New Freedom Initiative -- Preliminary Report: Executive Order 13217 on Community-Based Alternatives for People with Disabilities

U.S. Department of Health & Human Services

Initiative ~ Executive Order ~ HHS Role ~ News & Additional Resources

Delivering on the Promise: Preliminary Report

Executive Order 13217 -- The Legal and Factual Backdrop

This part of the Preliminary Report describes the specific provisions of Executive Order 13217, concerning community-based alternatives for individuals with disabilities, and President Bush's New Freedom Initiative, a larger, multi-pronged strategy to address the rights and needs of individuals with disabilities. This part of the Report also discusses the legal and policy developments that led to Executive Order 13217, including the Americans with Disabilities Act and the Supreme Court decision in Olmstead v. L.C.. Programmatic and factual information about the need for community-based care for individuals with disabilities is included here as well. Finally, this part of the Report describes federal agency activities undertaken in accordance with the requirements of the Executive Order to conduct a self-evaluation of agency programs, policies, statutes and regulations, and to ensure public input in the self-evaluation process.

Executive Order 13217 on Community-Based
Alternatives for People with Disabilities

There are approximately 54 million individuals with disabilities in the United States. The General Accounting Office (GAO) recently estimated that at least 1.8 million of these individuals are being served in institutional settings, including 1.6 million individuals in nursing facilities, 106,000 individuals in institutions for people with mental retardation and developmental disabilities, and 57,000 individuals in state and local facilities for individuals with mental illness.¹ Approximately 52 million individuals with disabilities reside in the community. The GAO estimated that an additional two million individuals are at risk of entering an institution in order to receive care.²

Executive Order 13217 is founded upon five guiding findings and principles to address the needs of individuals with disabilities. The Order states:

The United States is committed to community-based alternatives for individuals with disabilities and recognizes that such services advance the best interests of Americans;
The United States seeks to ensure that America's community-based programs effectively foster independence and participation in the community for Americans with disabilities;
Unjustified isolation or segregation of qualified individuals with disabilities through institutionalization is a form of disability-based discrimination prohibited by Title II of the Americans with Disabilities Act of 1990 (ADA). 42 U.S.C. §12101 et seq. States must avoid disability-based discrimination unless doing so would fundamentally alter the nature of the service, program, or activity provided by the state;
In Olmstead v. L.C., 527 U.S. 581 (1999), (the "Olmstead" decision), the Supreme Court construed Title II of the ADA to require states to place qualified individuals with disabilities in community settings, rather than in institutions, whenever treatment professionals determine that such placement is appropriate, the affected individuals do not oppose such placement, and the state can reasonably accommodate the placement, taking into account the resources available to the state and the needs of others with disabilities; and
The Federal Government must assist states and localities to implement swiftly the Olmstead decision, so as to help ensure that all Americans have the opportunity to live close to their families and friends, to live more independently, to engage in productive employment and to participate in community life.

Exec. Order No. 13217, 66 Fed. Reg. 33,155 (2001) at Section 1

Executive Order 13217 calls upon participating agencies to undertake a range of activities to promote community-based living for qualified individuals with disabilities and to ensure swift implementation of the Olmstead decision. These activities broadly fall into three categories: (1) coordinated technical assistance to states; (2) the identification of specific barriers in federal law, regulation, policy and practice; and (3) enforcement activities, including the investigation and resolution of complaints brought under Title II of the ADA.

Technical Assistance

Executive Order 13217 directs the participating agencies to work cooperatively to ensure that the Olmstead decision is implemented in a timely manner. The Order mandates the agencies to work with states to "help them assess their compliance with the Olmstead decision and the ADA in providing services to qualified individuals with disabilities in community-based settings[.]" Specifically, the agencies are directed to provide "technical guidance," and to "work cooperatively with states to achieve the goals of Title II of the ADA, particularly where states have chosen to develop comprehensive, effectively working plans to provide services to qualified individuals with disabilities in the most integrated settings." These agencies also must ensure that existing federal resources are used in the most effective manner to support the goals of the ADA.

Review of Federal Policies, Programs, and Laws

Next, Executive Order 13217 directs participating agencies to "evaluate the policies, programs, statutes, and regulations of their respective agencies to determine whether any should be revised or modified to improve the availability of community-based services for qualified individuals with disabilities." The review is to focus on identifying affected populations, improving the flow of information about supports in the community and removing barriers that impede opportunities for community placement. The Order obligates the agencies to involve consumers, advocacy organizations, providers, and relevant agency representatives in the self-evaluation processes.

ADA Title II Enforcement

Finally, the Order instructs the Attorney General and the Secretary of Health and Human Services to "fully enforce Title II of the ADA, including investigating and resolving complaints filed on behalf of individuals who allege that they have been the victims of unjustified institutionalization." These two federal agencies are encouraged to "work cooperatively" with the states whenever possible and to use alternative dispute resolution to bring complaints to a quick and constructive resolution.

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¹ "Long-Term Care: Implications of Supreme Court's 47 Olmstead Decision Are Still Unfolding." United States General Accounting Office, Testimony of Kathryn G. Allen before U.S. Senate Special Committee on Aging, at pp. 6-7 (Sept 24, 2001)("GAO Testimony").
² GAO Testimony at 7.

Last revised: April 9, 2002