally ill, because they could not communicate. Some have been languishing in institutions for decades, some without any adequate communication and some with no meaningful consent for treatment.

These people have to be identified and it is urgent that communications services, including interpreters, be made available to them in the community, so that they can be placed into the community and receive meaningful education and other services.

One commenter testified as follows during the August 15, 2001, teleconference:

... I've been a quadriplegic for 45 years, the result of a spinal cord injury incurred in service.... After leaving the private sector and coming into the advocacy arena, one of the greatest things that I see is the fragmentation of Federal programs. Obviously you're not the creators of that, but the recipients of that nightmare. And what I see is a lack of systemic solutions. We have all of these fragmented programs. We have waiting lists for affordable, accessible housing. You have problems with transportation. You have problems with obtaining healthcare services if you go into employment. Obviously Senate Bill 1298, just recently introduced will go somewhere to providing the community supports and services that are needed; however, it's still a poverty-by-eligibility program.
The solutions must eliminate the paternalistic view and medical model and look at what economic impact the programs will provide. My experience as a service-connected disabled veteran, the VA B the government has two programs, one of which doesn't work and one of which does. The one that does is the VA program, which offers healthcare services and provides financial support.
The result of that was that I was able to go into the private sector to buy my own housing, to go into the private sector to provide my own transportation and the personal attendant services which eliminates some of the under-the-table payments that are currently made and trying to obtain that, because simply the individual is not able to afford that.
As a result, I was able to create my own employment, plus the employment of others in a company that I owned, 165 employees. So there is a need to coordinate all of this and get a systemic solution, so that an individual doesn't have to go to so many different agencies to provide the benefits that are needed to get into an employable situation....

One person testified by e-mail as follows on Aug. 14, 2001:

I am the mother of [a] long time resident of [a training center]. [My son] has profound mental retardation....
There are a great many people with mental retardation who require and choose high quality community-based supports. Barriers to high quality community care include [a lack] of access to health care (including dental, medical and therapies) and other services....

Last revised: April 21, 2002

Delivering on the Promise Table of Contents

U.S. Department of Justice [Complete Report: HTML = 179K / PDF = 187K] Table of Contents ~ Executive Summary Final Report: Part I ~ Part II ~ Part III ~ Part IV ~ Appendix A

Self-Evaluation to Promote Community Living for People with Disabilities

Final Report of the Attorney General

I. The Americans with Disabilities Act of 1990 (ADA)

Delivering on the Promise
Table of Contents

U.S. Department of Justice
[Complete Report: HTML = 179K / PDF = 187K]
Table of Contents ~ Executive Summary
Final Report: Part I ~ Part II ~ Part III ~ Part IV ~ Appendix A

Self-Evaluation to Promote
Community Living for People with Disabilities